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123 Cards in this Set
- Front
- Back
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Define Relevance
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- all evidence is relevant if it has any tendency to make a material fact more or less probable
- relevance depends on purpose offered |
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Admissibility of Relevant Evidence
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all relevant evidence is admissible unless probative value is outweiged by pragmatic considerations, inclu
- danger of unfair prejudice - confusion - waste of time |
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Relevance: Policy Based Exclusions: Liability Insurance
Admissibility |
- inadmissible for purpose of proving fault or absence thereof
- admissible for proof of ownership/control (only if in dispute) and impeachment |
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Relevance: Impeachment & Bias
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- process of trying to show witness should not be believed
- usu. use bias: some relationship bn witness and party that could cause witness to lie |
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Relevance: Policy Based Exclusions: Subsequent Remedial Measures
Admissibility |
- SRM: repairs, design changes or policy changes taken after an accident that could have prevented accident
inadmissible to prove - negligence - culpable conduct - product defect - need for warning admissible to prove, if in dispute: - ownership/control - feasibility of safer condition |
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Relevance: Policy Based Exceptions: Subsequent Remedial Measures: Products Liability
NEW YORK ONLY |
- SRM admissible in products liability action based on strict liability for a manufacturing defect to est. defectiveness of product when made
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Relevance: Policy Based Exceptions: Settlements in Civil Case
Admissibility |
if offered to prove liability, the following are inadmissible:
- settlement - offers to settle - statements made during settlement negotiations Settlement evidence may be admissible to impeach a witness on ground of bias |
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Relevance: Policy Based Exceptions: Settelments in Civil Case: Offers to Pay Hospital or Medical Expenses
Admissibility |
- inadmissible to prove liability
- rule does not incl other statements made in connection w/offer to pay (apologies ARE admissible) |
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Relevance: Policy Based Exceptions: Pleas and Plea Discussions in Criminal Case
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following are inadmissible against D in pending criminal lit or subsequent civil case:
- offer to plead guilty - withdrawn guilty pleas (admissible in NY) - no contest pleas - statements of fact made during any of the above - guilty pleas not withdrawn are admissible |
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Character Evidence: Define and Purposes
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- refers to persons general disposition
- propensity (conduct in conformity-gen inadmissible) - veracity (truthfulness/untruthfulness) - non-propensity - trait as element |
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Character Evidence: Criminal Case
D introduction of evidence |
- D may i ntroduce evid of his own good character for relevant traits
- prosecution can rebut w/evid of bad character for same trait |
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Character Evidence: Criminal Case
Forms of Evidence |
- federal: reputation or opinion
- NY: reputation only - not allowed: specific acts |
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Character Evidence: Criminal Case
Prosecution's Rebuttal |
if D opens te door, prosecution may rebut in 2 ways:
- calling its own witness to testify - by cross examining D character witness & questioning knowledge of specific acts relevant to trait at issue--purpose to test knowledge NOT prove specific act (for opinion witness: "did you know" and for reputation witness "have you heard") |
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Character Evidence: Criminal Case
Prosecution Rebuttal NEW YORK ONLY |
- Prosecution may also rebut by proving D has been convicted of a crime that reflects adversely on character trait at issue
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Character Evidence: Criminal Case
Victim Character in Self Defense Case |
- criminal D may offer evid of victim's violent character to prove that victim was first aggressor
(reputation or opinion, no specific acts) in NY: evidence of victim's character is inadmissible to prove first aggressor |
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Character Evidence: Criminal Case: Victim's Character
Prosecution Rebuttal |
- evid of victim's good character for trait
- evid of D bad character for same trait |
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Character Evidence: Criminal Case: Victim's Character
D Reasonable Belief for Self Defense |
- D may offer evidence of his own knowledge of victim's bad character for violence to show he reas believed in need to use self defense
(may use reputation, opinion and specific acts) |
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Character Evidence: Criminal Case: Rape Shield
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- in case involving sexual misconduct, D may not introduce:
* evid of victim's reputation for promiscuity or * victim's prior sexual conduct |
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Character Evidence: Criminal Case:
Rape Shield Exceptions |
- evid of victim's sexual activity w/D admissible if defense is consent
- evid of victim's sexual activity w/others but only to prove that someone else could be source of phys evidence - evid required to be admitted by D due process rights |
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Character Evidence: Criminal Case
Rape Shield Exception NEW YORK ONLY |
- evidence of victim's conviction for prostitution w/n past 3 years
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Character Evidence: Civil Case
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generally inadmissible to prove propensity, 2 exceptions
- negligent hiring or entrustment - defamation (libel, slander) where trait is an element of defense, reputation, opinion and specific act evidence allowed |
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Character Evidence: Habit
Admissibility |
- inadmissible to prove conduct on particular occassion
exception: habit of person or routine of business admissible to infer how person/business acted on occasion |
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Character Evidence: Habit
Define |
- repetitive response to particular set of circumstances
- frequency and particularity - business routine: regular practices of organization |
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Character Evidence: Habit
admissibility NEW YORK ONLY |
- habit evidence relating to business, trade or profession: admissible
- personal habit evid re: issue of due care in negligence: inadmissible - evidence relating to personal habit in use of product: admissible |
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Character Evidence: Admission of D other Crimes for Non-Character Purpose
prosecution case in chief |
- D other crimes or specific bad acts are inadmissible during prosecution's case in chief if the only purpose is propensity (once a killer always a killer)
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Character Evidence: Defendant's Other Crimes for Non-Character Purposes
Exceptions: MIMIC |
D other crimes/bad acts admissible to show something specific about crime charged
Motive Intent Mistake, accident absence thereof Identity Common scheme or plan if MIMIC category is satisfied, prosecution may use other crimes evid as part of its case in chief (not dependent on D opening door) |
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Character Evidence: Defendant's Other Crimes for Non-Character Purpose
Proving MIMIC-purpose crime |
- by conviction or by evid proving crime occurred
- pragmatic considerations - must incl limiting instruction to jury - prosecution must give pretrial notice of intent to use |
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Defendant's Other Crimes for Non-Character Purpose
Proving MIMIC-purpose crime: burden of proof NEW YORK ONLY |
- prosecution must produce clear and convincing evidence
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Defendant's Other Crimes for Non-Character Purpose
Proving MIMIC-purpose crime: burden of proof |
- burden of proof: sufficient evid for a reasonable jury to conclude that D committed prior act by a preponderance of evidence
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Defendant's Other Crimes for Non-Character Purpose
Sexual Assault or Child Molestation Cases (includes NY Distinction) |
- prosecution may offer evidence of D prior assaults for propensity
(once a rapist, always a rapist) - NY: prior bad acts NOT allowed to prove propensity |
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Admission of Evidence of Similar Occurrence
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similar occurrences may be admissible for:
- habit - plaintiff accident history to show fraudulent scheme or causation - similar accidents caused by same event or condition (show existence of dangerous condition, causation or prior notice to D) - intent in issue - comparable sales on issue of value - industrial custom as standard of care |
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Judicial Notice
what is it |
- judicial notice taken of indisputable facts:
* matters of common knowledge * matters capable of easy verification by unquestioned sources - considered conclusive in civil cases but not in criminal |
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Documentary Evidence: Authentication
Methods of Authentication |
- testimony by witness w/personal knowledge
- proof of the author's handwriting (lay opinion, expert, or jury comparision) - ancient document rule: authenticity inferred under certain circumstances - solicited reply: evid that doc was received in response to prior communication |
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Documentary Evidence: Authentication
Self-Authenticating Docs |
- official publications
- certified copy of public/private doc on file in public office - newspapers and periodicals - trade inscriptions and labels - acknowledged document - commercial paper (checks, promissory notes) - certified business records |
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Documentary Evidence: Authentication of photos and recordings
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- photograph as deomonstrative: if purpose is to illustrate witness testimony, witness testifying can authenticate based on personal knowledge
- photograph as silent witness: must show *camera was properly installed and working * film was properly removed and developed * film has not been tampered with; est chain of custody |
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Best Evidence Rule
when does it apply |
- only when party seeks to prove contents of a WRITING
- the writing must be legally operative (ie contract) - or witness is testifying to facts she learned solely from reading about them in writing |
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Best Evidence Rule
what qualifies as original writing |
- the writing itself and any counterpart intended to have same effect or any negative of film
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Best Evidence Rule
what qualifies as a duplicate |
- any counterpart produced by mechanical means that accurately reproduces original (not handwritten)
- admissible unless: * genuine question about authenticity exists * or it would be unfair to admit duplicate (ie colors) |
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Best Evidence Rule
admissibility of duplicates NEW YORK ONLY |
- photocopies and other duplicates are acceptable substitutes for original only if duplicates were made in regular course of business
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Best Evidence Rule
exceptions |
party need not produce the original or acceptable duplicate if original:
- is lost or cannot be found w/due diligence - has been destroyed w/o bad faith - cannot be obtained by legal process other escapes: - voluminous records can be presented thru summary or chart |
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Real Evidence: Authentication Rule
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- party seeking to introduce actual physical evidence must intro sufficient evid that item is what party claims it to be
* personal knowledge by witness * est chain of custody (substantially unbroken) |
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Testimonial Evidence: Witness
Competency |
- witness must have personal knowledge and
- must take an oath demonstrating an understanding of obligation to tell truth and promise to do so |
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Testimonial Evidence: Witness: Competency: Testimony by Children
NEW YORK ONLY |
- child may testify under oath so long as child understands obligation to tell the truth and promises to do so
- civil case: all witnesses take oath (incl children) - criminal case: child under 9 who cannot understand oath may still testify but D cannot be convicted solely on unsworn testimony |
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Testimonial Evidence: Dead Man Statute
Common Law |
Does Not Exist
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Testimonial Evidence: Dead Man Statute
NEW YORK ONLY |
- in civil actions, an interested party may not testify about communications or transactions with the dead party
- interested: if outcome will have legally binding effect on rights/obligations |
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Testimonial Evidence: Dead Man's Statute: Waiver
NEW YORK ONLY |
dead person's rights may be waived if:
- decedent's representative does not object or testifies - decedent's testimony is introduced |
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Testimonial Evidence: Dead Man's Statute: Accident Exception
NEW YORK ONLY |
in an accident case based on negligence:
- surviving party may testify about the facts of the accident - but may not testify about conversations/statements w/dead party |
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Testimonial Evidence: Form of Testimony: Leading Questions
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- generally appear during cross examination
- not allowed on direct examination of witness, except * preliminary/introductory matters not in dispute * youthful or forgetful witness * hostile witness * adverse party or someone under control of adverse party |
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Testimonial Evidence: Writings in Aid of Oral Testimony
Present Recollection Refreshed |
- witness may not read from a prepared memo but if he forgets something he once knew, he may be shown anything to jog memory
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Testimonial Evidence: Writings in Aid of Oral Testimony
Present Recollection Refreshed: Rights of Opposing Party |
- inspect item
- use information during cross - introduce into evidence |
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Testimonial Evidence: Writings in Aid of Oral Testimony
Past Recollection Recorded: Foundation |
a writing may be read to the jury as a past recollection recorded if:
- witness once had a personal knowledge - witness now forgets and showing fails to jog memory - writing was either made by witness or adopted by him - writing was made when event was fresh in memory - witness can attest that when made it was accurate |
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Testimonial Evidence: Writings in Aid of Oral Testimony
Past Recollection Recorded What happens once foundation is satisfied (incl NY Distinction) |
- witness may read the doc to jury only (no show)
- opposing party may show the document to jury as an exhibit - NY: party using recollection may also introduce to jury |
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Testimonial Evidence: Opinion Testimony
Lay Opinion Admissibility |
admissible if:
- rationally based on witness perception/personal knowledge - helpful to the jury (incl things like sobriety, emotions, speeding) |
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Testimonial Evidence: Opinion Testimony
Expert Opinion: Foundation |
- witness is qualified by education or experience
- testimony is about a matter where specialized knowledge will help - opinion has proper bases * reas degree of probability or certainty * based on personal knowledge, evidence in trial record or facts outside the record if of the type usu relied on |
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Testimonial Evidence: Opinion Testimony
Expert Opinion: Reliability (Daubert and Frye) |
- used reliable methods and reliably applied to facts
- Daubert: tested method, known error, peer review Frye (NY): method generally accepted by profn'l community |
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Testimonial Evidence: Opinion Testimony
Ultimate Issue |
- opinion testimony is generally admissible even if it addresses an ultimate issue in the case
- exception: in criminal case, expert may not testify that did or did not have required mental state |
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Testimonial Evidence: Opinion Testimony
Learned Treatise in Aid of Expert Testimony: Admissibility |
if a party can est that a treatise is reliable authority:
- treatise may be used on direct or cross examination of expert - may be read to the jury as substantive evidence but may not be introduced as an exhibit |
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Testimonial Evidence: Opinion Testimony
Learned Treatise: Establishing Authority |
- your own witness testifies treaty is authoritative
- opponent expert admits treatise is authoritative - judge takes judicial notice |
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Testimonial Evidence: Opinion Testimony
Learned Treatise: NEW YORK ONLY |
- on direct: treatise may only be used for purpose of showing basis of expert testimony, not substantive evidence
- on cross: may only be used to impeach opponent expert credibility and only if that expert either relied on treatise or acknowledged it as a reliable authority |
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Credibility & Impeachment: Credibility Defined
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- credibility: believability of witness; rests on 3 things
* witness perception * memory * honesty |
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Credibility & Impeachment: Impeachment Defined
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- impeachment: process of trying to demonstrate witness as not credible
rehabilitation: repair witness credibility after impeachment |
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Impeachment Methods: Prior Inconsistent Statements
Rule & Admissibility |
- prior statement that is materially inconsistent w/trial testimony may be used to impeach
exception: may be admitted both to impeach and as substantive evidence if: - made orally under oath as part of a formal proceeding |
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Impeachment Methods: Prior Inconsistent Statements
NEW YORK ONLY Admissibility |
- admissible to impeach only (not as substantive evidence)
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Impeachment Methods: Prior Inconsistent Statements
Procedural Considerations: Opportunity to Explain |
- witness being impeached must be given an opportunity to explain or deny statement
- may be proven by extrinsic evidence as long as witness can later return and explain - if witness is the opposing party, no need for opportunity to explain |
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Impeachment Methods: Prior Inconsistent Statement
Procedural Considerations: Opportunity to Explain NEW YORK ONLY |
- witness must be given a chance to explain while on stand
- statement must be proven by intrinsic evidence on cross before it can be proven extrinsically |
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Impeachment Methods: Bias Interest or Motive to Misrepresent
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- witness has some relationship w/party that would cause witness to lia
- bias may always be proven by extrinisc evidence - but witness should be confronted w/bias before proven by extrinsic evidence |
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Impeachment Methods: Sensory Deficiency
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- anything that could impact witness perception or memory
( bad eyesight, intoxication, mental retardation) - intrinsic impeachment is not required and extrinsic evid is allowed |
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Impeachment Methods: Reputation or Opinion
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- party may impeach witness by calling another witness to testify to the target witness's bad character for veracity
- any witness who has testified may be impeached by this method - extrinsic evid is allowed but no specific acts |
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Impeachment Methods: Criminal Convictions: Admissibility for Impeachment
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- to be admissible to impeach for veracity, conviction or release must be w/n 10 years of trial
- crimes of dishonesty or false statement are admissible but * misdemeanors are not - may be proven intrinsically or extrinsically and no opportunity to explain necessary |
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Impeachment Methods: Criminal Convictions: Balancing probative value and unfair prejudice
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- felonies admissible if probative value of conviction outweighs risk of unfair prejudice:
factors that make a conviction probabtive: - seriousness and relation to trust/deception factors that make a conviction unfairly prejudicial: - inflammatory nature - similarity to currently charged offense |
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Impeachment Methods: Criminal Convictions
NEW YORK ONLY |
- any witness may be impeached w/a conviction for any crime
- when witness is the criminal D, court must conduct Sandoval hearing to balance probative value against risks of unfair prejudice |
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Impeachment Methods: Bad Acts w/o Conviction
Scope |
- witness may be asked about prior bad acts if related to veracity
- questioner must have proper basis/good faith belief that act occurred - may be proven by intrinsic evidence only but extrinsic evid may be used if for some other purpose |
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Impeachment Methods: Bad Acts w/o Conviction
scope NEW YORK ONLY |
- witness may be asked about prior bad acts that show witness immorality (beyond veracity)
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Impeachment Methods: Bad Acts w/o Conviction
Arrests |
- an arrest is not a conviction and is not a prior bad act
- arrest can be used to impeach character witness knowledge or show bias |
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Impeachment Methods: Contradiction
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- witness may be impeached by showing she made a mistake or lied about any fact she testified to during direct examination
- if contradiction goes to collateral matter: intrinsic only - if contradiction goes to significant issue: extrinsic evid ok |
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Impeachment of Your Own Witness
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- any party may impeach any witness
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Impeachment of Your Own Witness
NEW YORK ONLY |
- by calling a witness, party vouches for credibility, so calling party can only impeach if:
* prior inconsistent statement was made in writing & signed by witness * or made in oral testimony under oath - in criminal case, exception may only be used if witness current testimony is affirmatively damages |
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Impeachment: Rehabilitation of Witness
Timing |
- generally a witness may be rehabilitated only after credibility has been attacked thru impeachment
- introduction before is called bolstering - exception for witness's prior statement of identification |
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Impeachment: Rehabilitation of Witness
Exception for Witness Prior Statement of Identification |
- even if credibility has not yet been attacked, prior identification is admissible as substantive evidence
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Impeachment: Rehabilitation of Witness
Witness Prior Statement of Identification NEW YORK ONLY |
- no prior identification in civil cases
- common law rule applies in criminal cases |
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Impeachment: Rehabilitation
Rehabilitation Methods: Good Character for Truthfulness |
- if witness character for truthfulness has been attacked, then opposing party may introduce corresponding evidence of witness good character for truthfulness
- specific acts not allowed |
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Impeachment: Rehabilitation
Rehabilitation Methods: Prior Consistent Statement |
- prior statement is consistent w/witness trial testimony
- opposing party has suggested that witness has motive to lie - prior statement was made before motive to lie arose - available to rehabilitate and as substantive evidence |
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Impeachment: Rehabilitation
Rehabilitation Methods: Prior Consistent Statement scope of admissibility: NEW YORK ONLY |
- available to rehabilitate only (not as substantive evidence)
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Testimonial Privileges: Attorney Client
Scope |
- protects any confidential communication for legal advice between client & attorney and representative
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Testimonial Privileges: Attorney Client
Items Excluded from Privilege |
- underlying information
- preexisting documents - physical evidence |
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Testimonial Privileges: Attorney Client
Joint Client Rule |
- if 2 or more clients w/common interest consult the same attorney, protected communication is limited to those involving common interest
- if later have a dispute w/each other, the privilege does not apply as between them |
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Testimonial Privileges: Attorney Client
Voluntary Waiver of Partial Information |
- only the client has power to waive
- voluntary waiver of privilege as to some information acts as a waiver for all if: * partial disclosure was intentionally and * disclosed and undisclosed communication concern the same subject matter and * fairness requires that disclosed and undisclosed info be considered together |
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Testimonial Privileges: Attorney Client
Exceptions |
- Future crime or fraud
- when client puts legal advice at issue - other attorney client disputes |
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Testimonial Privileges: Doctor Patient
Scope |
- any confidential communication or information acquired by doctor from patient for purpose of medical treatment
- doctor incl. nurses, assistants and therapists |
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Testimonial Privileges: Spousal Communication Privilege
Scope |
- covers confidential communications between married spouses
- may only be waived by both spouses - privilege survives divorce |
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Testimonial Privileges: Spousal Immunity (testimony privilege)
(not recognized in NY) |
- in criminal case, prosecution cannot compel D spouse to testify against D
- parties must be currently married - may be waived by witness spouse |
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Testimonial Privileges: Spousal Privileges Generally
Exceptions |
- communications or acts in furtherance of future act or fraud
- communications or acts destructive of family unit (ie abuse) |
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Hearsay: Defined
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- an out of court statement (oral or written)
- by a person (not animals or machines) - offered to prove the truth of matter asserted absent an exception. hearsay is inadmissible |
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Four Categories of Non-Hearsay Purposes
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- Impeachment
- Verbal Acts - To show effect on person who heard statement - circumstantial evidence of speaker's state of mind |
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Categories of Non-Hearsay Purposes: Verbal Acts
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- words w/indpt. legal significance will not be hearsay (law attaches rights and obligations to certain words simply because they are said)
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Categories of Non Hearsay Purposes: Show Effect on Person Who Heard Statement
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- statement that is relevant simply because someone heard or read it, is not hearsay
- may have put someone on notice - could provide motive - make someone's belief reasonable |
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Categories of Non Hearsay Purposes: Circumstantial Evidence of Speaker's State of Mind
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- statement that unintentionally reveals something about speaker's state of mind is not hearsay
examples: - statements demonstrating insanity - lies that demonstrate consciousness of guilt - questions that demonstrate lack of knowledge |
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Hearsay: Prior Statements of Trial Witness
Admissibility |
- witness's own prior statements, if offered to prove truth of matter in statement, is inadmissible hearsay UNLESS:
* prior statement of identification * prior inconsistent statement made under oath in formal proceeding (only to impeach in NY) * prior consistent statement if used to: rebut an accusation of motive to lie made before motive to lie arose (only to rehabilitate in NY) |
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Top Ten Hearsay Exceptions
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- party admission
- former testimony - forfeiture by wrongdoing - statement against interest - dying declaration - excited utterance - present sense impression - statement of then existing mental, emotional or physical condition - statement for purpose of medical treatment or diagnosis - business and public records |
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Hearsay Exception: Party Admission
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- any statement made by a party is admissible if it is offered against him
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Hearsay Exception: Party Admission: Vicarious Admission
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- statements by agent or employee of party are admissible against principal or employer if it:
* concerns matter w/n scope of agency or employment * was made during the agency or employment |
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Hearsay Exception: Party Admission Vicarious Admission
NEW YORK ONLY |
- statement made by an employer or agent is admissible against principal only if the agent or employee had speaking authority on behalf of party
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Hearsay Exception: Party Admission
Vicarious Admission by Co-Conspirator |
- statement of one co-conspirator is admissible against other if the statement was made in furtherance of conspiracy
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Hearsay Exceptions: Grounds for Unavailability
PAILS |
- privilege
- absence from jurisdiction - illness or death - lack of memory - stubborn refusal to testify |
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Hearsay Exceptions: Grounds for Unavailability
NEW YORK ONLY: PAID 100 |
- privilege
- absence from jurisdiction - illness or death - declarant is a doctor (civil) - 100 miles or more from court (civil) |
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Hearsay Exceptions: Former Testimony
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- unavailability (pails)
- prior statemnt was given in proceeding or dep - is offered against a party who on the prior occassion had opportunity and similar motive to cross examine |
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Hearsay Exceptions: Former Testimony: criminal case
NEW YORK ONLY |
- former testimony must have been given at a criminal trial, hearing on felony complaint or condn'l deposition
- D and charge must be the same in both cases - does not incl testimony given at suppression hearing |
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Hearsay Exception: Forfeiture by Wrongdoing
(incl. NY Distinction on burden of proof) |
- party intentionally and wrongfully made declarant unavailable
- burden of proof: preponderance of evidence (NY: clear and convincing evidence) |
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Hearsay Exceptions: Statement Against Interest
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- declarant unavailable
- statement is against declarant's pecuniary, proprietary or penal interest (penal=corroboration) - requires personal knowledge - must have been against interest when made |
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Hearsay Exceptions: Dying Declaration
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- declarant is unavailable
- statement was made under belief of certain and impending death - statement concerns the cause or circumstance of impending death type of case: any civil or criminal homicide NY: criminal homicide only |
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Hearsay Exceptions: Excited Utterance
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- statement concerns a startling event and was made while declarant was still under stress of event
- factors that make statement excited: nature, passage of time and verbal clues |
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Hearsay Exceptions; Present Sense Impression
(incl NY Distinction) |
- statement describes an event and is made while event is happening or immediately thereafter
- NY requires corroboration |
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Hearsay Exception: Statement of Then-Existing Mental, Emotional, or Physical Condition
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- contemporaneous statement concerning declarant's then existing physical condition or state of mind
- does not include statements of memory or belief about past conditions - does include statements of future intent, incl an intent to do something w/ 3rd party |
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Hearsay Exception: Statement of Then-Existing Mental, Emotional, or Physical Condition
NEW YORK ONLY |
- if statment of present physical condition is made to layperson, declarant must be unavailable
- if statement of future interest is offered to prove conduct of third person, declarant must be unavailable and corroboration of connection between parties must be provided |
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Hearsay Exception: Statement for Purpose of Medical Treatment or Diagnosis
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- includes statements concerning present/past symptoms and general cause of medical condition
- does not include statements of fault or identity of wrongdoer (except in cases of child abuse) |
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Hearsay Exception: Statement for Purpose of Medical Treatment or Diagnosis
NEW YORK ONLY expert testimony exception |
- does not apply to statements made solely for purpose of obtaining expert testimony at trial
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Hearsay Exception: Business & Public Records: Business Record Elements
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- record made in regular course of business
- business must regularly keep such records - made contemporaneous of event record - contents consist of info observed by employees or - statement falls w/n some hearsay exception if observed by outsider |
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Hearsay Exception: Business & Public Records: Public Record Elements
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- includes observations by employees of public agency and conclusions by public employee after an official investigation
- police report may not be offered against D in criminal case |
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Hearsay Exception: Business & Public Records: Public Record Elements
NEW YORK ONLY |
- limited to observations by employees of public agency (not conclusions)
- accident reports prepared in regular course of business are admissible |
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Hearsay Exception: Business & Public Records: Laying Foundation
(INCL NEW YORK DISTINCTION) |
- either live testimony via knowledgeable witness or
- affidavit submitted under oath NEW YORK: written certification only admissible in civil cases and only for business records of non-party |
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Hearsay and Confrontation Clause
when is right to cross exam satisfied |
- prosecution may not offer testimonial hearsay in viol of D right to cross-exam declarant
- right to cross examine is satisfied where: * D already had chance to cross examine * D can cross examine at trial * D forfeited by witness tampering |
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Hearsay and Confrontation Clause
define: testimonial |
- grand jury testimony
- statements made in response to police interrogation * if purpose is to est or prove past events potentially relevant to later criminal prosecution * non-testimonial if purpose is police assistance for ongoing emergency - police reports are testimonial but business records are not |
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Hearsay Declarants & Impeachment
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- if hearsay is admitted, opposing party may use any of the impeachment methods to attack credibility of declarant
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