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61 Cards in this Set

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NY SRMs
SRMs are admissible in NY in a PRODUCTS LIABILITY action based on strict liability for a manufacturing defect
NY Habit
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
Offers to Settle
if claim is disputed, inadmissible.
BUT if the claim is NOT disputed, then admissible ("I'll settle for $10k if you don't sue")
NY G pleas
a withdrawn guilty plea is admissible in NY (not FRE) in a subsequent civil case
Character evidence, generally
used substantively
no character in civil
defendant's shield and never prosecutor's sword
character of D
D can put on his own good character (not acts) for *relevant* trait, and then prosecutor can rebut
character of V
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*
Rape shield rule
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
NY Character of V
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)
Prior Bad Acts
not admissible for character (so crim or CIVIL), but admissible to show motive, opportunity, intent, plan, etc.
FRE BoP for Prior Bad Acts
"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"
NY: BoP for Prior bad acts
"Identity Evidence: The P must produce C&C evidence that D committed the prior act"
methods of proving character
NY: reputation only: "Have you heard that..." NOT "Did you know that..."
NY Good character of D
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
Prior bad sexual acts
FRE: Always admissible for any purpose
NY: no such rule / no prior bad acts
Similar Occurrences
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
Industrial Custom
evidence as to how others acted in the industry may show how a party *should* have acted
judicial notice
conclusive in civil case;
but NOT in crim cases
Oath
must demonstrate an understanding of the need to tell the truth and promise to tell the truth
Children / Oath
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
Dead Man's Statute
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.
Dead Man's Waiver
if decedent's representative does not object;
or decedent's representative testifies about the transaction;
or decedent's testimony is introduced (deposition)
NY dead man's exception
In an accident case based on negligence, the surviving party may testify about the *facts* but NOT conversations with the dead party
diversity evidence choice of law
apply FRE, but state law for:
BoP and presumptions;
dead man's statutes;
privileges
Fed privileges
A/C
husband/wife
priest penitent
psychotherapist / patient
NY privileges
FRE four
doctor / patient
social worker (incl rape crisis)
reporters and their sources
Corporate A/C privilege
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
Spousal inCompetence
her choice to testify or not
NY: doesn't exist
Self-Incrimination
Doesn't apply to a *corporation* - only natural persons
NY Doctor patient
communications for the purpose of diagnosis or treatment;
lost if patient puts condition into issue (personal injury or insanity)
NY Voucher Rule
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"
NY Character Evidence
Reputation only, not opinion.
Except, "would you believe this W under oath?"
Specific Instances
Used only on cross.
Without extrinsic evidence.
Only for truthfulness.
Ultimate Issue
Prohibited, except mental state.
NY: You can give mental state too
Learned Treatise Doctrine
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
Prior Inconsistent Statement
must be UNDER OATH
Prior Consistent Statement
FRE: after attack, use prior statement substantively
NY: only for impeachment
Identification After Perceiving Person
V can say you ID'ed him at lineup; but if V dies, cop can't come and say that V ID'ed him
Statement By Party Opponent
* Party's statement
* Adoption
* Authorized / agent
* EE w/in scope of agency, during existence of relationship
* conconspirators
NY Statement by party opponent
for EE's, narrower, only if EE had speaking authority
NY PSI
corroboration req
then existing mental/physical state, plan
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
NY medical diagnosis or treatment
not for PAST symptoms
not for litigation
Unavailability reasons
1) privilege
2) absence from jurisdx
3) death or illness
4) lack of memory
5) contempt
NY: NOT 4 & 5
Unavailability Hearsay Exceptions
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)
forfeiture by wrongdoing, BoP
(unavailability only)
FRE: preponderance
NY: C&C (higher)
recorded recollections
FRE: read into evidence, but not as an exhibit
NY: exhibit / show it to jury
Business Records
NY: written certifications are only permitted in CIVIL cases and only for the business records of a non-party
burden to establish hearsay
preponderance
confrontation clause
for SAI, grand jury testimony & police interrogations may not be admitted against criminal D
Ancient Document Rule
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
solicited reply doctrine
a document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
authentication BoP
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
photograph as a silent witness
if photograph is standing alone (surveillance camera), must show:
* camera was properly installed & working
* film was properly developed
* film was not tampered with
best evidence rule
party must either:
* produce the writing
* or provide an acceptable excused for its absence
original writing rule
duplicates are generally admissible
NY: duplicates are acceptable only if made in the regular course of business and not for litigation
original writing, non-production excused
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
Original writing rule, exceptions
* voluminous records can be presented by summary or chart
* certified copies of public records
* collateral documents
FRE Impeachment by criminal record
* 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
NY Impeachment by criminal record
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
Prior Inconsistent Statements
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