Lecture 31 - New York And Multistate Evidence Part Iii

Front 1

What’s number 4 from inferences?

Back 1

4. "Drugs" in open view not physically possessed by any particular person in a room or in the knowing possession of everyone in close proximity to those drugs.

Front 2

In NY, where a DA intends to use inference #3 or #4 above, then a defendant has what?

Back 2

automatic standing to challenge the illegality of a search even though he had no REP in the area searched.

Front 3

What do competency of witnesses rule address?

Back 3

Most evidentiary rules regulate the content of proposed testimony. Competency rules address the threshold question of whether a prospective witness is qualified to give testimony.

Front 4

A witness is incompetent to testify if she is 1 of what 3 things?

Back 4

1. lacks personal knowledge
2. refuses or cannot understand an oath or affirmation or
3. is also a judge or juror in the case

Front 5

The opponent of a witness’s testimony bears the burden of demonstrating incompetency to the judge by showing 3 I’s or that the witness cannot PURR, what do the 3 I’s stand for?

Back 5

(Infancy, Mental Incompetency, or Intoxication by drugs or alcohol)

Front 6

When may a witness testify to a matter?

Back 6

A witness may testify to a matter only if evidence is introduced sufficient to support a finding” that the witness has personal knowledge of the matter.

Front 7

Any person (even if previously declared incompetent) is competent to testify regardless of her mental or moral fitness if she can do what 2 things?

Back 7

1. perceive, remember, and communicate an event and
2. take a valid oath or affirmation.

Front 8

In NY, there is a rebutable presumption that a child under the age of 9 is incapable of understanding an oath. However, such a child may testify under oath when?

Back 8

If the court is satisfied that the witness understands the oath and takes it.

Front 9

In a NY criminal case, unsworn testimony may be taken when?

Back 9

If a witness does not understand the oath because of age or mental infirmity, but the witness must know it's wrong to lie. The testimony must be corroborated to result in a conviction.

Front 10

In a NY civil trial, unsworn testimony is inadmissible except where?

Back 10

On the issue of child custody and child neglect.

Front 11

In federal question cases arising under federal law, is there a presumption of incompetence on age?

Back 11

There is no presumption of incompetence based on age.

Front 12

When may a child testify separately from the defendant? Why?

Back 12

A child involved in a sex crime may testify in a separate room before both lawyers while the defendant, the judge, and jury remain in the courtroom viewing the live simultaneous telecast of the child's testimony. The rule requires clear and convincing evidence that the child will suffer serious mental or emotional harm by testifying about the sexual acts in the courtroom.

Front 13

What occurs during intoxication of a witness at the time of trial?

Back 13

A witness who is intoxicated at the time of trial is competent to testify. The court has discretion to allow the testimony or excuse the witness until he is sober within the court’s discretion if he appreciates his oath and can recall and communicate events on the stand.
The court may also excuse the witness and have him return when sober.

Front 14

A witness who was intoxicated at the time he witnessed an event is subject to impeachment for his inability to PURR. What does PURR stand for?

Back 14

P – personally perceived the event; except for witness’s expert testimony
U – understand and take the oath or affirmation
R – remember the event
R – be able to recall the event on the stand.

Front 15

Intoxication is not a "collateral matter" concerning a witness's truthfulness and veracity, but is what?

Back 15

But rather involves the crucial issue of the competency of the witness.

Front 16

Where is a judge or juror incompetent to testify?

Back 16

A judge or juror is incompetent to testify in a case where the judge or juror is sitting.
Jurors are also incompetent to testify about matters occurring in jury deliberations or the thought processes they employed in reaching a verdict (i.e. jurors cannot later impeach their verdict by testifying that they misunderstood the law or that there was incivility among the jurors).

Front 17

There are 3 exceptions to this rule of juror incompetency to testify, what are they?

Back 17

1. A juror may testify about extraneous prejudicial information introduced during jury deliberations. For example,
(a) jurors viewing the crime scene.
A judge can authorize the jury to make a silent visit to the crime scene, but the judge must go, and a criminal defendant has a right to go.
(b) Improper outside influences were brought to bear on a juror. For example, bribes or threats by 3rd persons.
(c) A juror's introducing her specialized knowledge about the subject matter of the trial during jury deliberations. This violates the jury's responsibility to base its determination solely on the evidence presented on trial.
(d) A juror's independent research related to the case.
2. If a juror lied about racial or other bias in jury selection.
3. there was a clerical error in recording the verdict (i.e. the verdict recorded was different than the one agreed upon).

Front 18

When would a new trial be ordered?

Back 18

A new trial will be ordered only if a party can establish prejudice to a substantial right by clear and convincing evidence.

Front 19

What does the dead man statute (DMS} do?

Back 19

The DMS disqualifies parties interested in a civil litigation from testifying about personal transactions or communications with a deceased or mentally ill person. It protects the estate of a deceased or mentally person. It protects the estate of a deceased person from claims by those through their own perjury could make factual assertions the decedent could not refute in court.

Front 20

FRE has abolished the Dead Man Statute. However, where a federal court has either diversity or supplemental jurisdiction, the federal court will apply state substantive law with federal procedural law (FRE and FRCP). Except, the federal court will apply state law for PIPS. What is it PIPS?

Back 20

P - privileges
I – incompetency of witnesses
P – presumptions and inferences
S – s/l

Front 21

What is the primary purpose of the dead man statute?

Back 21

The primary purpose of the Dead Man Statute is to protect the decedent's estate from fraudulent claims, which the dead person is no longer able to refute.

Front 22

When is a witness “interested”?

Back 22

A witness is "interested" if she would gain or lose by the direct legal result of the judgment or where that judgment could be used for or against her in some other civil action (collateral estoppel) involving the estate. The interested witness cannot testify to what he overheard the dead person say or saw him doing.

Front 23

When can transactions and communication occur with a dead person?

Back 23

Transactions and communications with a dead person can only be established through the testimony of disinterested witnesses and documents which can be authenticated by disinterested witnesses and documents which can be authenticated by disinterested witnesses.

Front 24

What is an interested person prohibited from doing?

Back 24

An interested person is prohibited from assigning away a cause of action and then testifying when the assignee sues the defendant.

Front 25

What happens if a corporate party is suing a dead person?

Back 25

If a corporate party is suing a dead person, a shareholder cannot testify to a transaction with the dead person because stock ownership makes the shareholder financially interested in the judgment. If officers, directors, or corporate employees owe no stock in the company, they are not interested witnesses (though they are biased witnesses) because they would not directly gain or lose as a result of the judgment.

Front 26

Whenever litigation is in the surrogate's court or involves a wrongful death action in the Supreme Court, consider the dead man statute (DMS). DMS applies only to trial testimony in a CIVIL CASE and cannot be invoked in what 3 instances?

Back 26

1. at an EBT
2. when the dead person fully testified at EBT or at a trial before death, either party can offer this prior testimony, which then allows the interested person to testify and give his version.
If the interested witness was deposed in the dead person's presence while the dead person was still alive, then since the dead person was able to confront and cross-examine the interested witness during the EBT, the interested witnesses EBT is admissible or
3. in an attorney disciplinary proceeding or other action not against the executor, administrator, or survivor of the decedent.

Front 27

A party moving for summary judgment cannot use evidence barred by DMS, so what can the party opposing summary judgment do?

Back 27

But the party opposing summary judgment can.

Front 28

Parties who have standing to assert DMS are who (4 of them)

Back 28

1. executors and administrators
2. surviving partners of a deceased partners
3. guardians of incompetent persons and
4. those that derived their interest in property "from, through, or under" the decedent.

Front 29

In NY, there are 3 exceptions to the DMS. NOW. Explain what NOW means.

Back 29

N - In a negligence action involving a car, boat, or plane, an interested witness can testify as to general facts and results of the accident
O - When the estate offers evidence or it questions the interested witness about a transaction or conversation with the dead person. This "opens the door" and permits an otherwise disqualified disinterested witness to give his version to rebut that evidence. The door is only open as to that particular transaction or conversation. It does not set aside DMS for all other conversations or transactions the interested witness had with the dead person.
W - Failing to timely object at trial waives DMS.

Front 30

If a witness forgets an event, are they still considered competent to testify?

Back 30

A witness who has forgotten an event is still competent to testify.

Front 31

How may a witness that has difficulty remembering on the stand be encouraged to recollect details?

Back 31

In NY and FRE, a witness who has difficulty recollecting facts while on the stand can have her memory stimulated and refreshed by anything including a writing, song lyric, or an audio recording.
If the witness's memory is refreshed, the examination proceeds with the witness testifying from her present recollection.
The object is not offered into evidence, but may be admitted by opposing counsel to impeach the witness's testimony.

Front 32

There is an absolute right (no privilege can be invoked) for an adversary to inspect any writing used and relied upon to refresh a witness's recollection when?

Back 32

WHILE THE WITNESS IS ON THE STAND. If documents were reviewed prior to taking the stand, the court has discretion to allow or disallow their inspection based on whether inspection is necessary in the interest of justice.

Front 33

What happens if a witness’s recollection cannot be refreshed?

Back 33

If the witness's recollection cannot be refreshed, the attorney may be allowed (the court's discretion) to use leading questions on direct examination of the HAIRY witness.
If the witness's memory is still not refreshed, that witness then becomes unavailable, allowing hearsay to be used if it is available.

Front 34

When is hypnosis admissible and how can it be used?

Back 34

In half the states and FRE, testimony that has been refreshed by hypnosis is admissible. Hypnosis only affects the weight the jury affords the testimony and not its admissibility. In the remaining states (NY, NJ, CT), witnesses (other than a criminal defendant at her own trial) are incompetent to testify regarding events they could not recall prior to hypnosis.
These courts may also exclude a witness's testimony about events she could recall before hypnosis because hypnosis can artificially bolster a witness's confidence, impairing effective cross-examination. The proponent must show by clear and convincing evidence, that the hypnosis procedure was not suggestive, revealed few details and would not impair the other party's ability to successfully cross-exam the witness regarding events recalled prior to hypnosis.
A per se rule excluding the hypnotically refreshed testimony of a criminal defendant is unconstitutional because a criminal defendant's right to testify outweighs the state's interest in excluding prejudicial evidence.

Front 35

The use of a Prior Recorded Recollection (PRR) arises when a testifying witness does what 4 things?

Back 35

1. observed the matter recorded (not hearsay)
2. is unable to totally and accurately remember the matter on the stand
3. made an accurate writing while the matter was still fresh in her memory (to ensure its accuracy) and
4. can testify that the recorded recollection is an accurate reflection of her perceptions when made.

Front 36

What happens if the witness cannot remember making her own memo?

Back 36

If the witness can't remember making her own memo, the document does not qualify as a PRR. If however, she has forgotten the event, or at least some of it, but does remember making a reliable memo, the contents of the memo are admissible.

Front 37

How is the PRR evidence presented as evidence?

Back 37

The PRR is only read into evidence, but is not physically offered as an exhibit unless it is offered by documentary evidence by the adverse party.

Front 38

What must the witness do in regards to the writing of the PRR?

Back 38

The witness must take the stand and lay a foundation that the writing was accurate when made and that it was made by her or by a 3rd person at her direction.

Front 39

What happens if the PRR was also made in the regular course of business?

Back 39

If the PRR was also made in the regular course of business (TRUMP), then it may be admissible under the hearsay exception of a regularly conducted activity which is admissible under the hearsay exception of a regularly conducted activity, which is admissible without having to call the person who made the writing to testify as to its accuracy.

Front 40

The admissibility of expert testimony is what type of issue?

Back 40

A preliminary issue decided by the court.

Front 41

What may a lay witness base her testimony on?

Back 41

Generally, a lay witness must base her testimony on her perceptions (what she saw, heard, smelled, or felt). She cannot testify about what she would have done under different circumstances.

Front 42

After testifying based on her perceptions, FRE permits a lay witness to draw conclusions and give opinions. If rationally based on W's perception, and her conclusion or opinion is "helpful" in aiding the jury for a clearer understanding of what two things?

Back 42

1. W's testimony or
2. a fact in issue.

Front 43

In NY, is a lay witness allowed to draw conclusions?

Back 43

In NY, a lay witness is not allowed to draw conclusions unless a conclusion is the only way to describe what she perceived. For example, that someone looked angry or sick.
NY's prohibition on conclusions and opinions by a lay witness forces a fact witness to give detailed factual testimony and not simply testify in the form of a conclusion or opinion. For example, the defendant was driving negligently.
NY courts will allow a witness to a will to testify that the testator was of sound or unsound mind.

Front 44

When is expert testimony permitted at common law and in NY?

Back 44

At common law and in NY, expert testimony is only permitted on subjects "beyond the ken" (basic understanding) of the average juror.

Front 45

When is expert testimony permitted under FRE?

Back 45

Under FRE, expert testimony is admissible on matters within the basic understanding of the jury if the court determines it would be helpful to the jury, it is reasonably reliable, and it is relevant to the case.

Front 46

Experts may use their specialized knowledge to assist the jury in 2 ways. What are they?

Back 46

1. to explain evidence and
2. to draw an opinion or conclusion

Front 47

How is an expert chosen?

Back 47

Parties may call expert witnesses or the court may appoint an expert.

Front 48

Do courts recognize dangers of allowing credentialed expert to present unreliable evidence to the jury?

Back 48

The courts recognize the danger of allowing an impressively credentialed expert to present unreliable evidence to the jury.

Front 49

Under the Frye Test, NY and NJ courts permit testimony on what?

Back 49

On novel scientific procedures, principals, or theories only after they have gained "general acceptance" in the relevant scientific field. If a theory is "generally accepted" (e.g. that Benzine is a known carcinogen), the procedures followed to generate the expert's opinion must also be reliable (e.g. proving that the plaintiff's exposure to Benzine was sufficient to cause leukemia).

Front 50

When is a Frye analysis not required?

Back 50

When an expert is testifying from personal experience rather than about scientific principals, the court will not require a Frye analysis.

Front 51

A majority of states (CT) and the federal courts follow the Doubert Test recognizing that new discoveries and theories may be totally sound, but too new to have gained general acceptance. The Doubert Test requires the trial judge to determine whether an expert's theory has been CRAPE. What does CRAPE stand for?

Back 51

C - confirmed by testing
R - reviewed by peers
A - widely accepted in the profession
P - published
E - confirmed to have a known rate of error
If an expert's theory satisfies CRAPE, a court may still prohibit its introduction if it is not reliably applied to the facts of the case.

Front 52

Can experts draw factual conclusions in NY and FRE?

Back 52

In NY and FRE, experts can draw factual conclusions and can even conclude on the ultimate issue in the case. If a sufficient factual foundation has been established to enable cross-examination. For example, an expert can testify that a product was "unreasonably dangerous" in an SPL case.

Front 53

Can experts draw conclusions in a criminal case?

Back 53

In a criminal case, experts cannot give an opinion or draw a legal conclusion as to whether the criminal defendant did or did not have the mental state necessary to commit the crime (i.e. an expert cannot conclude that the defendant was sane or insane.) That inference is left solely for the jury. The expert may however factually testify about his diagnosis.

Front 54

What happens to expert testimony on battered spouse, rape trauma, or child sexual abuse syndrome?

Back 54

Expert testimony on battered spouse, rape trauma, or child sexual abuse syndrome is both generally accepted in NY and reasonably reliable and relevant in FRE to explain the victim's state of mind.

Front 55

In NY, in the court's discretion, expert testimony is now admissible on what?

Back 55

The reliability and unreliability of eyewitness testimony.

Front 56

The jury can be educated by the expert on the weaknesses and dangers of eyewitness identification including system variables (e.g. improper line-up procedures) and estimator variables including what 4 things?

Back 56

1. the stress of the event
2. weapon focus
3. racial bias and
4. duration of the incident

Front 57

If the only evidence against the defendant is eyewitness identification (no other corroborating evidence), it’s considered what?

Back 57

It is an abuse of discretion for the trial judge to exclude expert testimony on the reliability of eyewitness identification.

Front 58

Under revised FRE 501, are communications subject to disclosure?

Back 58

Communications between an attorney and her expert and drafts of the expert report are not subject to disclosure.

Front 59

Unlike a lay witness whose opinion must be based upon the witness's own perception, an expert can base an opinion on #1.

Back 59

personal knowledge gained by observing or examining the subject matter prior to trial

Front 60

Unlike a lay witness whose opinion must be based upon the witness's own perception, an expert can base an opinion on #2.

Back 60

facts or data reasonably relied upon by other experts in the same field even though such evidence would otherwise be inadmissible at the trial. For example, in a trial involving the testator's mental capacity to execute a will, the expert's psychiatrist can base her opinion of the testator's state of mind on out of court conversations she had with T's family and friends concerning T's behavior and conversations and on T's prior medical and psychiatric reports because this is the kind of evidence normally accepted in her profession as reasonably reliable in forming a professional opinion.
If those facts/data would be admissible at trial, the expert can’t be admissible unless reasonably relied on experts in same field and judge believes its probative value substantially outweighs their prejudicial effect.
There is an FRE rebutable presumption against the expert disclosing such hearsay unless the court determines that its probative value in assisting the jury to evaluate the expert's opinion substantially outweighs its prejudicial effect. Thus, the fact that the expert relied on hearsay in reaching her opinion does not mean that the hearsay will be admissible at trial. There is an FRE presumption that it won't.

Front 61

Unlike a lay witness whose opinion must be based upon the witness's own perception, an expert can base an opinion on #3.

Back 61

Facts or data acquired by the expert while observing the trial, reviewing trial exhibits, or reading trial transcripts.
An expert can respond to hypothetical questions based on an assumed set of facts. The hypothetical question must be based on
1. facts judicially noticed
2. information reasonably relied upon by experts in that field
3. evidence already offered at the trial or evidence that will be offered

Front 62

On cross-examination, an expert can be impeached on what 4 things?

Back 62

1. His qualifications, 2. His lack of thoroughness and preparation for trial, 3. Contrary views of other experts, and 4. Bias (e.g. that he works for one insurance company or receives excessive compensation).

Front 63

The FRE do not list or define any evidentiary privileges in federal question cases. In federal question cases, there are 3 sources of privileges, what are they?

Back 63

1. the Constitution
2. acts of congress
3. federal common law (case law)

Front 64

The US Supreme Court has recognized a federal common law privilege protecting confidential communications made to psychiatrists and psychologists in the course of psycho therapy, but has declined to recognize who?

Back 64

It declined to recognize that the president has a secret service privilege.

Front 65

A privileged communication can be waived in 3 ways, what are they?

Back 65

1. if it was not made in confidence or it was not intended to remain confidential
2. the content of the conversation was not kept confidential or
3. the conversation goes beyond the scope and intended purpose of the privilege.

Front 66

At common law, an eavesdropper could testify to confidential communications, but courts now do what?

Back 66

Evaluate waivers based on the reasonable expectations of the communicator.

Front 67

Competent witnesses who have relevant evidence are nevertheless prevented from testifying because of the following privileges. CHIMPS RAP. Explain what CHIMPS RAP stands for.

Back 67

C - the clergy privilege
H - the husband wife privilege
I - 5th amendment privilege against self-incrimination
M - medical doctor patient privilege
P - the psychologist-patient privilege, which in NY and NJ, is protected in the same manner as the attorney-client privilege (i.e. it cannot be waived without the express consent of the patient).
S - the social worker privilege
R - By statute, NY, but not federal law protects confidential statements made to licensed social workers and certified rape crisis counselors to foster open communication and ensure privacy.
A - the attorney-client privilege
P - press privilege

Front 68

Further explain what the C in CHIMPS RAP means.

Back 68

C - the clergy privilege
A confidential communication is privileged if made to a clergy person for the purpose of seeking religious counsel, spiritual assistance, or absolution. If the purpose was secular, the privilege does not apply.

Front 69

What is privilege #1 in MBE under the H from CHIMPS RAP?

Back 69

1. The husband-wife privilege (aka the spousal communications privilege) in a criminal or civil action preventing a spouse from disclosing written or oral confidential communications where no 3rd person was present. This privilege recognized in NY and MBE is designed to protect the marital intimacy that existed when the conversation occurred.
The privilege does not apply to statements or threats made during the course of physical abuse because the speaker is not relying upon any confidential relationship to preserve the secrecy of his acts or words.

Front 70

What is privilege #2 in MBE under the H from CHIMPS RAP?

Back 70

2. In MBE and a majority of states, but not NY, the spousal testimonial privilege protects non-confidential conversations and events that were witnessed by one spouse. The privilege can be waived by the testifying spouse over the objections of the criminal defendant spouse. Here, she can testify as to non-confidential (3rd person present) conversations and activities she observed of the other spouse. This privilege is designed to protect marital harmony at the time the testimony is demanded by the government and allows the testifying spouse to refuse to testify against the criminal defendant spouse about non-confidential information.
The privilege can be waived by the testifying spouse over the objection of the criminal defendant spouse.
Spousal testimonial privilege (STP) protects conversations that were made prior to or during the marriage whereas the husband-wife privilege only covers confidential conversations during the marriage. In order to waive the husband-wife privilege, both spouses must consent, but to waive STP, only the testifying spouse has to consent.
To invoke STP, the parties must be legally married at the time the testimony is demanded. To invoke the husband-wife privilege, the parties must have been married only at the time of the conversation. If there is a divorce, a separation, one spouse dies or agrees to testify, then there is no STP privilege because there is no longer any marital harmony to preserve. However, death or divorce does not retroactively terminate the husband-wife privilege.

Front 71

Further explain what the M in CHIMPS RAP means.

Back 71

M - medical doctor patient privilege
Federal common law has rejected this privilege.
The privilege belongs to the patient, but it can be raised by the doctor on the patient's behalf. NY applies the privilege to a licensed doctor, his agents, a psychiatrist, a registered nurse, a licensed practical nurse, a chiropractor, a pediatrist, a dentist, or an EMT.
The privilege prevents disclosure of any confidential information acquired in attending to the patient in a professional capacity and therefore extends to communications from the patient, communications from others about the patient and the doctor's observations of the patient.

Front 72

Under M from CHIMPS RAP, the privilege does not apply to what 8 things?

Back 72

1. if the patient knew the doctor's license was suspended
2. physical objects discovered in or around the patient's body
3. statements that are not relevant or necessary for medical testament
4. information plain to the observation of a lay person
5. patients who affirmatively assert their medical condition into issue either by commencing a personal injury action or as a defendant asserting a physical or mental condition as a defense in a criminal or civil case. A parent seeking child custody puts her mental and physical condition into issue. PAID MAID discovery!
6. when the patient of a psychiatrist or a psychologist demonstrates a clear and present danger to a named 3rd party or to himself, then the professional is required to disclose this fact to protect the threatened interest.
7. to a physical blood specimen taken from a patient's body by a medical professional. However, the results of a blood test conducted by a medical professional are privileged.
8. reports of suspected child abuse or maltreatment prepared by physicians, nurses, EMTs, or hospital personnel. These are mandated reporters under the social services law.

Front 73

Further explain what the A in CHIMPS RAP means.

Back 73

A - the attorney-client privilege
It only protects communications made to an attorney for the purpose of obtaining legal services provided it was not intended to be disclosed to a 3rd party. Where a client discloses a prior communication to a spouse, the communication is protected by the husband-wife privilege.
Personal emails sent through a work email account to the employee's personal attorney are not confidential where the employer's electronic communications policy prohibited personal email and provided that employees have no right of privacy in any emails on the employer's system.
The attorney does not have to be formally retained for the privilege to attach. The privilege extends to 3rd persons to assist the lawyer in rendering legal services including paralegals, interpreters, and accountants.
Where 2 or more persons consult an attorney for their mutual benefit (co-conspirators or POPE parties), then the privilege may be invoked against 3rd persons, but it cannot be invoked in any subsequent litigation arising between the 2 clients or their estates.
The privilege does not apply to
1. the attorney's fee arrangement (who paid and how much)
2. if the client consults an attorney for advice on committing a crime or civil fraud (it is outside the scope and purpose of the privilege) and
3. observations easily made by an attorney (e.g. scratch marks all over the client's face) because physical apperance is not a communication.
The work product doctrine prohibits discovery of material prepared solely in anticipation of litigation unless the party seeking discovery has a substantial need for the material is unable obtain the material by other means.
Under FRE, an inadvertent disclosure of an attorney-client or work product information does not amount to a waiver of the privilege if
1. disclosure was inadvertent
2. the party took reasonable steps to prevent disclosure and
3. the party took prompt reasonable measures to remedy the error.
The disclosing party can obtain a court order preventing the use of the disclosed document in other state or federal proceedings.

Front 74

Further explain what the P in CHIMPS RAP means.

Back 74

P - press privilege
The US Supreme Court has held that journalists do not have a 1st amendment testimonial privilege protecting them from having to disclose confidential information or its source. 49 states (including NY, NJ) have enacted press reporter shield laws. NY gives reporters and journalists an absolute privilege from contempt of court for refusing to disclose information and its source obtained in confidence in the course of news-gathering.
There is also a NY qualified privilege from contempt of court for not disclosing information or sources that were not obtained in confidence. In order to obtain this unpublished press material, a clear and specific showing must be made that the materials sought are highly relevant, critical and necessary for a party's claim or defense and it is not obtainable from any alternative source (similar to the privilege or work prepared for litigation).

Front 75

Generally a judge's mistake in admitting or excluding evidence cannot be successfully be appealed unless what?

Back 75

The error adversely affected a SUBSTANTIAL RIGHT of a party (i.e. it is probable that the error swayed the jury and that a different verdict would have been reached had the error not been made).

Front 76

A party is entitled to a "fair trial, but not a perfect one." Why is this?

Back 76

There is no such thing as an error-free trial.

Front 77

An error in admitting or excluding evidence will be considered "harmless" if the Appellate Court is satisfied that the verdict would have been the same even without the error. Why was the “harmless error rule” designed?

Back 77

The "harmless error rule" was designed to eliminate Appellate reversals based on technical errors.

Front 78

If a constitutional trial error in a criminal case is alleged by the convicted defendant (e.g. a coerced confession, a confrontation clause violation, or a Miranda violation), then the burden of production and persuasion shifts to the state to prove beyond a reasonable doubt that the constitutional error did not contribute to the guilty verdict. What does this require?

Back 78

This requires that other evidence of the defendant's guilt must be overwhelming and if so, then even a constitutional error can be harmless. (e.g. The state had the burden to prove beyond a reasonable doubt that when the jury saw the defendant shackled at the trial table, that this did not contribute to the defendant's guilty verdict.)

Front 79

A small class of constitutional errors that fundamentally undermine the reliability and fairness of a criminal trial, are deemed what?

Back 79

"structural errors" resulting in an automatic reversal of the defendant's conviction. For example, 1. bias of the trial judge, 2. racial discrimination in the selection of a grand jury, 3. a criminal court's denial of the defendant's right to proceed pro se, 4. denial of the right to counsel of one's choosing, and 5. a defective "reasonable doubt" jury instruction.

Front 80

What does the preservation rule require?

Back 80

The preservation rule requires a timely and specific objection at a civil or criminal trial has to be made to the judge. This rule ensures that the error can be immediately corrected by the trial judge. The effect of the preservation rule is to limit Appellate Court review exclusively to those grounds raised in the objection. If the specific basis for admitting or excluding evidence was not brought to the trial court's attention, then the unmentioned basis is waived because it was not preserved and it cannot be argued on appeal. Appellate review of trial errors is dependent on whether the error was specifically and timely preserved at the trial.

Front 81

Dows objection on 1 ground preserve an objection on another ground?

Back 81

An objection on 1 ground does not preserve an objection on another ground and that unraised objection cannot be argued on appeal. For example, objecting to evidence as "irrelevant" or "inadmissible" does not raise or preserve an issue of M-CUP or a hearsay objection for the Appellate Court to consider.

Front 82

What happens when a specific objection is overruled by the judge?

Back 82

When a specific objection is overruled by the judge, then only the ground articulated to the trial judge as the basis for the objection can be considered on an appeal. For example, a criminal defendant's objection to testimony as "hearsay" did not preserve for the appellate court the confrontation clause objection because that issue was not preserved at the trial.

Front 83

What occurs is a “general objection” or “specific objection” is sustained?

Back 83

If a "general objection" is sustained or a "specific objection" is sustained for the wrong reason or evidence is improperly admitted for the wrong reason, then the appellate court will uphold the judge's ruling if there is any basis for excluding or admitting that evidence. For example, where the judge admitted hearsay on the improper ground that it was a declaration against interest when it should have been admitted as an admission by a party opponent.

Front 84

What does the plain error rule cover?

Back 84

Under the plain error rule, if the appellate court finds an error that was not objected to at the trial was both "clear and obvious" and highly prejudicial, rendering the trial fundamentally unfair, then it has discretion to order a new trial if it finds that absent the error, there is a significant probability that the verdict would have been different.

Front 85

At a trial, D's attorney, Y asked W, a witness about what P, the plaintiff said to W 2 years ago. Y's adversary, B stated, "Objection! Hearsay!" and the court erroneously sustained B's objection even though W's answer is not hearsay (it was P's admission). Attorney Y then moved on to another subject in W's testimony. Y has waived the right to appeal the judge's error because if a court improperly sustains an objection to admissible evidence, that error is waived unless what 2 things occur?

Back 85

1. the specific ground for its admissibility is timely given to the judge.
Any basis for its admissibility not articulated to the judge cannot be a basis for reversal on appeal.
2. the substance, relevancy, and purpose of the proffered evidence is revealed to the judge by means of an "offer of proof", which is done outside the presence of the jury. It does not have to be done immediately, but can be done timely after a lunch break, at a recess, or after the jury is excused for the day.

Front 86

What should happen if evidence is a document?

Back 86

If the evidence is a document, it should be marked as an exhibit for purposes of an appeal. If it is a witness's testimony that was not allowed, then a narrative of what W would say is allowed on the record. Many lawyers favor putting W on the stand outside the jury's presence and making a record for appeal. An offer of proof demonstrates to the court the admissibility and relevance of the evidence and the harmfulness of the court's ruling. Many lawyers favor putting W back on the stand outside of jury’s presence and making record for an appeal

Front 87

At the trial, judges can do what 3 things?

Back 87

(a) question a witness to clarify an issue, but not to the extent that the judge takes on the appearance as an advocate for one side.
(b) call expert witnesses
(c) object to the introduction of evidence even though an attorney raised no objection.