Lecture 29 -- New York And Multistate Evidence Part I

Front 1

What is the process of interviewing a witness?

Back 1

Generally, the plaintiff calls witnesses first for direct testimony. When the testimony is completed, defense counsel then cross-examines the witness. When cross-examination is completed, the plaintiff may then conduct redirect examination which is limited to those new areas gone into by the witness on the defendant's cross-examination. Once the plaintiff has offered all her exhibits, all her witnesses, then the plaintiff rests her case, which then allows the defense to call witnesses that it wants the jury to hear and the plaintiff will cross-examine those witnesses.

Front 2

When does impeachment of a witness occur?

Back 2

Impeachment of a witness occurs after the witness's given testimony on direct examination. It occurs by cross-examining that witness or by subsequently introducing contradictory testimonial or documentary evidence.

Front 3

How is cross-examination (X) conducted?

Back 3

Cross-examination (X) most frequently is performed by asking the witness "leading questions" in which W is asked to agree or disagree to the question by simply answering yes or no. A leading question describes an incident or a fact and it suggests an answer to be given by the witness. It literally puts words into the witness's mouth.

Front 4

Generally, leading questions are allowed only on X, but in the court's discretion, they are permitted on direct examination of a HAIRY witness. What does HAIRY stand for?

Back 4

H - a hostile, unwilling, or biased witness (e.g. a parent of a party or a witness who suddenly changed her version of the story).
A - when calling an adverse party to testify.
Whenever a party is called to testify by the opposing party, then the subsequent X by that party's own attorney poses the same danger of leading questions on direct examination. Thus, the X of an attorney's own client must proceed with non-leading questions. See the answer to question 14, pg. 22.
I - a witness identified with the adverse party (e.g. a party's partner or an officer of a corporate party).
R - a witness whose recollection is exhausted and needs refreshing.
Y - a witness very young or old with communication problems.

Front 5

When are leading questions permitted?

Back 5

Leading questions are also permitted on direct to bring out pedigree or when used to establish undisputed factual issues (to save time)

Front 6

Generally, the scope of X is limited to matters of the witness's credibility (CRIB PIC) and to those matters W testified on direct examination including which 2 things?

Back 6

(a) any implication or inferences arising from W's direct testimony or
(b) matters only partially disclosed by W.
This rule has been liberally construed to allow X into all inferences and implications arising from W's direct testimony. Thus, the X examiner is not confined to the exact details brought out on W's direct examination.

Front 7

Problem: P was injured in a slip and fall in the Defendant's shopping mall. P called D as a hostile witness to establish D owned the property where P fell. On X of D, can D's own attorney ask in non-leading questions about the reasonable precautions D took to make the property safe?

Back 7

No, because it goes beyond D's direct examination, but the court always has discretion to permit it. If the court permits the questioning of a witness beyond those areas discussed on direct examination or on matters involving CRIB PIC impeachment, then the witness must then be questioned as if on direct examination.

Front 8

What can the attorney that called the witness do after the witness has been cross-examined?

Back 8

After any witness has been cross-examined, the attorney who originally called that witness can engage in redirect examination of that witness, but the questioning is now limited only to those new matters raised on X.

Front 9

The credibility of an FRE witness may be impeached by any party including the party who called that witness. However, a NY party who calls a witness vouches for that witness's credibility even when calling an adverse party or a hostile witness. NY prohibits CRIB PIC impeachment of a party's own witness except with a prior inconsistent made how? (2 things)

Back 9

1. in a signed writing or
2. orally made under oath under penalty of perjury. (e.g. grand jury testimony or testimony at an EBT). Also, a NY party's own witness can also be impeached by subsequently introducing contradictory evidence.

Front 10

In a NY criminal trial, before the DA can use a prosecution witness's prior grand jury testimony made under oath to impeach that witness's surprise inconsistent testimony, must be what to destroy the entire case?

Back 10

It must be so damaging to the people's case that it destroys the entire case.
Example: A witness’s mere failure to recall the event does not open the door to impeaching that witness, but that witness’s statement that the defendant doesn’t look like the perp that committed the crime, opens the door to using that witness’s prior grand jury testimony.

Front 11

When can a missing witness jury charge occur?

Back 11

If a NY party does not call an available favorable witness who has knowledge of a material issue and who would be expected to support that party's version of the facts (the DA does not call a police officer who witnessed the crime or the plaintiff does not call her spouse who witnessed her injury), the opposing counsel may request a "missing witness charge" that creates an inference that the testimony of the missing witness would have been unfavorable to that party. This jury charge must be requested promptly, but no later than the close of proof in order to avoid surprise.

Front 12

When a defendant's expert doctor gave a PAID MAID physical examination of the injured plaintiff, but did not testify at trial, then what may the plaintiff ask for the court?

Back 12

Then the plaintiff may ask the court for a jury charge that jury can infer that the defendant's doctor's testimony would have been unfavorable to the defendant.

Front 13

To rebut this inference, and burst the bubble, a party must show the missing witness was simply UCC. Explain what UCC stands for.

Back 13

U - unavailable (e.g. a defendant's accomplice who was subpoenaed and invoked the 5th or where the witness died or is missing).
C - the testimony would be cumulative or
C - the witness was not under that party's control.

Front 14

Why do federal courts reject the missing witness inference (aka the uncalled witness rule)?

Back 14

Federal courts reject the missing witness inference (aka the uncalled witness rule) because unlike NY where a party who calls a witness cannot impeach that witness, a party calling an FRE witness does not vouch that witness's credibility and FRE freely allows impeachment of a party's own witness. Thus, an FRE witness is not under the control of just one party and either party could have subpoenaed that witness to testify.

Front 15

When can a missing document charge be requested?

Back 15

A missing document charge can also be requested for documents that were in a party's control and on whom a notice to produce was served, or a subpoena was served for its production, and the non-production of that document was not reasonably explained.

Front 16

How do religious beliefs of a witness affect a case in court?

Back 16

Religious beliefs or the lack thereof of a witness cannot be used to impeach or to rehabilitate that witness, but such beliefs may be relevant to show bias in a case where the witness's church, mosque or synagogue is a party to the litigation.

Front 17

Example: In MBE, an army convoy forced the plaintiff's car off of the road. Can the plaintiff's witness, W be X examined that her religion disapproves of the military?

Back 17

Yes, to show W's possible bias.

Front 18

The credibility of a witness can be impeached by using a CRIB PIC. What does CRIB PIC stand for?

Back 18

C - Impeachment by contradiction.
R - impeachment by a witness's reputation for untruthfulness.
I - impeachment by prior VIC acts
B - bias.
P - impeachment by prior inconsistent statements.
I - influence of drugs or alcohol
C - impeachment by prior convictions.

Front 19

Explain in more detail what the first C from CRIB PIC stands for.

Back 19

C - Impeachment by contradiction.
This involves subsequently introducing real or testimonial evidence (a document, a photo, or another witness's version of the event) to contradict a witness's earlier testimony.
Contradictory evidence cannot be introduced to impeach a witness on "collateral issues", which are issues that simply are not relevant in the case such as a witness's credibility.

Front 20

Explain in more detail what the R from CRIB PIC stands for.

Back 20

R - impeachment by a witness's reputation for untruthfulness.
Generally, a person's "character" (her propensity to act in a particular way) is not admissible for the purpose of circumstantially proving conduct consistent with that character trait. Habit testimony is the exception to this rule. This rule prevents a jury from finding a defendant guilty of a crime or negligent because the defendant's character showed him to have previously been violent, dishonest, or a negligent person.
An exception to this rule that prohibits character evidence to show propensity is to allow evidence of a witness's reputation within a community for being untruthful for the purpose of impeaching that witness.
A prior witness's reputation for untruthfulness may be introduced by witness #2 testifying about witness #1's current bad reputation within the community. Witness #2's testimony is circumstantially offered for the purpose of inferring that witness #1 is not worthy of belief.
Reputation witness #2 must lay a foundation that witness #2 knows of witness #1's untruthfully reputation (i.e. he recently discussed it with others or recently heard others discussing it and this testimony is not deemed hearsay). W #2 does not have to know W#1 personally. Once this foundation is laid and W#2 testifies about W#1's reputation for being untruthful, then W#2 can then be asked (in both NY and MBE) based on this bad reputation, whether w#2 would believe w#1 under oath.
FRE, but not NY, allows w#2 to then give her opinion as to w#1's truthfulness provided a foundation is laid that w#2 knows w#1. "What is your opinion of w#1?" "He's a loathsome liar." or "Would you consider w#1 to be a truthful person?"
On her direct testimony w#2 cannot testify about specific instances of w#1's untruthful or dishonest acts. W#2 can only testify as to w#1's reputation for untruthfulness. However, on X of w#2, she may be asked whether she is aware of specific instances of w#1's prior honest or truthful conduct inconsistent with dishonesty.

Front 21

Example: After w#1 testifies for the defendant, the plaintiff called w#2 who testified w#1 had been embezzling money from the bank. This specific instance of misconduct cannot be used since only reputation evidence is admissible and not specific instances of w#1's misconduct. Can the attorney who called w#1 now call w#3 to impeach the reputation of w#2 or is reputation testimony limited only to impeaching a witness who gave substantive evidence in the case (the NY view)?

Back 21

Under FRE, this issue is left entirely to the judge's discretion to determine whether calling w#3 would cause M-CUP of confusion and undue delay.

Front 22

Under the I from CRIB PIC, the first reason in which reputation evidence is admissible is when?

Back 22

1. after w#1's character for truthfulness has been affirmatively attacked by VCR (prior VIC acts, convictions, or bad reputation for truthfulness within the community), then w#1's reputation for truthfulness can then be rehabilitated, by offering the testimony of w#3 as to w#1's reputation for truthfulness, but specific instances of truthful conduct involving w#1 remain inadmissible on direct examination of the good reputation witness. See lecture 33 rehabilitation of an impeached witness.

Front 23

Under the I from CRIB PIC, the second reason in which reputation evidence is admissible is when?

Back 23

2. when a character trait or reputation is an essential element in a civil or criminal claim or defense, then any kind of RIP character evidence is admissible.

Front 24

Under the I from CRIB PIC and under the second reason in which reputation evidence is admissible, the acronym RIP stands for what?

Back 24

R - reputation within the community
I - specific instances of prior conduct
P - personal opinion

Front 25

Under the I from CRIB PIC, the third reason in which reputation evidence is admissible is when?

Back 25

3. In a criminal case even if the criminal defendant does not take the stand, her attorney may introduce good reputation within the community of the defendant's character trait relevant to that crime to circumstantially infer that D's good character rendered it unlikely that she committed the crime, but specific instances of D's good conduct are inadmissible.
Example: In a criminal fraud case, defense counsel is allowed to call a reputation witness to testify that D is known within the community to be an honest person (which may create a reasonable doubt of the defendant's guilt).
However, on X examination of D's good character witness, she may be asked about specific instances of the defendant's prior misconduct or prior convictions relevant to the character trait involved in that crime. Thus, a criminal defendant must have a truly unblemished background before offering good character testimony.
After a criminal defendant offers good reputation witnesses, then the prosecution can then offer evidence of the defendant's bad reputation for the trait involved in that crime, but only if the criminal defendant first puts it in issue (the defendant must first open the door).
In a rape case on the defendant's direct case could D offer the testimony of the local priest that the defendant belonged to the parish rape crisis counsel? No, only good reputation evidence, but not specific acts of the defendant's good character are admissible on the direct testimony of a reputation witness.

Front 26

Explain in more detail what the first I from CRIB PIC stands for.

Back 26

I - impeachment by prior VIC acts
Any MBE witness who takes the stand INCLUDING A TESTIFYING PARTY can be impeached by specific instances of her prior VIC conduct that bear upon untruthfulness. For example, prior acts demonstrating W's dishonesty or falsity. FRE VIC X-examination focuses on the witness's prior deceit to show her willingness to place her own personal VIC interests above those of society. For example, filing a fraudulent tax return, forgery, cheating on an exam, writing bad checks, bribery, lying on a government form, embezzlement, fraud (SIR M), or perjury. VIC evidence is admissible even though the witness was never charged with or convicted for the VIC act.
NY allows any prior VIC acts to impeach a witness. For example, a prior battery, illegally entering the US, or adultery.
The NY DA must provide a list of uncharged VIC acts that it intends to use to impeach the defendant's credibility if the defendant testifies at his trial.
VIC acts must be asked with a good faith basis for doing so.
A matter is "collateral" if it does not directly relate to an issue in the case and thus would not otherwise be independently admissible and relevant in the case. The X-examiner is bound by W's untruthful answers to VIC and W may not be contradicted by offering contradictory evidence or calling other witnesses to contradict W's answers.

Front 27

In both civil and criminal cases, any testifying party or witness may invoke the 5th amendment right against self-incrimination when X-examined on prior VIC acts or uncharged crimes collateral to the present litigation. For the purpose of impeaching a witness's credibility, can a witness be asked whether he has been "arrested or indicted" for bounced checks?

Back 27

No, the fact of an arrest or grand jury indictment is a mere accusation. Opposing counsel should object to the form of the question. W can be X-examined on the underlying VIC act of bouncing checks, but not as to an arrest or an indictment.

Front 28

Explain in more detail what the B from CRIB PIC stands for.

Back 28

B - bias.
Bias is any relationship between a witness and a party that might cause the witness to lie. Bias is a motive to falsify arising out of love, fear, greed, sympathy or hate. The X-examiner wants to show the jury that W's testimony may be affected by this bias.
Example: W, the DA's witness testified that W purchased drugs from the defendant. On X-examination, can W be asked whether W has recently been indicted and whether his criminal trial is pending? Yes, not for VIC impeachment purposes which is not permissible, but to show W's possible bias for testifying favorably for the DA in exchange for a better plea or more lenient sentence. The jury should be advised that W's testimony should be scrutinized on whether any benefit received from the state may have affected the truthfulness of W's testimony.
In NY, before opening statements, the DA must reveal the existence of any pending criminal charges and the prior criminal record of all prosecution witnesses.
Bias is not deemed a collateral matter. Thus, if the witness denies bias, the X-examiner can call another witness to establish the bias.

Front 29

Problem: The DA’s witness, W testified that W purchased drugs from defendant On cross exam, can W be asked wehther W had been recently indicted and whether his criminal trial was pending?

Back 29

Yes, not for VIC impeachment purposes, which is not permissible, but to show W’s possible bias for testifying favorably for the DA in exchange for a favorable plea bargain or more lenient sentence. The jury should be advised that W’s testimony should be scrutinized on whether the favorable benefits from the state may have affected the truthfulness of W’s testimony.
If W has been impeached with bias, then the party who called that witness may attempt to rehabilitate the impeached witness by offering W's prior consistent statements provided they were made before there was any motive to fabricate.

Front 30

Explain in more detail what the P from CRIB PIC stands for.

Back 30

P - impeachment by prior inconsistent statements.
This impeaches a witness on the basis that earlier she gave a different written or oral version that is inconsistent with her trial testimony. A PIS infers that W cannot accurately PURR, and thus is either incompetent or is lying.
A direct inconsistency is not required. Thus, W's omission of information in her prior statement that was added when she testified at trial is deemed inconsistent for impeachment purposes.
A written PIS must satisfy the original document rule (ODR), which NY calls the best evidence rule. A PIS also can be prior informal oral conversations or prior judicial testimony.
The out of court PIS is not considered hearsay because the declarant is on the stand subject to impeachment and because generally a PIS is not being offered to prove the truth of its content, but is offered simply to show it was made to impeach W.
The PIS is also admissible for the truth of its content if it was a prior judicial statement given under oath subject to the penalty of perjury at a former trial, hearing, or deposition. Thus, any time a witness is impeached with her PIS from a grand jury, another trial, or with her EBT testimony, then it is admissible both for its truth and to impeach that witness. This is contrasted with a letter, a document, or an affidavit containing a PIS, which is admissible solely for impeachment purposes and not for the truth of its content.
In NY, the PIS is not admissible unless W is first asked on cross-examination whether she made the prior statement. However, FRE requires only that W be afforded an opportunity to explain or deny the prior statement either before or after the PIS is introduced.
The witness does not have to be shown a written PIS, but opposing counsel has the right to inspect it.
In a criminal case, the defendant is entitled to examine prosecution witnesses, prior written or tape recorded statements that are in the control or possession of the prosecutor for possible use on cross-examination. For example, a prosecution witness's statements written down by the police or by another ADA or W's grand jury testimony. This is referred to in NY as Rosario material.
To shield MBE prosecution witnesses from harm or intimidation, the government does not have to reveal the witness's statements until after W's direct testimony for the government. However, in NY, defense counsel is entitled to this material immediately after the jury is sworn, but before any testimony is taken. Late delivery or non-delivery of Rosario material may be harmless error.
The people have a duty to preserve Rosario material until the trial. However, a non-willful negligent loss or destruction of Rosario material does not mandate a sanction against the people unless the defendant can establish prejudice and if prejudice is established, usually an adverse inference charge is given to the jury.
There is also a reciprocal right for the prosecution to inspect similar notes from defense counsel containing any written or tape recorded pretrial statements of defense witnesses, but not those statements made by the criminal defendant.

Front 31

Explain in more detail what the last C from CRIB PIC stands for.

Back 31

C - impeachment by prior convictions.
When X-examined with a prior conviction, W can admit the prior conviction, but if W denies it, the conviction can be proven by offering a certified record of conviction, which is a self-authenticating document (NON FLIPS) and as a certified copy of a public record, it satisfies the original document rule. A DOPE.
A witness's prior conviction is not deemed a collateral matter. Thus, the X-examiner is not bound by the witness's answer. When a copy of the conviction cannot be obtained, then in concept similar to the original document rule, other evidence to prove the conviction can be offered.
In a criminal case, only the fact of the conviction is admissible (i.e. the name of the crime, the date of the conviction, and the sentence imposed, but not the underlying facts of the crime). In a civil case, both the conviction and its underlying facts may be introduced.
W's prior convictions may be initially disclosed on W's direct examination to prevent the jury from thinking that W was trying to hide this fact from the jury.
W's pending appeal of a conviction does not render the conviction inadmissible. However, evidence of the pending appeal is admissible to mitigate its effect.
Prior convictions that have been pardoned because of innocence can never be offered against that witness, but pardons that were granted based on W's rehabilitation are inadmissible unless the pardoned person subsequently is convicted of another felony.

Front 32

A juvenile delinquency (JD) adjudication is not admissible when?

Back 32

1. a civil case or
2. a criminal case to impeach a criminal defendant, but it is admissible in a criminal case to impeach a testifying witness provided the underlying JD offense would be admissible to attack a witness's credibility if it had been committed by an adult.

Front 33

When is an FRE conviction not admissible? (measurement of years)

Back 33

Generally, an FRE conviction is not admissible if more than 10 years have passed since the conviction or 10 years from the witness's release from jail, whichever is later. Probation or parol is not considered.
The FRE court has discretion to admit a conviction that is more than 10 years old, but it is presumed inadmissible by using a reverse M-CUP and SOUP standard if the proponent can show that its probative value substantially outweighs its unfair prejudicial effect. The opposing party must be given sufficient prior written notice of the intent to offer the old conviction.

Front 34

Under FRE, there are 3 categories of convictions, what are they?

Back 34

1. Any felony or misdemeanor conviction involving dishonesty or false statements are automatically admissible against any witness or a testifying party and the court has no M-CUP discretion. For example, convictions for breach of trust by lying, deceiving, falsifying, or defrauding such as convictions for embezzlement, criminal fraud, submitting false insurance claims, tax fraud, larceny by false pretenses, bribery or perjury.
There is some conflict among federal courts as to what crimes involve deceit or falsification, but all federal courts agree they are not the crimes of assault, battery, common law larceny, or robbery. Thus, these convictions are not automatically admissible for impeachment purposes.
2. misdemeanor convictions are not admissible for impeachment purposes unless they involve false statement or deceit (#1 above).
3. If the felony conviction does not involve deceit or false statements, then all witnesses who take the stand EXCEPT A TESTIFYING CRIMINAL DEFENDANT, the court applies the M-CUP and SOUP balancing standard, which favors the conviction's admissibility for impeachment unless its probative impeachment value is SOUP (substantially outweighed by its unfair prejudicial effect on the jury). "Unfair prejudice" is evidence that has a tendency to cause a jury to reach its verdict on an improper basis (usually an emotional basis).

Front 35

Under FRE, there are 3 categories of convictions, based under the third category, how are prior felonies used?

Back 35

Prior felonies to impeach a testifying criminal defendant are not favored and are subject to a reverse SOUP balancing test. They are initially presumed inadmissible unless the prosecution can prove that the criminal defendant's prior felony convictions probative value outweighs its prejudicial effect. MLO pg. E 73-74. This language favors excluding rather than admitting the testifying criminal defendant's prior convictions. Thus, if its probative value and its prejudicial effect are equally balanced, then the felony conviction should not be admitted against the testifying criminal defendant.

Front 36

Problem: D was charged with robbery of a bank. D wanted to testify, but had two 7 year old prior felony convictions for robbing a bank. How should the court rule?

Back 36

Under FRE, since these felonies do not involve deceit or false statements, such felonies are admissible for impeachment only if their probative value outweighs their unfair prejudicial effect and probably, they would not be admissible under FRE.

Front 37

Under FRE, there are 3 categories of convictions, based under the third category, what occurs under NY’s Sandoval rule and SOUP?

Back 37

Under NY's Sandoval rule and SOUP, D's prior felony convictions would be admissible. In NY, the fact that D's prior crimes are similar to his present crime will not prevent their admissibility. The NY defendant is not shielded from cross examination from prior criminal convictions merely because he specializes in one particular form of criminal conduct.

Front 38

Problem: In an MBE civil battery action, P's attorney cross examined D on whether 8 years ago D had been convicted of a misdemeanor for violating the weights and measurements law in D's meat store. Does the MBE court have discretion to prevent P's use of this conviction?

Back 38

No, it's per se admissible because it involves D's deceit, falsifying, and defrauding.

Front 39

Under FRE, there are 3 categories of convictions, based under the third category, what does CPLR 4515 allow?

Back 39

NY is very liberal in allowing prior convictions for impeachment in civil cases. CPLR 4515 allows prior crimes (which includes misdemeanors or felonies) CPLR 4513. However in NY criminal cases, NY's criminal procedure law allows prior "offenses", which is broader than prior crimes. It permits the use of prior violations (traffic tickets) as well as misdemeanors or felonies.

Front 40

Under FRE, there are 3 categories of convictions, based under the third category, when does the criminal decide to testify?

Back 40

If the criminal decides to testify, it is usually done after consulting his attorney and considering the affect on the jury if it becomes aware of the defendant’s prior VIC acts.

Front 41

Under FRE, there are 3 categories of convictions, based under the third category, when can a NY criminal defendant make a Sandoval motion?

Back 41

A NY criminal defendant can make a pretrial Sandoval motion to prevent or limit the prosecutor's use of the defendant's prior convictions or prior VIC acts based on the SOUP standard. Here, the NY court has BROAD DISCRETION in admitting prior convictions. Once the criminal court issues its ruling, the criminal defendant then can determine whether to take the stand and testify because he will know what convictions and VIC acts the DA will be allowed to use to impeach him.
The procedure usually is a pretrial motion asking the court for an order as to what VIC acts or convictions the DA can use if the defendant takes the stand to testify.

Front 42

Under FRE, there are 3 categories of convictions, based under the third category, MBE, but not NY provides that if the defendant elects not to testify after reviewing the court's order, then the court's order cannot be appealed after D's guilty verdict because he did not testify and the prosecutor did not introduce prior convictions and VIC acts to impeach the defendant's testimony. What does this mean?

Back 42

Thus, if after the court’s order, permitting the DA to use prior convictions and VIC acts. The MBE defendant elects not to take the stand, then he loses standing to appeal the court’s order. Likewise, in MBE, if the Defendant elects to testify and decides to disclose the prior convictions to the jury on his direct testimony, then she has waived her objection to the judge's order by introducing the convictions herself.

Front 43

Under FRE, there are 3 categories of convictions, based under the third category, in NY, if the court's erroneous Sandoval order prevents a defendant from testifying, he nevertheless can appeal the Sandoval order. If the Appellate Court finds a Sandoval error, then it can conclude what?

Back 43

That it was harmless error provided the evidence against the defendant was so overwhelming that there was no reasonable possibility that the defendant could have been acquitted even if the defendant had testified.

Front 44

Under FRE, there are 3 categories of convictions, based under the third category, if the prior convictions are admissible, then the court has discretion as to how much detail of the prior crime is admissible. What is done to avoid unfair prejudice?

Back 44

To avoid unfair prejudice, NY and federal courts frequently limit the DA to Sandoval compromise by ordering that if the defendant testifies, the prosecution can illicit only the fact that the defendant was previously convicted of a named crime or an unnamed crime and its date, but preventing the Da from asking about the details underlying the conviction. For example, asking the defendant if he has been convicted of 3 misdemeanors and 1 felony since 2009.

Front 45

Under FRE, there are 3 categories of convictions, based under the third category, a NY Sandoval order applies only to prosecutors at the criminal trial and not in what 4 instances?

Back 45

1. when a defendant testifies before the grand jury
2. to defense witnesses who testify at the criminal trial
3. in a joint trial with co-defendants, the Sandoval order does not limit the co-defendant's attorney from fully cross examining the testifying defendant with VIC and prior convictions and
4. where there is a hung jury in the criminal case and it's retried before a different judge, then the "law of the case" doctrine does not bind the new judge in the 2nd trial to the earlier judge's Sandoval order.

Front 46

Can a witness’s credibility be attacked before she testifies?

Back 46

A witness's credibility cannot be attacked before she testifies and it cannot be bolstered (given more weight) before it has been attacked.

Front 47

After a witness has been cross examined by CRIB PIC, then the attorney who called that impeached witness can attempt to salvage that witness's credibility by rehabilitating that witness in 1 of 2 ways, what is the first way?

Back 47

1. introducing W's prior consistent statements (PCS)
Generally, a witness's testimony may not be corroborated or bolstered by introducing evidence of W's PCS that were made before trial. The rationale for this rule, is that a lie is not made more trustworthy by its earlier repetition.
A PCS is admissible to rebut an express or implied insinuation arising from cross-examination that W's testimony was recently fabricated because of some improper influence of motive. For example, the payment of a bribe, a threat, or some other bias.
Introducing the prior out of court statement for its truth is not hearsay because it is 1 of the "4 Priors". It is admissible to show that W told the same story before there was any motive to influence or to lie.
In NY, a PCS is not admissible just because a witness has been impeached by CRIB PIC. Thus, impeachment designed to demonstrate that W was confused or mistaken or was even not telling the truth does not accuse the witness of a recent fabrication. Mere impeachment by PURR or where the prior inconsistent statement or where the VCR does not allow the use of a PCS, but as of Dec. 1, 2014, it is now admissible under FRE and is no longer limited to impeachment of a recent fabrication. A PCS under the FRE is now admissible and to rebut any CRIB PIC impeachment. An FRE PCS is admissible not just to rebut an attack on a witness’s credibility, but is also admissible for the truth of its content. NY allows it only for rehabilitative purposes, but does not allow it for the truth of its content.
V - prior VIC acts
C - prior convictions
R - bad reputation

Front 48

After a witness has been cross examined by CRIB PIC, then the attorney who called that impeached witness can attempt to salvage that witness's credibility by rehabilitating that witness in 1 of 2 ways, what is the second way?

Back 48

2. Evidence of a witness's truthful character
Evidence of a witness's (not a party's) good character trait for truthfulness (that she is the most truthful person in the world) generally is not admissible to bolster a witness's testimony.
Evidence of a witness's truthful character is admissible only after that witness's character for truthfulness has been attacked by a VCR.
V - VIC acts
C - prior convictions
R - the witness's bad reputation for truthfulness within the community, but not for impeachment that simply contradicts a witness's account (PURR, bias, or a PIS, which impeach a witness's testimony, but not a witness's truthful character).
Upon request, the FRE court “shall” order the exclusion of all witnesses from the court so that witnesses cannot hear each other’s testimony and attempt to corroborate an earlier witness’s story. This exclusion rule does not apply to a party or to an expert witness who can remain in the courtroom during the entire trial. If a party is a corporation or a government entity, then its attorney may designate a party’s employee to remain in the courtroom. In FRE, the exclusion rule is mandatory, but in NY it is discretionary.