Ny Bar Exam Review - Evidence Law

Front 1

What is judicial notice?

Back 1

Judicial notice is the recognition of a fact as true without formal presentation of evidence.

Front 2

What facts are appropriate for judicial notice?

Back 2

Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts). Courts have increasingly taken judicial notice of scientific principles as a type of manifest fact.

Front 3

How is judicial notice obtained?

Back 3

A party must formally request that notice be taken of a particular fact.

Front 4

When may judicial notice be taken?

Back 4

At trial, or for the first time on appeal.

Front 5

What is the effect of a judicailly noticed fact?

Back 5

The federal Rules provide that a judicially noticed fact is c onclusive in a civil case but not in a criminal case.

Front 6

What jury instructions are given in a criminal case with respect to judicial notice?

Back 6

In a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed fact.

Front 7

What are adjudicative facts?

Back 7

Those that relate to the particular case.

Front 8

What are legislative facts?

Back 8

Those relating to legal reasoning and lawmaking, such as the rationale behind the spousal privilege.

Front 9

What do the Federal Rules govern?

Back 9

Only judicial notice of adjudicative facts. Legislative facts need not be of common knowledge nor capable of indisputable verification to be judicially noticed.

Front 10

What MUST courts take notice of?

Back 10

Federal and state law and the official regulations of the forum state and the federal government.

Front 11

What MAY courts take judicial notice of?

Back 11

Municipal ordinances and private acts or resolutions of Congress or of the local state legislature, and laws of foreign countries.

Front 12

What is real evidence?

Back 12

Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).

Front 13

What are the conditions of admissibility of real evidence?

Back 13

Real evidence must be relevant and meet the following legal requirements:
1) Authentication;
2) Condition of Object;
3) Balancing Test- Legal Relevance.

Front 14

What is the authentication requirement?

Back 14

The object must be identified as what the proponent claims it to be, either by:
1) Testimony of a witness that she recognizes the object as what the proponent claims it is (e.g. witness testifies that gun is the one found at crime scene); or
2) Evidence that the object has been held in a substantially unbroken chain of possession (e.g., blood taken for blood-alcohol test).

Front 15

What is the condition of object requirement?

Back 15

If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Front 16

What is the balancing test?

Back 16

Some auxiliary policy or principle may outweigh the need to admit real evidence. Such policeis include physical inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice.

Front 17

What are the particular types of real proof?

Back 17

1) Reproductions and Explanatory Real Evidence;
2) Maps, Charts, Models, Etc.;
3) Exhibition of Child in Paternity Suits;
4) Exhibition of Injuries;
5) Jury View of the Scene;
6) Demonstrations

Front 18

What is the rule with respect to reproductions and explanatory real evidence?

Back 18

Relevant photographs, diagrams, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. However, items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (i.e, they are not given to the jury during its deliberations)

Front 19

What is the rule with respect to maps, charts, models, etc.

Back 19

Maps, charts, models, etc., are usually admissible for the purpose of illustrating tetsimony but must e authenticated (testimonial evidence that they are faithful reproductions of the object or thing depicted).

Front 20

What is the rule with respect to exhibition of child in paternity suits?

Back 20

In paternity suits, almost all courts permit exhibition of the child to show whether she is the race of the putative father. The courts are divided with respect to the propriety of exhibition for the purpose of proving physial resemblance to the putative father.

Front 21

What is the rule in NY with respect to exhibition of child in paternity suits?

Back 21

In NY, the jury may NOT consider physical resemblance on the issue of family relationships. However, child MAY be produced and exhibited for purposes of determining age.

Front 22

What is the rule with respect to exhbition of injuries?

Back 22

Exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this evidence if unfair prejudice would result.

Front 23

What is the rule with respect to jury view of the scene?

Back 23

The trial court has the discrtion to permit the jury to view places at issue in a civil or criminal case. The need for the view and changes in the condition of the premises are relevant considerations here.

Front 24

What is the rule with respect to jury view of the scene in NY?

Back 24

In NY, the judge must be present at a jury view in a criminal case. The prosecutor, defendant, and defendant's counsel are entitled as of right to attend. Unauthorized visit to the scene by jurors in criminal cases is inherently prejudicial and requires reversal. Unauthorized visit in civil cases MAY require reversal.

Front 25

What is the rule with respect to demonstrations?

Back 25

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. Demonstrations of bodiily injury may not be allowed where the demonstrations would unduly dramatize the injury.

Front 26

What is the rule with respect to demonstrations in NY?

Back 26

The trial judge has discretion in civil or criminal cases to allow the jury, upon retirement for deliberation, to take with them any exhibit received in evidence.

Front 27

What is the rule with respect to scientific experiments in NY?

Back 27

Neither the polygraph nor the voice stress analyzer has aachieved sufficient reliability to warrant admission of the results of these tests.

Front 28

What is the rule with respect to blood grouping and HLA Testing?

Back 28

In a dispute over paternity, the results of a blood grouping test (blood genetic market test) may be received into evidence where definite exclusion of the alleged father is established by the test. Furthermore, the results of a human leukocyte antigen blood tissue test (HLA) and the DNA genetic test are admissible to aid in determining paternity, UNLESS exclusion has already been established by another blood grouping test. When test results indicate at least a 95% probability of paternity, there is a rebuttable presumption of paternity.

Front 29

What is the burden of proof?

Back 29

It encompasses the burden of producing or going forward with the evidence, and the burden of persuasion.

Front 30

What is the rule with respect to the burden of producing evidence?

Back 30

The party who has the burden of pleading usually has teh burden of producing or going forward with evidence sufficient to make out a prima facie case (i.e., create a fact question of the issue for the trier of fact). Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.

Front 31

What is the rule with respect to the burden of persuasion (proof)?

Back 31

After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persusion for civil cases is usually by a preponderance of the evidence (more probably truue than not true), although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.

Front 32

When is proof by clear and convincing evidence specifically required in NY?

Back 32

1) To prove fraud;
2) In actions to recover on a contract to render services to one now deceased;
3) To prove mistake;
4) To prove that a gift of property has been made by one now deceased;
5) To establish grounds for reformation or recission;
6) To establish paternity;
and
7) To establish a claim for adverse possession.

Front 33

What is a presumption?

Back 33

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to hte presumption.

Front 34

What is the effect of a presumption?

Back 34

It shifts the burden of production. A presumption operates, until rebutted to shift the burden of production to the party against whom the presumption operates. **NOTE: a presumption does NOT shift the burden of PERSUASION. The burden of persuasion remains on hte same party throughout trial.

Front 35

When is a presumption rebutted?

Back 35

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Front 36

What is a permissible inference?

Back 36

A permissible inference may allow the party to meet his burden of production (e.g. establish a prima facie case), but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the soliator, and the inference of undue influence when a will's drafter is also the principal beneficiary.

Front 37

What are the "presumptions" in a criminal case?

Back 37

The presumption of innocence in criminal cases is merely a permissible inference. The burden of production never shifts to the accused.

Front 38

What considerations apply when true presumptions arise in the criminal context?

Back 38

The judge cannot instruct the jury that they MUST find a presumed fact against hte D; he must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.

Front 39

When must a presumed fact be proved beyond a reasonable doubt?

Back 39

If, in a criminal case, a presumed fact establishes guilt, is an element of the offense, or negates a defense, it must be proved beyond a reasonable doubt.

Front 40

What is a conclusive presumption?

Back 40

Because it cannot be rebutted, a conclusive presumption (e.g., that a child under age secen cannot commit a crime) is really a rule of substantive law.

Front 41

What are some common rebuttable presumptions?

Back 41

1) Legitimacy;
2) Agaisnt suicide (in civil cases);
3) Sanity (in both civil and criminal cases);
4) Death from absence (unexplained absence for continuous period of seven years without hearing from someone);
5) Ownership of car - agent driver;
6) Chastity;
7) Regularity;
8) Continuance;
9) Mail delivery;
10) Solvency;
11) Bailee's Negligence;
12) Marriage.

Front 42

What is the ownership of car - agent driver presumption?

Back 42

Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent.

Front 43

What is the regularity presumption?

Back 43

It is presumed that persons acting in an official office are properly performing their duties.

Front 44

What is the continuance presumption?

Back 44

Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.

Front 45

What is the mail delivery presumption?

Back 45

A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.

Front 46

What is the bailee's negligence presumption?

Back 46

Proof of delivery of goods in good condition toa bailee and failure of the bailee to return the goods in the same condition create thhe presumption that the bailee was negligent.

Front 47

What is the marriage presumption?

Back 47

Upon proof of a marriage ceremony, a marriage is presumed valid.

Front 48

What is the death from absence presumption in NY?

Back 48

In NY, absence need only be for THREE YEARS and a diligent search for the missing person is required.

Front 49

What is the rule where conflicting presumptions exist?

Back 49

When two or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.

Front 50

What is the choice of law rule regarding presumptions in civil actions?

Back 50

Under the federal rules, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.

Front 51

What is the allocation of responsibilities amongst parties, judge, and jury?

Back 51

In our adversarial adjudicative process, the focus is on the party's responsibility to frame the issues in a liigation and to assume the burden of proving the issues he has raised. The trial judgem's primary responsibility is to superintend the trial fairly. As a general rule, questions of law are for the trial judge to determine and questions of fact are for the jury.

Front 52

What is the rule with respect to judicial power to comment upon evidence in NY?

Back 52

In NY, the trial judge may NOT comment upon evidence.

Front 53

What is the rule with respect to confessions in NY?

Back 53

A confession alone is not sufficient to support a criminal conviction; corroboration is required.

Front 54

What are preliminary facts decided by the jury?

Back 54

Examples of preliminary facts to be decided by the jury include agency, authenticity of a document, credibility of a witness, and personal knowledge.

Front 55

What are preliminary facts decided by judge?

Back 55

Facts affecting the competency of hte evidence must be determined by the trial judge. Requierments for hearsay exceptions, privileges, and expert testimony, as well as mental competence, must also be decided by the judge.

Front 56

What evidence may be considered by the judge?

Back 56

The Federal Rules permit the trial judge to consider any relevant evidence even though not otherwise admissible under the rules of evidence. Most state courts, however, hold that the rulew of evidence apply in preliminary fact determinations as much as in any other phase of the trial; thus, only admissible evidence may be considered.

Front 57

What is the rule with respect to the presence of the jury during preliminary fact determinations?

Back 57

Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge.

Front 58

Does testimony of the accused on a preliminary matter waive the privilege against self-incrimination?

Back 58

No. An accused may testify on any preliminary matter (e.g. circumstances surrounding an allegedly illegal search) without subjecting herself to testifying at trial.

Front 59

What is the judicial power to comment upon evidence?

Back 59

A judge may comment on the weight of the evidence in federal courts, but generally not in state courts (MAY NOT IN NY)

Front 60

What is the judge's power to call witnesses?

Back 60

A judge may call and interrogate witnesses on her own initiative.

Front 61

What is the judge's responsibility with respect to rulings?

Back 61

A trial judge has an obligation to rule promptly on counsel's evidentiary objections and, upon request, to state the grounds for her rulings.

Front 62

What are the judge's responsibilities with respect to limited admissibility of evidence?

Back 62

A judge will restrict evidence to its proper scope and instruct the jury accordingly.

Front 63

What is relevance?

Back 63

Evidence is relevant if it has ANY tendency to make a material fact more probable or less probable than would be the case without the evidence.

Front 64

What is the rule of relevance?

Back 64

All relevant evidence is admissible UNLESS:
1) Some specific exclusionary rule is applicable; or
2) The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations.

Front 65

What are the six types of pragmatic considerations?

Back 65

1) Danger of unfair prejudice;
2) Confusion of the issues;
3) Misleading the jury;
4) Undue delay;
5) Waste of time;
6) Unduly cumulative.

Front 66

What is never a reason to exclude evidence?

Back 66

Unfair surprise

Front 67

What are the policy-based exclusions?

Back 67

1) Liability insurance;
2) Subsequent remedial measures (SRMs);
3) Settlements in civil cases;
4) Offer to pay hospital or medical expenses;
5) Pleas and plea discussions in criminal cases;

Front 68

What are the rules with respect to liability insurance exclusion?

Back 68

1) Evidence that a person has or does not have liability insurance is inadmissible for the purpose of proving fault or absence of fault;
2) BUT such evidence MAY be admissible for some OTHER relevant purpose, such as: a) proof of ownership or control IF that issue is controverted; or b) impeachment of a witness.

Front 69

What is the result when evidence is admissible for one purpose but inadmissible for another purpose?

Back 69

The judge should give the jury a limiting instruction.

Front 70

What is bias?

Back 70

Bias means there is some relationship b/t the witness and a party that could cause the witness to lie.

Front 71

What are subsequent remedial measures?

Back 71

Repairs, design changes, or policy changes taken AFTER an accident that could have prevented the accident.

Front 72

What are the subsequent remeidal measures rules?

Back 72

1) SRMs are inadmissible for the purpose of proving:
a) Negligence;
b) Culpable conduct;
c) A product defect; OR
d) A need for a warning;
2) BUT, such evidence may be admissible for some other relevant purpose, such as proof of:
a) Ownership; or
b) Control; or
c) Feasibility of a safer condition
IF that issue is controverted.

Front 73

What is the NY rule with respect to SRMs?

Back 73

In general, the NY rule is the same as the federal rule, except:
SRMs are admissible in a products liability action based on strict liability for a manufacturing defect.

Front 74

What are the rules with respect to settlements in civil cases?

Back 74

1) If there is a DISPUTED CLAIM, then evidence of:
a) settlements; or
b) offers to settle; or
c) statements
made in settlement
discussions
are inadmissible if offered to prove liability.
2) BUT, settlement evidence may be admissible if offered to impeach a witness on the ground of bias.

Front 75

What is the rule with respect to offers to pay hospital or medical expenses?

Back 75

1) Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liability.
2)BUT, the rule on offers to pay medical expenses applies ONLY to the offer, and not to statements of fact that are made along with the offer.

Front 76

What is the rule with respect to pleas and plea discussions in criminal cases?

Back 76

The following are inadmissible against a D in a pending criminal litigation OR a subsequent civil case:
1) An offer to plead guilty;
2) A withdrawn guilty plea;
3) A plea of nolo contendere (nolo plea or plea of no contest);
4) Statements of fact made during any of the above.
*NOTE: a plea of guilty that is NOT withdrawn IS admissible agaisnt D in subsequent litigation based on the same facts in both federal court and NY court.

Front 77

What difference exists in the NY rule with respect to pleas and plea discussions?

Back 77

A withdrawn guilty plea is admissible in NY in a subsequent civil case.

Front 78

For what purposes is liability insurance inadmissible?

Back 78

Fault.

Front 79

For what purposes is liability insurance admissible?

Back 79

Ownership or control (if controverted) or Impeachment.

Front 80

For what purposes are SRMs inadmissible?

Back 80

Negligence, Culpable conduct, or product defect (*NOTE: NY distinction for manufacturing defects)

Front 81

For what purposes are SRMs admissible?

Back 81

Onership, Control, Feasibility (if controverted);
or Impeachment

Front 82

For what purpose are settlement discussions inadmissible?

Back 82

Liability.

Front 83

For what purpose are settlement discussions admissible?

Back 83

Bias.

Front 84

For what purposes are offers to pay medicat expenses inadmissible?

Back 84

Liability.

Front 85

For what purposes are offers to pay medical expenses admissible?

Back 85

None, but note only applies to the actual offer and not statements made along with the offer.

Front 86

For what purpose are withdrawn please inadmissible?

Back 86

Guild, or (in Federal Court, but not NY), civil liability.

Front 87

For what purposes are withdrawn please admissible?

Back 87

None in federal court and only subsquent civil actions in NY.

Front 88

What is character evidence?

Back 88

Character evidence refers to a person's general propenisty or disposition, e.g., the character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness).

Front 89

What questions should you focus on where character evidence is involved?

Back 89

1) Purpose;
2) Criminal or civil case;
3) What is the form of the evidence

Front 90

What is a propensity purpose?

Back 90

If evidence of a person's character trait is offered to prove that hte person has a propensity to act in a certain way - in other words, as evidence that the person acted in conformity with the character trait on the particular occasion in question.

Front 91

What is the veracity of a witness purpose?

Back 91

If evidence of a witness's character for truthfulness is offered to impeach the witness.

Front 92

What is a non-propensity purpose?

Back 92

If evidence of a person's prior bad act is offered for some purpose OTHER than proving propensity ("conduct in conformity")

Front 93

What is the trait as element purpose?

Back 93

If evidence of a person's character trait is offered b/c the trait is an essential element of a claim or defense.

Front 94

What is the rule regarding character evidence?

Back 94

1) Character evidence is NOT admissible to prove propensity ("conduct in conformity").
2) Character evidence IS admissible for other purposes (veracity of witness, non-propensity purpose, trait as element).

Front 95

What is the rule with respect to character evidence offered by D in a criminal case?

Back 95

1) The D may introduce evidence of his own good character for a RELEVANT trait.
2) If the D does so, the prosecution may rebut with evdidence of D's bad character for the SAME trait.

Front 96

When character evidence is admissible to prove propensity, what are the proper methods?

Back 96

1) Federal: reputation or opinion;
2) NY: reputation ONLY
NO SPECIFIC ACTS are allowed to prove character by propensity under either rule.

Front 97

If the D has "opened the door" by calling character witnesses, in what way may the prosecution rebut?

Back 97

1) By calling its own witnesses to testify to the D's relevant bad character. Testimony can be in the form of reputation or opinion federally and reputation only in NY;
2) By cross-examining D's character witness by questioning their knowledge of SPECIFIC ACTS by the D that are relevant to the character trait at issue.

Front 98

What form must the questions of the D's witness take?

Back 98

For opinion witnesses: "Did you know?"

For reputation witnesses: "Have you heard?"

Front 99

What requirement must prosecution meet to question in such a way?

Back 99

It doesn't have to prove the specific act, but has to have a good faith basis to believe that the specific act took place.

Front 100

In what additional way may the prosecution rebut the D's good character evidence in NY?

Back 100

By proving that the D has been convicted of a crime that reflects adversely on the character trait in issue.

Front 101

What if prosecution asks a "have you heard" question regardind D's prior bad act and witness answers no?

Back 101

Prosecution is stuck with the answer - can't prove that it actually happened.

Front 102

May the prosecution introduce a certified conviction of D to rebut good character evidence presented by D in his case?

Back 102

Federal: No, b/c a conviction is a specific act and under the federal rules, the prosecution is not allowed to rebut the D's character evidence with proof of specific acts;
In NY, yes - b/c in NY, the prosecution is allowed to rebut the D's character evidence with proof of a criminal conviction that is related to the character trait at issue.

Front 103

What is the rule with respect to the victim's character in a self-defense case?

Back 103

A criminal defendant may offer evidence of the victim's violent character to prove that the victim was the first aggressor.

Front 104

What form may such evidence take?

Back 104

Reputation or opinion only.

Front 105

How may the prosecution rebut such evidence ?

Back 105

By evidence of:
1) The V's good character for peacefulness; or
2) The D's bad character for peacefulness.

Front 106

What is NY rule with respect to V's character in a self-defense case?

Back 106

In NY, evidence of the V's character is INADMISSIBLE to prove that the victim was the first aggressor.

Front 107

What is the special rule for D's knowledge of V's character for violence?

Back 107

The D may offer evidence of his own knowledge of the V's bad character for violence for the purpose of showing that he reasonably believed in the need to use self-defense.

Front 108

What form may such evidence take?

Back 108

Becuase this is not propensity evidence, ANY form is allowed (reputation, opinion, specific acts).

Front 109

Does NY follow this special rule?

Back 109

Yes. Although NY does not allow D to introduce evidence of the V's violent character to prove that V started the fight, a D CAN introduce evidence of his knowledge of V's characer for violence (b/c that is not a propensity use).

Front 110

What is the "Rape Shield" Rule?

Back 110

In a case involving alleged sexual misconduct (civil or criminal), the D ordinarily may not introduce evidence of:
1) The V's reputation for promiscuity; or
2) The V's prior sexual conduct.

Front 111

What are the exceptions to the rape shield rule?

Back 111

Notwithstanding the general rule, a D may introduce:
1) Evidence of V's other sexual activity with D, but ONLY if the defense is consent;
2) Evidence of V's sexual aactivity with others, but ONLY to prove that someone other than the D was the source of physical evidence;
3) Evidence required to be admitted by the D's due process rights.

Front 112

What is the rule with respect to character evidence in civil cases?

Back 112

Character evidence is generally inadmissible to prove propensity in civil cases.

Front 113

Can the D in a civil case offer evidence of her own good character for a relevant trait?

Back 113

No. Only in criminal cases do we allow this; not in civil.

Front 114

When IS evidence of a person's character admissible in a civil action?

Back 114

Evidence of a person's character is admissible in a civil action where such character is an essential element of a claim or defense. Only two situations:
1) Negligent hiring (sometimes called negligent entrustment);
2) Defamation

Front 115

Where offering character evidence in a civil case that meets one of the exceptions, what form must such evidence take?

Back 115

Any form is OK - reputation, opinion, specifc acts.

Front 116

When may D's other crimes be admissible for non-character purposes?

Back 116

The MIMIC Rule: D's other crimes or bad acts may be admissible if offered to show something specific about the charged crime. Most common non-character purposes:
1) M - Motive;
2) I - Intent;
3) M - Mistake or accident (absense of mistake or accident);
4) I - Identity;
5) C - Common scheme or plan

Front 117

When may the prosecution admit such evidence?

Back 117

If a MIMIC category is satisfied, the prosecutioni may use other crimes evidence as part of its case-in-chief; MIMIC evidence is not dependent on D's introduction of favorable charaacter evidence.

Front 118

How does the identity prog usually come up?

Back 118

1) Where D offers an alibi - i wasn't in town so i couldn't have done it, evidence that D committed other crimes in the vicinity around the same time can be admitted to show identity - where the D was at the time in question. OR
2) Where D uses a specific and unusual MO that tends to identify him as the perpetrator.

Front 119

By what method may the proseuction prove MIMIC-purpose crimes?

Back 119

1) By conviction;
or
2) By evidence that proves the crime occurred.

Front 120

What is the burden of proof with respect to MIMIC-purpose crimes?

Back 120

1) Federal: The "sufficiency" standard: The prosecution must produce SUFFICIENT evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence;
2) NY - General Rule is the same as the Federal, EXCEPT for "Identity" evidence - The prosecution must produce CLEAR AND CONCINVING evidence that D committed the prior act here.

Front 121

What are the other requirements for MIMIC evidence?

Back 121

1) Court must weigh probative value vs. prejudice;
2) Court must give jury a limiting instruction with regard to the purpose of the MIMIC evidence;
3) Upon D's request, P must give pretrial notice of intent to introduce MIIMC evidence.

Front 122

What is the rule with respect to MIMIC evidence in civil cases?

Back 122

Although MIMIC evidence most often appears in criminal cases it may also be used, if relevant, in civil cases, such as tort actions for fraud or assault.

Front 123

What is the rule with respect to other sexual misconduct introduced to show propensity for sexual assaults?

Back 123

1) Federal: In any case alleging sexual assault or child molestation, the proseution may offer evidence of the D's prior sexual assaults for the purpose of proving teh D's propensity to commit sexual assaults;
2) NY - Rapists and child molesters are treated just like every other D - the P may not introduce evidence of prior bad acts to prove propensity

Front 124

What is the rule with respect to similar occurrences?

Back 124

The general rule is that to be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, the evidence si inadmissible. BUT, in some limited and specific 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.
Six situations:
1) P's accident history;
2) Similar accidents caused by same event or condition;
3) Intent in issue;
4) Comparable sales on issue of value;
5) Habit;
6) Industrial custom as standard of care

Front 125

What are the rules with respect to P's accident history?

Back 125

Generally, a P's history of accidents or law suits is inadmissible;
BUT, P's prior accidents may be admissible to show:
1) A fraudulent scheme or plan; or
2) Causation (typically of injuries)

Front 126

What is the rule with respect to similar accidents caused by same event or condition?

Back 126

Other similar accidents are generally not admissible, BUT other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for 3 potential purposes:
1) Existence of a dangerous condition;
2) Causation;
3) Prior notice to the D

Front 127

What is the rule for admitting experiments and tests?

Back 127

The same - there must be substantial similarity b/t the experiment and the disputed fact.

Front 128

What is the rule with respect to intent in issue?

Back 128

Prior similar occurrences may be relevant to draw an inference of intent from a person's prior conduct (similar to MIMIC)

Front 129

What is an example of where prior similar occurrences would be admissible to show intent?

Back 129

Where P claims racial employment discrimination, showing that D has hired no minority job applicants, despite their qualifications during past six years is admissible to show discriminatory intent.

Front 130

What is the rule with respect to comparable sales on issues of value?

Back 130

The selling price of other property of a similar type, in the same general location, and close in time to the period at issue, is admissible as evidence of value of the property at issue.

Front 131

What are the rules with respect to habit evidence?

Back 131

1) Charactr evidence that relates to a person's GENERAL disposition or proopensity is usually not admissible to prove conduct on a partiuclar occasion.
BUT, there is a 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.

Front 132

What is the definition of habit?

Back 132

Habit is a repetitive response to a particular set of circumstances. Thus, habit has two distinguishing characteristics:
1) Frequency and
2) Particularity

Front 133

What words should you look for to indicate habit?

Back 133

Always, invariably, automatically, instinctively.

Front 134

What is the business routine rule?

Back 134

The regular practice of an organization is admissible to prove conduct on a particular occasion.

Front 135

What is the NY rule on habit evidence?

Back 135

1) Evidence relating to a business, trade, or profession is admissible, same as under Federal Rules;
2) Evidence relating to personal habit on issue of due care in negligence is NOT admissible, BUT;
3) Evidence relating to personal habit in the use of a product IS admissible

Front 136

What is the rule with respect to industrial custom as standard of care?

Back 136

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation shouls have acted, i.e., as evidenc of the appropriate standard of care.

Front 137

What issues (besides relevance) should you look out for whenever a writing appears on the exam?

Back 137

1) Authentication;
2) Best Evidence Rule; and
3) Hearsay

Front 138

What is the authentication rule?

Back 138

If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be.

Front 139

What is the process of authentication called?

Back 139

Laying a foundation.

Front 140

What are the ways to authenticate a document?

Back 140

1) Testimony by a witness with personal knowledge;
2) Proof of the author's handwriting by:
a) Lay opinion;
b) Expert opinion and
comparison;
c) Jury comparison;
3) Ancient Document Rule;
4) Solicited Reply Doctrine

Front 141

What is the rule for proof of author's handwriting by law opinion?

Back 141

The witness must have familiarity wiht X's handwriting as a result of experience in the normal course of affairs - not as a result of preparation for the litigation.

Front 142

What is the rule for proof of author's handwriting by expert opinion and comparison?

Back 142

The expert must be qualified and must compare document to a genuine sample or exemplar X's handwriting.

Front 143

What is the rule for proof of author's handwriting by jury comparison?

Back 143

The trier of fact compares document to a genuine sample or exemplar X's handwriting.

Front 144

What is the ancient document rule?

Back 144

Authenticity may be inferred IF document is:
1) at least 20 years old (OR, in NY, at least 30 years old);
2) facially free of suspicion; and
3) found where it would be expected.

Front 145

What is the solicited reply doctrine?

Back 145

Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Front 146

What is the burden of proof with respect to authentication?

Back 146

The "sufficiency" standard. Authentication is a matter of "conditional relevance" which means that the party offering the evidence must produce SUFFICIENT evidene for a reasonable juror to conclude that the document is genuine.
*Similar to the standard of proof of prior bad acts (MIMIC)

Front 147

What types of documents are self-authenticating (i.e. presumed authentic) and don't require foundation testimony?

Back 147

1) Official publications;
2) Certified copies of public or private documents on file in public office;
3) Newspapers or periodicals;
4) Trade inscriptions and labels;
5) Acknowledged document;
6) Commercial paper;
7) Certified busienss records, offered into evidence under the business records hearsay exception - must be certified:
a) by someone within
the business
b) who knows how the
records are
regularly made
c) and that they were
made in the regular
way
d) at or about the time
of the event
recorded

Front 148

What authentication is required for photos where they are offered as demonstrative evidence?

Back 148

If the purpose of the photograph is to illustrate a witness's testimony, it can be authenticated by the witness testifying, based on personal knowledge that hte photo is a FAIR AND ACCURATE REPRESENTATION of the people or objects portrayed.

Front 149

What authentication is required for photos where they are offered as a "silent witness"?

Back 149

If the photo is itself the evidence (e.g, photos from surveillance cameras, ATMs, etc.), a party offering such photo must show:
1) That the camera was properly installed and working;
2) That the film was properly removed and developed; and
3) That the film has not been tampered with.

Front 150

What is the most effective way to show an absence of tampering?

Back 150

By establishing a chain of custody (meaning that everyone who possessed the film b/t the time it was taken out of the camera to court, must testify).

Front 151

What is the best evidence rule?

Back 151

Better understood as the original writings rule, it states:
1) If a party seeks to prove the contents of a writing, the party must either:
a) produce the writing;
or
b) provide an
acceptable excuse
for its absence;
2) If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove the contents.

Front 152

What is a writing?

Back 152

A writing includes documetns, recordings, films, and X-rays.

Front 153

What questions should you ask in a best evidence fact pattern?

Back 153

1) When does the best evidence rule apply?
2) What is an original?
3) What is a good excuse?

Front 154

When does the best evidence rule apply?

Back 154

Only when the party seeks to prove the contents of a writing, which arises in two principal situations:
1) The writing is a legally operative document (i.e., the writing itself creates rights and obligations); or
2) The witness is testifying to facts that she learned solely from reading about them in a writing.

Front 155

What are examples of legally operative documents?

Back 155

Deeds, mortgage, divorce decrees, written contracts.

Front 156

When does the BER NOT apply?

Back 156

When a witness with personal knowledge testifies to a fact that exists independently of a non-legally operative writing which records the fact.

Front 157

What qualifies as the original writing?

Back 157

The original includes the writing itself, any counterpart intended to have the same effect, any negative of film or print from the negative, computer print-out.

Front 158

What is a duplicate?

Back 158

A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy, computer print-outs).

Front 159

What is the rule for duplicates?

Back 159

A duplicate is admissible to the same extent as an original, UNLESS:
1) There is a genuine question about the authenticity of the duplicate; or
2) It would be unfair to admit the duplicate (e.g., if the duplicate had different color ink and that was important, or if there were post-its on the original that can't be seen in teh duplicate).

Front 160

What is the NY rule for duplicates?

Back 160

Photocopies and other duplicates are acceptable substitutes for the original ONLY if the duplicates were made in the regular course of business. This means, in NY, a duplicate is NOT admissible if it was made for the purpose of litigation (e.g. for discovery purposes).

Front 161

So, what is NOT considered an original?

Back 161

Handwritten copies.

Front 162

When will non-production of the original be excused?

Back 162

A party need not produce the original (or an acceptable duplicate) if the original:
1) Is LOST or cannot be found with DUE DILLIGENCE; or
2) Has been DESTROYED without bad faith; or
3) Cannot be obtained with LEGAL PROCESS.

Front 163

What is the burden of proof with respect ot excuse?

Back 163

If the court is persuaed by a preponderance of the evidence that the excuse has been established, then secondary evidence is admissible (e.g., oral testimony or a handwritten copy).

Front 164

What escapes the requirements of the best evidence rule?

Back 164

1) VOLUMINOUS RECORDS can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection;
2) Certified copies of PUBLIC RECORDS;
3) COLLATERAL DOCUMENTS if the court, in its discretion, determines that the document is unimportant to the issues in the case.

Front 165

What is required for a witness to be considered competent to testify?

Back 165

1) The witness must have personal knowledge; and
2) The witness must take an oath.

Front 166

What does it mean to take an oath?

Back 166

Means:
1) Demonstrate an understanding of the obligation to tell the truth; and
2) Promise to tell the truth

Front 167

What is the NY rule for testimony by children?

Back 167

The general rule is that a child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth.
1) In civil cases, all witnesses, including children, must take an oath;
2) A child under the age of 9 who cannot understand the oath may still testify (in other words, the child may give unsworn testimony). BUT a D cannot be convicted based solely on unsworn testimony - there must be some corroboration.

Front 168

What is the federal rule with respect to dead mans' statutes?

Back 168

Tehre is no Dead Man's Statute under the Federal Rules - a witness is not incompetent simply b/c she may have an interest in the outcome of the litigation.

Front 169

In states that have dead man's statutes, what do they provide?

Back 169

1) In a civil action;
2) An interested party
3) May NOT testify
4) Against a deceased party or the deceased party's representatives;
5) About communications or transactions with the deceased party.

Front 170

What does "interested" mean?

Back 170

A person is interested ONLY if the outcome of the case will have a legally binding effect on the person's rights or obligations.

Front 171

How may waiver occur?

Back 171

The dead person's rights may be waived IF:
1) The decedent's representative does not object;
2) The decedent's representative testifies about the transaction;
3) Or, the decedent's testimony is introduced (typically by introducing the decedent's deposition).

Front 172

What is the rule under NY's dead man statute?

Back 172

NY's Dead Man's Statute is similar to the rule in most other states, with one important exception:
In an accident case based on negligence, the surviving party:
1) May testify about the facts of the accident;
2) BUT may NOT testify about conversations with decedent.

Front 173

What is a leading question?

Back 173

A question is leading when the form of the question suggests the answer (e.g., "Isn't it a fact that..." or unevenly balanced alternatives)

Front 174

What is the rule with respect to leading questions?

Back 174

1) Leading questions are generally NOT allowed on direct examination of a witness;
2) Leading questions generally ARE allowed on cross-examination of a witness.

Front 175

What are the exceptions to the leading question rule?

Back 175

Leading questions may be allowed on direct examination in four situations:
1) Preliminary introductory matters;
2) A youthful or forgetful witness;
3) A hostile witness;
4) The adverse party or someone under the control of the adverse party.

Front 176

What is the rule with respect to present recollection refreshed?

Back 176

1) Witness may not read from a prepared memorandum; must testify on the basis of current recollection;
2) BUT, if a witness forgets something he once knew, he may be shown a writing (or anything else) to job his memory.

Front 177

What are acceptable refreshers?

Back 177

Anything. On the bar, it's most likely to be a writing of some sort, but it can be anything.

Front 178

What safeguards agaisnt abuse exist in hte use of items to refresh present recollection?

Back 178

If an item is used to refresh a witness's memory, the oopposing party has a right to:
1) Inspect it;
2) Use it on cross-examination;
3) Introduce it into evidence (show it to the jury)

Front 179

What is the rule with respect to past recollection recorded?

Back 179

A writing may be read to the jury as a "past recollection recorded" IF:
1) The witness once had personal knowledge;
2) The witness now forgets, and showing the writing to the witness fails to job the witness's memory;
3) The writing was EITHER made by the witness OR adopted by the witness;
4) The writing was made when the event was fresh in the witness's memory; and
5) The witness can attest that, when made, the writing was accurate.

Front 180

What is the method of introducing a writing as past recollection recorded?

Back 180

If the foundation for a recorded recollection is satisfied, then:
1) The witness may READ the document to the jury;
2) But hte witness may NOT show the document to the jury;
3) BUT the opposing party MAY show the document to the jury (by introducing it as an exhibit).

Front 181

How is the rule different in NY?

Back 181

In NY, the party using the recorded recollection may also introduce the record as an exhibit (i.e., show it to the jury).

Front 182

When is lay opinion testimony admissible?

Back 182

Lay opinion testimony is admissible if it is:
1) Rationally based on the witness's perception (personal knowledge); and
2) Helpful to the jury.

Front 183

What types of things may a lay witness testify about?

Back 183

1) Sobriety (or drunkenness);
2) Emotions;
3) Speed;
4) Handwriting;
5) Smells

Front 184

When may wtinesses testify as to an opinion as an expert?

Back 184

Witness may testify to an opinion as an expert only if:
1) The witness is qualified (by education and/or experience0;
2) The testimony is about a a subject matter where scientific, technical, or specialized knowlege will be helpful to the jury;
3) The opinion has a proper basis; and
4) The opinion is reliable.

Front 185

What is requred for a proper basis of opinion to exist?

Back 185

1) The opinion must be based upon a "reasonable degree of probability or reasonable certainty;" and
2) The opinion must be based on one of the following three data sources:
a) The expert's personal
knowledge (e.g., a
treating physician);
b) Evidence that is
already in the trial
record (made known
to the expert through
a hypothetical
question); or
c) Facts ouside the
record (but ONLY IF
those facts are of
a type reasonably
relied on by
experts in the
particular field)

Front 186

If an expert relies on facts outside the record, may he discuss them while testifying?

Back 186

If an expert relies on facts outside the record, the expert may generally discuss the bases of the opinion, but may NOT disclose the inadmissible facts to the jury. The opponent, however, MAY disclose the underlying bases on cross-examination.

Front 187

What is necessary to meet the reliability requirement?

Back 187

To be admissible, experrt opinion must be sufficiently reliable. That means:
1) The expert has used reliable methods; and
2) The expert has reliably applied those methods to hte particular facts of the case.

Front 188

What is the reliability standard for scientific evidence under the Federal Rules?

Back 188

The Daubert standard: The court examines reliability by asking such questions as:
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?

Front 189

What is the reliability standard for scientific evidence in NY?

Back 189

The Frye standard: NY asks only whether the methodology has been generally accepted by the relevant professional community.

Front 190

What is the rule with respect to testimony on ultimate issues?

Back 190

Opinion testimony (lay or expert) generally is permissible even if it addresses an ultimate issue in the case.

Front 191

On what basis, then, are legal conclusions likely to be inadmissible?

Back 191

Not on the basis that they are testimony as to an ultimate issue, but rather on the basis that the witness's opinion is "not helpful to the jury".

Front 192

What is the exception to the general rule permitting witness's opinion testimony?

Back 192

In a criminal case, an expert witness may NOT testify that the D did or did not have the requried mental state. *This is the only place where ultimate issue will be the appropriate choice. It comes up in insanity cases. D's experts can give diagnoses, explain symptoms, and how they'll affect D's cognitive process, but can't give ultimate conclusion that D was insane.

Front 193

What is the rule with respect to use of learned treatises in aid of expert testimony?

Back 193

This is a hearsay exception. If a party can establish that a treatise is reliable authority,
1) Then the treatise may be used on direct or cross-examination of an expert;
2) And the treatise may be READ to the jury as SUBSTANTIVE EVIDENCE;
3) BUT thhe treatise may not itself be introduced as an exhibit (may not be shown to the jury).

Front 194

How can you establishe authoritativeness?

Back 194

Three ways:
1) Your own expert testifies that the treatise is authoritative;
2) Your opponent's expert admits that the treatise is authoritative; or
3) The judge takes "judicial notice" that the treatise is authoritative.

Front 195

What is the NY rule with respect to use of treatises?

Back 195

1) On direct examination, a treatise may only be used for the purpose of showing the basis of the expert's testimony, NOT as SUBSTANTIVE EVIDENCE;
2) On cross-examination, a) treatise may ONLY be used to impeach the opponent's expert's credibility, NOT as substantive evidence; and b) may ONLY be used if the opponent's expert either relied on the treatise in developingg her own opinion or acknowledged that it is a reliable authority.

Front 196

When may cross examination take place and what subject matters may it cover?

Back 196

1) Cross-examination is a right. If a witness testifies but then cannot be cross-examined, the witness's direct testimony will be struck;
2) Proper subject matter of cross-examination includes: a) matters within the scope of direct examination; and b) matters that affect the witness's credibility.

Front 197

What is credibility?

Back 197

Whether a witness is believable. It rests on three things. The witness's:
1) Perception;
2) Memory;
3) Honesty

Front 198

What is impeachment?

Back 198

The process of trying to demonstrate that a witness is not credible.

Front 199

What is rehabilitation?

Back 199

The process of trying to repair a witness's credibility after the witness has been impeached.

Front 200

May a party impeach his own witness?

Back 200

1) Under the Fedeal Rules, yes, any party may impeach any witness.
2) Under the NY Rule (also known as the "Voucher rule"), by calling a witness, a party vouches for that witness's credibiltiy. So, ordinarily, the party who calls a witness may not impeach that witness.

Front 201

What are the exceptions to the NY Voucher rule?

Back 201

A party MAY impeach its own witness with a prior inconsistent statement that was:
1) Made in writing and was signed by the witness; or
2) Made in oral testimony and was UNDER OATH.
BUT, in a criminal case, this exception may be used ONLY if the witness's current testimony is "affirmatively damaging" to the party who called the witness, not merely a "cloud on credibility."

Front 202

What are the methods of impeachment?

Back 202

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

Front 203

What is intrinsic impeachment?

Back 203

Cross-examination of the witness you are trying to impeach.

Front 204

What is extrinsic impeachment?

Back 204

Impeaching a witness by introducing documentary evidence or by calling OTHER witnesses.

Front 205

What are the recurring procedural issues with respect to impeachment?

Back 205

1) Can the impeaching fact be proven by extrinsic evidence or is the party bound by the witness's answers to impeaching questions?
2) If extrinsic evidence is permissible, must the witness first be confronted with impeaching fact before it can be introduced as extrinsic evidence?

Front 206

What is a prior inconsistent statement?

Back 206

A prior inconsistent statement is simply a prior statement (orally or in writing) that is materailly inconsistent with the witness's trial testimony.

Front 207

What is the rule with respect to prior inconsistent statements?

Back 207

A prior inconsistent statement may be used to impeach a witness.

Front 208

For what purpose is a prior inconsistent statement admissible?

Back 208

Ordinarily, a prior inconsistent statement is admissible ONLY to impeach (i.e., not as substantive evidence that the prior statement is true).

Front 209

When is a prior inconsistet statement admissible as substantive evidence?

Back 209

A prior inconsistent statement may be admitted BOTH to impeach AND as substantive evidence (i.e., to prove the truth of the prior statement), IF the statement was made:
1) Orally under oath; and
2) As part of a formal hearing, proceeding, trial or deposition.

Front 210

What is the rule of prior inconsistent statements in NY

Back 210

Prior inconsistent statements, even if given in formal testimony under oath, are admissible ONLY to impeach.

Front 211

Are statements to the police ever considered part of a formal proceeding?

Back 211

No, never.

Front 212

What is the procedural rule with respect to a witness being impeached with a prior inconsistent statement?

Back 212

A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement.

Front 213

When must the opportunity be given?

Back 213

1) In NY - The witness must be given a chance to explain the statement while still on the stand (i.e., the statement must be proven through intrinsic cross-examination BEFORE it can be proven extrinsically);
2) In Federal - timing is more flexible. The inconsistent statement may be proven by extrinsic evidence, so long as the witness is later given an opportunity to return to the stand and explain.

Front 214

What is the exception to the requirement that the witness be given a chance to explain or deny the prior inconsistent statemetn?

Back 214

If the witness is the opposing party, there is not need to givee the witness/party an opportunity to explain the prior inconsistent statement.

Front 215

What is bias, interest, or motive to misrepresent?

Back 215

Some relationship b/t the witness and a party - or some other interest in the litigation - that could cause the witenss to lie.

Front 216

What are examples of bias?

Back 216

The witness is:
1) A party;
2) A friend, relative, or EE of a party;
3) Someone paid by a party;
4) Someone with a grudge against a party;
5) Anyone who has something to gain by the case coming out one way or the other.

Front 217

How may bias be proven?

Back 217

Bias, because it is so important, may always be proven by extrinsic evidence.

Front 218

Must a witness be given an opportunity to explain?

Back 218

Generally, a witness need not be confronted with the alleged bias before it may be proven by extrinsic evidence.

Front 219

What are sensory deficiencies?

Back 219

Anything that could affect the witness's perception or memory.

Front 220

What are examples of sensory deficiencies?

Back 220

Bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the witness stand.

Front 221

What types of evidence may be used to show sensory deficiencies?

Back 221

1) Intrinsic confrontation is NOT required;
2) Extrinsic evidence is allowed.

Front 222

What is veracity?

Back 222

The character trait of being truthful. A witness's bad character for veracity is a frequent subject of impeachment and governed by very specific rules.

Front 223

What is the rule with respect to impeachment using veracity?

Back 223

A party may impeach a witness (the target witness) by calling another witness (the character witness) to testify to the target witenss's bad character for veracity.

Front 224

What form can such testimony take?

Back 224

Same as the rule for character evidecne:
1) Federal: Reputation or opinion;
2) NY: Reputation only
*Neither permit specific acts.

Front 225

What is the procedural rule here?

Back 225

Any witness who has testified may be impeached by this method and extrinsic evidence is allowed.

Front 226

What is the NY rule with respect to admissibility of criminal convictions for impeachment purposes?

Back 226

Any witness may b e impeached with a conviction for ANY CRIME.

Front 227

Why is this the rule in NY?

Back 227

A person who commits a crime has demonstrated his WILLINGNESS TO PUT HIS OWN INTERESTS AHEAD OF SOCIETY's (use this language on essay), and may do so again on the stand by ignorin the oath.

Front 228

What is the special rule in NY with respect to criminal defendants?

Back 228

When the witness is the criminal defendant, the court must balance the provative value of the conviction (on the issue of veracity) agaisnt the risk of unfair prejudice.

Front 229

How is that determination made?

Back 229

D has the right to a Sandoval hearing - a pretrial hearing at which the court will decide whether or not the D's prior convictions can be used againts him if he testifies.

Front 230

What is the federal rule with respect to criminal convictions?

Back 230

To be admissible, a conviction (or the release from prison, whichever is later) must be within TEN years of the trial.

Front 231

Assuming the time limitation is met, what types of convictions are admissible?

Back 231

1) Crimes of dishonesty or false statement are admissible;
2) Other crimes (crimes that do not involve dishonesty or false statement) - misdemeanors are not admissible; felonies are admissible IF the probative value of the conviction (on the issue of veracity) outweighs the risk of unfair prejudice to a party.

Front 232

What is the definition of a crime of dishonesty or false statement?

Back 232

A crime that, by defintion, involves a lie or a betrayal of trust.

Front 233

What are examples of such crimes?

Back 233

Perjury, false statement, fraud, embezzlement.

Front 234

What are NOT examples of such crimes?

Back 234

Crimes of violence, drug crimes, theft.

Front 235

For the balancing test, what factors make a conviction probative?

Back 235

1) Seriousnes (murder is more probative of veracity than possession of marijuana);
2) Relation to trust and deception (theft is more probative than reckless driving)

Front 236

What factors make a conviction unfairly prejudicial?

Back 236

1) Inflammatory nature (child molestation is more prejudicial than DWI);
2) Similarity to the currently charged offence (the prejudice is particularly high if the prior offenses and the charged offense are identical).

Front 237

How man convictions be proven?

Back 237

Conviction may be proven:
1) Intrinsically (by asking the witness about it on x-exam); or
2) Extrinsically (by introducing a record of hte conviction)

Front 238

Must the witness be given a chance to explain?

Back 238

No.

Front 239

Are convictions admissible to show propensity to commit crimes?

Back 239

No.

Front 240

Are convictions admissible to show propensity to commit sexual assault?

Back 240

Yes, in federal.
No, in NY.

Front 241

Are convictions admissible for MIMIC purposes?

Back 241

Yes.

Front 242

Are convictions admissible for impeaching a witness's character for veracity in federal court?

Back 242

If it's a crime of deceit, yes. If not, if it's a misdemeanor, no. If it's a felony maybe - subject to balancing.

Front 243

Are convictions admissible for impeaching a witness's character for veracity in NY?

Back 243

Generally, yes, unless witness is a criminal D, and then maybe - subject to balancing.

Front 244

Are convictions admissible to impeach a character witness's knowledge in federal court?

Back 244

You can use those prior convictions if they are the kinds of things that should affect the party's reputation or the W's opinoin of the reputation on the relevant character trait we're talking about - can question ONLY.

Front 245

Are convictions admissible to impeach a character witness's knowledge in NY?

Back 245

Allowed to not only question witness about relevant prior convictions of the D, but also prove them.

Front 246

What is the federal rule with respect to bad acts (without conviction) that reflect adversely on witness's character for truthfulness?

Back 246

A witness may be asked about prior bad acts if those acts relate to truthfulness (e.g., lying on a resume, lying to spouse).

Front 247

What is the NY rule with respect to bad acts (without conviction) that reflect adversely on witness's character for truthfulness?

Back 247

A witness may be asked about prior bad acts that show the witness's moral turpitude (includes criminal conduct that does not relate to truthfulness, e.g., murder, rape, drug use, and arson)

Front 248

What are the limitations on bad acts questioning?

Back 248

1) Basis: The cross-examiner must have a good faith basis to believe the bad act occurred;
2) Proof: The bad act may be proven by intrinsic (questioning) evidence ONLY (the cross-examiner is stuck with the witness's answer);
3) BUT NOTE: proof by extrinsic evidence may still be allowed if the bad act is relevant for some other purpose such as proof of bias.

Front 249

May a witness be asked whether he was arrested for some bad act?

Back 249

No. An arrest is not a conviction and it is also not a bad act. This is objectionable. You CANNOT ask a witness about an arrest to impeach the witness about their veracity, b/c an arrest is not something the witness DID; it is merely an accusation. What you can do, though, is ask about the act itself.

Front 250

May a witness be asked whether he was arrested for some bad act and is awaiting trial on those charges?

Back 250

Yes. Not as a prior bad act. BUT, this would be admissible to show bias - if a witness for the prosecution has pending charges, that gives the witness a strong incentive to curry favor with the prosecution.

Front 251

Is an arrest admissible to impeach a witness's character for veracity?

Back 251

No, but the bad act that the arrest was allegedly based on may be.

Front 252

Is an arrest admissible for impeaching a character witness's knowledge?

Back 252

Yes (questioning only), if the arrest is the sort of thing that should affect the witness's opinion/D's reputation.

Front 253

Is an arrest admissible to impeach a witness by showing bias?

Back 253

Yes.

Front 254

What is the rule with respect to contradiction?

Back 254

A witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct examination.

Front 255

How may impeachment be accomplished here?

Back 255

1) If hte contradiction goes to an issue that is signfiicant to the case, then it may be proven by extrinsic evidence;
2) If the contradiction goes to a matter that is collateral (insignificant to the issues in the case or to the witness's credibility), then proof is limited to intrinsic evidence (and the cross-examiner is stuck with the witness's answer).

Front 256

When may a witness be rehabilitated?

Back 256

Generally, a witness may be rehabilitated only after the witness's credibility has been attacked through impeachment.

Front 257

What is the bolstering?

Back 257

Introducing evidence to support a witness's credibility BEFORE the witness's credibility has been attacked - not allowed.

Front 258

What is the exception to the general rule with respect to bolstering?

Back 258

A witness's prior statement of identification is admissible, even if the Witness's credibility has not yet been attacked.

Front 259

What is the rationale for the exception?

Back 259

Because the prior identification is seen as more reliable than the in-court identification, the prior identification is admissible as substantive evidence.

Front 260

What is the rule with respect to bolstering in NY?

Back 260

NY follows the same rule, but restricts prior identification testimony to criminal cases. In other words, in criminal cases, the NY rule is the same as the federal rule regarding prior identifications made by a trial witness (e.g., lineups) and are admissible to rehabilitate the witness AND as substantive evidence. NY does NOT, however, recognize this hearsay exception in civil cases.

Front 261

Who must the statement of identification be made by?

Back 261

Must be made by a trial witness who is subject to cross-examination.

Front 262

What methods can be used for rehabilitation?

Back 262

1) Good character for truthfulness;
2) Prior consistent statement

Front 263

What is the rule with respect to good character for truthfulness?

Back 263

IF a witness's character for truthfulness has been attakced, then the opposing party may introduce corresponding evidence of the witness's good character for truthfulness.

Front 264

What form may the rehabilitation evidence take?

Back 264

Same as the rule for impeachment:
1) Federal: reputation or opinion;
2) NY: Reputation only
Specific acts not allowed under either rule.

Front 265

What is the rule with respect to prior consistent statements?

Back 265

A prior statement may be used to rehabilitate if:
1) The prior statement is consistent with the witness's trial testimony;
2) The opposing party has suggested through impeachment that the witness has a motive to lie (usually bias); and
3) The prior statement was made before the motive to lie arose.

Front 266

For what purpose is a prior consistent statement admissible in federal court?

Back 266

A prior consistent statement that fits within the rule is admissible to rehabilitate AND as substantive evidence that the prior statement was true.

Front 267

For what purpose is a prior consistent statement admissible in NY?

Back 267

A prior consistent statement is admissible ONLY to rehabilitate in NY.

Front 268

What is the rule with respect to diversity cases and federal law?

Back 268

1) In federal court, apply the federal rules of evidence, unless it's a diversity case.
2) In a federal diversity case, still apply the federal rules of evidence, but apply state law with respect to:
1) Burdens of proof and presumptions;
2) Dead Man's Statutes; and
3) Privileges

Front 269

What privileges are recognized under federal law?

Back 269

Federal courts use the common law of privileges and recognize:
1) Attorney-client;
2) Spousal;
3) Clergy; and
4) Psychotherapist-patient
*Does NOT recognize doctor-patient

Front 270

What privileges does NY recognize?

Back 270

1) Attorney-client;
2) Spousal;
3) Clergy;
4) Psychotherapist-patient;
5) Doctor-patient;
6) Social worker-client (including rape crisis counselors); and
7) Reporter-source

Front 271

What is the rule with respect to attorney-client privilege?

Back 271

Confidential communication b/t an attorney and client (or their representatives) made during professional legal consultation will be privileged unless the privilege is waived by the client or an exception applies.

Front 272

Who is an attorney?

Back 272

A member of the bar or person that client reasonably believes is a member of the bar and includes representatives of the attorney - any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to "translate" client's financial matters)

Front 273

Who is a client?

Back 273

Includes a person seeking to become a client (e.g., privilege attaches at outset of formal consultation with attorney even if client does not retain attorney, and includes representative of client - any agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any EE who communicates with corporation's attorney to enable attorney to provde legal services to the corporation).

Front 274

What are communications?

Back 274

Privilege applies only to communications themselves; not to underlying information, pre-existing documents, or physical evidence.

Front 275

What does the confidential element require?

Back 275

Client must intend confidentiality (e.g., no privilege if client knows that third party is listening in, or if client asks attorney to disclose the communication to a third party).

Front 276

What is the joint client rule?

Back 276

If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But, if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.

Front 277

What is professional legal consultation?

Back 277

The primary purpose of the communication must be to obtain or render legal advice, not business or social advice.

Front 278

Who can waive the privilege?

Back 278

Only the client.

Front 279

How can the client waive the privilege?

Back 279

By disclosure of the communication to a third party.

Front 280

How long does the privilege persist?

Back 280

Continues after the attorney-client relationship ends. After death of client, client's estate holds the privilege and may waive it.

Front 281

What are the exceptions to the attorney-client privilege?

Back 281

1) Future crime or fraud;
2) When the client puts the legal advice in issue (e.g., in a tax fraud prosecution, D defends on ground that she relied on advice of her attorney in reporting income);
3) An attorney-client dispute (e.g. malpractice or unpaid fees)

Front 282

What is the rule with respect to physician-patient privilege?

Back 282

Confidential communication or information acquired by phsician from patient for the purpose of diagnosis or treatment of a medical condition is privileged.

Front 283

To whom does the privilege apply?

Back 283

Typically includes thereapists, nurses, and physician's assistants and in NY, also includes dentists, podiatrists, and chiropractors. BUT, federal rule only covers psychotherapists, and not other physicians.

Front 284

How can a patient lose the privilege?

Back 284

The privilege will be waived if the patient expressly or impliedly puts physical or mental condition in issue (e.g., P in a personal injury case, or D asserting an insanity defense)

Front 285

What is the rule with respect to the spousal communication privilege?

Back 285

Confidential communications b/t spouses will be privileged.

Front 286

Who may waive the spousal privilege?

Back 286

May be waived only by BOTH spouses

Front 287

What is the federal spousal immunity (spousal testimony privilege) rule?

Back 287

In a criminal case, the prosecution cannot compelt the D's spouse to testify against D. This rule does NOT protect communications; it protects testimony.

Front 288

What is the NY spousal immunity (spousal testimony privilege rule)?

Back 288

In NY, this privilege is not recognized.

Front 289

When must the witness and D be married in order for the federal spousal immunity to apply?

Back 289

At the time of the trial.

Front 290

When must the witness and D be married in order for the spousal communications privilege to apply?

Back 290

At the time of the communication.

Front 291

How can spousal immunity be waived

Back 291

It may be waived by the witness spouse. D does not have the power to prevent his spouse from testifying against him; he does have the power to prevent her from revealing confidential communications protected under the spousal communication privilege.

Front 292

What are the exceptions and to which privilege do they apply?

Back 292

Communications or acts:
1) In furtherance of future crime or fraud (e.g. joint criminal activity); and
2) Destructive of the family unit (e.g. spousal or child abuse)
are not covered by EITHER privilege.

Front 293

What type of case does the spousal communications privilege apply in?

Back 293

Any

Front 294

What type of case does the spousal testimony privilege apply in?

Back 294

Criminal cases ONLY.

Front 295

What does the spousal communications privilege protect?

Back 295

Confidential communications.

Front 296

What does the spousal testimony privilege protect?

Back 296

Testimony.

Front 297

When must the witness and D be married in order for the spousal communications privilege to apply?

Back 297

At the time of the communication.

Front 298

When must the witness and D be married in order for the spousal testimony privilege to apply?

Back 298

At the time of the testimony.

Front 299

Who may waive the spousal communications privilege?

Back 299

Both spouses together ONLY.

Front 300

Who may waive the spousal testimony privilege?

Back 300

Witness spouse on his or her own.

Front 301

What is hearsay?

Back 301

Hearsay i:
1) An out of court statement (oral or written)
2) by a person (called a declarant)
3) offered to prove the truth of the matter asserted.

Front 302

What is the hearsay rule?

Back 302

Absent an exception or exclusion, hearsay is inadmissible.

Front 303

How can you tell if a statement is hearsay or not?

Back 303

Whether a statement is or is not hearsay will depend on the purpose for which it is offered. Some out of court statements may look like hearsay at first glance, but are not if they are not offered to prove the truth of the matter asserted in the statement.

Front 304

What question should you ask to determine if a statement is hearsay or not?

Back 304

Do we care whether or not the declarant is telling the truth? If no, then the statement is not hearsay.

Front 305

What are the principal categories of non-hearsay purposes?

Back 305

1) Impeachment;
2) Verbal Acts;
3) To show effect on person who heard or read the statement;
4) Circumstantial evidence of speaker's state of mind

Front 306

What is the impeachment purpose?

Back 306

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 the prior statement. BUT, if the purpose of the prior statement is to prove the truth of the assertion, then it will be hearsay.

Front 307

What is a verbal act?

Back 307

Legally operative words, such as "I accept" in contract case.

Front 308

What is the rule of verbal acts?

Back 308

If certain words have independent legal significance, in other words, if the law attaches rights and obligations to certain words simply b/c they are said - then they will not be hearsay.

Front 309

What are examples of verbal acts?

Back 309

1) Words of offer, repudiation, or cancellation of K;
2) Words that have the effect of making a gift or bribe;
3) Words that are themselves an act of perjury or a criminal misrepresentation or a defamation.

Front 310

What is the rule with respect to showing the effect on a person who heard or read the statement?

Back 310

A statement that is relevant simply b/c someone heard or read it is not hearsay.

Front 311

What are some examples?

Back 311

Hearing something can put someone on notice or can give someone a motive or can make someone's belief reasonable.

Front 312

What is the rule for circumstantial evidence of speaker's state of mind?

Back 312

A statement that unintentionally reveals something about the speaker's state of mind is not hearsay.

Front 313

What are examples?

Back 313

Statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate a lack of knowledge.

Front 314

Why are prior inconsistent statements offerred for impeachment, verbal acts, statements offered to show effect on person who heard or read the statement, and statements offered as circumstantial evidence of speaker's state of mind admissible?

Back 314

Because they are NOT hearsay (not because they fall into a hearsay exception).

Front 315

What is the rule with respect to prior statements of trial witnesses?

Back 315

A witness's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies.

Front 316

What prior statements of witnesses are "Excluded" from the definition of hearsay?

Back 316

1) Prior statements of identification;
2) Prior inconsistent statement, if: a) made under oath, b) during a formal proceeding;
3) Prior consistent statement, if: a) used to rebut an accusation of a motive to lie and b) made before the motive to lie arose

Front 317

What is hte rule in NY with respect to prior statements of identification?

Back 317

In NY, in criminal cases, if a witness testifies, that witness's prior statement of identification is admissible to rehabilitate, but not as substantive evidence.

Front 318

What is the rule in NY with respect to prior inconsistent statements?

Back 318

In NY, prior inconsistent statements are admissible ONLY to impeach and NOT as substantive evidence.

Front 319

What is the rule in NY with respect to prior consistent statements?

Back 319

In NY, prior consistent statements are admissible ONLY to rehabilitate; not as substantive evidence of the truth.

Front 320

What are the most important hearsay exceptions?

Back 320

1) Party admission;
2) Former testimony;
3) Forfeiture by wrongdoing;
4) Statement against interest;
5) Dying declaration;
6) Excited utterance;
7) Present sense impression;
8) Statement of then-existing mental, emotional, or physical condition;
9) Statement for purpose of medical treatment or diagnosis;
10) Business and public records

Front 321

What is the party admissions exception rule?

Back 321

Any statement made by a party is admissible if it is offered against the party (i.e., offered by the other side).

Front 322

Is the party admissions rule an exclusion from the definition of hearsay or an exception to the hearsay rule?

Back 322

Under the FRE, party admissions are exclusions.
In NY, they are an exception.

Front 323

Does the statement have to be against the interests of the party when he said it?

Back 323

No. That doesn't matter. Can think of this as any statement of a party-opponent. Don't call it an "admission against interest."

Front 324

What is the vicarious admissions rule?

Back 324

A statement:
1) by an agent or EE of a party;
2) is admisible against the party;
3) if it concerns a matter within the scope of the agency or employment;
4)) and was made during the agency or employment.

Front 325

What is the NY vicarious admissions rule?

Back 325

In NY, a statement by an EE or agent is admissible against the principle ONLY if the agent or EE had SPEAKING AUTHORITY, meaning the specific authority to speak on behalf of the principle or ER (E.g., CEO, general counsel, VP for communications)

Front 326

What is the rule of vicarious admissions by co-conspirators?

Back 326

A statement of one co-conspirator is admissible against other co-conspirators if the statement was made DURING and IN FURTHERANCE of the conspiracy.

Front 327

Can statements made by a co-conspirator after arrest be admitted against another co-conspirator?

Back 327

No. The conspiracy is over at that point, and a statement to a known law enforcement officer is not in furtherance of the conspiracy.

Front 328

What hearsay exceptions have a threshold requirement of unavailabiltiy?

Back 328

1) Former testimony;
2) Forfeiture by wrongdoing;
3) Dying declarations; and
4) Declarations against interest

Front 329

What are the potential grounds of unavailability?

Back 329

PAILS
1)Privilege;
2) Absence from the jurisdiction;
3) Illness or death;
4) Lack of memory;
5) Stubborn refusal to testify

Front 330

What are the potential grounds of unavailabilty in NY?

Back 330

In all cases, acceptable grounds are:
1) Privilege;
2) Absence from the jurisdiction; and
3) Illness or death
(NOT lack of memory or stubborn refusal to testify)
Additional potential grounds in civil cases are:
1) Declarant is located 100 miles or more from the courthouse; or
2) Declarant is a physician

Front 331

What are the elements of the former testimony exception?

Back 331

1) The declarant is unavailable;
2) The prior statement was given in a proceeding or deposition;
3) And is offered against a party who, in the prior occasion, had an opportunity and a similar motive to cross-examine or to otherwise develop the testimony.
*NOTE: the relevance of the former testimony to the current trial must be SUBSTANTIALLY SIMILAR to its relevance in the prior proceeding.

Front 332

What is a common situation where the party against whom the statement is being offered would not have had a previous opportunity to cross-examine?

Back 332

Where the former testimony was before the grand jury.

Front 333

What is the rule of former testimony with respect to criminal trials in NY?

Back 333

In NY, in criminal cases only, the former testimony by now-unavailable witness must have been given at a criminal trial, a hearing on felony complaint or at conditional deposition. D and charge must be the same in both former and current cases. Former testimony given at a suppression hearing is NOT admissible agaisnt the D.

Front 334

What is the rule for forfeiture by wrongdoing?

Back 334

A party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection to admission of the declarant's out-of-court statements. This includes engaging in or acquiescing in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a trial witness.

Front 335

What is the burden of proof regarding party's wrongdoing?

Back 335

1) In federal court, the wrongdoing must be demonstrated by a preponderance of the evidence;
2) In NY, the wrongdoing must be demonstrated by clear and convincing evidence.

Front 336

What are the elements of the statement against interest exception?

Back 336

1) Declarant is unavailable;
2) Statement is against declarant's pecuniary, proprietary, or penal interest.

Front 337

What is the qualification to the statement against interest exception in criminal cases?

Back 337

Statement against penal interest, when offered to exculpate a D, must be supported by corroborating circumstances.

Front 338

For a statement to be admissible as a party admission, must the declarant be unavailable?

Back 338

No.

Front 339

For a statement to be admissible as a statement against interest, must the declarant be unavailable?

Back 339

Yes.

Front 340

Who is the declarant in a party admission situation?

Back 340

Party or party's employee, agent, or co-conspirator.

Front 341

Who is the declarant in a statement against interest situation?

Back 341

Anyone.

Front 342

Against whom is a party admission admissible?

Back 342

Party.

Front 343

Against whom is a statement against interest admissible?

Back 343

Anyone.

Front 344

When must a declarant be an agent of the party to qualify for party admission?

Back 344

Must have been agent when the statement was made.

Front 345

When must the declarant's statement have been against his interest in order to qualify for the statement against interest exception?

Back 345

Against his interest when made.

Front 346

Is personal knowledge required for party admission?

Back 346

No.

Front 347

Is personal knowledge required for statement against interest?

Back 347

Yes.

Front 348

What is the rule with respect to the confrontation clause?

Back 348

In criminal cases, the 6th Amendment requires that the D be "confronted" with the witnesses against him.

Front 349

How is the rule applied to trial hearsay?

Back 349

Most hearsay doesn't offend the Confrontation Clause. E.g., there is NO Confrontation Clause problem IF:
1) The declarant is subject to cross-examination by D at trial (where witness and declarant are same person); or
2) The declarant was subject to cross-examination by D at the time the prior statement was made; or
3) D has forfeited his confrontationi right by wrongfully making the declarant unavailable; or
4) The out-of-court statement is not "testimonial" (this is the very unsettled area of law)
*Only time there's a problem is when the statement is testimonial and the D has no chance to cross-examine.

Front 350

What is a "testimonial" statement?

Back 350

Grand jury testimony and police interrogation.

Front 351

What is the only time a confrontation claus answer on the test may be right?

Back 351

Where you see police interrogations or grand jury testimony offered as statements against interest, it will violate the confrontation clause; otherwise confrontation clause will be a wrong choice.

Front 352

What are the elements of the dying declaration exception?

Back 352

1) Declarant is unavailable;
2) Statement was made under a belief of certain and impending death;
3) Statement concerns the cuase or circumstances of the declarant's death.

Front 353

In what type of case is the dying declaration exception available?

Back 353

1) The federal rule is in any civil case or a criminal homicide case;
2) The NY rule is in criminal homicide cases ONLY.

Front 354

What is a red flag of belief of certain and impending death?

Back 354

"Get me a priest."

Front 355

What is a red flag that declarant does NOT have a certain and impending belief of death?

Back 355

"Get me a doctor;" or "Get me to the hospital"

Front 356

For what hearsay exceptions is unavailability not required?

Back 356

1) Excited utterance;
2) Present sense impression;
3) Statement of then-existing mental, emotional, or physical condition;
4) Statements for purpose of medical treatment or diagnosis;
5) Business and public records

Front 357

What are the elements of the excited utterance exception?

Back 357

1) The statement concerns a startling event;
2) and was made while the declarant was still under the stress caused by the event.

Front 358

What are the factors that may make a statement "excited"?

Back 358

1) The nature of the event;
2) Passage of time;
3) Verbal clues (e.g. exclamatory phrases and exclamation points)

Front 359

What are the elements of the present sense impression exception?

Back 359

1) The statement describes and event;
2) And is made while the event is occurring, or immediately thereafter.

Front 360

What is the NY rule with respect to present sense impression?

Back 360

Requires corroboration.

Front 361

What is the rule with respect to statements of then-existing mental, emotional, or physical condition?

Back 361

1) A contemporaneous statement
2) concerning the declarant's then existing:
a) phyiscal condition; or
b) state of mind
(includes emotions,
mental feelings,
intent, or future
plans, sensations, and
bodily health)
3) BUT NOT a statement of memory or belief about a past condition;
4) INCLUDES statements of future intent to do something with a third person.

Front 362

What is the NY rule with respect to statements of then-existing mental, emotional, or physical condition?

Back 362

1) If a statement of present PHYSICAL condition is offered,
a) The statement must be
made to a lay person
(not a doctor); OR
b) The declarant must be
unavailable (then a
statement to a doctor
is OK);
2) If a statement of future intent is offered to prove the conduct of a third person, NY requires:
a) Corroboration (of
the connection b/t
the declarant and
the third person); AND
b) That the
declarant is
unavailable.

Front 363

What are the elements of the statement for purpose of medical treatment or diagnosis exception?

Back 363

A statement:
1) Made to a medical professional (doctor, nurse, EMT);
2) Concerning:
a) present symptoms;
b) past symptoms; or
c) the general cause of
a medical condition;
3) For the purpose of treatment or diagnosis;
4) BUT NOT statements of fault or identity of the wrongdoer.

Front 364

What is the NY rule for the statements for purpose of medical treatment or diagnosis exception?

Back 364

The NY rule excludes statements made solely for the purpose of obtaining expert testimony at trial.

Front 365

What are the elements of the business and public records exception?

Back 365

1) Records of a business (any type, including public agencies);
2) made in the regular course of business (i.e, germane to the business);
3) The business regularly keeps such records;
4) Made contemporaneously (at or about the time of hte event recorded); and
5) The contents consist of:
a) Information observed
by EEs of the
business, OR
b) A statement that
falls within some
other hearsay
exception.

Front 366

What is the rule with respect to conclusions by public EEs?

Back 366

In addition to observations by EEs of the public agency, may also include conclusions by public EEs (e.g., police officer's conclusion about fault in an accident report).
BUT NOTE: police reports may not be offered against the D in a criminal case.

Front 367

How can you lay the foundation for business records?

Back 367

Two ways:
1) Live testimony (call a knowledgable witness who can testify to the five elements of the busines records hearsay exception - "custodian of records");
2) Affidavit (submit a written certification under oath attesting to elements of business records hearsay exception.

Front 368

What is the NY qualification to how the foundation may be laid for business records/

Back 368

In NY, written certification may be used only in civil cases and only for the business records of a non-party.

Front 369

How is it determined whether a party has established the required elements of a hearsay exception?

Back 369

Whether a party has established the required elements of a hearsay exception is to be decided by the judge by a preponderance of the evidence. And, in making that determination, the judge may rely on ANYTHING (including inadmissible evidence).

Front 370

What is the rule with respect to hearsay declarants and impeachment?

Back 370

If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of a hearsay declarant.