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66 Cards in this Set
- Front
- Back
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Relevance (evidence)
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- Increase or decrease probability
- General balance exception - Policy exceptions - Character evidence exception - Hearsay exception |
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Exception of balance for relevant evidence
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Probative value outweighed by pragmatic concern
- Undue prejudice - Misleading (confuse issues/misleading facts) - Waste of time * Cumulative * Waste of time * Undue delay |
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Policy exceptions for relevant evidence
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- Liability insurance
- Subsequent remedial measures - Settlement discussion - Plea bargains - Offer to pay medical exp |
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Liability insurance (evidence)
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Liability insurance is irrelevant for fault
Relevant for: - Ownership - Control - Impeachment |
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Subsequent remedial measures (evidence)
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SRMs are irrelevant to prove:
- Defective product - Negligence - Lack of warning - Wrongful conduct SRMs are relevant: - Ownership - Control - Feasibility of alternative - Impeachment NY: SRM admissible for manufacturing defect in product liability case (Admissible for Manufacturing Defect: AMD) |
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Settlement discussion (evidence: relevance)
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Settlement discussion not admissible:
- Disputed claim (no need to formally sue) - Settlement offer - Settlement - Settlement discussion - To prove liability - Admissible for impeachment |
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Offer to pay medical exp (evidence)
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Inadmissible:
- Offer to pay medical expenses - prove liability - No need of dispute - Only about offer, not discussion |
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Plea bargain in subsequent criminal or civil action (evidence)
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Inadmissible for ALL purposes:
- Plea nolo contendere - Withdrawn pleas - Plea offers - Plea discussions NY: withdrawn pleas admissible for CIVIL cases All: accepted pleas admissible |
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Character evidence (definition)
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Evidence about past act or propensity to prove conformity with the propensity: inadmissible
Admissible for non-propensity purposes: - MIMIC - Habit - Essential element (civil; no criminal) True character evidence exceptions in criminal case - Must give pre-trial notice of use character evidence |
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MIMIC character evidence
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Motive
Intent Absence of mistake Identity Common scheme or plan |
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Essential element exception of character evidence
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Civil
- Defamation - Negligent entrustment Criminal: none |
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Habit exception of character evidence
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Elements:
- Specificity - Frequency MBE: business routine and personal habit NY: only applicable to business routine |
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Character evidence for propensity
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MBE: prior sexual misconduct can be used in sexual offense crimes
Rape victim: - Promiscuity inadmissible - Sex with D: show consent - Sex with others: show physical evidence - NY: prostitution conviction within 3 years Propensity: - D may use character evidence - P may rebut with character evidence - MBE: D may show victim first aggressor - D may show knowledge of prior violence of victim |
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Form of character evidence
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MBE: reputation and opinion
NY: only reputation Specific facts: - Only allowed in cross-exam - Cannot show by extrinsic evidence |
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Hearsay definition
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Elements:
- Out-court statement - By a person (not machine) - Show truth of the stated matter Inadmissible unless exceptions apply |
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Party admission exception to hearsay
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- Statement of a party
- Used against that party - Not about truth, but estoppel - Plea bargain is party admission - Include agents/employees within scope * NY: requires speaking authority Admissions by co-conspirators: - Inadmissible if after-the-fact - During crime, in furtherance: admissible |
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Unavailability for hearsay
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- Illness or death
- Privileged - Out of jurisdiction - MBE: witness forgetful - MBE: witness stubborn - NY: 100 miles away - NY: declarant is doctor |
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Statement against interest exception to hearsay
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- Declarant unavailable
- Pecuniary or penal interest - Embarrassment/disgrace insufficient - Requires corroboration in criminal case |
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Requires corroborative evidence
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- Statement ag interest hearsay in crim
- NY: Unsworn witness (children under 9) - NY: Current sense perception - NY: Current physical/mental (intent) proving third party |
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Dying statement exception to hearsay
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- Declarant unavailable
- Declarant believes impending certain death - Statement about cause MBE: civil case and homicide NY: only homicide |
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Former testimony exception to hearsay
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- Declarant unavailable
- Formal proceeding or deposition - Under oath - Party against whom have same incentive and opportunity to cross (substantially same context) NY: in criminal case. - Require: prior criminal case testimony - Suppression hearing not sufficient. |
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Forfeiture exception to hearsay
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- Party deliberately and wrongfully
- Made declarant unavailable MBE: POE standard NY: Clear and convincing |
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Current sense perception
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- Report by the declarant
- Event ongoing (or immediately after) NY: requires corroborative evidence |
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Current physicla/mental condition
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- Physical condition
- Mental condition (including future intent) - Not memory NY: - Report of symptoms to lay person: * declarant must be unavailable - Current intent to prove third party: * Declarant must be unavailable * Corroborative evidence required to convict |
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Excited utterance
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- Startling event
- Declarant still under pressure |
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Statement to obtain medical treatment exception to hearsay
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- Statement to doctor
- For diagnosis and treatment - Past/present symptoms - General cause of conditions - Not including fault - Not including identity - Domestic violence: include identity - NY: statement to trial expert: not applicable - Also consider attorney-client privilege |
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Business record exception to hearsay
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- Business or governmental authority
- Routinely prepares such record - Record prepared during time of event - Include observations by *employee* - MBE: include employee conclusions - MBE: not police report conclusions - NY: not include conclusions - Witness statement: double hearsay Foundations: - Witness - Affidavit - NY: affidavit only in civil case for business record of third party |
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Non-hearsay purposes
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- Impact on listener
- Insanity of declarant - Verbal act (words are operative) - Impeachment purpose |
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Witness' own prior statement exception
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- Identification statement
- Made at the earlier time - Only usable by witness herself MBE: Prior inconsistent statement - Made in formal proceeding under oath - Inconsistent - Can use for impeachment - Can use for substantive truth MBE: Prior consistent statement - Witness accused of lying motive - Made prior to motive arises - Consistent - Can use for rehabilitation - Can use for substantive truth |
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Past recollection recorded exception to hearsay
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- W has personal knowledge
- W cannot remember (not jogged) - Statement prepared or adopted by W - Made around time of event w/ fresh memory - W attest to the accuracy - May read to jury - MBE: opponent may introduce to evidence - NY: both party may introduce to evidence |
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Judicial notice (evidence)
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Judicial notice is treating something as true without presenting to the jury.
- Common knowledge - Facts easily verifiable through unquestionable source - Can be taken at any time - No need to actually verify - Rebuttable presumption in criminal case - Conclusive in civil case - Judicial notice for other state's law |
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Real evidence
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[Items, things, etc.]
Foundations: - Unique item: personal knowledge - Generic item: chain of custody - Chain must be substantially unbroken - No need to be perfect - If condition is important, real evidence must in substantially the same condition |
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Authentication of document evidence
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- Personal knowledge of execution
- Solicited reply doctrine - Handwriting by familiar lay person - Handwriting by expert - Handwriting by jury comparison - Ancient document doctrine - Self-authenticated documents |
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Ancient document doctrine
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- MBE: 20 years; NY: 30 years
- Found in the place expected - No facial suspicion of tampering |
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Self-authenticated documents
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- Newspaper and periodicals
- Official publications - Trade inscriptions - Acknowledged documents - Business records - Commercial paper - Certified public documents Business record: - Certified by person who knows preparation - Made normally and around time of event |
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Best evidence rule
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Document is writing:
- Content is operative - W' knowledge based solely on reading Best evidence: - produce original - produce duplicate - provide excuses or escapes |
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Original and duplicate (documentary evidence)
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- Original include print-outs
- Duplicate: identical machine copy - Not if handwritten copy - Without facial suspicion - NY: duplicate in regular course of business |
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Escapes or excuses for best evidence rule
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Excuses:
- Lost or cannot find with DD - Destroyed without bad faith - Cannot obtain with legal process Escapes - Summary for voluminous docs - Collateral documents - Certified copy of public documents |
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Privileges (evidence)
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- Applies only to communication
- Applies when confidential - Requires status-relationship - Usually have specific purpose - May be waived by holder - Not to: * Underlying facts * Physical evidence * Pre-existing documents |
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Waiver of privileges
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- 3rd party present in communication
- partial disclose requires full disclosure - client sues professional - Holder puts in issue - FUTURE CRIME OR FRAUD Mistake disclosure not waiver: - reasonable steps to protect - reasonable steps to rectify mistake |
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Federal privileges (evidence)
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- Spouses
- Spousal immunity - Attorney-client - Clergyman-penitent - Psychiatrist-patient |
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NY Privileges (evidence)
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- Attorney-client
- Clergyman-penitent - Spouses (not immunity) - Doctor-patient - Social worker-client - Reporter-source |
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Attorney client privilege (evidence)
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- Between attorney and client
- For obtaining legal advise - Communication/confidential - Attorney includes representatives - Client includes prospective - Client includes employees Lost privilege: - If client instructs attorney to disclose - Between joint clients |
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Doctor-patient privilege (evidence)
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- Between doctor and patient
- For medical treatment - Confidential - Communication MBE: only applies to psychiatrist-patient |
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Spouses privilege (evidence)
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- Between spouses
- Married at communication - For any purposes - Confidential - Communication - Intended to protect intimacy - Cannot be waived by one spouse alone - No privilege for destroying family union |
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Spousal immunity (evidence)
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- Only available in federal court
- Only for criminal case - Testimony against the other - Married at time of trial - Can be waived by one spouse - No privilege for destroying family union |
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Learned treaties (evidence)
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Foundation (reliable):
- Judicial notice - Expert witness - Admissions Use: - Exam/cross-exam - Read to jury - NOT introduce to evidence NY (not for substance), allowed only: - Direct: show basis - Cross: credibility if * relied on by opposing expert * admitted by opposing expert |
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Lay person witness (evidence)
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- Observation
- Simple conclusion from direct observation * Smell * Angry * Sobriety * Handwriting * Voice - Simple conclusions must be helpful |
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Dead Man's Act
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No federal DMA
States have DMA (including NY): Not testify if: - Personally interested in outcome - Testifying against dead party - Transaction and communication - Civil action Waived: - Successor put in issue - Successor waived - Dead party's testimony introduced NY: accident based on negligence - May testify about circumstances - Not testify about communications |
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Writing in aid of memory (evidence)
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- allowed to revive memory
Other party: - May introduce to evidence - May inspect - May use on cross |
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Expert witness (evidence)
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- Qualification of witness
- Specialized knowledge is helpful - Reliable - Proper basis |
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Basis of expert witness (evidence)
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Proper basis include:
- Expert's personal knowledge - Admissible evidence in record - Inadmissible evidence (hearsay) commonly relied on by experts in the same fields - Inadmissible basis may not be disclosed - Opponent may disclose basis |
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Reliability of expert opinion (evidence)
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- Reliable method
- Reliable application MBE test: - Method tested? - Known error rate? - Peer reviewed? - Generally accepted by experts? NY test: - Generally accepted by experts? |
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Impeaching witness (evidence)
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Intrinsic/extrinsic: direct attack
- Inconsistency - Bias - Misconception Indirect attack on character - Character witness (extrinsic) - Prior crimes (extrinsic allowed) - Prior misconducts (intrinsic) Witness must be able to reply: - MBE: flexible - NY: must raise in cross |
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Prior crimes as impeachment (evidence)
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MBE: by type of crimes
- Veracity: allowed - Non-veracity: * allowed: felony within 10 years * balance prejudice and probative value * misdemeanor not allowed NY: by type of witness - Witness: allowed - D witness: * balance prejudice and probative value |
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Prior misconduct as impeachment (evidence)
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MBE: veracity
NY: mental turpitude - Good faith requirement - May ask in cross (intrinsic) - Stuck with answer |
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Rehabilitation (witness)
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- No bolstering evidence
- May use prior consistent statement - May use character witness MBE: prior consistent statement can prove substance |
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Confrontation 6th Amendment (evidence)
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- Criminal case
- Testimonial witness Satisfied if: - D forfeited - D had opportunity - D has present opportunity Not admissible if witness has privilege not to testify Police report (business record): - Testimonial if for prosecution - Not testimonial if for emergency (911 call) - Business record not testimonial - Grand jury testimonal |
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Photo and video authentication (evidence)
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If illustrative of witness testimony:
- No need to authenticate - Not introduced to evidence If standing alone: - Device working properly - Device properly installed - Chain of custody for tapes |
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State rule applicable in federal diversity cases
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- Burden of proof
- Dead Man's Act - Privileges |
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Witness competancy (evidence)
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- Personal knowledge
- Testifying live - Swear oath * Understands duty to tell truth * Promises to tell truth NY: Children < 9 may testify unsworn NY: not convict solely on unsworn testimony |
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Leading questions (evidence)
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- direct: not allowed (DNA)
- cross-examination: allowed Exception for direct: - Forgetful witness - Opposing party - Stubborn witness - Introductory question |
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Cross examination (evidence)
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Scope:
- Facts raised in direct - Witness credibility If cannot cross-examine, struck testimony |
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Ultimate issue opinion (evidence)
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Opinion is admissible even if addressing ultimate issue.
Criminal case: - Inadmissible if proving state of mind |
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Impeaching own witness (evidence)
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MBE: freely (no voucher rule)
NY: voucher rule - Not impeaching own witness - Criminal case: only if directly damaging - Required form for inconsistent statement: * Writing signed by witness * Testimony under oath |
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Preliminary questions (evidence)
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Judge:
- Admissibility (may have jury around) - Qualification of expert Jury: - Conditional relevance - E.g. authenticity of documents |
