Barbri Ny Evidence (Lindsay)

Front 1

Three main reasons for inadmissibility when probative value is balanced against pragmatic concerns.

Back 1

* Prejudice
* Confusion (confusion of issues, misleading jury)
* Delay (waste of time, undue delay, unduly cumulative)

Front 2

When can evidence of liability insurance be admissible?

Back 2

To show ownership or control (if controverted) or on cross if door opened.

Front 3

When should a judge give a limiting instruction?

Back 3

When evidence is admissible for one purpose, but not for another.

Front 4

What are subsequent remedial measures inadmissible to prove? Any exceptions?

Back 4

Neglience, culpable conduct, product defect, need for warning. Exceptions: ownership and control, feasability of safer condition (if in issue).

NY Exception: SRMs after a mfg defect are admissible for a products liability suit

Front 5

Settlements: what's inadmissible and what are exceptions?

Back 5

Settlements, offers to settle, statements made in settlement conference. Exception: to show witness bias (JudyCorp gave you money, or pre-claim offers to settle).

Front 6

How are gratuitous offers to settle different from other gratuitous offers?

Back 6

Offers to settle before a claim is made ("I'll pay if you don't sue") are admissible, but offers to pay medial bills ("Oh, you poor man, let me pay for your broken coccyx.") are not.

Front 7

What are the rules on the admissibility of pleas?

Back 7

* Withdrawn guilty pleas: Not admissible in Fed, admissible in NY.
* Offers to plea guilty: Not admissible
* Nolo contendre (no contest) pleas: not admissible
* Statements of fact during above: not admissible

Front 8

T/F: In general, character evidence is admissible to prove propensity. Exception?

Back 8

False, unless a criminal Def wants to show his good character for a trait. Then the door is opened.

Front 9

T/F: In general, character evidence is not admissible to prove propensity. Exception?

Back 9

True, unless a criminal Def wants to show his good character for a trait.

Front 10

What form of negative CHARACTER evidence can be elicited from character witnesses on cross? (What catchphrases can you use on cross?)

What kind of character evidence can't be used?

Back 10

Fed: Reputation ("Have you heard....?") or Opinion ("Did you know...)

You can't prove the underlying specific prior acts, only ask if the W has heard or knew about them. EXCEPTION: crimes in NY, if relevant to the character trait at issue.

Front 11

Can you use specific prior acts to rebut character evidence on cross? How do you ask the question? How about crimes?

Back 11

Yes, but you can't offer proof. You can only ask the witness about them. In NY only as to how they affect the def's reputation ("Have you heard...?"), but in Fed, the witness's opinion ("Did you know...?") or community reputation of def.

In NY only, you can prove convictions IF they reflect negatively on the trait in issue.

Front 12

When, where and how can you use the CHARACTER EVIDENCE about the victim of a crime?

Back 12

In Fed court, you can use rep and opinion character evidence about the victim to show that they were the first aggressor.

NOT NY. (Only to show def's state of mind of reasonable belief that victim would use force)

Front 13

NY exceptions to the Rape Shield laws

Back 13

You can use evidence of prostitution within the last 3 years.

Front 14

When can character evidence be used in a civil case?

Back 14

When character is an element of the action. (Negligent entrustment, negligent hiring, defamation)

Front 15

If you are trying to use habit evidence, what to things do you have to show? What are the NY exceptions?

Back 15

You have to show frequency and particularity.

In NY, you can show habit evidence as to a business, but not personal negligence EXCEPT for misuse of a product in product liability cases.

Front 16

What are the valid ways to use prior crimes for non-character evidence?

Back 16

MIMIC

* motive
* intent
* mistake (lack of), or lack of accident
* ID
* common scheme or plan

Front 17

What level of proof does the prosecutor need to show MIMIC evidence? What are the bonus point considerations?

Back 17

Fed: Preponderance
NY: Clear and Convincing evidence

BONUS:
* always do probative/practical balancing
* can request limiting instruction (don't use this for prosensity)
* party using it must give pre-trial notice

Front 18

Can you use propensity evidence against the priors of sex criminals?

Back 18

Fed: yes, NY: No

Front 19

What is the ancient document rule?

Back 19

Old doc that is found in the place you would expect, not facially suspicious, and is at least 30 (fed) or 20 (NY) years old is self authenticating.

Front 20

What documents are self-authenticating?

Back 20

Official docs (gov't pamphlets)
Certified copies of private, filed docs (deeds, mortgages)
Newspapers / periodicals
labels
Notarized docs
Commercial paper (check, promissory notes)
Certified Business records (by custodian of records)

Front 21

What is the best evidence rule?

Back 21

If you can't produce a doc, you can have a witness talk about the contents, if you have a good reason for its absence.

Front 22

What's the rule for using duplicates as best evidence?

Back 22

Fed: as long as it isn't unfair or there isn't a genuine question as to authenticity.
NY: anything produced in the general course of business (almost anything except handwritten copies).

Front 23

What are good reasons for the best evidence rule?

Back 23

Lost, destroyed, can't be subpeonaed

Front 24

NY Rule for testimony of kids.

Back 24

A kid under the age of 9 who doesn't understand the oath can give unsworn testimony. Must be corroborated.

Front 25

What is the Dead Man Statute? What is the NY exception?

Back 25

In a civil action, an interested party can't give testimony against a dead party about communications or transaction with that party.

NY Exception: you can testify about the fact of an accident.

Front 26

For the hearsay exception for past recollections recorded, how can the hearsay be admitted into evidence? (NY & Fed).

Back 26

Fed: the contents can be read by the witness.

NY: The writing can also be admitted into evidence itself.

Front 27

What's the name and standard for testing the reliability of scientific evidence in NY? Federal?

Back 27

NY: Frye - is the method generally accepted by the relevent prof. community.

Fed: Daubert (factors) -
* are the rates of error known
* has the methodology been: tested
* subject to peer review
* generally accepted

Front 28

Can an expert testify as to the ultimate issue of mental state?

Back 28

NY: yes. Fed: no.

Front 29

Can an expert generally testify as to the "ultimate issue" in the case?

Back 29

yes, as long as the testimony is relevant.

Front 30

Is there a hearsay exception for learned treatises?

Back 30

Only Federal. In NY, you can use a treatise to cross only.

Front 31

Can a witness cite specific acts to impeach another witness's credibility?

Back 31

No! Only opinion (Fed) or and reputation (Fed and NY). The lawyer can do it when crossing the first witness, though. (But not prove those facts, only ask about them).

Front 32

What is the NY rule for bringing up past crimes to impeach a witness?

Back 32

Any witness, any crime.

Front 33

What is a Sandoval hearing?

Back 33

a special NY hearing to balance whether he provbative value of past criminal convictions on the issue of veracity (substantially?) outweigh risk of unfair prejudice.

Front 34

What is the Federal rule for use of past crimes to impeach?

Back 34

Crime must be:
* less than 10 years old (from release date or conviction) AND either
* a crime of dishonesty OR
* a felony where the probative value outweighs risk of unfair prejudice (def) or substantially outweighs it (witness)
* misdemeanors not admissible

In NY it's "any person, any crime"

Front 35

What, if any, prior bad acts can a witness be asked about for IMPEACHMENT purposes? (NY and Fed)

Back 35

Fed: bad acts that relate to truthfulness
NY: bad acts that relate to moral turpitude (criminal behavior)

Front 36

Can you impeach your own witness?

Back 36

Yes in Fed C.

Not in NY (unless you have a signed writing of prior sworn testimony). In a criminal trial, the witness must be affirmatively damaging to your case.

Front 37

What are the testimonial privleges in Fed Ct, CL, NY?

Back 37

attorney - client
spouse - spouse
priest - Papist
shrink - Papist

PLUS

CL: Doctor patient
NY: social worker (rape counselor) / client
reporter / confidential source

Front 38

What is the difference between spousal communications privilege and spousal immunity?

Back 38

Spousal communications = Comunications made during marriage.
Spousal = any testimony against current spouse. NOT RECOGNIZED IN NY

Front 39

What are the four non-hearsay purposes?

Back 39

If it's not to prove the truth of the matter asserted:

* Impeachment
* Verbal Acts (make K, bribe, perjury)
* Effect on Listener
* Speaker's state of Mind (to prove insanity, not the truth of the crazy talk)

Front 40

What are the hearsay exceptions that require declarant unavailability?

Back 40

Former teamster Whacked Stoolie Declarant
* Former testimony [F T, get it?]
* Wrongdoing (Forfeiture by) [whacking is wrong]
* Statement against interest [being a stoolie is against your interest in not being Murder One'd]
* Dying Declaration [and he died]

Front 41

Which exceptions to hearsay are not defendant on declarant unavailability

Back 41

PEPSIS

* Party admission
* Excited utterance
* Public or Business Records
* Statement of then-existing mental, emotional, or physical condition
* Impression (Present sense impression)
* Statement for purposes of medical treatment

Front 42

What is the NY rule for party admission by an agent?

Back 42

Agent must have speaking authority

Front 43

What things make declarant unavailable?

Back 43

PAILS

Privilege
Absence
Illness or Death

Fed only: Lack of Memory
Stubborn refusal

NY Only: Doctor, more than 100 miles from courthouse

Front 44

Define a present sense impression

Back 44

describes an event, made while event is occurring or immediately thereafter.
In NY, must be corroborated.

Front 45

What are the elements for Statement of Then-Existing mental, emotional, physical condition?

What are the NY distinctions?

Back 45

* contemporaneous statement
* concerting then-existing physical condition or state of mind
* not memory or belief about past condition
* does include statements of future intent (HIllman)

NY:
* also declarant must be unavailable if physical condition statement made to layperson
* future intent statement must be corroborated & declarant unavailable

Front 46

What's the NY distinction for statements made for medical treatment or diagnosis?

Back 46

Must not be to a trial expert physician

Front 47

Under the Federal and NY rules, what kinds of statements in Public records are covered by a hearsay exceptions:

Back 47

Fed: Observations and investigatory conclusions (not cops in a criminal case)
NY: Observations

Front 48

How do you lay a foundation for the business records exception?

Back 48

* Have a witness (custodian of records) testify
* written affidavit (in NY, civil and non-party only)

Front 49

What are the three broad instances where you can use prior witness testimony to impeach or rehabilitate and what is the main requirements for all three?

Back 49

The witness in question must testify.

Prior statement of ID (from same trial)
Prior inconsistent statement (if other side had a chance to cross sworn testimony or depo)
Prior consistent statement (to rehab) where the statement came before alleged motive to lie

Front 50

What is the Crawford rule (confrontation clause rule)?

Back 50

Prosecution may not offer testimonial evidence that D can't cross.

Front 51

Examples of testimonial evidence (for Crawford)

Back 51

* Police reports
* statements in response to police interrogation (if purpose was to prove events to later prosecution or to gather evidence)
* Grand jury testimony

Non-testiomnial:

* statements made to police to enable police assistance to meet ongoing emergency

Front 52

What's the threshold event that has to happen for character evidence to be used (outside of impeachment) at a trial?

Back 52

The defendant has to put his character at issue by bringing a positive character witness. (Can't be used at a civil action unless element of tort)