Evidence: Distinctions & Extra

Front 1

Are Admissions by one co-party admissible Non-Hearsay against the other?

Back 1

-No.
-Admissions of a party are not receivable against her co-parties merely b/c they are joined in the litigation?

Front 2

When are Admissions by Co-Conspirators Non-Hearsay vicarious admissions?

Back 2

-Admissions by one co-conspirator made (i) in furtherance of a conspiracy to commit a crime or civil wrong (ii) at a time when the Declarant was participating in the conspiracy are admissible Non-Hearsay
-Testimonial admissions of a conspirator are admissible against another conspirator only if there was opportunity for cross at the prior proceeding

Front 3

What is the proper form for admitting Past Recollections Recorded?

Back 3

-Where W has insufficient recollection of an event even after she has consulted the writing on the stand, the writing itself may be read into evidence with proper FOUNDATION:
1. Personal knowledge of the facts in the writing
2. Writing was made or adopted by W
3. Writing was timely made when the matter was fresh in W's mind
4. Writing is accurate
5. W has insufficient recollection to testify fully

Front 4

When will the Business Record Exception render hearsay admissible?

Back 4

Writing made:
1. In the regular course of business;
2. Addressing matters within the personal knowledge;
3. Of one WITH A DUTY TO TRANSMIT
-Lack of such writing may be used to show the non-occurence of the event
Example: In a sexual harassment suit by an employee, prior records of sexual misconduct by D are inadmissible since the former employees were not charged with a duty to transmit that info to HR

Front 5

When will the Physician-Patient Privilege not apply or be deemed impliedly waived?

Back 5

1. P puts his physical condition at issue
2. Physician's assistance was sought to aid in wrongdoing
3. Malpractice suit between P and Dr.
4. Patient agreed by K to waive the privilege
5. Federal case applying the federal law of privilgege

Front 6

When is a prior criminal conviction admissible for Impeachment?

Back 6

-FRE:
--Crimes of dishonesty or false statement
---Examples: perjury, fraud, embezzlement:
---Counterexamples: violence, theft, and drugs
--Felonies, but only if the probative value outweighs prejudice to a party
-NY:
--Any W may be impeached for any crime
--In criminal cases, court must also balance probative value against the risk of prejudice

Front 7

What are the requirements for Competent testimony?

Back 7

1. Personal knowledge and
2. Declaration to testify truthfully

Front 8

What is a non-hearsay Party Admission?

Back 8

-Any statement or act that amounts to a prior acknowledgment by one of the parties of the relevant facts.
Example: An attempted bribe is considered an Admission since it is an acknowledgment of wrongdoing

Front 9

What is the proper factual basis for the admission of Expert Opinion Testimony?

Back 9

1. Personal observation
2. Facts made known at trial; OR
3. Facts not known personally but supplied outside of the courtroom AND of the type reasonably relied upon in the field

Front 10

When are Photographs admissible documentary evidence?

Back 10

-Photos are admissible if Identified and verified by a W as an accurate representation of relevant facts
-Any W familiar with the scene may authenticate a photo

Front 11

When are Leading Questions an appropriate form to examine witnesses?

Back 11

-Leading questions are generally improper on direct examination and are only permitted:
1. Cross-examination
2. Preliminary matters
3. To aid a witness due to memory loss, immaturity, weakness
4. Hostile witness

Front 12

When is Character Evidence admissible as substantive (rather than impeachment) evidence?

Back 12

1. Character is the ultimate issue in the case OR
2. Circumstantial evidence of how a person probably acted

Front 13

When may specific acts of misconduct be admitted to establish Relevance?

Back 13

-Evidence of other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character.
-It is admissible if the acts of misconduct are Relevant to a MIMIC issue.

Front 14

What is the acronym for purposes for which specific acts of misconduct may be used as circumstantial evidence in a criminal case?

Back 14

MIMIC:
-Motive
-Intent
-Mistake--absence thereof
-Identity
-Common plan or scheme

Front 15

By what means can the prosecution rebut a claim of good character in a criminal case?

Back 15

1. Cross examination by asking whether W knows or has heard of specific instances of misconduct
2. Calling testified witnesses to testify about reputation for bad character or opinions of D's character
-No extrinsic evidence of misconduct may be used. The prosecutor may only ask Ws about them.

Front 16

When is the Best Evidence Rule inapplicable to prove the contents of a writing?

Back 16

-Fact to be proved exists independently of the writing
-Writing is collateral to the litigated issue
-Summaries of voluminous works
-Public records

Front 17

What is the permissible scope of Cross-Examination?

Back 17

1. Scope of direct, including all reasonable inferences AND
2. Impeachment

Front 18

What are the proper Methods of Impeachment?

Back 18

-Prior inconsistent statements
-Bias or interest
-Conviction of crime
-Specific Instances of misconduct (w/o conviction)
-Opinion or Reputation for truthfullness
-Sensory deficiencies

Front 19

When may Specific Acts of Misconduct be admitted to Impeach?

Back 19

-Only when it is probative of truthfulness
-W can only be impeached via cross

-NY: W may be asked about any prior bad act that shows Moral Turpitude

Front 20

May D's prior criminal convictions be used to prove propensity?

Back 20

-No. D's other crimes or specific bad acts are inadmissible if the sole purpose is to prove propensity to commit the crime.
-Exception: But if D's other crimes or specific bad acts are offered for some other purpose--MIMIC--then the evidence will not be barred

Front 21

How may specific acts of misconduct be used to impeach W?

Back 21

-Cross-examination only
-No foundation is required
-Must be probative of truthfulness

Front 22

How may a criminal conviction be used to impeach W?

Back 22

-Must be felony or crime involving dishonesty
-Cross-examination or Record of Judgment
-No foundation required

Front 23

What is the basic Evidence Analysis?

Back 23

1. Relevance
-Judicial Discretion
-Public Policy Exclusions
-Character Evidence

2. Real/Documents: Authenticity

3. Testimonial Evidence
-Competency
-Form
-Impeachment
-Privilege

4. Hearsay

5. Procedure

Front 24

What are the Policy exclusions to relevant evidence?

Back 24

1. Liability Insurance
2. Subsequent Remedial Measures
3. Settlement Negotiations
4. Withdrawn Pleas
5. Offers for Medical Expenses

Front 25

What are the Policy exclusions to relevant evidence?

Back 25

1. Liability Insurance
2. Subsequent Remedial Measures
3. Settlement Negotiations
4. Withdrawn Pleas
5. Offers for Medical Expenses

Front 26

What is the basic Evidence Analysis?

Back 26

1. Relevance
-Judicial Discretion
-Public Policy Exclusions
-Character Evidence

2. Real/Documents: Authenticity

3. Testimonial Evidence
-Competency
-Form
-Impeachment
-Privilege

4. Hearsay

5. Procedure

Front 27

What are the Policy exclusions to relevant evidence?

Back 27

1. Liability Insurance
2. Subsequent Remedial Measures
3. Settlement Negotiations
4. Withdrawn Pleas
5. Offers for Medical Expenses

Front 28

When is Liability Insurance excludable for policy?

Back 28

-Inadmissible to prove negligence or ability to pay

-Admissible to prove
--Ownership, control
--Impeachment
--As part of an admission

Front 29

When are Subsequent Remedial Measures excludable for policy?

Back 29

-Inadmissible to prove
--Negligence
--Culpable conduct
--Design Defect
--Warning Defect
--NY: Admissible to prove Mfg. defect

-Admissible to prove:
--Ownership, control
--Rebut a claim that precautions were impossible
--Prove destruction of evidence

Front 30

When are Settlement Negotiations excludable for policy?

Back 30

-Inadmissible to prove:
--Liability
--Invalidity of a disputed claim

-Admissible for all other purposes

Front 31

When are Withdrawn Pleas excluded for policy?

Back 31

-FRE: Always inadmissible
-NY: Admissible only in subsequent civil cases

Front 32

When are offers to pay Medical Expenses excludable?

Back 32

-Inadmissible to prove culpability

-Admissible for all other purposes
--Admissions of fact accompanying an offer are admissible

Front 33

When may Prior Inconsistent Statements be used for Impeachment?

Back 33

-Means: cross and extrinsic evidence, if not a collateral matter
-Foundation: W must be given opportunity to explain or deny the inconsistent statement--except for hearsay Declarant

Front 34

When may Bias be used for Impeachment?

Back 34

-Means: cross or extrinsic evidence
-Foundation:
--W must be asked on cross about facts showing bias or interest before extrinsic evidence is allowed
--Admissibility of evidence is w/in court's discretion

Front 35

When may Criminal Conviction be used for Impeachment?

Back 35

-Methods: Cross or record of judgment
-Foundation:
--FRE: Must be felony or other crime involving dishonesty
-NY: Any crime may be used for impeachment

Front 36

When may Bad Acts be used for Impeachment?

Back 36

-Means: cross only
-Foundation:
--FRE: only if the act is probative of truthfulness
--NY: any bad act that involves moral turpitude

Front 37

When may Opinion or Reputation be used for Impeachment?

Back 37

-Means: calling other Ws
-Foundation:
--FRE: none
--NY: only reputation is admissible

Front 38

When may Sensory Deficiencies be used for Impeachment?

Back 38

-Means: cross or extrinsic evidence
-Foundation: None

Front 39

What are the Hearsay exceptions that require W unavailability?

Back 39

1. Former Testimony
2. Statement Against Interest
3. Dying Declaration
4. Statement of Personal/Family History
5. Statement against Party procuring Declarant's unavailability

Front 40

What are the non-hearsay exclusions?

Back 40

1. Prior Statements by W
-Prior inconsistent statement
-Prior consistent statement to rehabilitate
-Prior ID
2. Admissions by Party

Front 41

When is an unavailable W's Former Testimony an admissible hearsay exception?

Back 41

-Statement made under oath at same or other proceeding at which the Party against whom it is offered had motive and opportunity to develop testimony

Front 42

When is an unavailable W's Statement Against Interest an admissible hearsay exception?

Back 42

-Statement against Declarant's pecuniary, proprietary, or penal interest when made

Front 43

When is an unavailable W's Dying Declaration an admissible hearsay exception?

Back 43

-Statement made while Declarant believed death was imminent, concerning the cause or circumstances of impending death

Front 44

When is an unavailable W's Statement of Personal/Family History an admissible hearsay exception?

Back 44

-Statement of personal/family history (birth, death, marriage) made by family member or one intimately associated with the family

Front 45

When is an unavailable W's Statement Offered Against Party Procuring Declarant's Unavailability an admissible hearsay exception?

Back 45

-Statement of unavailable Declarant offered against party who procured Declarant's unavailibility

Front 46

What is the acronym for determining Unavailability?

Back 46

PAILS
-Privilege
-Absence from jurisdiction
-Illness/death
-Lack of memory
-Stubborn refusal to testify

NY
-Lack of memory and Stubborn refusal are not grounds for Unavailability
-Additional grounds for civil cases
--Declarant 100+ miles from court
--Declarant is a Dr.

Front 47

What are the exceptions to Hearsay that do not require Unavailability?

Back 47

1. State of Mind
2. Excited Utterance
3. Present Sense Impression
4. Medical Diagnosis/Treatment
5. Recorded Recollection
6. Business Records
7. Public Records
8. Judgments
9. Ancient Docs
10. Property Docs.
11. Treatises
12. Reputation
13. Family Records
14. Market Reports

Front 48

What is the State of Mind hearsay exception?

Back 48

-Statement of then-existing state of mind, emotion, sensation, or physical condition
-Usually introduced to establish intent
-Admissible when state of mind is a material issue or to show subsequent acts of Declarant

Front 49

What is the Excited Utterance hearsay exception?

Back 49

-Statement made while under the stress of excitement of startling event

Front 50

What is the Present Sense Impression hearsay exception?

Back 50

-Statement made concurrently with perception of event described

Front 51

What is the Medical Treatment hearsay exception?

Back 51

-Statement made to medical personnel for diagnosis or treatment

Front 52

What is the Recorded Recollection hearsay exception?

Back 52

-Writing by W who cannot now remember the facts
-Made while the facts were fresh in her mind

Front 53

What is the Business Records hearsay exception?

Back 53

-Writing made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit them
-Lack of such writing may be used to show the non-occurrence of the event

Front 54

What is the Public Records hearsay exception?

Back 54

-Records and reports of public agencies regarding their activities
-Records of births, death, marriages, etc.
-Absence of record admissible to show the non-existence of the matter

Front 55

What is the Judgments hearsay exception?

Back 55

-Copy of judgment of a prior felony conviction is admissible to prove any fact essential to the judgment
-In a criminal case, it may only be used against the accused as substantive evidence

Front 56

What is the Ancient Document hearsay exception?

Back 56

-Docs 20+ yrs. old

Front 57

What is the Property Docs. hearsay exception?

Back 57

-Statement in a document affecting property interest

Front 58

What is the Treatise hearsay exception?

Back 58

-Statements from authoritative works admitted if called to attention of expert witness and established as a reliable authority

Front 59

What is the Reputation hearsay exception?

Back 59

-Reputation evidence concerning a person's character, personal or family history, land boundaries, or community's general history

Front 60

What is the Family Records hearsay exception?

Back 60

-Statements of fact found in family bibles, jewelry engravings, tombstones, etc.

Front 61

When must Objections be raised?

Back 61

-After the question, but before the answer, if the question calls for inadmissible matter
-Otherwise a Motion to Strike must be made as soon as an answer emerges as inadmissible
-Failure to object timely, otherwise inadmissible evidence is entered

Front 62

When may evidence of V's character be introduced in a criminal case?

Back 62

-D may introduce reputation or opinion evidence of bad character trait of V if it is relevant to show D's innocence

Front 63

Does lack of memory constitute a Prior Inconsistent Statement that could be used for Impeachment?

Back 63

-No. The statements must be directly inconsistent.
-Lack of memory would not necessarily mean that W is not being truthful

Front 64

What are statements that are not offered to prove their truth?

Back 64

-If the statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine the witness, and is not Hearsay. Examples:
1. Verbal acts or legally operative facts: words of K, defamatory words
2. Statements offered to show their effect on the hearer or reader: to prove notice in negligence case
3. Statements offered as circumstantial evidence of Declarant's state of mind: insanity, knowledge

Front 65

What are the purposes for which a Treatise is admissible?

Back 65

-Impeachment of expert: by cross-examination on statements contained in a reliable authority
--Reliability is established by
1. Direct testimony or cross admission of the expert;
2. Testimony of anther expert, or
3. Judicial Notice

-Substantive Evidence as a Hearsay Exception if:
1. Expert is on the stand and can read it into evidence
2. Reliable authority

Front 66

What is a Legally Operative Fact?

Back 66

-One introduced for a purpose other than to prove the truth of the matter asserted therein
-Evidence of such statements is not hearsay b/c the issue is only whether the statement was made
-Examples: K, bribery, cancellation

Front 67

When will the Dying Declarations hearsay exception apply?

Back 67

1. Unavailable Declarant
2. Homicide or civil action
-NY: Only homicide cases
3. Made under subjective belief of imminent death
4. Concerning the cause or circumstances of Death
-Note: Statements based on mere SUSPICION rather than actual knowledge are insufficient to constitute a "statement concerning the cause of impending death"

Front 68

When does Spousal Immunity terminate?

Back 68

-Immunity lasts only during the marriage, so divorce or death would destroy it

Front 69

What are the purposes for which a criminal conviction is admissible?

Back 69

-Impeachment:
--Type: Felony or crime involving dishonesty
--Means: cross or record of judgment
--Felony convictions for
-Hearsay exception: FELONY convictions are admissible to prove any fact essential to the judgment

Front 70

What is a conclusive presumption?

Back 70

-Functions as a rule of substantive law that can not be rebutted even with contrary evidence
-Example: Children under 7 can not have criminal mens rea

Front 71

What is the proper factual basis to have Expert Testimony admitted into evidence?

Back 71

-3 possible sources:
1. Personal observation
2. Facts made known at the trial
3. Facts supplied outside of the courtroom, and of the type reasonably relied on in the field

Front 72

From which types of proceedings will Former Testimony be admissible as an exception to hearsay for unavailability?

Back 72

-Hearings, depositions, and other judicial proceedings; or anywhere else that there was an opportunity to cross
-NOT GRAND JURY proceedings since there is no cross

Front 73

When is the "intent to permanently deprive" element satisfied for CL Larceny?

Back 73

-At the time of taking, D intended to permanently deprive a person of her property
-Sufficient Intent:
--Intent to create as substantial risk of loss, or
--Intent to sell or pledge the goods back to the owner
-Insufficient Intent:
--D believes the property belongs to her, or
--D only intends to borrow
--D only intends to keep it until payment of a debt is made

Front 74

What is the difference between Larceny by Trick and Embezzlement?

Back 74

-In embezzlement, misappropriation occurs while D has lawful possession of the chattel
-In Larceny by Trick, misappropriation occurs at the time possession is achieved

Front 75

When is a record "in the regular course" sufficient to be admissible under the Business Record hearsay exception?

Back 75

-It must be customary for the business to make such records
-Self-serving accident reports prepared for litigation are usually inadmissible

Front 76

Give a comprehensible definition of HEARSAY

Back 76

-"Hearsay is (i) a statement, (ii) other than one made by the Declarant while testifying at the trial, (iii) that is offered in evidence to prove the truth of the matter asserted."