Evidence Flashcards

Front 1

what is the number 1 rule in evidence

Back 1

all relevant evidence is admissible

Front 2

how do we know if evidence is relevant

Back 2

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

Front 3

what is the general exception the admissibility of relevant evidence

Back 3

if court makes a discretionary determination that the probative value of evidence is substantially outweighted by pragmatic considerations - relevant evidence can be excepted.

Front 4

what counts as pragmatic considerations?

Back 4

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.

Front 5

what evidence is excluded for policy based reasons?

Back 5

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.

Front 6

What is the rule pertaining to admissibility of evidence of Liability Insurance?

Back 6

Evidence that a person does or does not have liability insurance is inadmissible for proving FAULT or the absence of fault.

Front 7

can liability insurance ever be admissible

Back 7

yes, for some other relevant purpose
1) proof of OWNERSHIP, if controverted, or

2) for IMPEACHMENT of witness

Front 8

what is impeachment of a witness?

Back 8

process of trying to show that witness should not be believed

Front 9

what are subsequent remedial measures (SRMs)?

Back 9

repairs, design changes, policy taken after an accident that could have prevented the accident

Front 10

what is the rule pertaining to the admissibility of evidence pertaining to SRMS?

Back 10

SRMS are inadmissible to prove
a)negligence
b) culpable conduct
c) product defect
d) need for warning

Front 11

what is the NY DISTINCTION to the rule pertaining to the admissibility of evidence pertaining to SRMS?

Back 11

SRMs are admissible in product liability action based on SL for manufacturing defect

Front 12

What can evidence of SRMs be admissible for?

Back 12

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

Front 13

what is the rule pertaining to the admissibility of evidence pertaining to settlements of civil cases?

Back 13

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.

Front 14

What is required of discussion for the ban on settlement evidence to apply?

Back 14

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

Front 15

can evidence of settlement or settlement discussions ever be admissible?

Back 15

yes, to show bias

Front 16

what is the rule pertaining to the admissibility of evidence pertaining to offers to pay hospital or medical expenses?

Back 16

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.

Front 17

what is the rule pertaining to the admissibility of evidence pertaining to Pleas and Plea bargaining?

Back 17

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

Front 18

what is character evidence?

Back 18

it refers to a person's general propensity or disposition, e.g. traits of honesty (dishonesty), peacefulness/violence, carefulness/carelessness

Front 19

Is character evidence admissible?

Back 19

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.

Front 20

what is veracity of a witness?

Back 20

character evidence can be sued to show veracity -- that is evidence of a witnesses' character for truthfulness can be offered in order to IMPEACH

Front 21

what is a non-propensity purpose?

Back 21

IF EVIDENCE OF PERSON'S PRIOr bad act is offered for someother purpose than proving propensity

Front 22

When can character evidence be offered in a criminal case -- When can D offer character evidence about D?

Back 22

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?

Front 23

If character evidence is admitted to prove propensity, what form of evidence can be used?

Back 23

1) FED - reputation or opinion

2) NY - reputation only!

key - evidence of specific acts is not allowed

Front 24

When can character evidence be offered in a criminal case -- When can P offer character evidence about D to rebut?

Back 24

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.

Front 25

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?

Back 25

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.

Front 26

FED - When can character evidence be offered in a criminal case -- When can evidence of victim's character be raised?

Back 26

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

Front 27

If evidence of victim's character is raised by D, what can the prosecution do to rebut?

Back 27

show evidence of
1) victim's good character for that trait, OR
2) D's bad character for that trait

Front 28

NY - When can character evidence be offered in a criminal case -- When can evidence of victim's violent character be raised?

Back 28

NY - For self defense cases, evidence of victim's character is INADMISSIBLE to show victim was first aggressor.

Front 29

Can D introduce evidence that D KNEW of Victim's character for violence?

Back 29

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.

Front 30

NY - When can character evidence be offered in a criminal case -- When can evidence of victim's sexual misconduct be raised?

Back 30

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.

Front 31

What addition does NY have to rape shield law requirements and exceptions?

Back 31

Evidence of vicitm's conviction for prostitution in the last 3 years IS admissible

Front 32

What about character evidence in a CIVIL case?

Back 32

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

Front 33

Is evidence of a Habit admissible?

Back 33

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.

Front 34

what is habit

Back 34

habit is a repetitive response to a particular set of circumstances

1) frequency
2)particularity

Front 35

what is the NY rule on the admissibility of habit evidence?

Back 35

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)

Front 36

Can D's other crimes be admissible for non-character purposes?

Back 36

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

Front 37

How can prior bad acts be proved for MIMIC purposes?

Back 37

By evidence of
1) conviction of prior bad act
2) evidence that tends to prove prior bad act occurred

Front 38

What is the burden of proof in proving bad acts for MIMIC purposes

Back 38

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.

Front 39

what are some other notes about MIMIC evidence?

Back 39

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

Front 40

In terms of Defendants other crimes, can OTHER SEXUAL MISCONDUCT be used to show propensity for sexual assault.

Back 40

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.

Front 41

Can evidence of similar occurrences be introduced?

Back 41

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)

Front 42

what are the four FORMS of evidence

Back 42

1. witnesses

2. documentary evidence

3. real evidence

4. judicial notice

Front 43

what is judicial notice

Back 43

recognition of a fact as true w/o formal presentation of evidence

Front 44

when is judicial notice used?

Back 44

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)

Front 45

when can judicial notice be taken

Back 45

any time

Front 46

what is the effect of judicial notice

Back 46

judicially noticed facts are conclusive in civil cases, not in criminal

Front 47

what about documentary evidence, what are the major issues?

Back 47

1. authentication

2. best evidence

3. hearsay.

Front 48

what is the rule on authenitication

Back 48

party seeking to introduce an exhibit must introduce evidence sufficient for a reasonable juror to conclude item is what party claims it to be.

Front 49

what about authenticiation of writings?

Back 49

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!

Front 50

what are the methods for authenticating writings? i.e how can a party prove document was written by X?

Back 50

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

Front 51

what type of documetns are self-authenticating? that is presumed authentic so no foundation is needed?

Back 51

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

Front 52

How do you authenticate photographs/recordings -- if photo is demonstrative evidence

Back 52

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

Front 53

How do you authenticate photographs/recordings -- if photo is silent witness

Back 53

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.

Front 54

what is the best evidence rule? When is party required to show original of document

Back 54

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)

Front 55

when does the best evidence rule apply

Back 55

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.

Front 56

what qualifies as an original writing

Back 56

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)

Front 57

what is the rule pertaining to original writings?

Back 57

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.

Front 58

when will non-production of original be excused?

Back 58

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

Front 59

what are escapes from the best evidence rule

Back 59

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.

Front 60

How do you authenticate real evidence (actual physical evidence) displayed to trier of fact - think drugs, guns, product for product liability, etc?

Back 60

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"

Front 61

what methods can be used to authenticate real evidence?

Back 61

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

Front 62

With witnesses, how do you show they are competent to testify?

Back 62

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

Front 63

what is ny's rule on testimony for kids? and competency?

Back 63

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).

Front 64

what is a dead man's statute (No fed rule, but MBE can test you on it by asking you about it)?

Back 64

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).

Front 65

can a dead man's rights under dead man's statute be waived?

Back 65

yes, if
1. decedent's reps don't object
2. decedent's rep testifies about transactions
3. decedents testimony is introduced

Front 66

what is the NY rule for the dead man's statute?

Back 66

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.

Front 67

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 . . . ?"

Back 67

1. leading questions are generally not allowed on direct examination of witnesses
BUT
2. leading questions are generally allowed on cross-examination

Front 68

what are the exceptions to the general rules on leading questions

Back 68

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

Front 69

When can a writing be used in aid of oral testimony?

Back 69

1) present recollection refreshed

2) past recollection recorded (hearsay exception)

Front 70

what is present recollection refreshed

Back 70

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

Front 71

do any safeguards exist to protect opposing party when a present recollection is refreshed?

Back 71

yes, opposing party has the right to
1. inspect it
2. use it on cross
3. introduce it into evidence

Front 72

What is the past recollection recorded hearsay exception?

Back 72

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.

Front 73

If foundation for recorded recollection is satisfied, what methods can be used to introduce evidence?

Back 73

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

Front 74

what are the forms of opinion testimony

Back 74

1. lay witness opinion
2. expert witness opinion

Front 75

when is opinion testimony allowed

Back 75

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

Front 76

what is the rule pertaining to lay witness testimony

Back 76

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

Front 77

When can expert witnesses testify?

Back 77

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

Front 78

how can an expert opinion have proper basis?

Back 78

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

Front 79

how do you determine if expert testimony is reliable?

Back 79

it must be based on
1) reliable methods
2) reliably applied methodds to facts of case

Front 80

what is the federal standard for determining reliability - daubert

Back 80

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

Front 81

what is the federal standard for determining reliability - frye

Back 81

is methodology generally accepted by relevant scientific community?

scientists, not judge, matter for reliability determination

Front 82

when can a learned treatise be used in aid of expert testimony? (hearsay exception)

Back 82

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

Front 83

How is the authoritativeness of a treatise established?

Back 83

1) own expert testifies treatise is authoritative

2) opponents expert admits its authoritative

3) judge takes judicial notice of authoritativeness.

Front 84

what is the rule of cross examination

Back 84

it is a right. if witness takes the stand, testifies, and then cannot be cross-examined, direct will be struck from record.

Front 85

what is the proper subject of cross examination

Back 85

1. matters withinthe scope of direct examination and

2. matters that effect witness's credibility

Front 86

what is credibility

Back 86

credibility rests on
1) witnesses perception
2) witnesses memory
3) witnesses honest

Front 87

what is impeachment

Back 87

process of showing that a witness is not credible - attacking perception/memory/honesty

Front 88

what is rehabilitation

Back 88

process of trying ot repair a witnesses credibility after witness has been impeached

Front 89

what are the two types of impeachment

Back 89

intrinsic impeachment - impeach W by asking W questions on cross

extrinsic impeachment - introduce documentary evidence or call other witnesses to impeach

Front 90

what are the methods of impeachent

Back 90

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

Front 91

Impeachment - Prior Inconsistent Statement - What is one?

Back 91

statement, orally or in writing that is materially inconsistent with the witnesses trial testimony

Front 92

Impeachment - Prior Inconsistent Statement - What is the rule?

Back 92

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

Front 93

Impeachment - Prior Inconsistent Statement - What is the procedural rule?

Back 93

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!

Front 94

Impeachment - Bias, Interest, Motive to misrepresent - what is the rule?

Back 94

Bias must always be proven through EXTRINSIC evidnece. (generally witness should be confronted with alleged bias before it is proven by extrinsic evidence)

Front 95

Impeachment - Bias - what are examples of bias

Back 95

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

Front 96

Impeachment Methods - SEnsory Deficiencies (anything that could affect witnesses perception or memory)

Back 96

bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication

1)intrinsic confrontation is not required

2)extrinsic evidence is allowed

Front 97

Impeachment Methods - Reputation or opinion about witness' bad character for trutfhulness

Back 97

Party may impeach a witness by calling another witness (character witness) to testify to the target witness's character for veracity

Front 98

Impeachment Methods - Reputation or opinion about witness' bad character for trutfhulness -- what forms of evidence can be used?

Back 98

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

Front 99

Impeachment Methods - Criminal Convictions (note this is a specific act and it IS allowed)

Back 99

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

Front 100

Impeachment Methods - Criminal convictions -- how can evidence be proved

Back 100

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

Front 101

Impeachment Methods - criminal conviction -- what factors should be considered in balancing probative value with unfair prejudice

Back 101

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)

Front 102

Impeachment Methods - Bad acts, w/o conviction, that reflect adversely on W's character for truthfulness

Back 102

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)

Front 103

Impeachment Methods - Bad acts, w/o conviction, that reflect adversely on W's character for truthfulness -- any LIMITATIONS on this rule?

Back 103

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)

Front 104

So, summary, when are arrests admissible and inadmissible

Back 104

admissible -
1) to impeach W's knowledge; 2) to impeach W by showing bias

not admissible
1) to impeach W's characer for veracity.

Front 105

Impeachment Methods - Contradiction

Back 105

Witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct exam.

Front 106

Impeachment Methods - Contradiction - What is the procedure for proving a contradiction?

Back 106

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)

Front 107

Impeachment Methods - Impeaching one's own witness?

Back 107

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"

Front 108

what is bolstering

Back 108

introducing evidence to support a witness's credibility before W's credibility has been attacked. it is not allowed

Front 109

what is the rule on rehabilitation

Back 109

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

Front 110

what are the methods available for rehabilitation if character for good truthfulness has been attacked?

Back 110

Opposing party can introduce corresponding evidence of W's good character for truthfulness
FED - reputation or opinion
NY - reputation only
NO SPECIFIC ACTS

Front 111

what are the methods available for rehabilitation if prior inconsistent statement has been pointed out?

Back 111

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

Front 112

What is hearsay?

Back 112

an out of court statemetn by a person offered to prove the truth of the matter asserted

Front 113

what is the general rule on hearsay?

Back 113

it is not admissible. B/c declarant's credibility (perception, memory, honesty) cannot be tested through cross-examination.

Front 114

What are non-hearsay purposes for admitting evidence?

Back 114

1) impeachment

2) Verbal Acts

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

4) circumstantial evidence of speakers state of mind.

Front 115

Non-hearsay purposes -- Impeachment?

Back 115

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)

Front 116

Non-hearsay purposes -- verbal acts?

Back 116

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

Front 117

Non-hearsay purposes -- to show effect on person who heard/read statemetn

Back 117

not hearsay to show that someone was on notice, had a motive, or had a reasonable belief

Front 118

Non-hearsay purposes -- circumstantial evidence of speaker's state of mind

Back 118

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.

Front 119

Hearsay - ARe prior statemetns of trial witnesses (declarant and W are same person) hearsay?

Back 119

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

Front 120

what are the ten exceptions to the rule that hearsay is not admissible?

Back 120

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!

Front 121

Non-hearsay purposes -- verbal acts?

Back 121

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

Front 122

Non-hearsay purposes -- to show effect on person who heard/read statemetn

Back 122

not hearsay to show that someone was on notice, had a motive, or had a reasonable belief

Front 123

Non-hearsay purposes -- circumstantial evidence of speaker's state of mind

Back 123

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.

Front 124

Hearsay - ARe prior statemetns of trial witnesses (declarant and W are same person) hearsay?

Back 124

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

Front 125

what are the ten exceptions to the rule that hearsay is not admissible?

Back 125

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!

Front 126

Hearsay - Exception - Party Admission (statement by party opponent)

Back 126

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

Front 127

Hearsay - Exception - Party Admission (statement by party opponent) -- VICARIOUS LIABILITY?

Back 127

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

Front 128

Hearsay - Exception - Party Admission (statement by party opponent) - co-conspirator?

Back 128

a statement of one co-conspirator is admissible against other co-conspirators if statement was made during and in furtherance of the conspiracy

Front 129

Hearsay - Exceptions - "Unavailability"

Back 129

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

Front 130

Hearsay - Exception - Former Testimony (requires unavailability)

Back 130

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)

Front 131

Hearsay - Exception - Former testimony -- NY Distinction?

Back 131

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.

Front 132

Hearsay - Exception - Forfeiture by wrong doing

Back 132

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)

Front 133

Hearsay - Exception - Statement against interest

Back 133

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

Front 134

Hearsay - Exception - Dying declarations

Back 134

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

Front 135

Hearsay - Exception - Excited utterance - "spontaneous statemetns" rule?

Back 135

1) statement concerns a startling event, and

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

*unavailability not required!

Front 136

Hearsay - Exception -excited utterances - what makes a statement 'excited'?

Back 136

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.

Front 137

Hearsay - Exception - Present sense impression

Back 137

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

Front 138

Hearsay - Exception - Statement of then-existing mental, emotional, or physical condition

Back 138

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

Front 139

Hearsay - Exception - Statement of then-existing mental, emotional, or physical condition -- what is the NY Rule?

Back 139

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.

Front 140

Hearsay - Exception - Statements for purposes of medical treatment or diagnosis

Back 140

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

Front 141

Hearsay - Exception - Statements for purposes of medical treatment or diagnosis -- NY distinction

Back 141

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.

Front 142

Hearsay - Exception - Business and public records -- BUSINESS

Back 142

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

Front 143

Hearsay - Exception - Business and public records -- PUBLIC

Back 143

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)

Front 144

Hearsay - Exception - Business and public records -- BUSINESS - how do you lay the foundation?

Back 144

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

Front 145

How does hearsay rules interact with confrontation clause (that is, that in criminal cases, 6A requires that D be confronted with witnesses against him)

Back 145

This means that prosecution may not offer testimonial hearsay in violation of D's right to cross examine W

Front 146

Hearsay and Confrontation - When is D's right to cross examination satisfied?

Back 146

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)

Front 147

Hearsay and Confrontation - what is "testimonial"

Back 147

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

Front 148

What if hearsay is admitted?what can opposing party do?

Back 148

use any of impeachment methods to attack credibility of hearsay declarant

Front 149

What are the procedural rules regarding use of federal or state law for evidence issues?

Back 149

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

Front 150

What are recognized privileges

Back 150

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

Front 151

Attorney client privilege what is the rule?

Back 151

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

Front 152

Attorney client privilege what are communications?

Back 152

underlying info/facts, preexisting docs, physical evidence

Front 153

Attorney client privilege what is confidential?

Back 153

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

Front 154

how can the A-C privilege be lost

Back 154

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

Front 155

Doctor-patient privilege rule (includes nurses, assistants, and in NY - dentists, podiatrists, chiropractors)

Back 155

confidential communications of information acquired by dr from patient for purpose of diagnosis or treatment of medical condition is privileged

Front 156

Doctor-patient privilege rule - when can it be waived?

Back 156

if patient expressly or impliedly puts medical of physical condition in issue

E.g p in personal injury case, or D asserting insanity defense

Front 157

Spousal privilege - what are the two types?

Back 157

1) spousal communications privilege

2) spousal immunity-testimony privilege

Front 158

Spousal privilege - spousal communications privilege

Back 158

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

Front 159

Spousal privilege - spousal immunity-testimony privilege

Back 159

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

Front 160

What are the exceptions to both spouseal privileges?

Back 160

Communications or acts
1) in furtherance of future crime/fraud (joint criminal activity), and

2) destructive of family unit (spousal/child abuse)

Front 161

Procedural considerations - what are the burdens of proof for civil and criminal trials?

Back 161

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

Front 162

Procedural considerations - what preliminary facts does the JURY decide?

Back 162

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.

Front 163

Procedural considerations - what preliminary facts does the JUDGE decide?

Back 163

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