Evidence

Front 1

NY SRMs

Back 1

SRMs are admissible in NY in a PRODUCTS LIABILITY action based on strict liability for a manufacturing defect

Front 2

NY Habit

Back 2

Evidence relating to a business, trade or profession is admissible.
E relating to personal habit on the issue of due care in negligence is not admissible.
E relating to personal habit on the use of a product is admissible

Front 3

Offers to Settle

Back 3

if claim is disputed, inadmissible.
BUT if the claim is NOT disputed, then admissible ("I'll settle for $10k if you don't sue")

Front 4

NY G pleas

Back 4

a withdrawn guilty plea is admissible in NY (not FRE) in a subsequent civil case

Front 5

Character evidence, generally

Back 5

used substantively
no character in civil
defendant's shield and never prosecutor's sword

Front 6

character of D

Back 6

D can put on his own good character (not acts) for *relevant* trait, and then prosecutor can rebut

Front 7

character of V

Back 7

D can put on E of the bad character (not acts) of V and P can rebut (a) V's character OR (b) with E of D's bad character for the *same trait*

Front 8

Rape shield rule

Back 8

E of V's character is not admissible to show sexual predisposition, history, or promiscuity
NY: evidence of V's conviction for prosecution in last 3 years

Front 9

NY Character of V

Back 9

NOT permitted,
except D may offer evidence of his own *knowledge* of V's bad character for violence for the purpose of showing need for self-defense (reputation, opinion or ACTS)

Front 10

Prior Bad Acts

Back 10

not admissible for character (so crim or CIVIL), but admissible to show motive, opportunity, intent, plan, etc.

Front 11

FRE BoP for Prior Bad Acts

Back 11

"the prosecution must produce sufficient evidence for a reasonable jury to conclude that D had committed the prior act by a *preponderance* of the evidence"

Front 12

NY: BoP for Prior bad acts

Back 12

"Identity Evidence: The P must produce C&C evidence that D committed the prior act"

Front 13

methods of proving character

Back 13

NY: reputation only: "Have you heard that..." NOT "Did you know that..."

Front 14

NY Good character of D

Back 14

P may rebut D's good character E by proving that the D has been *convicted* of a crime that reflects adversely on the character trait in issue

Front 15

Prior bad sexual acts

Back 15

FRE: Always admissible for any purpose
NY: no such rule / no prior bad acts

Front 16

Similar Occurrences

Back 16

P's Accident History - to show fraudulent scheme or plan or causation
Similar Accidents caused by same event - everyone who ran this Xerox got cancer

Front 17

Industrial Custom

Back 17

evidence as to how others acted in the industry may show how a party *should* have acted

Front 18

judicial notice

Back 18

conclusive in civil case;
but NOT in crim cases

Front 19

Oath

Back 19

must demonstrate an understanding of the need to tell the truth and promise to tell the truth

Front 20

Children / Oath

Back 20

FRE: if they can take the oath, they can testify
NY: civil - same
NY: crim - a child under 9 who *cannot* understand may still testify, but need corroboration

Front 21

Dead Man's Statute

Back 21

FRE: none
NY: in a civil action, an interested party may NOT testify about a dead party about communications or transactions with the dad dude.

Front 22

Dead Man's Waiver

Back 22

if decedent's representative does not object;
or decedent's representative testifies about the transaction;
or decedent's testimony is introduced (deposition)

Front 23

NY dead man's exception

Back 23

In an accident case based on negligence, the surviving party may testify about the *facts* but NOT conversations with the dead party

Front 24

diversity evidence choice of law

Back 24

apply FRE, but state law for:
BoP and presumptions;
dead man's statutes;
privileges

Front 25

Fed privileges

Back 25

A/C
husband/wife
priest penitent
psychotherapist / patient

Front 26

NY privileges

Back 26

FRE four
doctor / patient
social worker (incl rape crisis)
reporters and their sources

Front 27

Corporate A/C privilege

Back 27

an EE may hold the privilege on behalf of the corp, if:
instructed by management to speak w/atty
atty needed the information to counsel the corp
statements in the scope of empt
EE knew statements were made to an atty
EE had a reasonable expectation of confidentiality

Front 28

Spousal inCompetence

Back 28

her choice to testify or not
NY: doesn't exist

Front 29

Self-Incrimination

Back 29

Doesn't apply to a *corporation* - only natural persons

Front 30

NY Doctor patient

Back 30

communications for the purpose of diagnosis or treatment;
lost if patient puts condition into issue (personal injury or insanity)

Front 31

NY Voucher Rule

Back 31

NY: Can't impeach your own witness
except w/prior inconsistent statement, made in writing & signed OR oral testimony under oath
in CRIM, this exception can only be used if W's current testimony is "affirmatively damaging" to the party who called W, not merely a "cloud on credibility"

Front 32

NY Character Evidence

Back 32

Reputation only, not opinion.
Except, "would you believe this W under oath?"

Front 33

Specific Instances

Back 33

Used only on cross.
Without extrinsic evidence.
Only for truthfulness.

Front 34

Ultimate Issue

Back 34

Prohibited, except mental state.
NY: You can give mental state too

Front 35

Learned Treatise Doctrine

Back 35

NY: on direct, used only as a *basis* of testimony, not substantive.
NY: on cross, used to impeach, but ONLY if expert relied on the treatise or acknowledged it as reliable

Front 36

Prior Inconsistent Statement

Back 36

must be UNDER OATH

Front 37

Prior Consistent Statement

Back 37

FRE: after attack, use prior statement substantively
NY: only for impeachment

Front 38

Identification After Perceiving Person

Back 38

V can say you ID'ed him at lineup; but if V dies, cop can't come and say that V ID'ed him

Front 39

Statement By Party Opponent

Back 39

* Party's statement
* Adoption
* Authorized / agent
* EE w/in scope of agency, during existence of relationship
* conconspirators

Front 40

NY Statement by party opponent

Back 40

for EE's, narrower, only if EE had speaking authority

Front 41

NY PSI

Back 41

corroboration req

Front 42

then existing mental/physical state, plan

Back 42

NY: if state of present *physical* condition is made to a layperson, declarant must be unavailable
NY: if Hillman statement is offered to prove conduct of a third person, must have corroboration and unavailability

Front 43

NY medical diagnosis or treatment

Back 43

not for PAST symptoms
not for litigation

Front 44

Unavailability reasons

Back 44

1) privilege
2) absence from jurisdx
3) death or illness
4) lack of memory
5) contempt
NY: NOT 4 & 5

Front 45

Unavailability Hearsay Exceptions

Back 45

1) Former Testimony
* NY: a suppression hearing doesn't count
2) Dying declaration
* only homicide or civil
* NY: only homicide, not civil
3) statement against interest
4) statement of personal or family history
5) forfeiture by wrongdoing (making someone unavailable)

Front 46

forfeiture by wrongdoing, BoP

Back 46

(unavailability only)
FRE: preponderance
NY: C&C (higher)

Front 47

recorded recollections

Back 47

FRE: read into evidence, but not as an exhibit
NY: exhibit / show it to jury

Front 48

Business Records

Back 48

NY: written certifications are only permitted in CIVIL cases and only for the business records of a non-party

Front 49

burden to establish hearsay

Back 49

preponderance

Front 50

confrontation clause

Back 50

for SAI, grand jury testimony & police interrogations may not be admitted against criminal D

Front 51

Ancient Document Rule

Back 51

authenticity may be inferred if document is at least 20 years old; facially free of suspicion; and found where it would be expected;
NY: 30 years old

Front 52

solicited reply doctrine

Back 52

a document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

Front 53

authentication BoP

Back 53

sufficiency standard: authentication is a matter of conditional relevance, which means the party offering the E must produce sufficient evidence for a reasonable juror to conclude that the document is genuine

Front 54

photograph as a silent witness

Back 54

if photograph is standing alone (surveillance camera), must show:
* camera was properly installed & working
* film was properly developed
* film was not tampered with

Front 55

best evidence rule

Back 55

party must either:
* produce the writing
* or provide an acceptable excused for its absence

Front 56

original writing rule

Back 56

duplicates are generally admissible
NY: duplicates are acceptable only if made in the regular course of business and not for litigation

Front 57

original writing, non-production excused

Back 57

if original is lost or cannot be found w/due diligence
* or destroyed w/o bad faith
* or cannot be obtained legal process
* BoP: Preponderance

Front 58

Original writing rule, exceptions

Back 58

* voluminous records can be presented by summary or chart
* certified copies of public records
* collateral documents

Front 59

FRE Impeachment by criminal record

Back 59

* if crime punishable > 1 year, comes in subject to 403
* crimes of dishonesty SHALL be admitted, regardless of 403
* time limit - must be < 10 years from conviction or relase

Front 60

NY Impeachment by criminal record

Back 60

any person may be impeached by any crime
criminal D's: ct must do a Sandoval hearing, to balance the probative value against unfair prejudice

Front 61

Prior Inconsistent Statements

Back 61

Used substantively, if made under oath. (not in NY)
For impeachment only, no oath req.
Extrinsic evidence is not admissible unless W is afforded an opportunity to explain or deny
NY: W must be FIRST given an opportunity to explain on the stand