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348 Cards in this Set

  • Front
  • Back
Sources of Evidence Law
There are three sources of evidence law:
1. State common law and miscellaneous state statutes,
2. Comprehensive state evidence codes, and
3. The Federal Rules of Evidence.
Exam Tip
The Federal Rules govern on the MBE. Beware of answer choices stating the correct common law rule, rather than the Federal Rule.
Threshold Admissibility Issues
Generally, relevant evidence is admissible if it is competent. Under the Federal Rules, “relevant evidence” tends to prove (probativeness) any fact of consequence to the action (materiality). Evidence is competent if it does not violate any exclusionary rule (e.g., the hearsay rule).
Direct and Circumstantial Evidence
Direct evidence involves no inferences. It is testimony or real evidence that speaks directly to a material issue in the case. Circumstantial evidence is indirect and relies on inference. It is evidence of a subsidiary or collateral fact from which, alone or in conjunction with other facts, the existence of the material issue can be inferred.
Limited Admissibility
Evidence may be admissible for one purpose but not another, or admissible against one party but not another. In these situations, the court must, upon request, restrict the evidence to its proper scope and instruct the jury accordingly. Furthermore, the court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose.
Exam Tip on Relevance
Relevance questions should be approached in two steps.

1. Determine whether the evidence is relevant (i.e., tends to prove or disprove a material fact).
2. If relevant, determine whether the evidence should nonetheless be excluded based on: (i) judicial discretion (i.e., probative value outweighed by prejudice, etc.), or (ii) Public policy (e.g., insurance, subsequent repairs).
Determining Relevance
Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence.
Determining Relevance: General Rule—Must Relate to Time, Event, or Person in Controversy
Generally, the evidence must relate to time, event, or person involved in the PRESENT litigation; otherwise, it is not relevant.

When considering the relevance of evidence relating to a time, event, or person other than the one at issue, an important factor is its proximity in time to the current events.
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant
Previous similar occurrences may relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice. The following are examples of relevant similar occurrences:
1. Causation;
2. Prior False Claims or Same Bodily Injury;
3. Similar Accidents or Injuries Caused by Same Event or Condition
4. Previous Similar Acts Admissible to Prove Intent
5. Rebutting Claim of Impossibility
6. Sales of Similar Property
7. Habit
8. Industrial or Business Routine
9. Industry Custom as Evidence of Standard of Care
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Causation
Complicated issues of causation may be established by evidence concerning other times, events, or persons (e.g., damage to nearby homes caused by D’s blasting is relevant to prove D’s blasting damaged P’s home).
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Prior False Claims or Same Bodily Injury
Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim. But evidence that the party has made previous similar false claims or claims involving the same bodily injury is usually relevant to prove that:
1. The present claim is likely to be false, or
2. The plaintiff’s condition is attributable in whole or in part to the prior injury.
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Similar Accidents or Injuries Caused by Same Event or Condition
Evidence of prior accidents or injuries caused by the same event or condition is admissible to prove:
1. The EXISTENCE of a dangerous condition,
2. That the defendant had KNOWLEDGE of the dangerous condition, and
3. That the dangerous condition was the CAUSE of the present injury.
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Absence of Similar Accidents
Many courts are reluctant to admit evidence of the ABSENCE of similar accidents to show absence of negligence or lack of defect. However, evidence of the absence of complaints is admissible to show the defendant’s lack of knowledge of the danger.
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Previous Similar Act Admissible to Prove Intent
Similar conduct previously committed by a party may be introduced to prove the party’s present motive or intent when such elements are relevant (e.g., history of school segregation admissible to show motive for current exclusion of minorities).
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Rebutting Claim of Impossibility
The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut to a claim of impossibility (e.g., defendant’s claim that car will not go above 50 mph can be rebutted by showing occasions when car went more than 50 mph).
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Sales of Similar Property
Evidence of sales of similar personal or real property that are not too remote in time is admissible to prove value. Prices quoted in mere offers to purchase are not admissible. However, evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission.
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Habit
Habit describes a person’s REGULAR RESPONSE to a specific set of circumstances. In contrast, character describes one’s disposition in respect to general traits. Under Federal Rule 406, evidence of the habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit.
Determining Relevance: Habit in NY
Habit evidence is USUALLY INADMISSIBLE for the purpose of raising an inference that the same amount of care was exercised on the occasion in question.

However, in PRODUCTS LIABILITY CASES, habit evidence is ADMISSIBLE to establish that the plaintiff USED A PRODUCT IN A PARTICULAR WAY.
Exam Tip on Habit
Watch for words such as “INSTINCTIVELY” and “AUTOMATICALLY” in a question’s fact pattern. These words indicate habit.
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Industrial or Business Routine
Evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred.
Determining Relevance: Exceptions—Certain Similar Occurrences Are Relevant: Industry Custom as Evidence of Standard of Care
Industry custom may be offered to show adherence to or deviance from an industry-wide standard of care. However, industry custom is not conclusive on this point; e.g., an entire industry may be acting negligently.
Discretionary Exclusion of Relevant Evidence
A trial judge has broad discretion to exclude relevant evidence if its PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time.
Exam Tip
Under the Federal Rules, UNFAIR SURPISE is NOT a valid ground upon which to exclude relevant evidence.
Exclusion of Relevant Evidence for Public Policy Reasons
Certain evidence of questionable relevance is excluded by the Federal Rules became public policy favors the behavior involved. Subsequent repairs, for example, are not admissible to show negligence because society wishes to encourage the immediate repair of dangerous conditions. Evidence excluded for public policy reasons include the following:
1. Liability Insurance
2. Subsequent Remedial Measures
3. Settlement Offers And Withdrawn Guilty Pleas
4. Offers to Pay Medical Expenses
Exclusion of Relevant Evidence for Public Policy Reasons: Liability Insurance
Evidence of insurance against liability is NOT ADMISSIBLE TO SHOW NEGLIGENCE OR ABILITY TO PAY a substantial judgment. However, it may be admissible:
1. To prove ownership or control,
2. To impeach, or
3. As part of an admission
Exclusion of Relevant Evidence for Public Policy Reasons: Subsequent Remedial Measures
Evidence of repairs or other precautionary measures made following an injury is NOT ADMISSIBLE to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. However, it may be admissible to:
1. Prove ownership or control,
2. Rebut a claim that the precaution was not feasible, or
3. Prove that the opposing party has destroyed evidence.
Exclusion of Relevant Evidence for Public Policy Reasons: Subsequent Remedial Measures in NY
In a MANUFACTURING DEFECT case, subsequent remedial measures are ADMISSIBLE to establish DEFECTIVENESS OF THE PRODUCT WHEN MADE.

Contrast: In a DESIGN DEFECT or FAILURE TO WARN case, post-manufacture modifications are ADMISSIBLE ONLY TO DEFEAT the manufacturer’s claim that at the time of manufacture, such MODIFICATIONS WERE NOT FEASIBLE. Even if the manufacturer concedes feasibility, the evidence of modification is inadmissible.
Exclusion of Relevant Evidence for Public Policy Reasons: Settlement Offers and Withdrawn Guilty Pleas
Evidence of compromises or offers to compromise is NOT ADMISSIBLE TO PROVE LIABILITY FOR, OR INVALIDTY OF, A CLAIM THAT IS DISPUTED AS TO VALIDITY OR AMOUNT. Not even direct admissions of liability during compromise negotiations are admissible. Likewise, withdrawn guilty pleas and offers to plead guilty are inadmissible.
Exclusion of Relevant Evidence for Public Policy Reasons: Withdrawn Guilty Pleas
NY allows a withdrawn guilty plea to be used as an admission in a subsequent CIVIL proceeding arising out of the same facts.
Exam Tip
For the exclusionary rule to apply to settlement negotiations, there must be some indication that a party is going to MAKE A CLAIM (although the party need not have actually filed suit). Furthermore, the claim must be IN DISPUTE as to liability or amount.
Exclusion of Relevant Evidence for Public Policy Reasons: Offers to Pay Medical Expenses
Payment of or offers to pay the injured party’s medical expenses are inadmissible. However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible.
Character Evidence—A Special Relevance Problem
Character evidence may be offered as substantive, rather than impeachment, evidence to:
1. Prove character when it is the ULTIMATE ISSUE in the case, or
2. Serve as CIRCUMSTANTIAL EVIDENCE of how a person probably acted.

The latter is more heavily tested and is the focus of the following discussion.
Means of Proving Character
Depending on the jurisdiction, the purpose of the offer, and the nature of the case, one or all of the following methods of proving character may be available:
1. Evidence of SPECIFIC ACTS;
2. OPINION TESTIMONY of a witness who knows the person; and
3. Testimony as to the person’s general REPUTATION in the community
Character Evidence: Generally Not Admissible in Civil Cases
Unless character is directly in issue (e.g., defamation), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case. For example, a plaintiff in a suit involving a car accident may not introduce evidence that the defendant is usually a reckless driver to prove that she was negligent at the time in question, nor may the defendant introduce evidence that she is generally a cautious driver.
Character Evidence: Accused in Criminal Case—Generally Only Accused Can Initiate
The prosecution cannot initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime. (Although the prosecution may introduce the evidence of prior misconduct for reasons other than propensity to commit the crime.) The accused, however, may introduce evidence of her good character to show her innocence of the alleged crime.
How Defendant Proves Character
Under the Federal Rules, a witness for the defendant may testify as to the defendant’s good REPUTATION for the trait in question and may give his personal OPINION concerning that trait of the defendant.
Character Evidence: How Defendant Proves Character
A character witness may testify in CRIMINAL cases about the defendant’s REPUTATION IN THE COMMUNITY (BUT NOT GIVE OPINION) and only to those traits that are RELEVANT to the crime involved.

Note: The same rule applies to prosecution’s rebuttal witnesses.
Exam Tip
Remember that a defendant does not put his character in issue merely by testifying. Taking the stand places the defendant’s CREDIBILITY (as opposed to character) in issue; i.e., the prosecution is limited to impeachment evidence rather than substantive character evidence.
How Prosecution Rebuts Defendant’s Character Evidence
Once the defendant opens the door by introducing character evidence, the prosecution may rebut it by:
1. Cross-examining the character witness regarding the basis for his testimony including whether he knows or has heard of specific instances of the defendant’s misconduct. (ANY misconduct, including prior arrests, may be inquired about while cross-examining a defendant’s character witness. Remember, however, that the prosecutor is limited to inquiry of the witness; she MAY NOT INTRODUCE ANY EXTRINSIC EVIDENCE of the misconduct. Be careful to distinguish asking a CHARACTER witness whether he is aware of the DEFENDANT’S prior arrests, which is proper, and impeaching a witness with the WITNESS’S arrests, which is improper).
2. CALLING QUALIFIED WITNESSES to testify as to the defendant’s bad reputation or give their opinions of the defendant’s character.
Character Evidence: How Prosecution Rebuts Defendant’s Character Evidence in NY
NY allows introduction PRIOR CONVICTIONS ONLY when they ADVERSELY AFFECT THE CHARACTER TRAIT IN ISSUE.
Character Evidence: Victim in Criminal Case
Except in rape cases, the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence. Once the defendant has introduced evidence of a bad character trait of the victim, the prosecution may counter with reputation or opinion evidence:
1. The victim’s GOOD character, or
2. The DEFENDANT’S bad character for the SAME TRAIT.
Character Evidence: Victim in Criminal Case in NY
The accused may offer evidence that the victim had a GENERAL REPUTATION FOR VIOLENCE, vindictiveness, and quarreling to prove that the accused acted upon a reasonable belief that his life was in danger (justification). Evidence of the SPECIFIC ACTS of violence is ADMISSIBLE. The accused must first offer evidence of self-defense AND must have known of the victim’s specific acts of violence BEFORE the confrontation. However, the character evidence is NOT ADMISSIBLE to prove that the VICTIM WAS THE AGGRESSOR.
Character Evidence: Rape Victim’s Past Behavior Generally Inadmissible
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.
Character Evidence: Rape Cases: Victim’s Past Behavior in NY
The following evidence relating to the victim’s sexual conduct is ADMISSIBLE if it had a proper bearing on the defendant’s guilt or innocence:
1. The victim’s CONVICTION FOR PROSTITUTION WITHIN THREE YEARS PRIOR TO THE SEX OFFENSE that is the subject of the prosecution; or
2. Rebuttal evidence of the victim’s FAILURE TO ENGAGE IN SEXUAL INTERCOURSE, DEVIATE SEXUAL INTERCOURSE, OR SEXUAL CONTACT during a given period of time.
Character Evidence: Rape Victim’s Past Behavior Generally Inadmissible: Exceptions in Criminal Cases
In a criminal case, a victim’s sexual behavior is admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Also, specific instances of sexual behavior between the victim and the accused are admissible by the prosecution for any reason and by the defense to prove consent.
Character Evidence: Rape Victim’s Past Behavior Generally Inadmissible: Exception in Civil Cases
In a civil case, evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the vcitim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.
Character Evidence: Homicide Cases—Victim’s Character for Peacefulness to Rebut Self-Defense Claim
In a HOMICIDE CASE in which the defendant pleads SELF-DEFENSE, evidence of any kind that the victim was the first aggressor (e.g., eyewitness testimony that the victim struck first) opens the door to evidence that the victim had good character for peacefulness. This evidence can be introduced regardless of whether the defendant has introduced character evidence of the victim’s generally violent propensity.
Character Evidence: Specific Acts of Misconduct
Evidence of a person’s other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character.
Specific Acts of Misconduct: Admissible if Independently Relevant
Evidence of other crimes or misconduct is admissible if these acts are RELEVANT TO SOME ISSUE OTHER THAN THE DEFENDANT’S CHARACTER OR DISPOSITION to commit the crime or act charged. Such issues include motive (e.g., burn building to hide embezzlement), intent (i.e., guilty knowledge, lack of good faith), absence or mitake or accident, identity (e.g., stolen gun used or “signature” crimes), or common plan or scheme. In a criminal case, the prosecution must, upon request, provide reasonable notice prior to trial of the general nature of any of this type of evidence it intends to instroduce.
Exam Tip
A convenient way to remember the issues for which evidence of prior acts of misconduct is admissible is through the mnemonic device “MIMIC”:

Motive
Intent
Mistake (absence of)
Identity
Common Plan or Scheme
Specific Acts of Misconduct: Requirements for Admissibility
TO be admissible:
1. There must be sufficient evidence to support a jury finding that the defendant committed the prior act, AND
2. Its probative value must not be substantially outweighed by the danger of unfair prejudice (or the judge, in her discretion, may exclude it.)
Specific Acts of Sexual Assault or Child Molestation
Evidence of a defendant’s prior acts of sexual assault or child molestation is admissible in a case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial (or later with good cause).
Character Evidence: Prior Acts of Sexual Assault or Child Molestation in NY
NY does NOT allow evidence of prior acts of sexual assault or child molestation.
Judicial Notice of Fact
Judicial notice is the recognition of a fact as true without formal presentation of evidence.
Facts Appropriate for Judicial Notice
Courts take judicial notice of INDISPUTABLE FACTS that are either matters of COMMON KNOWLEDGE in the community (notorious fact) or CAPABLE OF VERIFICATION by resort to easily accessible sources of unquestionable accuracy (manifest facts). Courts have increasingly taken judicial notice of scientific principles as a type of manifest fact. Judicial notice of such facts may be taken at any time, whether or not requested.
Procedural Aspects of Judicial Notice
If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken of the particular fact. Judicial notice may be taken for the first time on appeal. The Federal Rules provide that a judicially noticed fact is conclusive in a civil case but not in a criminal case. In a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed fact.
“Adjudicative” and “Legislative” Facts
The Federal Rules, and thus their requirements, govern only judicial notice of “adjudicative” facts (i.e., those that relate to the particular case). “Legislative” facts (i.e., those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be of common knowledge nor capable of indisputable verification to be judicially noticed.
Judicial Notice of Law—Mandatory or Permissive
Courts MUST take judicial notice of federal and state law and the official regulations of the forum state and the federal government. Courts MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.
Real Evidence: In General
Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).
Real Evidence: General Conditions of Admissibility
Real evidence must be relevant and must meet the following legal requirements:
1. Authentication
2. Condition of Object
3. Balancing Test—Legal Relevance
Real Evidence: Authentication
The object must be identified as what the proponent claims it to be, either by:
1. TESTIMONY of a witness that she RECOGNIZES the object as what the proponent claims it is (e.g., witness testifies that a gun is the one found at the crime scene); or
2. Evidence that the object has been held in a SUBSTANTIALLY UNBROKEN CHAIN OF POSSESSION (e.g., blood taken for blood-alcohol test).
Real Evidence: Condition of Object
If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.
Real Evidence: Balancing Test—Legal Relevance
Some auxiliary policy or principle may outweigh the need to admit the real evidence. Such policies include physical inconvenience of bringing the object into the courtroom, indecency or the impropriety, or undue prejudice.
Particular Types of Real Proof: Reproductions and Explanatory Real Evidence
Relevant photographs, diagrams, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. However, items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (i.e., they are not given to the jury during its deliberations).
Particular Types of Real Proof: Maps, Charts, Models, Etc.
Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated (testimonial evidence that they are faithful reproductions of the object or thing depicted).
Particular Types of Real Proof: Exhibition of Child in Paternity Suits
In paternity suits, almost all courts permit exhibition of the child to show whether she is the race of the putative father. The courts are divided with respect to the propriety if exhibition for the purpose of proving physical resemblance to the putative father.
Real Evidence: Particular Types of Real Proof: Exhibition of Child in Paternity Suits in NY
The jury MAY NOT CONSIDER PHYSICAL RESEMBLANCE on the issue of family relationships. However, the child MAY be produced and exhibited for purposes of determining AGE.
Particular Types of Real Proof: Exhibition of Injuries
Exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this evidence if unfair prejudice would result.
Particular Types of Real Proof: Jury View of the Scene
The trial court has discretion to permit the jury to view places at issue in a civil or criminal case. The need for the view and changes in the condition of the premises are relevant considerations here.
Jury View of the Scene in NY
The JUDGE MUST BE PRESENT at a jury view in a criminal case. The prosecutor, defendant, and defendant’s counsel are entitled AS OF RIGHT to attend.

Unauthorized visits to the scene by jurors in criminal cases is inherently prejudicial and requires reversal. Unauthorized visits in civil cases may require reversal.
Particular Types of Real Proof: Demonstrations
The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury.
Demonstrations in NY
The trial judge has discretion in civil or criminal cases to allow the jury, upon retirement for deliberation, to take with them any exhibit received in evidence.
Particular Types of Real Proof: Scientific Experiments in NY
Neither the polygraph nor the voice stress analyzer has achieved sufficient reliability to warrant admission of the results of these “tests.”
Particular Types of Real Proof: Blood Grouping and HLA Testing in NY
In a dispute over paternity, the results of a blood grouping test (blood genetic marker test) may be received into evidence where DEFINITE EXCLUSION of the alleged father is established by the test. Furthermore, the results of a human leukocyte antigen (“HLA”) blood tissue test and a DNA genetic test are admissible to aid in determining paternity, UNLESS exclusion has already been established by another blood grouping test. When test results indicate at least 95% probability of paternity, there is a rebuttable presumption of paternity.
Documentary Evidence: In General
Documentary evidence must be relevant in order to be admissible. In the case of writings, the authenticity of the document is one aspect of its relevancy.
Documentary Evidence: Authentication
As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be SUFFICIENT TO SUPPORT A JURY FINDING of genuineness.
Documentary Evidence: Authentication: Authentication by Pleadings or Stipulation
The genuineness of a document may be admitted by the pleadings or by stipulation.
Documentary Evidence: Authentication: Evidence of Authenticity
The following are examples of proper authentication:

1. Admissions
2. Eyewitness Testimony
3. Handwriting Verifications
4. Ancient Documents
5. Reply Letter Doctrine
6. Photographs
7. X-Ray Pictures, Electrocardiograms, Etc.
Documentary Evidence: Evidence of Authenticity: Admissions
A writing may be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic.
Documentary Evidence: Evidence of Authenticity: Eyewitness Testimony
A writing can be authenticated by testimony of one who sees it executed or hears it acknowledged. The testimony need not be given by a subscribing witness.
Documentary Evidence: Evidence of Authenticity: Handwriting Verifications
A writing may be authenticated by evidence of the genuineness of the handwriting of the maker. This evidence may be the opinion of a NONEXPERT WITH PERSONAL KNOWLEDGE of the alleged writer’s handwriting or the opinion of an EXPERT WHO HAS COMPARED the writing to samples of the maker’s handwriting. Genuineness may also be determined by the TRIER OF FACT THROUGH COMPARISON OF SAMPLES.
Exam Tip
Remember that a nonexpert without personal knowledge of the handwriting CANNOT become familiar with it for purposes of testifying
Documentary Evidence: Evidence of Authenticity: Ancient Documents
A document may be authenticated by evidence that it:
1. Is at least 20 YEARS OLD;
2. Is in such CONDITION as to be free from suspicion as to authenticity; and
3. Was found in a PLACE where such a writing would likely be kept.
Documentary Evidence: Authentication: Ancient Documents in NY
NY requires documents to be over 30 years old.
Documentary Evidence: Evidence of Authenticity: Reply Letter Doctrine
A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.
Documentary Evidence: Evidence of Authenticity: Photographs
Generally, photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. Ordinarily, if it not necessary to call the photographer to authenticate the photograph; a witness familiar with the scene is sufficient.
Documentary Evidence: Evidence of Authenticity: Photographs: Unattended Camera—Proper Operation of Camera
If a photograph is taken when no person who could authenticate the scene is present, the photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from that camera.
Documentary Evidence: Evidence of Authenticity: X-Rays Pictures, Electrocardiograms, Etc.
Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.
Compare--Authentication of Oral Statements
When a statement is admissible only if said by a particular person (e.g., admission by a party), authentication as to the IDENTITY OF THE SPEAKER is required.
Compare--Authentication of Oral Statements: Voice Identification
A voice may be identified by the opinion of anyone who has heard the voice at ANY TIME, including after litigation has begun and for the sole purpose of testifying.
Compare--Authentication of Oral Statements: Telephone Conversations
Statements made during a telephone conversation may be authenticated by one of the parties to the call who testifies that:
1. He recognized the other party’s voice;
2. The speaker had knowledge of certain facts that only a particular person would have;
3. He called a particular person’s number and a voice answered as that person or that person’s residence; or
4. He called a business and talked with a person answering the phone about matters relevant to the business.
Self-Authenticating Documents
Certain writings are said to “prove themselves.” Extrinsic evidence of authenticity is not required for the following:
1. Certain copies of public records,
2. Official publications,
3. Newspapers and periodicals,
4. Trade inscriptions,
5. Acknowledged Documents
6. Commercial Paper and related documents, and
7. Certified Business Records
Authentication: Business Records in NY
NY follows the FRE except that it allows self-authentication in CIVIL ACTIONS ONLY, and the records must be:
1. Of a nonparty, and
2. Produced pursuant to a subpoena during pretrial discovery.
Documentary Evidence: Best Evidence Rule
This rule is more accurately called the “ORIGINAL DOCUMENT RULE.” To PROVE THE TERMS of a writing (including a recording, photograph, or X-ray), the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing (e.g., oral testimony) is admissible only if the original is unavailable.
Documentary Evidence: Best Evidence Rule: Applicability of the Rule
The rule applies to two classes of situations, namely where:
1. The writing is a LEGALLY OPERATIVE OR DISPOSITIVE INSTRUMENT; or
2. The KNOWLEDGE OF A WITNESS concerning a fact results from having read it in the document.
Documentary Evidence: Best Evidence Rule: Nonapplicability of the Rule
The best evidence rule does not apply in the following circumstances:
1. Facts to be Proved Exists Independently of Writing;
2. Writing is Collateral to Litigated Issue;
3. Summaries of Voluminous Records;
4. Public Records;
Documentary Evidence: Best Evidence Rule: Definitions of “Writings,” “Original,” and “Duplicate”
The Federal Rules govern WRITINGS, RECORDINGS, AND PHOTOGRAPHS, and they are broadly defined. An original is the writing itself or any copy that is intended by the person executing it to have the same effect as an original. A duplicate is an EXACT COPY of an original, such as a photocopy, made by mechanical means. Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result.
Best Evidence Rule: Admissibility of Duplicates in NY
NY narrows the rule from all duplicates to ONLY PHOTOGRAPHIC COPIES that are made, kept, or recorded in the ordinary course of business.
Exam Tip
It is important to distinguish photocopies and copies made by hand. Photocopies are duplicates and, thus, are treated the same as originals. In contrast, handwritten copies are considered secondary evidence and are admissible only if the original or a duplicate is unavailable.
Documentary Evidence: Best Evidence Rule: Admissibility of Secondary Evidence of Contents
If the proponent cannot produce the original writing in court, he may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the nonproduction of the original.
Documentary Evidence: Best Evidence Rule: Admissibility of Secondary Evidence of Contents: Satisfactory Foundation
Valid excuses justifying the admissibility of secondary evidence include:
1. LOSS OR DESTRUCTION of the original.
2. The original is in possession of a third party OUTSIDE THE JURISDICTION and is UNOBTAINABLE.
3. The original is IN THE POSSESSION OF AN ADVERSARY who, after due notice, fails to produce the original.
Documentary Evidence: Best Evidence Rule: Admissibility of Secondary Evidence of Contents: No Degrees of Secondary Evidence
Upon satisfactory foundation, the Federal Rules permit a party to prove the contents of a writing by any kind of secondary evidence, thus abolishing degrees of secondary evidence.
Documentary Evidence: Best Evidence Rule: Admissibility of Secondary Evidence of Contents: Testimony or Written Admission of Party
A proponent may prove the contents of a writing, recording, or photograph through the testimony, deposition, or written admission of the party against whom it is offered, and need not account for the nonproduction of the original.
Documentary Evidence: Best Evidence Rule: Functions of Court and Jury
Ordinarily, it is for the COURT to make determinations of fact regarding ADMISSIBILITY of duplicates, other copies, and oral testimony as to the contents of an original. However, the Federal Rules reserve the following questions of preliminary fact for the jury:
1. Whether the original ever existed;
2. Whether a writing, recording, or photograph produced at trial is an original; and
3. Whether the evidence offered correctly reflects the contents of the original.
Documentary Evidence: Parol Evidence Rule
If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and hence constitutes the only evidence of it. Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing.
Documentary Evidence: Parol Evidence Rule: When the Rule Does Not Apply
The parol evidence rule does not apply to exclude evidence of prior or contemporaneous agreements in the following circumstances:
1. Incomplete or Ambiguous Contract
2. Reformation of Contract
3. Challenged to Validity of Contract
Documentary Evidence: Parol Evidence Rule: When Rule Does Not Apply: Incomplete or Ambiguous Contract
Parol evidence is admissible to complete an incomplete contract or explain an ambiguous term.
Documentary Evidence: Parol Evidence Rule: When Rule Does Not Apply: Reformation of Contract
The parol evidence rule does not apply where a party alleges facts (e.g., mistake) entitling him to reformation.
Documentary Evidence: Parol Evidence Rule: When Rule Does Not Apply: Challenge to Validity of Contract
Parol evidence is admissible to show that the contract is VOID OR VOIDABLE, or was made subject to a valid CONDITION PRECEDENT that has not been satisfied.
Documentary Evidence: Parol Evidence Rule: Subsequent Modification
The rules applies only to negotiations prior to, or at the time of, the execution of the contract. Parol evidence is admissible to show subsequent modification or discharge of the written contract.
Testimonial Evidence: Competency of Witnesses
Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established. Witnesses must possess to some degree four basic testimonial attributes: the capacity to observe, the recollect, to communicate, and to appreciate the obligation to speak truthfully.
Testimonial Evidence: Competency of Witnesses: Appreciation of Oath Obligation in NY
CIVIL CASE—Unsworn testimony of a child is inadmissible.
CRIMINAL CASE—A child under age nine or a person who cannot understand the nature of the oath due to mental defect may testify without being sworn, provided that the child or mental incompetent has sufficient intelligence to justify reception of evidence.

Note: Conviction CANNOT be had upon such unsworn testimony alone.
Testimonial Evidence: Competency of Witnesses: Federal Rules of Competency
The Rules do not specify any mental or moral qualifications for witness testimony beyond these two limitations:
1. The witness must have PERSONAL KNOWLEDGE of the matter about which he is to testify; and
2. The witness must DECLARE HE WILL TESTIFY TRUTHFULLY.

If a witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation.
Testimonial Evidence: Competency of Witnesses: Modern Modifications of the Common Law Disqualifications
Most jurisdictions and the Federal Rules have removed the common law witness disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit.
Testimonial Evidence: Competency of Witnesses: Modern Modifications of the Common Law Disqualifications: Infancy
The competency of an infant depends on the capacity and intelligence of the particular child as determined by the trial judge.
Testimonial Evidence: Competency of Witnesses: Modern Modifications of the Common Law Disqualifications: Insanity
An insane person may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately.
Testimonial Evidence: Competency of Witnesses: Modern Modifications of the Common Law Disqualifications: Judge and Jurors
The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting.
Testimonial Evidence: Competency of Witnesses: Dead Man Acts
Most states have Dead Man Acts, which provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is “interested” if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action. A predecessor in interest of the interested party is also disqualified.
Competency of Witnesses: Dead Man Acts—Applicable to Civil Cases Only in NY
NY applies general provisions of the Dead Man Act and extends coverage to incompetents.
Competency of Witnesses: Automobile Accident Exception in NY
A survivor is competent to testify as to facts of NEGLIGENCE OR CONTRIBUTORY NEGLIGENCE involved in an accident that arose out of the operation or ownership of a motor vehicle, aircraft, or vessel. This is so even though one or more of the parties is the representative of a deceased or mentally ill person (e.g., the defendant in a wrongful death action may testify that the decedent, not the defendant, was driving at the time of the accident).
Exam Tip
There is no Dead Man Act in the Federal Rules, but a state Act will apply in federal cases where state law, under the ERIE doctrine, provides the rule of decision (e.g., diversity cases).
Testimonial Evidence: Form of Examination of Witness
The judge may exercise reasonable control over the examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment.
Testimonial Evidence: Form of Examination of Witness: Leading Questions
Leading questions (i.e., questions that suggest the answer desired) are GENERALLY IMPROPER ON DIRECT examination. However, they are permitted:
1. On cross-examination;
2. To elicit preliminary or introductory matter;
3. When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or
4. When the witness is hostile.
Testimonial Evidence: Form of Examination of Witness: Improper Questions and Answers
Questions that are misleading (cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation (the witness has insufficient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken.
Testimonial Evidence: Form of Examination of Witness: Use of Memoranda by Witness
A witness CANNOT READ HER TESTIMONY from a prepared memorandum. However, a memorandum may be used in certain circumstances.
Exam Tip
Any time you encounter an exam question in which a witness consults a writing, keep in mind the differences between refreshing and recorded recollection. The fact patterns are very similar and could be confusing if you have not thoroughly memorized the distinguishing features.
Testimonial Evidence: Form of Examination of Witness: Use of Memoranda by Witness: Present Recollection Revived—Refreshing Recollection
A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.
Testimonial Evidence: Form of Examination of Witness: Use of Memoranda by Witness: Past Recollection Recorded—Recorded Recollection
Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be READ INTO EVIDENCE if a proper foundation is laid. The foundation must include proof that:
1. The witness at one time had PERSONAL KNOWLEDGE of the facts in the writing;
2. The writing was MADE BY THE WITNESS or under her direction, or it was ADOPTED by the witness;
3. The writing was TIMELY MADE when the matter was fresh in the witness’s mind;
4. The writing is ACCURATE; and
5. The witness has INSUFFICIENT RECOLLECTION to testify fully and accurately.
Testimonial Evidence: Form of Examination of Witness: Use of Memoranda by Witness: Inspection and Use on Cross-Examination
Whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to the witness’s testimony into evidence.
Testimonial Evidence: Opinion Testimony
The general policy of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful.
Testimonial Evidence: Opinion Testimony: By Lay Witnesses: General Rule of Inadmissibility
Opinions by lay witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained. In most jurisdictions and under the Federal Rules, opinion testimony by a lay witness is admissible when it is:
1. Rationally based on the witness’s perception,
2. Helpful to a clear understanding of his testimony or helpful to a determination of a fact in issue, and
3. Not based on scientific, technical, or other specialized knowledge.
Testimonial Evidence: Opinion Testimony: By Lay Witnesses: Situations Where Opinions of Lay Witnesses Are Admissible
An opinion of a lay witness is generally admissible with respect to:
1. The GENERAL APPEARANCE OR CONDITION of a person;
2. The STATE OF EMOTION of a person;
3. Matter involving SENSE RECOGNITION;
4. VOICE OR HANDWRITING IDENTIFICATION;
5. The SPEED of a moving object;
6. The VALUE OF HIS OWN SERVICES;
7. The RATIOANL OR IRRATIONAL NATURE of another’s conduct; and
8. INTOXICATION of another.
Testimonial Evidence: Opinion Testimony: Situations Where Opinions of Lay Witnesses Are Not Admissible
Opinions of lay witnesses are not admissible with regard to whether one acted as an agent or whether an agreement was made.
Testimonial Evidence: Opinion Testimony: By Expert Witnesses
An expert may state an opinion or conclusion, provided:
1. The SUBJECT MATTER is one where scientific, technical, or other specialized knowledge would ASSIST THE TRIER OF FACT (an opinion will assist the trier of fact if it is relevant and reliable);
2. The WITNESS IS QUALIFIED as an expert (i.e., possesses special knowledge, skill, experience, training, or education);
3. The expert possesses REASONABLE PROBABILITY REGARDING HIS OPINION; and
4. The opinion is supported by a PROPER FACTUAL BASIS. The expert’s opinion may be based on one or more of three possible sources of information: (i) Personal observation, (ii) Facts made known to the expert at trial, or (iii) Facts not known personally but supplied to him outside the courtroom and of a TYPE REASONABLY RELIED UPON BY EXPERTS in the particular field.
Opinion Testimony in NY: Expert Witnesses—Opinion Must be Supported by Proper Factual Basis
An expert witness may also base his opinion on MATTERS NOT IN EVIDENCE IF the information “comes from a witness SUBJECT TO FULL CROSS-EXAMINATION on the trial” (e.g., a prosecution expert was permitted to express the opinion that the defendant was criminally responsible for the crime charged even though the expert’s opinion was based partially on a written out-of-court statement made by another witness at trial).
Testimonial Evidence: Opinion Testimony: Expert Witnesses: Opinion on Ultimate Issues
Under the Federal Rules, an expert may render an opinion as to the ultimate issue in the case. However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not, under the Federal Rules, state an opinion as to whether the accused did or did not have the mental state in issue.
Testimonial Evidence: Opinion Testimony: Expert Witnesses: Authoritative Texts and Treatises
An expert may be cross-examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice. Under the Federal Rules, these texts and treatises can be used not only to impeach experts, but also as substantive evidence, subject to the following limitations:
1. An EXPERT MUST BE ON THE STAND when an excerpt is read from a treatise; and
2. The relevant portion is READ INTO EVIDENCE but is not received as an exhibit.
Opinion Testimony: Expert Witnesses: Authoritative Texts and Treatises in NY
SCIENTIFIC METHODOLOGY: Scientific methodology underlying the opinion must be sufficiently established to have gained general acceptance in the particular field.

SCIENTIFIC TREATISES: Scientific treatises or writings are excluded as hearsay when offered as proof of facts asserted therein. However, on cross-examination, scientific texts (which the expert has referred to favorably on direct or conceded as authoritative on cross) may be used to discredit the expert’s opinion.
Opinion Testimony: Expert Testimony on Reliability of Eyewitness Testimony in NY
Where a case turns on the accuracy of eyewitness identification and there is LITTLE OR NO CORROBORATING EVIDENCE CONNECTING THE DEFENDANT TO THE CRIME, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is:
1. Relevant to the witness’s identification of the defendant;
2. Based on principles that are generally accepted in the relevant scientific community;
3. Proffered by a qualified expert; AND
4. On a topic beyond the “ken” of the average juror.
Testimonial Evidence: Cross-Examination
Cross-examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact, but the scope of cross-examination is frequently a matter of judicial discretion.
Testimonial Evidence: Cross-Examination: Restrictions on Scope
Cross-examination is generally limited to:
1. The scope of direct examination, including all reasonable inferences that may be drawn from it, and
2. Testing the credibility of the witness.
Testimonial Evidence: Cross-Examination: Collateral Matters
The cross-examiner is generally bound by the answers of the witness to questions concerning collateral matters. Thus, the response may not be refuted by extrinsic evidence. However, certain recognized matters of impeachments, such as bias, interest, or a conviction, may be developed by extrinsic evidence because they are sufficiently important. The trial court has considerable discretion in this area.
Testimonial Evidence: Credibility—Impeachment
Impeachment means the casting of an adverse reflection on the veracity of the witness.
Testimonial Evidence: Credibility—Impeachment: Accrediting or Bolstering
Generally, a party may not bolster or accredit the testimony of his witness (e.g., by introducing a prior consistent statement) until the witness has been impeached. However, in certain cases, a party may prove the witness made a timely complaint or a prior statement of identification. The prior identification may also serve as substantive evidence that the identification was correct.
Testimonial Evidence: Credibility—Impeachment: Any Party May Impeach
Under the Federal Rules, a witness may be impeached by any party, including the party calling him.
Credibility—Impeachment: Any Party May Impeach in NY
The PRIOR TRIAL TESTIMONY of any witness may be used by any party TO CONTRADICT OR IMPEACH that witness if he testifies in the subsequent civil action. (Note that under the FRE, prior trial testimony is considered admissible nonhearsay.)

CRIMINAL CASE—Impeachment of one’s own witness is PERMITTED ONLY when the testimony of the witness AFFIRMATIVELY DAMAGED the case of the party calling him.
Exam Tip
When a question involves a party impeaching his own witness, be sure to avoid the following WRONG ANSWER CHOICES reflecting the traditional rule, which prohibits impeaching your own witness unless the witness:
1. Is an ADVERSE PARTY or identified with an adverse party;
2. Is HOSTILE and affirmatively uncooperative;
3. Is one whom the party is REQUIRED BY LAW to call; and
4. Gives SURPRISE TESTIMONY that is affirmatively harmful to the party calling him.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence
A witness may be impeached either by cross-examination (by eliciting facts from the witness that discredit his own testimony) or by extrinsic evidence (by putting other witnesses on the stand who will introduce facts discrediting his testimony). Certain grounds for impeachment require that a foundation be laid during cross-examination before extrinsic evidence can be introduced. Other grounds allow impeachment to be accomplished only by cross-examination and not be extrinsic evidence. (Note: The term “cross-examination” is used for convenience because it is usually an adverse witness who is being impeached. But remember that a party may impeach his own witness, which would be on direct or redirect examination.) the traditional impeachment devices follow.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Prior Inconsistent Statements
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Prior Inconsistent Statements: Foundation for Extrinsic Evidence
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement. The exception to the rule is that inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation. Under the Federal Rules, foundation requirements may be dispensed with where the interests of justice require (e.g., witness unavailable when inconsistent statement is discovered).
Exam Tip
Remember that MBE follows the Federal Rules. Under the Rules, the opportunity to explain or deny need not come before introduction of a prior inconsistent statement.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Prior Inconsistent Statements: Evidentiary Effect of Prior Inconsistent Statements
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Bias or Interest
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Bias or Interest: Foundation for Extrinsic Evidence
Before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination.
Exam Tip
Watch for facts indicating that the foundation requirement for extrinsic evidence of bias or interest has been fulfilled. Evidence that is otherwise inadmissible (e.g., arrests, liability insurance) may be introduced if relevant for these impeachment purposes, provided the proper foundation is laid.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime
A witness may be impeached by proof of a CONVICTION (arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime in NY
Conviction of ANY CRIME may be shown or inquired about even if the crime does not involve serious immorality.

CRIMINAL CASE—Only the DEFENDANT (not a mere witness) is entitled to a pretrial hearing to determine the admissibility of prior convictions.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime: Type of Crime: Any Crime Involving Dishonesty
A witness may be impeached by any crime, felony or misdemeanor, requiring an act of dishonesty or false statement. The court has NO DISCRETION to bar impeachment by these crimes.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime: Type of Crime: Felony Not Involving Dishonesty
A witness may also be impeached by a felony that does not involve dishonesty, but the court has DISCRETION TO EXCLUDE it if:
1. The witness being impeached is a CRIMINAL DEFENDANT, and the PROSECUTION HAS NOT SHOWN that the conviction’s probative value outweighs its prejudicial effect; or
2. In the case of all other witnesses, the COURT DETERMINES that the conviction’s probative value is substantially outweighed by its prejudicial effect.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime: Remote, Juvenile, and Constitutionally Defective Conditions Not Admissible
Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible. Juvenile convictions are similarly inadmissible. A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime: Effect of Pardon
A conviction may not used to impeach a witness if the witness has been pardoned and:
1. The pardon is based on innocence, or
2. The person pardoned has not been convicted of a subsequent felony.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime: No Foundation Required for Extrinsic Evidence
A prior conviction may be shown by either direct or cross-examination of the witness or by introducing a record of the judgment. No foundation is necessary.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Conviction of Crime: Means of Proof—Extrinsic Evidence Permitted in NY
An admission by the witness on cross-examination that he has been convicted DOES NOT PRECLUDE the cross-examiner from questioning the witness further to ascertain the criminal act that was the basis of the conviction.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Specific Instances of Misconduct—Bad Acts
Under the Federal Rules, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is PROBATIVE OF TRUTHFULNESS (i.e., is an act of deceit or lying). However, the cross-examiner must inquire in good faith.
Specific Instances of Misconduct—Bad Acts in NY
NY adopts a broader standard and ALLOWS INQUIRY into immoral, vicious, or criminal acts that affect CREDIBILITY.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Specific Instances of Misconduct—Bad Acts: Extrinsic Evidence Not Permitted
Extrinsic evidence of “bad acts” to prove misconduct is not permitted. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross-examination of the witness.
Exam Tip
Keep in mind that asking about specific instances of misconduct does not include inquiring about arrests. An arrest itself is not a bad act. Thus, it is permissible to ask a witness whether he was embezzled money from his employer. It is not permissible to ask him whether he was ARRESTED for embezzlement.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Opinion or Reputation Evidence for Truthfulness
A witness may be impeached by showing that he has a poor reputation for truthfulness. This may include evidence of reputation in business circles as well as in the community in which the witness resides. Under the Federal Rules, an impeaching witness may state his own opinion as to the character of a witness for truthfulness.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Sensory Deficiencies
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. A witness may also be impeached by showing that he had no knowledge of the facts to which he testified.
Testimonial Evidence: Credibility—Impeachment: Impeachment Methods—Cross-Examination and Extrinsic Evidence: Contradictory Facts
Extrinsic evidence of facts that contradict a witness’s testimony may sometimes be admitted to suggest that a witness’s mistake or lie on one point indicates erroneous or false testimony as to the whole. Extrinsic evidence of contradictory facts to impeach is permitted where:
1. The witness’s testimony on a particular fact is a MATERIAL ISSUE in the case,
2. The testimony on a particular fact is SIGNIFICANT ON THE ISSUE OF CREDIBILITY, or
3. The witness volunteers testimony about a SUBJECT AS TO WHICH THE OPPOSING PARTY WOULD OTHERWISE BE PRECLUDED FROM OFFERING EVIDENCE.

However, extrinsic evidence is not permitted to prove contradictory facts that are not collateral.
Testimonial Evidence: Credibility—Impeachment: Impeachment on Collateral Matter
Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.
Testimonial Evidence: Credibility—Impeachment: Impeachment of Hearsay Declarant
Under the Federal Rules, the credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny a prior inconsistent statement. In addition, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine him about the statement.
Testimonial Evidence: Credibility—Impeachment: Rehabilitation
A witness has been impeached may be rehabilitated by the following methods:
1. Explanation on Redirect
2. Good Reputation for Truthfulness
3. Prior Consistent Statement
Testimonial Evidence: Credibility—Impeachment: Rehabilitation: Explanation on Redirect
The witness on redirect may explain or clarify facts brought out on cross-examination.
Testimonial Evidence: Credibility—Impeachment: Rehabilitation: Good Reputation for Truthfulness
When the witness’s character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation for truthfulness of the impeached witness or to give their opinions as to the truthfulness of the impeached witness.
Testimonial Evidence: Credibility—Impeachment: Rehabilitation: Prior Consistent Statement
A party may not ordinarily rehabilitate a witness by showing a prior consistent statement. This is true even when the witness has been impeached by showing a prior inconsistent statement. But if the testimony of the witness has been attacked by an express or implied charge that the witness is LYING OR EXAGGERATING because of some motive, a previous consistent statement is admissible to rebut this evidence. This previous statement also is substantive evidence of the truth of its contents, whether or not made under oath.
Testimonial Evidence: Objections
Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible matter. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible. At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.
Exam Tip
Failure to object is deemed a waiver of any ground for objection. Thus, if no objection is made, otherwise inadmissible evidence will be admitted.
Testimonial Evidence: Specificity of Objection: General Objections
A sustained general objection (one that does not state the grounds of the objection) will be upheld on appeal if there was any ground for the objection. An overruled general objection will be upheld on appeal unless the evidence was not admissible under any circumstances for any purpose.
Testimonial Evidence: Specificity of Objections: Specific Objections
A sustained specific objection, which states the reason for the objection, will be upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so.
Testimonial Evidence: Specificity of Objections: “Opening the Door”
One who introduces evidence on a particular subject thereby asserts it relevance and cannot complain if his adversary thereafter offers evidence on the same subject.
Testimonial Evidence: Introducing Part of Transaction
Where part of a conversation, act, or writing is introduced into evidence, the adverse may require the proponent of the evidence to introduce any other part that ought in fairness to be considered.
Testimonial Evidence: Objections: Motion to Strike—Unresponsive Answers
Examining counsel may move to strike an unresponsive, but opposing counsel may not.
Testimonial Evidence: Objections, Exceptions, and Offers of Proof: Exceptions
It is not necessary for a party to “except” from a trial ruling in order to preserve the issue for appeal in most states.
Testimonial Evidence: Objections, Exceptions, and Offers of Proof: Offers of Proof
An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer’s narration, or tangible evidence marked and offered.
Testimonial Privileges
Testimonial privileges permit one to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings.
Testimonial Privileges: Federal Rules—No Specific Provisions
The Federal Rules have no specific privilege provisions; privilege in federal courts is governed by common law principles as interpreted by the courts. The federal courts currently recognize the attorney-client privilege, the privilege for spousal communications, and the psychotherapist/social worker-client privilege. In DIVERSITY cases, the state law of privilege applies.
Testimonial Privileges: Person Who May Assert Privilege
A privilege is personal to the holder; i.e., it generally may be asserted only by the holder. Sometimes the person with whom the confidence was shared may assert the privilege on the holder’s behalf.
Testimonial Privileges: Confidentiality
To be privileged, a communication must be shown presumed to have been made in confidence.
Testimonial Privileges: Comment on Privilege Forbidden
Neither counsel for the parties nor the judge may comment on a claim of privilege.
Testimonial Privileges: Waiver
Any privilege is waived by:
1. Failure to claim the privilege;
2. Voluntary disclosure of the privileged matter by the privilege holder; or
3. A contractual provision waiving in advance the right to claim a privilege.
Testimonial Privileges: Exam Tip
A privilege is not waived when someone wrongfully discloses information without the privilege holder’s consent. Similarly, a waiver by one joint holder does not affect the right of the other holder to assert the privilege.
Testimonial Privileges: Eavesdroppers
A privilege based on confidential communications is not abrogated because it was overheard by someone whose presence is unknown to the parties. Under the modern view, in the absence of negligence by the one claiming privilege, even the eavesdropper would be prohibited from testifying.
Testimonial Privileges: Attorney-Client Privilege
Communications between an attorney and client, made during professional consultation, are privileged from disclosure.
Testimonial Privileges: Attorney-Client Privilege: Attorney-Client Relationship
The client must be seeking the professional services of the attorney at the time of the communication. Disclosures made before the attorney accepts or declines the case are covered by the privilege.
Testimonial Privileges: Attorney-Client Privilege: Attorney-Client Relationship: Corporate Clients
Corporations are “clients” within the meaning of the privilege, and statements by corporate officials or employees to an attorney are protected if the employees were authorized by the corporation to make such statements.
Testimonial Privileges: Attorney-Client Privilege: Confidential Communication
To be protected, the communication must be confidential (i.e., not intended to be disclosed to third parties), but representatives of the attorney or client may be present without destroying the privilege; otherwise, communications made in the known presence and hearing of a stranger are not privileged.
Testimonial Privileges: Attorney-Client Privilege: Communications through Agents
Communications made to third persons (e.g., secretaries, messengers, accountants) are confidential and covered by the privilege if necessary to transmit information between the attorney and client.
Exam Tip
A favorite exam topic involves communications between a client and a doctor during an examination made at the attorney’s request. Be careful—the physician-patient privilege does not apply because no treatment is contemplated. The attorney-client privilege will apply, however, as long as the doctor is not called as an expert witness.
Testimonial Privileges: Attorney-Client Privilege: Confidential Communication: No Privilege Where Attorney Acts for Both Parties
Where an attorney acts for both parties to a transaction, no privilege can be invoked in a lawsuit between the two parties, but the privilege can be claimed in a suit between either or both of the two parties and third persons.
Testimonial Privileges: Attorney-Client Privilege: Client Holds Privilege
The client holds the privilege, and she alone may waive it. The attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence.
Waiver of the Attorney-Client Privilege in NY
NY adds the following to the majority rule: A PLEA OF INNOCENCE BY REASON OF INSANITY constitutes a complete and effective WAIVER of any claim of privilege, including attorney-client privilege.
Testimonial Privileges: Attorney-Client Privilege: Privilege Applies Indefinitely
The attorney-client privilege applies indefinitely. The privilege even continues to apply after the client’s death.
Testimonial Privileges: Attorney-Client Privilege: When the Privilege Does not Apply
There are three significant exceptions to the attorney-client privilege. There is no privilege:
1. If the attorney’s services were sought to aid in the planning or commission of something the CLIENT SHOULD HAVE KNOWN WAS A CRIME OR FRAUD;
2. Regarding a communication relevant to an issue between PARTIES CLAIMING THROUGH THE SAME DECEASED CLIENT; and
3. For a communication relevant to an issue of breach of duty in a DISPUTE BETWEEN THE ATTORNEY AND CLIENT.
Nonapplicability of the Attorney-Client Privilege in NY
NY adds the following to the majority rule:
1. An attorney is required to disclose information regarding the preparation, execution, and revocation of ANY WILL or relevant document in actions involving probate, validity, or construction of a will. (Note: An attorney is not required to disclose communications that would disgrace the memory of the decedent.)
2. An attorney can be required to reveal the IDENTITY OF HIS CLIENT UNLESS identity was INTENDED—for good cause—to be CONFIDENTIAL.
3. In a custody battle, an attorney must divulge the WHEREABOUTS OF A CLIENT WHO HAS ABSCONDED WITH THE CHILD.
Testimonial Privileges: Attorney-Client Privilege: Attorney’s Work Product
Although documents prepared by an attorney for his own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity.
Testimonial Privileges: Attorney-Client Privilege: Limitations on Waiver of Attorney-Client Privilege and Work Product Rule
A voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection ONLY WITH RESPECT TO THE DISCLOSED MATERIAL. Undisclosed privileged material is subject to the waiver only if the waiver is INTENTIONAL., the disclosed and undisclosed material concern the SAME SUBJECT MATTER, and the material should be considered together TO AVOID UNFAIRNESS. There is no waiver if the disclosure was INADVERTENT and the holder took reasonable steps to prevent disclosure and rectify the error.
Exam Tip
Look for fact patterns on an exam where a party discloses, e.g., documents during discovery that would ordinarily be privileged under the attorney-client privilege or work product rule. If the disclosure is the result of an INNOCENT MISTAKE, then there is NO WAIVER. However, if the documents were VOLUNTARILY DISCLOSED, then a waiver is effective with respect to THOSE DOCUMENTS ONLY, unless the disclosing party intentionally waived protection of other privileged material that concerns the same subject matter and of which disclosure is necessary to prevent unfairness to the opposing party.
Testimonial Privileges: Physician-Patient Privilege
The physician-patient privilege belongs to the patient, and he may decide to claim or waive it. Confidential communications between a patient and his physician are privileged, provided that:
1. A PROFESSIONAL RELATIONSHIP exists;
2. The information is acquired while attending the patient in the COURSE OF TREATMENT; and
3. The information is NECESSARY FOR TREATMENT (nonmedical information is not privileged.)
Testimonial Privileges: Physician-Patient Privilege: When the Privilege Does Not Apply
The physician-patient privilege does not apply (or is impliedly waived) if:
1. The PATIENT PUTS HIS PHYSICAL CONDITION IN ISSUE (e.g., personal injury suit);
2. The physician’s assistance was sought to AID WRONGDOING (e.g., commission of crime or tort);
3. The communication is relevant to an issue of breach of duty in a DISPUTE BETWEEN THE PHYSICIAN AND PATIENT;
4. The patient AGREED by contract (e.g., insurance policy) to waive the privilege; or
5. It is a FEDERAL CASE APPLYING THE FEDERAL LAW OF PRIVILEGE.
Nonapplicability of the Physician-Patient Privilege in NY
NY adds the following to the majority rule:
1. State and federal recordkeeping and reporting requirements regarding Medicaid patients supersede the privilege to the extent necessary to satisfy the public interest in proper use of Medicaid funds;
2. A dentist is required to disclose information necessary for identification of a patient; and
3. A physician, dentist, chiropractor, or nurse is required to disclose information indicating that a patient under the age of 16 has been the victim of a crime.
Testimonial Privileges: Physician-Patient Privilege: Criminal Proceedings
In some states, the privilege applies in both civil and criminal cases. In a number of others, it cannot be invoked in criminal cases generally. In still other states, the privilege is denied in felony cases, and in a few states, it is denied only in homicide cases.
Physician-Patient Privilege—Criminal Proceedings in NY
In NY, the privilege is applicable in criminal cases.
Patient Holds the Physician-Patient Privilege in NY
If the patient is DEAD, the physician is required to disclose if:
1. There is NO OBJECTION;
2. The privilege has been WAIVED by the personal representative, surviving spouse, or next of kin;
3. In litigation, the INTERESTS OF THE PERSONAL REPRESENTATIVE ARE ADVERSE to those of the decedent’s estate AND the privilege is WAIVED by any interested party; or
4. Where the VALIDITY of the decedent’s will is in question, the privilege is WAIVED by the executor named in the will, surviving spouse, or any heir at law, next of kind, or interested party.
Exam Tip
Remember that when a psychiatrist is the doctor involved, the applicable privilege is the psychotherapist-client privilege, which is more widely accepted in all proceedings than is the physician-patient privilege.
Testimonial Privileges: Psychotherapist/Social Worker-Client Privilege
The United States Supreme Court recognizes a federal privilege for communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and his client. Thus, the federal courts and virtually all of the states recognize a privilege for this type of confidential communication. In most particulars, this privilege operates in the same manner as the attorney-client privilege.
Psychologist/Psychotherapist/Social Worker-Client Privilege in NY
A psychologist, psychotherapist, social worker, and their support staff may NOT reveal communications with, or advice given to, a client EXCEPT where the client is a CHILD UNDER AGE 16 who has been the VICTIM OF A CRIME.
Rape Crisis Counselor Privilege in NY
Same as the social worker privilege, except that there is NO EXCEPTION here where the client is UNDER THE AGE OF 16.
Testimonial Privileges: Husband-Wife Privilege: Spousal Immunity
When the privilege of spousal immunity is invoked, a married persons whose spouse is a defendant in a CRIMINAL case may not be called as a witness by the prosecution. Morever, a married person may not be compelled to TESTIFY against his spouse in ANY CRIMINAL PROCEEDING, regardless of whether the spouse is the defendant. There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage.
Spousal Immunity in NY
NY does NOT recognize spousal immunity.

EXCEPTIONS (See Domestic Relations):
1. Neither spouse is competent to testify against the other in an action founded upon ADULTERY EXCEPT to PROVE THE MARRIAGE, DISPROVE THE ADULTERY, OR DISPROVE A DEFENSE after evidence tending to prove such defense has been introduced; and
2. Neither spouse is competent to testify to NONACCESS during wedlock where the effect would be to show the illegitimacy of a child EXCEPT in a FILIATION PROCEEDING if the complainant mother is married, or in a proceeding to ENFORCE SUPPORT FOR A CHILD.
Testimonial Privileges: Husband-Wife Privilege: Spousal Immunity: Who Holds the Privilege
In federal court, the privilege belongs to the witness-spouse. Thus, the witness-spouse cannot be compelled to testify, but may choose to do so. (In some state courts, the privilege belongs to the party-spouse.)
Testimonial Privileges: Husband-Wife Privilege: Privilege for Confidential Marital Communications
In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged. For this privilege to apply, the MARITAL REALTIONSHIP MUST EXIST when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged. In addition, the communication must be MADE IN RELIANCE UPON THE INTIMACY of the marital relationship (confidential).
Testimonial Privileges: Husband-Wife Privilege: When Neither Marital Privileges Applies
Neither privilege applies in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children.
Testimonial Privileges: Privilege Against Self-Incrimination
Under the Fifth Amendment to the Constitution, a witness cannot be compelled to testify against himself. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime.
Testimonial Privileges: Clergy or Accountant Privilege
A privilege exists for statements made to a member of the clergy or an accountant, the elements of which are very similar to the attorney-client privilege.
Testimonial Privileges: Professional Journalist Privilege
There is a no constitutional right for a professional journalist to protect his source of information, so any privilege in this area is limited to individual state statutes on the subject.
Professional Journalist Privilege in NY
NY affords ABSOLUTE statutory protection for CONFIDENTIAL news that is published or broadcast, including the identity of the source of such news.

QUALIFIED protection exists for UNPUBLISHED information NOT OBTAINED IN CONFIDENCE, UNLESS the party seeking the news has made a clear and specific showing that the news is:
1. Highly material and relevant;
2. Critical or necessary to the maintenance of a party’s claim or defense; and
3. Not obtainable from any alternative source.

Note: The privilege also applies to a supervisor and an employer of the journalist. The privilege is waived if anyone entitled to claim it voluntarily discloses the information to someone who is not entitled to claim the privilege.
Testimonial Privileges: Governmental Privileges
Official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government. No privilege exists if the identity of the informer is voluntarily disclosed by a holder of the privilege.
Exclusion and Sequestration of Witnesses
Upon a party’s request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion. The judge, however, may not exclude:
1. A party or a designated officer or employee of a party,
2. A person whose presence is essential to the presentation of a party’s case, or
3. A person statutorily authorized to be present.
Exclusion and Sequestration of Witnesses in NY
The sequestration of witnesses is not mandatory; it has always been in the trial court’s discretion. However, both criminal defendants and parties in civil actions have a constitutional right to be present in the courtroom.
The Hearsay Rule: Statement of the Rule
The Federal Rules define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant.
Exam Tip
An out-of-court statement that incorporates other hearsay within it (“hearsay within hearsay” or “double hearsay”) is admissible only if BOTH the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
The Hearsay Rule: “Statement”
For purposes of the hearsay rule, a “statement” is:
1. An oral or written assertion, or
2. Nonverbal conduct intended as an assertion (e.g., nod of the head).
The Hearsay Rule: “Offered to Prove the Truth of the Matter”
If the out-of-court statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine the declarant; so the statement is not hearsay. The following out-of-court statements are NOT HEARSAY:
1. VERBAL ACTS OR LEGALLY OPERATIVE FACTS (e.g., words of contract; defamatory words);
2. Statements offered to show their EFFECT ON THE HEARER OR READER (e.g., to prove notice in negligence case); and
3. Statements offered as CIRCUMSTANTIAL EVIDENCE OF DECLARANT’S STATE OF MIND (e.g., evidence of insanity or knowledge).
Exam Tip
Do not confuse statements offered as circumstantial evidence of declarant’s state of mind, which are almost always offered as evidence of insanity or knowledge, with statements that merely reflect directly on declarant’s state of mind, which are usually offered to establish intent. The former is not hearsay, while the latter is hearsay subject to a specific exception.
Exam Tip
In deciding whether evidence is hearsay, ask yourself whether we are relying on the declarant’s credibility; i.e., does it matter whether the declarant is telling the truth? If not, the evidence is not hearsay.
The Hearsay Rule: Nonhuman Declarations
There is no such thing as ANIMAL or MACHINE hearsay; there must be an out-of-court statement by a PERSON. Thus, testimony about what a radar gun “said” or what a drug-sniffing dog did is not hearsay (but still must be relevant and authenticated to be admitted).
Statements that are Nonhearsay Under the Federal Rules
Despite meeting the common law definition of hearsay, the following statements are not hearsay under the Federal Rules and are, therefore, admissible as substantive evidence:
1. Prior Statements by Witness
2. Admissions by Party-Opponent
Statements that are Nonhearsay Under the Federal Rules: Prior Statements by Witness
Under the Federal Rules, a prior statement by a witness is not hearsay if:
1. The prior statement is INCONSISTENT with the declarant’s in-court testimony and was GIVEN UNDER OATH at a prior proceeding;
2. The prior statement is CONSISTENT with the declarant’s in-court testimony and is OFFERED TO REBUT a charge that the witness is LYING OR EXAGGERATING because of some motive (and the statement was made before any motive to lie or exaggerate arose); or
3. The prior statement is one of IDENTIFICATION of a person made after perceiving him.
Statements that Are Nonhearsay Under the Federal Rules: Prior Inconsistent Statement in NY
Prior inconsistent statements made IN WRITING AND SIGNED OR UNDER OATH are ADMISSIBLE IN BOTH CIVIL AND CRIMINAL CASES to impeach a witness’s testimony. Prior inconsistent statements are NOT ADMISSIBLE AS SUBSTANTIVE EVIDENCE IN CRIMINAL CASES. Limited authority indicates that in civil cases, prior inconsistent statements are admissible as substantive evidence in establishing a party’s case-in-chief.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent
An admission is a statement made or act that amounts to a prior acknowledgment by one of the parties of one of the relevant facts. Admissions of a party-opponent are not hearsay under the Federal Rules. To be an admission, the statement need not have been against the declarant’s interest when made, and may even be in the form of an opinion. Personal knowledge is not required; the admission may be predicated on hearsay.
Admissions by Party-Opponent in NY
In NY, admissions by a party-opponent are an EXCEPTION to the hearsay rule (Under the FRE, they are nonhearsay).
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Judicial and Extrajudicial Admissions
FORMAL judicial admissions (e.g., in pleadings, stipulations, etc.) are conclusive. INFORMAL judicial admissions made during testimony and EXTRAJUDICIAL (evidentiary) admissions are not conclusive and can be explained.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Adoptive Admissions
A party may make an admission by expressly or impliedly adopting or acquiescing in the statement of another.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Adoptive Admissions: Silence
If a reasonable person would have responded, and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission. Silence is treated as an admission only if:
1. The party HEARD AND UNDERSTOOD the statement;
2. The party was physically and mentally CAPABLE OF DENYING the statement; and
3. A REASONABLE PERSON WOULD HAVE DENIED the accusation.

Note that silence in the face of accusations by police in a CRIMINAL CASE is almost never considered an admission of a crime.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Vicarious Admissions: Co-Parties
Admissions of a party are not receivable against her co-parties merely because they happen to be joined as parties.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Vicarious Admissions: Authorized Spokesperson
The statement of a person authorized by a party to speak on its behalf (e.g., statement by company’s press agent) can be admitted against the party as an admission.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Vicarious Admissions: Principal-Agent
Statements by an agent concerning any matter within the scope of her agency, made while the employment relationship exists, are not hearsay and are admissible against the principal.
Vicarious Admissions—Principal-Agent in NY
Vicarious admissions by an agent are HEARSAY. An employee’s statement may NOT be used against her employer UNLESS the employee stands high enough in the hierarchy of the employer’s organization to have “speaking authority” (i.e., an authorized spokesperson).
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Vicarious Admissions: Partners
After a partnership is shown to exist, an admission of one partner relating to matters within the scope of the partnership business is binding upon her co-partners.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Vicarious Admissions: Co-Conspirators
Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. Under the Federal Rules, the court may use the co-conspirator’s statement itself, together with other evidence, to determine whether the statement is admissible (i.e., the proponent is not limited only to independent evidence to show that the conspiracy existed and that the declarant and party were participants.
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Vicarious Admissions: Privies in Title and Joint Tenants—State Courts Only
In most state courts, admissions of each joint owner are admissible against the other, and admissions of a former owner of real property made at the time she held title are admissible against those claiming under her (grantees, heirs, etc.). These statements are not considered admissions under the Federal Rules, but may be admissible under one of the hearsay exceptions (e.g., statement against interest).
Statements that are Nonhearsay Under the Federal Rules: Admissions by Party-Opponent: Vicarious Admissions: Preliminary Determinations
Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered. In making such a determination, the court MUST CONSIDER THE CONTENTS OF THE STATEMENT, but the statement alone is not sufficient to establish the required relationship.
Hearsay Exceptions—Declarant Unavailable
There are five important exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify.
Hearsay Exceptions—Declarant Unavailable: “Unavailability”
A declarant is unavailable if he:
1. Is exempt from testifying because of PRIVILEGE;
2. REFUSES TO TESTIFY concerning the statement despite a court order;
3. Testifies to LACK OF MEMORY of the subject matter of the statement;
4. Is unable to testify due to DEATH OR PHYSICAL OR MENTAL ILLNESS; or
5. Is ABSENT (beyond the reach of the court’s subpoena), and the proponent is unable to procure his attendance by reasonable means.
“Unavailability” Defined in NY
NY follows the FRE, EXCEPT NY does NOT recognize a witness who:
1. REFUSES to testify despite court order; or
2. Testifies to LACK OF MEMORY of the subject matter.

Note: There is authority in NY that defines “unavailability” as including the inability to testify because of the Dead Man Act.
Hearsay Exceptions—Declarant Unavailable: Former Testimony
The testimony of a now-unavailable witness, given at another hearing or deposition, is admissible if:

1. The party against whom the testimony is offered or (in a civil case) the party’s predecessor in interest was a PARTY IN THE FORMER ACTION (“predecessor in interest” includes grantor-grantee and other privity relationships);
2. The former action involved the SAME SUBJECT MATTER (causes of action need not be identical);
3. The testimony was given UNDER OATH; and
4. The party against whom the testimony is offered had an OPPORTUNITY AT THE PRIOR PROCEEDING TO DEVELOP THE DECLARANT’S TESTIMONY (i.e., by direct, cross, or redirect examination).
Former Testimony in Civil Proceedings in NY
NY generally follows the FRE, except NY adds the following when defining “unavailability” with respect to former testimony:
1. The witness is located 100 miles from the courthouse or is out of state;
2. The witness is unable to attend due to age, sickness, infirmity, or imprisonment; and
3. “Exceptional circumstances” exist.

Furthermore, NY permits the prior testimony of a PHYSICIAN to be used by any party, without the need to show unavailability or special circumstances.
Former Testimony Use in Criminal Proceedings in NY
The rules governing the use of former testimony in criminal proceedings are substantially the same as the rules governing civil cases except:
1. The DEFENDANT and the CHARGE in the former and the present proceedings must be the SAME;
2. If the trial judge finds that a grand jury witness’s UNAVAILABILITY IS DUE TO THE DEFENDANT’S UNLAWFUL CONDUCT, the trial jury may hear the witness’s grand jury testimony provided that the prosecution first proves the defendant’s “fault” by clear and convincing evidence; and
3. If the former testimony is from a conditional deposition or a hearing on a felony complaint.
Exam Tip
Because grand jury proceedings do not provide an opportunity for cross-examination, the GRAND JURY TESTIMONY of an unavailable declarant is not admissible against a defendant under the former testimony exception to the hearsay rule Be careful not to confuse this with a prior inconsistent statement given under oath by a witness currently testifying. Grand jury testimony is admissible in that case, both as impeachment and substantive evidence.
Hearsay Exceptions—Declarant Unavailable: Statements Against Interest
The statement of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest WHEN MADE, is admissible under the statement against interest exception to the hearsay rule. The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against her interest when she made it.
Hearsay Exceptions—Declarant Unavailable: Statements against Interest: Risk of Criminal Liability
In CRIMINAL CASES, the Federal Rules require CORROBORATING CIRCUMSTANCES indicating the trustworthiness of the statements.
Hearsay Exceptions—Declarant Unavailable: Statements against Interest: “Statement” means Single Remark
If a person makes a declaration containing statements that are against his interest (e.g., “I sold the drugs”) and statements that are not (e.g., “X runs the drug ring”), the exception covers only those remarks that inculpate the declarant, not the entire extended declaration.
Hearsay Exceptions—Declarant Unavailable: Dying Declarations—Statements Under Belief of Impending Death
In a HOMICIDE PROSECUTION OR A CIVIL ACTION, a statement made by a now unavailable declarant is admissible if:
1. The declarant BELIEVED HIS DEATH WAS IMMINENT (he need not actually die); and
2. The statement concerning the CAUSE OR CIRCUMSTANCES of what he believed to be his impending death.
Dying Declarations in NY
Dying declarations are admissible ONLY in a HOMICIDE case and only if they RELATE TO THE DECLARANT’S DEATH.
Exam Tip
The bar exam will likely require you to distinguish the Federal Rule on dying declarations from the traditional rule. Beware of answer choices reflecting the traditional rule, which required that the declarant ultimately die of the injury and restricted the statement’s use to homicide prosecutions.
Hearsay Exceptions—Declarant Unavailable: Statements of Personal or Family History
Statements by a now unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:
1. The declarant is a MEMBER OF THE FAMILY in question or intimately associated with it; and
2. The statements are based on the declarant’s PERSONAL KNOWLEDGE of the facts or her knowledge of family reputation.
Hearsay Exceptions—Declarant Unavailable: Statements Offered Against Party Procuring Declarant’s Unavailability
The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that INTENTIONALLY PROCURED THE DECLARANT’S UNAVAILABILITY.
Hearsay Exceptions—Declarant’s Availability Immaterial
The following exceptions to the hearsay rule do not require that the declarant be unavailable:

1. Present state of mind
2. Excited utterances
3. Present sense impressions
4. Declarations of Physical condition
5. Business Record
6. Past Recollection Recorded
7. Official Records and Other Official Writings
8. Ancient Documents and Documents Affecting Property Interests
9. Learned Treatises
10. Reputation
11. Family Records
12. Market Reports
Hearsay Exceptions—Declarant’s Availability Immaterial: Present State of Mind
A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condition is admissible. It is usually offered to establish a person’s intent or as circumstantial evidence that the intent was carried out. Except as to certain facts concerning the declarant’s will, however, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.
Hearsay Exceptions—Declarant’s Availability Immaterial: Excited Utterances
An out-of-court statement RELATING TO A STARTLING EVENT, made while under the stress of the excitement from the event (i.e., BEFORE THE DECLARANT HAD TIME TO REFLECT upon it), is admissible.
Hearsay Exceptions—Declarant’s Availability Immaterial: Present Sense Impressions
Comments made concurrently with the sense impression of an even that is not necessarily exciting may be admissible. There is little time for a calculated misstatement, and the contemporaneous nature of the statement makes it reliable.

NY: CORROBORATION is required.
Hearsay Exceptions—Declarant’s Availability Immaterial: Declarations of Physical Condition: Present Bodily Condition—Admissible
A spontaneous declaration of present bodily condition is admissible as an exception to the hearsay rule even though not made to a physician.

NY: Statements made to a LAY PERSON are NOT admissible unless the declarant is UNAVAILABLE.
Hearsay Exceptions—Declarant’s Availability Immaterial: Declarations of Physical Condition: Past Bodily Condition—Admissible if to Assist Diagnosis or Treatment
Generally, declarations of past physical condition are inadmissible hearsay. Under the Federal Rules, however, these declarations are admissible if made to medical personnel to assist in diagnosing or treating the condition. Even declarations about the cause or source of the condition are admissible if pertinent to diagnosis or treatment.

NY: The plaintiff’s statements made to medical personnel solely for the purpose of giving expert testimony are not admissible.
Exam Tip
Remember that, contrary to the majority state view, declarations of past physical condition made to a doctor employed to testify are ADMISSIBLE under the Federal Rules.
Hearsay Exceptions—Declarant’s Availability Business Records
Any writing or record made as a memorandum of any act or transaction is admissible in evidence as proof of that act or transaction.
Hearsay Exceptions—Declarant’s Availability Business Records: “Business”
“Business” includes every association, profession, occupation, or calling of any kind, whether or not conducted for profit.
Hearsay Exceptions—Declarant’s Availability Business Records: Entry Made in Regular Course of Business
To be admissible, it must appear that the record was made in the course of a regularly conducted business activity, and that it was customary to make the type of entry involved (i.e., the entrant had a duty to make the entry). Self-serving accident reports prepared primarily for litigation usually are inadmissible.
Hearsay Exceptions—Declarant’s Availability Business Records: Personal Knowledge
The business record must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a DUTY to transmit such matters to the entrant.
Exam Tip
Watch for fact patterns involving police reports containing the statements of witnesses. While police reports may qualify as business records under some circumstances, remember that generally witnesses, or even parties, are not under a business duty to convey information to the police. Therefore, a report containing their statements cannot qualify as a business record, although it may be admissible under another exception or as an admission.
Hearsay Exceptions—Declarant’s Availability Immaterial: Business Records: Entry Made Near Time of Event
The entry must be made at or near the time of the transaction.
Hearsay Exceptions—Declarant’s Availability Immaterial: Business Records: Authentication
The authenticity of the record must be established. This can be accomplished by the custodian:
1. TESTIFYING that the record is a business record, or
2. CERTIFYING IN WRITING that the record is a business record.
Business Records—Records Prepared for Litigation in NY
Accident reports prepared IN THE REGULAR COURSE OF BUSINESS OPERATIONS or practice are ADMISSIBLE in NY, EVEN IF made in anticipation of future litigation.
Exam Tip
Business records may be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters.
Hearsay Exceptions—Declarant’s Availability Immaterial: Past Recollection Recorded
If the witness’s memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. The writing itself is not admissible; it must be read to the jury.
Hearsay Exceptions—Declarant’s Availability Immaterial: Official Records and Other Official Writings: Public Records and Reports
The following are admissible: records setting forth the acitivities of the office or agency; recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases); or in civil actions and AGAINST THE GOVERNMENT IN CRIMINAL CASES, records of factual findings resulting from an investigation authorized by law. The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.
Public Records and Reports in NY
The New York statutory exception for public records requires that the record be:
1. Made by a public officer;
2. In the form of a certificate or affidavit;
3. Authorized or required by special provision of law;
4. Made in the course of the officer’s official duty;
5. Concerning a fact ascertained or act performed by the officer; AND
6. Filed with the public records division.

Note that most police reports of accidents are admitted, if at all, under the business records exception rather than the public records exception.
Exam Tip
Police reports that do not qualify as business records may be admitted under the public records and reports exception. Even the officer’s opinions and factual (not legal) conclusions would be admissible under this exception. Be careful, however, to test the statements of others contained in the report to make sure they are admissible under a hearsay exception; otherwise, those statements will be excluded even if the report is admitted.
Exam Tip
Remember that public records and reports generally are NOT ADMISSIBLE AGAINST THE DEFENDANT IN A CRIMINAL CASE. This means that investigative report by the police, FBI, and other agencies are inadmissible in this situation.
Hearsay Exceptions—Declarant’s Availability Immaterial: Official Records and Other Official Writings: Records of Vital Statistics
Records of vital statistics are admissible if the report was made to a public officer pursuant to requirements of law.
Hearsay Exceptions—Declarant’s Availability Immaterial: Official Records and Other Official Writings: Statement of Absence of Public Records
Evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur.
Hearsay Exceptions—Declarant’s Availability Immaterial: Official Records and Other Official Writings: Judgments
A certified copy of a judgment is always admissible proof that such judgment has been entered.
Hearsay Exceptions—Declarant’s Availability Immaterial: Official Records and Other Official Writings: Judgments: Prior Criminal Conviction—Felony Conviction Admissible
Under the Federal Rules, a judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment. In a criminal case, however, the government may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others.
Hearsay Exceptions—Declarant’s Availability Immaterial: Official Records and Other Official Writings: Judgments: Prior Criminal Acquittal—Excluded
The exclusionary rule is still applied to records of prior acquittals.
Hearsay Exceptions—Declarant’s Availability Immaterial: Official Records and Other Official Writings: Judgments: Judgment in Former Civil Case
A civil judgment is clearly inadmissible in a subsequent criminal proceeding and generally inadmissible in subsequent civil proceeding.
Official Records and Other Official Writings in NY
By statute, NY also recognizes the following exceptions:
1. Ancient filed maps;
2. Records of out-of-state real estate;
3. Marriage certificates;
4. Presumption of death;
5. Weather reports;
6. Agricultural inspection certificates; and
7. Certificates of population.

(This is not an exhaustive list)
Hearsay Exceptions—Declarant’s Availability Immaterial: Ancient Documents and Document Affecting Property Interests
Under the Federal Rules, statements in any authenticated document 20 YEARS OLD OR MORE are admissible, as are statements in ANY DOCUMENT AFFECTING AN INTEREST IN PROPERTY, regardless of age.
Hearsay Exceptions—Declarant’s Availability Immaterial: Learned Treatises
Treatises are admissible as substantive proof under the Federal Rules if:

1. Called to the attention of, or relied upon by, an expert witness; and
2. Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice.

NY: The use of learned treatises is confined to impeachment of expert witnesses. There is NO LEARNED TREATISE EXCEPTION to the hearsay rule in NY.
Hearsay Exceptions—Declarant’s Availability Immaterial: Reputation
Reputation evidence is admissible, under several exception to the hearsay rule, as evidence of the following:
1. Character;
2. Personal or family history;
3. Land boundaries; and
4. A community’s general history.
Hearsay Exceptions—Declarant’s Availability Immaterial: Family Records
Statements of fact of concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.
Hearsay Exceptions—Declarant’s Availability Immaterial: Market Reports
Market reports and other published complications are admissible if generally used and relied upon by the public or by persons in particular occupation.
Residual “Catch-All” Exception of Federal Rules
For a hearsay statement that is not covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception, which requires:

1. That the hearsay statement possess circumstantial guarantees of TRUSTWORTHINESS;
2. That the statement be strictly NECESSARY; and
3. That NOTICE be given the adversary as to the nature of the statement.

NY: NY does NOT recognize an express residual or catch-all exception. However, courts will sometimes admit hearsay that is especially trustworthy even if the statement does not fit within a specified exception.
Constitutional Issues
Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) when:
1. The statement if offered AGAINST THE ACCUSED IN A CRIMINAL CASE;
2. The declarant is UNAVAILABLE;
3. The statement was “TESTIMONIAL” IN NATURE; and
4. The accused had NO OPPORTUNITY TO CROSS-EXAMINE the declarant’s testimonial statement prior to trial.

However, the defendant forfeits his right of confrontation if he committed a wrongful act that was intended to keep the witness from testifying.
Constitutional Issues: “Testimonial” Statement: Statements Made in the Course Police Interrogation
If the primary purpose of police interrogation is to ENABLE THE POLICE TO HELP IN AN ONGOING EMERGENCY (e.g., 911 call during ongoing crime), statements made in the course of the negotiation are NONTESTIMONIAL. When the primary purpose of the interrogation is to ESTABLISH OR PROVE PAST EVENTS POTENTIALLY RELEVANT TO A LATER CRIMINAL INVESTIGATION (e.g., statements to police describing a crime after it has concluded), statements are TESTIMONIAL.
Constitutional Issues: “Testimonial” Statement: Affidavits or Written Reports of Forensic Analysis
Affidavits, certificates, or other written reports that summarize the findings of forensic analysis (e.g., fingerprint test results) are TESTIMONIAL and may not be admitted unless the analyst is unavailable and the defendant previously had an opportunity to cross-examine. The testimony of the analyst’s supervisor who was not involved in the testing is not sufficient to admit the results.
Constitutional Issues: Due Process Rights
Hearsay rules and other exclusionary rules cannot be applied where such application would deprive the accused of her right to a fair trial or deny her to compulsory process.
Procedural Considerations: Burdens of Proof
The burden of proof encompasses the burden of producing or going forward with the evidence and the burden of persuasion.
Procedural Considerations: Burdens of Proof: Burden of Producing Evidence
The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (i.e., create a fact question of the issue for the trier of fact). Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.
Procedural Considerations: Burdens of Proof: Burden of Persuasion (Proof)
After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persuasion for civil cases is usually by a preponderance of the evidence (more probably true than not true), although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.
Procedural Considerations: Burdens of Proof: Clear and Convincing Proof in NY
Proof by clear and convincing evidence is specifically required in the following instances:
1. To prove fraud;
2. In actions to recover on a contract to render services to one now deceased;
3. To prove mistake;
4. To prove that a gift of property has been made by one now deceased;
5. To establish grounds for reformation or rescission;
6. To establish paternity; and
7. To establish a claim for adverse possession.
Presumptions
A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.
Presumptions: Adverse Inference Based on Missing Witness Instruction in NY
This instruction allows a jury to draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events. To satisfy the instruction, three preconditions must be met:
1. The witness’s KNOWLEDGE must be MATERIAL to the trial;
2. The witness must be expected to give noncumulative testimony FAVORABLE to the party against whom the instruction is sought (the CONTROL element); and
3. The witness must be AVAILABLE to that party.
Presumptions: Effect—Shift Burden of Production
A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates.
Exam Tip
Remember that a presumption DOES NOT SHIFT THE BURDEN OF PERSUASION. The burden of persuasion remains on the same party throughout a trial.
Presumptions: Rebutting a Presumption
A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed the fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.
Presumptions: Distinguish True Presumptions from Inferences and Substantive Law
True presumptions are the rebuttable type discussed above. Be careful not to confuse them with inferences and rules of substantive law.
Presumptions: Distinguish True Presumptions from Inferences and Substantive Law: Permissible Inferences
A permissible inference may allow the party to meet his burden of production (e.g., establish a prima facie case), but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitor, the inference that destroyed evidence was unfavorable to the spoliator, and the inference of undue influence when a will’s drafter is also the principal beneficiary.
Presumptions: Distinguish True Presumptions from Inferences and Substantive Law: “Presumptions” in Criminal Cases
The presumption of innocence is criminal cases is merely a permissible inference. The burden of production never shifts to the accused.
Exam Tip
Special considerations apply when true presumptions arise in the criminal context. The judge cannot instruct the jury that it MUST find a presumed fact against the accused; he must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.
Exam Tip
If, in a criminal case, a presumed fact establishes guilt, is an element of the offense, or negates a defense it must be proved beyond a reasonable doubt.
Presumptions: Distinguish True Presumptions from Inferences and Substantive Law: Conclusive Presumptions
Because it cannot be rebutted, a conclusive presumption (e.g., that a child under age seven cannot commit a crime) is really a rule of substantive law.
Presumptions: Specific Presumptions
The following are common rebuttable presumptions:
1. Legitimacy
2. Against Suicide
3. Sanity
4. Death from Absence
5. Ownership of Car—Agent Driver
6. Chastity
7. Regularity
8. Continuance
9. Mail Delivery
10. Bailee’s Negligence
11. Marriage
Presumptions: Specific Presumptions: Legitimacy
Every person is presumed to be legitimate.
Presumptions: Specific Presumptions: Against Suicide
When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.
Presumptions: Specific Presumptions: Sanity
Every person is presumed sane in civil and criminal cases until the contrary is shown.
Presumptions: Specific Presumptions: Death from Absence
If a person is unexplainably absent for a continuous period of seven years and he has not been heard from, he is presumed dead.

NY: Absence need only be for THREE YEARS, and a diligent search for the missing person is required.
Presumptions: Specific Presumptions: Ownership of Car—Agent Driver
Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent
Presumptions: Specific Presumptions: Chastity
Every person is presumed chaste and virtuous.
Presumptions: Specific Presumptions: Regularity
It is presumed that persons acting in an official office are properly performing their duties.
Presumptions: Specific Presumptions: Continuance
Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
Presumptions: Specific Presumptions: Mail Delivery
A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.
Presumptions: Specific Presumptions: Solvency
A person is presumed solvent, and every debt is presumed collectible.
Presumptions: Specific Presumptions: Bailee’s Negligence
Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.
Presumptions: Specific Presumptions: Marriage
Upon proof of a marriage ceremony, a marriage is presumed valid.
Conflicting Presumptions
When two or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.
Choice of Law Regarding Presumptions in Civil Actions
Under the Federal Rules, state law governs the effect of presumption concerning a fact that is an element of a claim or defense to which, under the ERIE doctrine, the rule of decision is supplied by state law.
Relationship of Parties, Judge, and Jury: Allocation of Responsibilities
In our adversarial adjudicative process, the focus is on the party’s responsibility to frame the issues in a litigation and to assume the burden of proving the issues he has raised. The trial judge’s primary responsibility is to superintend the trial fairly. As a general rule, questions of law are for the trial judge to determine and questions of fact are for the jury.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility
In most cases, the existence of some preliminary or foundational fact is an essential condition to the admissibility of proffered evidence. The Federal Rules distinguish preliminary facts to be decided by the jury from those to be decided by the judge on the ground that the former questions involve the relevancy of the proffered evidence, while the latter questions involve the competency of evidence that is relevant.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Preliminary Facts Decided by Jury
Examples of preliminary facts to be decided by the jury include agency, authenticity of a document, credibility of a witness, and personal knowledge.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Preliminary Facts Decided by Judge
Facts affecting the competency of the evidence must be determined by the trial judge. Requirements for hearsay exceptions, privileges, and expert testimony, as well as mental competence must also be decided by the judge..
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Preliminary Facts Decided by Judge: What Evidence May be Considered
The Federal Rules permit the trial judge to consider any relevant evidence even though not otherwise admissible under the rules of evidence. Most state courts, however, hold that the rules of evidence apply in preliminary fact determinations as much as in any other phase of the trial; thus, only admissible evidence may be considered.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Preliminary Facts Decided by Judge: Presence of Jury
Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Testimony by Accused Does Not Waive Privilege Against Self-Incrimination
An accused may testify on any preliminary matter (e.g., circumstances surrounding an allegedly illegal search)) without subjecting herself to testifying at trial.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Judicial Power to comment upon Evidence
A judge may comment on the weight of the evidence in federal courts, but generally not in state courts.

NY: The trial judge may NOT comment upon evidence.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Power to Call Witnesses
A judge may call and interrogate witnesses on her own initiative.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Rulings
A trial judge has an obligation to rule promptly on counsel’s evidentiary objections and, upon request, to state the grounds for her rulings.
Relationship of Parties, Judge, and Jury: Preliminary Determination of Admissibility: Instructions on Limited Admissibility of Evidence
A judge will restrict evidence to its proper scope and instruct the jury accordingly.
Corroboration in NY: Confessions
A confession alone is not sufficient to support a criminal conviction; CORROBORATION IS REQUIRED.