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163 Cards in this Set

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what is the number 1 rule in evidence
all relevant evidence is admissible
how do we know if evidence is relevant
it is relevant if it has a tendency to make a material fact more or less probable than would be the caes without the evidence
what is the general exception the admissibility of relevant evidence
if court makes a discretionary determination that the probative value of evidence is substantially outweighted by pragmatic considerations - relevant evidence can be excepted.
what counts as pragmatic considerations?
1) danger o funfair prejudice

2) confusion of the issues - confusing the jury

3) misleading the jury - confusing the jury

4) undue delay - wasting judge's time

5) waste of time - wasting judge's time

6) unduly combative - wasting judge's time

**Always point this out in every evidence essay (won't be on MBE) --

Definition of relevance, why this evidence is relevant, but than also note that all evidence is relevant.
what evidence is excluded for policy based reasons?
1)liability insurance

2) subsequent remedial measures

3) settlement in civil cases

4) offer to pay medical fees

5) plea and plea discussions.

NOTE - purpose is key. if something is admissible for one purpose and inadmissible for another, judge can give limiting instructions.
What is the rule pertaining to admissibility of evidence of Liability Insurance?
Evidence that a person does or does not have liability insurance is inadmissible for proving FAULT or the absence of fault.
can liability insurance ever be admissible
yes, for some other relevant purpose
1) proof of OWNERSHIP, if controverted, or

2) for IMPEACHMENT of witness
what is impeachment of a witness?
process of trying to show that witness should not be believed
what are subsequent remedial measures (SRMs)?
repairs, design changes, policy taken after an accident that could have prevented the accident
what is the rule pertaining to the admissibility of evidence pertaining to SRMS?
SRMS are inadmissible to prove
a)negligence
b) culpable conduct
c) product defect
d) need for warning
what is the NY DISTINCTION to the rule pertaining to the admissibility of evidence pertaining to SRMS?
SRMs are admissible in product liability action based on SL for manufacturing defect
What can evidence of SRMs be admissible for?
To prove
1) proof of ownership, if controverted

2) control (if controverted)

3) feasibility of safer condition (if contributed)

note - evidence must be in dispute for SRM evidence to be admissible on issue
what is the rule pertaining to the admissibility of evidence pertaining to settlements of civil cases?
If there is a DISPUTED CLAIM, then evidence of
a) settlements, or
b) offers to settle, or
c) statemetns made in settlement discussions

are INADMISSIBLE if offered to prove lLIABILITY.
What is required of discussion for the ban on settlement evidence to apply?
There must be a claim/demand AND that claim must be disputed by the other side.

So, unsolicited offers "I'll give you $100 if you don't sue" are admissible
can evidence of settlement or settlement discussions ever be admissible?
yes, to show bias
what is the rule pertaining to the admissibility of evidence pertaining to offers to pay hospital or medical expenses?
RULE - evidence that party has paid or offered to pay an accident victim's hospital or medical expenses is inadmissible to prove liability

BUT (distinct from settlement rule)

Other statemenets made in connection with offer to pay medical expenses are NOT protected.
what is the rule pertaining to the admissibility of evidence pertaining to Pleas and Plea bargaining?
The following are inadmissible against a D, pending a CRIMINAL litigation or in a subsequent CIVIL case

a) offer to plead guilty

b) withdrawn guilty plea
*NY - this is admissible in subsequent CIVIL case on the same facts, but still not in a criminal case

c) plea of nolo contendere

d) statemetns of fact made durign any of the above
what is character evidence?
it refers to a person's general propensity or disposition, e.g. traits of honesty (dishonesty), peacefulness/violence, carefulness/carelessness
Is character evidence admissible?
Character evidence is NOT admissible to prove propensity, but IS admissible to show
1)veracity,
2) for a non-propensity purpose, or
3) when trait is an element of the crime.
what is veracity of a witness?
character evidence can be sued to show veracity -- that is evidence of a witnesses' character for truthfulness can be offered in order to IMPEACH
what is a non-propensity purpose?
IF EVIDENCE OF PERSON'S PRIOr bad act is offered for someother purpose than proving propensity
When can character evidence be offered in a criminal case -- When can D offer character evidence about D?
Evidence of D's character is generally not admissible to prove propensity.

EXCEPT -

1) D may introduce evidence of his own GOOD CHARACTER for a relevant trait, and

2) if D does so prosecution may rebut with evidence of the D's bad character for the same trait?
If character evidence is admitted to prove propensity, what form of evidence can be used?
1) FED - reputation or opinion

2) NY - reputation only!

key - evidence of specific acts is not allowed
When can character evidence be offered in a criminal case -- When can P offer character evidence about D to rebut?
If D opened the door by calling character witnesses prosecutor may REBUT the evidence in two ways

1) by calling its own witnesses to testify to D's relevant bad character
*FED - reputation or opinion
*NY - reputation only

2) By cros-sexamining D's character witnesses by questioning their knowledge of SPECIFIC FACTS by D relevant to trait at issue.

3) NY ONLY - proosecution may rebut D's good character evidence by proving that D has been convicted of a crime that reflects adversely on character trait at issue.
If P cross-examines D's character witnesses by questioning them on their knowledge of specific acts by D -- what form must the question be in for opinion and reputation witnesses?
opinion - did you know.

reputation - have you heard.

purpose - to test witnesses knowledge not to prove specific fact. good faith requirement for prosecutor to use, mut believe specific acts actually took place.
FED - When can character evidence be offered in a criminal case -- When can evidence of victim's character be raised?
In a self-defense case

FED - Criminal D can offer evidence of victim's violent character to prove victim was first aggressor.
*evidence can come in the form of reputation or opinion evidence
If evidence of victim's character is raised by D, what can the prosecution do to rebut?
show evidence of
1) victim's good character for that trait, OR
2) D's bad character for that trait
NY - When can character evidence be offered in a criminal case -- When can evidence of victim's violent character be raised?
NY - For self defense cases, evidence of victim's character is INADMISSIBLE to show victim was first aggressor.
Can D introduce evidence that D KNEW of Victim's character for violence?
YES - D may offer such evidence for the purpose of showing that he reasonably believed in need for self defense.

This is not propensity evidence, but rather relevant to show legitimacy of D's belief.

In this case - any FORM of evidence is allowed - reputation, opinion, specific acts

NY - Uses special rule - just doesn't alow evidence of victim's violent character to prove victim started fight.
NY - When can character evidence be offered in a criminal case -- When can evidence of victim's sexual misconduct be raised?
RAPE SHIELD LAWS

In cases involvign alleged sexual misconduct, D ordinarily may not introduce evidence of

1) victim's promiscuity
2) victim's prior sexual misconduct

EXCEPT, D may introduce
1) evidence of victim's sexual activity w/ defendant, BUT ONLY if defense is CONSENT.

2) evidence of victim's sexual activity with others, but only to prove that someone other than D was SOURCE of PHYSICAL EVIDENCE

3) Evidence is required to be admitted b/c of D's due process rights.
What addition does NY have to rape shield law requirements and exceptions?
Evidence of vicitm's conviction for prostitution in the last 3 years IS admissible
What about character evidence in a CIVIL case?
Character evidence is generally inadmissible to prove propensity in a civil case.

EXCEPT if such character is an essential element of claim or defense, e.g.

1) negligent hiring/entrustment
2)defamation-libel&slander

VERY, VERY rare
Is evidence of a Habit admissible?
Habit of person, or routine of a business organization, is admissible to infer how a person or business acted on occassion at issue in the litigation.
what is habit
habit is a repetitive response to a particular set of circumstances

1) frequency
2)particularity
what is the NY rule on the admissibility of habit evidence?
1) admissible when relating to the conduct of a business, trade or profession
BUT
2) evidence relating to personal habit on issue of due care in negligence action is NOT admissible (think driving habits)
EXCEPT
a) evidence relating to a personal habit w/ product IS admissible (think knife in toaster)
Can D's other crimes be admissible for non-character purposes?
RULE - D's other crimes or specific bad acts are inadmissible during prosecution's case in chief if purpose is to show admissibility.

BUT - Can be offered for another purpose, if directly related to specifics of the crime - MIMIC
Motive
Intent
Mistake/accident (absence of)
Identity
Common scheme/plan
How can prior bad acts be proved for MIMIC purposes?
By evidence of
1) conviction of prior bad act
2) evidence that tends to prove prior bad act occurred
What is the burden of proof in proving bad acts for MIMIC purposes
FED - "sufficiency standard" - prosecution must produce sufficient evidence for a reasonable jury to conclude D committed prior act by preponderance of the evidence

NY - Identity evidence is proven by clear and convicing evidence to judg that D committed prior act; all else are proven by federal sufficiency standard.
what are some other notes about MIMIC evidence?
1) court still weighs probative value v. prejudice (pragmatic considerations)

2) give limiting instructions, these are not to prove propensity, just MIMIC

3) upon D's requrest, Pros must give pretiral notice of intent to give MIMIC evidence
In terms of Defendants other crimes, can OTHER SEXUAL MISCONDUCT be used to show propensity for sexual assault.
FED - yes, this is major exception to no propensity evidence rule.

Any case alleging sexual-assault or child molestation, prosecution may offer evidence of D's prior sexual assaults for the purpose of proving propensity to commit a sexual assault (once a rapist, always a rapist, is okay)

NY - rapists and child molestors are treated just like everyone else. prosecution may not introduce evidence of prior bad acts to prove propensity.
Can evidence of similar occurrences be introduced?
Generally - to be relevant, evidence must relate to some time, event or person involved in the present litigation, otherwise evidence is inadmissible

EXCEPT, in some limited/specific circumstances, other similar occurrences may be admissible if they relate to time/event/person other than present litigation
1)habit

2) P's accident history, but only admissible to show
a)fraud scheme/plan
b) causation

3) similar accidents, but only to show
a) existence of a dangerous condition
b)causation
c)prior notice to D if other accidents occurred before Ps

4) intent - may be relevant to draw inference of intent from conduct

5) selling price of comparable property as evidence of value of property at issue

6) industrial custom - how others in same industry/trade act-- to show standard of care (how party in this litigation should have acted)
what are the four FORMS of evidence
1. witnesses

2. documentary evidence

3. real evidence

4. judicial notice
what is judicial notice
recognition of a fact as true w/o formal presentation of evidence
when is judicial notice used?
court may take judicial notice of indisputable facts
1) matters of common knowledge w/i courts territorial jurisdiction (e.g. that times square is 42nd and broadway)

2. matters capable of easy verificatoin by resort ot unquestionable sources (e.g. calendar and date)
when can judicial notice be taken
any time
what is the effect of judicial notice
judicially noticed facts are conclusive in civil cases, not in criminal
what about documentary evidence, what are the major issues?
1. authentication

2. best evidence

3. hearsay.
what is the rule on authenitication
party seeking to introduce an exhibit must introduce evidence sufficient for a reasonable juror to conclude item is what party claims it to be.
what about authenticiation of writings?
if relevance of writing depends upon the source or authorship, then party offering it must prove source of authorship to authenticate writing.

key is - when is authorship relevant!
what are the methods for authenticating writings? i.e how can a party prove document was written by X?
1. testimony by witness with personal knowledge - i saw write it

2. proof of authors handwriting by
a) lay opinion of laywitness familiar with handwriting through normal course of affairs
b) expert opinion and comparison for purposes of trial
c) jury comparison

3. ancient document rule - authenticity can be inferred if document is
a) at least 20 years old (30 in NY) AND
b) is faciailly free of suspicion
c) is found where it would be expected

4) Solicited reply doctrine - it can be authenticated if received in response to a prior communication to the alleged author

5. self authenticating documents

6. photography and recordings
what type of documetns are self-authenticating? that is presumed authentic so no foundation is needed?
1. official publications - govt. pamphlets and tax forms

2. certified copies of public and private documents on file in public offices (deeds, mortgages, etc)

3. newspapers and periodicals.

4. trade inscription & labels (candy bar label)

5. acknowledged document (notarized)

6. commercial paper - check or promissory note

7. certified business records, offered into evidence under business records hearsay exception. Must be certified by
a) someone within business
b) who knows how record are regularly made
c) and that these documents were made in the regular way and
d)at or about the time of the event recorded
How do you authenticate photographs/recordings -- if photo is demonstrative evidence
1) if photo is serving as demonstrative evidence, to illustrate the witnesses testimony -- it can be authenticated by testifying witness, based on personal knowledge that photo is fair and accurate representation of people and objects
How do you authenticate photographs/recordings -- if photo is silent witness
2) if photo is serving as a silent witness - is evidnece itself (surveillance camera, atm)) - then party offering must show
a) camera was properly installed and working
b) film was properly removed and developed (for digital camera this is transferred and stored)
c) and that film has not been tampered with

*Most effective way to show this is through chain of custody - all people who possessed film must testify as to what they did with it along the way to make sure that no one tampered with it.
what is the best evidence rule? When is party required to show original of document
if party seeks to prove contents of a writing party must either
1. produce writing, or
2. produce an acceptable excuse for its absence.
(if court finds an acceptable excuse, party may use secondary evidence including oral testimony to prove contents)
when does the best evidence rule apply
only when party seeks to prove contents of writing

1) if writing was legally operative document, i.e. writing itself creates rights/obligations under law - contract

2) or witnes is testifying to fact she learned solely from reading about them.

BEWARE - best evidence rule does NOT apply when witness with personal knowledge is testifying as to a fact that exists independently of a non-legally operative writing which records the fact.
what qualifies as an original writing
Original - writing itself, and counterpart intended to have same effect, any negative of film, or print from negative and a computer printout.

Duplicate - counterpart produced by any mechanical means that accurately reproduced original (photo/carbon copy, computer printout, etc)
what is the rule pertaining to original writings?
they are admissible to the same extent as the original, unless
1) genuine issue of autheniticity of duplicate - one side claims forgery

2) unfair to admit duplicate - original had colors, copy is b&w

NY - photocopies and duplicates are acceptable substitutes for the original only if duplicates were made in the regular course of business (i.e. not for the purposes of discovery in litigation)

KEY - handwritten copies are not originals.
when will non-production of original be excused?
Party need not produce the original if original
1) is lost or cannot be found with due dilligence

2) has been destroyed, w/o bad faith

3) cannot be obtained through legal process (beyond subpoena power)

If court is persuaded by preponderance of evidence that excuse has been established, secondary evidence (handwritten or oral testimony) is allowed
what are escapes from the best evidence rule
1. voluminous records - can be prsented through summary/charts so long as original would be admissible and are available for inspection

2. certified copies of public records - prefere originals are left with clerks office

3. collateral documents rule - if court, in its discretoin detrmines documetn is unimportant to issue in case.
How do you authenticate real evidence (actual physical evidence) displayed to trier of fact - think drugs, guns, product for product liability, etc?
party seeking to authenticate must introduce evidence sufficient to prove that item is what party claims it to be.

the process of authenticating real evidence is called "laying a foundation"
what methods can be used to authenticate real evidence?
1. personal knowledge - i recognize gun as one from crime scene.

2. chain of custody - important for items that are not unique (drugs/guns) - that gun has been in my possession since it was seized from D.
*chain of custody must be substantially unbroken, not perfect, but based on reliable procedures for ID and custody

NOTE - if the condition of the evidence is relevant to case, it must also be shown that it is in substantially the same condition as at trial, i.e. not tampered with
With witnesses, how do you show they are competent to testify?
1) must have personal knowledge - heard with own ears, saw with own eyes.

2) must take an oath, demonstrating understanding of obligation to tell the truth, and promise to tell the truth
what is ny's rule on testimony for kids? and competency?
child may testify under oath so long as child understand obligation to tell truth and promise to tell the truth.

CIVIL - all witnesses, including kids must take oath - just like MBE

CRIM- EXCEPTION - child under 9 who cannot understand the oath may still testify (may give unsworn testimony) BUT D cannot be convicted solely on unsworn testimony - there must be some CORROBORATION.

(often used in child molestation cases to help prosecution, but corroboration requirement helps protect D).
what is a dead man's statute (No fed rule, but MBE can test you on it by asking you about it)?
1. in a civil case
2. an interested party
3. may not testify
4. against a dead person, or dead person's representative
5. about communications or transactions with the dead person.

Interested party - someone who outcome of case will have legally binding effect on persons rights or obligation (friends, witnesses, dont' count).
can a dead man's rights under dead man's statute be waived?
yes, if
1. decedent's reps don't object
2. decedent's rep testifies about transactions
3. decedents testimony is introduced
what is the NY rule for the dead man's statute?
Same as above EXCEPT
1) accident exception! in an accident case based on negligence, the surviving party

a) may testify about facts of accident, BUT
b) may NOT testify about conversations with decedent.
In terms of forms of testimony, when can leading questions be used (leading means when question suggests the answer - "isn't it a fact that . . . ?"
1. leading questions are generally not allowed on direct examination of witnesses
BUT
2. leading questions are generally allowed on cross-examination
what are the exceptions to the general rules on leading questions
leading questions may be allowed when about

1) preliminary introductory matters - name, address, town
2) youthful or forgetful witness - jog memory
3) hostile witness
4) adverse party or someone in control of adverse party
When can a writing be used in aid of oral testimony?
1) present recollection refreshed

2) past recollection recorded (hearsay exception)
what is present recollection refreshed
RULE - witness may not read from prepared memo, but must testify based on current recollection
BUT
"refreshing recollection" - if witness forgets something he once knew, he can be shown ANYTHING to jog his memory (beer, writing, etc).f
do any safeguards exist to protect opposing party when a present recollection is refreshed?
yes, opposing party has the right to
1. inspect it
2. use it on cross
3. introduce it into evidence
What is the past recollection recorded hearsay exception?
writing may be read to jury as past recollection recorded IF

1) witness had personal knowledge

2) witness now forgets and showing writing to witness fails to jog witnesses memory

3) writing was made either by witness or adopted by witness (cop wrote, witness signed)

4) writing was made when event was fresh in witnesses memory

5) witness can attest that, when made, writing was accurate.
If foundation for recorded recollection is satisfied, what methods can be used to introduce evidence?
1) witness may read document to jury, BUT

2) witness may not show document to jury
*NY - party using recorded recollection MAY also introduce record as exhibit, i.e. show it to jury

3) opposing party may show document to jury by introducing as evidence
what are the forms of opinion testimony
1. lay witness opinion
2. expert witness opinion
when is opinion testimony allowed
generally always permissible, even to address an ultimate issue of teh case

EXCEPT
expert witness not allowed to testify that D did or did not have the rquiesite mental state
(FED ONLY
what is the rule pertaining to lay witness testimony
lay opinion is admissible IF it is
1) rationally based on a witnesses perception (personal knowledge) AND
2) helpful to the jury

e.g. lay witnesses may testify about such things as
a) sobriety
b) emotions
c)speed
d)handwriting
e) smells
When can expert witnesses testify?
only if
1) witness is qualified - education or experience

2) testimony is about a subject matter where scientific, technical or specialized knowledge will be helpful to jury

3) opinion has proper basis

4) opinion is reliable
how can an expert opinion have proper basis?
opinion must be based on reasonable degree of probability or reasonable certainty and must be based on one of three data sources

1. experts personal knowledge - treating doctor

2. evidence on trial record, made known to expert through hypothetical

3. facts outside the record (inadmissible evidence/hearsay) but ONLY IF those facts are the type reasonably relied upon by experts in the field.

-- experts cannot disclose inadmissible facts to a jury, but opponent can through cross
how do you determine if expert testimony is reliable?
it must be based on
1) reliable methods
2) reliably applied methodds to facts of case
what is the federal standard for determining reliability - daubert
court examines reliability based on looking at
1. has methodology been tested?
2. what are the known error rates
3. has the methodology been subject to peer review
4. is the methodology generally accepted
what is the federal standard for determining reliability - frye
is methodology generally accepted by relevant scientific community?

scientists, not judge, matter for reliability determination
when can a learned treatise be used in aid of expert testimony? (hearsay exception)
FED - if party can establish that treatise is realible authority, then
a) treatise can be used on direct/cross of an expert
b) reatise can be read to jury as substantive evidence - hearsay exception
c) BUT treatise itself may not be introduced as an exhibit.

NY-
1) treatise may be used for purpose of showing basis of expert's testimony, BUT
2) NOT as substantive evidence on CROSS;
3) can only be used on cross to impeach opponent's expert testimony NOT as sustantive testimony -- and can only be used if opponent's expert either relied on treatise in developing her opinion OR acknowledged that it is reliable authority
How is the authoritativeness of a treatise established?
1) own expert testifies treatise is authoritative

2) opponents expert admits its authoritative

3) judge takes judicial notice of authoritativeness.
what is the rule of cross examination
it is a right. if witness takes the stand, testifies, and then cannot be cross-examined, direct will be struck from record.
what is the proper subject of cross examination
1. matters withinthe scope of direct examination and

2. matters that effect witness's credibility
what is credibility
credibility rests on
1) witnesses perception
2) witnesses memory
3) witnesses honest
what is impeachment
process of showing that a witness is not credible - attacking perception/memory/honesty
what is rehabilitation
process of trying ot repair a witnesses credibility after witness has been impeached
what are the two types of impeachment
intrinsic impeachment - impeach W by asking W questions on cross

extrinsic impeachment - introduce documentary evidence or call other witnesses to impeach
what are the methods of impeachent
1. prior inconsistent statement

2. bias, interest or motive to misreprsent

3. sensory deficinecies

4. reputation or opinion

5. criminal convictions

6. bad acts, w/o conviction

7. contradictions
Impeachment - Prior Inconsistent Statement - What is one?
statement, orally or in writing that is materially inconsistent with the witnesses trial testimony
Impeachment - Prior Inconsistent Statement - What is the rule?
prior inconsistent statement may be used to IMPEACH a witness b/c indicates a lack of credibility

MBE, but NOT NY (just to impeach in NY) - It can be used to impeach AND for substantive evidence (to prove truth of statement), if prior statement was made
1. orally, under oath
2. as part of formal hearing, proceeding trial/deposition
Impeachment - Prior Inconsistent Statement - What is the procedural rule?
witnes who is being impeached by prior inconsistent statement must be given the opportunity to explain or deny the prior inconsistent statement

NY - witness must be given the chance to explain WHILE ON THE STAND. - i.e. statement must be proven through intrinsic cross-examination, before it can be proven extrinsically

FED - more flexible - statemten can be proven by extrinsic evidence, then witness testifies

EXCEPT*** If witness is OPPOSING PARTY there is no need to give witness the opportunity to explain the prior statement - hearsay!
Impeachment - Bias, Interest, Motive to misrepresent - what is the rule?
Bias must always be proven through EXTRINSIC evidnece. (generally witness should be confronted with alleged bias before it is proven by extrinsic evidence)
Impeachment - Bias - what are examples of bias
relationship b/w party and witness or some other interestin litigation that would cause witnes to lie
witness is
1) party
2)firend/relative/employee
3)someone paid by party
4)someone with a grudge against party
5)anyone with something to gain/lose by party coming out the other way
Impeachment Methods - SEnsory Deficiencies (anything that could affect witnesses perception or memory)
bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication

1)intrinsic confrontation is not required

2)extrinsic evidence is allowed
Impeachment Methods - Reputation or opinion about witness' bad character for trutfhulness
Party may impeach a witness by calling another witness (character witness) to testify to the target witness's character for veracity
Impeachment Methods - Reputation or opinion about witness' bad character for trutfhulness -- what forms of evidence can be used?
FED - reputation or opinion

NY - reputation only

SPECIFIC FACTS NOT ALLOWED

NOTE - any witness who has testified may be impeached like this. Extrisinc evidence allowed*8
Impeachment Methods - Criminal Convictions (note this is a specific act and it IS allowed)
NY - any witnes can be impeached by conviction of ANY crime. BUT if witness is a criminal D, the court must conduct a Sandoval Hearing to balance the probative value of conviction (to issue of veracity)against the risk of unfair prejudice

FED
1. conviction/release from prison must be w/i 10 years of trial
2. crimes of dishonesty (perjury, false statement, fraud, embezzlement) or false statement are admissible
2. crimes not involving dishonesty (drugs/violence) may be admissible if FELONIES (and probative value outweighs the risks); never admissible if misdemeanors
Impeachment Methods - Criminal convictions -- how can evidence be proved
Intrinsically through asking W questions on cross, OR

extrinsically - through record of the crime.

There is no need to give W the opportunity to explain
Impeachment Methods - criminal conviction -- what factors should be considered in balancing probative value with unfair prejudice
probative value - seriousness (murder > marijuana), relation to trust/deception (theft>reckless driving)

unfair prejudice
1)inflammatory nature (child molestation), similarity to charged offnese (greater, more prejudicial)
Impeachment Methods - Bad acts, w/o conviction, that reflect adversely on W's character for truthfulness
FED rule - W may be asked about prior bad acts if these acts relate to truthfulness (no need to be criminal - could be lying on your resume)

NY - W may be asked about prior bad acts that show W's moral turpitude (includes criminal conduct not realted to truthfulness -- broader than fed rule)
Impeachment Methods - Bad acts, w/o conviction, that reflect adversely on W's character for truthfulness -- any LIMITATIONS on this rule?
1) cross-examiner must have good faith basis to believe bad act occurred
2) bad act may be proven by intrinsic evidence only (and you're stuck with whatever answer W gives you)
BUT NOTE
3) proof by extrinsic evidence may still be allowed if relevant for anohther purpose (e.g. bias)
So, summary, when are arrests admissible and inadmissible
admissible -
1) to impeach W's knowledge; 2) to impeach W by showing bias

not admissible
1) to impeach W's characer for veracity.
Impeachment Methods - Contradiction
Witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct exam.
Impeachment Methods - Contradiction - What is the procedure for proving a contradiction?
1) if contradiction goes to matter significant to case, then it may be proven by extrinsic evidence

2) BUT if contradiction goes to matter collateral - then proof is limited to intrinsic evidence (And cross-examiner is stuck with W's answer)
Impeachment Methods - Impeaching one's own witness?
FED - party can impeach one's own witness

NY - voucher rule - by calling a W, party "vouches" for W's credibility, so can't impeach your own witnes

EXCEPT may impeach own witness w/ prior inconsistent statement that was made
1) in writing and signed by witness OR
2) made in oral testimony, under oath
*NOT a hearsay exception

BUT - in a criminal case, this exception may be used only if witness's current testimony is affirmatively damaging to party who called witness, not merely a "cloud on credibility"
what is bolstering
introducing evidence to support a witness's credibility before W's credibility has been attacked. it is not allowed
what is the rule on rehabilitation
Generally a W may rehabilitate only AFTER W's credibility has been attacked. EXCEPT
1) W's prior statement of ID is admissible, even if W's credibility has not been attacked yet --- it is admissible as substantive evidence and is a hearsay exception.

The ID statement must be made by trial witness subject to cross

NY - same rule in criminal cases, but does not allow prior ID in civil cases
what are the methods available for rehabilitation if character for good truthfulness has been attacked?
Opposing party can introduce corresponding evidence of W's good character for truthfulness
FED - reputation or opinion
NY - reputation only
NO SPECIFIC ACTS
what are the methods available for rehabilitation if prior inconsistent statement has been pointed out?
1) can show a prior CONSISTENT statement to W's trial testimony

2) opposing party has suggested through impeachment that W has motive to lie

3) prior statement was made BEFORE motive to lie arose (admissible to rehabilitate and as substantive evidence)

NY - prior consistent statement admissible ONLY to rehabilitate
What is hearsay?
an out of court statemetn by a person offered to prove the truth of the matter asserted
what is the general rule on hearsay?
it is not admissible. B/c declarant's credibility (perception, memory, honesty) cannot be tested through cross-examination.
What are non-hearsay purposes for admitting evidence?
1) impeachment

2) Verbal Acts

3) To show effect on person who heard/read statemetn

4) circumstantial evidence of speakers state of mind.
Non-hearsay purposes -- Impeachment?
prior inconsistent statement may be allowed if offered to show witness is INCONSISTENT person w/o necessarily being offered to prove truth of prior statement

(but if purpose is to prove truth - then hearsay)
Non-hearsay purposes -- verbal acts?
legally operative words - words with independent legal significance will not be hearsay.

Words of offer/repudiation/cancellation of contract, words of gift/bribe, words of perjury/defamation/criminal misrepresentation
Non-hearsay purposes -- to show effect on person who heard/read statemetn
not hearsay to show that someone was on notice, had a motive, or had a reasonable belief
Non-hearsay purposes -- circumstantial evidence of speaker's state of mind
something that unintentionally reveals something about speaker's state of mind is NOT hearsay, e.g. demonstrating insanity, consciousness of guilt, lack of knowledge, etc.
Hearsay - ARe prior statemetns of trial witnesses (declarant and W are same person) hearsay?
generally yes - and so inadmissible, EXCEPT, not hearsay if

1) prior statement of identification

2) prior inconsistent statement made under oath, during a formal proceeding
*NY -admissible only to impeach, not as evidence

3) prior consistent statement if used to rebut an accusation of a motive to lie and made prior to when motive to lie arose
what are the ten exceptions to the rule that hearsay is not admissible?
1. party admissions - where declarant is party

2. former testimony - declarant is unavailable

3. forefeiture of wrongdoing - declarant is unavailable

4. statemetn against interest - declarant is unavailable

5. dying declaration - declarant is unavailable

6. excited utterance - declarant is anyone

7. present sense impression - - declarant is anyone

8. statement of then-existing mental, emotional, or physical condition - - declarant is anyone

9. statemetn for purpose of medical treatment/diagnosis - - declarant is anyone

10. business and public records - - declarant is anyone

*Also - past recollection recorded and learned treatise!
Non-hearsay purposes -- verbal acts?
legally operative words - words with independent legal significance will not be hearsay.

Words of offer/repudiation/cancellation of contract, words of gift/bribe, words of perjury/defamation/criminal misrepresentation
Non-hearsay purposes -- to show effect on person who heard/read statemetn
not hearsay to show that someone was on notice, had a motive, or had a reasonable belief
Non-hearsay purposes -- circumstantial evidence of speaker's state of mind
something that unintentionally reveals something about speaker's state of mind is NOT hearsay, e.g. demonstrating insanity, consciousness of guilt, lack of knowledge, etc.
Hearsay - ARe prior statemetns of trial witnesses (declarant and W are same person) hearsay?
generally yes - and so inadmissible, EXCEPT, not hearsay if

1) prior statement of identification

2) prior inconsistent statement made under oath, during a formal proceeding
*NY -admissible only to impeach, not as evidence

3) prior consistent statement if used to rebut an accusation of a motive to lie and made prior to when motive to lie arose
what are the ten exceptions to the rule that hearsay is not admissible?
1. party admissions - where declarant is party

2. former testimony - declarant is unavailable

3. forefeiture of wrongdoing - declarant is unavailable

4. statemetn against interest - declarant is unavailable

5. dying declaration - declarant is unavailable

6. excited utterance - declarant is anyone

7. present sense impression - - declarant is anyone

8. statement of then-existing mental, emotional, or physical condition - - declarant is anyone

9. statemetn for purpose of medical treatment/diagnosis - - declarant is anyone

10. business and public records - - declarant is anyone

*Also - past recollection recorded and learned treatise!
Hearsay - Exception - Party Admission (statement by party opponent)
Any statement made by a party is admissible if offered against party (by other side)

FED - party admissions are EXCLUSIONS, not hearsay

NY -0 just exceptions
Hearsay - Exception - Party Admission (statement by party opponent) -- VICARIOUS LIABILITY?
statemetn made by an agent/employee of a party is admissible against the party IF it concerns a matter within the scope of agency/employment

NY - statement by agent.employee is admissible only if agent/employee had "speaking authority" to speak on behalf of principal/employer -- cEO, general counsel
Hearsay - Exception - Party Admission (statement by party opponent) - co-conspirator?
a statement of one co-conspirator is admissible against other co-conspirators if statement was made during and in furtherance of the conspiracy
Hearsay - Exceptions - "Unavailability"
many hearsay exceptions (former testimony, forefeiture by wrongdoing, dying declarations, and declarations against interest) require that declarant be unavailable. what does this mean.

PAILS
1)privileges - spousal/docs/self-incrim

2) absence from jurisdiction

3) illness or death

4) lack of memory

5) stubborn refusal to testify - high standard

NY - distinction on unavailability -- PAI only NOT lack of memory or refusal to tesify, also

NY (Civil cases) -
1) declarant is located more than 100 miles from courthosue
2) declarant is a doctor
Hearsay - Exception - Former Testimony (requires unavailability)
Elements
1) declarant is unavailable

2) prior statemetn was given in a proceeding or deposition

3) offered against a party who, on prior occassion, had an opportunity or similar motive to cross-examine, or otherwise develop the testimony

NOTE - relevance of former testimony to current trial must be substantially similar to its relevance to current proceedings (similar motive to cross)
Hearsay - Exception - Former testimony -- NY Distinction?
In criminal cases only, former testimony by now unvailable witness must have been at a previous criminal trial, hearing on felony complaint or conditional deposition.

Defendant and charge must be same in both cases - doesn't apply to testimony given at a suppression hearing.
Hearsay - Exception - Forfeiture by wrong doing
Party who intentionally and wrongfully makes a declarant unavailable CANNOT raise a hearsay objection to admission of declarant's out-of-court statement.

Judge has to be conviced that D is responsible for wrongdoing
FED - by preponderance of the evidence
NY -clear and convincing evidence (higher standard)
Hearsay - Exception - Statement against interest
1) declarant is unavailable
2) statement is against declarant's pecuniary/proprietary/penal interests

CRIM CASE -statement against penal interest , when offered to exculpate D, must be suppported by corroborating evidence
Hearsay - Exception - Dying declarations
1) declarant is unavailable

2) statement was made under a belief of certain and impending death, and

3) statement concerns the cause or circumstances of impending death

FED - any civil or criminal case

NY - homicide cases only
Hearsay - Exception - Excited utterance - "spontaneous statemetns" rule?
1) statement concerns a startling event, and

2) was made while declarant was still under stress caused by startling event

*unavailability not required!
Hearsay - Exception -excited utterances - what makes a statement 'excited'?
1)nature of event

2) passage of time (shorter, more likely to be excited)

3) look for - excited utterances, exclamatory phrases, explanation points

Rationale - excitement suspends one's capacity to fabricate.
Hearsay - Exception - Present sense impression
1) statement describes an event

2) and, is made while the event is occurring or immediately thereafter

*no requirement of stress here, just immediacy - must be SECONDS

NY - Also requires CORROBORATION.

rationale - contemporaneous so declarant has no time to fabricate
Hearsay - Exception - Statement of then-existing mental, emotional, or physical condition
Allows admissions of
1) contemporaneous statements

2) concerning the declarant's then-existing
a) physical condition
b) state of mind (emotions, mental feelings, intent/future plans, sensations, bodily health)
c)does not include statement of memory or belief about past condition
d) but, it does include statemetns of future intent to do something with thrid person
Hearsay - Exception - Statement of then-existing mental, emotional, or physical condition -- what is the NY Rule?
1) if a statement of present physical condition is made to a lay person (not a doctor), then declarant must be unavailable)

2) if statement of future intent is offered to prove conduct of 3rd person, NY requires
a) corroboration of connection b/w declarant and 3rd person AND
b) that declarant is unavailable.
Hearsay - Exception - Statements for purposes of medical treatment or diagnosis
Allows admissions of a statement
1) made to a medical professional (dr. nurse, emt, mom)

2) concerning present symptoms, past symptoms, of the general cause of the medical condition

3) for the purpose of treatment

4) BUT NOT - statements about fault or statemtns about identity of the wrongdoer.

Rationale - patients have incentive to be honest and get good medical advice
Hearsay - Exception - Statements for purposes of medical treatment or diagnosis -- NY distinction
does not apply to statemtns
1) made solely for the purpose of obtaining expert testimony at trial

2) and, does not apply to statemtns relating to past symptoms.
Hearsay - Exception - Business and public records -- BUSINESS
Allows admisions of
1) records of a business (any type, including public agencies)

2) if made in the regular course of business, and

3) business regularly keeps such records, and

4) made contemporaneously (at or about time of events recorded) and

5) content of the record consist of either information observed by employees of the business OR statemetn taht falls within some other hearsay exception
Hearsay - Exception - Business and public records -- PUBLIC
FEd - observations by employees of the public agency AND conclusions by public employees after an OFFICIAL investigation, EXCEPT
*not police reports offered against D's in criminal case (cops at crime scene are not disintersted)

NY - observations only, not conclusoins (can tell conclusions in court, just not reports on conclusions)
Hearsay - Exception - Business and public records -- BUSINESS - how do you lay the foundation?
1) live testimony - call knowledgeable witness who can testify to 5 elements of business records exception

2) affidavit - submit a written affidavit under oath attesting to elements of biz records hearsay exception

NY - written certification can be used only in CIVIL cases and only for biz records of NON-PARTY
How does hearsay rules interact with confrontation clause (that is, that in criminal cases, 6A requires that D be confronted with witnesses against him)
This means that prosecution may not offer testimonial hearsay in violation of D's right to cross examine W
Hearsay and Confrontation - When is D's right to cross examination satisfied?
1) If already had the chance to cross-examine W (former testimony exception, OR

2) if D can cross declarant at trial (prior statemetn of trial witness) or

3) if D has forfeited confrontation clause rights (through witness tampering)
Hearsay and Confrontation - what is "testimonial"
1) GJ testimony

2) statements made in response to police interrogation
a) TESTIMONIAL if primary purpose of Qing is to establish or prove past events, potentially relevant to later criminal prosecution
b)Non-testimonial if primary purpose of Qing is to enable police assistance to meet an ongoing emergency

3) documents - police reports are testimonial, business records are not
What if hearsay is admitted?what can opposing party do?
use any of impeachment methods to attack credibility of hearsay declarant
What are the procedural rules regarding use of federal or state law for evidence issues?
1) diversity and federal law cases - apply federal rules of evidence in federal court (even if diverseity case, and state rules apply to rules of decision)
EXCEPT
apply state law for
1) burdens and presumptions
2) Dead man's statutes
3) privileges
What are recognized privileges
1) attorney client
2)husband wife
3)priest-petinent
3)psychotherapist-patient
4) no CL doctor/patient, but if in diversity case w/ state that has dr. patient then, apply it

NY ALSO
1) doctor patient
2) reporter source
3)social worker client, includes rape crisis centers
Attorney client privilege what is the rule?
confidential communications b/w attorney and client made during course of professional legal consultation will be privileged unless privilege is waived by client or an exception applies
Attorney client privilege what are communications?
underlying info/facts, preexisting docs, physical evidence
Attorney client privilege what is confidential?
client must intend confidentiality, no privileg if client knows 3P listening or disclosed to 3P.

joint client rule - communications with common interests are privileged, but not if they have dispute with one another
how can the A-C privilege be lost
1) waiver - client alone holds privilege - client alone can waive by disclosure of communications to 3P. Privilege continues after A/C relationship ends, after death of client, etc.

2) exceptions
a) future crime or fraud - help me do this crime
b) when client put legal advice in issue - i committed tax fraud b/c i relied on my lawyer's advice
c) A/c dispute - sue for malpractice, unpaid fees, etc
Doctor-patient privilege rule (includes nurses, assistants, and in NY - dentists, podiatrists, chiropractors)
confidential communications of information acquired by dr from patient for purpose of diagnosis or treatment of medical condition is privileged
Doctor-patient privilege rule - when can it be waived?
if patient expressly or impliedly puts medical of physical condition in issue

E.g p in personal injury case, or D asserting insanity defense
Spousal privilege - what are the two types?
1) spousal communications privilege

2) spousal immunity-testimony privilege
Spousal privilege - spousal communications privilege
confidentail communications between spouses are privileged

1) survives divorce as to anything said during marriage
2) can be waived but only by BOTH spouses
3) applies to civil and criminal cases
4) must be married at time of communication
Spousal privilege - spousal immunity-testimony privilege
In CRIMINAL case, prosecution cannot compel D's spouse to testify against D (witness and spouse must be married at time of trial)

NY - doesn't recognize this one
What are the exceptions to both spouseal privileges?
Communications or acts
1) in furtherance of future crime/fraud (joint criminal activity), and

2) destructive of family unit (spousal/child abuse)
Procedural considerations - what are the burdens of proof for civil and criminal trials?
civil - preponderance of the evidence - 51%

criminal - beyond a reasonable doubt -90-95%

jury decides if burden of proof has been met as to each element of charge, claim or defense
Procedural considerations - what preliminary facts does the JURY decide?
jury decides questions of conditional relevance which arise in 3 forms

1) does witness have personal knowledge

2) is exhibit authentic

3) is D inf act the person who committed the prior bad act offered as MIMIC evidence

Judge insures there is sufficient evidence for a reasonable jury to conclude that a conditional fact is true.
Procedural considerations - what preliminary facts does the JUDGE decide?
Questions of admissibility
1) is testimony hearsay?
2) is communication privileged?
3) is expert qualified?

Burden is preponderance of teh evidence - judge can consider ANYTHING not just admissible evidence