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162 Cards in this Set

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When is evidence relevant (definition)?
When it has ANY tendency to mkae a material fact more probable or less probable than would be the case without the evidence.
What is the basic rule for about admissibility for relevant evidence?
General rule is that all relevant evidence is admissible.
Whta is the general exception to the rule that all relevant evidence is admissible?
NOT admissible if the ct makes a DISCRETIONARY determination that the probative value of the evd is SUBSTANTIALLY OUTWEIGHED by pragmatic considerations.

ex: unfair prejudice, confusion (confusion of the issues, misleading the jury), waste of time (delay, waste of time, cumulative).
When, if ever, is evd. that a person has (or does not have) liability insurance relevant and admissible?
Inadmissible for the purpose of proving fault or the absence of fault.

Admissible for purpose of proving ownership or control IF that issue is controverted.

Admissible for impeachment.
What is bias and when is it admissible?
Bias means there is some relationship btw the witness and a party that could could cause the witness to lie.

Evidence of bias is almost ALWAYS ADMISSIBLE
When, if ever, are subsequent remedial measures (SRMs)(repairs/design changes made after an accident) admissible in federal court? NY?
SRMS are INADMISSIBLE to prove: negligence, culpable conduct, product defect, need for a warning (encourage post accident repairs)
ADMISSIBLE: proof of ownership, control, feasibility of a safer condition IF that issue is disputed (D must put it at issue).
NY: the same as above BUT ALSO SRMS are admissible in a products liability action based on strict liability for a MANUFACTURING DEFECT
Is evidence about a settlement admissible?
ONLY IF there is a DISPUTED claim, evidence of settlements, or offers to settle, or statements made in settlement discussions is INADMISSIBLE TO PROVE LIABILITY.
BUT may be admissible if offered to impeach on ground of bias.
What is the relevance rule regarding evidence that a party has paid or offered to pay an accident victim's medical expenses?
Evidence that a party ahs paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liablity. Rule does not other statements in connection with the offer.
What pleas of a D are inadmissible against him in a criminal case or subsequent civil case?
Inadmissible:
a) offer to plead guilty
b) a WITHDRAWN guilty plea (IN NY:THIS IS ADMISSIBLE IN LATER CIVIL CASE)
c) a no contest plea
d) statements of fact made during any of the above.
Definte character evidence:
Refers to a person's general disposition or propensity (ex: honesty, violence, carefulness)
What is the general rule about character evidence?
General rule is that Character evidence generally IS NOT admissible to prove propensity (conduct in conformity). Can be admissible for other purposes.
Can a defendant introduce evidence of his own good character for a relevant trait?
Yes; but if the D does so, the prosecution may rebut with evidence of the D's bad character (opens up the door).
When character evidence is admissible to prove propensity, what type of evidence is allowed?
FEDERAL: reputation or opinion
NEW YORK: reputation only
NEVER: specific acts
*can only testify to RELEVANT character traits
If the defendant opens the door by calling character witnesses, the prosecution may rebut in two ways:
1) Calling own witnesses to testify to relevant bad character
-Federal: reputation or opinion
-New York: opinion only
2) X-examining D's witnesses by questioning their knowledge of specific facts (have you heard..) to test witnesses knowledge
NY ONLY: pros. may also prove the D has been convicted of a crime that reflects adversely on character trait in issue
What is the form of the questions asked for

a) opinion witnesses
b) reputation witnesses
a) Opinion: Did you know...

b) Reputation: Have you heard...

Thus, cannot ask "did you know" questions in NY
When, if ever, does NY allow a evidence of a specific act to be introduced?
Ny allows a specific act only if it's a CONVICTION that goes to relevant character trait.
When can a criminal D offer evidence of the victim's violent character?
FEDERAL: Criminal D can offer evidence of the victim's violent character to prove the victim was first agressor--can be reputation or opinion evd. Prosecution can rebut w/ evd. of victim's good character OR defendant's bad character.
NY: evd. of the victim's character INADMISSIBLE to prove victim was first aggresor.
CAN be admitted for reasonable belief that self defense was necessary
Can a defendant offer evidence of his knowledge of victim's bad character for violence?
Yes, for the purpose of showing that he reasonably believed in the need to use self-defense. Not propensity evidence, so any form allowed.
NY FOLLOWS THIS TOO
What are rape shield rules?
in a case of sexual misconduct, the D may NOT introduce evd. of the victim's 1) reputation for promiscuity or 2) the victim's prior sexual conduct
But there are exceptions.
What are the exceptions to the rape shield rules?
A D may introduce
a) evd. of the victim's sexaul activity with THIS D, but ONLY IF defense is consent
b) evd. of victim's sexaul activity w/ others, but ONLY to prove that someone other than the D was the source of physical evidence
c) evd. required to be admitted by D's due process rights
d) NY ONLY: evd. of a victim's conviction for prostitution in last 3 yrs.
When is character evidence admissible in a civil case?
Generally INADMISSIBLE to prove propensity in civil case (including D's evidence of own good character or victim's violent character).
Only admissible when character is an ESSENTIAL ELEMENT of a claim or defense: 1) negligent hiring or negligent entrustment; 2) defamation (specific acts ok here)
What is habit evidence, and is it admissible?
UNDER FEDERAL RULES
Habit is a repeititve response to a particular set of circumstances (FREQUENCY, PARTICULARITY); habit of a person or routine of a business org. is admissible to infer how the person/bus. acted on the occasion (key words: always, automatically, instinctively).
What is NY rule on habit evidence?
Evidence relating to a business, trade or profession IS ADMISSIBLE

Evidence relating to personal habit on the issue of due care in negligence NOT ADMISSIBLE

Evidence relating to personal habit in the use of a PRODUCT IS ADMISSIBLE
Is evidence about a defendant's other crimes or specific bad acts admissible?
Generally NOT admissible during prosecution's case in chief if the only purpose is to prove propensity.
IS admissible only if offered for some other purpose than propensity. MIMIC Rule.
What is the MIMIC rule?
A defendant's other crimes or bad acts MAY be admissible if offered to show something SPECIFIC about the charged crime. Examples:
Motive, Intent, Mistake or accident (absence of), Identity, Common scheme or plan
NOT dependant on D's opening door.
Ho is a MIMIC-purpose crime proved?
a) by proving a conviction OR
b) by producing evidence that prior bad act occurred
What is the burden of proof for MIMIC-purpose crimes?
FEDERAL: prosecution must produce SUFFICENT evidence for a reasonable jury to conclude that D committed the prior act by a PREPONDERNACE of the evidence.

NY: sufficiency standard okay except for IDENTIY evidence; THEN prosecution must produce CLEAR AND CONVINCING evidence that D committed the prior act.
is MIMIC evidence permissible in a civil case?
yes, although it is most often in criminal cases. Can be in a civil case if relevant (ex: tort actions for fraud or assault)
What are some procedural requirements necessary before MIMIC evidence can be introduced:
1) weigh pragmatic considerations (probative value v. prejudic)
2) limiting instructions to jury
3) pretrial notice--upon defendant's request
Is evidence of other sexual misconduct admissible to show propensity for sexual assaults?
Federal: case alleging sexual assault or child molestation, prosecution may offer evidence of D's prior sexual assaults (don't have to be convictions) to show propensity

NY: rapists and child molesters treated just like everyone else
When, if ever, is a plaintiff's history of accidnets/law suits admissible?
Generally inadmissible, but can be admissible to show:
a) a fraudulent scheme or plan or
b) causation
Are other accidents caused by the same event or condition admissible?
Generally, other similar accidents are not admissible, but accidents involving the same instrumentality or condition, and occurring under SUBSTANTIALLY SIMILAR CIRCUMSTANCES may be admitted to: 1) show existence of a dangerous condition; 2) causation; 3) prior notice to the D
What is the standard for admitting experiments and tests?
There must be substantial similarity btw the experiment and the disputed fact.
When intent is at issue, are prior similar occurrences admissible?
Yes, may be relevant to draw an inference of intent from a person's prior conduct. (ex: Marta sues job for racial discrimination--CAN introduce evidence that job failed to hire any minority applicants in last 6 yrs, despite qualifications)
Rule regarding comparable sales on issue of value:
the selling price of comparable property (similar type, same location, time period) is admissible as evidence of the value of the property at issue.
What is the rule regarding the admissibility of evidence as to industrial custom and the standard of care?
Evidence as to how others in the same trade or industry have acted (industry practice) may be admitted as evid. as to how a party SHOULD HAVE acted; ie, as evid. of the appropriate standard of care.
What is judicial notice?
The recognition of a fact as true without formal presentation of evidence.
What is the rule regarding judicial notice?
A court may take judicial notice of indisputable facts, which come in two forms:
1) matters of common knowledge within court's jurisdiciton
2) matters capable of easy verificaiton by unquestionable sources
When can judicial notice be taken?
at any time, including on appeal
Are judicially noted facts conclusive?
Conclusive in civil cases, but NOT criminal cases.
What is the general rule regarding authentication?
The party seeking to introduce an exhibit must introduce SUFFICIENT evidence for a REASONABLE juror to conclude that the item is what the party claims it to be
What is the rule for authenticating writings?
If the relevance of a writing DEPENDS UPON ITS SOURCE OR AUTHORSHIP, the party offering the document must prove the source or authorship to authenticate the writing
What are the four main ways to authentice a writing (ex: prove that DOCUMENT was written by X)?
a) testimony by a witness with personal knowledge
b) proof of the author's handwriting by: lay opinion testimony, expert opinion and comparison, jury/trier of fact comparison
c) ancient document rule
d) solicited reply doctrine
What is the ancient document rule?
authenticity of a writing may be inferred IF the document is:
1) at least 20 yrs old (in NY at least 30 yrs old)
2) facially free of suspicion and
3) found where it would be expected
What is the solicited reply doctrine?
A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author. (ex: P mailes K to X and then later receives an acceptance signed by X)
What is the burden of proof for authentication?
The party offering the evidence must produce SUFFICIENT evidence for a REASONABLE JUROR to conclude the document is genuine
What are self-authenticating documents?
Some documens are presumed authentic; no foundation testimony is necessary. Ex: official publications, certified copies of documents on file in public office (deed), newspapers, trade inscriptions/labels, acknowledged/notorized document, commercial paper (check), certified business record
How is a business record certified so that it can be offered into evidence without violating hearsay rules?
Must be certified
1) by someone w/in the business
2) who knows how the records are regularly made
3) and that these documents were made in the regular way
4) at or about the time of the event recorded in the record
If a party is offering a photograph as EVIDENCE ITSELF (ex: photo from surveillance camera), how is it authenticated?
A party offering must show
1) that the camera was properly installed and working
2) that the film was properly removed and developed
3) that the film has not been tampered with (usually by establishing a chain of custody)
If the purpose of a photograph is to ILLUSTRATE a witness's testimony, how can it be authenticated?
Authenticated by the witness testifying, based on personal knowledge that the photo is a FAIR AND ACCURATE representation of the people or objects portrayed.
What qualifies as the original writing under the best evidence rule?
The original includes the WRITING ITSELF; any COUNTERPART intended to have the same effect; any negative of film or print from the negative
Does the best evidence rule apply to a witness with personal knowledge?
No, rule does not apply when a witness with personal knowledge testifies to a fact that exists independently of a non-legally operative writing which records the fact.
WHEN does the best evidence rule apply?
Only when the party seeks to prove the CONTENTS of a writing; usually when:
a) the writing is a legally operative document (ex: the writing itself creates rights and obligations like a deed, contract)
b) the witness is testifying to facts she learned solely from reading about them in a writing
What qualifies as the original writing under the best evidence rule?
The original includes the WRITING ITSELF; any COUNTERPART intended to have the same effect; any negative of film or print from the negative.
Does the best evidence rule apply to a witness with personal knowledge?
No, rule does not apply when a witness with personal knowledge testifies to a fact that exists independently of a non-legally operative writing which records the fact
What type of evidence does the best evidence rule govern?
Only applies to writings. A writing includes documents, recordings, films, and x-rays.

* will usually be the wrong choice on the bar
State the best evidence rule:
If a party seeks to prve the CONTENTS of a WRITING, the party must either: a) produe the writing or b) provide an acceptable excuse for its absence.
If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony to prove the contents.
What is the rule for duplicates under the best evidence rule?
A duplicate is admissible to the SAME EXTENT as an original UNLESS
1) there is a GENUINE QUESTION about the authenticity of the duplicate or 2) it would be unfair to admit the duplicate.

NY: photocopies and other duplicates are acceptable subs. only if made in the REGULAR COURSE OF BUSINESS
Under best evidence, when will non-production of the original be excused?
A party need not produce original or acceptable duplicate if the original: 1) is LOST or cannot be found with due diligence or 2) had been DESTROYED without bad faith or 3) CANNOT be obtained with legal process
Under best evidence, if non-production of an original is excused, then what?
If the court is persuaded by a PREPONDERANCE OF THE EVIDENCE that the excuse has been established, then secondary evidence is admissible (oral testimony, handwritten copy).
When are the Requirements of the best evidence rule not necessary?
1) Voluminous records: can be presented via a summary or chart, provided original records would be admissible and are available
2) certified copies of public records
3) collateral document , if the court dtermines the doc. is unimportant to the issues in the case.
What is real evidence?
Actual physical evidence that is displayed to the trier of fact (ex: drugs and guns)
Before introducing real evidence, what must a party do?
Party must AUTHENTICATE by introducing sufficient evidence that the item is what the party claims it to be.
What are the methods for authenticating real evidence?
1) Personal knowledge
2) chain of custody (a chain of custody must be substantially unbroken; it need not be perfect, but it must be based on reliable procedures for identificaiton and custody)
Does the condition of the real evidence matter?
If the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition.
What are the two requirements for a witness to be considered "competent" to testify?
1)Personal knowledge
2) Witness must take an oath, meaning a) deomonstrate an understanding of the obligation to tell the truth and b) promise to tell the truth
What are the requirements for a young child to testify federally and in NY?
FEDERAL: if he can take the oath, he can testify
NY: a child may testify uner oath so long as the child understands the obligation to tell the truth and promises to tell the truth
-civil: all witnesses, including child, must take oath
-criminal: a child under age 9 who CANNOT understand the oath may still testify, BUT D cannot be convicted on this alone; need corroboration
What is a Dead Man's Statute?
Provides that
a) in a civil action
b) an interested party (person's rights or obligations will be impacted by case)
c) may NOT testify
d) against a dead party
e) about communications or transactions with the dead party
Is there a federal dead man's statute? New York?
Federal: no dead man's statute

NY: there IS a dead man's statute; similar to rule in other states w/ 1 exception: in an accident case based on negligence, surviving party MAY testify about the facts of the accident BUT may NOT testify about conversations with the decedent
When, if ever, can the dead man's statute be waived?
The dead person's rights may be waived if:
a) the decedent's representative does not object or
b) the decedent's representative testifies about the transaction or
c) the decedent's testimony is introduced
When, if ever, are leading questions allowed?
ARE allowed on cross exam.
Generally NOT allowed on direct exam EXCEPT:
a) preliminary introductory matters
b) youthful or forgetful witness
c) a hostile witness
d) adverse party or someone under the control of the adverse party
What is the basic rule for "Present Recollection Refreshed"?
Witness may not read from a prepared memorandum; must testify on basis of CURRENT RECOLLECTION; if a witness forgets something he once knew, he may be SHOWN a writing or ANYTHING else to job his memory.
If an item is used to refresh a witness's memory, what may opposing party do?
Opposing party can:
-inspect it
-use it on cross examination
-introduce it into evidence
When can a writing be read to the jury as a past recollection recorded?
If a) the witness ONCE had personal knowledge
b) the witness now forgets and showing the writing to the witness fails to jog to the witness's memory
c) the writing was EITHER MADE by the witness OR ADOPTED by the witness
d) the writing was made when the event was FRESH in the witness's memory
e) and the witness can attest that when made the writing was ACCURATE
How is a recorded recollection admitted?
FED: The witness may READ the document to the jury, but the witness may NOT SHOW the document to the jury.
- the opposing party may show to jury by introducing as an exhibit
NY DIST: the party using the recorded recollection MAY introduce as an exhibit and show to jury
When is lay opinion testimony admissible?
If it is:
1) rationally based on the witness's perception (personal knowledge) and
2) helpful to the jury
Ex: sobriety, emotions, speed, handwriting, smells
What is the rule regarding testimony by an expert witness?
Witness may testify as an expert if:
a) the witness is qualified by education or experience
b) the testimony is about a subject where scientific or specialized knowledge helpful to jury
c) opinion has a proper basis
d) opinion is reliable (reliable methods, methods reliably applied to facts)
What is the proper basis of opinion for expert testimony?
Reasonable degree of probabily or reasonable certainty and based on:
-expert's personal knowledge
-evidence already in the trial record
-facts outside the record BUT only if those facts are reasonably relied on by experts in field
To be admissible, expert opinon must be sufficiently reliable. This generally means:
Expert has used reliable methods and the expert has reliably applied those methods to the particular facts of the case
What is the reliability standard for scientific evidence?
FED: Daubert standard; in short, judge is required to prove that standard is reliable

NY: Frye standard; has the methodology been generally accepted by the relevant professional community
Is it permissible for a witness to testify about the ultimate issue of a case?
Yes, permissible
EXCEPT witness may NOT testify that a D did or did not have the required mental state in a federal criminal case
Can a treatise be used to aid expert testimony according to federal rules?
FED: yes, if party can establish it is a reliable authority (by own expert testimony, opponent's expert admits it; judge takes judicial notice)
THEN can be used on direct or cross and can be READ to the jury as substantive evidence (but not shown to jury)
Can a treatise be used to aid expert testimony according to NY rules?
DIRECT: may only be used for showing the basis of expert's testimony, NOT substantive evidence

CROSS: may only be used to IMPEACH the opponent's expert's credibility, not substantive evidence, and only if opponent's expert relied on treatise or acknowledged it was authoritative
If a witness testifies but then cannot be cross examined, what happens?
Witness's direct testimony will be struck.
What are the proper subjects of cross-examination?
a) matters within the scope of direct examination AND

b) matters that affect the witness's credibility
What are the primary things that a witness's credibilty rests on?
Perception
Memory
Honesty
What are some examples of methods of impeachment:
prior inconsistent statemetn, bias, sensory deficiencies, bad character for truthfulness (criminal conviction, bad acts, reputation or opinion), contradiction
What is the difference between intrinsic and extrinsic impeachment?
Intrinsic: impeaching a witness by asking the witness questions on cross

Extrinsic: impeaching by introducing documentary evidence or by calling other witnesses
What is the rule regarding using prior inconsistent statements?
FED AND NY: Admissible to IMPEACH

FED ONLY: May be admitted both to impeach AND as substantive evidence to prove proof of prior statement IF the statement was made:
-orally under oath AND
-as part of a formal hearing, proceeding, trial, deposition
If a witness is impeached with a prior inconsistent statement, when does he have a right to explain?
NY: witness must be given chance to explain while still on the stand (so intrinsic evid before extrinsic)

FED: Inconsistent statement may be proven by extrinsic evid. so long as witness is later given opp. to explain
If a witness is impeached with a prior inconsistent statement, does he have a right to explain?
Witness must be given an opportunity to explain or deny prior inconsistent statements EXCEPT if witness is the opposing party (opposing party prior statement can also be admissible as substantive evid under party admissions hearsay exception)
Can bias be proven by outside evidence?
Yes, always.
What is a sensory deficiency?

What type of evidence is allowed to prove?
Anything that could affect the witness's perception or memory.

Intrinsic confrontation not required.
Extrinsic evidence is allowed.
Is character evidence admissible for impeachment purposes?
Yes, propensity evidence is appropriate for a witness (once a lier, always a lier)
What form of testimoy is allowed to impeach a witness based on bad character for truthfulness?
FEDERAL: reputation or opinion

NY: reputation only

Specific acts not allowed.
What is the NY rule for admitting evidence of a criminal conviction to impeach?
any witness may be impeached with a conviction for ANY crime ("has demonstrated willingness to put his own interests ahead of society's, may do so again by ignoring oath")
BUT when the witness is a criminal D, ct must conduct a HEARING to balance the probative value of the conviction (re veracity) with the risk of unfair prejudice.
What is the FED rule for admitting evidence of a criminal conviction to impeach?
To be admissible, a conviction or release from prison, whichever is later, must be iwthin 10 years of the trial
--Crimes of dishonesty/false statement ARE admissible
--Other misdeanors: NOT admissible
--other felonies: admissible if probative value of conviction outweighs risk of unfair prejudice
When a court is balancing the probative value and unfair prejudice of admitting evidence relating to a past criminal conviction, what do they consider?
Factors that make a conviction probative:
-seriousness
-relation to trust and deception
Factors that make a conviction prejudicial:
-inflammatory nature (child molestation)
-similarity to the currently charged offense
What is the rule for admitting evidence of bad acts that reflect adversely on witness's character for truthfulness?
FED: may be asked about prior bad acts if they relate to TRUTHFULNESS

NY: a witness may be asked about prior bad acts that show the witness's MORAL TURPITUDE
--ask about bad acts, NOT whether an arrest
When wanting to admit evidence about bad acts that reflect adversely on witness's character for truthfulness, what is the basis necessary and how is it proven?
Cross examiner must have a good faith basis to believe the bad act occurred.
The bad act may be proven by intrinsic evidence ONLY (stuck with witness's answer).
How is evidence about a witness's contradiction proven?
If contradiction goes to an issue that is SIGNIFICANT to the case, then it may be proven by extrinsic evidence
If contradiction goes to a matter that is collateral, only intrinsic evidence (stuck with witness's answer).
Can a party impeach it's own witness?
FED: any party may impeach any witness
NY: by calling a witness, a party vouces for that witness's credibility, so ordinarily NO
EXCEPTIONS: may impeach own witness w/ a prior inconsistent statement that was 1) made in writing and signed by witness OR 2) made in oral testimony and under oath. BUT in criminal case, can only be used if the witness' current testimony is "affirmatively damaging" not merely neutral
Is a witness's prior statement of identification admissible?
Yes, admissible even if the witness's credibility has not yet been attacked (prior ID is seen as more reliable than in-court ID so prior ID admissible as substantive evidence)
**statement of ID must be made by a TRIAL WITNESS subject to cross

NY: does not allow prior ID testimony in civil cases
When may a party introduce evidence of a witness's good character for truthfulness?
When a witness's character for truthfulness has been attacked.
What type of evidence is admissible to rehabilitate a witness?
FEDERAL: reputation or opinion

NY: reputation only

specific acts not allowed
When can a prior consistent statement be used to rehabilitate?
If a) prior statement is consistent with the witness's trial testimony
b) the opposing party has suggested through impeachment that the witness has a motive to lie and
c) the prior statement was made BEFORE the motive to lie arose
Is a prior consistent statement admissible as evidence that the prior statement was true?
FED: yes, a prior consistent statement that fits within the rule is admissible to rehabilitate AND as substantive evidence that prior statement was true

NY: admissible ONLY to rehabilitate
In federal diversity cases (state law governs substantive claims) apply the federal rules of evidence, but state law for:
1) burdens of proof and presumptions
2) dead man's statutes
3) privileges
Federal courts recognize the following privileges:
1) atty/client
2) husband/wife-spousal
3) priest/clergy
4) psychotherapist/patient
*note, no doctor/patient
NY courts recognize the following privileges:
1) atty/client
2) husband/wife-spousal
3) priest/clergy
4) psychotherapist/patient
(federal court plus)
5) doctor/patient
6) social worker/client (rape counselors included)
7) reporters and their sources
What are the elements of the attorney clinet privilege?
Applies to relationship btw atty/clien; covers COMMUNICATIONS so long as they are CONFIDENTIAL and for the purpose of LEGAL ADVICE...
UNLESS:
the privilege is WAIVED by the client or an EXCEPTION applies
For purposes of the atty/client privilege, who is considered an atty?
a) member of the bar
b) someone the client reasonably beleives is a member of the bar
c) representative of the atty (agent IF they are helping atty provide legal services)
For purposes of the atty/client privilege, who is considered a client?
Includes:
a person seeking to become a client
a representative of a client
For purposes of the atty/client privilege, what is NOT considered communications?
Privilege does NOT apply to:
a) underlying information
b) pre-existing documents
c) physical evidence
For the atty/client privilege to apply, a client must intend confidentiality; how does this apply to two clients with common interests?
If two or more clients w/ common interests consult the same atty, communications concerning common interests are privileged as to third parties--but if the joint clients later have disputes with each other concerning the common interest, privilege doesn't apply as between them
For the atty/client privilege to apply, a client must intend confidentiality; what happens if a third party is in the room?
No privilege if client knows a third party is listening in or if client asks atty to disclose communciation to a third party.
Who can waive the atty/client privilege?
Client is holder of the privilege so only client can waive it by disclosing communication to a third party (after death of client, client's estate holds the privilge and can waive it)
EXCEPTIONS
- future crime or fraud
- client puts legal advice in issue
- atty/client dispute
What are the elements of the doctor/patient privilege?
a) relationship btw dr and patient (dr includes therapists, nurses, and dr assistants--- in NY: also includes dentists, podiatrists, chiropractors)
b) covers COMMUNICATION OR INFORMATION acquired by dr
c) so long as it is CONFIDENTIAL and
d) for the purpose of MEDICAL DIAGNOSIS OR TREATMENT
Does the doctor/patient privilege apply Federally? in NY?
Doc/Patient applies in NY

FED: covers only psychotherapist (certified to diagnose or treat mental or emotional illness)
What are the elements of the SPOUSAL COMMUNICATIONS privilege?
1) applies to relationship between married spouses
2) covers COMMUNICATIONS
3) so long as they are CONFIDENTIAL
4) may be waived only be BOTH spouses
GOAL: to encourage candor btw spouses
What are the elements of the SPOUSAL IMMUNITY privilege?
1) applies only to CRIMINAL cases
2) covers TESTIMONY AGAINST spouse
3) so long as witness and defendant are CURRENTLY MARRIED
4) may be waived by the WITNESS spouse
GOAL: to protect marital harmony
***Not recognized in NY
Which spousal privileges does NY recognize?
Only the spousal communication privilege.
What are the exceptions to the spousal privileges?
Communication or acts:
a) in furtherance of a future crime or fraud
b) acts destructive of family unit
not covered by privileges
Say a married couple divorces before a trial, do the spousal privileges still apply?
For spousal communications privilege, all that matters is that they were married at the time of the communication.
For Spousal Immunity privilege, need to be married at time of trial, so this privilege would not apply here.
What is the definition of hearsay?
Hearsay is an out of court statement (oral or written) by a person (NOT animals, NOT machines) offered to prove the TRUTH OF THE MATTER asserted.
What is the rationale for why hearsay is inadmissible?
The declarant's credibilty (perception, memory, honesty) cannot be tested through cross-examination.
Gates sued Trump for breach of an oral K. Witness called by Gates proposes to testify as follows: "I heard Trump say to Gates: 'I accept your offer to sell Microsoft'" Is this hearsay?
No, it is a verbal act.
Words that have independent legal significance will not be hearsay. What are some examples?
1) offer, repudiation or cancellation of a K
2) words that have the effect of making a gift or bribe
3) words that are an act of perjury or a criminal misrepresentation or a defamation
A statement that is relevant because someone read it or heard it--hearsay?
NOT hearsay--
Examples: hearing something can put somone ON NOTICE or give someone a MOTIVE or can make someone's BELIEF REASONABLE
Homer is prosecuted for murder. Defense is Insanity. Witness for Homer proposes to testify: "Two days before the killing, Homer said 'I am Elvis It's good to be back'"
Hearsay? Under what rule?
No, a statement that unintentionlly reveals something about the speaker's state of mind is NOT hearsay.
ex: statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate a lack of knowledge
Is a witness's OWN prior statement admissible?
A witness's OWN prior statement admissible, if offered to prove the truth of the matter asserted in the statemetn, is hearsay and is INADMISSIBLE unless an exception or exclusion applies.
A witnesses's own prior statement, if offered to prove the truth of the matter asserted, is inadmissible. What are the exceptions to this rule?
a) a prior statement of identification

b) a prior inconsistent staement if: 1) made under oath 2) during a formal proceeding
**in NY this is only admissible to impeach

c) a prior consistent statement if 1) used to rebut an accusation of a motive to lie and 2) made before the motive to lie
**but in NY admissible only to rehabilitate
What is the rule for a party admission?
Who is the declarant?
Any statement made by a party is admissible if it is offered AGAINST the party.

The declarant is the party.

"you say it, you're stuck with it"
Is personal knowlege a requirement for a party admission?
No.
What is a vicarious admission and what is the rule?
A statement by an AGENT OR EMPLOYEE of a party is admissible against the PARTY (principle/employer) if it concerns a matter within the SCOPE of agency/employment and was made DURING the agency/employment.
**NY DIST: only admissible against principle if the agent/employee had SPEAKING AUTHORITY
When is a statement by a co-conspirator admissible?
A statement of one co-conspirator is admissible against other co-conspirators if the statement was made DURING and IN FURTHERANCE of the conspiracy
What are the elements of the former testimony exception to the hearsay doctrine?
a) The declarant is UNAVAILABLE
b) the prior statement was given in a PROCEEDING OR DEPOSITION
c)and is offered against a party who, on the prior occassion had an OPPORTUNITY and a similar MOTIVE to cross examine or develop the testimony
**NY DIST: former testimony by now-unavailable witness must have been given at a criminal trial, hearing on felony complaint, or at conditional deposition. Defendant and charge must be the same in BOTH former and current case.
The hearsay exceptions for former testiomny, forfeiture by wrongdoing, and dying declarations, and declarations against interest require that the declarant be unavailable. Grounds to meet unavailability:
PAILS
a) privilege
b) absence from the jurisdiction
c) illness or death
d) lack of memory
e) stubborn refusal to testify
**NY DIST: NY does not recognize d or e; only a, b, c
AND in a civil case, NY also allows unavailability for:
i) declarant located 100 miles or more from the courthouse
ii) declarant is a doctor
A party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection to admission of the declarant's out of court statements. What is the burden of proof?
Burden of proof regarding party's wrongdoing:

FED: preponderance of evidence

NY: clear and convincing
What are the elemnents of the statement against interst exception to the hearsay doctrine?
1) declarant is UNAVAILABLE
2) statement is against declarant's PECUNIARY, PROPRIETARY, OR PENAL interest
*note that statement against penal interest, when offered to exculpate a D, must be supported by corroborating circumstances (otherwise too fishy)
Under the confrontation clause, the prosecution may not offer testimonial hearsay in violation of the D's right to cross examine. This right IS NOT violated when:
a) if the D already had a chance to cross (former testimony exception)
b) defendant now has a chance to cross (prior statemetn of a trial witness) or
c) defendant has forfeited the chance
In the context of the confrontation clause, what does testimonial mean?
a) grand jury testimony and
b) police interrogations
What is the criteria for a dying declaration??
1) declarant is unavailable
2) statement was made under a belief of certain and impending death
3) statement concerns the cause of circumstances of the impending death
What types of cases permit the dying dclaration hearsay exception?
FED: in any civil case or in a criminal homicide case

NY: criminal homicide cases only
what are the requirements for excited utterance hearsay exception?
What factors make a statement "excited"?
1) the statement concerns a startling event
2) and was made while the declarant was under the stress caused by the event

FACTORS:
a) nature of the event
b) passage of time
c) verbal clues
what are the elements for present sense impression hearsay exception?
a) the statement describes an event
b) and is made while the event is occurring or immediately thereafter

NY: requires corroboration
what are the federal requirements for a statement of then-existing mental, emotional, or physical condition for the hearsay exception?
allows admission of
1) a contemporaneous statement
2) concerning the declarant's then existing a) physical condition or b) state of mind
(does NOT include statement of memory or belief about a past condition; DOES include a statement about a future intent to do something with a third person)
-includes emotions, mental feelings, intent or future plans, sensations, and bodily health
what are the NY distinctionsfor a statement of then-existing mental, emotional, or physical condition for the hearsay exception?
If a statement of a present PHYSICAL condition is made to a layperson (not a doctor) the declarant must be unavailable
2) if a statement of future intent is offered to prove the conduct of a third person, NY requires
-corroboration (of the connection btw declarant and third person) and
-that declarant is unavailable
What elements are necessary to allow a statement in under the "statements for purpose of medical treatment or diagnosis" hearsay exception?
Allows admission of a statement:
a) made to a medical professional (doctor nurse, EMT)
b)concerning present symptoms, past symptoms, or general cause of a medical condition
c) for the purpose of treatment or diagnosis
BUT NOT statements of fault or statements about the identity of a wrongdoer

NY DIST: does not apply to statements soley made for the purpose of obtaining expert testimony at trial or relating to past symptoms
Elements of business and public records hearsay exception:
1) records of a business
2) made in the regular course of business
3) the business regularaly keeps such records
4) made contemporaneously
5) contents consist of
-info observed by employees of the business OR
-statement that falls within some other hearsay exception
Can a police report be offered under the public records exception?
No, a police report may not be offered against the D in a criminal case
May conclusions made in a public record be admitted?
Yes, in addition to observations by employees of the public agency, may also include conclusions by public employees after an official investigation (ex: police officer's conclusion about fault of an accident)
How is the foundation for the business records exception layed?
1) live testimony (call a knowledgeable witness who can testify to the five elements of the business records hearsay exception)
2) affidavit

NY: written certificaiton may be used only in civil cases and only for the business records of a non-party
How is the foundation for hearsay exceptions layed?
Whether a party has established the elements is to be decided by the JUDGE by a PREPONDERANCE of evidence.
In making that determination, judge may rely on ANYTHING (including inadmissible evidence)
What are the four non-hearsay uses (when statemetn is not offered for the truth of the matter asserted)
-impeachment
-verbal acts
-effect on listener
-circumstantial evidence of speaker's state of mind
What are the three times a prior statement of a trial witness can be admitted:
-prior statement of identification
-prior inconsistent statement
-prior consistent statement
(declarant must testify at trial)
What are the four hearsay exceptions when the declarant must be unavailable?
-former testimony
-forfeiture by wrongdoing
-statement against interst
-dying declaration
What are the burdens of proof?
Civil: preponderance of evidence

Criminal: beyond a reasonable doubt
The jury decides questions of CONDITIONAL RELEVANCE which come in three forms:
a) whether a witness has personal knowledge
b) whether an exhibit is authentic
c) whether the D is in fact the person who committed a prior bad act (MIMIC)
What is the judge's role for questions answered by the jury?
To ensure that there is sufficient evidence for a reasonable jury to conclude that the conditional fact is true
The judge decides questions of admissibility, for example:
-is it hearsay
-is it privileged
-whether an expert is qualified

judge can consider anything when making such decisions
When must an objection be made?
After the question is asked but before the witness answers; otherwise it is untimely.