Evidence - Ny Bar

Front 1

3 major Evidence topics?

Back 1

1. Relevance

2. Witnesses (impeachment)

3. Hearsay

Front 2

4 minor Evidence topics?

Back 2

1. Judicial Notice

2. Documentary Evidence

3. Real Evidence

4. Privileges

Front 3

Relevance?

Back 3

Any tendency to make a material fact more probable or less probable than would be the case without the evidence.

Front 4

Rule for Relevance?

Exception?

Back 4

All relevant evidence is admissible.

Unless the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations.

Front 5

3 important pragmatic considerations?

Back 5

1. Unfair prejudice (most important)

2. Confusion

3. Waste of time

Front 6

Policy based exclusions of relevant evidence?

Back 6

(1) Balancing relevance with pragmatic considerations, AND

(2) Encouraging beneficial out-of-court conduct.

Front 7

What are the 5 policy based exclusions of relevant evidence?

Back 7

1. Liability Insurance.

2. Subsequent Remedial Measures.

3. Settlements in Civil Cases.

4. Offer to Pay Hospital or Medical Expenses.

5. Pleas or Plea Discussions in Criminal Cases.

Front 8

What is the policy based exclusion rule for liability insurance?

What is the exception?

Back 8

Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving fault or absence of fault.

Such evidence may be admissible for some other relevant purpose, such as; (1) proof of ownership or control, if that issue is controverted (in dispute), OR (2) impeachment of a witness.

Front 9

What is the KEY concept regarding evidence admissibility?

Back 9

Purpose for which the evidence was offered.

To repeat – purpose is key!

Front 10

Duel Purpose Evidence?

Back 10

Limiting instruction, but generally allow it to come in.

Front 11

Impeachment?

Back 11

The process of trying to show that a witness should not be believed.

Front 12

What is the purpose of bias and when is it admissible?

Back 12

Bias means there is some relationship between the witness and the party that could cause the witness to lie.

Almost always admissible.

Front 13

What are Subsequent Remedial Measures (SRMs)?

Back 13

Repairs, design changes, or policy changes taken after an accident that could have prevented the accident.

Front 14

What is the federal rule regarding subsequent remedial measures (SRMs)?

What is the exception?

Back 14

SRMs are inadmissible to prove (1) negligence, (2) culpable conduct, (3) product defect, or (4) need for warning. (rationale, the encourage post-accident repairs).

May be admissible for some other relevant purpose, such as proof of (1) ownership, (2) control, or (3) feasibility of a safer condition if that issue is controverted.

Front 15

What is the NY rule for subsequent remedial measures?

Back 15

The same as the federal rule, except for this exception - SRMs are admissible in a products liability action based on strict liability for a manufacturing defect.

Front 16

What is the admissibility rule for Settlements in Civil Cases as relevant evidence?

What is the exception?

Back 16

If there is a disputed claim then evidence of (1) settlements, (2) offers to settle, or (3) statements made in settlement negotiations is inadmissible if offered to prove liability. Rationale – to encourage settlements and frank settlement discussions.

Offered to impeach a witness on the ground of bias.

Front 17

What is the Requirement of a Disputed Claim regarding the rule against evidence of Settlements in Civil Cases?

Back 17

The ban on settlement evidence only applies if, at the time of the discussion, there is a claim disputed by the other side (either as to validity or amount).

i.e. if one party makes an offer to settle before the other party even asserts a claim, the offer is not a settlement discussion and is thus not barred from being introduced as evidence if a claim is ever raised.

Front 18

What is the admissibility rule regarding Offers to Pay Medical Expenses?

Back 18

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.

Rationale - encourage charity.

Note – this rule does not include other statements made in connection with an offer to pay medical expenses.

Front 19

What is the admissibility rule regarding Pleas and Plea Discussions in Criminal Cases?

Back 19

The following are inadmissible against a D in a pending criminal litigation or in a subsequent civil case; (1) offer to plead guilty, (2) withdrawn guilty plea, (3) no contest plea, (4) statements of fact during any of the above.

Front 20

In NY, what type of pleas are admissible against D in a criminal case?

Back 20

Withdrawn guilty pleas are admissible.

Front 21

Are guilty pleas that the D does not withdraw admissible against the D in subsequent litigation on the same facts?

Back 21

Yes

Which is why D's should plead “no contest”, the whole reason we have them.

Front 22

Character Evidence?

Back 22

Evidence of a person’s general disposition or propensity.

Examples: character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness).

Front 23

Does the PURPOSE for introducing Character Evidence matter?

Back 23

Yes

Front 24

4 purposes for introducing character evidence?

Back 24

1. Propensity

2. Veracity

3. Non-propensity

4. Trait as an Element

Front 25

What is "propensity" as Character Evidence?

Back 25

Evidence offered to prove that the person is prone to act in a certain way.

In other words, as evidence that the person has a particular character trait and acted in conformity with that trait on the particular occasion in question (“conduct in conformity”).

Front 26

What is "veracity" as a Character Trait?

Back 26

Evidence of a witness’s character for untruthfulness (or truthfulness) offered to impeach (or to rehabilitate).

Front 27

What is "none propensity" as a Character Trait?

Back 27

Evidence of a person’s prior bad act offered for some purpose other than proving propensity.

Front 28

What is "trait as an element" for character evidence?

Back 28

Evidence of a person’s character trait offered because the trait itself is an essential element of the claim or defense.

Front 29

2 general rules regarding Character Evidence?

Back 29

1. Inadmissible for the purpose of proving propensity.

2. Admissible for some other purpose (e.g. witness’s veracity, non-propensity purpose, or when the trait is itself an element).

Front 30

General rule for Character Evidence in Criminal Cases?

Back 30

Inadmissible to prove propensity (“conduct in conformity”).

Rationale: fear that the jury will misuse the evidence and convict the D not because he’s guilty, but because he’s a bad person.

Front 31

What are the exceptions for introducing Character Evidence in a criminal proceeding for the purpose of propensity?

Back 31

1. D introduces evidence of his own good character for a relevant trait.

2. If the D does so, the prosecution may rebut with evidence of D’s bad character for the same trait.

Rationale – the D can evaluate the risk of unfair prejudice, and if the D is willing to open the door to character evidence, we will give him that option.

Front 32

When D introduces character evidence for the purpose of propensity, what are D's only proper methods of introduction?

Back 32

Federal - Reputation or Opinion.

NY - Reputation Only

Never allowed - Specific Acts

Front 33

Is "character" ever an element of a crime?

Back 33

No, never.

Front 34

When character evidence is admissible in a criminal proceeding for the purpose of propensity (i.e. D admits evidence of good character, and P rebuts), type kind of character evidence must it be?

Back 34

Character evidence of a "relevant trait" only (i.e. peacefulness in a murder trial, or honesty in an embezzlement trial).

Bravery,

Front 35

If D has “opened the door” by calling character witnesses in a criminal case, what are the 2 ways prosecution can rebut?

Back 35

1. Call a witness to testify to D's relevant bad character in the form or reputation and opinion (NY - reputation only).

OR

2. Cross examine D's character witnesses with questions of specific acts by D that are relevant to the character trait at issue.

Form
1. Opinion Witness - "Did you know . . ."
2. Reputation Witness - "Have you heard . . . "

Front 36

When D "opens the door" to character evidence and P rebuts by crossing D's witnesses by questioning there knowledge of specific acts of D relevant to the character trait at issue, what are the 2 proper forms of the questions?

Back 36

1. D's Opinion Witness - "Did you know . . ."

2. D's Reputation Witness - "Have you heard . . . "

NY- reputation only.

Front 37

When D "opens the door" to character evidence and P rebuts by crossing D's witnesses by questioning there knowledge of specific acts of D relevant to the character trait at issue, what is the purpose of P's questions?

Back 37

To test the witness’s knowledge, not to prove the specific act.

Front 38

In NY, when D has put character at issue, may P introduce evidence of a criminal conviction which adversely reflects on the character trait at issue?

Back 38

Yes

NY only, not in federal court.

Front 39

What is the federal rule for admitting evidence of the victim's character in self-defense cases?

Back 39

A criminal D may offer evidence of the V’s violent character for the purpose of proving V was the first aggressor.

Form - reputation or opinion. No specific acts.

Front 40

What is the NY rule for admitting evidence of the victim's character in self-defense cases?

Back 40

Evidence of the V’s character is inadmissible to prove victim was first aggressor.

Front 41

What are the 2 ways P can rebut evidence of victim's bad character in a self-defense case in federal court?

Back 41

1. The V’s good character for that trait, OR

2. The D’s bad character for that trait.

**Note - no crossing of D's witnesses with "did you know" "have you heard" questions in self-defense cases.

Front 42

What is the federal special purpose for which D can introduce evidence of a victim's bad character for violence in self-defense cases?

Back 42

For the purpose of showing reasonable belief in the need to use self-defense.

Rationale: Relevant to show the D’s belief, not the V’s propensity.

Form: Because this is not propensity evidence, any form is allowed (reputation, opinion, or specific acts).

Front 43

What is the NY special purpose for which D can introduce evidence of a victim's bad character for violence in self-defense cases?

Back 43

NY does not allow the D to introduce evidence of the V’s violent character to prove that the V started the fight,

However, D can introduce evidence of his knowledge of the V’s violent character (because the purpose is not to show V's propensity, rather D's reasonable belief that self-defense was necessary).

Front 44

What is the Rape Shield Law?

Back 44

In a case involving alleged sexual misconduct, the D ordinarily may not introduce evidence of; (1) V’s reputation for promiscuity, or (2) V’s sexual history.

Rationale - Promiscuity evidence has a low probative value, AND may discourage rape victims from coming forward.

Front 45

What are the 3 federal exceptions to the Rape Shield Law?

Back 45

1. Evidence of the V’s sexual activity with the D, but only if the defense is consent.

2. Evidence of the V’s sexual activity with others for the sole purpose of proving that someone other than the D was the source of physical evidence.

3. Evidence required to be admitted by the D’s Due Process rights (trumps (“rape shield”).

Front 46

What is the one additional NY exception to the Rape Shield Law?

Back 46

1. Evidence of the V’s conviction for prostitution within the past three years.

Front 47

Character Evidence in Civil Cases?

General exception?

Back 47

Inadmissible to prove propensity in civil cases.

Exception - admissible where character is an essential element of a claim or defense.
(1) Negligent hiring, or
(2) Defamation.

Note - purpose of the evidence is to prove the elements.

Front 48

What is the general rule on Habit Evidence?

What is the exception?

Back 48

Inadmissible to prove conduct on a particular occasion.

Exception - Habit of a person (or routine of a business organization) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation.

Front 49

What is "habit" for the purpose of Habit Evidence?

What are it's two distinguishing characteristics?

Back 49

Habit is a repetitive response to a particular set of circumstances.

Two distinguishing characteristics;

1. Frequency (so regular the person does it without thinking),

2. Particularity (specificity).

Exam Tip: On a multiple-choice question, look for key words indicating frequency: “always,” “invariably,” automatically,” “instinctively,” etc . . .

Front 50

What is "Business Routine" evidence and is it admissible?

Back 50

Admissible as proof of conduct.

The regular practice of an organization is admissible to prove conduct on a particular occasion.

Front 51

In NY, what are the 2 rules regarding "Habit Evidence"?

Back 51

(1) Habit evidence relating to business, trade, or profession is admissible, AND

(2) Habit evidence relating to personal habit on the issue of due care in negligence is inadmissible.

Front 52

In NY, was is the exception to the inadmissibility of evidence relating to personal habit?

Back 52

Personal habit in the use of a product.

Front 53

What is the the general rule for use of D's "Other Crimes" for Non-Character purposes?

What is the exception?

Back 53

D’s other crimes or specific bad acts are inadmissible during prosecution’s case-in-chief if the only purpose is to prove propensity.

Exception - if other crimes or specific bad acts are offered for some purpose other than propensity, then the evidence will not be barred by the rule against character evidence (i.e. "MIMIC" evidence).

Front 54

What is "MIMIC" evidence?

Back 54

D’s other crimes or bad acts may Admissible evidence offered to show something specific about the crime charged (something separate and apart from a propensity to commit the crime).

AKA - Non-character purposes.

Front 55

What are the "MIMIC" non-character purposes for introducing evidence of other crimes or bad acts?

Back 55

1. Motive

2. Intent

3. Mistake or accident, absence of

4. Identity

5. Common scheme or plan

Front 56

If a MIMIC category is satisfied, can the prosecution use other-crimes evidence as part of its case-in-chief?

Back 56

Yes

No longer dependent on D's introduction.

Front 57

What are the 2 ways to prove MIMIC purpose crimes?

Back 57

1. By conviction (easiest), OR

2. By evidence that proves the crime occurred.

Front 58

What is the federal burden of proof regarding MIMIC evidence?

Back 58

The “sufficiency” standard

P must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence.

Front 59

What is the NY burden of proof regarding MIMIC evidence?

Back 59

"Identity” Evidence

P must produce clear and convincing evidence that the D committed the prior act.

Front 60

Can MIMIC evidence be used in civil cases?

Back 60

Yes

Although MIMIC evidence most often appears in criminal cases, it may also be used, if relevant, in civil cases, such as tort actions for fraud or assault.

Front 61

What are the 3 minor requirements of MIMIC evidence?

Back 61

1. Pragmatic Consideration (court will weigh the probative value and prejudicial effect).

2. Limiting Instruction - court must instruct the jury to not consider the evidence for propensity purposes.

3. Pre-trial - P must notify D of intent to use MIMIC evidence.

Front 62

What is the federal rule for evidence of Other Sexual Misconduct to Show Propensity for Sexual Assault?

Back 62

P may offer evidence of the D’s prior sexual assaults for the purpose of proving the D’s propensity to commit sexual assaults.

“Once a rapist, always a rapist” in federal court.

Front 63

What is the NY rule for evidence of Other Sexual Misconduct to Show Propensity for Sexual Assault?

Back 63

Rapists and Child Molesters treated just like every other D – P may not introduce evidence of prior bad acts to prove propensity.

Front 64

In what 6 situations are "Similar Occurrences" admissible as relevant evidence when offered for a proper purpose?

Back 64

1. Habit -

2. P's accident history -

3. Similar Occurrences Caused by the Same Event or Condition

4. Intent to Issue

5. Comparable Sales on Issue of Value

6. Industrial Custom as Standard of Care.

Front 65

For what purpose may "P's accident history" be introduced as a "similar occurrence" exception to relevance?

Back 65

To show;

1. A fraudulent scheme or plan, OR

2. Causation.

Front 66

For what 3 purpose may "Similar Accidents Caused by Same Event or Condition" be introduced as a "similar occurrence" exception to relevance?

Back 66

1. Existence of a dangerous condition;

2. Causation; or

3. Prior notice to D.

Front 67

What is the standard for admitting evidence of experiments or tests for the purpose of proving (1) existence of a dangerous condition, or (2) causation.

Back 67

There must be substantial similarity between the experiment and the disputed fact.

Front 68

For what purpose can "intent in issue" be used as a "similar occurrence" exception to relevant evidence?

Back 68

Prior "similar occurrences" may be relevant to draw an inference of intent from a person’s prior conduct.

Front 69

For what purpose can "Comparable Sales on Issue of Value" be used as a "similar occurrence" exception to relevance?

Back 69

The selling of comparable property (similar type, in the same general location, in the same time period) is admissible as evidence of the value of the property at issue.

Front 70

For what purpose can "Industrial Custom as Standard of Care" be used as a "similar occurrence exception to relevance?

Back 70

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted (i.e. as evidence of the appropriate standard of care).

Front 71

What are the 4 forms of evidence?

Back 71

1. Witness

2. Documentary Evidence

3. Real Evidence

4. Judicial Notice

Front 72

What is "judicial notice"?

Back 72

The recognition of a fact as true without formal presentation of evidence.

Front 73

When can a court take "judicial notice"?

Back 73

When the fact is undisputed, can come in two forms.

Front 74

What are the two forms of undisputed facts for the purpose of "judicial notice"?

Back 74

1. Matters of common knowledge within the court’s territorial jurisdiction (e.g. location the court building).

2. Matters capable of easy verification by resorting to unquestionable sources (e.g. whether May 21, 2007 was a Wednesday).

Front 75

What can the court take "judicial notice"?

Back 75

Any time, including on appeal.

Front 76

What is the effect of judicial notice?

Back 76

Judicially noticed facts are considered conclusive in civil case, but not in criminal cases.

Front 77

What are the 3 issues that surround Documentary (written) Evidence?

Back 77

1. Authentication;

2. Best Evidence; and

3. Hearsay

Front 78

What is the rule of "Authentication" regarding Documentary Evidence?

Back 78

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

Front 79

What is the process of "authenticating" evidence - proving it is what the party claims it to be - referred to as?

Back 79

Laying Foundation

Front 80

What is the Authentication rule for writings?

Back 80

If the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing.

Front 81

What is the standard for "authenticity," thus allowing the item to be introduced as evidence?

Back 81

“Sufficiency,” not “conclusiveness.”

The court is not concerned with truth, just whether there is enough evidence to believe that the exhibit is what the party claims it to be.

Front 82

What are the 4 methods of Authenticating a writing?

Back 82

1. Testimony by witness with personal knowledge;

2. Proof of author's handwriting;

3. Ancient Document Rule;

4. Solicited Reply Doctrine.

Front 83

What is an example of "testimony by a witness with personal knowledge" to authenticate a writing?

Back 83

"Testimony from Ron that Ron saw Phil sign the document in question."

Front 84

What are the 3 ways to establish "proof of author's handwriting" to authenticate a writing?

Back 84

1. Lay opinion

2. Expert opinion and comparison

3. Jury comparison

Front 85

When can "lay opinion" be used to establish "proof of author's handwriting" to authenticate a writing?

Back 85

When the witness has familiarity with X’s handwriting as a result of experience in the normal course of affairs – not as a result of preparation for litigation.

Front 86

What must an expert do to establish "proof of author's handwriting" to authenticate a writing?

Back 86

1. Must be qualified AND

2. Must compare Doc-1 to a genuine sample or an example of X’s handwriting.

Front 87

What is the Ancient Document rule and what are its 3 elements?

Back 87

Infers Authenticity of a document if the document is;

1. At least 20 years old (in NY, at least 30 years old);

2. Facially free of suspicion; and

3. Found where it would be expected.

Front 88

What is the Solicited Reply Doctrine and when can it be used to authenticate a writing?

Back 88

A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Front 89

What are "self-authenticating documents"?

Back 89

Documents presumed authentic. No foundation testimony needed.

Front 90

What are the 7 "self-authenticating documents"?

Back 90

1. Official publications – e.g. government pamphlets, blank tax forms.

2. Certified copies of public or private documents on file in public office – e.g. deeds, mortgages.

3. Newspapers or periodicals – e.g. proving stock price on a particular day.

4. Trade inscriptions and labels – e.g. label on a candy bar.

5. Acknowledged Document – e.g. something notarized with a seal.

6. Commercial paper – e.g. check, promissory note.

7. Certified business records, offered into evidence under the business records hearsay exception – must be certified; (a) by someone within the business, (b) who knows how the records are regularly made, (c) that these documents were made in the regular way, (d) at or about the time of the event recorded.

Front 91

When the purpose of a photograph is "demonstrative evidence" (i.e. to illustrate testimony) how is it authenticated?

Back 91

By the Witness testifying, based on personal knowledge that the photo is a fair and accurate representation of the people or objects portrayed.

Front 92

When the purpose of a photograph is the serve as a "silent witness" (e.g. photos from a surveillance camera) how is it authenticated?

Back 92

A party offering such a photo must show;

1. The camera was properly installed and working;

2. The film was properly removed and developed; AND

3. The film has not been tampered with (most effective way is by establishing a chain of custody).

Front 93

What is the Best Evidence Rule (aka "original writings" rule)?

Back 93

If a party seeks to prove the contents of a writing, the party must either (a) produce the writing, or (b) provide an acceptable excuse for its absence. If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove its contents.

Front 94

What is "a writing" for the purpose of evidence?

Back 94

1. Documents

2. Recordings

3. Films

4. X-rays

Front 95

When faced with a Best Evidence Rule question, what three questions should you ask yourself?

Back 95

1. When does the best evidence rule apply?

2. What is an original?

3. What is a good excuse?

Front 96

When does the Best Evidence rule apply?

Back 96

only when the party seeks to prove the contents of a writing, which arises in two principle situations;

1. The "writing" is a legally operative document (e.g. a will or deed), OR

2. The witness is testifying to facts that she learned solely from reading about them in a"writing."

Front 97

What qualifies as an "original" writing?

What is a "duplicate"?

Back 97

Original - the writing itself; any counterpart intended to have the same effect; any negative film or print from the negative.

Duplicate - any counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon paper, computer print-outs).

Front 98

When is a duplicate admissible as an original?

Back 98

Admissible to the same extent as an original, unless;

1 There is a genuine question about the authenticity of the original, OR

2. It would be unfair to admit the duplicate (almost always admissible).

Front 99

What is the NY rule for duplicates?

Back 99

Photocopies and other duplicates are acceptable substitutes for the original ONLY if the duplicates were made in the regular course of business.

Front 100

What’s not considered an original writing?

Back 100

A handwritten copy.

Front 101

In what 3 situations is non-production of an "original" writing excused?

Back 101

If the original is;

1. Lost or cannot be found with due diligence; or

If the court is persuaded by a preponderance of the evidence that the excuse has been established, then secondary evidence is admissible (e.g. oral testimony or a handwritten copy).

2. Has been destroyed without bad faith; or

3. Cannot be obtained with the legal process.

Front 102

What are the 3 "escapes” from the Requirements of the Best Evidence Rule?

Back 102

1. Voluminous records (provided the originals can be produced on demand),

2. Certified copies of public records,

3. Collateral documents (unimportant, not central).

Front 103

What you know about the Best Evidence Rule for the bar exam?

Back 103

1. Rarely excludes evidence

2. Often appears as an incorrect choice on the MBE.

Front 104

What is "Real Evidence"?

Back 104

Actual physical evidence that is displayed to the trier of fact.

Examples – drugs and guns in a criminal case, the offending product in a products liability case.

Front 105

What are the 2 ways to authenticate Real Evidence?

Back 105

Introduce sufficient evidence that the item is what the party claims it to be through either

1. Personal Knowledge (e.g. witness testifies “I recognize this gun as the one found at the crime scene”) OR

2. Chain of Custody - substantially unbroken. Need not be perfect, but it must be based on reliable procedures for identification and custody.

Front 106

If the condition of real evidence before trial is relevant, what must be shown?

Back 106

That the real evidence is substantially in the same condition.

Front 107

What are the 2 requirements for a witness to be "competent"?

Back 107

1. Personal knowledge (saw or heard); AND

2. Oath, which simply means demonstrate an understanding of the obligation to tell the truth, and promise to tell the truth.

Front 108

What is the NY rule for child testimony?

Back 108

A child must testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth.

Front 109

In NY civil cases, who must give an oath before testifying?

Back 109

All witnesses, including children.

Front 110

What is the exception for children taking an oath in NY?

Back 110

A child under the age of 9 who cannot understand the oath may still testify (in other words, the child may give unsworn testimony). BUT, a D cannot be convicted based solely on unsworn testimony. There must be some corroboration.

Front 111

What is the federal Dead Man's Statute?

Back 111

There is no Dead Man’s Statute – a witness is not incompetent simply because she may have an interest in the outcome of the litigation.

Front 112

What is a Dead Man's Statute?

Back 112

In a civil action, an interested party may not testify against a dead party about communications or transactions with the dead party.

Front 113

When is a person "interested" under a Dead Man's Statute?

Back 113

When the outcome of the cause will have a legally binding effect on the person’s rights or obligations (e.g. whether they lose $$$ or gain $$$).

Front 114

Under what 3 circumstances might the Dead Man's Statute be Waived?

Back 114

1. The decedent’s representative does not object; or

2. The decedent’s representative testifies about the transaction, or

3. The decedent’s testimony is introduced.

Front 115

What is the NY Dead Man's Statute?

Back 115

Similar to the rule in most other states with one important exception.

The Accident Exception – In an accident case based on negligence, the surviving party may testify about the facts of the accident, but may not testify about conversations with the decedent.

Front 116

When is a question considered "leading"?

Back 116

When the question suggests the answer.

Front 117

When are leading questions allowed and not allowed?

Back 117

Generally allowed on cross examination of witnesses.

Generally not allowed on direct examination of witnesses.

Front 118

What are the 4 circumstances that "leading" questions are allowed on direct examination?

Back 118

1. Preliminary introductory matters;

2. Youthful or forgetful witness;

3. Hostile witness; or

4. Adverse party or someone under control of the adverse party.

Front 119

What is the general rule regarding writings in aid of oral testimony?

Back 119

Witness may not read from a prepared memo; must testify on basis of current recollection.

Front 120

What is a "past recollection refreshed"?

Back 120

if a witness forgets something he once knew, he may be shown a writing (or anything else) to jog his memory.

Front 121

What are the safeguards against abuse regarding "past recollections refreshed"?

Back 121

If an item is used to refresh a witness’s memory, the opposing party has a right to (a) inspect it, (b) use it on cross, or (c) introduce it into evidence.

Front 122

What are the 5 steps for laying foundation for a "past recollection recorded"?

Back 122

1. Witness once had personal knowledge;

2. Witness now forgets and showing the writing to witness fails to jog the witness’s memory;

3. Writing was either made by the witness or adopted by the witness;

4. Writing was made when the event was fresh in the witness’s memory; and

5. Witness can attest that, when made, the writing was accurate.

Front 123

Once proper foundation is laid for the introduction of a "past recollection recorded," what can be done with it in federal court?

Back 123

1. Witness may read the document to the jury;

2. But the witness may not show the document to the jury.

3. But he opposing party may show the document to the jury (by introducing it as an exhibit).

Front 124

In NY, can the party introducing a "past recollection recorded" introduce it into evidence and show it to the jury?

Back 124

Yes

Front 125

What are the 2 requirements for lay witness opinion testimony?

Back 125

1. Rationally based on the witness’s perception (personal knowledge), AND

2. Helpful to the jury.

Examples
1. Sobriety (or drunkenness)
2. Emotions
3. Speed
4. Handwriting
5. Smells

Front 126

What are the 4 requirements for expert opinion testimony?

Back 126

1. Witness is qualified (by education and/or experience);

2. Testimony is about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury;

3. The opinion has a proper basis; AND

4. The opinion is reliable.

Front 127

What is proper basis for expert opinion testimony?

Back 127

1. Opinion based upon a “reasonable degree of probability or reasonable certainty," AND

2. Based on one of the following three data sources;

a. Expert's personal knowledge,

b. Evidence already in the trial record,

c. Facts outside the trial record that are of a type reasonably relied on by experts in the particular field.

Front 128

What is the "reliability" standard for expert opinions?

Back 128

Expert has used reliable methods and the expert has reliably applied those methods to the particular facts of the case.

Front 129

What is the federal reliability standard for scientific evidence?

Back 129

Daubert standard (4 questions)

1. Has the methodology been tested?

2. Are there known rates of error?

3. Has the methodology been subject to peer review?

4. Has the methodology been generally accepted?

Front 130

What is the NY reliability standard for scientific evidence?

Back 130

Frye standard: NY asks only whether the methodology has been generally accepted by the relevant professional community.

Front 131

Is lay or expert opinion on the ultimate issue acceptable?

Back 131

Generally (e.g. “X was drunk,” “That is X’s signature on the check”).

Front 132

What is the federal exception to general acceptability of expert opinion on the ultimate issue?

Back 132

In a criminal case, an expert witness may not testify that the D did or did not have the required mental state.

Front 133

How may Learned Treatise in Aid of Expert Testimony be used in federal court?

Back 133

If a party can establish that a treatise is reliable authority, then the treatise may be used on direct or cross-examination of an expert, and the treatise may be read to the jury as substantive evidence (hearsay exception).

But, treatise may not itself be introduced as an exhibit (i.e. may not be shown to the jury).

Front 134

How may Learned Treatise in Aid of Expert Testimony be used in NY?

Back 134

On direct examination: A treatise may only be used for the purpose of showing the basis of the expert’s testimony, not as substantive evidence.

On cross examination: May only be used to impeach the opponent’s expert’s credibility, not as substantive evidence, and may only be used if the opponent’s expert either relied on the treatise in developing her own opinion or acknowledged that it is a reliable authority.

Front 135

What are the 3 ways to establish the authoritativeness of a Learned Treatise?

Back 135

1. Your own expert testifies that the treatise is authoritative;

2. Your opponent’s expert admits that the treatise is authoritative; OR

3. The judge takes “judicial notice” that the treatise is authoritative.

Front 136

What happens if a witness who offered direct testimony is not made available for cross examination?

Back 136

The witness's direct testimony is stricken from the record.

Front 137

What is the proper scope and subject matter of cross-examination?

Back 137

1. Matters within the scope of direct examination; AND

2. Matters that affect the witness’s credibility (common on bar exam, credibility is always an issue).

Front 138

What are the 7 impeachment methods?

Back 138

1. Prior inconsistent statements

2. Bias, interest or motive to misrepresent

3. Sensory deficiencies

4. Reputation or opinion – Bad character for truthfulness (most important)

5. Criminal convictions - Bad character for truthfulness (most important)

6. Bad acts (without conviction) - Bad character for truthfulness (most important)

7. Contradiction

Front 139

What are "prior inconsistent statements" for impeachment?

Back 139

Simply a prior statement (oral or written) that is materially inconsistent with the witness’s trial testimony.

Front 140

When can a "prior inconsistent statement" be admitted both to impeach and as substantive evidence?

Back 140

If the statement was made orally under oath, and as part of a formal hearing preceding trial or deposition.

Front 141

In NY, can a prior inconsistent statement be used as substantive evidence if made orally under oath in a preceding trial proceeding or deposition?

Back 141

No, impeach only

Front 142

When must a witness impeach with a prior inconsistent statement be given the opportunity to explain or deny in federal court?

Back 142

Timing is flexible. The inconsistent statement may be proven by extrinsic evidence, so long as the Witness is later given an opportunity to return to the stand and explain.

Front 143

When must a witness impeach with a prior inconsistent statement be given the opportunity to explain or deny in NY?

Back 143

While still on the stand (i.e. the statement must be proven through intrinsic cross-examination before it can be proven extrinsically).

Front 144

When do you not have to give a witness an opportunity to explain or deny a prior inconsistent statement?

Back 144

When the witness is an opposing party.

Front 145

How do you impeach by showing "Bias, Interest or Motive to Misrepresent"?

Back 145

1. Bias, because it is so important, may also be proven by extrinsic evidence.

2. Generally, a witness should be confronted with the alleged bias before it is proven by extrinsic evidence.

Examples
(1) a party, (2) a friend, relative, or employee of the party, (3) someone paid by the party, (4) someone with a grudge against a party, (5) anyone who has something to gain or to lose by the case coming out one way or the other.

Front 146

What are "Sensory Deficiencies" for impeach?

Back 146

Anything that could affect the witness’s perception or memory.

Examples
1. bad eyesight
2. bad hearing
3. mental retardation
4. forgetfulnes
5. intoxication at time of event or while on the witness stand.

Front 147

May a party impeach a witness by calling another witness to testify to that person's Reputation or Opinion About Witness’s Bad Character for Veracity?

Back 147

Yes

Same Rules as character evidence

1. Federal – reputation or opinion.

2. New York – reputation only.

3. Not allowed – specific acts.

Front 148

Is extrinsic evidence allowed to impeach a witness for bad character for veracity?

Back 148

Yes

Front 149

What is the federal rule for using criminal convictions as a method of impeachment?

Back 149

1. Conviction (or the release from prison, which ever is later) must be within 10 years of the trial,

2. Must be crimes of dishonesty or false statement or Felonies - note felony convictions are weighed (probative value / prejudicial effect).

Note - theft is not a crime of dishonesty.

Front 150

What is the NY rule using criminal convictions as a method of impeachment?

Back 150

Any witness may be impeached with a conviction for any crime.

Note - In a criminal case involving D as a witness, the court would have a Sandoval hearing to balance the probative value of the convictions against their prejudicial effect.

Front 151

What is a Sandoval hearing?

Back 151

When the witness is the criminal D, the court will have a Sandoval hearing to determine if D's prior criminal convictions can be used to impeach him (probative value / prejudicial effect).

Front 152

What factors are considered when balancing Probative Value and Unfair Prejudice?

Back 152

Factors that make a conviction probative – (1) seriousness (murder is more probative then minor drug possession), (2) relation to trust and deception (theft is more probative then reckless driving).

Factors that make a conviction unfairly prejudicial – (1) inflammatory nature (child molestation is more prejudicial then DWI), (2) similarity to the currently charged offense (the prejudice is particularly high if the prior offenses and the charged offense are identical).

Front 153

What are the 2 ways foundation is laid for a criminal conviction used to impeach?

Back 153

1. Intrinsically (by asking the witness about it on cross-examination) OR

2. Extrinsically (by introducing a record of the conviction)

Front 154

When a witness is impeach with a criminal conviction, must the witness be given time to explain?

Back 154

No

Front 155

What is the federal rule for impeaching a witness with prior bad acts (without conviction) that relate to veracity?

Back 155

A witness may be asked about prior bad acts if those acts relate to truthfulness.

Front 156

What is the NY rule for impeaching a witness with prior bad acts (without conviction) that relate to veracity?

Back 156

A witness may be asked about prior bad acts that show the witness’s moral turpitude (includes criminal conduct that does not relate to truthfulness).

Front 157

What are the 2 limitations with impeaching witness with prior bad acts (without conviction)?

Back 157

1. Basis – the cross-examiner must have a good faith basis to believe that the bad act occurred.

2. Proof – the bad act may be proven by intrinsic evidence only (the cross-examiner is stuck with the witness’s answer).
Exam tip – proof by extrinsic evidence may still be allowed if the bad act is relevant for some other purpose (such as proof of bias).

Front 158

Consider this "prior bad act (without conviction)" hypo.

United States v. Rush. Rush is being prosecuted for narcotics sales. Winona testifies for Rush. On cross, Winona is asked if she was arrested three years ago for passing counterfeit money. Objectionable?

Back 158

Yes, counterfeiting is dishonest, however the question is asking about the arrest. An “arrest” is not dishonest. The P should have asked about the “act.”

Front 159

How is a contradiction used to impeach?

Back 159

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

Front 160

When can a contradiction be proven with extrinsic evidence?

Back 160

The contradiction goes to an issue that is significant to the case, then it may be proven by extrinsic evidence.

Front 161

When is extrinsic evidence not allowed to prove a contradiction?

Back 161

The contradiction goes to a matter that is collateral (insignificant to the issues in the case or to the witness’s credibility), then proof is limited to intrinsic evidence (and the cross-examiner is stuck with the witness’s answer).

Front 162

In federal court, can a party impeach their own witness?

Back 162

Yes, any party may impeach any witness.

Front 163

In NY, can a party impeach their own witness?

Back 163

Voucher Rule

By calling a witness, a party “vouches” for that witness’s credibility. So, ordinarily, the party who calls a witness may not impeach that witness.

Front 164

What is the exception to the NY "voucher rule" regarding impeachment of a party's own witness?

Back 164

A prior inconsistent statement that was;

1. made in writing and was signed by witness; OR

2. made in oral testimony and testimony was under oath.

BUT, in a criminal case, this exception may be used only if the witness’ current testimony is “affirmatively damaging” to the party who called the witness, not merely a “cloud on credibility.”

Front 165

Generally, when can a witness' character be rehabilitated?

Back 165

Only after the witness’s credibility has been attacked through impeachment.

Front 166

What is it called when a party tries to rehabilitate their witness when their credibility has not been attacked?

Back 166

Bolstering.

Front 167

What is the one exception where bolstering is allowed?

Back 167

A witness’s prior statement of identification is admissible, even if the Witness’s credibility has not yet been attacked.

Warning – the statement of identification must be made by a trial witness who is subject to cross-examination.

Front 168

In NY, is bolstering with prior statement of identification allowed?

Back 168

Depends

Criminal case - yes

Civil case - no

Front 169

What are the two methods of rehabilitation?

Back 169

1. Good character for truthfulness.
a. Federal – reputation or opinion.
b. New York – reputation only.
c. Not allowed – specific acts.

AND

2. Prior consistent statements.
a.The prior statement is consistent with the witness’s trial testimony.
b. The opposing party has suggested through impeachment that the witness has a motive to lie, AND
c. The prior statement was made before the motive to lie arose.

Front 170

In federal court, can a prior consistent statement be used to rehabilitate AND as substantive evidence?

Back 170

Yes
a prior consistent statement that fits within the rule is admissible to rehabilitate and as substantive evidence that the prior statement was true (hearsay exception).

Front 171

In NY, can a prior consistent statement be used to rehabilitate AND as substantive evidence?

Back 171

No

A prior consistent statement is admissible only to rehabilitate.

Front 172

In regards to testimonial privileges and Diversity Cases and Federal Law what is the rule and exception?

Back 172

1. Rule – in federal court, apply federal rules of evidence.

2. Exception – in federal diversity case (where state law will govern the substantive claims), still apply federal rules of evidence, but apply state law with respect to;
a. Burden of proof and presumptions
b. Dead Man’s Statutes
c. Privileges

Front 173

What are the 4 testimonial privileges recognized in federal court?

Back 173

1. Attorney-client privilege

2. Spousal privilege

3. Clergy privilege

4. Psycho therapist – patient privilege

Front 174

What are the 5 testimonial privileges recognized in the majority of states?

Back 174

1. Attorney-client privilege

2. Spousal privilege

3. Clergy privilege

4. Psycho therapist – patient privilege

5. Doctor – patient

Front 175

What are the 7 testimonial privileges recognized in NY?

Back 175

1. Attorney-client privilege

2. Spousal privilege

3. Clergy privilege

4. Psycho therapist – patient privilege

5. Doctor – patient

6. Social worker - client

7. Reporter - source

Front 176

What are the elements of the attorney-client privilege?

Back 176

Any "communication" between client and attorney so long as it is confidential and for the purpose of legal advice, unless the privilege is waived by the client, or an exception applies.

Front 177

What are the 3 types of "communications" for the purpose of attorney-client privilege?

Back 177

1. Underlying information,

2. Pre-existing documents, or

3. Physical evidence.

Front 178

Who is an "attorney" for the attorney client privilege?

Back 178

1. a member of the bar.

2. a person the client reasonably believes is a member of the bar.

3. an representative of an attorney.

Front 179

Who is a "client" for the purpose of the attorney-client privilege?

Back 179

1. Any person seeking to become a client, AND

2. A representative of a client.

Front 180

What is "confidential" for the purpose of the attorney-client privilege?

Back 180

1. Anything the client intends to be confidential (e.g. no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party)

2.

Front 181

What is the joint client rule for the purposes of attorney-client privilege?

Back 181

If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.

Front 182

What is the "legal advice" requirement for the purpose of the attorney client privilege?

Back 182

The primary purpose of the communication must be to get or give legal advice (not business or social advice).

Front 183

Does attorney-client privilege protect physical evidence?

Back 183

No

Privilege does not protect physical evidence (i.e. If served with a subpoena to produce physical evidence, the attorney must produce it).

Front 184

How does a client waive the attorney-client privilege? (3 ways)

Back 184

1. Voluntary waiver

2. Subject matter waiver

3. Inadvertent waiver

Front 185

What is a voluntary wavier for the purposes of the attorney-client privilege?

Back 185

Only the client has the power to waive the privilege (after the client’s death, the privilege continues and only the client’s estate can waive it).

Front 186

What is subject matter waiver for the purposes of the attorney-client privilege? What are the effects?

Back 186

A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if;

The partial disclosure is intentional, and the disclosed and undisclosed communications concern the same subject matter, and fairness requires that the disclosed and undisclosed communications be considered together.

Front 187

What is the effect of an inadvertent waiver for the purposes of the attorney-client privilege?

Back 187

Will not waive the privilege, so long as the privilege holder;

1.Took reasonable steps to prevent the disclosure; AND

2. Took reasonable steps to rectify the error.

Front 188

Under what 3 circumstances will attorney-client privilege not apply?

Back 188

1. Future crime or fraud “the purpose of communication” (e.g. client tells attorney, “Help me disguise the bribes I made so that they look like legitimate business expenses.”

2. Client puts legal advice at issue (e.g. in tax fraud prosecution, D defends on ground that she relied on advice of her attorney in reporting income).

3. Attorney – client dispute (e.g. client sues attorney for malpractice; attorney sues client for unpaid fees.

Front 189

What is the doctor-patient privilege?

Back 189

To encourage candor and protect privacy, this privilege includes any communication or information acquired by a doctor from a patient so long as it is confidential and for the purpose of medical treatment.

Federal Distinction – only covers psycho-therapists (a doctor or other professional certified to diagnose or treat mental or emotional illness).

Front 190

Under what circumstance will the doctor-patient privilege be waived?

Back 190

If the patient expressly or impliedly puts physical or mental condition in issue (e.g. P in a personal injury case, or D asserting an insanity defense).

Front 191

What is the rule of spousal communications?

Back 191

Applies to relationship between married spouses, covers communications so long as they are confidential, and may be waived only by both spouses.

Front 192

What is the Spousal Testimony Privilege in federal court?

Back 192

In a criminal case, the prosecution cannot compel the D’s spouse to testify against the D.

Applies only to criminal cases, covers testimony against a spouse, so long as witness and D are currently married, and may be waived by the witness spouse.

Front 193

Does the Spousal Testimony Privilege exist in NY?

Back 193

No

Front 194

What are the 2 exceptions for spousal communications and the spousal testimony privilege?

Back 194

Communication or acts;

1. in furtherance of a future crime or fraud (e.g. joint criminal activity), OR

2. destruction of the family unit (e.g. spousal or child abuse).

Front 195

What is the basic hearsay rule?

Back 195

Absent an exception or exclusion, hearsay is inadmissible.

Front 196

What is a non-hearsay statement?

Back 196

An out-of-court statement that is not offered to prove the truth of the matter asserted in the statement.

Hearsay Tip: Ask yourself, “do we care whether or not the declarant is telling the truth?” If the answer is “no,” then the statement is not hearsay (not offered for the truth).

Front 197

What is the definition of hearsay?

Back 197

An out of court statement (oral or written) by a person (called declarant), not animals, not machines, offered to prove the truth of the matter asserted.

Front 198

What are the 4 principle categories of non-hearsay purpose?

Back 198

1. Impeachment (i.e. don't care if prior statement was true, the purpose is to show that it was made).

2. Verbal acts (legally operative words [words of offer, repudiation, or cancellation of contract; words that have the effect of making a gift or a bribe; words that are themselves an act of perjury or a criminal misrepresentation or a defamation] purpose not for their truth, but that they were made).


3. To show the effect of the person who heard or read the statement (i.e. don't care if the statement was true).

4. Circumstantial Evidence of the Speakers State of Mind (i.e. the truth of the statements are irrelevant, what is relevant is their demonstration of insanity, consciousness of guilt, or lack of knowledge.

Front 199

Are prior statements of trial witnesses hearsay?

Back 199

Yes

If offered to prove the truth of the matter asserted in the statement, and is inadmissible unless an exception or exclusion applies.

Front 200

What are the 3 prior statements of trial witnesses that are excluded as hearsay?

Back 200

1. Statements of identification

2. Prior inconsistent statement made under oath at a prior formal proceeding (Federal - to impeach and as truth, NY - to impeach only).

3. Prior consistent statement, if (a) used to rebut an accusation of a motive to lie, AND (b) made before the motive to lie arose. Note – in NY, can be used only to rehabilitate, not as truth.

Front 201

What are the top 10 hearsay exceptions for the bar exam?

Back 201

1. Party Admission – declarant must be a party.

2. Former Testimony – declarant must be unavailable.

3. Forfeiture by wrongdoing - declarant must be unavailable.

4. Statement against interest - declarant must be unavailable.

5. Dying declaration - declarant must be unavailable.

6. Excited Utterance – declarant can be anyone.

7. Present sense impression – declarant can be anyone.

8. Statement of then-existing mental, emotional, or physical condition – declarant can be anyone.

9. Statement for purpose of medical treatment or diagnosis – declarant can be anyone.

10. Business and public records – declarant can be anyone.

Front 202

What is the rule on "party admissions" as a hearsay exception?

Back 202

Any statement made by a party is not hearsay if it is offered against the party (i.e. offered by the other side).

"You say/write it, you’re stuck with it” (estoppel, not reliability)

Front 203

Is there vicarious liability regarding "party admissions" as a hearsay exception?

Back 203

Yes

If the statement concerns a matter within the scope of the agency or employment and was made during the agency or employment.

Front 204

What is the NY distinction for vicarious liability regarding party admissions as a hearsay exception?

Back 204

A statement by an employee or agent is admissible against the principle only if the agent or employee had speaking authority to speak on behalf the principle (e.g. CEO, general counsel, VP for Communications)

Front 205

Are vicarious admissions by Co-Conspirators admissible against all co-conspirators as party admissions?

Back 205

Yes

If the statement was made during and in furtherance of the conspiracy.

Front 206

What is the threshold requirement for hearsay exceptions (1) former testimony, (2) forfeiture by wrong-doing, (3) dying declaration, and (4) declarations against interests?

Back 206

Unavailability

Front 207

What are the 5 circumstances that a declarant "unavailable" for hearsay exception purposes?

Back 207

PAILS

1. Privilege

2. Absence from jurisdiction

3. Illness or death

4. Lack of memory

5. Stubborn refusal to testify

Front 208

In NY, will lack of memory or stubborn refusal to testify make a personal "unavailable" for the purposes of hearsay exceptions?

Back 208

No

Only privilege, absence from jurisdiction, or illness or death.

Front 209

What are the elements of the former testimony hearsay exception?

Back 209

The declarant is

1. unavailable,

2. the prior statement was given in a proceeding or deposition, AND

3. is offered against a party who, on the prior occasion, had an opportunity and a similar motive to cross-examine or to otherwise develop testimony.

Note – the relevance of the former testimony to the current trial must be substantially similar to its relevance in the prior proceeding (so that the party had a similar motive to cross examine).

Front 210

What is the NY rule for former testimony as a hearsay exception?

Back 210

Criminal cases only . . .

1. by now-unavailable witness

2. must have been given at a criminal trial, a hearing on felony complaint, or at conditional deposition.

3. D and charge must be the same in both former and current case.

Note - Former testimony given at a suppression hearing is not admissible against the D.

Front 211

What are the elements of forfeiture by wrongdoing as a hearsay exception?

Back 211

A declarant’s out-of-court statement may be offered against any party who intentionally and wrongfully made the declarant unavailable.

Note – the intent must be to prevent the witness from testifying and it includes acquiescing in wrongdoing that was intended to procure the declarant’s unavailability as a trial witness.

Burden of Proof regarding party’s wrongdoing;

1. Federal – preponderance of the evidence

2. NY – clear and convincing

Front 212

What are the elements of statement against interests as a hearsay exception?

Back 212

Declarant is unavailable and statement is against Declarant’s pecuniary, proprietary, or penal interests.

Qualification in criminal cases – statement against penal interest must be supported by corroborating circumstances.

Front 213

What are the elements of a dying declaration as a hearsay exception?

Back 213

Declarant is unavailable , statement was made under a belief of certain and impending death, and statement concerns the cause or circumstances of the impending death.

1. Federal – any civil case or criminal homicide

2. New York – criminal homicide cases only

Front 214

What are the elements of an excited utterance as a hearsay exception?

Back 214

A spontaneous statement concerning a startling event made while the declarant was still under the stress caused by the event.

Factors that will (or will not) make a statement spontaneous.
a. Nature of the event
b. Passage of time
c. Verbal clues (exclamation points, exclamatory phrases)

Front 215

What are the elements of a present sense impression as a hearsay exception?

Back 215

A spontaneous statement describing an event made while the event is occurring, or immediately after (seconds).

NY Distinction – Requires corroboration

Front 216

What are the elements of a statement of then-existing mental, emotional, or physical condition as a hearsay exception?

Back 216

A spontaneous contemporaneous statement concerning the declarant’s then existing physical condition or state of mind (includes emotions, mental feelings, intent or future plans, sensations, and bodily health).

It does not include a statement of memory or belief about a past condition.

But it does include statements of future intent, including an intent to do something with a third person.

Front 217

What are the 2 NY distinctions regarding statement of then-existing mental, emotional, or physical condition as a hearsay exception?

Back 217

1. If a statement of present physical condition is made to a layperson (not a doctor), the declarant must be unavailable.

2. In a statement of future intent is offered to prove the conduct of a third person, NY requires;
a. Corroboration (of the connection between the declarant and the third person), and
b. That the declarant is unavailable.

Front 218

What does Statements for Purpose of Medical Treatment Diagnosis as a hearsay exception allow?

Back 218

allows admission of a statement made for the purpose of diagnosis or treatment concerning,
a. present symptoms, or
b. past symptoms, or
c. general cause of medical condition.

BUT not,
a. statements of fault, or
b. identity of wrongdoer.

Front 219

What is the NY distinction regarding Statements for Purpose of Medical Treatment Diagnosis?

Back 219

Does not apply to statements made solely for the purpose of obtaining expert testimony.

Front 220

What are the 5 elements of the business and public records exception to hearsay?

Back 220

1. records of a business (any type, including public agencies).

2. made in the regular course of business (i.e. is germane to the business; relates to what the business does)

3. the business regularly keeps such records

4. made contemporaneously (at or about the time of the event recorded), and

5. the contents consist of; (a) information observed by employees of the business, or (b) a statement that falls within some other hearsay exception.

Front 221

How can public records be used in federal court? Exception? NY?

Back 221

Contents containing

1. Observations by employees of the public agency, OR

2. conclusions by public employees after an official investigation (e.g. police officer’s conclusion about fault in an accident report)

Important exception – a police report may not be offered against the D in a criminal case.

NY - public records limited to observations, not conclusions of official reports.

Front 222

What are the 2 ways to lay foundation for business records exception? NY qualification?

Back 222

1. Live testimony – call knowledgeable witness who can testify to the five elements of the business records hearsay exception (often called a “custodian of records.”

2. By affidavit – submit a written certificate under oath attesting to elements of business records hearsay exception.

NY Qualification – written certification only in civil cases and only for the business records of a non-party.

Front 223

In regards to hearsay and the Confrontation clause, when has D's right to cross examine a witness against him satisfied? (3 ways)

Back 223

1. D already had a chance to cross-examine the declarant (e.g. former testimony exception), OR

2. D can cross-examine the witness at trial (e.g. prior statement of a trial witness), OR

3. D has forfeited right to cross through tampering (e.g. forfeiture by wrongdoing).

Front 224

When is a statement "testimonial" vs. "non-testimonial"?

Back 224

Testimonial if the primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecution (i.e. police records) (e.g. a co-conspirators confession to be used against D) - hearsay/confrontation clause issue.

Non-testimonial if the primary purpose of the questioning is to enable police assistance to meet an on-going emergency (i.e. business records) (e.g. 911 tapes) - no hearsay/confrontation clause issue.

Front 225

If hearsay is admitted under an exception, what can D do?

Back 225

Opposing party may use any of the impeachment methods to attack the credibility of a hearsay declarant.

Front 226

What are the burdens of proof in criminal and civil trials?

Back 226

Civil - preponderance of the evidence.

Criminal - beyond reasonable doubt.

Front 227

Who makes judgments regarding preliminary facts which come in 3 forms?

Back 227

The Jury

1. whether a witness has personal knowledge;

2. whether an exhibit is authentic; OR

3. whether the D is in fact the person who committed a prior bad act offered as MIMIC evidence.

Front 228

Who decides questions of admissibility?

Back 228

The Judge

1. Whether testimony is hearsay;

2. Whether a communication is privileged; OR

3. Whether an expert is qualified.

Note – for these questions, the burden of proof is preponderance of the evidence, and the judge may consider anything (i.e. the judge is not limited to admissible evidence).