Ny Evidence

Front 1

Evidence of Liability Insurance...what are the exceptions? (2)

Back 1

Evidence that a person has [or does not have] liability insurance is inadmissible for the purpose of proving fault or absence of fault.

ii. EXCEPTION: The evidence may be admissible for some other relevant purpose, such as:
1. Proof of Ownership or Control if that issue is controverted; OR
2. Impeachment of a witness
iii. NOTE: Dual Purpose Evidence: When evidence is admissible for one purpose, but inadmissible for another, the judge should give the jury a LIMITING INSTRUCTION

Front 2

Subsequent Remedial Measures [SRMs] (R4, E3)

NY exception?

Back 2

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

ii. FEDERAL RULE: SRMs are inadmissible to prove:
1. Negligence
2. Culpable Conduct
3. Product Defect (not manufacture defect)
4. Need for a Warning

iii. EXCEPTION: The evidence may be admissible for some other purpose, such as, proof of:
1. Ownership
2. Control
3. Feasibility of a safer condition

Front 3

Settlement in Civil Cases

Back 3

i. RULE: If there’s a disputed claim, then evidence of [i] Settlements; [ii] Offers to settle; or [iii] Statements made in settlement discussions is inadmissible to PROVE LIABILITY
1. DISPUTED CLAIM: there must be a claim (demand of some sort) that is disputed by the other side (either as to validity or amount)
ii. EXCEPTION: Evidence may be admissible if offered to impeach W on the grounds of bias.

Front 4

Are Offers to Pay Hospital or Medical Expenses admissible?

Back 4

i. RULE: Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.
ii. EXCEPTION: Does not cover other statements made outside of scope

Front 5

Pleas and Plea Discussions in CRIMINAL Cases(4)

NY Distinctions

Back 5

The following are inadmissible against a Δ in a pending criminal action OR in a subsequent civil case:
1. An offer to plead guilty
2. A withdrawn* guilty plea [Note: NY Distinction]
3. Plea of nolo contendere [No Contest]
4. Statements of fact made during 1-3.

Front 6

When is Character Evidence admissible?

Back 6

Evidence of a character trait is admissible as direct evidence for any relevant purpose, other than to prove conduct in conformity therewith on a particular occasion


1. Character evidence is NOT admissible to prove propensity
2. Character evidence is admissible for other purposes: to show a witness’ veracity, for a non-propensity purpose, & when the character trait is an element.

Front 7

What is the rule and elements of Character Evidence (Offered by Defendant)? (FED, NY)

Back 7

1. Evidence of Δ’s character is not admissible to prove propensity.

2. EXCEPTIONS:
a. Δ may introduce evidence of his own good character for a relevant trait.
b. Prosecution may rebut w/ evidence of Δ’s bad character for same trait
3. FORM OF CHARACTER EVIDENCE: When CE is admissible to prove propensity, the only proper methods are:
a. FEDERAL: Reputation OR Opinion
c. NOT ALLOWED: Specific Acts

Front 8

What are the ways in which a prosecution may rebut a character trait? (FED & NY)

Back 8

If Δ has opened the door by calling character witnesses, the prosecution may rebut in two ways:

a. Calling its own witnesses to testify to the Δ’s relevant bad character
b. Cross-examining Δ’s character Ws by questioning their knowledge of specific acts by the Δ that are relevant to the character trait at issue.

i. Form for:
1. OPINION Ws: “Did you know…”
2. REPUTATION Ws: “Have you heard…”
ii. Purpose: To test W’s knowledge, not to prove the specific act

iii. Good Faith Requirement: Prosecution must have a good faith basis to believe that the specific act took place.

Front 9

iii. Victim’s Character in a SELF-DEFENSE Case (FED, NY, SPECIAL)

Back 9

1. FEDERAL RULE: A criminal Δ may offer evidence of the victim’s violent character to prove that the victim was the first aggressor
a. Form: Reputation OR Opinion [no specific acts!]
b. Prosecution Rebuttal: may rebut in two different ways, by evidence of:
i. V’s Good Character for that trait; OR
ii. Δ’s Bad Character for that trait.

3. SPECIAL RULE: [followed by MS & NY] The Δ may offer evidence of his own knowledge of the victim’s bad character for violence for the purpose of showing that he reasonably believed in the need to use self-defense.
a. Form: ANY form is allowed (reputation, opinion or specific acts) because this is NOT propensity evidence,

Front 10

Victim’s Character in a SEXUAL MISCONDUCT Case [applies to both civ & crim] (FED, NY)

Back 10

1. RAPE SHIELD RULE: In a case involving alleged sexual misconduct, Δ ordinarily may not introduce evidence of the victim’s:
a. Reputation for promiscuity; OR
b. Prior sexual conduct

2. EXCEPTIONS: Δ may introduce:
a. Evidence of the victim’s prior consensual sexual activity w/ Δ, but only if the defense is CONSENT
b. Evidence of the victim’s sexual activity with others, but only to prove that someone other than Δ was SOURCE OF PHYSICAL EVIDENCE.
c. Evidence required to be admitted by the Δ’s DUE PROCESS RIGHTS

NEW YORK EXCEPTION: Evidence of Victim’s conviction for PROSTITUTION w/in the past 3 years.

Front 11

Character Evidence in CIVIL Cases

Back 11

CE is generally inadmissible to prove propensity in civil cases.

ii. EXCEPTIONS: CE is admissible in civil action where such character is an essential element of a claim or defense. Only in TWO situations:
1. Negligent hiring [entrustment]
2. Defamation [libel/slander]

Front 12

Is propensity evidence admissible to prove conduct? What is the business exception?

Back 12

i. RULE: Propensity evidence is inadmissible to prove conduct on a particular occasion

ii. 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.
1. Key Factors:
a. Frequency (more than 2-3 times – 6 is debatable)
i. “always, invariably, consistently, automatically, instinctively, etc”
b. Particularity (must be specific set of circumstances)
i. Ex: Consistent careless driver is NOT habit

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

Front 13

Habit Evidence (NY)

Back 13

1. Habit evidence relating to a business trade or profession is admissible
2. Evidence relating to personal habit on the issue of due care in negligence is NOT admissible.
3. Evidence relating to personal habit in the use of a product is admissible.

Front 14

Defendant’s OTHER Crimes for NON-Character Purpose...what is the exception?

Back 14

i. GENERAL RULE: Δ’s other crimes or specific bad acts are inadmissible during the prosecution’s chief in case if the only purpose is to prove propensity

ii. GENERAL EXCEPTION: If Δ’s other crimes or specific bad acts are offered for some purpose other than propensity, then evidence will NOT be barred by the rule against CE.

Front 15

What is the MIMIC rule? aka prior bad acts

Back 15

Evidence of specific prior acts is ordinarily not admissible for the purpose of proving that a party acted in confomrity with those prior acts on a particular occasion. Such evidence is, however, admissible for any other relevant purpose.

1. MIMIC RULE: Δ’s other crimes or bad acts may be admissible if offered to show something separate & apart from a propensity to commit the crime
a. Motive
b. Intent
c. Mistake or Accident (absence of)
d. Identity [incl. modus operandi]
e. Common scheme or Plan

Front 16

Evidence of D's Sexual Misconduct (sexual assault/child molestation)? Fed? NY Exception?

Back 16

i. FEDERAL RULE: In case alleging sexual assault/child molestation, prosecution may offer evidence of Δ’s prior sex assaults to prove Δ’s propensity to commit sexual assault.
1. Propensity Reasoning: “Once a rapist, always a rapist” is allowed

Front 17

Similar Occurrences

Back 17

i. RELEVANCY RULE [rephrased]: To be relevant, evidence must relate to some time, event, or person in the present litigation. Otherwise, evidence is inadmissible.
ii. EXCEPTION: In some circumstances, other similar occurrences may be admissible, even if they relate to another time, event, or person than involved in the present litigation.

Front 18

S.O. exception (6)

Back 18

1. Habit
2. P's Accident History
3. Similar accidents caused by same event or condition
4. Intent in issue
5. Comparable sales on issue of value
6. Industrial customs as standard of care

Front 19

Are leading questions allowed? What are the exceptions? (4)

Back 19

Rules:
i. Leading questions generally not allowed on DIRECT examination of witness.
ii. Leading questions generally are allowed on CROSS examination of witness.

EXCEPTIONS: Leading questions may be allowed on direct examination in 4 situations:
i. Preliminary introductory matters (i.e. name, address, etc.)
ii. Youthful or forgetful witness (can lead to jog memory)
iii. Hostile witness
iv. Adverse party or someone under the control of the adverse party

Front 20

What is the rule for "Present Recollection Refreshed"? What are the safeguards to the abuse? (3)

Back 20

i. W may not read from a prepared doc; must testify on basis of current recollection
ii. Refreshing Recollection: But if a witness forgets something he once knew, he may be shown a writing (or ANYTHING else) to jog his memory
iii. Safeguards against Abuse: If an item is used to refresh a W’s memory, the opposing party has a right to: [i] Inspect it; [ii] Use it on Cross; [iii] Introduce it into evidence

Front 21

Past Recollection Recorded [Hearsay Exception] (5) (Fed, NY)

Back 21

A writing may be read to the jury as a “past recollection recorded” IF:

1. W had personal knowledge,
2. W now forgets (and showing the writing to W fails to jog his memory)
3. The writing was either made OR adopted by the witness [Cop wrote, W signed],
4. The writing was made when the event was fresh in the W’s memory; AND
5. W can attest that, when made, the writing was accurate

ii. Method: If 1-5 are satisfied, then:
1. W may read the document to the jury [becomes substitute for W’s testimony] but W may not show the document to the jury.
2. BUT, opposing party may show the document to the jury [by introducing it as an exhibit]

Front 22

Are Lay Witness Opinion(s) admissible (2)

Back 22

Lay opinion testimony is admissible if it is –

1. Rationally based on W’s perception/personal knowledge; and
2. Helpful to the jury.

Front 23

Expert Witness Opinion (4)

Back 23

Rule: Witness may testify to an opinion of specialized knowledge as an expert only if:

1. W is qualified (by education and/or experience),
2. The testimony is about the subject matter where scientific, technical, or specialized knowledge will be helpful to the jury.
3. The opinion has a proper basis, AND
4. The opinion is reliable

Front 24

Proper Basis of Opinion (EW)

Back 24

1. 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. Expert’s personal knowledge (treating doctor giving opinion on diagnosis)
b. Evidence that is already in the trial record (made known to the expert through a hypothetical question) [not based on actual personal knowledge]
c. Facts outside the record (i.e., inadmissible evidence), but only if those facts are of a type reasonably relied on by experts in the particular field.
i. If E relies on experts outside the record, he may discuss the bases of the opinion, but may not disclose inadmissible facts to the jury.
ii. Opponent, however, may disclose the underlying basis on cross.

Front 25

Reliability (EW) (2)

Back 25

To be admissible, expert opinion must be sufficiently reliable. This means:

a. Expert has used reliable methods; and
b. Expert has reliably applied those methods to the particular facts of the case

Front 26

What is the Reliability Standard for Scientific Evidence? (FED/NY)

Back 26

a. Federal Rule: [DAUBERT STANDARD]: Court examines reliability by asking questions such as:
i. Has the methodology been tested?
ii. Are there known rates of error?
iii. Has the methodology been subject to peer review?
iv. Has the methodology been generally accepted?

Front 27

Substance: Recognized Privileges (F4) (NY4+3)

Back 27

i. FEDERAL: Fed. Courts recognize privileges [but not Doctor/Patient!]
1. Attorney/Client
2. Spousal
3. Priest penitence/Clergy privilege
4. Psychotherapist/Patient

ii. NEW YORK: In addition to Fed. Privileges, NY also recognizes:
1. Doctor/Patient
2. Social worker/Client privilege, incl. rape counselor
3. Reporter/Source

Front 28

What is the ATTORNEY-CLIENT PRIVILEGE? What are the elements? (4) What are the exceptions?(3)

Back 28

Confidential communication b/t attorney & client made during professional legal consultation will be privileged unless waived by client or an exception applies.
b. Elements
i. Relationship b/t attorney and client [or their representatives]
ii. Communications [& only communications]
iii. Confidential
iv. Purposes of Legal advice

d. Losing the Privilege
i. Waiver: Client alone has power to waive by disclosure of communication to third party. Privilege continues after atty-client relationship ends, even after client dies (estate holds)
ii. Exceptions: [situations where there is NO privilege]
1. Future crime or fraud [“help me disguise bribes I made to make it look legitimate”]
2. Client puts legal advice in issue [Δ defends on ground she relied on atty advice]
3. Attorney-Client Dispute [client sues atty for malpractice; atty sues client for fees]

Front 29

What are the elements of the DOCTOR PATIENT PRIVILEGE (4)

Back 29

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

Elements:
i. Doctor-Patient relationship [Dr = therapists, nurses, assistants; in NY also includes dentists, podiatrists & chiropractors)]
ii. Covers Communications or Information acquired by Doctor
iii. Confidential
iv. Purpose of Medical treatment or diagnosis

c. Federal Distinction: Covers only psychotherapists [Certified professional to treat mental/emotional illness]
d. Losing the Privilege: Waiver if patient expressly or impliedly puts physical or mental condition in issue. [e.g, Π in a personal injury case, or Δ asserting an insanity defense]
i. If patient puts in evidence first and opens the door, then no longer privileged info.

Front 30

What are the Spousal Communications Privilege Elements?

Back 30

i. RULE: Confidential communications b/t spouses will be privileged
ii. Elements:
1. Married Spouses
2. Communications
3. Confidentiality
iii. Losing the Privilege: May be waived only by both spouses

Front 31

Spousal Immunity Privilege [Spousal Testimony privilege] (What are the elements?) (3)

Back 31

i. FEDERAL RULE: In criminal case, prosecution can’t compel Δ’s spouse to testify against the Δ.

iii. Elements:
1. Criminal case
2. Testimony against a spouse
3. H and W are CURRENTLY married [at time of testimony or trial]
iv. Losing the Privilege: May be waived by witness spouse

Front 32

Hearsay

Back 32

An out-of-court statement by a person (declarant) offered to prove the truth of the matter asserted.

Front 33

PRIOR STATEMENTS OF TRIAL WITNESS (2E)

What is the NY rule?

Back 33

A witness’ own prior statement, if offered to prove the truth of the matter asserted, is hearsay & inadmissible UNLESS an exception or exclusion applies:

b. EXCEPTIONS [Exclusions]: Prior statements excluded from hearsay if:
i. Prior Statement of Identification
ii. Prior Inconsistent statement, IF made under oath during a formal proceeding

Front 34

Party Admissions

Back 34

i. RULE: Any statement made by a PARTY is admissible if offered against the party [offered by the other side].

Front 35

Former Testimony

Back 35

i. Declarant must be UNVAILABLE
1. Grounds of Unavailability: [PAILS]
a. Privilege
b. Absence from Jurisdiction
c. Illness (serious or death)
d. Lack of Memory
e. Stubborn Refusal to Testify [mere refusal is insufficient]

Front 36

Forfeiture by Wronging

Back 36

Party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection.

1. Includes engaging or acquiescing in wrongdoing to make declarant unavailable.

ii. Procedural Issue: Burden of Proof re Party’s Wrongdoing

1. Federal: Preponderance of the evidence [prosecutor has burden]
2. New York: Clear and Convincing Evidence

Front 37

Statements Against Interest (2E)

Back 37

1. Declarant is unavailable
2. Statement is against Declarant’s pecuniary, proprietary, or penal interest

ii. Qualification in criminal cases: Statements against penal interest, when offered to exculpate a defendant must be supported by corroborating evidence.
1. EX: X brags that he killed V, runs away & can’t be found. Δ, who’s been on trial for the murder, wants to bring in X’s statement to exculpate him. To admit, must have some corroborating evidence that X was actually involved.
iii. Party Admissions v. Statements against Interest

Front 38

What are the elements of "Dying Declaration" evidence? (3)

What are the types of cases? (FED, NY)

Back 38

1. Declarant is unavailable
2. Belief of certain and impending death
3. Concerns the cause or circumstances of the impending death

ii. Type of Case:
1. Federal: Any Civil or Criminal HOMICIDE

Front 39

What is an Excited Utterance? (2)

What are the factors that makes a statement "excited"? (3)

Back 39

1. Statement concerns a startling event
2. Declarant was under the stress caused by the startling event

iii. Factors to make a statement “excited”
1. Nature of the event
2. Passage of time – no bright line rule
3. Verbal cues – verbs of excitement, exclamations [points]

Front 40

Present Sense Impression [NOTE: Timeline!] (3E)

Back 40

1. Statement describes an event
2. Made while/during event is taking place, or
3. immediately after.

Front 41

Are Statements of Then-Existing Mental, Emotional or Physical Condition? (FED/NY)

Back 41

1. a contemporaneous statement
2. about declarant’s then existing
a. physical condition OR
b. state of mind [incl. emotions, mental feelings, intent/future plans, sensations & bodily health]

3. Does Not Include:
a. Statement of memory OR
b. Belief about a past condition
4. Does Include: Future intent to do something with a third party

Front 42

Statement for Purpose of Medical Treatment or Diagnosis (HS Except.)

Back 42

1. made to a medical professional,
a. about PRESENT/PAST symptoms OR
b. General CAUSE of the condition/symptoms
2. for purposes of treatment or diagnosis.

ii. Does NOT include:
1. Statements of FAULT or IDENTITY OF WRONGDOER

iii. NEW YORK DISTINCTIONS: Exception does not apply to statements…
1. Where sole purpose was to get expert testimony at trial
2. Relating to past symptoms.

Front 43

Business Records (5)

Back 43

Allows admission of
1. Records of a business [any type]
2. Made in regular course of business
3. Business regularly keeps such records
4. Made contemporaneously [at or about the time of the event recorded]; AND
5. Content consists of:
a. Info observed by employees of the business OR
b. Statement that falls w/in some other hearsay exception

Front 44

6. HEARSAY AND THE CONFRONTATION CLAUSE [6TH AMENDMENT]

Back 44

a. RULE: In CRIMINAL cases, 6th amendment requires that Δ be “confronted” w/ Ws against him
i. Prosecution may not offer TESTIMONIAL hearsay in violation of Δ’s right to cross.
b. Definitions:
i. “Right to Cross Examine the Declarant” – satisfied if Δ:
1. already had a chance to cross Δ [i.e. former testimony exception], OR
2. can cross declarant at trial [PIS, PCS or PSI], OR
3. forfeited 6th amendment right [i.e. forfeiture by wrongdoing]
ii. “Testimonial” –
1. Grand Jury testimony IS testimonial
2. Statements made in response to police interrogation:
a. TESTIMONIAL IF the primary purpose of questioning is to establish/prove past events possibly relevant to later criminal prosecution
b. NON-TESTIMONIAL IF primary purpose is to enable police assistance to meet an ongoing emergency.
3. Police Reports are TESTIMONIAL
4. Business Records are NOT-TESTIMONIAL

Front 45

If hearsay is admitted, what can opposing party use to impeach?

Back 45

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

Front 46

Responsibility of Jury (Procedural matters)

Back 46

BURDENS OF PROOF – Up to jury to decide whether BoP has been met for each element
a. Civil Cases: Preponderance of the evidence
b. Criminal Cases: Clear & Convincing
2. PRELIMINARY FACTS
a. Jury - Preliminary Facts
i. Jury Decides questions of: CONDITIONAL RELEVANCE
1. Whether a W has personal knowledge
2. Whether an exhibit is authentic
3. Whether Δ is the person who committed prior bad act offered as MIMIC evidence

Front 47

How does one lay the foundation for using business records?

Back 47

Live Testimony – Call a knowledgeable W who can testify to the 5 elements required for a
business record [“custodian of records”]
2. By Affidavit – Submit written certification under oath attesting to 5 elements
a. NEW YORK DISTINCTION: Writing can only be used in civil cases & only for business records of a
non party

Front 48

When are Vicarious Admissions by Agents or Employees admissible?

Back 48

A statement by an [i] agent or employee of a party is admissible against the party if it
concerns a matter [ii] within the scope of agency or employment and [iii] was made during the agency
or employment.

Front 49

On direct, how can evidence of character be proved?

Back 49

Where a person's trait of character is admissible as direct evidence, proof may be made by

1. Testimony as to such person's reputation in the community
2. Testimony by a witness as to her opinion about the character trait in question or
3. Where character is an essential element of a case, charge, claim or defense, evidence of specific instances of person's conduct.