Evidence

Front 1

Relevance: Overview

Back 1

Definition: Evidence is Relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence
The Basic Rule: All relevant evidence is admissible unless some rule applies or

Front 2

Relevance: General Exception

Back 2

The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations
Six Types of pragmatic considerations:
1) Danger of prejudice
2) Confusion of issues
3) Misleading the jury
4) Undue delay
5) Waste of time
6) Unduly cumulative
Remember: unfair prejudice, confusion, and waste of time
Exam Tip: Judges have wide discretion to balance probative value with pragmatic considerations and the determination will be fact specific. As a result, it is difficult to formulate MBE questions on this issue.

Front 3

Relevance: Policy Based Exclusions: General Rationales

Back 3

Balancing of relevance and pragmatic considerations and
Encouraging beneficial out-of-court conduct

Front 4

Relevance: Policy Based Exclusions: Liability Insurance

Back 4

a) Rule: Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving fault or the absence of fault
b) Exception: But such evidence may be admissible for some other relevant purpose, such as
1) proof of ownership or control if that issue is controverted (in dispute) or
2) for impeachment of a witness
c) Key Concept: Whether evidence is admissible will depend upon the purpose for which it is offered
To repeat: PURPOSE matters
d) Dual purpose evidence: When evidence is admissible for one purpose but inadmissible for another purpose, the judge should give the jury a limiting instruction telling the jury they should only consider the evidence for the admissible purpose and not the inadmissible purpose
e) Key Concept: Impeachment is the process of trying to show that a witness should not be believed
f) Key Concept: Bias means there is some relationship between the witness and a party that could cause the witness to lie. Evidence of a witness’s bias is almost always admissible

Front 5

Relevance: Policy Based Exclusions: Subsequent Remedial Measures (SRMs)

Back 5

a) Definition: repairs, design changes, or policy changes taken after an accident that could have prevented the accident
b) The Federal Rule: SRMs are inadmissible to prove
1) negligence
2) culpable conduct
3) product defect or
4) need for a warning
Rationale: encourage post accident repairs
c) The Exception: But such evidence may be admissible for some other, such as proof of
1) Ownership,
2) Control, or
3) Feasibility of a safer condition
If that issue is controverted
d) NY Distinction: In general, NY rule is the same as the federal rule except:
SRMs are admissible in a product liability action based on strict liability for a manufacturing defect

Front 6

Relevance: Policy Based Exclusions: Settlment in Civil Cases

Back 6

a) The Rule:
1) If there is a disputed claim
2) Then evidence
a) Settlements or
b) Offers to Settle or
c) Statements made in settlement discussions
3) Are inadmissible if offered to prove liability
b) Exception: may be admissible if offered to impeach a witness on the ground of bias
c) Rationale: Encourage settlements and full and frank discussions in the context of settlements
d) Need a disputed claim at the time of the settlement discussion – doesn’t have to be formal, but do need a claim
Need something to have to settle to have a settlement discussion and has to be disputed
Note in terminology:
1) If an objection is “sustained” the evidence is inadmissible
2) If an objection is “overruled” the evidence is admissible

Front 7

Relevance: Policy Based Exclusions: Offer to pay Medical or Hospital Expenses

Back 7

a) The Rule: Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is INADMISSIBLE to prove liability
b) Rationale: To encourage charity
c) Note: This rule does not include other statements made in connection with an offer to pay medical expenses – only offer or payment itself

Front 8

Relevance: Policy Based Exclusions: Pleas

Back 8

a) The Rule: The following are inadmissible against a defendant in a pending criminal litigation or in a subsequent civil case:
1) Offer to plead guilty
2) A withdrawn guilty plea
NY Distinction: Can’t use the guilty plea in the criminal case but it is Admissible in a subsequent civil case
3) Plea of no lo controtrary (no contest plea) – defendant say not fighting the charges so is convicted, without really admitted he did it
4) Statements of fact made during any of the above
b) Beware: A plea of guilty that is NOT withdrawn IS admissible against the defendant in subsequent litigation based on the same facts in both federal court and NY court

Front 9

Character Evidence: Overview

Back 9

a) Definition:
This refers to a person’s general disposition or propensity
For example: character traits of honest, dishonesty, peacefulness, violence, carefulness
Ask yourself: What purpose for which evidence is offered? Is this a criminal or civil case? What is the form of the evidence?
b) Purpose Matters:
1) Propensity: If evidence of person’s character trait is offered to show person has a “propensity” to act in a certain way
2) Veracity of a witness: If evidence of a witness’s character for truthfulness (or untruthfulness) is offered to impeach
3) Non-propensity purpose: If evidence of a person’s prior bad act is offered for some purpose other than proving propensity
4) Trait as an element: If evidence of a person’s character trait is offered because the trait itself is an element of the charge, claim, or defense
c) General Rule:
1) Character evidence is not admissible to prove propensity but
2) It is admissible for the other purposes

Front 10

Character Evidence in Criminal Cases: Defendant’s Character offered by defendant

Back 10

1) General Rule: Not admissible to show propensity
Rationale: fear jury misuse
2) Exceptions:
a) Defendant may introduce evidence of his own good character for a relevant trait. Rule against character evidence is to help defendants so if defendant wants to put character at issue, will let him
b) If defendant does so, prosecution can rebut with evidence of defendant’s bad character for the same trait
If open the door, let him, but allow prosecution to rebut
Note: on the bar, character traits will never be elements of a crime
3) The form of character evidence: When it is admissible, the proper methods are:
a) Federal: Reputation or Opinion
b) NY: Reputation ONLY
c) Not allowed: Specific acts

Front 11

Character Evidence in Criminal Cases: Defendant’s Character Offered by Prosecution to Rebut

Back 11

1) By calling its own witnesses to testify to defendant’s relevant character. Form:
a) Federal: Reputation or opinion
b) NY: Reputation ONLY
2) Cross-Examination:
Prosecutor can also cross examine defendant’s character witness by questioning their knowledge of specific acts by the defendant that are relevant to the character trait at issue. Form:
a) For opinion witnesses: Ask “Did you know…”
b) For reputation witnesses: Ask “Have you heard…”
Purpose: Purpose of this questioning is to test the witness’ knowledge and not to ask about that specific act
Good Faith Requirement:
Even though the prosecution is not proving the specific act, it must have a good faith basis to believe that the specific act took place
3) NY Distinction: Prosecution can rebut by proving defendant was convicted of a crime that reflects adversely on the character trait at issue – needs to be a relevant conviction connected to that character trait

Front 12

Character Evidence in Criminal Cases: Victim's Character of Self-Defense Case

Back 12

1) Federal Rule: Criminal defendant can offer evidence of victim’s violent character to prove the victim was the first aggressor
a) Form: Reputation or opinion
b) Prosecution rebuttal: 2 ways, by evidence of:
1) Victim’s good character for that trait or
2) Defendant’s bad character for that trait
2) NY Distinction: Evidence of the victim’s character is inadmissible to prove the victim was the first aggressor.
3) Special Rule for Defendant’s Knowledge of Victim’s Character for Violence
Defendant may offer evidence of his own knowledge of victim’s bad character of violence for the purpose of showing that he reasonably believed in the need to use self defense
Rationale: Relevant to show belief only
Form: Because this isn’t propensity, any form is allowed
NY Distinction: Follows the same rule, can introduce defendant’s knowledge of victim’s bad character for violence

Front 13

Character Evidence in Criminal Cases: Victim's Character in a Sexual Misconduct Case

Back 13

1) The (“Rape Shield”) Rule: In a case involving sexual misconduct, the defendant ordinarily may not introduce evidence of:
a) The victim’s reputation for promiscuity or
b) The victim’s prior sexual conduct
2) Rationales:
a) Promiscuity evidence has low probative value at this time and
b) Allowing that kind of evidence may discourage rape victims from coming forward.
3) Exceptions: Notwithstanding the general rule, a defendant may introduce:
a) Evidence of the victim’s other sexual activity with the defendant, but ONLY if the defense is consent
b) Evidence of the victim’s sexual activity with others but only to prove that someone other than the defendant was the source of physical evidence
Cannot be to prove that she consented!
c) Evidence required to be admitted by the defendant’s Due Process Rights
d) NY Distinction: Evidence of the victim’s conviction for prostitution within the past three years.
Trying to avoid those cases where victim claims rape when really its an issue that the prostitute wasn’t getting paid for consensual sex

Front 14

Character Evidence in Civil Cases

Back 14

a) The Rule: Character evidence is generally inadmissible to prove propensity in civil cases.
b) The Exception: Evidence of person’s character is admissible in civil action where such character is an essential element of a claim or defense. Only 2 situations:
1) Negligent hiring or entrustment
2) Defamation (libel/slander)
Any kind of character evidence is available to prove truth of the thing published

Front 15

Habitat Evidence

Back 15

a) The General Rule for Propensity Evidence:
Inadmissible to prove conduct on a particular occasion
b) The Habitat Exception: Habit of person (or routine of a business organization) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation
c) Definition: Habit is a repetitive response to a particular set of circumstances. 2 distinguishing circumstances:
1) Frequency
2) Particularity
Exam tip: on multiple choice question, look for key words indicating frequency: “always,” “invariably,” “automatically,” “instinctively” If on an essay, discuss that it must be frequent enough to rise to the level of something you would do instinctively/habitually without thinking about it
d) Business Routine: The regular practice of an organization is admissible to prove conduct on a particular occasion

Front 16

Habitat Evidence in NY

Back 16

1) Evidence relating to a business, trade, or profession is admissible
2) Evidence relating to personal habit on the issue of due care in negligence is NOT admissible
There are so many variables/other things going on in personal negligence claims that we can’t predict how someone will act on one particular occasion
3) Evidence relating to personal habit in the use of a product IS admissible
Just the person and the product, not as many other factors so can allow this habit evidence

Front 17

Defendant's Other Crimes for Non-Character Purpose

Back 17

The General Rule:
A defendant’s other crimes or specific bad acts are not admissible during the prosecution’s case-in-chief if the only purpose is to prove propensity (because of bad character more likely to commit the crime)
a) Example: if rob one place years ago does not show a propensity to be a robber, can’t say “once a robber always a robber”
General Exception:
But, if the defendant’s other crimes/specific bad acts are offered for some purpose other than propensity, then evidence is not barred by the rule against character

Front 18

Defendant's Other Crimes for Non-Character Purpose: The MIMIC Rule

Back 18

The Mimic Rule:
Defendant’s other crimes or bad acts may be admissible if offered to show something specific about the charged crime (separate and apart from propensity)
Examples: The most common non-character purposes (MIMIC):
a) M: Motive
b) I: Intent
c) M: Absence of Mistake or accident
d) I: Identity
e) C: Common scheme or plan
Timing:
If a MIMIC category is satisfied, the prosecution may use other crimes evidence as part of its case-in-chief; MIMIC evidence is not dependent on defendant’s introduction of favorable character evidence
Ways to prove MIMIC purpose crimes:
a) By conviction or
b) By evidence that proves a prior bad act occurred

Front 19

Defendant's Other Crimes for Non-Character Purpose: Burden of Proof and Additional MIMIC Issues

Back 19

Burden of proof
a) Federal: The “sufficiency” standard:
The prosecution must produce sufficient evidence for a reasonable jury to conclude defendant committed the prior act by a preponderance of the evidence
b) NY Distinction: Only for “Identity” Evidence:
The prosecution must produce clear and convincing evidence that the defendant committed the prior bad act
Other Requirements for MIMIC Evidence:
a) Pragmatic Considerations: Court must weigh probative value v. prejudice
b) Limiting Instructions: Court must instruct jury about limited purpose of MIMIC evidence
c) Pre-Trial Notice: Upon defendant’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence
MIMIC Evidence in Civil Cases:
Although MIMIC evidence most often appears in criminal cases, it may also be used, if relevant, in civil cases, such as tort actions for fraud or assault

Front 20

Other Sexual Misconduct to Show Propensity for Sexual Assaults

Back 20

1) The Federal Rule: In any case alleging sexual assault or child molestation, the prosecution may offer evidence of defendant’s prior sexual assaults (rape or child molestation) for the purpose of proving defendant’s propensity to commit sexual assault
Reasoning: “Once a rapist, always a rapist” IS allowed in federal court
2) NY Distinction: Rapists and child molesters are treated just like every other defendant – prosecution may not introduce evidence of prior bad acts to prove propensity

Front 21

Relevance: Similar Occurrences: Overview

Back 21

a) The General Rule of Relevance: To be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, evidence is admissible.
USE FOR NY!
b) The Exception: In some limited and specific circumstances, other similar occurrences may be admissible, even if they relate to a time, event, or person other than that involved in the present litigation

Front 22

Relevance: Similar Occurences: 6 Circumstances

Back 22

1) Habit
2) Plaintiff’s accident history
a) The Rule: Generally, a plaintiff’s history of accidents or law suits is inadmissible
b) Exception: Plaintiff’s prior accidents may be admissible to show:
1) Fraudulent scheme or plan or
2) Causation
3) Similar Accidents by Same Event or Condition
a) The Rule: Other similar accidents are generally not admissible but
b) The Exception: Other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for three potential purposes
1) To show existence of a dangerous condition
2) Causation
3) To show prior notice to the defendant
c) Related rule for Experiments and Tests: The standard for admitting experiments and tests is the same. There must be substantial similarity between the experiment and the disputed fact
4) Intent in Issue
a) The Rule: Prior similar occurrences may be relevant to draw an inference of intent from a person’s prior conduct (similar to MIMIC evidence)
5) Comparable Sales on Issue of Value
a) The Rule: The selling price of comparable property is admissible as evidence of the value of the property at issue
6) Industrial Custom as Standard of Care
a) The Rule: Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted, ie: as evidence of the appropriate standard of care.

Front 23

Relevance Review

Back 23

Basic Rule: Relevant evidence admissible
General Exception: 3 pragmatic considerations
First Specific Exceptions: 5 policy based exclusions
Big Exception #1: Character evidence inadmissible, except
a) In Criminal Case:
1) If defendant offers (D’s good character or victim’s bad)
2) Prosecution rebuts
3) NY distinction: No evidence of victim’s character
4) Special rules for form: Reputation (fed and NY) or opinion (only fed)
5) Form for questioning character witness: “Have you heard” or “Did you know”
6) Allowed (fed and NY) to introduce evidence of defendant’s knowledge of victim’s character for aggression in a self defense case
b) Special Rules for Sexual Assault Cases
1) Victim’s character for promiscuity is inadmissible
2) Defendant’s propensity for sexual assault is admissible in fed, not NY
c) Exception in Civil Case: Only if trait is itself an element (negligent hiring and defamation)
d) Habit: Allowed if have frequency and particularity
e) Exception for Non-Propensity Uses: MIMIC:
Motive, Intent, Absence of Mistake, Identity, Common Scheme or Plan
f) Similar Occurrences

Front 24

Judicial Notice

Back 24

1) Definition: Judicial Notice is the recognition of fact as true without formal presentation of evidence
2) The Rule: A court may take judicial notice of indisputable facts:
a) Matters of common knowledge within the court’s territorial jurisdiction
Example: Court in NY can take judicial notice that Times Squire is at the intersection of Seventh Ave and Broadway
b) Matters capable of easy verification by resort to unquestionable sources
Example: By resorting to calendar, court could take judicial notice that Nov 22, 1964 was a Sunday – easily look it up
3) Procedural Aspects:
1) Timing: Judicial notice can be taken at any time, including on appeal – even if its not in the record below
2) Effect: Judicially noticed facts are considered conclusive in civil cases, but not in criminal cases (conclusive means other side can’t dispute it)

Front 25

Documentary Evidence: Authentication: Overview

Back 25

1) General Rule: Party seeking to introduce exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be
2) The Authentication Rule for Writings: If the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing
Need to prove who wrote document/where it came from, only if it is relevant

Front 26

Documentary Evidence: Authentication: Methods of Authenticating Documents

Back 26

Imagine that a party is seeking to prove the document was writing by X – 4 ways to do it:
1) Testimony by witness with personal knowledge (person saw X sign it)
2) Proof of author’s handwriting:
a) Lay opinion testimony – must have familiarity with X’s handwriting as a result of experience in normal course of affairs and not in preparing for the litigation
b) Expert opinion and comparison – expert must be qualified and compare documents to examples of X’s handwriting
c) Jury comparison – give jury documents to compare, trier of fact compares the document to example of X’s handwriting
3) Ancient Document Rule: authenticity may be inferred if document is
1) At least 20 years old
NY Distinction: At least 30 years old
2) Is facially free of suspicion and
3) Is found where it would be expected
4) Solicited Reply Doctrine
Document can be authenticated by evidence it was received in response to a prior communication by the alleged author

Front 27

Documentary Evidence: Authentication: Authentication Procedural Considerations

Back 27

Burden of Proof: The “sufficiency” standard
1) Authentication is a matter of “conditional relevance” so party offering evidence must produce sufficient evidence for a reasonable juror to conclude the document is genuine
2) Similar to standard of proof for prior bad acts (MIMIC)

Front 28

Documentary Evidence: Authentication: Self-Authenticating Documents

Back 28

Presumed authentic, no foundation testimony (witness) is needed for them:
1) Official Publications
Example: Government pamphlets
2) Certified copies of public or private documents on file in public offices
Example: deeds/mortgages in clerk’s office
3) Newspapers or periodicals
Example: Wall street journal to prove stock price
4) Trade inscriptions and labels
Example: wrapper on candy bar
5) Acknowledged document
Example: Notarized document with notary seal
6) Commercial paper
Example: check, promissory note
7) Certified Business Records, offered into evidence under the business records hearsay exception – must be certified:
1) By someone within the business
2) Who knows how the records are regularly made and
3) That these documents were made in the regular way
4) At or about the time of the event recorded

Front 29

Documentary Evidence: Authentication: Authentication of Photographs and Recordings

Back 29

1) Photograph as “demonstrative” evidence: If the purpose of the photograph is to “illustrate” a witness’s testimony, it can be authenticated by the Witness testifying, based on personal knowledge that the photo is a fair and accurate representation of the people or objects portrayed
Purpose just illustrating testimony
If photo is not fair/accurate then not admissible
2) Photograph as a “Silent Witness”: Sometimes, a photograph is not illustrating a witness’s testimony, but rather is itself the evidence (eg: photos from surveillance cameras, automatic teller machines, etc). A party offering such a photograph must show:
1) The camera was properly installed and working
2) The film was properly removed and developed and
3) The film has not been not been tampered with
a) The most effective way to show an absence of tampering is by establishing a chain of custody
Requires everyone who possessed the film to testify to show no one tampered with it

Front 30

Documentary Evidence: Best Evidence Rule: Overview

Back 30

a) Terminology: The best evidence rule is better understood as the “original writings” rule because it is about when you need the original writing
b) The Rule:
1) If a party seeks to prove the contents of a writing, the party Must:
a) Produce the writing or
b) Provide an acceptable excuse for its absence
2) If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony to prove the contents of the writing
c) Definition: A “writing” includes documents, recordings, films, X-rays
Rule about DOCUMENTS
d) Ask yourself:
1) When does the best evidence rule apply?
2) What is an original?
3) What is a good excuse?

Front 31

Documentary Evidence: Best Evidence Rule: When does the best evidence rule apply?

Back 31

a) The Rule: Only when the party seeks to prove the contents of a writing:
1) The writing is a legally operative document – writing itself creates rights and obligations (mortgage, divorce decree, written contract, etc)
2) Or the witness testifies to facts she learned solely from reading abut them in a writing, need the document she read
b) Beware: The bst evidence rule does NOT apply when a witness with personal knowledge testifies to a fact that exists independently of a non-legally operative writing which records the fact

Front 32

Documentary Evidence: Best Evidence Rule: What qualifies as the “original writing?”

Back 32

a) Definition: Original includes the writing itself, any counterpart intending to have the same effect; any negative of film or print from the negative
b) Duplicate: Any counterpart produced by mechanical means that accurately reproduced the original (photocopy, carbon copy, computer print-out, etc)
c) The Rule for duplicates: Admissible to the same extent as original, UNLESS:
1) There is a general question about the authenticity of the duplicate or
2) It would be unfair to admit the duplicate
Otherwise, duplicates are just as good, considered as originals
d) NY Distinction: Photocopies and other duplicates are acceptable substitutes for original only if duplicates were made in the regular course of business – if made in connection with litigation cannot be used
e) What is not considered an original?
Handwriting copies

Front 33

Documentary Evidence: Best Evidence Rule: When will non-production of the original be excused?

Back 33

a) The Rule: A party need NOT produce the original (or an acceptable duplicate) if the original:
1) Is lost and cannot be found with due diligence or
2) Has been destroyed without bad faith or
3) Cannot be obtained with legal process
b) Application: If the court is persuaded by a preponderance of the evidence that the excuse has been established, then the secondary evidence is admissible (oral testimony or handwritten copy)

Front 34

Documentary Evidence: Best Evidence Rule: “Escapes” from Requirements of the Best Evidence Rule

Back 34

a) Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection
b) Certified copies of public records
c) Collateral documents, if the court, in its discretion, determines the document is unimportant to the issues in the case

Front 35

Documentary Evidence: Best Evidence Rule: Limited Reach of the Best Evidence Rule

Back 35

a) Applies only to writings
b) Only when proving the contents of the writing
c) Duplicates are usually just as good or if you have a good excuse you can get around it or there are escapes
So, Best Evidence Rule does NOT apply that often and is usually a WRONG choice on the exam although it does SOMETIMES come up

Front 36

Real Evidence

Back 36

1) Definition: Real Evidence is actual physical evidence that is displayed to the trier of fact
Examples: drugs and guns in criminal case, offending product in product liability case
2) The Authentication Rule: The party seeking to introduce real evidence must introduce sufficient evidence that the item is what the party claims it to be
1) Terminology: The process of authentication – of proving that a piece of evidence is what the party claims to be – is called “laying the foundation”
2) Methods of Authenticating Real Evidence
a) Personal knowledge (ex: witness testifies “I recognize this gun as the one I found at the crime scene)
b) Chain of Custody (ex: witness testifies “This drug sample has been in my possession ever since it was seized from the defendant”)
Note: A “chain of custody” must be “substantially unbroken”
It need not be perfect, but it must be based on reliable procedures for identification and custody
3) Condition of Real Evidence: If the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition

Front 37

Competency of a Witness

Back 37

The Rule: Requirements for witness:
1) Have Personal knowledge
2) Must take an oath – demonstrate understanding of obligation and promise to tell the truth
Children: If the child is too young to understand the oath, they cannot testify
NY Distinction:
Child may testify under oath so long as the child understands the obligation to tell the truth and promise to do so and all witnesses including children must take the oath in civil cases. In criminal cases, a child under the age of 9 who cannot understand the oath can still give testimony (unsworn) but the defendant cannot be convicted solely on that testimony and there must be some other corroboration.

Front 38

Dead Man's Statute

Back 38

1) Federal Rule: There is no Dead Man’s Statute: witness is not incompetent simply because she may have an interest in the outcome of the litigation.
2) Rule in some states: Dead Man’s Statute
1) In a civil action
2) An interested party
3) May not testify
4) Against a dead party
5) About communications or transactions with the dead party
3) Definition: A person is “interested” only if the outcome of the case will have a legally binding effect on the person’s rights or obligations
4) Waiver: The dead person’s rights may be waived if:
1) Decedent’s representative does not object
2) Decedent’s representative testifies about the transaction or
3) If the decedent’s testimony is introduced
On multistate, will tell you if it is a state with dead man’s statute

Front 39

Dead Man's Statute in NY

Back 39

NY Distinction: NY Dead Man’s Statute
1) The Rule: The NY Dead Man’s Statute is similar to the rule in most other states with one important exception
2) The Accident Exception: In accident case based on negligence, the surviving party:
1) May testify about the facts of the accident
2) BUT may not testify about conversations with the decedent

Front 40

Leading Questions

Back 40

Definition: A question is “leading” when the form of the question suggests the answer (ex: “Isn’t it a fact that…” or unevenly balanced alternatives)
The Rule
a) Leading questions are generally NOT allowed on direct examination of witness
b) Leading questions generally ARE allowed on cross examination of witness
3) The Exceptions: Leading questions may be allowed on direct examination in four situations
1) Preliminary Introductory Matters
2) A youthful or forgetful witness
3) A hostile witness
4) Adverse party or someone under control of the adverse party

Front 41

Writings to aid Oral Testimony: Present Recollection Refreshed

Back 41

a) Basic Rule: Witness may not read from a prepared memorandum; must testify on basis of current recollection
b) Refreshing Recollection: But, if a witness forgets something he once knew, he may be shown a writing (or anything) to jog his memory
c) Acceptable Refreshers: ANYTHING
d) Safeguards against abuse: If an item is used to refresh a witness’s memory, the opposing party has a right to:
1) Inspect it
2) Use it on cross examination and
3) Introduce it into evidence

Front 42

Writing in Aid Oral Testimony: Past Recollection Recorded

Back 42

a) The Rule: a writing may be read to the jury as a “past recollection recorded” if:
1) The witness once had personal knowledge
2) The witness now forgets, and showing the writing to witness fails to jog the witness’s memory
3) The writing was either made by the witness or adopted by the witness
4) The writing was made when the event was fresh in the witness’s memory
5) And, the witness can attest that, when made, the writing was accurate
b) Method: If the foundation for a recorded recollection is satisfied (points 1-5 above) then:
1) The witness may read the document to the jury
2) But the witness may NOT show the document to the jury
3) But the opposing party may show the document to the jury (by introducing it as an exhibit)
c) NY Distinction: The party using the recorded recollection may also introduce the record as an exhibit (ie: show it to the jury)

Front 43

Opinion Testimony: Lay Witness

Back 43

Lay Witness
a) The Rule: Lay opinion testimony is admissible if it is:
1) Rationally based on the witness’s perception (personal knowledge) and
2) Is helpful to the jury
b) Examples: A lay witness may testify about such things as:
1) Sobriety (or drunkenness)
2) Emotions
3) Speed
4) Handwriting
5) Smells

Front 44

Expert Witness: General Rule

Back 44

Witness may testify to an opinion as an expert only if:
1) The witness is qualified (education, experience, etc)
2) The testimony is about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury
3) The opinion has a proper basis
4) The opinion is reliable

Front 45

Expert Witness: Proper Basis of Opinion

Back 45

1) The opinion must be based upon a “reasonable degree of probability or reasonable certainty” and
2) The opinion must be based on one of the following three data sources:
a) The expert’s personal knowledge (for example, a treating doctor)
b) Evidence that is already in the trial record (made known to the expert through a hypothetical question)
c) Facts outside the record but only if those facts are of a type reasonably relied on by experts in the particular field
***Note: If an expert relies on facts outside the record, the expert may generally discuss the bases of the opinion, but may not disclose the inadmissible facts to the jury. The opponent, however, may disclose the underlying bases on cross-examination.

Front 46

Expert Witness: Reliability

Back 46

1) The Rule: To be admissible, expert opinion must be sufficiently reliable. That means:
a) The expert has used reliable methods and
b) The expert reliably applied those methods to the particular facts of the case
2) The reliability standard for scientific evidence
a) The Federal Rule (Daubert standard): The court examines reliability by asking such questions as:
1) Has the methodology been tested?
2) Are there known rates of error?
3) Has the methodology been subject to peer review?
4) Has the methodology been generally accepted?
Requires judge to act like a scientist and make sure the science is right
b) NY Distinction: (Frye standard):
NY asks only whether the methodology has been generally accepted by the relevant professional community
Just see if there is a general consensus in the scientific community

Front 47

Expert Witness: Ultimate Issue

Back 47

a) The Rule: Opinion testimony (lay or expert) generally is permissible even if it addresses an “ultimate issue” in the case
b) The Exception (federal only): In a criminal case, an expert witness may NOT testify that the defendant did or did not have the required mental state
Comes up most often in insanity cases

Front 48

Expert Witness: Learned Treatise

Back 48

a) The Federal Rule: If a party can establish that treatise is reliable authority
1) Then the treatise may be used on direct or cross examination of an expert
2) And the treatise may be read to the jury as substantive evidence (hearsay exception)
3) BUT the treatise may not itself be introduced as an exhibit (may not be shown to the jury)
b) Establishing authoritativeness. 3 ways:
1) Your own expert testifies that the treatise is authoritative
2) Your opponent’s expert admits that the treatise is authoritative or
3) The judge takes “judicial notice” that the treatise is authoritative
c) NY Distinction:
1) On direct examination: A treatise may only be used for the purpose of showing the basis of the expert’s testimony, not as substantive evidence
2) On cross-examination:
a) May not be used to impeach the opponent’s expert’s credibility, not as substantive evidence, and
b) May only be used if the opponent’s expert either relied on the treatise in developing her own opinion or acknowledged that it is a reliable authority

Front 49

Cross Examination

Back 49

1) Cross examination is a right. If a witness testifies but then cannot be cross-examined, the witness’s direct testimony will be struck
2) Proper Subject matter of cross-examination includes:
a) Matters within the scope of the direct examination and
b) Matters that affect the witness’s credibility

Front 50

Credibility and Impeachment Definitions

Back 50

a) Credibility: whether witness is believable:
1) Witnesses’ perception,
2) Memory, and
3) Honesty
b) Impeachment: The process of trying to demonstrate that a witness is not credible
c) Rehabilitation: The process of trying to repair a witness’s credibility after the witness has been impeached

Front 51

Impeachment Methods

Back 51

a) Overview; methods of impeachment:
1) Prior Inconsistent Statements
2) Bias, Interest, or Motive
3) Sensory Deficiencies
4) Reputation or Opinion
5) Criminal Convictions
6) Bad Acts
7) Contradiction
b) Impeachment definitions:
1) Impeaching a witness by asking questions on cross examination is called intrinsic impeachment
2) Impeaching a witness by introducing document evidence or calling other witnesses is called extrinsic impeachment
Different rules for both of these
c) Recurring procedural issues:
1) Can impeaching fact be proven by extrinsic evidence or is party bound by witness’s answers to questions?
2) If extrinsic evidence is permissible, must the witness first be confronted with the impeaching fact before it can be introduced as extrinsic evidence?

Front 52

Prior Inconsistent Statements: Overview

Back 52

a) Definition: Prior inconsistent statement (oral or in writing) inconsistent with witness’s trial testimony
b) The Rule: A prior inconsistent statement may be used to impeach a witness
1) The Rationale: If say inconsistent statement then you’re not credible
2) Purpose: Ordinarily, a prior inconsistent statement is admissible ONLY to impeach and is not substantive evidence that the prior statement is true
3) Exception: Prior inconsistent statement can be introduced to impeach and for substantive evidence if it was made
a) Orally under oath and
b) As part of a formal hearing, proceeding, trial, or deposition
4) NY Distinction: Prior inconsistent statements, even if given in formal testimony under oath, are admissible ONLY to impeach

Front 53

Prior Inconsistent Statements: Procedural Considerations

Back 53

1) The Rule: A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement
a) Timing in NY:
The Witness: The witness must be given a chance to explain the statement while still on the stand (ie: statement must be proven through intrinsic cross examination before it can be proven extrinsically)
b) Timing in Federal Rules:
Timing is more flexible. The inconsistent statement may be proven by extrinsic evidence, so long as the witness is later given an opportunity tot return to the stand and explain
2) Exception: If the witness is the opposing party there is no need to give the witness/party an opportunity to explain the prior inconsistent statement
a) Related Hearsay Issue for Party Statements: A prior statement of the opposing party will also be admissible for substantive evidence under the separate hearsay exception for party admissions

Front 54

Bias, Interest, or Misrepresentation

Back 54

a) Definition: Some relationship between the witness and a party – or some other interest in the litigation – that could cause the witness to lie
b) Examples: The witness is
1) A party
2) A friend, relative, or employee of a party
3) Someone paid by a party
4) Someone with a grudge against a party
5) Anyone who has something to gain by the case coming out one way or the other
c) Procedural Issues:
1) Bias, because it is so important, may always be proven by extrinsic evidence
2) Generally, a witness should be confronted with the alleged bias before it is proven by extrinsic evidence

Front 55

Sensory Deficiencies

Back 55

a) Definition: Anything that could affect the witness’s perception or memory
b) Examples: ban eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the witness stand
c) Procedural issues:
1) Intrinsic confrontation is not required
2) Extrinsic evidence is allowed

Front 56

Reputation or Opinion about Witness's Bad Character or Truthfulness

Back 56

a) Definition: Veracity: The character trait of being truthful
A witness’s bad character for veracity is a frequent subject of impeachment and is government by very specific rules
b) The Rule: A party may impeach a witness by calling another witness (character witness) to testify to the target witness’s bad character for veracity
1) Rationale: If witness is a “lying kind of person” (propensity to lie) then witness might be lying on the stand
2) Form of the testimony (same as the rule for character evidence)
a) Federal: Reputation or Opinion
b) NY: Reputation ONLY
c) Not Allowed: Evidence of specific acts
3) Procedural issues: Any witness who has testified may be impeached by this method of extrinsic evidence is allowed

Front 57

Impeachment: Criminal Convictions: Overview

Back 57

a) Rationale: A person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record
b) NY Rule: Any witness may be impeached with a conviction for ANY crime
1) Rationale: A person who commits a crime has demonstrated his willingness to put his own interests ahead of society’s – and may do so again on the stand by ignoring the oath
2) Special rule for Criminal Defendants: When the witness is the criminal defendant, the court must conduct a hearing to balance the probative value of the conviction (on the issue of veracity) against the risk of unfair prejudice
Terminology: The hearing is called a Sandoval hearing (KNOW THIS)

Front 58

Impeachment: Criminal Convictions: Rule

Back 58

The Federal Rule:
1) Time Limit: To be admissible, a conviction (or the release form prison, whichever is later) must be within 10 years of the trial
2) Crimes of dishonesty or false statement are admissible
a) Definition: A crime that, by definition, involves a lie or a betrayal of trust
b) Examples: Perjury, false statement, fraud, embezzlement
NOT: Crimes of violence, drug crimes, theft
Need to affirmatively lie or tell false statement
3) Other crimes (not involving dishonesty or false statement)
a) Misdemeanors are not admissible
b) Felonies are Admissible if the probative value of the conviction (on the issue of veracity) outweighs the risk of unfair prejudice to a party
4) Balancing Probative Value and Unfair Prejudice
a) Factors that make a conviction probative:
1) Seriousness (murder is more probative of veracity than possession of marijuana)
2) Relation to trust and deception (theft is more probative than reckless driving)
b) Factors that make a conviction unfairly prejudicial
1) Inflammatory nature (child molestation is more prejudicial than DWI)
2) Similarity to the currently charged offense (the prejudice is particularly high if the prior offenses and the charged offense are identical)
5) Procedural issues:
a) Proof: Conviction may be proven
1) Intrinsically (by asking the witness about it on cross-examination) or
2) Extrinsically (by introducing a record of the conviction)
b) Timing: No need to give the witness an opportunity to explain

Front 59

Impeachment: Bad Acts that reflect badly adversely on witness's character for truthfulness

Back 59

a) The Federal Rule: A witness may be asked about prior bad acts if those acts relate to truthfulness (need not be crimes and not talking about convictions here)
b) NY Rule: A witness may be asked about prior bad acts that show the witness’s moral turpitude. (Includes anything criminal, even if the criminal conduct does not relate to truthfulness)
c) Limitations:
1) Basis: The cross-examiner must have a good faith basis to believe that the bad act occurred
2) Proof: The bad act may be proven by intrinsic evidence ONLY. (The cross-examiner is stuck with the witness’s answer)
3) Exam Tip: Proof by extrinsic evidence may still be allowed if the bad act is relevant for some other purpose (such as proof of bias)
d) Review and Summary: Arrests
NOTE: If a witness is testifying and there are pending charges against the witness, there is always a possibility of bias. If testifying against the prosecutor could be the same issue of bias. Can inquire about those on the theory of bias.

Front 60

Impeachment: Contradiction

Back 60

a) The Rule: A witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct examination
b) Procedural Issues:
1) If the contradiction goes to an issue that is significant to the case then it may be proven by extrinsic evidence
2) If the contradiction goes to a matter that is collateral (insignificant to the issues in the case or to the witness’s credibility), then proof is limited to intrinsic evidence (and the cross-examiner is stuck with the witness’s answer)

Front 61

Impeachment of Own Witness

Back 61

1) The Federal Rule: any party may impeach any witness
2) NY Rule: (also known as the “Voucher rule”): By calling a witness, a party “vouches” for that witness’s credibility. So, ordinarily, the party who calls a witness may NOT impeach that witness.
a) Exceptions: A party may impeach its own witness with a prior inconsistent statement that was:
1) Made in writing and was signed by the witness or
2) Made in oral testimony and was under oath
b) BUT, in a criminal case, this exception may be used only if the witness’s current testimony is “affirmatively damaging” to the party who called the witness, not merely a “cloud on credibility.”

Front 62

Rehabilitation: Timing

Back 62

a) The Rule: Generally, a witness may be rehabilitated only after the witness’s credibility has been attacked through impeachment
1) Definition: Introducing evidence to support a witness’s credibility before the witness’s credibility has been attacked is called bolstering and is not allowed
b) The Exception: A witness’s prior statement of identification is admissible, even if the Witness’s credibility has not yet been attacked
1) Purpose: Because the prior identification is seen as more reliable than in court identification, prior identification is admissible as substantive evidence
2) NY: Follows the same rule in criminal cases, but does not allow prior identification testimony in civil cases
3) Warning: The statement of identification must be made by a trial witness who is subject to cross-examination.

Front 63

Rehabilitatoin: Methods

Back 63

a) Good Character for Truthfulness
1) The Rule: If a witness’s character for truthfulness has been attacked (through ways discussed above) then the opposing party may introduce corresponding evidence of the witness’s good character for truthfulness
2) Form of the Rehabilitation (same as the rule for impeachment):
a) Federal: Reputation or Opinion
b) NY: Reputation ONLY
c) Not Allowed: Specific Acts
b) Prior Consistent Statement
1) The Rule: A prior statement may be used to rehabilitate if:
a) The prior statement is consistent with the witness’s trial testimony
b) The opposing party has suggested through impeachment that the witness has a motive to lie and
c) The prior statement was made before the motive to lie arose
2) Purpose: A prior consistent statement that fits within the rule is admissible to rehabilitate and as substantive evidence that the prior statement was true (hearsay exception)
3) NY: A prior consistent statement is admissible only to rehabilitate

Front 64

Testimonial Privileges

Back 64

Introduction:
1) Procedure: Diversity Cases and Federal Law
a) The General Rule: In federal court, apply the federal rules of evidence
b) The Exception: In federal diversity cases (where state law will govern the substantive claims), still apply the federal rules of evidence, but apply state law with respect to:
1) Burdens of proof and presumptions
2) Dead Man’s Statutes
3) Privileges
2) Substance: Recognized Privileges
a) Federal: Federal courts recognize the following privileges:
1) Attorney-Client
2) Husband-Wife or Spousal Privileges
3) Priest-Penitent or Clergy Privileges
4) Psychotherapist-Patient
b) Main Difference: Federal common law does NOT recognize a doctor-patient privilege; most states do. (Beware of doctor-patient privilege in diversity cases)
c) NY: In addition to the four listed above, NY also recognizes
5) Doctor-Patient
6) Social Worker-Client, includes rape crises counselor
7) Reporter-Source

Front 65

Attorney-Client Privilege: Overview

Back 65

1) The Rule: Confidential communication between an attorney and client (or their representatives) made during professional legal consultation will be privileged unless the privilege is waived by the client or an exception applies
2) Elements:
a) Applies to relationship between an attorney and a client (or their representatives)
b) Covers Communications (and ONLY communications)
c) So long as they are Confidential
d) For the purpose of Legal Advice
UNLESS
e) The privilege is waived by the client, or
f) An exceptions applies
3) Rationale: To encourage client to speak openly with the attorney

Front 66

Attorney-Client Privilege: Definitions

Back 66

a) “Attorney” includes
1) A member of the bar
2) Someone the client reasonably believes is a member of the bar and
3) A representative of an attorney (any agent reasonably necessary to facilitate the provision of legal services (ex: secretaries, paralegals, translators, investigators, accountants if helping attorney provide legal services)
b) “Client” includes:
1) A person seeking to become a client
2) A representative of the client (any agent reasonably necessary to facilitate the provision of legal services, ex: corporate employee)
c) Communications: Privilege applies only to communications, not to:
1) Underlying information
2) Preexisting documents
3) Physical evidence
d) Confidential: Client must intend confidentiality (eg: no privilege if client knows that third party is listening in; or if client asks attorney to disclose communication to third party)
1) Joint client rule: If 2 or more clients with common interest consult same attorney then their communication is privileged as to third parties but if later have dispute then privilege does not apply between them
e) Legal advice: Primary purpose of communication must be to get/give legal advice (not business or social advice)

Front 67

Attorney-Client Privilege: Losing the Privilege

Back 67

a) Waiver: The client is holder of the privilege, so only client has power to waive by disclosing to a third party. Privilege continues after relationship ends and after client’s death the estate holds the privilege and only the estate can waive it.
b) Exceptions:
1) Future crime or fraud – Purpose of communication is to solicit lawyer’s advise to commit future crime or fraud (eg: client tells attorney, “Help me disguise the bribes I made so they look like legitimate business expenses”
2) When the client puts the legal advice at issue (eg: in tax fraud prosecution, says relied on advice of the attorney for reporting/not reporting income)
3) In an attorney/client dispute (eg: client sues attorney for malpractice, attorney sues client for unpaid fees)

Front 68

Doctor-Patient Privilege

Back 68

1) The Rule: Confidential communication or information acquired by doctor from patient for the purpose of diagnosis or treatment of a medical condition is privileged
2) Rationale: To encourage candor and to protect privacy
3) Elements:
a) Applies to relationship between doctors and patients (“Doctor” typically includes therapists, nurses, doctor’s assistances, and in NY also includes dentists, podiatrists, and chiropractors)
b) Covers communications or information acquired by the doctor
c) So long as it is confidential and
d) For the purpose of a medical diagnosis or treatment
4) Federal Distinction: Covers only psychotherapist NOT medical doctors (doctor or other professional certified to diagnose or treat mental or emotional illness)
5) Losing the Privilege: The privilege will be waived if the patient expressly or impliedly puts physical or mental condition in issue (eg: plaintiff in personal injury case, or defendant asserting insanity defense)

Front 69

Spousal Communications Privilege

Back 69

a) The Rule: Confidential communications between spouses will be privileged
b) Elements:
1) Applies to relationship between married spouses
2) Covers communications
3) So long as they are confidential
4) May be waived only by both spouses
Note: Spousal Communications Privilege survives after the marriage ends

Front 70

Spousal Immunity/Spousal Testimony Privilege

Back 70

a) The Federal Rule: In a criminal case, the prosecution cannot compel the defendant’s spouse to testify against the defendant
1) NY Distinction: Not recognized
b) Rationale: To protect marital harmony
c) Elements:
1) Applies only to criminal cases
2) Covers testimony against a spouse
3) So long as witness and defendant are currently married
4) May be waived by the witness spouse

Front 71

Exceptions to Spousal Privileges

Back 71

a) In furtherance of future crime or fraud (eg: joint criminal activity)
b) Communication or acts destructive of the family unit (eg: spousal or child abuse)

Front 72

Hearsay

Back 72

a) An out of court statement (oral or written)
b) By a person (called a declarant), not animals and not machines
c) Offered to prove the truth of the matter asserted
The Rule: Absent an exception or exclusion, hearsay is inadmissible
The Rationale: The declarant’s credibility (perceptions, memory, honesty) cannot be tested through cross-examination

Front 73

Non-Hearsay Statements

Back 73

1) Purpose is key: Whether a statement is or is not hearsay will depend upon the purpose for which it is offered. Some out of court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement
2) Ask yourself, “Do we care whether or not the declarant is telling the truth?” If no, then statement is not hearsay (not offered for the truth)

Front 74

Four Principal Categories of Non-Hearsay Purposes

Back 74

1) Impeachment: A prior inconsistent statement may be offered to show that the Witness is an inconsistent person, without necessarily being offered to prove the truth of the prior statement
BUT, if the purpose of the prior statement is to prove the truth of the assertion, it will be hearsay
2) Verbal Acts (Legally Operative Words)
a) The Rule: Words with independent legal significance (when the law attaches rights and obligations to certain words simply because they are said) will not be hearsay
b) Examples:
1) Words of offer, repudiation, or cancellation of a contract
2) Words that have the effect of making a gift or a bribe
3) Words that are themselves an act of perjury or a criminal misrepresentation or a defamation
The Saying of the words has legal significance
3) To Show Effect on Person Who Heard or Read the Statement
a) The Rule: A statement that is relevant simply because someone heard it (or read it) is not hearsay
b) Examples: Hearing something can put someone on notice or can give someone a motive or can make someone’s belief reasonable. If would be inadmissible for proving the truth of the statement but can be admissible for a different purpose you’re trying to do, then let it in
Tip: If question tells you the purpose, focus on that. If not, look for a purpose that would make it admissible and if you find it, let it in.
4) Circumstantial Evidence of Speaker’s State of Mind
a) The Rule: A statement that unintentionally reveals something about the speaker’s state of mind is not hearsay
b) Examples: Statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate a lack of knowledge

Front 75

Prior Statements of a Trial Witness

Back 75

1) The Rule: A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies
2) Exception (“Exclusion”): Prior statements of witnesses that are “excluded” from the definition of hearsay
a) A prior statement of identification
b) A prior inconsistent statement if
1) Made under oath
2) During a formal proceeding
(But in NY, admissible only to impeach)
c) A prior consistent statement if
1) Used to rebut an accusation of a motive to lie
2) And made before the motive to lie arose
(But in NY, admissible only to rehabilitate, not for its truth)

Front 76

Top Ten Hearsay Exceptions

Back 76

1) Party admission
Declarant is a Party
2) Former testimony
3) Forfeiture by wrongdoing
4) Statement against interest
5) Dying declaration
For the above, declarant must be unavailable
6) Excited utterance
7) Present sense impression
8) Statement of then-existing mental, emotional, or physical condition
9) Statement for purpose of medical treatment for diagnosis
10) Business and public records
For the above, declarant can be anyone
(Also recall Past Recollection Recorded, Learned Treatises)

Front 77

Party Admissions

Back 77

a) Rule: Any statement made by party is admissible if it is offered against the party (offered by the other side)
b) Terminology
1) Under the FRE, party admissions are called “exclusions” or “not hearsay” because they are statutorily “excluded” from the hearsay definition
2) NY: they are simply called “exceptions”
c) Rationale: “You say it, you’re stuck with it” (estoppel, not reliability)
d) Vicarious admissions
1) The Rule: A statement
a) By an agent or employee of a party
b) Is admissible against the party (principle or employer)
c) If it concerns a matter within the scope of the agency or employment
d) And was made during the agency or employment
2) NY Distinction: A statement by an employee or agent is admissible against the principle ONLY if the agent or employee had speaking authority, the specific authority to speak on behalf of the employer (ex: CEO, general counsel, VP for Communications)
3) Vicarious Admissions by Co-Conspirators: A statement of one co-conspirator is admissible against other co-conspirators if the statement was made during and in furtherance of the conspiracy.
Reminder for Party Admissions generally: For party admissions, doesn’t have to be something you think is bad – anything said can be used against you

Front 78

Former Testimony

Back 78

a) Threshold Requirement: Unavailability: The hearsay exceptions for former testimony, forfeiture by wrongdoing, dying declarations, and declarations against interest require that the declarant be “unavailable”
1) Grounds for unavailability:
a) Privilege; b) Absence from the jurisdiction; c) Illness or death; d) Lack of memory; e) Stubborn refusal to testify - “PAILS”
2) NY Distinction:
a) Acceptable Grounds: a), b), and c) only. Not d), or e)
b) Additional Grounds in civil case:
1) Declarant is located 100 miles or more from the courthouse
2) Declarant is a doctor
So even if really could be available, these exceptions can apply if other conditions are met
b) Elements of the former testimony exception:
1) Declarant is unavailable
2) Prior statement was given in a proceeding or deposition
3) And is offered against a party who, on the prior occasion, had an opportunity and a similar motive to cross-examine or otherwise develop the testimony
Note: The relevance of the former testimony to the current trial must be substantially similar to its relevance in the prior proceeding (so that the party had a similar motive to cross-examine)
c) Rationale: Reliability is assured by the cross-examination on the prior occasion (so long as the opposing party had a similar motive); however, we prefer live testimony, so witness must now be unavailable.
d) NY Distinction (criminal cases only): The former testimony by now-unavailable witness must have been given at a criminal trial, a hearing on felony complaint, or at conditional deposition. Defendant and charge must be the same in both former and current case. Former testimony given at a suppression hearing is NOT admissible against defendant

Front 79

Forfeiture by Wrongdoing

Back 79

a) The Rule: A party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection to admission of the declarant’s out-of-court statements
1) Includes engaging in or acquiesching in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a trial witness
b) Procedural Issue: Burden of proof regarding party’s wrongdoing
1) Federal: Preponderance of the evidence convince defendant made witness unavailable
2) NY: Clear and convincing evidence

Front 80

Statement Against Interest

Back 80

a) Elements:
1) Declarant is unavailable
2) Statement is against Declarant’s pecuniary, proprietary, or penal interest
b) Rationale: Someone is not likely to lie when making a personally damaging statement
c) Qualification in criminal cases: Statement against penal interest, when offered to exculpate a defendant, must be supported by corroborating circumstances

Front 81

Dying Declarations

Back 81

a) Elements:
1) Declarant is unavailable
2) Statement was made under a belief of certain and pending death (have to really think about to die)
3) Statement concerns the cause/circumstances of his death
b) Rationale: No one wants to die with a lie on his or her lips
c) Type of case:
1) Federal: Any civil case or in a criminal homicide case
2) NY: Only in criminal homicide cases

Front 82

Excited Utterances

Back 82

a) “Spontaneous Statements”: The next five exceptions rely on spontaneity to assure reliability. Unavailability is NOT required
b) Elements:
1) The statement concerns a startling event
2) And was made while the declarant was still under the stress of the startling event
c) Rationale: Excitement suspends one’s capacity to fabricate
d) Factors that may make a statement “Excited”:
1) The nature of the event
Traumatic accident, armed robbery = startling. Forgery of promissory not is not startling.
2) Passage of time
3) Verbal cues like shouting/screaming/ exclamatory phrases/etc and Exclamation Points

Front 83

Present Sense Impression

Back 83

a) Elements:
1) The statement describes an event
2) And is made while the event is occurring or immediately thereafter
b) Rationale: Contemporaneousness: Declarant has no time to fabricate
c) NY Distinction: Requires corroboration

Front 84

Statement of Then-Existing Mental, Emotional, or Physical Condition

Back 84

a) The Rule: Allows admission of
1) A contemporaneous statement
2) Concerning the declarant’s then existing
a) Physical condition or
b) State of mind (includes emotions, mental feelings, intent or future plans, sensations, and bodily health)
3) Does not include a statement of memory or belief about a past event or condition
4) Does include statements of future intent to do something with a third person
b) Rationale: Matters about which the declarent has unique knowledge
c) NY Distinction:
1) If a statement of present physical condition is made to a layperson (not a doctor), the declarent must be unavailable before can use this exception
2) If a statement of future intent is offered to prove the conduct of a third person, NY requires
a) Corroboration (of the connection between the declarent and the third person), and
b) That the declarent is unavailable

Front 85

Statement for Purpose of Medical Treatment or Diagnosis

Back 85

a) Elements: Allows admission of a statement:
1) Made to a medical professional (doctor, nurse, EMT)
2) Concerning:
a) Present symptoms or
b) Past symptoms or
c) General cause of medical condition
3) For the purpose of treatment or diagnosis
4) But not:
a) Statements of fault or
b) Identity of wrongdoer
b) Rationale: Patients have an incentive to be honest and accurate to get good medical care
c) NY Distinctions: Does not apply to statements:
1) Made SOLELY for purpose of obtaining expert testimony at trial
2) Relating to past symptoms

Front 86

Business and Public Records

Back 86

a) Elements: Allows admission of:
1) Records of a business (any type, including public agencies/nonprofits/etc)
2) Made in the regular course of business (ie: is germane to the business, relates to what the business does)
3) The business regularly keeps such records
4) Made contemporaneously (at or about the time of the event recorded), and
5) The contents consist of:
a) Information observed by employees of the business or
b) A statement that falls within some other hearsay exception
b) Rationales:
1) Reliability (because businesses depend on accurate, up-to-date record-keeping) and
2) Practicality (because such records are often the most efficient way to prove relevant facts)
c) Public Records: In addition to observations by employees of the public agency, may also include conclusions by public employees after official investigation
1) Important exception to the public records rule: A police report may not be offered against the defendant in a criminal case
d) Laying the Foundation for Business Records:
1) Live Testimony: Call a knowledgeable witness who can testify to the five elements of the business records hearsay exception (often called a “custodian of records”)
2) By Affidavit: Submit a written certification under oath attesting to elements of business records hearsay exception
a) NY: Written certification may be used only in civil cases and only for the business records of a non-party

Front 87

Hearsay and the Confrontation Clause

Back 87

1) The Rule: In criminal cases, the 6th Amendment requires that the defendant be “confronted” with the witnesses against him
2) That means: The prosecution may not offer testimonial hearsay in violation of the defendant’s right to cross-examine the declarant
3) “Right to cross-examine the declarant” IS satisfied if the defendant:
a) Defendant already had a chance to cross-examine the declaraent (eg: former testimony exception) or
b) Defendant can cross-examine declarant at trial (eg: prior statement of a trial witness) or
c) Defendnat forfeited right to confrontation through witness transferring (eg: forfeiture by wrongdoing)
4) “Testimonial”
a) Grand jury testimony is testimonial (so cannot be used against criminal defendant in criminal trial if can’t cross examine witness)
b) Statements in response to police interrogation:
1) Testimonial if the primary purpose of the questioning is to establish or prove past events potentially relevant to later prosecution (like reporting a crime)
2) Non-Testimonial if the primary purpose of the questioning is to enable police assistance for an ongoing emergency (like a cry for help)
c) Documents: Police reports are testimonial. Business Records are not testimonial

Front 88

Miscellaneous Hearsay Issues

Back 88

1) Procedural Issue: Laying the Foundation for Hearsay Exceptions
a) The Rule: Whether a party has established the required elements of a hearsay exception is to be decided by the judge by a preponderance of the evidence. And in making that determination, the judge may rely on anything (including inadmissible evidence)
2) Hearsay Declarants and Impeachment
a) The Rule: If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of a hearsay declarant

Front 89

Procedural Considerations

Back 89

Dividing responsibility between the judge and the jury
Burdens of proof
1) The usual standard in CIVIL cases: Preponderance of the evidence
2) The standard in CRIMINAL cases: Beyond a reasonable doubt
After all the evidence is in, it is up to the jury to decide whether the burden of proof has been met for each element of the charge, claim, or defense
Preliminary Facts
1) Preliminary Facts for the jury
a) The jury decides questions of conditional relevance which come in 3 forms:
1) Whether a witness has personal knowledge
2) Whether an exhibit authentic
3) Whether the defendant is in fact the person who committed a prior bad act offered as MIMIC evidence
b) The judge’s role for such questions is simply to ensure that there is sufficient evidence for a reasonable jury to conclude that the conditional fact is true
2) The judge decides questions of admissibility
a) Whether testimony is hearsay
b) Whether a communication is privileged
c) Whether an expert is qualified
Note: In making such decisions, the judge may consider ANYTHING (ie: the judge is not limited to admissible evidence)