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143 Cards in this Set
- Front
- Back
Define: Relevance
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any tendency to make a material fact more probable or less probable
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Pragmatic considerations that can outweigh probative value
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1: unfair prejudice
2: confusion 3: waste of time |
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General Rule: Liability Insurance
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inadmissible for the purpose of proving fault or the ability to pay, but may be admissible for other purposes
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General Rule: Multiple Purposes
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if evidence has multiple purposes and one or more is inadmissible, judge should give a limiting instruction
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Define: Bias
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some relationship between a witness and a party that could cause the witness to lie
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Subsequent Remedial Measures are INADMISSIBLE for:
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proving:
Negligence Culpable Conduct Product Defect (manufacturing or design) Need for Warning |
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Subsequent Remedial Measures are ADMISSIBLE for:
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proving:
Ownership Control Feasibility of a Safer Condition (if disputed) (not of safer design) |
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NYS Distinction: Subsequent Remedial Measures
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SRMs are ADMISSIBLE in a products liability action based on strict liability for a manufacturing defect
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General Rule: Settlements
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If there is a disputed claim:
Settlements; Offers to Settle; Statements Made in Settlement Negotiations; are all INADMISSIBLE to prove liability. |
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General Rule: Hospital/Medical Expenses
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Offers to pay hospital/medical expenses are inadmissible.
Note: does not include statements made in conjunction with such a statement. |
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General Rule: Pleas and Plea Discussions
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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. |
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NYS Distinction: Pleas
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A withdrawn guilty plea is admissible in subsequent civil cases.
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Define: Character Evidence
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refers to a person's general disposition or propensity.
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Character Evidence: Possible Purposes
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1: Propensity
2: Veracity 3: Non-propensity Purposes 4: trait as an element of claim or defense |
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General Rule: Character Evidence
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INADMISSIBLE to prove Propensity.
ADMISSIBLE to prove other purposes. |
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Rule: Propensity Evidence Offered by Defendant
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Defendant MAY offer evidence of good character for a relevant trait.
Prosecution may then rebut with otherwise inadmissible character evidence. |
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Form of Character Evidence
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Reputation or Opinion.
No Specific Acts |
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NYS Distinction: Form of Character Evidence
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Reputation evidence only.
NO opinion evidence. |
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Rule: in Rebutting Defendant's Character Evidence, Prosecution may...
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1: Call its own witnesses to provide Reputation or Opinion (not in NYS) evidence.
2: cross examine Defendant's character witnesses regarding specific acts. |
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Form of Cross-Examining on Specific Acts
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Opinion: "did you know...."
Reputation: "have you heard...." |
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NYS Distinction: Rebutting Character Evidence
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Prosecution may rebut by providing that defendant was CONVICTED of a crime that reflects on the trait at issue.
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Special Rule: Character Evidence and Self Defense
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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. |
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NYS Distinction: Character Evidence and Self Defense
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Evidence of the victim's character is INADMISSIBLE to prove that victim was first aggressor.
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Special Rule: Character Evidence and Rape
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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. |
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NYS Distinction: Character Evidence and Rape
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Victim's conviction for prostitution w/in the past 3 years is ADMISSIBLE.
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General Rule: Character Evidence and Civil Cases
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Generally INADMISSIBLE to prove PROPENSITY in civil cases.
Except where essential element of claim: (1) negligent hiring; (2) defamation. |
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Special Rule: Habit Evidence
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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. |
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NYS Distinction: Habit Evidence
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Relating to business, trade, or profession: ADMISSIBLE
Relating to personal habit on issue of due care in negligence: INADMISSIBLE. |
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General Rule: Past-Crimes for Non-Character Purpose
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INADMISSIBLE to prove propensity.
ADMISSIBLE to prove something specific about the charged crime (MIMIC: motive, intent, mistake, identity, common scheme/plan) |
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Define: MIMIC Evidence
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Motive
Intent Mistake Identity Common Scheme or Plan |
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Rule: Proving Past Crimes for MIMIC Purposes
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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) |
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NYS Distinction: Proving Past Crimes
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Prosecution must produce CLEAR AND CONVINCING evidence that defendant committed the prior act.
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Pragmatic Considerations: MIMIC Evidence
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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. |
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Special Rule: Past Crimes and Sexual Assault
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"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. |
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NYS Distinction: Past Crimes and Sexual Assault
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No use of past acts to prove propensity. No exception for sexual assault.
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Rule: Similar Occurrences--Accident History
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Generally INADMISSIBLE
May be ADMISSIBLE to prove: 1) fraudulent scheme or plan 2) causation |
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Rule: Similar Occurrences--Accidents Caused by Same Event or Condition
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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 |
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Rule: Similar Occurrences--Comparable Sales
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The selling price of comparable propers is ADMISSIBLE as evidence of VALUE.
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Rule: Similar Occurrences--Industrial Custom
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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.
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Define: Judicial Notice
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Recognition of a fact as true without formal presentation of evidence.
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General Rule: Judicial Notice
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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. |
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General Rule: Authentication of Documentary Evidence
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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.
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Methods of Authenticating Writings
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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 |
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Define: Ancient Document Rule
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1: at least 20 years old.
2: facially free of suspicion 3: found where it would be expected |
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NYS Distinction: Ancient Document Rule
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Must be at least 30 years old.
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List: Self-Authenticating Documents (7)
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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 |
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Define: certified business records
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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. |
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Rule: Authentication of Photographs as Demonstrative Evidence
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If purpose is to illustrate testimony can be authenticated by witness as a fair and accurate representation.
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Rule: Authentication of Photographs as "Silent Witness"
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1: camera was properly installed and working
2: film was properly removed and developed 3: film was not tampered with (establish chain of custody) |
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Best Evidence Rule
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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. |
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Rule: Original Writings and Duplicates
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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. |
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NYS Distinction: Original Writings and Duplicates
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Duplicates are acceptable substitutes ONLY if made in the REGULAR COURSE OF BUSINESS.
(not for litigation purposes) |
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Rule: Excuses to Best Evidence Rule
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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 |
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Rule: Escapes from Best Evidence Rule
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1: voluminous records presented through summary
2: certified public records 3: collateral documents (unimportant to issues at stake) |
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Rule: Requirements for Witness Competency
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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 |
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NYS Distinction: Testimony by Children
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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) |
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Rule: Testimony by Children
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A child may testify so long as the child understands the obligatoin to tell the truth and promises to tell the truth.
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Rule: Dead Man's Statute
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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 |
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NYS Distinction: Dead Man's Statute
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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. |
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Rule: Leading Questions
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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 |
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Rule: Present Recollection Refreshed
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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. |
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Rule: Past Recollection Recorded (Hearsay Exception)
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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 |
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NYS Distinction: Past Recollection Recorded
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Party using a recorded recollection MAY introduce it to the jury.
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Rule: Lay Witness Opinion Testimony
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Lay Opinion testimony is ADMISSIBLE if it is
1: RATIONALLY BASED on the witness's perception (personal knowledge) 2: HELPFUL to the jury. |
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Rule: Expert Witness Opinion
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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 |
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Rule: Proper Basis of Expert Witness Opinions
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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. |
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Rule: Reliability of Expert Witness Opinions
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1: expert has used reliable methods
2: expert has applied those methods to the particular facts at issue |
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Rule: Reliability of Scientific Evidence
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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 |
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NYS Distinction: Reliability of Scientific Evidence
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Has the methodology been generall accepted by the relevant professional community?
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Rule: Opinion Testimony and Ultimate Issues
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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. |
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Rule: Learned Treatise Rule
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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. |
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NYS Distinction: Learned Treatise Rule
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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. |
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Rule: Scope of Cross-Examination
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Cross-Examination is a right.
Scope includes: 1: all matters within the scope of direct examination 2: matters that affect the witness's credibility |
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Define: Credibility
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whether a witness is believable.
Rests on perception, memory, and honesty. |
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Define: intrinsic impeachment
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asking witness questions on cross-examination
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Define: extrinsic impeachment
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impeachment through outside evidence
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Rule: Prior Inconsistent Statements
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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. |
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NYS Distinction: Prior Inconsistent Statements
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Prior Inconsistent Statements may ONLY EVER be used to IMPEACH, even if given under oath or in a formal proceeding.
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Rule: Explaining Prior Inconsistent Statements
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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. |
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NYS Distinction: Explaining Prior Inconsistent Statements
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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 |
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Rule: Impeachment through Evidence of Bias
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Bias may ALWAYS be proven by extrinsic evidence.
Witness generally SHOULD be confronted with alleged bias first. |
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Rule: Impeachment through Evidence of Sensory Deficincies
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INTRINSIC impeachment is NOT required.
EXTRINSIC evidence is allowed. |
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Rule: Impeachment through Character Evidence for Truthfulness
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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. |
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Rule: Impeachment through evidence of past convictions
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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. |
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Rule: Conviction Evidence--Balancing Probative Value and Prejudice
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Conviction is PROBATIVE if:
1: seriousness 2: relation to trust and deception Conviction is PREJUDICIAL if: 1: inflammatory 2: similar to currently charged offense |
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NYS Distinction: Impeachment through Past Convictions
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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. |
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Define: Sandoval Hearing
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Pre-Trial hearing to determine the prejudicial effect and probative value (and accordingly admissibility) of a defendant's past convictions for IMPEACHMENT evidence.
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Rule: Impeachment through Bad Acts other than Convictions
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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. |
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NYS Distinction: Impeachment through Bad Acts other than Convictions
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A witness may be asked about prior bad acts that show witness's MORAL TURPITUDE (even if unrelated to truthfulness)
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Rule: Impeachment through Contradiction
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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. |
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Rule: Impeachment of Own Witness
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ANY party may impeach ANY witness
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NYS Distinction: Impeachment of own Witness
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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. |
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Rule: Timing of Witness Rehabilitation
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Only AFTER credibility has been impeached.
Prior rehabilitation is improper BOLSTERING. |
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Rule: Prior Witness Statements of Identification
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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 |
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NYS Distinction: Prior Witness Statements of Identification
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No prior identification testimony in CIVIL cases.
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Rule: Witness Rehabilitation through Character Evidence
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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. |
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May a defendant who takes the stand claim Fifth Amendment Protection?
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NO
The decision to testify waives the Fifth Amendment |
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Define: Hearsay
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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. |
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May a defendant's acquittal in a criminal case be introduced as evidence in a subsequent civil case?
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NO
Acquittal is irrelevant to a civil action as the burden of proof is different. |
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Rule: Prior Consistent Statements
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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) |
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NYS Distinction: Prior Consistent Statements
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Admissible in NY ONLY to REHABILITATE
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Rule: Evidence and Diversity Cases
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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 |
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Recognized Privileges (Majority)
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1: Attorney-Client
2: Husband-Wife 3: Priest-Penitent 4: Psychotherapist-Patient 5: Doctor-Patient (Majority, but NOT Federal) |
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NYS Distinction: Recognized Privileges
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Five Majority Privileges, PLUS
1: social worker-client 2: reporter-source |
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Elements: Attorney-Client Privilege
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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 |
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Rule: Attorney-Client Privilege and Joint Clients
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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. |
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Rule: Who may waive Attorney-Client Privilege
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ONLY the client
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Rule: Subject Matter Waiver and Attorney Client Privilege
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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 |
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Rule: Inadvertent Waiver and Attorney-Client Privilege
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Inadvertent disclosure is not waiver if privilege holder:
1: took reasonable steps to PREVENT disclosure 2: took reasonable steps to RECTIFY disclosure |
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Rule: Exceptions to Attorney-Client Privilege
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1: FUTURE crime or Fraud
2: Client put the legal advice in issue (as defense) 3: Attorney-Client Dispute |
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Elements: Doctor-Patient Privilege
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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*** |
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Elements: Spousal Communications Privilege
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1: Applies to communications between married spouses (at time of communication)
2: that are CONFIDENTIAL 3: may be waived ONLY by BOTH spouses |
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Elements: Spousal Testimony Privilege
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1: ONLY in CRIMINAL cases
2: covers TESTIMONY against a spouse 3: so long as CURRENTLY married 4: may be waived by witness spouse |
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Rule: Exceptions to Spousal Privileges
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1: Future Crime or Fraud
2: Destructive of Family Unit |
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NYS Distinction: Spousal Privileges
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NY has NO Spousal TESTIMONY Privilege.
Communications Privilege ONLY. |
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Rule: Non-Hearsay Purposes
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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 |
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Rule: Admissibility of Prior Witness Statements
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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) |
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Rule: Party Admissions
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Any Statement by a PARTY is ADMISSIBLE if it is offered AGAINST the party (by the other side).
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Rule: Vicarious Party Admissions
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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 |
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NYS Distinction: Vicarious Party Admissions
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Applies ONLY to agents/employees with SPEAKING AUTHORITY
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Define: Unavailability for Hearsay Exception Purposes
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Grounds:
1: privilege 2: absence from jurisdiction 3: illness or death 4: lack of memory (not NYS) 5: stubborn refusal to testify (not NYS) |
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NYS Distinction: Unavailability for Hearsay Exception Purposes
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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) |
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Elements: Former Testimony Hearsay Exception
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1: UNAVAILABLE
2: prior statement in PROCEEDING or DEPOSITION 3: opposing party had OPPORTUNITY and MOTIVE (similar relevance) to CROSS-EXAMINE when first made |
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NYS Distinction: Former Testimony Hearsay Exception
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does NOT apply to prior statements in SUPPRESSION HEARINGS
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Rule: Forfeiture by Wrongdoing Hearsay Exception
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out of court statement may be offered AGAINST a party who
1: INTENTIONALLY 2: WRONGFULLY 3: made declarant UNAVAILABLE |
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Rule: Statement Against Interest Hearsay Exception
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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. |
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Rule: Dying Declaration Hearsay Exception
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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)*** |
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NYS Distinction: Dying Declarations
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ONLY applicable in CRIMINAL HOMICIDE cases
ergo, declarant must be dead |
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Rule: Spontaneous Utterance Hearsay Exception
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1: statement concerns a STARTLING event
2: and was made while still UNDER the STRESS caused by the event |
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Rule: Present Sense Impression Hearsay Exception
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1: statement describes an event
2: and is made WHILE the event is occurring or IMMEDIATELY thereafter |
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NYS Distinction: Present Sense Impression Hearsay Exception
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requires CORROBORATION
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Rule: Then-Existing mental, Emotion, or Physical condition Hearsay Exception
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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 |
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NYS Distinction: Then-Existing mental, Emotion, or Physical condition Hearsay Exception
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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 |
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Rule: Statements for Obtaining Medical Treatment/Diagnosis Hearsay Exception
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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 |
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Rule: Business Records Hearsay Exception
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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 |
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Rule: Foundation for Business Records Hearsay Exception
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Establish the elements of the exception by:
1) live testimony 2) affidavit |
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NYS Distinction: Foundation for Business Records Hearsay Exception
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Use of an AFFIDAVIT to certify the elements of the BUSINESS RECORDS exception is ONLY permissible in CIVIL cases.
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Rule: Hearsay and Confrontation Clause
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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 |
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What Hearsay is TESTIMONIAL?
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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 |
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Rule: Preliminary Procedural Considerations Decided by JURY
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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 |
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Rule: Preliminary Procedural Considerations Decided by JUDGE
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Judge decides ADMISSIBILITY
1: whether testimony is HEARSAY 2: whether communication is PRIVILEGED 3: whether an expert is QUALIFIED |
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List: Hearsay Exceptions Requiring Unavailablity
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Former Testimony
Statement Against Interest Dying Declaration Statement of Personal or Family History Statement Offered Against Party who Procured Witness's Unavailability |
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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 |