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143 Cards in this Set

  • Front
  • Back
Define: Relevance
any tendency to make a material fact more probable or less probable
Pragmatic considerations that can outweigh probative value
1: unfair prejudice
2: confusion
3: waste of time
General Rule: Liability Insurance
inadmissible for the purpose of proving fault or the ability to pay, but may be admissible for other purposes
General Rule: Multiple Purposes
if evidence has multiple purposes and one or more is inadmissible, judge should give a limiting instruction
Define: Bias
some relationship between a witness and a party that could cause the witness to lie
Subsequent Remedial Measures are INADMISSIBLE for:
proving:
Negligence
Culpable Conduct
Product Defect (manufacturing or design)
Need for Warning
Subsequent Remedial Measures are ADMISSIBLE for:
proving:
Ownership
Control
Feasibility of a Safer Condition (if disputed) (not of safer design)
NYS Distinction: Subsequent Remedial Measures
SRMs are ADMISSIBLE in a products liability action based on strict liability for a manufacturing defect
General Rule: Settlements
If there is a disputed claim:
Settlements;
Offers to Settle;
Statements Made in Settlement Negotiations;
are all INADMISSIBLE to prove liability.
General Rule: Hospital/Medical Expenses
Offers to pay hospital/medical expenses are inadmissible.

Note: does not include statements made in conjunction with such a statement.
General Rule: Pleas and Plea Discussions
1: offer to plead guilty
2: WITHDRAWN guilty plea
3: plea of no contest
4: statement of fact in the course of 1-3

are all INADMISSIBLE in a criminal case or subsequent civil case.
NYS Distinction: Pleas
A withdrawn guilty plea is admissible in subsequent civil cases.
Define: Character Evidence
refers to a person's general disposition or propensity.
Character Evidence: Possible Purposes
1: Propensity
2: Veracity
3: Non-propensity Purposes
4: trait as an element of claim or defense
General Rule: Character Evidence
INADMISSIBLE to prove Propensity.

ADMISSIBLE to prove other purposes.
Rule: Propensity Evidence Offered by Defendant
Defendant MAY offer evidence of good character for a relevant trait.

Prosecution may then rebut with otherwise inadmissible character evidence.
Form of Character Evidence
Reputation or Opinion.

No Specific Acts
NYS Distinction: Form of Character Evidence
Reputation evidence only.

NO opinion evidence.
Rule: in Rebutting Defendant's Character Evidence, Prosecution may...
1: Call its own witnesses to provide Reputation or Opinion (not in NYS) evidence.

2: cross examine Defendant's character witnesses regarding specific acts.
Form of Cross-Examining on Specific Acts
Opinion: "did you know...."

Reputation: "have you heard...."
NYS Distinction: Rebutting Character Evidence
Prosecution may rebut by providing that defendant was CONVICTED of a crime that reflects on the trait at issue.
Special Rule: Character Evidence and Self Defense
Defendant may introduce evidence of victim's violent character to prove that victim was first aggressor.

Prosecution may rebut with evidence of (1) victim's good character; or (2) defendant's bad character.
NYS Distinction: Character Evidence and Self Defense
Evidence of the victim's character is INADMISSIBLE to prove that victim was first aggressor.
Special Rule: Character Evidence and Rape
Victim's reputation for promiscuity or prior sexual conduct is INADMISSIBLE.

Prior sexual activity with the DEFENDANT is admissible ONLY if the defense is consent.

Prior sexual activity with OTHERS is admissible ONLY to prove the source of physical evidence.
NYS Distinction: Character Evidence and Rape
Victim's conviction for prostitution w/in the past 3 years is ADMISSIBLE.
General Rule: Character Evidence and Civil Cases
Generally INADMISSIBLE to prove PROPENSITY in civil cases.

Except where essential element of claim: (1) negligent hiring; (2) defamation.
Special Rule: Habit Evidence
Habit of a person or routine of a business organization is ADMISSIBLE to infer action on the occasion at issue.

Measure in terms of (1) frequency and (2) particularity.
NYS Distinction: Habit Evidence
Relating to business, trade, or profession: ADMISSIBLE

Relating to personal habit on issue of due care in negligence: INADMISSIBLE.
General Rule: Past-Crimes for Non-Character Purpose
INADMISSIBLE to prove propensity.

ADMISSIBLE to prove something specific about the charged crime (MIMIC: motive, intent, mistake, identity, common scheme/plan)
Define: MIMIC Evidence
Motive
Intent
Mistake
Identity
Common Scheme or Plan
Rule: Proving Past Crimes for MIMIC Purposes
1: by CONVICTION
2: by evidence that crimes occurred (evidence sufficient for a reasonable jury to conclude by PREPONDERANCE OF THE EVIDENCE that Defendant committed prior act)
NYS Distinction: Proving Past Crimes
Prosecution must produce CLEAR AND CONVINCING evidence that defendant committed the prior act.
Pragmatic Considerations: MIMIC Evidence
1: Court must weigh probative value vs. prejudice.

2: Court must issue limiting instruction.

3: Upon request, prosecution must give pretrial notice of intent to use MIMIC evidence.
Special Rule: Past Crimes and Sexual Assault
"Once a rapist, always a rapist"

In any case alleging sexual assault or child molestation, the prosecution may offer evidence of the defendant's prior sexual assault for the purpose of proving PROPENSITY to commit sexual assault.
NYS Distinction: Past Crimes and Sexual Assault
No use of past acts to prove propensity. No exception for sexual assault.
Rule: Similar Occurrences--Accident History
Generally INADMISSIBLE

May be ADMISSIBLE to prove:
1) fraudulent scheme or plan
2) causation
Rule: Similar Occurrences--Accidents Caused by Same Event or Condition
Generally INADMISSIBLE

May be admissible if (1) occuring under substantially similar circumstances in order to show:
2) existence of a dangerous condition
3) causation
4) prior notice of a dangerous condition
Rule: Similar Occurrences--Comparable Sales
The selling price of comparable propers is ADMISSIBLE as evidence of VALUE.
Rule: Similar Occurrences--Industrial Custom
Evidence as to how others in the same trade or industry have acted in the recent past is ADMISSIBLE as evidence of the appropriate standard of care.
Define: Judicial Notice
Recognition of a fact as true without formal presentation of evidence.
General Rule: Judicial Notice
May take notice of:
1: matters of common knowledge in jurisdiction;
2: matters capable of easy verification from unquestionable sources.

May take notice at ANY time (including appeal)

Notice is conclusive in CIVIL cases. NOT conclusive in CRIMINAL.
General Rule: Authentication of Documentary Evidence
The party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be.
Methods of Authenticating Writings
1: witness with personal knowledge

2: lay, expert, or jury handwriting comparison

3: Ancient Document Rule--if older than 20 years and facially free of suspicion

4: Solicited Reply Doctrine
Define: Ancient Document Rule
1: at least 20 years old.
2: facially free of suspicion
3: found where it would be expected
NYS Distinction: Ancient Document Rule
Must be at least 30 years old.
List: Self-Authenticating Documents (7)
1: official publications
2: certified copies of public or private documents on fiel in public office
3: newspapers/periodicals
4: trade inscriptions and labels
5: acknowledged document
6: commercial paper
7: certified business records
Define: certified business records
Certified by:
1: someone within the business
2: who knows how records are regularly made
3: and that these documents were made in the regular way
4: at or about the time of the event recorded.
Rule: Authentication of Photographs as Demonstrative Evidence
If purpose is to illustrate testimony can be authenticated by witness as a fair and accurate representation.
Rule: Authentication of Photographs as "Silent Witness"
1: camera was properly installed and working
2: film was properly removed and developed
3: film was not tampered with (establish chain of custody)
Best Evidence Rule
If a party seeks to prove the CONTENTS of a writing, the party must either produce the writing or provide an acceptable excuse for its absence.

Only if the Court accepts the excuse may the party use secondary evidence to prove content.
Rule: Original Writings and Duplicates
A duplicate is admissible to the same extent as the original UNLESS

1: genuine question about authenticity; OR
2: it would be unfair to admit the duplicate.
NYS Distinction: Original Writings and Duplicates
Duplicates are acceptable substitutes ONLY if made in the REGULAR COURSE OF BUSINESS.

(not for litigation purposes)
Rule: Excuses to Best Evidence Rule
Establish by PREPONDERANCE OF THE EVIDENCE that original

1: is lost or cannot be found with due dilligence
2: was destroyed without bad faith
3: cannot be obtained by legal process
Rule: Escapes from Best Evidence Rule
1: voluminous records presented through summary
2: certified public records
3: collateral documents (unimportant to issues at stake)
Rule: Requirements for Witness Competency
1: witness MUST have personal knowledge

2: witness must take an oath, meaning:
a) understand obligation to tell the truth
b) promise to tell the truth
NYS Distinction: Testimony by Children
child may testify under oath if the child understands the obligation

CIVIL cases: all witnesses including children must take oath

CRIMINAL cases: a child under age 9 who CANNOT understand the oath may give unsworn testimony (requires corroboration)
Rule: Testimony by Children
A child may testify so long as the child understands the obligatoin to tell the truth and promises to tell the truth.
Rule: Dead Man's Statute
NO FEDERAL DEAD MAN'S STATUTE

***only if they indicate it applies***

Rule: In a civil action, an interested party may not
testify against a dead party about communications with the dead party.

EXCEPT if:
1: decedents representative does not object
2: decedent's representative testifies about the transaction
3: decedent's testimony is introduced
NYS Distinction: Dead Man's Statute
Same as basic dead man's statute.

Accident EXCEPTION: in an accident based on negligence, the surviving party MAY testify about the facts of the accident but NOT about conversations with the decedent.
Rule: Leading Questions
NOT allowed on DIRECT examination

ALLOWED on cross-examination.

Allowed on direct examination for:
1: preliminary introductory matters
2: youthful or forgetful witness
3: hostile witness
4: adverse party or individual under control of adverse party
Rule: Present Recollection Refreshed
A witness MAY NOT read from a prepared memorandum.

A witness MAY be shown anything that will jog his memory.

Safeguards:
1: Opposing party may inspect
2: may use it on cross
3: may introduce it into evidence.
Rule: Past Recollection Recorded (Hearsay Exception)
A writing MAY be read to the jury if:
1: witness once had personal knowledge
2: witness now forgets
3: writing was made or adopted by witness
4: made when the event was fresh in witness's memory
5: witness can attest that when made, the writing was accurate.
Method: WITNESS may read, but NOT show to jury. OPPOSING PARTY may introduce as EXHIBIT
NYS Distinction: Past Recollection Recorded
Party using a recorded recollection MAY introduce it to the jury.
Rule: Lay Witness Opinion Testimony
Lay Opinion testimony is ADMISSIBLE if it is

1: RATIONALLY BASED on the witness's perception (personal knowledge)

2: HELPFUL to the jury.
Rule: Expert Witness Opinion
Witness may ONLY testify as an expert IF:

1: witness is QUALIFIED by education or experience

2: subject matter where scientific, technical, or specialized knowledge will be helpful

3: opinion has a PROPER BASIS

4: opinion is RELIABLE
Rule: Proper Basis of Expert Witness Opinions
1: based on a "reasonable degree of probability or reasonable certainty"

2: based on:
a) expert's personal knowledge
b) evidence already in the trial record
c) facts outside the record, but ONLY if those facts are of a type reasonably relied on by experts in the particular field.
Rule: Reliability of Expert Witness Opinions
1: expert has used reliable methods

2: expert has applied those methods to the particular facts at issue
Rule: Reliability of Scientific Evidence
Ask questions such as:
1: has the methodology been TESTED?
2: are there known rates of ERROR
3: has the methodology been subjected to PEER REVIEW
4: has the methodology been GENERALLY ACCEPTED
NYS Distinction: Reliability of Scientific Evidence
Has the methodology been generall accepted by the relevant professional community?
Rule: Opinion Testimony and Ultimate Issues
Opinion testimony IS ADMISSIBLE even if it addresses the ultimate issue in the case.

Exception (federal only): expert witness may NOT testify that defendant did or did not have the requisite mental state.
Rule: Learned Treatise Rule
If treatise is AUTHORITATIVE (established by expert witness, opponent concession, or judicial notice), THEN

1: Treatise may be used on DIRECT or CROSS examination

2: Treatise may be read to the jury as SUBSTANTIVE evidence

3: Treatise may NOT be introduced as an exhibit and shown to the jury.
NYS Distinction: Learned Treatise Rule
On DIRECT: Treatise may by used only to show the basis of the expert's testimony, NOT as SUBSTANTIVE evidence.

On CROSS: may only be used to impeach, NOT as SUBSTANTIVE evidence. May only be used if opponent's expert RELIED on the treatise or ACKNOWLEDGED its authoritativeness.
Rule: Scope of Cross-Examination
Cross-Examination is a right.

Scope includes:
1: all matters within the scope of direct examination
2: matters that affect the witness's credibility
Define: Credibility
whether a witness is believable.

Rests on perception, memory, and honesty.
Define: intrinsic impeachment
asking witness questions on cross-examination
Define: extrinsic impeachment
impeachment through outside evidence
Rule: Prior Inconsistent Statements
MAY be used to impeach a witness, but not for the truth of the prior statements.

EXCEPTION: may be used also for truth if the statement was made:
1: orally under oath; or
2:as part of a formal hearing, proceeding, trial, or deposition.
NYS Distinction: Prior Inconsistent Statements
Prior Inconsistent Statements may ONLY EVER be used to IMPEACH, even if given under oath or in a formal proceeding.
Rule: Explaining Prior Inconsistent Statements
A witness being impeached MUST be given an opportunity to explain or deny the prior inconsistent statement.

Timing is flexible, inconsistent statement may be established through extrinsic evidence so long as witness can return to explain.

EXCEPTION: if witness is opposing party, NO need to give opportunity to explain.
NYS Distinction: Explaining Prior Inconsistent Statements
A witness must be given a chance to explain a prior inconsistent statement on the stand.

It must therefore be raised on CROSS BEFORE it can be established EXTRINSICALLY
Rule: Impeachment through Evidence of Bias
Bias may ALWAYS be proven by extrinsic evidence.

Witness generally SHOULD be confronted with alleged bias first.
Rule: Impeachment through Evidence of Sensory Deficincies
INTRINSIC impeachment is NOT required.

EXTRINSIC evidence is allowed.
Rule: Impeachment through Character Evidence for Truthfulness
A party may impeach a witness by calling ANOTHER WITNESS to testify to the target witness's bad character for veracity.

Rules on Reputation, Opinion, and Specific Acts apply.
Rule: Impeachment through evidence of past convictions
Conviction (or release from prison if later) MUST be within 10 years

Conviction for crimes of dishonnesty or false statement is ADMISSIBLE

Other crimes:
Misdemeanor: INADMISSIBLE
Felony: admissible if PROBATIVE value (for VERACITY) outweighs the risk of unfair PREJUDICE to a party.
Rule: Conviction Evidence--Balancing Probative Value and Prejudice
Conviction is PROBATIVE if:
1: seriousness
2: relation to trust and deception

Conviction is PREJUDICIAL if:
1: inflammatory
2: similar to currently charged offense
NYS Distinction: Impeachment through Past Convictions
A witness may be impeached with a conviction for any crime.

When the witness is a criminal defendant, the court must balance prejudice and probative value in a pre-trial SANDOVAL hearing.
Define: Sandoval Hearing
Pre-Trial hearing to determine the prejudicial effect and probative value (and accordingly admissibility) of a defendant's past convictions for IMPEACHMENT evidence.
Rule: Impeachment through Bad Acts other than Convictions
A witness may be asked about prior bad acts if they relate to TRUTHFULNESS.

Prior bad acts may be established through INTRINSIC evidence only. May only question.

Must have a good faith basis that prior bad acts occurred.
NYS Distinction: Impeachment through Bad Acts other than Convictions
A witness may be asked about prior bad acts that show witness's MORAL TURPITUDE (even if unrelated to truthfulness)
Rule: Impeachment through Contradiction
A witness may be impeached by showing a lie or mistake during direct testimony.

If the issue is SIGNIFICANT to the case: may be proved by EXTRINSIC evidence.

If the issue is COLLATERAL: may only be proved by INTRINSIC evidence.
Rule: Impeachment of Own Witness
ANY party may impeach ANY witness
NYS Distinction: Impeachment of own Witness
A party "vouches" for witness credibility. Ordinarily may NOT impeach own witness.

Exception:
If current testimony is AFFIRMATIVELY DAMAGING, may impeach with a prior inconsistent statement:
1: in writing and signed by the witness
2: made in oral testimony under oath.
Rule: Timing of Witness Rehabilitation
Only AFTER credibility has been impeached.

Prior rehabilitation is improper BOLSTERING.
Rule: Prior Witness Statements of Identification
A prior statement of identification is admissible even if witness has not been impeached.

Prior identification is SUBSTANTIVE evidence (hearsay exception.

MUST be made by a TRIAL witness subject to CROSS
NYS Distinction: Prior Witness Statements of Identification
No prior identification testimony in CIVIL cases.
Rule: Witness Rehabilitation through Character Evidence
If character for truthfulness has been attacked (through bad character evidence, convictions, or bad acts), a party MAY introduce character evidence for truthfulness.

Character evidence rules for reputation, opinion, and specific acts apply.
May a defendant who takes the stand claim Fifth Amendment Protection?
NO

The decision to testify waives the Fifth Amendment
Define: Hearsay
Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing,
offered into evidence to prove the truth of the matter asserted.

Hearsay evidence must be excluded upon appropriate objection
UNLESS the statement falls under one of the recognized exceptions to the hearsay rule.
May a defendant's acquittal in a criminal case be introduced as evidence in a subsequent civil case?
NO

Acquittal is irrelevant to a civil action as the burden of proof is different.
Rule: Prior Consistent Statements
Admissible to REHABILITATE if:
1: consistent with trial testimony
2: impeachment has suggested a motive to lie
3: prior statement pre-dates the motive to lie

A prior consistent statement introduced to REHABILITATE is ALSO SUBSTANTIVE evidence (hearsay exception)
NYS Distinction: Prior Consistent Statements
Admissible in NY ONLY to REHABILITATE
Rule: Evidence and Diversity Cases
A Federal Court in Diversity will apply state rules of evidence for:

1: burdens of proof and presumptions
2: Dead Man's Statutes
3: Privileges
Recognized Privileges (Majority)
1: Attorney-Client
2: Husband-Wife
3: Priest-Penitent
4: Psychotherapist-Patient
5: Doctor-Patient (Majority, but NOT Federal)
NYS Distinction: Recognized Privileges
Five Majority Privileges, PLUS

1: social worker-client
2: reporter-source
Elements: Attorney-Client Privilege
Protects:
1: any communciation
2: between attorney and client (or their representatives)
3: so long as it is CONFIDENTIAL
4: and for the purpose of LEGAL ADVICE
5: unless waived or exception
Rule: Attorney-Client Privilege and Joint Clients
If two or more clients witha c ommon interest consult the same attorney, their communications with counsel concerning the common interest are PRIVILEGED as to THIRD PARTIES.

IF they later have a dispute with each other, privilege DOES NOT APPLY as BETWEEN THEM.
Rule: Who may waive Attorney-Client Privilege
ONLY the client
Rule: Subject Matter Waiver and Attorney Client Privilege
A voluntary waiver will also waive the privilege to other communications if:
1: partial disclosure is intentional
2: same subject matter
3: fairness requires communications to be considered together
Rule: Inadvertent Waiver and Attorney-Client Privilege
Inadvertent disclosure is not waiver if privilege holder:
1: took reasonable steps to PREVENT disclosure
2: took reasonable steps to RECTIFY disclosure
Rule: Exceptions to Attorney-Client Privilege
1: FUTURE crime or Fraud
2: Client put the legal advice in issue (as defense)
3: Attorney-Client Dispute
Elements: Doctor-Patient Privilege
1: ANY communication or information
2: acquired by a doctor from a patient
3: that is CONFIDENTIAL
4: for the purpose of MEDICAL TREATMENT

***In FEDERAL court NOT in DIVERSITY, applies ONLY to PSYCHOTHERAPISTS***
Elements: Spousal Communications Privilege
1: Applies to communications between married spouses (at time of communication)
2: that are CONFIDENTIAL
3: may be waived ONLY by BOTH spouses
Elements: Spousal Testimony Privilege
1: ONLY in CRIMINAL cases
2: covers TESTIMONY against a spouse
3: so long as CURRENTLY married
4: may be waived by witness spouse
Rule: Exceptions to Spousal Privileges
1: Future Crime or Fraud
2: Destructive of Family Unit
NYS Distinction: Spousal Privileges
NY has NO Spousal TESTIMONY Privilege.

Communications Privilege ONLY.
Rule: Non-Hearsay Purposes
A statement is not hearsay if the PURPOSE of introducing it is:
1: IMPEACHMENT
2: LEGALLY OPERATIVE words
3: to SHOW EFFECT on person who heard or read the statement
4: circumstantial evidence of speaker's STATE OF MIND
Rule: Admissibility of Prior Witness Statements
Generally HEARSAY and INADMISSIBLE, except:

1: statement of identification
2: inconsistent statement (a) under oath and (b) during a formal proceeding
(NY: ONLY to IMPEACH)
3: consistent statement to (a) rebut accusation of motive to lie and (b) statement was made before motive arose
(NY: ONLY to REHABILITATE)
Rule: Party Admissions
Any Statement by a PARTY is ADMISSIBLE if it is offered AGAINST the party (by the other side).
Rule: Vicarious Party Admissions
A statement by:
1: an agent or employee of a PARTY
2: is ADMISSIBLE
3: if it CONCERNS a matter WITHIN the SCOPE of the agency/employement
4: was made DURING agency/employment
NYS Distinction: Vicarious Party Admissions
Applies ONLY to agents/employees with SPEAKING AUTHORITY
Define: Unavailability for Hearsay Exception Purposes
Grounds:
1: privilege
2: absence from jurisdiction
3: illness or death
4: lack of memory (not NYS)
5: stubborn refusal to testify (not NYS)
NYS Distinction: Unavailability for Hearsay Exception Purposes
1: privilege
2: absence from jurisdiction
3: illness or death
4: 100 miles or more from courthouse (civil only)
5: declarant is a doctor (civil only)
Elements: Former Testimony Hearsay Exception
1: UNAVAILABLE
2: prior statement in PROCEEDING or DEPOSITION
3: opposing party had OPPORTUNITY and MOTIVE (similar relevance) to CROSS-EXAMINE when first made
NYS Distinction: Former Testimony Hearsay Exception
does NOT apply to prior statements in SUPPRESSION HEARINGS
Rule: Forfeiture by Wrongdoing Hearsay Exception
out of court statement may be offered AGAINST a party who
1: INTENTIONALLY
2: WRONGFULLY
3: made declarant UNAVAILABLE
Rule: Statement Against Interest Hearsay Exception
1: declarant is UNAVAILABLE
2: statement is against pecuniary, propriatary, or penal interest

In CRIMINAL cases: statements against PENAL interest but be supported by corroborating circumstances.
Rule: Dying Declaration Hearsay Exception
1: declarant UNAVAILABLE (need NOT actually be DEAD)
2: made under a belief of CERTAIN and IMPENDING DEATH
3: statement concerning CAUSE or CIRCUMSTANCES of impending death

***exception is available in civil cases (not NYS) or criminal homicide)***
NYS Distinction: Dying Declarations
ONLY applicable in CRIMINAL HOMICIDE cases
ergo, declarant must be dead
Rule: Spontaneous Utterance Hearsay Exception
1: statement concerns a STARTLING event
2: and was made while still UNDER the STRESS caused by the event
Rule: Present Sense Impression Hearsay Exception
1: statement describes an event
2: and is made WHILE the event is occurring or IMMEDIATELY thereafter
NYS Distinction: Present Sense Impression Hearsay Exception
requires CORROBORATION
Rule: Then-Existing mental, Emotion, or Physical condition Hearsay Exception
permits admission of:
1: a contemporaneous statement
2: concerning the declarants THEN existing (a) physical condition or (b) state of mind
3: NOT including statement of MEMORY or BELIEF about at past condition
4: BUT INCLUDING statements of FUTURE INTENT
NYS Distinction: Then-Existing mental, Emotion, or Physical condition Hearsay Exception
1: for a lay statement regarding physical condition, declarant must be UNAVAILABLE

2: statement of FUTURE INTENT to prove the conduct of a third person requires
a) CORROBORATION (of connection between declarant and 3rd person)
b) declarant is UNAVAILABLE
Rule: Statements for Obtaining Medical Treatment/Diagnosis Hearsay Exception
1: made for the purpose of DIAGNOSIS or TREATMENT
2: concerning (a) past symptoms (b) present symptoms or (c) general cause of condition

3: BUT NOT (a) statments of fault or intention
Rule: Business Records Hearsay Exception
Permits admission of:
1: business RECORDS
2: made in the REGULAR COURSE of business
3: that business REGULARLY KEEPS
4: made CONTEMPORANEOUSLY
5: containing
a) information OBSERVED by employees
b) information subject to ANOTHER hearsay exception
Rule: Foundation for Business Records Hearsay Exception
Establish the elements of the exception by:

1) live testimony
2) affidavit
NYS Distinction: Foundation for Business Records Hearsay Exception
Use of an AFFIDAVIT to certify the elements of the BUSINESS RECORDS exception is ONLY permissible in CIVIL cases.
Rule: Hearsay and Confrontation Clause
In a CRIMINAL case, the PROSECUTION may not offer TESTIMONIAL HEARSAY unless the right to cross-examination is satisfied by:
1: prior opportunity to cross (former testimony)
2: can cross at trial (prior statement of trial witness
3: right forfeited through witness tampering
What Hearsay is TESTIMONIAL?
TESTIMONIAL:
1: grand jury testimony
2: statements in police interrogation regarding past events
3: police reports

NOT TESTIMONIAL:
1: statements in police interrogation to enable assistance in an ongoing emergency
2: business records
Rule: Preliminary Procedural Considerations Decided by JURY
Jury decides questions of CONDITIONAL RELEVANCE
1: whether a witness has PERSONAL KNOWLEDGE
2: whether an exhibit is AUTHENTIC
3: whether Defendant committed prior bad act introduced as MIMIC evidence
Rule: Preliminary Procedural Considerations Decided by JUDGE
Judge decides ADMISSIBILITY
1: whether testimony is HEARSAY
2: whether communication is PRIVILEGED
3: whether an expert is QUALIFIED
List: Hearsay Exceptions Requiring Unavailablity
Former Testimony
Statement Against Interest
Dying Declaration
Statement of Personal or Family History
Statement Offered Against Party who Procured Witness's Unavailability
Statements that are NOT Hearsay Under the Federal Rules
(just not in the category, not an exception)
Prior Statements by a Witness
a) inconsistent and under oath
b) consistent after impeachment
c) identification
Party Admissions