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307 Cards in this Set

  • Front
  • Back
What is relevant evidence?
Evidence is relevant if it has any tendency to make a material fact more probable or less probable than it would be the case without evidence
All Relevant evidence is what?
Admissible!
What is the general exception to the rule that all relevant evidence is admissible?
Admissible unless court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations
What are 6 types of pragmatic considerations the court looks at when determining relevance?
1) Danger of Unfair Prejudice
2) Confusion of the Issues
3) Misleading the Jury
4) Undue Delay
5) Waste of Time
6) Unduly Cumulative
Which of the following is least likely reason for court to rule evidence inadmissible?
a) Unfair Prejudice
b) Undue delay
c) Unduly Cumulative
d) Unfair Surprise
d) Unfair Surprise
What is the rule of admissibility of liability insurance?
Evidence that a person has/doesn't have liability insurance is inadmissible for purpose of proving fault or absence of fault
When can liability insurance be admissible? (2 ways)
1) Proof of ownership or control if the issue is controverted

2) Impeachment of the witness
What is the main body of law for evidence?
FRE (majority view)
Whether evidence is admissible depends on what?
The purpose for which it is offered
When evidence is admissible for one purpose but not for another, what should happen?
The judge should give the jury a limiting instruction
What is Impeachment?
The process of trying to show that a witness should not be believed
What is the process of trying to show that a witness should not be believed called?
Impeachment
What is Bias?
A showing that there is some relationship between the witness and a party that could cause the witness to lie
What is the showing that there is some relationship between the witness and a party that could cause the witness to lie called?
Bias
Is evidence of bias admissible?
YES, almost always
What are Subsequent Remedial Measures (SRM)?
Repairs, design changes, or policy changes taken after an accident that could have prevented the accident
Are SRM admissible?
Maybe, to prove:
- Proof of ownership
- Control
- Feasibility of a safer condition
(if these are in dispute)

BUT NOT to prove:
- Negligence
- Culpable Conduct
- Product Defects
- A need for a warning
What are SRM's inadmissible to prove under FRE?
- Negligence
- Culpable Conduct
- Product Defects
- A need for a warning
What are SRM's admissible to prove under FRE?
- Proof of ownership
- Control
- Feasibility of a safer condition
(if these are in dispute)
What are SRM's admissible to prove under NY?
- For Products Liability Actions based on strict liability for a Manufacturing defect *** Added
- Proof of ownership
- Control
- Feasibility of a safer condition
(if these are in dispute)
What are SRM's inadmissible to prove under NY?
- Negligence
- Culpable Conduct
- Product Defects
- A need for a warning

** Same as FRE
What are the 3 theories of products liability, and which one does NY care about?
1) Manufacturing Defect ** NY
2) Defective Design
3) Failure to Warn
What is the rule of admissibility for settlements in civil cases?
If there is a disputed claim, evidence of:
-settlements
-offers to settle
-statements made in settlement discussions
are inadmissible to prove liability
What 3 things are inadmissible to prove liability regarding settlements in civil cases?
1) Actual Settlements
2) Offers to Settle
3) Statements made in settlement discussions
When may settlement evidence be admissible?
When offered to impeach a witness on grounds of bias
If an objection is sustained, the evidence is what?
inadmissible
If an objection is overruled, the evidence is what?
admissible
What is the rule of admissibility for offers to pay hospital or medical expenses?
Inadmissible to prove liability - evidence that party has paid or offered to pay accident victim's hospital or medical expenses
What 4 things are inadmissible against D in pending criminal or subsequent civil litigation (regarding pleas)?
1) Offer to plead guilty
2) Withdrawn guilty plea
3) Plea of nolo condendere (no contest)
4) Statements of fact during any of the above
A plea of guilty that is not withdrawn is what?
Admissible against D in subsequent litigation based on same facts in both federal and NY court
When are criminal pleas admissible as evidence in NY?
When used as evidence that is a withdrawn guilty plea used for subsequent civil suit
What is character evidence?
Evidence that refers to person's general disposition or propensity
What is propensity?
conduct in conformity; the propensity to act in a certain way
What are the 4 purposes for which (whether admissible or not) character evidence is offered?
To show:
- Propensity
- Veracity
- Non-Propensity Purposes
- Trait as element of crime/etc.
What is veracity?
The witness's character for truthfulness
For what purpose is character evidence not admissible?
To prove propensity
For what purposes are character evidence admissible?
To show witness's veracity, for a non-propensity purpose, and when the trait is an element
When may propensity be admissible in Criminal Cases(2 exceptions to general rule)?
1) When D introduces evidence of his own good character for a relevant trait
2) When, if D does so, the pros rebuts with evidence of D's bad character for the same trait
What are the 3 forms of Character Evidence?
1) Reputation
2) Opinion
3) Evidence of Specific Acts
What forms of Character evidence are allowed in Federal?
Reputation and Opinion
What form of Character Evidence is allowed in NY?
Reputation ONLY
What form of evidence is not allowed under FRE or NY?
Evidence of Specific Acts
If D has opened the door by calling Character witnesses, what 2 ways may the Pros rebut in Crim Case?
1) By calling its own witnesses to testify about relevant bad character of D

2) By cross-examining D's character witnesses by questioning their knowledge of specific BAD ACTS by D that are relevant to character trait at issue
What is the form of question asked for an opinion witness in rebuttal?
"Did you know..."
What is the form of question asked for a reputation witness in rebuttal?
"Have you heard..."
What is the requirement for pros to question witnesses' knowledge of specific bad acts in a criminal case?
Good Faith Requirement; even though Pros is not proving the bad act, it must have good faith basis to believe that the act took place
In NY, how may the pros rebut D's good character evidence in a criminal case?
By reputation evidence, cross-examination of witnesses, and by proving that D has been convicted of a crime that reflects adversely on the character trait at issue
May a criminal D offer evidence of victim's character under FRE?
YES, may offer evidence of victim's violent character to prove that Victim was first aggressor
What form may victim character evidence take under FRE?
Reputation and Opinion
What 2 ways may Pros rebut the claim of a victim's bad character offered by D under FRE?
1) Show the victim's good character for the trait in dispute

2) Show D's bad character for that trait
May a criminal D offer evidence of victim's character under NY?
NO, evidence of victim's character is inadmissible to prove that victim was first aggressor
What is the special rule for D's knowledge of a Victim's character for violence?
D may offer evidence of his own knowledge of victim's bad character for violence for the purpose of showing that he reasonably believed in the need to use self-defense

**Any form is allowed

**NY follows the SAME RULE
May a criminal D offer evidence of knowledge of victim's bad character for violence?
YES, under special rule of D's knowledge
What is the Rape Shield Rule?
In a case involving alleged sexual misconduct, D ordinarily may not introduce evidence of:
1) The victim's reputation for promiscuity or
2) The victim's prior sexual conduct

**Applies to civil and criminal cases
What are the exceptions to the Rape Shield Rule?
D may introduce evidence of:
1) Victim's sexual activity with D, but only if defense is consent

2) Victim's sexual activity of others, but only to prove that someone other than D was the source of physical evidence

3) **NY: Victim's conviction for prostitution within the past 3 years
In civil cases, is character evidence admissible to prove propensity?
NO, generally inadmissible
What is the exception to character evidence in civil cases + two cases where it applies?
Evidence of person's character is admissible where such character is an essential element of a claim or defense:

1) Negligent Hiring
2) Defamation
What is habit?
Habit is a repetitive response to a particular set of circumstances
What are 2 distinguishing characteristics of habit?
1) Frequency
2) Particularity
What is the habit exception?
Habit of a person (or routine of a business organization) is ADMISSIBLE to infer how the person (or business) acted on the occasion at issue in the litigation
What are some key words indicating habit frequency?
"Always," "Invariably," "Automatically," and "instinctively"
Is business routine admissible?
YES, the regular practice of an organization is admissible to prove conduct on a particular occasion
In NY, is habit evidence relating to a business, trade, or profession admissible?
YES, admissible
In NY, is habit evidence relating to personal habit on the issue of due care in negligence admissible?
NO, inadmissible
In NY, is habit evidence relating to personal habit in the use of a product admissible?
YES, admissible
What is the MIMIC rule?
D's other crimes or bad acts may be admissible if offered to show something specific about the charged crime (separate and apart from a propensity to commit the crime)
What are the most common non-character purposes for MIMIC Evidence?
M - Motive
I - Intent
M - Mistake or Accident, Absence of
I - Identity
C - Common Scheme or Plan
What is the general rule of evidence of other crimes and bad character?
D's other crimes or specific bad acts are inadmissible during the Pros. case-in-chief if the only purpose is to prove propensity
What is the general exception of the general rule of other crimes and bad character?
If D's other crimes or specific bad acts are offered for some purpose other than propensity, then the evidence will not be barred by the rule against character evidence
When may the Pros. use MIMIC evidence?
As part of its case-in-chief

** Doesn't depend on D's introduction of favorable character evidence
What are 2 ways to prove MIMIC purpose crimes?
1) By Conviction

2) By evidence that tends to prove the prior bad act occurred
What is the Burden of Proof for MIMIC evidence under FRE?
The Sufficiency Standard: Pros must produce sufficient evidence for a reasonable jury to conclude that D committed prior act by a preponderance of the evidence
What is the Burden of Proof for MIMIC evidence under FRE?
Identity Evidence Standard: Pros must produce clear and convincing evidence that D committed the prior act
What are other requirements for MIMIC evidence? (3 things)
1) Pragmatic considerations
2) Limiting Instruction
3) Pretrial Notice
Can MIMIC evidence be used in Criminal cases?
YES, most often appears in crim cases
Can MIMIC evidence be used in Civil cases?
YES, it may be used, if relevant, for tort actions like fraud or assault
Under FRE, is evidence of other sexual misconduct to show propensity for sexual assaults admissible?
YES, in any case alleging sexual assault or child molestation, Pros may offer evidence of D's prior sexual assaults for purpose of proving D's propensity to commit sexual assaults
Under NY, is evidence of other sexual misconduct to show propensity for sexual assaults admissible?
NO, D is treated like every other D; Pros may not introduce evidence of prior bad acts to prove propensity
What is the general rule of relevance?
To be relevant, evidence must relate to some time, event, or person involved in the present litigation; Otherwise, it is inadmissible
To be admissible, what must evidence relate to? (3 things)
1) Time
2) Event
3) Person
...involved in the present litigation
What is the exception to the general rule of evidence (similar occurrences)?
In some limited circumstances, other similar occurrences may be admissible, even if they relate to a time, event, or person other than that involved in the present litigation
What are 6 situations of similar occurrences?
1) Habit
2) Plaintiff's accident history
3) Similar accidents caused by the same event or condition
4) Intent in Issue
5) Comparable Sales on Issue of Value
6) Industrial Custom as Standard of Care
What is the rule regarding P's history of accidents or law suits?
They are Generally inadmissible
What is the exception to the rule regarding P's history of accidents or law suits? (2 things)
P's prior accidents may be admissible to show:
- Fraudulent Scheme or plan
- Causation
What is the rule regarding similar accidents cause by the same event or occurrence?
Other similar accidents are generally inadmissible
What is exception to the rule regarding similar accidents cause by the same event or occurrence? (3 potential purposes)
Other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for:
- showing existence of a dangerous condition
- causation
- prior notice to D
What is the rule regarding intent in issue?
Admissible - Prior similar occurrences may be relevant to draw an inference of intent from a person's prior conduct
What is the rule regarding comparable sales on issue of value?
Admissible - The selling price of comparable property (similar type, same general location, in the same time period) is admissible as evidence of the value of the property at issue
What is the rule regarding industrial custom as standard of care?
Admissible - Evidence as to how others in the same industry or trade have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted

** Like evidence of the appropriate standard of care
What is judicial notice?
The recognition of a fact as true without formal presentation of evidence
What is the rule of judicial notice?
A court may take judicial notice of indisputable facts:
- matters of common knowledge
- matters capable of easy verification
What are the two forms of indisputable facts for judicial notice?
1) Matters of common knowledge within the court's territorial jurisdiction

2) Matters capable of easy verification by resort to unquestionable sources
When may judicial notice be taken?
At any time, including on appeal
What effect does judicial notice have?
Judicially noticed facts are considered conclusive in civil cases, but not in criminal cases
What is the general rule of authentication?
The party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be
What is the authentication rule for writings?
If the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source of authorship to authenticate the writing
What are the 4 ways to authenticate writings?
1) Testimony by a witness with personal knowledge
2) Proof of author's handwriting by lay opinion, expert opinion + comparison, and jury comparison
3) Ancient Document Rule
4) Solicited Reply Doctrine
What are 3 ways to prove the author's handwriting?
1) Lay opinion - witness has familiarity with X's handwriting as a result of experience in normal course of affairs, not from litigation

2) Expert Opinion + Comparison - expert must be qualified and must compare DOCUMENT to genuine sample or exemplar X's handwriting

3) Jury Comparison - trier of fact compares DOCUMENT to a genuine sample or exemplar X's handwriting
What is the Ancient Document Rule (and 3 factors with it)?
Authenticity may be inferred if the document:
1) Is at least 20 years old
2) Is facially free of suspicion, and
3) Is found where it would be expected

**In NY, it must be at least 30 years old
How old must a document be to qualify under the Ancient Document Rule for FRE?
At least 20 years old
How old must a document be to qualify under the Ancient Document Rule for NY?
At least 30 years old
What is the solicited reply doctrine?
A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
What are Self-Authenticating Documents?
Documents that are presumed authentic where no foundation testimony is needed
What are the 7 Self-Authenticating Documents?
1) Official Publications (gov pamphlets, tax return forms)
2) Certified Copies of Private or Public documents on file in public office (deeds or mortgages on file)
3) Newspapers or Periodicals (WSJ used to prove stock price on particular day)
4) Trade Inscriptions and labels (Label on candy bar to prove it was Hershey's)
5) Acknowledged documents (notarized doc)
6) Commercial Paper (check, promissory note)
7) Certified Business Records, must be certified by someone within the business who knows how the records are regularly made and that these documents were made in the regular way at or about the time of the event recorded
What 4 factors make certified business records self-authenticating?
1) must be certified by someone within the business
2) who knows how the records are regularly made
3) and that these documents were made in the regular way
4) at or about the time of the event recorded
What are two ways that photographs may be used as evidence?
As demonstrative evidence or
As a silent witness
What is the rule of authentication of photos as demonstrative evidence?
They can be authenticated by Witness testifying, based on personal knowledge that the photo is a fair or accurate representation of the people or objects portrayed
What is the rule of authentication of photos as silent witness? (3 things)
The party must show that:
1) The camera was properly installed and working
2) The film was properly removed and developed
3) The film has not been tampered with
What is a photo that is a silent witness?
When the photo is not illustrating a witness's testimony but rather is itself evidence--like from surveillance cameras, teller machine cameras, etc.
What is a photo that is demonstrative evidence?
A photo with the purpose of illustrating a witness's testimony
What is the most effective way to show absence of tampering?
By establishing a chain of custody
What is the Best Evidence Rule (BER)?
If a party seeks to prove contents of a writing, the party must either:
- produce the writing, or
- provide an acceptable excuse for its absence

** If court agrees with excuse, party may then use secondary evidence, such as oral testimony to prove the contents
What is the BER also known as?
The original writings rule
What are examples of writings?
Documents, recordings, films, X-rays
When does BER apply?
Only when the party seeks to prove the contents of the writing
When does BER NOT apply?
When a witness with personal knowledge testifies to a fact that exists independently of a non-legally operative writing that records the fact
In what 2 principal situations does the BER arise?
When:
1) The writing is a legally operative document
(deeds, mortgages, divorce decrees, written contracts--writing itself creates rights and obligations)

2) The witness is testifying to facts that she learned solely from reading about them in a writing
What is an original writing?
Includes:
- the writing itself
- any counterpart intended to have the same effect
-any negative of film or print from the negative
What is a duplicate writing?
Any counterpart produced by any mechanical means that accurately reproduced the original
- Photocopies
- Carbon-copies
- Computer Print-outs
What is the general rule of duplicates? Are they admissible?
Duplicates are admissible to same extent as original, UNLESS:
- There is a genuine question about its authenticity
- It would be unfair to admit the duplicate
What is the NY rule of duplicates?
Photocopies and other duplicates are acceptable substitutes for the original copy only if the duplicates were made in the regular course of business
(not of litigation)
What is not considered an original writing?
Handwritten copies
When will the non-production of the original be excused? (3 ways)
1) When it is lost or cannot be found with due diligence
2) When it has been destroyed without bad faith
3) When it cannot be obtained with legal process
When is secondary evidence of original writings admissible?
When the court is persuaded by a preponderance of the evidence that the excuse for the non-production of the original has been established
What are the 3 escapes from the Requirements of the BER?
1) Voluminous Records - can be presented through a summary or chart provided the originals available for inspection

2) Certified copies of public records

3) Collateral Documents - if court determines document is unimportant to issues of case
On the bar exam, the BER is usually what?
USUALLY A WRONG CHOICE!
What is Real Evidence?
The actual physical evidence that is displayed to the trier of fact
How do you authenticate real evidence?
By introducing sufficient evidence that the item is what you claim it to be
What is the process of authentication called?
Laying a foundation
What are two methods of authenticating real evidence?
- Personal knowledge

- Chain of Custody
Must chain of custody be unbroken always?
NO, it just must be substantially unbroken, it need not be perfect
What must be shown at trial if the condition of real evidence is relevant?
The real evidence is substantially in the same condition and not tampered with
Federal courts recognize what 4 privileges?
1) Attorney/Client
2) Husband/Wife
3) Clergy/Penitent
4) Psychotherapist/Patient
What privilege does the Majority rule recognize but not the Federal rule?
Doctor/Patient Privilege
What privileges does NY recognize? (7 privileges)
1) Attorney/Client
2) Husband/Wife
3) Clergy/Penitent
4) Psychotherapist/Patient
5) Doctor/Patient
6) Social Worker/Client (includes rape-crisis councilor)
7) Reporter/Source
What is the Attorney/Client Privilege Rule?
Confidential communication between an attorney + client made during professional legal consultation will be privileged unless waived by the client or if exception applies
What is "attorney" for purposes of the Attorney/Client Privilege?
- A member of the bar,
- Someone client reasonably relieves is a member of the bar,
- A representative of the attorney?
What is "client" for purposes of the Attorney/Client Privilege?
- A person seeking to become a client
- A representative of the client
What does the Attorney/Client Privilege cover?
Communications so long as they are confidential and for the purposes of legal advice
When can the A/C privilege be waived?
By the client or when an exception applies
Can a legal secretary count as an agent of an attorney for A/C Priv?
YES
Can a translator count as an agent of an attorney for A/C Priv?
YES
Can an accountant count as an agent of an attorney for A/C Priv?
YES, IF they are helping the attorney provide legal services
What does the attorney/Client privilege not apply to? (3 things)
1) Underlying information
2) Preexisting documents
3) Physical evidence
If during a visit to the attorney a 3rd party listens in, is the client communication confidential?
NO, also when client asks attorney to disclose communication to 3rd party
What is the joint client rule?
If 2+ clients with common interests consult the same attorney, their communications with council concerning the common interest are privileged as to 3rd parties but not between each other (when there is a dispute)
Who has the power to waive A/C privilege?
The client alone
Does the privilege continue when an A/C privilege ends?
YES, even upon death of client
What is the Doctor/Patient Privilege Rule?
Confidential communications or information acquired by doctor from patient for purpose of diagnosis or treatment of a medical condition is privileged
What are the exceptions to the A/C Priv? (3 things)
1) To prevent future crime or fraud
2) When the client puts legal advice in issue of case
3) In an attorney/client dispute
What does "doctor" mean for D/P Priv?
Doctors, therapists, nurses, assistants

** NY: also dentists, podiatrists, and chiropractors
What does D/P Priv cover?
Communications or information acquired by doctors so long as it is confidential and for the purpose of medical treatments or diagnosis
How can the D/P priv be waived?
If the patient expressly or impliedly puts physical or mental condition in issue
What is the Spousal Communications Privilege Rule?
Confidential communications between spouses will be privileged
When does the Spousal Communications Privilege apply?
Applies to relationships between married spouses
When does the Spousal Communications Privilege cover?
Communications so long as they are confidential
When can the Spousal Communications Privilege be waived?
Only by both spouses
What is the Spousal Testimonial Privilege Federal Rule?
In a criminal case, Pros cannot compel D's spouse to testify against D
What is the Spousal Testimonial Privilege called?
Spousal Immunity
Does Spousal Immunity apply in NY?
NO
When does the Spousal Immunity apply?
Only in criminal cases
What does Spousal Immunity cover?
Testimony against the spouse so as long as witness and D are currently married
When can Spousal Immunity be waived?
May be waived by witness spouse
What are the 2 exceptions to spousal privileges?
Communications or acts:
1) In furtherance of future crime or fraud
2) Destructive of the family unit
The privilege of Spousal Immunity applies when the spouse is married at the time of what?
Testimony
The privilege of Spousal Communications applies when the spouse is married at the time of what?
Communication
What is hearsay?
An out-of-court statement (oral or written) by a person offered to prove the truth of the matter asserted
What is the person who makes the hearsay statement called?
The declarant
Can animals or machines make hearsay statements?
NO
Whether a statement is hearsay depends on what?
The purpose for which it is offered
Not Offered to prove truth of matter asserted -> not hearsay
Absent an exception or exclusion, hearsay is what?
INADMISSIBLE
What is the usual standard of Burden of Proof in Civil cases?
Preponderance of the Evidence
What is the usual standard of Burden of Proof in Criminal cases?
Beyond a reasonable doubt
Who decides whether the burden of proof has been met for each element of the charge, claim, or defense?
The Jury
What three forms of conditional relevance does the jury decide on?
Whether:
1) A witness has personal knowledge
2) An exhibit is authentic
3) The D is in fact the person who committed a prior bad act offered as MIMIC evidence
What is the judge's role for conditional relevance?
Simply ensures that there is sufficient evidence for reasonable jury to conclude that conditional fact is true
The judge decides questions of what?
Admissibility
Like whether:
- Testimony is hearsay
- Communication is privileged
- Expert is qualified

** Judge may consider anything
What are the 4 non-hearsay uses?
1) Impeachment
2) Verbal Acts
3) Effect on the Hearer
4) Circumstantial Evidence of Speaker's state of mind
What are the 3 rules of prior statements of trial witnesses for hearsay exception?
1) Prior statements of Identification
2) Prior inconsistent statements
3) Prior consistent statements
What are the 10 general hearsay exceptions?
1) Party Admissions
2) Former Testimony
3) Forfeiture by Wrongdoing
4) Statements Against Interest
5) Dying Declarations
6) Excited Utterances
7) Present Sense Impressions
8) Then-existing condition
9) Statements for Medical Treatment or Diagnosis
10) Business + Public Records
What is the Hearsay rule about Impeachment?
A prior inconsistent statement may be offered to show that the Witness is an inconsistent person, without necessarily being offered to prove the truth of a prior statement
What is the Hearsay rule about Verbal Acts?
Words with independent legal significance will not be hearsay?
Will words with independent legal significance be hearsay?
NO
Will prior inconsistent statements offered to show that the Witness is an inconsistent person, not the truth of the prior statement be hearsay?
NO
Will a statement that is relevant simply because someone heart it be hearsay?
NO
What is the hearsay exception rule to evidence revealing a speaker's state of mind?
Statements that unintentionally reveal something about the speaker's state of mind are not hearsay
Are prior statements of trial witnesses hearsay?
YES, a witness's own prior statement, if offered to prove the truth of the matter asserted is hearsay and is inadmissible
What 3 types of prior witness statements are excluded from the hearsay rule?
1) A prior statement of identification

2) A prior inconsistent statement made under oath during a formal proceeding
** NY: admissible only to impeach

3) A prior consistent statement if used to rebut an accusation of motive to lie and made before the motive to lie was used
**NY: admissible only to rehabilitate
What is the Party Admissions Exception?
Any statement made by a party is admissible if it is offered against a party (by the other side)
What is the Federal rule on Vicarious Admissions?
A statement made by an agent or employee of a party is admissible against the party if it concerns a matter within the scope of and was made during the agency or employment
What is the NY rule on Vicarious Admissions?
A statement by an employee or agent is admissible against the principal only if the agent or employee had speaking authority
What is the Rule of Vicarious Admissions by Co-Conspirators?
A statement of one is admissible against the other if statement was made during and in furtherance of the conspiracy
What are the Federal grounds for unavailability? (5 things)
PAILS
P - Privilege
A - Absence from the Jurisdiction
I - Illness or Death
L - Lack of Memory
S - Stubborn Refusal to Testify
What are the NY grounds for unavailability? (4 things)
PAID
P - Privilege
A - Absence from the Jurisdiction or located 100+ miles away
I - Illness or Death
D - Doctor
What is the Former Testimony Exception (federal)?
Declarant is unavailable and the prior statement is admissible if given in proceeding or deposition and offered against a party who, on the prior occasion, has an opportunity and similar motive to cross-examine or to otherwise develop the testimony
** Must be substantially similar in relevance
What is the Former Testimony Exception (NY)?
Former testimony by now-unavailable witness must have been given at a criminal trial, a hearing on felony complaint, or at conditional deposition with D and charge the same in both former and current cases

**Suppression hearings do not count
What is the Forfeiture of Wrongdoing Exception?
A party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection to admission of the declarant's out-of-court statement
What is the Statements against Interest Exception?
Declarant is unavailable and the statement is against Declarant's pecuniary, proprietary, or penal interest
What is the Dying Declaration Exception?
Declarant is unavailable and the statement was made under a belief of certain and impending death AND statement concerns the cause/circumstances of the impending death
Dying Declarations are available in what types of cases in Federal Court?
Any civil case or a criminal homicide case
Dying Declarations are available in what types of cases in NY?
Criminal homicide cases only
What is the Excited Utterance Exception?
The statement concerns a startling event and was made while the declarant was still under the stress caused by the event
What is the Present-Sense Impression Exception?
The statement describes an event and is made while the event is occurring or immediately thereafter
What does NY require for the Present-Sense Impression exception?
Requires corroboration
What is the Statement of Then-Existing Mental, Emotional, or Physical Condition Exception?
Admission of a contemporaneous statement concerning the declarant's then-existing physical condition or state of mind
What does the Statement of Then-Existing Condition Exception cover?
- Emotions
- Mental Feelings
- Intent or Future Plans
- Sensations
- Bodily Health
- Statements of future intent to do something with a 3rd person
What does the Statement of Then-Existing Condition Exception NOT cover?
Statements of memory or belief about a past condition
What is the Statement of Then-Existing Condition Exception in NY for present physical condition?
Declarants must be unavailable if statements of present physical condition are made to a layperson
What is the Statement of Then-Existing Condition Exception in NY for future intent?
If a statement of future intent is offered to prove conduct of a 3rd person, it requires corroboration and declarant unavailability
What is the Statements for Purpose of Medical Treatment/Diagnosis Exception?
Allows admission of a statement made to medical professionals concerning:
- present symptoms
- past symptom
- general cause of a medical condition
for the purpose of treatment or diagnosis
What is the Statements for Purpose of Medical Treatment/Diagnosis Exception not apply to under Federal?
- Statements of fault, OR
- Identity of the wrongdoer
What is the Statements for Purpose of Medical Treatment/Diagnosis Exception not apply to under NY?
Statements:
- Made solely for the purpose of obtaining expert testimony at trial OR
- Relating to past symptoms
If hearsay is admitted, may the opposing party attack the credibility of the hearsay declarant?
YES, using any of the impeachment methods
What does the 6th A provide?
In criminal cases, D may be "confronted" with witnesses against him
May the Pros offer testimonial hearsay in violation of D's right to cross-examine the declarant?
NO
What 3 ways satisfy the right to "cross-examine the declarant"?
If D:
1) Already had a chance to cross-examine the declarant
2) Can cross-examine the declarant at trial
3) Has forfeited his confrontation rights by witness-tampering
What does "testimonial" mean?
If the primary purpose of the questioning is to establish or prove past events potentially relevant to criminal pros
What does "non-testimonial" mean?
If the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency
Police reports are (testimonial/non-testimonial)?
Testimonial
Business Records are (testimonial/non-testimonial)?
Non-testimonial
What are two ways to lay the foundation of biz records?
1) Live Testimony
(Call a knowledgeable witness--custodian of records--who can testify to the 5 elements of business record hearsay exception)

2) Affidavit
(Submit a written certification under oath attesting to elements of business records hearsay exception)
**NY: can only be used in civil cases and only of a non-party
What are the 5 elements of the Business Records Exception?
1) Records of a Biz
2) Made in the regular course of biz
3) The biz regularly keeps such records
4) Made contemporaneously
5) The contents consist of information observed by biz employees or some statement that falls within some other hearsay exception
What is the Public Records Exception?
In addition to observations by employees of a public agency, you may also include conclusions by public employees after an official investigation
** NY: applies to observations only, not to conclusions
What may not be offered against a D in a criminal case under the Public Records Exception?
Police Reports
What are 2 methods of rehabilitation of a character witness?
1) Introduce evidence of Good Character for Truthfulness
2) Introduce consistent statements
What is the Federal rule for rehabilitation with prior consistent statements?
A witness's prior statement may be used to rehabilitate if:
- the prior statement is consistent with the witness's trial testimony
- The opposing party has suggested through impeachment that the witness has a motive to lie, AND
- The prior statement was made before the motive to lie arose
What is the NY rule for rehabilitation with prior consistent statements?
A prior consistent statement is admissible only to rehabilitate
What forms of rehabilitation are allowed in Federal Court?
Reputation or Opinion
What forms of rehabilitation are allowed in NY?
Reputation ONLY
When may a witness be rehabilitated?
Generally, only after the witness's credibility has been attacked through impeachment

** However, a witness's prior statement of Identification is admissible, even if not attacked yet
** NY: above, but not allowed in civil cases
What is bolstering?
Introducing evidence to support a witness's credibility before the witness's credibility has been attacked
Under Federal Rule, can you impeach your own witness?
YES, any party may impeach any witness
Under NY, can you impeach your own witness?
NO - Voucher Rule Applies, EXCEPT when prior inconsistent statements are made in writing and signed by the witness or in oral testimony under oath

** In criminal cases, the testimony must be affirmatively damaging in order to impeach
What is the Voucher Rule?
By calling a witness, a person "vouches" for that witness's credibility
What 2 requirements make a witness competent to testify?
1) Witness must have personal knowledge
2) Witness must take an oath, which simply means that he demonstrates:
- an understanding of the obligation to tell the truth
- and promises to tell the truth
What is the NY rule for competency of children (in Civil and in Criminal Cases)?
A child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth

Civil -> children must take an oath

Criminal -> If under age 9 and cannot understand the oath, may still testify, but it is unsworn testimony
May a witness be impeached by showing that she made a mistake or lied about any fact testified to during direct examination?
YES

Contradiction is significant -> proven by extrinsic evidence

Contradiction is collateral -> proven by intrinsic evidence
What are collateral matters?
Insignificant issues to that of the case or to the witness's credibility
What is a Dead Man's Statute (DMS)?
In a civil action, an interested party may NOT testify against a dead party about communications or transactions with the dead party
What is the federal rule on DMS?
There is no DMS - a witness is not incompetent simply because she may have an interest in the outcome of the litigation
What is an interested person?
A person is interested only if the outcome of the case will have a legally binding effect on the person's rights or obligations
The dead man's rights may be waived if what occurs? (3 things)
1) Decedent's representative does not object,

2) Decedent's representative testifies about the transaction, OR

3) Decedent's testimony is introduced (like a deposition before they died)
What is the DMS in NY?
Similar to most states, but with an accident exception:

In an accident case based on negligence, the surviving party may testify about the facts of the accident BUT may not testify about conversations with the dead party!
What is a leading question?
When the form of the question suggests the answer

"Isn't it a fact that..." OR an unevenly balanced alternative
What are the 2 rules on leading questions?
1) They are generally NOT allowed on direct examination of a witness

2) They are generally allowed on cross-examination of a witness
What are the 4 exceptions to leading questions on direct examination?
Allowed for...
1) Preliminary introductory matters
2) Youthful or forgetful witnesses
3) Hostile witnesses
4) Adverse parties, or someone under control of an adverse party (like an employee)
What is the rule on Present Recollection Refreshed?
Witnesses may not read from a prepared memo (must testify on basis of current recollection), BUT, if a witness forgets something he once knew, he may be shown a writing to jog his memory
What are acceptable refreshers for witnesses?
ANYTHING
If an item is used to refresh a witness's memory, the opposing party has the right to do what? (3 things)
1) Inspect it
2) Use it on cross-examination
3) Introduce it into evidence
What is the rule on past recollection recorded?
A writing may be read to the jury as a "past recollection recorded" if:
- Witness once had personal knowledge
- Witness now forgets and showing the writing to witness fails to jog memory
- Writing either made or adopted by witness
- Writing was made when event was fresh in memory
- Witness can attest that, when made, the writing was accurate
What is the method for past recollection recorded?
1) Witness may read document to jury

2) Witness may NOT show document to jury

3) Opposing party may show document to jury
What is the NY method for past recollection recorded?
Witness may read AND show document to jury (introduce it as exhibit)
What is the rule for lay opinion?
Lay opinion testimony is admissible if it is rationally based on the witness's perception, and helpful to the jury
What are 5 examples of what a lay witness may testify about?
1) Sobriety
2) Emotions
3) Speed
4) Handwriting
5) Smells
What is the general rule on Expert witness opinion?
A witness may testify to an opinion as an expert only if:
- the witness is qualified
- testimony is about subject matter where scientific, technical, or specialized knowledge will be helpful to the jury
- opinion has proper basis
- opinion is reliable
How can an opinion of an expert be proper?
If based on a reasonable degree of probability or reasonable certainty, and based on
- expert's personal knowledge
- evidence already in trial record
- facts outside the record only if reasonably relied on by experts in the particular field
How can an opinion of an expert be reliable?
If the expert has used reliable methods and reliably applied those methods to the particular facts of the case
What is the Federal Reliability Standard (4 steps)?
The Daubert Standard
1) Has the methodology been tested?
2) Are there known rates of error?
3) Has the methodology been subject to peer review?
4) Has the methodology been generally accepted?
What is the NY Reliability Standard?
The Frye Standard
Whether the methodology has been generally accepted by the relevant professional community
Is opinion testimony permitted if it addresses an ultimate issue in a case?
YES, except it cannot show that D had required mental state
What is the Federal rule of Learned Treatises in Aid of Expert Testimony?
If a party can establish that a treatise is reliable authority:
- It may be used on direct or cross
- It may be read to jury as substantive evidence
- It may not itself be introduced as an exhibit
What are 3 ways to establish authoritativeness of a learned treatise?
1) Your own expert testifies that the treatise is authoritative
2) Your opponent's expert admits that the treatise is authoritative
3) The judge takes judicial notice that the treatise is authoritative
What is the NY rule of Learned Treatises in Aid of Expert Testimony?
May only be used for showing basis of expert's testimony, not as substantive evidence, on direct

On cross, may only be used to impeach opponent's expert's credibility if either relied on it when developing own opinion OR acknowledging that it is reliable authority
Is cross-examination a right?
YES, if a witness testifies but then cannot be cross-examined, his direct testimony will be struck
What does proper subject matter of cross include?
- Matters within scope of direct
- Matters that affect witness's credibility
What is credibility? (3 requirements)
Whether a witness is believable, resting on:
- witnesses' perception
- memory
- honesty
What is impeachment?
The process of trying to demonstrate that a witness is not credible
What is rehabilitation?
The process of trying to repair a witness's credibility after it has been impeached
What is a prior inconsistent statement?
A prior statement (orally or in writing) that is materially inconsistent with the witness's trial testimony
What is the Federal rule for prior inconsistent statements?
A prior inconsistent statement may be used to impeach a witness or as substantive evidence to prove the truth of a prior statement if the statement was made orally under oath ad as part of a formal hearing preceding trial or deposition
What is the NY rule for prior inconsistent statements?
Prior inconsistent statements, even if given in formal testimony under oath, are admissible only to impeach
What are 7 methods of impeachment?
1) Prior inconsistent statements
2) Bias, interest, or motive to misrepresent
3) Sensory deficiencies
4) Reputation or Opinion
5) Criminal Convictions
6) Bad Acts *without conviction
7) Contradiction
What is intrinsic impeachment?
Impeaching a witness by asking the witness questions on cross-examination
What is extrinsic impeachment?
Impeaching a witness by introducing documentary evidence or by calling other outside witnesses
A witness being impeached with a prior inconsistent statement must be given an opportunity for what?
To explain or deny the prior inconsistent statement
In NY, when will a witness be given an opportunity to explain a prior inconsistent statement?
While still on the stand
In Federal, when will a witness be given an opportunity to explain a prior inconsistent statement?
Either on the stand OR later given the opportunity to return to the stand to explain
What is Bias?
some relationship between the witness and a party that could cause the witness to lie
What are some examples of bias or motive to misrepresent?
When the witness is:
- a party
- a friend, relative, or employee of a party
- someone paid by a party
- someone with a grudge against a party
- anyone who has something to gain by the case coming out one way or another
Bias is always proven by what type of evidence?
Extrinsic evidence, because it is so important, but generally the witness should be confronted before introduction
What is a sensory deficiency?
Anything that could affect the witness's perception or memory
What are some examples of sensory deficiencies?
- Bad eyesight
- Bad hearing
- Mental retardation
- Forgetfulness
- Intoxication at the time of event or while on the witness stand
What type of evidence is allowed to prove sensory deficiencies?
Extrinsic Evidence, and intrinsic confrontation is not required
What is veracity?
The character trait of being truthful
What is the federal rule of veracity?
A party may impeach a witness by calling another witness to testify to the target witness's bad character for veracity
In federal, what form of testimony is allowed to prove veracity?
Reputation or opinion
In federal, what form of testimony is allowed to prove veracity?
reputation only
Who may be impeached by evidence of bad character for veracity?
Any witness who has testified, and extrinsic evidence is allowed
In NY, may a witness be impeached with information about a conviction of a crime?
YES, any witness may be impeached with a conviction for any crime
What is a San Doval Hearing?
A special hearing conducted by the court when the witness is a criminal D to balance the probative value of the conviction *on the issue of veracity* against the risk of unfair prejudice
In Federal, may a witness be impeached with information about a conviction of a crime?
Yes, BUT:
- MUST be within 10 years of the trial
- Crimes of dishonesty or false statement are admissible
- Misdemeanors are not admissible
- Felonies are admissible if the probative value of conviction outweighs the risk of unfair prejudice to the party
What are examples of crimes of dishonesty?
A crime that, by definition, involves a lie or a betrayal of trust

- Perjury
- False statement
- Fraud
- Embezzlement
What are 2 factors that make a conviction probative?
- Seriousness
- Relation to trust and deception
What are 2 factors that make a conviction unfairly prejudicial?
- Inflammatory Nature
- Similarity to the currently charged offense
Convictions may be proven by what type of evidence?
Intrinsic or Extrinsic
For convictions, do you need to give the witness an opportunity to explain?
NO
Is evidence of conviction admissible to prove propensity to commit a particular crime?
NO, unfairly prejudicial
Is evidence of conviction admissible to prove propensity to commit sexual assault?
YES, in federal cases
NO, in NY
Is evidence of conviction admissible for MIMIC?
YES, if directly relevant to the current charges and not offered for propensity
Is evidence of conviction admissible to impeach a witness's character for veracity?
In federal:
YES for crimes of deceit any maybe for felonies
NO for misdemeanors

In NY:
Maybe for the criminal D and YES for other witnesses

** Convictions for crimes of dishonesty or for serious crimes may show that a witness is willing to lie under oath
Is evidence of conviction admissible to impeach a character witness's knowledge?
YES, Federal, but for questions only
YES, NY, for impeachment and propensity

** Convictions are the kind of things that affect people's opinions and reputations
What is the Federal rule on Bad acts without conviction?
A witness may be asked about prior bad acts if those acts relate to truthfulness
What is the NY rule on Bad acts without conviction?
A witness may be asked about prior bad acts that show the witness's moral turpitude
What are the limitations for asking about prior bad acts? (3 points)
1) cross-examiner must have good-faith basis to believe that bad act occurred

2) Bad act may be proven by intrinsic evidence ONLY

3) Extrinsic evidence allowed when bad act relevant for some other purpose like bias
Are arrests admissible for impeaching a witness's character for veracity?
NO

An arrest is not a conviction, and the arrest itself is not a prior bad act

** The bad act MAY BE ADMISSIBLE
Are arrests admissible for impeaching a character witness's Knowledge?
YES, questions only

Arrests are the kind of thing that affect people's opinions and reputations
Are arrests admissible for impeaching a witness by showing bias?
YES!!

An arrest may make a witness biased against law enforcement; or, pending charges may give a witness an incentive to curry favor with the Pros