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81 Cards in this Set
- Front
- Back
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What is evidence? |
Evidence includes all means by which a fact is established. It includes everything submitted at a trial, whether in the form of real evidence (a gun or a defective product), documentary evidence (a deed, a contract, a business record, a will or a letter), facts judicially noticed, demonstrative evidence as well as testimonial evidence offered by a witness.
On an appeal, the briefs and oral arguments cannot refer to anything that was not offered into evidence at the trial. For example, a document, a witness's statement, a legal argument, or an objection that was not made to improperly admitted evidence. |
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In civil or criminal cases, the judge resolves by a preponderance of the evidence, preliminary factual issues such as what 5 things? |
(a) the admissibility of evidence (b) whether a privilege applies (c) whether a witness qualifies as an expert (d) the hopelessness of a dying declaration (e) whether a document qualifies as a business record as an exception to the hearsay rule |
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Does the judge have to follow rules of evidence in determining preliminary factual issues?
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In determining these preliminary factual issues, the judge does not have to follow the rules of evidence except when a privilege is invoked, then the judge must follow the protective rules of privileges. Thus, the judge can admit hearsay evidence or other inadmissible evidence in determining these preliminary issues. |
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On the preliminary issues of whether a witness has personal knowledge (PURR) or on the authentication of real evidence, the judge does not have to be persuaded so long as there is a sufficient basis for a reasonably prudent juror to be persuaded of the fact. A judge can even conditionally admit evidence subject to the jury finding it genuine. Thus, the judge plays a very limited role in what 4 things? |
1. authenticating real evidence 2. determining whether a witness has personal knowledge 3. determining a witness's competency or 4. determining a witness’s competency. |
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Are all evidentiary issues resolved by the jury?
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Yes, all of these issues are resolved by the jury.
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Who opens first and closes last in both NY and federal courts? |
In both NY and federal courts, the party with the burden of proof generally opens first and closes last. |
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There are 3 burdens of proof that instruct the judge and jury on the degree of confidence they must have in reaching their verdict. What is the first one? |
1. a "preponderance of the evidence" applied in most civil cases which requires the plaintiff to establish proof that the evidence in support of her claim made its occurrence more probable than not (i.e. the plaintiff's evidence must be more convincing than the defendant's evidence) so that the jury can conclude that it probably happened. (51%-49%) |
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There are 3 burdens of proof that instruct the judge and jury on the degree of confidence they must have in reaching their verdict. What is the second one? |
2. clear and convincing evidence, which requires the plaintiff to prove it is "highly probable" that the event occurred. This requires proof more certain than a preponderance, but less certain than "proof beyond a reasonable doubt". Civil claims requiring proof by clear and convincing evidence include CLAM GAP CAMP. |
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What does CLAM GAP CAMP stand for?
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C – constructive trust (T-CUP) L – a lost will A – actual malice in a defamation case M – mutual mistake, reformation, or fraud G – gift (AID) A – adverse possession P – provisional remedies (LIAR) C – a CRL (covenant running with the land) A - adultery M – molineaux – “mimic” prior acts or convictions (NY) P – grounds to terminate parental rights (MA & PA) |
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There are 3 burdens of proof that instruct the judge and jury on the degree of confidence they must have in reaching their verdict. What is the third one?
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3. "Proof beyond a reasonable doubt", which requires the prosecution to prove each element of its case against a criminal defendant so that a reasonable person after carefully reviewing the evidence would have no reasonable doubt of the defendant's guilt. A reasonable doubt is more than a whim or a hunch. It is a doubt for which a reason based on the evidence can be articulated. A deficient reasonable doubt jury instruction can never be regarded as "harmless error" no matter how overwhelming the evidence of the defendant's guilt. |
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What is relevant evidence? |
To be admissible, evidence offered at trial must be relevant. |
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Evidence is relevant if what two things exist? |
1. it has any tendency to make a fact more or less probable than it would be without the evidence and 2. the fact is of consequence in determining the action (i.e. it is material). The judge makes this initial determination. |
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The existence or non-existence of liability insurance is irrelevant on the issue of liability, though it may be relevant to prove other issues such as what? |
ownership or control.
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In a larceny or robbery prosecution, is evidence that the defendant was drug habit, or suddenly possessed a large amount of cash after the crime, relevant or irrelevant?
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It’s relevant.
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A judge has discretion to exclude relevant M-CUP evidence. What does M-CUP stand for? |
M - evidence misleading or confusing the jury C - cumulative evidence to prove facts already established U - evidence that would cause undue delay P - (probably most important) it would have an unfair prejudicial affect on the jury. Relevant evidence may be excluded if its probative value is substantially outweighed by its unfair prejudicial effect on the jury. (SOUP - substantially outweighed by its unfair prejudicial effect on the jury). While most evidence offered against a party is prejudicial to that party, the court will preclude "unfairly prejudicial" evidence that might cause the jury to reach a decision on an improper emotional basis. Unfairly prejudicial evidence is admissible in non-jury trials since judges are considered capable of rejecting the prejudicial effect. A party can make a pre-trial motion IN LIMINE to determine the admissibility of prejudicial evidence before the trial begins. If granted, the opposing party cannot introduce or refer to that evidence at trial. |
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What does direct and circumstantial evidence do? |
A fact can be established with either direct or circumstantial evidence. Evidence is direct when the very facts in dispute are communicated by those who have actual knowledge of them by means of their senses. Circumstantial evidence is direct evidence of a collateral fact (a fact other than the fact in issue) from which the fact in issue may be inferred. |
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To convict a criminal defendant solely on circumstantial evidence, what must occur? |
The facts from which the inference of the defendant's guilt is drawn must exclude to a "moral certainty" every other hypothesis except the defendant's guilt. The jury must be charged that in order to find the defendant guilty, no other rational inference can be reasonably drawn from the evidence presented other than the defendant's guilt. A court's refusal to give this charge however, may be harmless error if there was overwhelming circumstantial evidence of defendant’s guilt.
This charge is not required where the people's case is supported with both circumstantial and direct evidence. |
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Is character evidence admissible? What is it? |
Evidence of a person’s character or character trait (e.g. honesty, carelessness, or drunkenness) is not admissible to prove that on a particular occasion the person acted in accordance with the character trait. Character evidence is a generalized description of a person regarding a character trait that is relevant to an issue in the case. For example, honesty or violence. Ordinarily, offering character evidence that a party previously committed similar acts or was generally careful, careless, or dishonest is not relevant and is not admissible to raise an inference that a party acted in conformity with his character at the time of the incident in question. That is, character cannot be introduced to show that a party was predisposed to act in a certain way and thus must have acted in conformity with his character at the time of the incident. |
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There is an exception to the rule prohibiting the admission of character evidence (as circumstantial evidence) to show that the defendant acted in accordance with that trait on the occasion at issue in the case, which arises in the rare instance where a person's character is "in issue", meaning that the person's character is an essential element in the civil or criminal case. These rare instances are generally limited to cases involving what 4 things? |
1. defamation in which P's character is relevant to show whether P suffered damages as well as to establish the truth of the defendant's statements. 2. a defendant negligently employing or entrusting some person who possesses an undesirable character trait. 3. a criminal battery or homicide to show the victim had a violent character as evidence of the defendant's claim of self-defense. 4. an entrapment case where the prosecution can show the defendant was predisposed to commit the crime. When a character trait or reputation is an essential element in a civil or criminal claim or defense then any kind of RIP character evidence is admissible. R - reputation in the community I - specific instances of prior conduct P - personal opinion |
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What does habit testimony describe? |
Habit testimony describes a party's invariable regular practice and is admissible in a civil or criminal case. The practice must be a regular, repetitive routine response to a particular situation and it need not be corroborated. Evidence of one’s habit may be admitted to prove that a person or organization acted in accordance with that habit and evidence need not be corroborated. |
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How is habit relevant?
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Habit is relevant to circumstantially prove that the conduct of the person or business on a particular occasion conformed with its prior routine repeated practice. Habit evidence attempts to circumstantially show how a person acted on a particular occasion. |
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Is the habit of intemperance admissible?
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The habit of intemperance is admissible to circumstantially prove a party was drunk on a particular occasion, but its admissibility depends on the regularity and repetitiveness of the behavior. |
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NY, but not FRE generally prohibits the admission of habit testimony in negligence cases to prove whether a person had a habit of exercising due care. However, NY permits the introduction of habit testimony if the habit was RED. Explain what RED stands for. |
R - repetitive regular routine response E - the party was in complete and exclusive control of the circumstances and D - the routine act was deliberate |
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The introduction of prior uncharged VIC acts or the defendant's prior convictions solely for the purpose of proving the defendant's predisposition to commit the crime or to prove the defendant's guilt is too prejudicial why? |
Because juries are inclined to believe that if the defendant previously committed a crime, then he probably committed the present crime.
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Why does the exclusionary rule exist?
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This exclusionary rule exists for policy reasons as opposed to logical ones. |
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However, the admission of prior convictions and VIC acts is not prohibited when they are relevant for a purpose other than to show a criminal disposition and their probative value outweighs their prejudicial effect. The prosecution can use such evidence in what 3 instances:? |
1. If a defendant raises the entrapment defense, evidence of other similar convictions or similar VIC acts are admissible on the prosecution's direct case to establish the defendant's predisposition to commit the crime. 2. In a federal, civil, or criminal sexual assault, rape, or child molestation case, evidence of the defendant's prior sexual acts, violence, or child molesting is admissible for any purpose, including to prove the defendant's predisposition or propensity to engage in such conduct. The defendant need not have been convicted. A party intending to use such evidence must disclose this intent at least 15 days prior to trial. 3. (most frequently tested) On direct, in a civil or criminal case provided the court gives proper limiting instructions to the jury, prior convictions and VIC acts can be used to prove MIMIC, provided the court finds their probative value is not substantially outweighed by their unfair prejudicial act. |
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What does MIMIC stand for?
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M - to show the defendant's motive for committing the crime For example, defendant was attempting to conceal a prior crime or was attempting to escape after a crime’s commission when he committed crime #2. The defendant’s involvement in crime #1 can be revealed to the jury to show defendant’s motive for crime #2. I – where intent is at issue, but can’t be readily be inferred from the commission of the act. However, where proof of the act demonstrates defendant’s intent, such evidence should not be admitted. M - an absence of mistake or accident I - to identify the defendant as the perpetrator C - a common plan or scheme or MO (modus operandi) where the similarities between the charged crime and prior uncharged crimes are unusual enough to show the defendant committed both. Such evidence an be admitted when the defendant's identity is not conclusively established by other evidence. |
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When can MIMIC evidence be admitted?
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Even though the defendant was acquitted of the prior crime, MIMIC evidence can be admitted in MBE if a preponderance of the evidence exists to prove the defendant committed the prior MIMIC acts (beyond a reasonable doubt is not required). NY requires that MIMIC be proven by clear and convincing evidence. This does not offend either the double jeopardy clause or the criminal collateral estoppel doctrine. |
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What is real evidence? |
Although most evidence offered at trial is through witness testimony, a fact can be established by the physical production of evidence at the trial. Real evidence is physical evidence shown to the finder of fact rather than mere testimony about it (e.g. a gun, illegal drugs, documents, or a tattoo). |
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What is authentication? |
Before a tangible object or writing can be admitted into evidence, its proponent must show that it is what it is purported to be through the process of authentication. To be admissible, all real and demonstrative evidence must be authenticated (i.e. shown to be genuine). First, the judge makes a preliminary determination that there is evidence sufficient to support a finding that the evidence offered is what its proponent claims it to be. Then, it is up to the jury to determine authenticity (i.e. whether the piece of evidence is actually genuine). |
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If real evidence lacks unique characteristics (e.g. serial numbers on a gun or on money), then what must be established? |
A chain of custody must be established from the time it was seized until the time of trial to sufficiently identify it and assure its unaltered condition.
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Does authentication require certainty?
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The judge must conclude that a reasonable juror could find that the evidence is authentic, but authentication does not require certainty. It is ultimately the jury’s task to determine authenticity. |
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Where is no chain of custody not required for real evidence?
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No chain of custody is required if the real evidence has unique identifying characteristics or markings. For example, serial numbers on currency or a gun. Here, simple identification testimony is sufficient. |
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Where does a gap in a chain of custody go?
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Any gap in a chain of custody goes to the weight given to that evidence by the jury. |
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Handwriting or a signature can be authenticated in what 4 methods? |
1. the testimony of the person who wrote or signed the document 2. the testimony of a lay person who is familiar with that handwriting or signature provided the lay person's familiarity was not acquired for purposes of litigation 3. the trier of fact or an expert witness can compare the handwriting or signature in court with previously authenticated documents and 4. a notice to admit |
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Some documents are so inherently reliable as to be self-authenticating requiring no foundation other than the item itself. NON FLIPS. Explain what NON FLIPS stands for. |
N - newspapers and periodicals (e.g. to prove libel O - official publications or records of a federal or state government or body N - notarized acknowledged documents (except wills) (e.g. deeds, trusts, and separation agreements) F - foreign public records of the custodian's signature is certified by the US embassy L - a product identifiable by its label, tag, or trademark that was affixed to the product in the regular course of business (e.g. in an SPL claim, a can bearing the manufacturer’s label can be introduced as a self-authenticating to show the product manufactured by the defendant). I - negotiable instruments including bills of lading, checks, or shares of stock. All signatures on negotiable instruments are deemed genuine and self-authenticating unless denied in the pleadings. P - copies of public documents or records certified by the clerk of the agency or court who oversees its custody (e.g. a certificate of incorporation, a recorded deed, a birth certificate, or motor vehicle records). S - documents with a government seal. |
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Even though NON FLIPS documents are self-authenticating, if the document is offered to prove the truth of its content, the document must itself do what? |
Fit within the hearsay exception to be admissible.
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In NY and MBE, a non-party's business records can now be authenticated how? |
By an out of court certificate of authenticity containing the TRUMP elements signed under oath by the records custodian.
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Courts consider documents authentic if the documents are what three things? |
1. are in a condition that creates no suspicion concerning their authenticity 2. were in a place where such documents would likely be if authentic and 3. have been in existence for 20 years or more when offered. |
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When are ancient documents admissible and why?
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Ancient documents are also admissible for the truth of the facts recited in the documents as a hearsay exception even though the declarant who made the ancient document is available as a witness. (e.g. a stock certificate dated more than 30 years ago was admissible for the truth of its content as an ancient document). |
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How is a photo authenticated? |
Any photo can be authenticated by the testimony of any witness who is 1. familiar with the scene photographed and 2. can testify that the photograph is an accurate depiction of something she observed. |
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Under the silent witness rule, when no witness is able to testify that she has personally seen the subject matter of a photograph or video (e.g. an X-ray or a surveillant video), it can be authenticated by testimony regarding what three things? |
1. the time and place of filming 2. the operation of the camera and 3. expert testimony or chain of custody evidence to show that the film has not been altered. |
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Similarly, computer printouts are authenticated through testimony describing what two things? |
1. how data are placed into and extracted from the system and 2. that the system produces accurate results If being offered for the truth of their content (hearsay), they may be admissible as business records or as admission of a party opponent. |
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Demonstrative Evidence (aka illustrative evidence) does what? |
Demonstrative evidence illustrates or demonstrates a witness's testimony (e.g. a photograph, chart, model, or demonstration). A foundation must be laid to show that the demonstrative evidence is a fair representation of the witness's testimony that will help the jury understand it. |
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What does the Original Document Rule (Best Evidence Rule) state? |
When the contents of a document, photograph or recording are in dispute, the original must be produced unless the document is unavailable for reasons other than the fault of the proponent. Duplicate copies of an original are admissible under FRE without showing the original is unavailable if the copies are authenticated. To admit copies in NY, the proponent must explain the original's unavailability and authenticate the copy. |
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An original does not have to be produced if its absence can be explained by A DOPE. Explain what A DOPE stands for. |
A - its content was judicially admitted in pleadings, a notice to admit, or EBT testimony by the party against whom it is being offered D - the document has been destroyed or lost O - the original is outside the court's subpoena jurisdiction P - it is a public record and therefore a certified copy is admissible E - the original is under the exclusive possession of the opposing party |
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What happens with secondary evidence if the original is unavailable because of A DOPE?
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If the original is unavailable because of A DOPE, then any secondary evidence (oral testimony) is admissible to prove the content of the document. For example, if a typed letter was lost, a witness can testify as to its content even though a handwritten draft of the letter was available. |
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Does ODR apply when a witness seeks to testify about facts or events the witness perceived?
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ODR does not apply when a witness seeks to testify about facts or events that the witness perceived (heard or saw) even though there is an accurate writing or recording of the event. If the witness perceived the event, then ODR does not apply. |
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Where does the ODR not apply to? |
The ODR does not apply to documents used to refresh the recollection of a witness, but it does apply to a document read into evidence as a prior recorded recollection. |
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Does ODR have to be contested or as a collateral issue?
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ODR does not have to be satisfied on an uncontested or collateral issue. |
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Are summaries of voluminous documents admissible? |
Summaries of voluminous documents are admissible if the original documents upon which the summary is based are made available to the opposing party to copy and review. For example, voluminous phone records to demonstrate defendant’s involvement in a conspiracy, a salesperson’s records in a breach of a commission contract, or computer entries in a Medicaid fraud case. |
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What does the summary’s admissibility depend on?
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The summary's admissibility depends on the admissibility of the underlying documents. The documents used for the summary must have been admissible if they had been offered at trial (e.g. as admissions of a party opponent or business records or hospital rights). |
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What happens to any argument that the summary does not fairly represent the original documents?
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Any argument that the summary does not fairly represent the original documents goes to its weight rather than its admissibility. |
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What does the rule of completeness allow?
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Whenever a portion of a written document is read to the jury, the rule of completeness allows the other party to immediately introduce omitted parts of the document which in fairness ought to be considered to fully explain or complete the evidence introduced and avoid misleading the jury. The opponent does not have to wait for cross-examination to present this evidence. |
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A treatise, textbook, or similar authoritative document can be authenticated as reliable in 1 of 3 ways. What are these? |
1. judicial notice 2. by a party's expert or 3. by the adversary's expert on cross-examination. |
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Even if the expert is not familiar with or denies its reliability, can it still be established as authoritative? |
It can be established as authoritative by another expert.
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What can a treatise or authoritative document do in court?
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A treatise or authoritative document can be read into the record, but cannot be physically offered into evidence as an exhibit to ensure that it is not given undue weight by the jury. |
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Does a professional need to be present in order to interpret the authenticated evidence?
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To read parts of it once it has been authenticated as reliable, there must be a professional on the stand to interpret it for the jury. It can be called to the attention of the professional on the stand and read to that witness on direct or cross-examination. FRE doesn’t consider this evidence to be hearsay. Thus, it can be content for impeachment purposes. |
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NY permits the use of treatises for impeachment purposes when? |
Only and only if the witness being cross-examined acknowledges it as authoritative. It cannot be offered for the truth of its content because NY considers it hearsay.
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What is voice identification and when can it be used? |
Where a witness did not see the person with whom he was speaking, then that out of court voice must be authenticated. |
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FRE and NY allow a lay witness to identify a voice provided she did 1 of what 2 things? |
1. knew the speaker's voice at the time of the conversation and recognized it or 2. subsequently heard his voice and recognized it as a voice she has previously heard. |
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When a witness testifies that she initiated a telephone call, then that witness can authenticate the identity of the person receiving the call through what 3 methods? |
1. voice identification or 2. testimony that the witness called the person at his phone number and circumstances (including self-identification or discussion of matters that only the other person would know) to show the person answering was the person called or 3. introduced phone company records |
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How is a call to a business authenticated?
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A call to a business is sufficiently authenticated if the conversation related to business that would reasonably be transacted over the phone. If W received a telephone call, then authentication of the caller requires 1. that W recognized the voice of the caller or 2. some additional evidence identifying the caller. For example, the contents of the conversation revealed information that only the alleged caller would know or phone records showing the call was placed from a number assigned to the alleged caller. |
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When does a judicial notice occur? |
A judge has discretion to relieve the parties of their duty to present evidence by taking judicial notice of a fact and informing the jury of the fact's existence. |
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A judge may take judicial notice of facts that are LMN. Explain what LMN stands for. |
L - legislative facts M - manifest facts or N - notorious facts |
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What are legislative facts?
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Legislative facts are general facts that the court considers when deciding whether a statute is constitutional or whether a common law principal should be extended. |
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What are manifest facts? |
Manifest facts are facts that can be ascertained from readily available and indisputably reliable sources. For example, the meaning of an abbreviation, that 3rd Ave in NYC runs north, or the distance between two locations. |
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What are notorious facts?
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Notorious facts are common knowledge. For example, that the Hudson River is navigable, that the human gestation period is 9 months, or that 2nd hand smoke is dangerous. |
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What do manifest facts and notorious facts make?
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Together, manifest and notorious facts are also referred to as adjudicative facts. |
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Does a civil jury accept judicially notived adjudicative facts?
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A civil jury must accept a judicially noticed adjudicative fact as proven. However, in a criminal case, the jury may accept the fact. |
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When may or may not a judge take judicial notice?
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A judge may not take judicial notice solely on the basis of her personal knowledge. A judge may not take judicial notice of an element of a crime charged against the defendant. Judicial notice may be taken at any point in a proceeding including on appeal. Judges must also take judicial notice of the law (i.e. the constitution, statutes and case law) so parties do not have to prove the substance of the law. For local ordinances, agency determinations, and foreign laws, the parties have to provide the judge with sufficient supporting documentation before the court will take judicial notice. |
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What is the presumption rule? |
A presumption is a rule of law which requires that a fact be accepted as established when another fact is proven because the presumed fact is likely to flow from the proven fact unless contrary evidence is introduced. Usually the effective of the presumption is to shift the burden of production to the other party to come forward with evidence to negate the existence of the presumed fact.
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Name 8 Civil Law Examples. |
1. Deposits made into a joint bank account are presumed to be an immediate AID gift of 1/2 of each deposit to the other party named on the joint account. 2. Driving another's vehicle gives rise to a presumption that it was driven with the owner's permission. 3. A car striking the rear of another vehicle raises a presumption that the rear car was negligent. 4. A chattel bailed in good condition, but returned damaged or not returned raises a presumption that the goods were stolen or damaged by the bailee. 5. A person missing for 3 years is presumed dead even though there is no direct proof of death 6. In disputes over the payment of life insurance proceeds only, there is a presumption against suicide. 7. Administrative determinations are correct and will only be overturned if found to be arbitrary and capricious, an abuse of discretion, or lacking in substantial evidence. 8. The existence of a person, object, condition, or tendency gives rise to a presumption that its existence continued for a reasonable time (e.g. Proof of lack of mental capacity at one time gives rise to a presumption that a party lacked mental capacity at a later date). |
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What does a presumption do in terms of the burden?
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A presumption does not shift the burden of persuasion, but it imposes a burden of production for the other party to come forward with some evidence to rebut or meet the presumption. |
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What occurs to the presumption under the “bursting bubble theory”?
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Under the "bursting bubble theory" (codified in FRE and generally applicable in NY), the presumption is extinguished (not given to the jury) if the other party produces evidence to support a finding of the non-existence of the presumed fact. |
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Does NY have any codified rules of evidence?
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NY has no codified rules of evidence and thus has not statutorily codified the bursting bubble theory. Certain strong presumptions are still given to the jury even if the other party produces evidence to rebut the presumption and the trier of fact can weigh the presumption alongside other evidence essentially shifting the burden of persuasion. |
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Once the basic fact is established, if sufficient evidence is not offered to rebut the presumption, then what must the civil jury find? |
The civil jury must find the presumed fact.
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What is a criminal inference? |
An inference is similar to a presumption in that both draw logical conclusions from proven facts with an inference, however, the fact finder is permitted, but not required to make the conclusion once the basic facts are established. Res ipsa is an inference. |
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What does a presumption charge do?
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A presumption charge in a criminal case shifts not only the burden of production, but also the burden of persuasion in violation of the requirement that the state prove a defendant's guilt beyond a reasonable doubt. Therefore, in a criminal case, a presumption requiring a conclusion is improper, but an inference permitting a conclusion from proven facts is allowed. The judge should instruct the jury that it may, not must find the inferred fact. |
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When does a criminal inference not violate diue process?
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A criminal inference violates due process unless it can be set with substantial certainty that the inferred fact is more likely than not to flow from the proven fact. |
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