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185 Cards in this Set

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What are the three major topics of Evidence?
1. Relevance (including Character Evidence)
2. Witnesses (including Impeachment)
3. Hearsay
What are the 4 minor topics?
1. Judicial Notice
2. Documentary Evidence
3. Real Evidence
4. Privileges
What is the definition of relevance?
Evidence is relevant if it has any tendency to make a material fact more probably or less probable than would be the case without the evidence
What is the basic rule and general exception to that rule about relevant evidence?
All relevant evidence is admissible, unless the court makes a discretionary determination
What are the 3 pragmatic considerations that a court would use to make a discretionary determination to not admit relevant evidence?
1. Unfair prejudice
2. Confusion
3. Waste of Time
Is evidence that a person has or does not have liability insurance admissible for the purpose of proving fault or the absence of fault?
No
What are the 2 exceptions to the rule on Liability Insurance?
Evidence that a person has liability insurance may be admissible for Proof of ownership or control if that issue is controverted or impeachment of a witness
What happens when evidence is admissible for one PURPOSE, but inadmissible for another PURPOSE
Judge should give the jury a limiting instruction
What is impeachment?
Impeachment is a key concept. Its the process of trying to show that a witness should not be believed.
What is bias?
Bias is a key concept. It means there is any relationship between the witness and a party that could cause the witness to lie.
When is evidence of a witness's bias admissible?
Almost ALWAYS
What are SRMs?
Subsequent Remedial Measures- repairs or design changes taken after an accident that could have prevented the accident
SRMs are inadmissible to prove....
1. Negligence
2. Culpable Conduct
3. A product defect
4. A need for a warning
When may evidence of SRMs be admissible?
1. Proof of ownership
2. Proof of Control
3. Feasibility of a safer condition (Only if that issue is controverted)
What is the NY rule on SRMs?
Same as federal rule and SRMs are admissible in a product liability for manufacturing defect.
Mary Jo sues Universal Motors for injuries suffered in an auto accident. Mary Jo asserts that Universal should beheld liable on a theory of SL and seeks to introduce evidence that after the accident, UM changed the process by which it manufactures the brakes on its cars? Is this admissible?
Under Federal Rule, no
Under NY rule, yes
What if in Mary Jo's case the theory of liability was defective design, not SL?
No, under federal or NY.
Are evidence of settlements, offers to settle, or statments made in settlement discussions admissible to prove liability?
If there is a disputed claim, then no. The rationale is that this encourages settlements and frank settlement discussions
What is the exception to the rule about evidence of settlments?
Settlement evidence may be admissible if offered to impeach a witness on the ground of bias.
P's and D's car collided. D immediately ran up to P and said, "Look, I'll settle with you for 100k if you don't sue. P sues anyway. At trial, P seeks to introduce D's statement. D objects. How should the court rule.
Objection overruled. This was not a settlement discussion.
True or False, Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is inadmissible to prove liability
TRUE, it encourages rationale.

Note- this rule does not include other statements made in connection with an offer to pay medical expenses.
What are the 4 things related to pleas that are inadmissible against a defendant in a pending criminal litigation or a subsequent civil case?
1. An offer to plead guilty
2. A Withdrawn guily plea
3. A Plea of nolo contenderi (no contest)
4. Statements of fact made during any of the above.
What is the NY didstinction regarding pleas and plea discussion in criminal cases?
A withdrawn guilty plea is admissible in NY.
What should I "beware" about guilty pleas that are not withdrawn?
They are admissible against the defendant in subsequent litigation based on the same facts in both federal court and NY court.

All this is why you should use the No contest plea all the time.
What is character evidence and why do I need to know it?
Its commonly on the bar exam. Character evidence refers to a person's general disposition or propensity.
What are the 4 purposes for offering character evidence?
1. propensity
2. Veracity of a witness
3 Non-propensity purpose
4.Trait as element
True or False, the general rule is that character evidence is admissible to prove propensity.
False. Its not admissible for propensity. It is admissible for other purposes, such as showing a witness's veracity, for a non-propensity purpose, and when the trait is an element.
Can defendent's introduce evidence of his own good character for a relevant trait?
Yes. this is an exception to the general rule.
What happens to the prosecution if the defendant opens the pandora's box by introducing evidence of his good character?
They can rebut it with evidence of their own.
When character evidence is admissible to prove propensity, the only proper methods are:
Federal: reputation or opinion
NY:reputation only
Not allowed: evidence of specific facts.
Baretta is charged with murder. May the prosecution claim that Baretta's violent charater is an element of th ecrime of murder.
No. A character trait is never an element of a crime.
In Baretta's murder trial, the defense calls Fred to the stand. May fred testify "I've seen Baretta turn the other cheek when assaulted by buillies; he's the president of the local Pacifist Club.
No. these are specific facts and are not allowed.
What are the 2 ways, the prosecution can rebut evidence of a defendant's character?
1. By calling its own witnesses
2. By cross-examining defendant's witnesses by questioning their knowledge of specific facts.
What form must the prosecutions cross-examining of defendant's character witnesses take?
For opinion witnesses: did you know?
For reputation witnesses: have you heard?

Note: this is only to test witnesses knowledge, not to prove specific fact.
Does the prosecution have to prove the specific fact before it can play the "did you know" game?
No, but under the GOOD FAITH REQUIREMENT, the prosecution must have a good faith basis to believe tha tthe specific act took place.
What is the NY distinction regarding prosecution rebuttal of defendant's good character evidence?
The proseuction may prove that the defendant has been convicted of a crime that reflects adversely on the character train in issue.
After the defense rests, may the prosecution introduce a 15 year old certified conviction of Baretta for assault?
Federal - no
NY- yes
I would like to prove that my victim attacked me first. I would like to introduce evidence of his violent character. What should I do?
If you are in federal court, you may introduce evidence in the form of reputation or opinion. The prosecution, in turn, my rebut with evidence of the victim's good character and your bad character.

If you are in NY court, this evidence of the victim's character is inadmissible with regards to first agressor
May Bobby testify in his own defense that, at the time of the altercation with Tonya, he was aware of her prior knife attack on Nancy?
Not to prove that Tonya was the first aggressor, but Yes to assert the reasonableness in Bobby's belief in the need to use self-defense.
What is the special rule for defendant's knowledge of victim's character for violence?
The defendant may offer evidence of his own knowledge of the victim's bad character for violence for the purpose of showing that he reasonably believed in the need to use self-defense.

Any form is allowed. And its allowed in NY as well.
In Rape shield cases, what is the defendant not allowed to introduce evidence about?
The victim's reputation for promiscuity or the victim's prior sexual conduct.

The rationale is that promiscuity evidence has low probative value and may discourage rape victims from coming forward.
What are the exceptions to the rape shield rule?
Evidence of the victim's activity with the D may be admitted but only if the defense is consent.

Evidence of sex with others is ok if to prove someone other than the D was source of physical evidence

IN NY only, evidence of the victim's conviction for prostitution w/in the past 3 years.
Is character evidence in Civil cases really any different from criminal cases with regards to propensity?
Not really. Character Evidence is generally inadmissible to prove propensity.
What are the 2 exceptions that would make evidence of a person's character in a civil action admissible?
1. negligent hiring or entrustment
2. Defamation- [the truth will set you free]
What's the general rule for propensity evidence and the habit exception?
Gen Rule for propensity evidence is that it's inadmissible. Habit of a person is admissible to infer how the person acted on the occasion at issue in the litigation.
Define Habit
Habit is a repetitive response to a particular set of circumstances. Its frequent and particular
What are the key words to look for on an exam that this is someone's habit?
Always, invariably, automatically, instinctively.
Is business routine admissible to prove conduct on a particular occassion?
Yes
What are the NY distinctions with regards to habit evidence?
Habit evidence related to a business, trade or profession is admissible

" " related to personal habits on the issue of due care in negligence is not admissible.
P sues Toaster company for products liability for the shock he recieved when he tried to remove the toast. M wants to introduce evidence that P has a HABIT of sticking knives in toasters. Admissible?
Yes.
Can evidence of defendant's other crimes or bad acts be admitted to prove propensity?
As a general rule, no. They are inadmissible.
What is the MIMIC Rule?
The Mimic rule provides the exception to the general rule on admissibility of other crimes/bad acts. They can be admitted for Motive, Intent, Mistake or accident (absence of), Identity, Common Scheme or plan
Deej is charged with the murder of a dewey beach cop. The prosecution wants to prove that same cop busted deej for firing fireworks as a weapon against his friends. I (deej's lawyer) object on the ground of impermissible character evidence. What result?
Over ruled, this is admissible bc it speaks to motive.
Deej is charged with possession of narcotics and deffens that he was merely a user, not a seller. Prosecution wants to prove that Deej sold drugs a year ago under similar circumstances. Admissible?
Yes, bc Deej made state of mind an issue.
Deej kills Justin with an fireworks. His defense is that it was an accident. Can the prosecution introduce evidence that deej aimed fireworks at justin a week ago?
Yes. Prosecution is disproving deej's idea that is was an accident.
Deej is charged with robbing Wisey's on july 1. He says he was in jersey. Can the prosecution introduce evidence that he robbed Tombs on the same day?
Yes, its about identity and alibi.
Deej is charged with firing fireworks at his friend. He was wearing a ski mask when he did it. Can the prosecution introduce evidence that he used the same rare form of bottle rocket a year ago in dewey beach?
Yes, its about identity.
Deej is charged with bank robbery. The robber used a white acura with jers plates. Can the prosecution introduce evidence that deej stole a white acura the week before?
YEs, not about propensity, but rather, "the story" of the robbery.
How can the prosecution prove a MIMIC crime?
Federal burden is the "sufficiency standard" = sufficient evidence for a reasonable jury to conclude by a preponderance of the evidence

NY "identity" evidence- pros must produce clear and convincing evidence that the D committed the prior act.
What are 3 other requirements for MIMIC evidence?
1. Pragmatic considerations
2. Limiting Instruction
3. Pretrial notice to D upon D's request
Can evidence of past sexual assaults by the defendant be introduced for the purpose of proving D's propensity to commit sexual assault?
Federal RUle is Yes,
NY is no- rapists are treated just like all other defendants.
What about similar occurrences, are they admissible?
The general rule is to be relevant, evidence must relate to some time, event, or person involved in the present litigation. otherwise the evidence is inadmissible.
What are the 6 situations of the "similar occurrences" rule to know?
1. Habit (maybe)
2. Plaintiff's accident history (no, unless)
3. Similar accidents caused by same event or condition (no, but...)
4. Intent is in issue (yes, if its relevant to drawing inference of intent)
5. COmparable sales on issue of value (yes)
6. Industrial Custom as Standard of Care (maybe to show appropriate standard of care)
What is Judicial Notice?
The recognition of a fact as true w/o formal presentation of evidence.
What are the two most commong forms of judicial notice?
1. Matters of Common Knowledge
2. Matters capable of easy verification.
Whenever a writing appears on the exam, what are the three potential issues to keep an eye out for?
1. Authentication
2. Best Evidence
3. Hearsay
What is the general rule on 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.
I am question a key witness and he testifies that this document is the contract he saw P and D excecute. D objects, saying that the document is a forgery. What result?
Overruled. Admit and Defense can then bring up forgery if it wants jurors to not give it much weight.
What are the 4 ways a party can authenticate writings (ie, prove that a Doc was written by x)
1. Testimony by a witness.
2. Proof of the author's handwriging
3. Ancient Document Rule (if 30 yrs old we assume its real)
4. Solicited Reply doctrine
What are the 7 types of self-authenticating documents we need to know whcih are presumed authentic?
1. Official publications (tax returns)
2. Certified copies of public or private documents (mortgage)
3. Newspapers
4. Trade inscriptions (labels on a candy bar)
5. Acknowledged Receipt (notarized documents)
6. Commercial paper (a check)
7. Certified business records
What's the rule about Certified Business Records?
They must be certified by someone w/in the business who knows how the records are regularly made and that these documents were made in the regular way at or about the time of the event recorded.
What must the witness testify in order for a photograph being used to "illustrate" a witness's testimony be included?
It must be authenticated by witness testifying that the photo is a fair and accurate representation of the people or objects portrayed.

The witness need not have taken the picture herself.
How can one introduce a photograph that is like a "silent witness", ie surveillance camera?
That the camera was working, film properly developed, not tampered with and chain of custody.
What is the "Best evidence" or "original writings" rule?
If you have something in writing, produce it or else you need a good excuse. If you have good excuse, oral testimony is ok.
What do me mean by "writing' WRT "Best evidence rule?
documents, recordings, films, and x rays
When does the best evidence rule apply?
Only when the party seeks to prove the contents of a writing, which arises when the writing is a legally operative document (a contract, ie) or the witness is testifying to facts he learned solely from reading about them in a writing.
"i watched the film and it clearly shows Barney was the burglar" objectionable?
Yes. You need to produce the film.
Does a witness with personal knowledge need to produce the best evidence?
No
What is the rule for duplicates?

The NY rule?
A duplicate is admissible to the same extent as an original unless there is a genuine question about its authenticity or it would be unfair to admit it.

NY only allows duplicates when they are made in the regular course of business (not for discovery)
When will non-production of the original be excused?
If its lost, can't be found with DD, been destroyed without bad faith, or cannot be obtained with legal process. If court buys it, oral testimony is allowed.
What are other "escapes" from the requirements of the Best Evidence rule?
Voluminous records (you can use a summary chart)
Certified copies of public records
Collateral documents
On the bar exam, the best evidence rule....
Is usually a wrong choice.
What is real evidence?
Its actual physical evidence, like guns and drugs.
What is the authentication rule for "real evidence?"
Party seeking to introduce must introduce sufficient evidence that the item is what the party claims it to be...
What are the two methods of authenticating real evidence?
1. Personal knowledge ("i recognize this gun as the one found at the crime scene")
2. Chain of custody ("this drug sample has been in my possession ever since it was seized from the D")
What are the two req's for a witness to be considered "competent" to testify?
1. Witnesss must have personal knowledge
2. Must take an oath- demonstrate an understanding of obligation to tell the truth and promise to do so.
What is the NY rule for testimony by children?
Kids can testify if they understand the obligation and promise to the truth. In NY in criminal cases, a children under 9 can still testify even if he can't understand the oath. Hint: NY wants kids to be able to testify against their abusers
What is the federal rule about the "Dead man's Statutue?"
There is none
What is the NY rule for Dead Man's Statutes?
Gen Rule - In a civiil action, an interested party may not testify against a dead party about communications or transactions with the dead party. IN an accidence case based on negligence, the surviving party may testify about the facts of the accident, but not conversations w. the decedent.
What do we mean by "interested?"
the outcome of the case will have a legally binding effect on the person's rights or obligations.
What are the 4 exceptions when leading questions may be allowed on direct examination?
1. Preliminary
2. Youthful or forgetful witness
3. Hostile Witness
4. Adverse Party or someone under the control of the adverse party.
What is the rule of "Present Recollection Refreshed?"
WHile a witness may not normally read from a prepared memorandum, the witness may be shown something to jog his memory.
What are the safeguards against abuse of PRR?
The opposing party can inspect it, use it in cross-examination, and introduce it into evidence.
What is Past Recollection Recorded (hearsay exception)?
Even if it doesn't jog the witness's memory, you can read the jury the "past recollection recorded" if:

1. witness once had personal knowledge
2. The witness now forgets
3. Writing was made by the witnesss or adopted by the witness
4. Writing was made when the event was fresh in the witness's memory
5. The witness can attest that when made, the writing was accurate.
What is the method for getting PRR in the roced?
Witness reads it, but can't show it to the jury. Opposing party may show the document to the jury.

In NY, party using it may show it to the jury.
What is the rule for lay witness opinion?
Lay opinion is admissible if it is rationally based on the witness's perception and helpful to the jury.
What is the rule for exper witness opinion?
Witness may testify if qualified, subject matter expert knowledge is helpful to the jury, opinion has a proper basis and is reliable.
The expert witness must also have a poper basis of opinion for his testimony...what does that mean?
His opinion must be based upon a reasonable degree of probabiliy or reasonable certainty and either 1. his personal knowledge 2 evidence that is already in the record 3 facts outside the record that are reasonably relied on by experts in the particular field.
Distinguish bw the Daubert Standard and the Frye Standard...
The Daubert Standard is the federal rule for reliability of scientific evidence...it asks if methodology has been tested, subject to peer review, generally accepted. The Frye standard is NY and asks ONLY if methodology has been generally accepted.
Is opinion testimony (X looked drunk) admissible if it addresses an "ultimate issue?" (was x drunk?)
Yes, although in federal cases an expert witness may NOT testify that the D did or did not have the required mental state, such as insanity.
May learned treaties be used to aid expert testimonies?
The federal rule says yes if the treaties is a reliable authority. Expert can read it, but can't be introduced as an exhibit.

The NY rule is on direct, the treatise can't be read as substantive evidence,. ON cross, it may only be used to impeach opponent's expert's credibility
What does a witness's credibility rest on?
Perception, memory, honesty.
What is impeachment?
The process of trying to demonstrate that a witness is not credible
What is rehabilitation?
The process of trying to repair a witness's credibility after the witness has been impeached
What is the difference between intrinsic impeachment and extrinsic impeachment?
Intrinsic is done by asking the witness questions on cross, extrinsic is introduction documentary evidence or calling other witnesses.
May a prior inconsistent statement be used to impeach a witness? As substantial evidence?
Yes. But its only admissible to impeach. It may be used as substantial evidence if the statement was made orally under oath and as part of a formal hearing or deposition.

In NY, they are admissible ONLY to impeach.
What are the procedural considerations for inconsistent statements?
A witness being impeached must get a chance to explain or deny the prior inconsistent statement. In NY, the Witness MUST get the chance to explain the statement while still on the stand. In Federal, timing is more fleixible, the inconsistent statement may be proven by extrinsic and Witness can have his chance to explain when he returns to the stand
What is the exception to the procedural considerations for inconsistent statements?
If the witness is the opposing party, they don't get a chance to explain the prior inconsistent on the statnd.
May bias be proven by extrinsic evidence?
Yes, always. But a witness should be confronted with the alleged bias before it is proven by extrinsic evidence.
May extrinsic evidence prove sensory deficiencies?
Yes. intrinsic confrontation is not required.
How can you show a witness's bad character for veracity?
You can impeach a witness this way by calling ANOTHER WITNESS to testify to the target witness's bad character for veracity.
What are the rules about the form of testimony about bad character for veracity?
same as for character evidence- federal (reputation and opinion) NY (reputation only) and never specific acts.
What is the particularly harsh rule for witnesses and past convictions? What about criminal defendants?


(this is for NY)
They can be impeached with a conviction for ANY crime. As for criminal defendants, the court must conduct a hearing to balance the probative value of the conviction against the risk of unfair prejudice (a sandoval hearing)
What is the federal rule for impeachment from past convictions?
10 yr time limit, crimes of dishonesty (admissible), misdemeanors (inadmissible) Felonies (balancing probabitve value vs. unfairly prejudicial)
How do you balance probative value and unfair prejudice?
Factors thatmake a conviction probative: seriousness and relation to trust and deception. Factors that make a conviction unfairly prejudicial- inflammatory nature and similarity to the currently charged offense (this is bad, bc its about honesty, not propensity)
True or False, a conviction may be proven only intrinsically
False. May be proven both intrinsically and extrinsically.
What is the federal rule for the impeachment of one's own witness?
Any party may impeach any witness
What is the NY (Voucher) Rule?
You can't impeach your own witness bc you "vouched" for him by hiring him. The exception is if your witness says something that's inconsistent with something signed or made under oath.
In a criminal case, the exception is only valid if the testimony is "Affirmatively damaging", notmerely a "cloud on credibility"
What's the trick to rehabilitation?
The point is you can't rehabilitate witnesses that aren't being attacked. Stretch this a bit and its also about line ups. If you made a line up id, you can testify that you did one. This isn't bolstering your current in court id, but rather admissible as substantive evidence.
What are the allowable forms of rehabilitation?
Federal: reputation and opinion
NY: opinion only
Not allowed: specific acts.
If someone impeaches me, can my lawyer bring in evidence of prior consistent statements that show that Im not lying?
It all depends on whether I had a motive to lie. If so, its fair game, Im allowed to rehabilitate. In NY it can only be to rehabilitate. Federal, it can be as substantive evidence and to rehabilitate.
In federal cases and diversity cases you apply the federal rules of evidence. what are the 3 exceptions in diversity cases?
1. Burden of proof and presumptions
2. Dead Man's Statutes
3. Privileges
What are the 4 privileges recognized by Federal Courts?
1. Attorney Client
2. Husband and Wife
3. Priest-penetant
4.Psychotherapist-patient
What are the 3 additional privileges recognized by NY?
1. Dr.-patient
2. Social Worker-Client
3. Reporter-Source
What do we mean by "privileged?"
It means privileged from disclosure.
What are 3 types of communications bw an attorney and his client that are not privileged?
1.underlying information
2. pre-existing documents
3. Physical evidence
Are communications bw a client and a doctor during an examination made at the attorney's request privileged? and if so, how?
Not dr-patient bc there's no treatment. Attorney-client applies UNLESS Dr. is called as an expert witness. Dr. is "representative of the attorney"
Besides waiver, what are 3 other ways to destroy the privilege?
1. Fraud or future crime
2 When client puts legal advice in issue
3. attorney-client dispute (malpractice)
What are the elements of the Dr.-Patient Privilege?
1. relationship bw patient and dr. (nurses, PA's, etc)
2. covers communication and information acquired by doctor
3. must be confidential
4. for the purpose of medical treatment or diagnosis
What is a commonly tested wya to lose Dr.-Patient Privilege?
When you put physical or mental condition in issue.
What are the two distinct spousal privileges?
Spousal Immunity

Confidential Marital Communications.
Do the rundown for "Spousal Testimony"
Applies only in criminal cases....Protects having to testify against your spouse...Married at the time of the testimony....May be waived only by the witness spouse.
Do the rundown for Spousal Communications
Applies in any criminal or civil case....Protects confidential commuications...if married at the time of the communication....may be waived by both spouses together
What is the definition of hearsay?
An out of court statement (oral or written) by a person (called a declarant) offered to prove the truth of the matter asserted.

Absent an exception or exclusion, hearsay is inadmissible.
Will an out-of-court statment be considered hearsay if it is not offered to prove the truth of the matter asserted in the statment?
Yes. The purpose of the statement is key.
What is "double hearsay?" and what is the rule governing its admission?
its an out of court statement that incorporates other hearsay and its admissible only if each part of the statement falls within an exception to the rule
Hearsay Tip
Ask yourself, "Do we care whether or not the declarant is telling the truth?" If not, its not hearsay,.
May I impeach a witness with hearsay?
Yes, as long as its being used to impeach and not to prove the truth of the assertion
Are "verbal acts" or "legally operative words" hearsay?
No. Examples include words of offer, repudiation, making a gift or bribe, or defamation.
Big picture of hearsay
sometimes hearsay isn't really hearsay. ANd sometimes hearsay is hearsay, but its still allowable
True or False: A statement that is relevant simply because someone heard it (or read it) is not hearsay
True. For example, hearing something can put someone on notice or can give someone a motive or can make someone's belief reasonable.
True or false: A statement that unintentionally reveals something about the speaker's state of mind is hearsay
FALSE: its not hearsay.

Homer is on trial for murder. A witness testifies: Two days before the killing, Homer said'I am Elvis Presley'" Admissible.
Can my own prior statement, if offered to prove the truth of the matter asserted in the statement, be admitted?
No, its hearsay unless one of the exceptions apply
What are the exceptions to the prior statements of trial witness's being excludable as hearsay rule?
1. Identifiaction
2. A prior inconsistent statement i fmade under oath during a formal proceeding.
3. A prior consistent statement use to rebut an accusation of a motive to lie

In NY- admissible only to impeach and to rehabilitate.
How many hearsay exceptions need I know for the bar?
10. People frequently fetishize sex, doing everything perverted, something spaniards barbarize.
The first exception to hearsay (ie, it is hearsay, but not admissible) is Party Admissions. what does that mean?
You say it, you're stuck with it. Any statement made bya party is admissible if it is offered by the other side.
What is the rule on vicarious admissions?
Its the same as for party admissions, but its for your agents or employees acting within the scope of their employment.

Note- in NY, only employees with speaking authority can have evidence admitted that would normally be hearsay.
What is the rule on vicarious admissions by co-conspirators? hint: prosecutors love it
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 grounds for unavailability?
"PAILS": privilege, absence from the jurisdiction, illness or death, lack of memory, stubborn refusal to testify
What are the NY distinctions on Unavailability?
Privilege, absence from the jurisdiction, and illness or death only acceptable ones. In civil cases, if declarant is 100 mils from courhouse or declarant is a doctor.
What are the elements of the former testimony exception?
The declarant is unavailable, prior statement was given in a proceeding or deposition, and is offered against a party who, on the prior occassio, had an opportunity to cross or to otherwise develop the testimony.
For criminal cases in NY, when can former testimony by now-unavailable witnes by admissible?
A criminal trial, a hearing on felony complaint or at conditional deposition. Defendant and charge must be the same in both former and current case. Never admissible for suppression hearings (think about drugs seized from a car)
Do I forfeith the right to object to admission of hearsay if I intentionally and wrongfully make a declarant disappear?
Yes. think Mob guy doing a key witness.
Different burdens of proof that he actually did him though. Federal is "proponderance of the evidence" in NY its "clear and convincing"
What is the rationale of allowing
"statements against interest" in even though they are hearsay?
Someone is not likely to lie when making a personally damaging statement.
What is the exception to the "statements against interest" rule for criminal cases
these statements need corroborations.
What are the elements of the dying declaration?
Declarant is unavaialbe, statement was made under a belief of certain and impending death and statement concerns the cause or circumstances of the impending death.
What are the differences between New York and Federal rules on Dying Declaration?
For Federal, allowable in any civil case or criminal homicide
For NY, homicide cases only.
What is the rule on Excited Utterances?
They are allowed as long as statement is spontaneous, about a startling event, made when declarant was under the stress of that startling event.
What is the rule on Present Sense Impressions?
They are allowed if the statement describes an event and is made while the event is occurring, or immediately thereafter.
What is the NY distincton on present sense impression?
Requires corroboration.
What is the rule on admission of statements related to then-existing mental, emotional, or physical condition?
They are allowed if contemporaneous statement concerning the declarant's then existing physical condition or state of mind. It does not include a statement of memory or belief about a past condition.
What are the NY distinctions with regards to present state of mind/physical condition in NY?
If a statment of present physical condition is made to a layperson, the declarant must be unavailable.

If a statement of future intent is offered to prove the conduct of a 3rd person,NY requires corroboration and unavailability.
Statements of future intent?
Most of the time, are not allowed. In NY they are if they can be corroborated and the declarant is unavailable
what are the elements that allow admission of a statement for purpose of medical treatment or diagnosis?
Made to a medical professional concerning symptoms for the purpose of treatment or diagnosis, but not statements @fault or the identity of the wrongdoer.
What are the NY distinctions with regards to statements for purpose of medical treatment?
Does not apply to statements made solely for the purpose of obtaining expert testimony. Does not apply to statements relating to past symptoms.
True or false: records of a business made in the regular course of business, contemporaneously the contents consist of information observed by employees or a statement that falls within some other hearsay exception are not allowed
False. they are under the business and public records exception.
what are the differences between the NY and federal rules on public records
Federal allows not only observations by employees in public agencies, but also conclusions. NOT police reports though. IN NY, observations only are allowed.
What must I keep in mind aboout business records exception?
Well, they apply to hospitals too. and whatever the admission is, it has to be germane to that business.
How do you lay the foundation for Business records?
1. Live testimony- have the witness testify that the 5 elements of the business records hearsay exception are satisfied.
2. or an affidavit saying the same thing.
In NY these written certifications may be used only in civil cases and only for the business records of a non-party.
What is the rule on hearsay and the confrontation clause?
In criminal cases, the 6th amendment requires that the defendant be "confronted" with the witnesses against him. That means the prosecution may not offer testimonial hearsay in violation of the defendant's right to cross-examine the declarant.
How can the "right to cross-examine the declarant be satisfied?"
1. defendatn already had a chance
2. the d can do it at trial
3. the d has forfeited his right
What are three examples of testimonial hearsay that would violate a defendant's right to cross examine the declarant
1. grand juries
2. Statements in response to a police interrogation
3. police reports
True or False? If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of a hearsay declarant?
True.
What is the usual standrd of burden of proof in civil cases?
Preponderance of the evidence.
What are the preliminary facts for the jury?
The jury decides the conditional releveance of whether a witness has personal knowledge, whether an exhibit is authentic, whether the d isin fact the person who committed a prior bad act offered as MIMIC evidence.
What does the judge do with these preliminary facts?
He merely ensures that there is sufficient evidence for a reasonable jury to conclude that the conditional fact is true.
The judge also decides
admissibility, whether testimony is heresay, whether a communication is privileged, whether an expert is qualified. For these questions, the burden of proof is prepondenrance ofthe evidence.
What are Rick Duffy's 2 rules for impeachment?
Regarding the impeachment basis of prior bad acts:

1. Can only be asked about on cross
2. No extrinsic evidence is allowed

Regarding reputation for untruthfulness:

1. Evidence of this is allowed in only by calling another witness.
what is Rick Duffy's first rule about character evidence in criminal cases?
Rule 1. Evidence is inadmissible if offered by P to show that D has a propensity to commit crimes
What is Rick Duffy's second rule about character evidence in criminal cases?
Rule 2. Evidenceis admissible when offered by D to show character not in keeping with the offense charged
What is Rick Duffy's third rule about character evidence in criminal cases?
RUle 3. The Evidence is rebutted only by P calling another witness to testify as to reputation or opinion
What is Rick Duffy's rule about character evidence in civil cases?
Evidence is inadmissible if offered to show that either party acted in conformity with that trait. Evidence of character is admissible when character itself is at issue: Defamation, Negligent Hiring, Negligent Entrapment
True or false, character evidence in both civil and criminal trials is admissible under the MIMIC rule?
True
If I take the stand, can I plead the fifth on cross?
No. Once you take the stand, its on like donkey kong.
What is the rule on collateral evidence to prove prior bad acts?
A specific act of misconduct relevant to impair credibility can be elicited only on cross-examination of the witness. If witness denies the act, the cross-examiner cannot refute the answer by introducting extrinsic evidence.