Ny Evidence 2009

Front 1

Define hearsay.

Back 1

An out of court statement (oral or written), made by a person (declarant) offered to prove the truth of the matter asserted.

Front 2

Name 5 categories of non-hearsay.

Back 2

1. Prior inconsistent statements offered to impeach

2. Verbal acts (legally operative words)

3. Statements offered to show effect on listener

4. Circumstantial evidence of the speaker's state of mind

5. Prior statements of trial witnesses

Front 3

A prior inconsistent statement is not hearsay if _______.

Back 3

1. Made at former proceeding under oath

2. Only admissible to impeach (NY)

Front 4

What are the 10 hearsay exceptions?

(FEBE DyS For the PreS)

Back 4

1. Former Testimony

2. Excited Utterance

3. Business and Public records

4. Existing mental emotional or physical condition (statement of)

5. Dying Declaration

6. Statement against interest

7. Forfeiture by wrongdoing

8. Present sense impression

9. Statement for purposes of medial treatment

Front 5

When is a declarant unavailable?

(PAILS

Back 5

1. Privilege

2. Absence of jurisdiction

3. Illness or death

4. Lack of memory

5. Stubborn refusal to testify

Front 6

What are the additional things qualify to make a witness unavailable under NY law?

Back 6

1. Defendant is 100 miles from courthouse

2. Declarant is a Doctor

Front 7

Under the former testimony exception to the hearsay rule the declarant must be ________ and the party against whom the testimony is offered ________

Back 7

1. Unavailable

2. must have had similar opportunity and motive to cross examine

Note - in NY must be from crim proceeding

Front 8

Under the forfeiture by wrong doing exception to the hearsay rule, the declarant must have been made ________ by the wrongdoing of a party and that must be proved by _______ standard.

Back 8

1. Unavailable

2. Clear and convincing evidence in NY and preponderance under MR

Front 9

Under the statement against interest exception to the hearsay rule, the declarant must be _________ and he statement must be against the witness' ___________ interests

Back 9

1. Unavailable

2. Pecuniary, penal

Front 10

Under the dying declaration exception to the hearsay rule, the declarant must be ________ and the statement must concern the circumstances of ________

Back 10

1. Unavailable

2. Declarant's impending death

NY - criminal only

MR - both civil and criminal

Front 11

Under the excited utterance exception to the hearsay rule, the declarant must be _________ and the statement must have been said while the declarant was _________.

Back 11

1. Need not be unavailable

2. Still under the stress of the startling event.

Front 12

Under the present sense impression exception to the hearsay rule, the declarant must be _______ and the statement must both _________ and __________.

Back 12

1. Need not be unavailable

2. describe the event

3. be said during or right after the event

Front 13

Under the statement of then-existing emotional, mental, or physical condition exception to the hearsay rule, the declarant must be ______ and the statement must be __________ and reflect the declarant's then existing _________

Back 13

1. Need not be unavailable

2. contemporaneous

3. State of mind (intent or future plans included) or physical condition

Front 14

Under the statement for purposes of medical treatment exception to the hearsay rule, the declarant must be ________ and the statement must have been made for the purpose of obtaining ________.

Back 14

1. Need not be unavailable

2. treatment of diagnosis (statement of fault or ID not included)

Front 15

Under the business or public records exception to the hearsay rule, the declarant must be _______ and the writing must have been made in ________.

Back 15

1. Need not be unavailable

2. The normal course of business (police reports are business records)

Front 16

Prior inconsistent statement are admissible to ________ and are admissible as __________ if the statement was made under oath at a prior proceeding.

Back 16

1. Impeach

2. Substantive evidence (Not in NY)

Front 17

Evidence of witness bias is admissible for __________.

Back 17

1. Impeachment

2. May be proved by extrinsic evidence

Front 18

Is extrinsic evidence allowed to impeach a witness through their sensory deficiency?

Back 18

Yes

Front 19

How can a party impeach a witness' character for truthfulness.

Back 19

May call a witness to the stand to testify to through

1. reputation and opinion (MR)

2. Reputation (NY)

3. Never through specific acts

Front 20

What is the NY rule for the use of criminal convictions as a means of impeaching a witness?

Back 20

1. Any witness can be impeached this way

2. Sandobal Hearing (probative vs. prejudicial) must be held

Front 21

What is the majority rule for the use of criminal conviction as a means of impeachment

Back 21

1. Conviction or release from prison must have been within 10 years of trial

2. Misdemeanors are not admissible unless its a crime of dishonesty or false statement

3.

Front 22

What is the majority rule for prior bad acts as a means of impeachment?

Back 22

Witnesses may be asked about them if they go to the witnesses' character for truthfulness.

Front 23

What is the rule in NY for the use of prior bad acts as a means of impeachment?

Back 23

Witnesses may be asked about acts that go to the witnesses moral character but the attorney must have a GF belief that the act happened and t can be proved by instrinsic evidence only

Front 24

What is the rule for the use of contradiction as a means of impeachment?

Back 24

Generally can be used but

1. If goes to a major issue in the case, then extrinsic evidence may be used

2. If goes to a collateral matter, then only intrinsic evidence can be used.

Front 25

May a party impeach its own witness?

Back 25

NY - NO

MR - yes

Front 26

Generally speaking, party may only rehabilitate a witness _________.

Back 26

After the witnesses credibility has been attacked.

Front 27

Name two methods of rehabilitating a witness.

Back 27

1. Prior consistent statements

2. Character for truthfulness

Front 28

Spousal communication privilege applies to _________.

Back 28

Confidential communications between spouses if

1. Spouses are married

2. Its a communication

3. that was confidential

4. and it can be waived only by both spouses

Front 29

Under the doctrine of spousal immunity ________.

Back 29

Prosecution cannot compel one witness to testify against another if ...

1. couple is currently married

2. testifying spouse does not waive

3. the communication is not in furtherance of a crime/fraud or destructive of the family unit.

Note - not recognized in NY

Front 30

Define relevance.

Back 30

Evidence is relevant if it tends to make the existence of any fact of consequence to the action more probable than it would have been without the evidence

Front 31

On what 4 bases may relevant information be excluded.

Back 31

1. Judicial discretion (probative vs. prejudicial)

2. Liability insurance

3. Subsequent remedial measures

4. Settlements in civil case

5. Offers to pay medical bills

6. Pleas or plea discussions in a criminal case

Front 32

When is evidence relevant?

Back 32

Generally is must relate to time, event, or person in the present controversy.

Front 33

As a general rule, character evidence is inadmissible to prove _________ but is admissible to prove __________ or when ____________.

Back 33

1. Propensity

2. Veracity

3. When character is the an element of the claim

Front 34

What is the general rule for the admissibility of character evidence in criminal cases.

Back 34

Generally is inadmissible but the defendant may offer evidence of his good character for a relevant trait.

Front 35

In a criminal case a defendant may offer evidence of his good character for a specific trait by _________.

Back 35

MR - reputation and opinion evidence

NY - reputation evidence only

Never specific acts

Front 36

Under the majority rule, the prosecution may rebut a defendant's evidence of his good character by _______.

Back 36

1. Using its own witnesses

2. Cross examining D's witnesses through a knowledge test (did you know' have you heard)

Front 37

Under the NY rule, the prosecution may rebut a defendant's evidence of his good character by ________.

Back 37

Only by criminal convictions that reflect poorly on the defendant's character trait that is in issue.

Front 38

In civil cases, character evidence is allowed _______.

Back 38

Only when character is an element of the crime and then only on the issue of veracity.

Front 39

When can D's specific acts or crimes be admissible to show something specific about the current crime (MIMIC)

Back 39

To show ...

1. Motive

2. Intent

3. Make of accident, (lack of)

4. Identity

5. Common Scheme or plan

Front 40

May silence be deemed an admission for the purposes of an exception to the hearsay rule?

Back 40

Yes, under circumstances where a reasonable person would have responded to an accusation