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168 Cards in this Set

  • Front
  • Back
What is the primary source of evidence law on the MBE?
Federal Rules of Evidence
What is judicial notice?
Judicial Notice is the recognition of a fact as true without formal presentation of evidence (i.e., without witnesses, physical piece of paper, etc.)
When can a court take judicial notice?
A court may take notice of indisputable facts, which come in two forms 1) matters of common knowledge within the court’s territorial jurisdiction and 2) matters of easy verification by resort to unquestionable sources.
What are the two procedural aspects of judicial notice?
1) Timing: judicial notice may be taken at any time, including on appeal (so even if not on record below).
2) Effect: Judicially noticed facts are considered conclusive in civil cases, but not in criminal cases (jury gets to decide whether to accept facts as true).
What is the definition of relevance?
Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence.
What is the basic rule regarding relevant evidence?
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.
What are the six types of pragmatic considerations that a court looks at in determining whether to admit relevant evidence?
1) Danger of unfair prejudice
2) Confusion of the issues
3) Misleading the jury
4) Undue Delay
5) Waste of Time
6) Unduly Cumulative
What are the five specific policy-based exclusions to the admission of relevant evidence?
1) Liability Insurance
2) Subsequent Remedial Measures
3) Settlements in Civil Cases
4) Offers to Pay Hospital Bills or Medical Expenses
5) Pleas and Plea discussions in Criminal Cases
Is the liability insurance of the parties admissible evidence?
Evidence that person has or does not have liability insurance is inadmissible for the purpose of proving fault or absence of fault. but such evidence may be admissible for some other relevant purpose, such as proof of ownership or control, if that issue is controverted, or impeachment of a witness
When evidence is admissible for one purpose; but inadmissible for another purpose, what should the judge do?
The judge should give the jury a limiting instruction.
What is bias and when is evidence showing bias admissible?
Bias means there is some relationship between W and a party that could cause W to lie/shade the facts. Evidence of a W’s bias is almost always admissible.
What are subsequent remedial measures?
Repairs, design changes, or policy changes taken after an accident that could have prevented the accident.
When is evidence of subsequent remedial measures admissible and when is it inadmissible?
SRMS are inadmissible to prove wrongful behavior, such as negligence, culpable conduct, product defect, or the need for warning. However, such evidence may be admissible for some other relevant purpose, such as proof of ownership, control, or feasibility (the big one), if that issue is controverted.

Note, in general, the NY rule is the same as the federal rule, except that SRMs are admissible in a product liability action based on strict liability for a manufacturing defect only.
What is the rule regarding the admissibility of evidence of settlements in civil cases?
If there is a disputed claim, then evidence of settlements or offers to settle or statements made in settlement discussions Is inadmissible if offered to prove liability, but may be admissible if offered to impeach a W on the ground of bias.
What is the rule regarding the admissibility of evidence of an offer to pay a hospital bill or medical expenses?
Evidence that D has paid or offered to pay an accident victim’s hospital or medical expense is inadmissible.

Note, unlike with settlements, this rule does not include other statements made in connection with an offer to pay medical expenses and is thus very limited.
What is the rule regarding the admissibility of evidence of pleas and plea discussions in criminal cases and subsequent civil litigation?
An offer to plea guilty, a withdrawn guilty plea, no lo contendre/no contest pleas, and statements of fact in the plea discussions are inadmissible against a D in a pending criminal litigation or in a subsequent civil case:

Note, in NY, withdrawn guilty pleas are admissible in subsequent civil cases. Also note that in NY and on the MBE, a plea of guilty not withdrawn is admissible against D in subsequent litigation based on the same facts in both federal court and NY court, because a guilty plea becomes legal fact (D escapes this by pleading no lo contendre/no contest)
What is character evidence?
Character evidence refers to a person’s general disposition or propensity. For example, whether someone is honest (or dishonest), peaceful (or violent), careful (or careless).
When approaching a character evidence problem, what are the four questions to focus on?
1) Is the character evidence being offered for the propensity purpose?
2) Is the case criminal or civil? (Determines exceptions)
3) Has the door been opened for character evidence?
4) Is the evidence in the correct form?
What is the general rule regarding the admission of character evidence for a propensity purpose?
Evidence of a person’s character or past acts is inadmissible if offered to prove that the person acted in conformity with that trait.
What are the five permissible, non-propensity purposes for admitting character evidence?
Think MIMIC:

1) Motive
2) Intent
3) Mistake/Accident, Absence of
4) Identity
5) Common Scheme/Plan
What is the rule regarding character evidence that is an essential element of a civil action claim?
Evidence of a person’s character is admissible in a civil action where such character is an essential element of a claim or defense

Note, it arises in negligent hiring and defamation cases.
What is the MBE habit exception to the rule barring character evidence introduced for propensity purposes?
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
How is habit defined?
Habit is a repetitive response to a particular set of circumstances. It has two distinguishing characteristics: 1) frequency (happens a lot); and 2) particularity (specific type of activity)
What is the NY rule regarding habit evidence?
Habit evidence relating to a business, trade, or profession and evidence relating to personal habit in use of a product is admissible. However evidence relating to personal habit on the issue of due care in negligence is inadmissible.
What is the rule for admission of character evidence of the criminal D in a criminal trial?
A criminal D may introduce evidence of his own good character for a relevant trait. If D does so, the prosecution may rebut with evidence of D’s bad character for the same relevant trait
What is the form that character evidence of a criminal D must take when introduced by D on direct examination in a criminal trial?
- Federal: Reputation (what D is generally known to be in the community) or Opinion (W’s personal views of D)
- New York: Reputation only

Note, specific acts is not allowed
If a criminal D has opened the door by calling a character W, what are the two ways in which the prosecution may rebut?
1) By calling its own character witnesses to testify to D’s relevant bad character, the form of which can be reputation (federal and NY) or opinion (federal only)
2) By cross-examining D’s character W by questioning his knowledge of specific acts by D that are relevant to the character trait at issue, the purpose of which is to test W’s knowledge, not to prove specific acts. Note, there is a good faith requirement, meaning the prosecution must have a good faith basis to believe that the specific act took place.

Note, in NY, prosecution may also rebut D’s good character evidence by proving that D has been convicted that reflects adversely on character trait in issue
On the MBE, when may a criminal D introduce evidence of the character of the victim?
A criminal D may offer evidence of victim’s violent character to prove that victim was first aggressor if D raises a defense alleging self-defense.
On the MBE, if a criminal D introduces evidence of the victim's character in a self-defense case, how may the prosecution rebut?
With evidence of the Victim’s good character (for that trait) or with D’s bad character (for that trait)
On the MBE, when evidence of a victim's character is introduced in a criminal case where the D is arguing self-defense, what form must the character evidence take?
On direct examination, only reputation or opinion evidence, and on cross examination, specific acts can be discussed (but only to test character W’s knowledge)
In NY, may a criminal D who is arguing self-defense introduce evidence of the victim's character to show that the victim was the first aggressor?
No, in NY, evidence of victim’s character is inadmissible to prove victim was first aggressor.
What is the special rule of D’s knowledge of victim’s character for violence?
The D may offer evidence of D’s own knowledge of victim’s bad character for violence for the purpose of showing that D reasonably believed in the need to use self-defense.

Note, since this is not propensity evidence, any form is allowed (reputation, opinion, specific acts). Also note that NY follows this same rule.
Can D introduce evidence of the victim’s character in a sexual misconduct case?
Generally no, Under the Rape Shield Rule, a D In a civil or criminal case involving alleged sexual misconduct, a D ordinarily may not introduce evidence of the victim’s reputation for promiscuity or the victim’s prior sexual conduct
What are the exceptions to the rape shield rule?
A D may introduce 1) evidence of the victim’s sexual activity with D, but only if the defense is consent; 2) evidence of the victim’s sexual activity with others, but only to prove someone other than the D was the source of physical evidence; or 3) evidence likely to be admitted by D’s Due Process Rights

Note, in NY, evidence of the victim’s conviction for prostitution within the past three years is also admissible
What is the general rule for the admission of character evidence in civil cases?
Character evidence is generally inadmissible to prove propensity in civil cases.
What is the federal rule regarding admission of character evidence of other sexual misconduct in a sexual assault case?
In any criminal or civil case alleging sexual assault /child molestation, prosecution may offer evidence of D’s prior sexual misconduct for purpose of proving D’s propensity. There is no restriction on form.
Does NY allow for the admission of character evidence of other sexual misconduct to be admitted in sexual assault cases?
No, there is no special exception like in the federal rules.
What is the general rule regarding authentication of evidence?
The party seeking to show an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be.
Is a W's testimony that a document is genuine sufficient to authenticate it?
Yes
What are the four ways of authenticating writings?
1) Testimony by a W with personal knowledge
2) Proof of author’s handwriting by lay opinion (W must have familiarity with handwriting as a result of experience in the normal course of affairs), Expert Opinion; or jury comparison
3) Ancient Document Rule, which states that authenticity may be inferred if the document Is at least 20 years old (in NY, at least 30 years), is facially free of suspicion, and Is found where it would be expected
4) Solicited Reply Doctrine, which states that a document may be authenticated by evidence that it was received in response to a prior communication to the alleged author.
What is a self-authenticating document?
A document that is presumed authentic so that no foundation testimony is needed. Self-authenticating documents include official publications (e.g. gov't pamphlets), certified copies of public/private documents on file at a public office, newspapers and periodicals, trade inscription and labels (e.g. candy bar wrapper), acknowledged document (e.g. notarized document), commercial paper (e.g. check/promissory note), and certified business records.
How can a photograph that is being used as “demonstrative” evidence be authenticated?
If purpose of the photograph is to “illustrate” a W’s testimony, a W can authenticate the photo simply by testify that it is a fair and accurate representation of the people or objects displayed
How can a photograph that is being used as a "silent W" be authenticated?
A party offering such a photograph must show:
1) That the camera was properly installed or working; AND
2) That the recording or image has not been tampered with
What does the best evidence rule apply to?
Only writings
What is the best evidence rule?
If a party seeks to prove contents of a writing the party must either produce the writing, or provide an acceptable excuse for its absence. If the court finds excuse acceptable, the party may then use secondary evidence, such as oral testimony (or anything else) to prove the contents.
When does the best evidence rule apply?
Only when the party seeks to prove the contents of a writing, which arises in two principle situations 1) writing is a legally operating document (i.e. the writing itself creates the right and obligation); or 2) W is testifying to the facts that W learned solely from reading about them in the writing (W has no personal knowledge)
What qualifies as the original writing for the best evidence rule?
The original includes the writing itself or any counterpart intended to have the same effect. Originals include film negatives or prints from negatives and computer printouts (copies from files)
How are duplicates defined in the context of the best evidence rule?
A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy, computer printout).
What is the MBE rule for duplicates?
A duplicate is admissible to the same extent as an original, unless there is a genuine question about authenticity of the original, or it would be unfair to admit the duplicate
What is the NY rule for duplicates?
Photocopies and other duplicates are acceptable substitutes for the originals only if the duplicates were made in the regular course of business.
What is not considered an original or duplicate in the context of the best evidence rule?
Handwriting copies (needs to be mechanical) and oral testimony
When will non-production of the original be excused in the context of the best evidence rule?
A party need not produce the original (or an acceptable duplicate) if the original is lost or cannot be found with due diligence, has been destroyed without bad faith, or cannot be obtained with legal process. If the court is persuaded by a preponderance of the evidence that the excuse has been established, then secondary source is admissible.
What are the three escapes from the best evidence rule requirements?
1) Certified copies of public records
2) Voluminous records
3) Collateral documents (the court decides the document is unimportant to the issue in the case)
What is real evidence?
Real evidence is actual physical evidence that is displayed to the trier of fact.
What is the authentication rule for real evidence?
The party seeking to introduce real evidence must introduce sufficient evidence for a reasonable jury to find that the item is what the party claims it to be.
What are the two methods of authenticating real evidence?
1) If physical evidence is distinctive, then personal knowledge is sufficient to authenticate
2) If physical evidence is not distinctive/generic, then the party must show a chain of custody
What must be shown if the condition of real evidence is relevant?
If the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition
In federal diverse cases, courts should apply state law with respect to what?
1) Burden of proof and presumptions
2) Dead Man’s Statutes
3) Privileges
What are the four testimonial privileges recognized by federal courts?
1) Attorney-Client
2) Husband-Wife
3) Clergy-Penitent
4) Psychotherapist-Patient

Note, although not recognized by the federal courts, the majority of states, including NY, also recognize doctor-patient privilege
What additional two testimonial privileges does NY state recognize?
1) Social Worker-Client
2) Reporter-Source
What are the four general requirements for testimonial privileges?
1) Communications (thus not underlying Information, ore-existing documents, or physical evidence)
2) Between members of a status relationship
3) When the communication is intended to be confidential
4) And sometimes only when made for a specific purpose
In the context of testimonial privileges, who has the power to make a voluntary (explicit) waiver?
Only the privilege holder
When does a subject matter waiver apply in the context of testimonial privileges?
A voluntary waiver of the testimonial privilege as to some communications will also waive the privilege as to other communications when the partial disclosure is intentional, the disclosed and undisclosed communications concern the same subject matter, and fairness requires that the disclosed and undisclosed communications be considered together
When will an inadvertent waiver of the testimonial privileges not apply?
An inadvertent disclosure of a privileged communication will not waive the privilege, so long as the privilege holder took reasonable steps to prevent the disclosure and took reasonable steps to rectify the error
What are the three exceptions to the testimonial privileges?
1) Future Crime or Fraud
2) Holder Puts the Content in Issue
3) A Dispute Between Holder and Professional
What are the three elements of the attorney-client privilege?
1) Confidential Communications
2) Status: Client and Attorney
3) Purpose: For purpose of obtaining legal advice
For the attorney-client privilege, what does attorney include?
Members of the bar, anyone the client reasonably believes is an attorney, and representatives of the attorney
For the attorney-client privilege, what does client include?
Clients, prospective client, and representatives of the client
When is there no confidentiality between the attorney and client so that the attorney-client privilege does not apply?
1) the client knows a third party is listening
2) the client asks the attorney to disclose to a third party.
3) If two or more clients with common interest consult the same attorney and later have a dispute with each other concerning the common interest
What is the joint client rule?
If two or more clients with common interest consult the same attorney, their communications with counsel concerning 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.
What are the three elements of the doctor-patient privilege?
1) Confidential Communications and Information
2) Status: Doctor and Patient
3) Purpose: Medical Treatment
What is the definition of doctor include in the context of the doctor-patient privilege?
Therapists, nurses, doctor’s assistants.

Note, in New York, it includes dentists, podiatrists, and chiropractors as well.
How far does the scope extend for the doctor-patient privilege?
The scope extends not only to communications but also to include information acquired by the doctor
What are the three elements of the marital communication privilege?
1) Confidential Communications
2) Status: Married Spouses
3) Purpose: Any Purpose
Who can invoke the marital communication privilege and how can it be waived?
Either spouse may invoke the privilege, meaning that it can be waived only by both spouses
Is the spousal immunity privilege recognized in NY?
No, it is not recognized
What is the federal rule regarding the spousal immunity privilege?
In a criminal case, the prosecution cannot compel D’s spouse to testify against D
What are the four elements of the federal spousal immunity privilege?
1) Applies only to criminal cases
2) Covers only testimony against spouse
3) So long as witness and D are currently married
4) May be waived by the W spouse
What are the two exceptions to the federal spousal immunity privilege?
1) Communication or acts in furtherance of future crime or fraud (e.g. joint criminal activity)
2) Communication or acts that are destructive of the family unit (e.g., spousal or child abuse)
What is the hearsay rule?
Absent an exception or exclusion, hearsay is inadmissible.
What is the definition of hearsay?
An out-of-court statement (oral or written) by a person (not animals and not machines) offered to prove the truth of the matter asserted
When is an out of court statement not hearsay?
When it's not offered to prove the truth of the matter asserted in the statement.
What are the four principle categories of non-hearsay purposes?
1) Impeachment (to show a W has been inconsistent)
2) Verbal Acts (words with independent legal significance, such as an oral K)
3) To Show Effect on Persons Who Heard or Read the Statement (e.g., show someone is on notice)
4) Circumstantial Evidence of Speaker’s State of Mind (e.g., show speaker is insane)
What is the general rule regarding prior statements of a trial W?
A W’s own prior (out-of court) statement, even if W is now present at trial, is hearsay if offered to prove the truth of the matter asserted, and is inadmissible unless an exception or exclusion applies.
On the MBE, when are prior statements of a trial W excluded from the definition of hearsay?
1) A prior statement of identification (in NY, this exception only applies in criminal cases)
2) A prior inconsistent statement, if made under oath during a formal proceeding, which does not include police statements (this hearsay exception is not recognized in NY, although inconsistent statements can be used for impeachment).
3) A prior consistent statement, if used to rebut an accusation of a motive to lie and made before motive arose (Ny does not recognize this exception, but consistent statements can be used for rehabilitation purpose)
What are the top ten hearsay exceptions which fall under three umbrella categories depending on who the declarant is?
- Declarant is Opposing Party to Case
1) Party Admission
- Declarant is unavailable
2) Former Testimony
3) Forfeiture by Wrongdoing
4) Statement against Interest
5) Dying Declaration
- Declarant is anyone
6) Excited Utterance
7) Present sense impression
8) Statement of then-existing mental, emotion, or physical condition
9) Statement for purpose of medical treatment or diagnosis
10) Business and public records
What is the hearsay rule regarding party admissions?
Any statement made by a party is admissible if offered against the party (i.e. offered by the other side)
What is the federal rule regarding vicarious party admissions?
A statement by an agent/employee of a party is admissible against the party (principle/ER) if it concerns a matter within the scope of the agency or employment and was made during agency/employment
What is the NY rule regarding vicarious party admissions?
A statement by an employee or agent is admissible against the principle only if the agent or employee had speaking authority (e.g., CEO, general counsel, VP for Communication)
What is the hearsay rule regarding vicarious admissions by co-conspirators?
A statement of one co-conspirator is admissible against other co-conspirators if it was made during and in furtherance of the conspiracy.
What are the five grounds for declarant unavailability on the MBE?
1) Privilege (declarant claims privilege)
2) Absence from the Jurisdiction (can’t find W)
3) Illness or Death
4) Lack of Memory
5) Stubborn refusal to testify
What are the five grounds for declarant unavailability in NY?
1) Privilege
2) absence from jurisdiction
3) illness/death
4) Declarant is located 100 miles or more from the courthouse
5) Declarant is a doctor
What are the three elements to the former testimony hearsay exception on the MBE and in NY civil cases?
1) The declarant is unavailable
2) The prior statement was given in a proceeding or deposition
3) The statement is offered against a party who, on the prior occasion, had opportunity and a similar motive to cross-examine or otherwise develop the testimony.
How can you establish similar motive in the context of the former testimony hearsay exception?
To establish similar motive, the former testimony must have been taken in a substantially similar context (so that the party had a similar incentive to cross-examine)

Note, the grand jury proceeding is not a prior occasion with opportunity to cross
What is the former testimony hearsay exception for NY criminal cases?
The former testimony by a now-unavailable W must have been given at a criminal trial, a hearing on felony complaint or at conditional deposition. D and charge must be the same in both former and current case (i.e., when you have a mistrial).
What is the rule for the forfeiture by wrongdoing hearsay exception?
A declarant’s OOCS may be offered against any party who intentionally (to prevent W from testifying and wrongfully (including acquiescing in wrongdoing) made the declarant unavailable
What is the burden of proof regarding a party's wrongdoing for the forfeiture by wrongdoing hearsay exception on the MBE and in NY?
Federal: Preponderance of the Evidence
NY: Clear and convincing Evidence
When is a statement against interest admissible as a hearsay exception?
Declarant is unavailable and statement is against declarant’s proprietary or penal interest

Note, in a criminal case, a statement against penal interest offered to help accused must be supported by corroborating circumstances.
What are the three elements of the dying declaration hearsay exception?
1) Declarant is unavailable
2) Statement was made under a belief of certain and impending death, and
3) Statement concerns cause or circumstances of impending death
What are the limits to the dying declaration hearsay exception in NY and on the MBE?
Federal: Civil of Homicide cases
NY: Criminal Homicide cases only
What are the two elements of the excited utterance hearsay exception?
1) The statement concerns a startling event
2) The statement was made while the declarant was still under the stress caused by the event
What factors may make a statement qualify as an "excited utterance" for the excited utterance hearsay exception?
1) Traumatic Event
2) Relatively short passage of time (no bright line real)
3) Verbal Clues (e.g. shouted/screamed)
What are the two elements of the present sense impression hearsay exception?
1) The statement describes an event
2)The statement is made while the event is occurring, or immediately thereafter (seconds not minutes)

Note, NY requires corroboration
What does the statement of then-existing mental, emotional, or physical condition hearsay exception allow admission of?
A confidential 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) is admissible. The exception 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.
What are the NY distinctions for the then-existing mental, emotional, or physical condition hearsay exception?
1) If a statement of present physical condition is made to a layperson (not a doctor), the declarant must be unavailable
2) If a statement of future intent is offered to prove the conduct of a third person, NY requires corroboration (of the connection between the declarant and the third person) and that the declarant is unavailable.
What does the hearsay exception for the statements for purpose of medical treatment or diagnosis allow admission of?
Any statement made for the purpose of diagnosis or treatment concerning present symptoms, past symptoms, general cause of medical conditions

Note, in NY, this exception does not apply to statements made solely for the purpose of obtaining expert testimony at trial.
What does the business and public records hearsay exception allow admission of?
Records of a Business (any type, including public agencies) made in the regular course of business where the business regularly keeps such records, the records were made contemporaneously (at or about the time of the event recorded), and the content consist of information observed by employees of the business, or a statement that falls within some other hearsay exception
What is the federal hearsay rule for public records?
In addition to observations by employees of the public agency, public records may also include conclusions by public employees after an official investigation (e.g. police officer’s conclusion about fault in an accident report)

Note, a police report may not be used against a criminal D.
Is the public records hearsay exception often applicable in NY?
No, the public record exception is more restrictive and rarely applies, so just use business record exception.
What are the two ways to lay the foundation for business records?
1) Live Testimony: Call a knowledgeable W who can testify to the five elements of the business records hearsay exception (often called “custodian of records”).
2) Affadavit: Submit a written certification under oath attesting to elements of business records hearsay exception.

Note, in NY, written certification may be used only in civil cases and only for business records of a non-party.
Are accident reports admissible in NY under the business record hearsay exception?
Yes, accident reports prepared in the regular course of business operations or practice are admissible in NY, even if made in anticipation of future litigation
What is the rule regarding hearsay and the confrontation clause?
In criminal cases, the Sixth Amendment requires that D be “confronted with W against him,”
which means the prosecution may not offer testimonial hearsay in violation of the D’s right to cross-examine the declarant.
In the context of the confrontation clause, when is the right to cross-examine satisfied?
i) D already had the chance to Cross-examine Declarant (e.g. the former testimony exception)
2) D can cross-examine declarant at trial (e.g. prior statement of a trial witness), or
3) D forfeited his right through W tampering (e.g., forfeiture by wrongdoing)
What are some examples of when an OOCS is considered testimonial under the confrontation clause?
1) Grand jury testimony
2) Statements in response to police interrogation when the primary purpose of the questioning is to establish or prove past events potentially relevant to later prosecution (it is non-testimonial if primary purpose of questioning is to enable police assistance to meet an ongoing emergency)
3) Documents like police reports are testimonial, but documents like business records are not testimonial
What are the two requirements for a W considered competent on the MBE?
i) W must have personal knowledge (i.e., observe with own eyes/ears) and
2) W must take an oath, which demonstrates an understanding of obligation to tell the truth, and embodies a promise to tell the truth
What is the NY rule regarding testimony by children?
The general rule is that a child may testify under oath so long as child understands obligation to tell the truth and promises to tell the truth. However, in criminal cases, a child under the age of 9 who can’t understand the oath may still testify (give unsworn testimony), but a D cannot be convicted based solely on unsworn testimony; there must be some corroboration.

Note, children 9 and under may still give sworn testimony as long as they understand
Is there a Dead Man's Statute in federal courts?
No, there is not.
What do dead man's statutes generally provide?
In a civil action, an interested party (operative word) may not testify against a dead party about communications or transactions with dead party
When is a person interested in the context of the dead man's statutes?
A person is “interested” only if the outcome in the case will have legally binding effect on person’s rights or obligations (about financial interests)
When may a dead man's rights be waived in the context of the dead man's statues?
Decendent’s representative does not object, decendent’s representative testifies about the transaction, or decendent’s testimony is introduced.
Does NY have a Dead Man's Statute?
Yes, it is generally similar to the rule in most other states with one important exception (the accident exception).
What is the accident exception to NY's Dead Man's Statute?
In an accident case based on negligence, the surviving party may testify about the facts surrounding the accident (what decedent did) but may not testify about conversations w/ decedent (what decedent said)
What are leading questions?
A question is “leading” when the form of the question suggests the answer (e.g., “Isn’t it a fact that...?”; or unevenly balanced alternatives).
What is the general rule regarding leading questions?
1) Leading questions are generally not allowed on direct examination of witness (when W is your own).
2) Leading questions are generally allowed on cross-examination of W (only thing supposed to be doing on cross)
What are the four situations where you can ask leading questions on direct examination?
1) Preliminary Introductory Matters (e.g., you live in D’s neighborhood?)
2) Youth of forgetful W
3) A hostile W
4) An adverse party or someone under the control of adverse power
Is cross-examination a right?
Yes. If a W testifies but then cannot be cross-examined, the W’s direct testimony will be struck.
What does the scope of cross-examination include?
1) Matters within the scope of direct examination, and
2) Matters that affect the W’s credibility
What is the rule regarding lay W opinion testimony?
Lay opinion testimony is admissible if it is rationally based on the W’s direct observations (personal knowledge) and helpful to the jury

Examples include Sobriety (or drunkenness), emotions (e.g., anger), speed, handwriting, and smells
What is the general rule regarding expert W opinion testimony?
A W may testify to an opinion as an expert only if W is qualified (by education and/or experience), the testimony is about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury, the opinion has proper basis (based on analysis that makes sense), and the opinion is reliable
What is the proper basis for expert W opinion testimony?
- The opinion must be made to a “reasonable degree of probability or reasonable certainty,” and
- The opinion must be based on one of following three data sources: 1) the expert’s personal knowledge; 2) evidence that is already in the trial record; 3) facts outside the record but only if those facts are of a type reasonably relied on by experts in the particular field.

Note, if expert relies on facts outside the record, the expert may generally discuss the basis of the opinion, but may not disclose the inadmissible facts to the jury. The opponent, however, may disclose the underlying basis on cross-examination.
What is the rule regarding reliability and expert W opinion testimony?
To be admissible, expert opinion must be sufficiently reliable, which means the expert has used reliable methods and has reliably applied those methods to the particular facts of the case.
What is the federal rule regarding reliability and scientific expert W opinion testimony?
The Daubert Standard, which includes four factors:
1) Has the methodology been tested?
2) Are there known error rates?
3) Has the methodology been subject to peer review?
4) Has the methodology been generally accepted?
What is the reliability standard used in NY for scientific expert W opinion testimony?
NY asks only whether the methodology has been generally accepted by the relevant professional community (the Frye Standard)
Is opinion testimony permissible if it goes to an ultimate issue in the case?
Yes, opinion testimony (lay or expert) generally is permissible even if it addresses an “ultimate issue” in the case

Note, in federal criminal cases, an expert W may not testify that the D did or did not have the required mental state.
When is a learned treatise in aid of expert testimony admissible under federal law?
If a party can establish a treatise is a reliable authority, the treatise may be used on direct or cross-examination of an expert, and it may be read to the jury as substantive evidence (hearsay exception). However, the treatise may not be introduced as an exhibit (may not be shown to the jury)
What are the three ways to establish authoritativeness of a learned treatise introduced in aid of expert testimony in federal law?
1) 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. (e.g., book so well known and commonly used)
When is a learned treatise in aid of expert testimony admissible in NY?
- 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
(no hearsay exception)
- On cross-examination, it may only be used to impeach the opponent’s expert’s credibility, not as substantive evidence, and it may only be used if the opponent’s expert either relied on the treaties in developing his own opinion or acknowledged that it is a reliable authority (only can impeach if accepted treatise as authoritative)
What is the basic rule for present recollection refreshed?
A W may not read from a prepared memorandum and must testify on basis of current recollection, but, if a W forgets something he once knew, he may be shown a writing (or anything else to jog the memory).
What are the safeguards against abuse for present recollection refreshed?
If an item is used to refresh a W’s memory, opposing party has a right to:
1) Inspect
2) Use on Cross
3) Introduce it into Evidence
What is the past recollection recorded hearsay exception?
A writing may be read to jury as a “past recollection recorded” if
1) W once had personal knowledge
2) W now forgets and showing writing to W fails to jog W’s memory
3) Writing was either made by W or adopted by W
4) Writing was made when the event was fresh in W’s memory
5) And, the W can attest that, when made, the writing was accurate
If the foundation for a recorded recollection is satisfied, then by what method may the past recollection recorded be introduced into evidence?
W may read the document to the jury, but W may not show the document to the jury. However, the opposing party may show the document to the jury (by introducing it as an exhibit)

Note, in NY, the party using the recorded recollection may also introduce the record as an exhibit (i.e., show it to jury)
What kinds of attacks on W testimony are not subject to special restriction?
Attempts to discredit W’s testimony as either bias, mistake/misperceived, or inconsistent are not subject to special restriction
What is the definition of bias?
Some relationship between the W and a party – or some other interest in the litigation – that could cause the W to lie.
What is the definition of misperception?
Anything that could affect the W’s perception or memory
Examples include bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the W stand.
What is the definition of a prior inconsistent statement?
A prior inconsistent statement is simply a prior statement (oral or in writing) that is materially inconsistent with W’s trial testimony.
What is the rule regarding prior inconsistent statements and attacks on W testimony?
A prior inconsistent statement may be used to impeach a W

Note, under the federal rules, a prior inconsistent statement may be admissible both as impeachment and as substantive evidence if it's made under oath during a formal proceeding
What are the procedural considerations for impeaching W for inconsistent statements?
A W who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement.
In NY, W must be given a chance to explain statement while on stand (must be raised intrinsically during cross), while under the federal rules,the inconsistent statement may be proven with extrinsic evidence as long as the W is later given an opportunity to return to the stand and explain.

Note, if W is the opposing party, there is no need to give W/party an opportunity to explain prior inconsistent statement.
What is veracity?
The character trait of being truthful. A W’s bad character for veracity is a frequent subject of impeachment and is governed by very specific rules.
What are the three methods for attacking veracity?
1) Reputation or Opinion
2) Criminal Convictions
3) Prior Bad Acts (without convictions)
What is the rule regarding attacking a W's bad character for truthfulness?
A party may attack a W (the “target W”) by calling another W (the “character W”) to testify to target W’s bad character for veracity
What is the form testimony about a W's bad character for veracity must take?
- Federal: Reputation or Opinion
- NY: Reputation Only

Note, specific acts are not allowed
What is the NY rule regarding attacking a W's character for veracity using evidence of past criminal convictions?
Any W may be impeached with a conviction for any crime. However, there is special rule for Criminal Ds that provides that when W is criminal D, the court must conduct a hearing to balance probative value of the conviction (on issue of veracity) against risk of unfair prejudice (this hearing is called a Scandoval hearing)
What is the federal rule regarding attacking a W's character for veracity using evidence of past criminal convictions?
To be admissible, a conviction (or the release from prison, whichever is later) must be within 10 years of the trial. Crimes of dishonesty or false statement are always admissible. Misdemeanors (not involving dishonesty or false statements) are not admissible. Felonies (not involving dishonest or false statements) are admissible if the probative value of the conviction (on the issue of veracity) outweighs the risk of unfair prejudice to a party.
What are crimes of dishonesty or false statement?
A crime that, by definition, involves a lie or betrayal of trust, such as perjury, false statement, fraud, and embezzlement.

Note, crimes of violence, drug crimes, and theft do not count.
When courts balance the probative value and unfair prejudice in order to determne whether a past criminal conviction should be admissible for an attack on a W's character for veracity, what factors should the court look at?
- Factors that make a conviction probative: Seriousness (murder is more probative of veracity than possession of marijuana) and relation to trust and deception (even if not a crime of deceit; e.g., theft is more probative than reckless driving)
- Factors that make a conviction unfairly prejudicial are it's Inflammatory nature (child molestation vs. DWI) or if it is similar to the currently charged offense (risk of propensity reasoning if similar offenses)
How may a past criminal conviction be proven in the context of attacks on a W's character for veracity?
Conviction may be proven intrinsically (by asking W about it on cross-examination) or extrinsically (by introducing a record of the convictions)

Note, in NY, an admission by W on cross that he has been convicted does not preclude cross-examiner from questioning W further to ascertain the criminal act that was the basis of the conviction.

Also note, there is no need to give W an opportunity to explain
What is the federal rule concerning the admissibility of bad acts (not convictions) that reflect adversely on the character W's character for truthfulness?
A W may be asked about prior bad acts if those acts relate to veracity or truthfulness
What is the NY rule concerning the admissibility of bad acts (not convictions) that reflect adversely on the character W's character for truthfulness?
A W may be asked about prior bad acts that show W’s moral turpitude.
What are the limitations to introducing bad acts (not convictions) that reflect adversely on the character W's character for truthfulness?
- Basis: The cross-examiner must have a good faith basis to believe that the bad act occurred (can’t make stuff up)
- Proof: The bad act may be proven by intrinsic evidence only (the cross-examiner is stuck with the W’s answer)

Note, proof by extrinsic evidence may still be allowed if the bad act is relevant for some other purpose (such as proof of bias)
Under the federal rules, may a party impeach its own W?
Yes, a party may impeach its own W
Under NY's Voucher Rule, may a party impeach its own W?
By calling W, a party “vouches” for that W’s credibility, which means that, ordinarily, the party who calls a W may not impeach that W.
What are the exceptions to NY's Voucher Rule?
A party may impeach its own W with a prior inconsistent statement that was made in writing and signed by W, or made in oral testimony and was under oath. However, in a criminal case, this exception may be used only if W’s current testimony is “affirmatively damaging” to the party who called the W, and not merely a “cloud on credibility”
What is the definition of rehabilitation in the context of W credibility?
The process of trying to repair a W’s credibility after the W has been attacked.
When may a party rehabilitate a W?
Generally, a W may be rehabilitated only after W’s credibility has been attacked through impeachment.
What is bolstering in the context of W credibility?
Introducing evidence to support W’s credibility before an attack on W’s credibility. This is not allowed.
What are the two methods of rehabilitation in the context of W credibility?
1) Character Evidence: If a W’s character for truthfulness has been attacked, then the opposing party may introduce corresponding evidence of the W’s good character for truthfulness (Federal: Reputation or Opinion; NY: Reputation only; not allowed: specific acts)
2) Prior Consistent Statement: A prior statement may be used to rehabilitate if the prior statement is consistent with the W’s trial testimony, the opposing party has suggested through impeachment that W has motive to lie, and the prior statement was made before the motive to lie arose (note, under federal law , this is also a hearsay exception, while in NY this is only admissible for rehabilitation purposes)
Who decides questions of conditional relevance or, in other words, preliminary facts that make the evidence relevant, such as whether an exhibit is authentic?
The jury decides these questions. The judge’s only role for such questions is simply to ensure that there is sufficient evidence for a reasonable jury to conclude that the conditional fact is true
Except for conditional relevance, who decides all other questions of admissibility, such as whether testimony is hearsay, whether a communication is privileged, or whether an expert is reliable?
The judge