New York Bar Exam: Evidence (Ny And Mbe)

Front 1

Evidence/General: What are the 3 major topics and 4 minor topics?

Back 1

Major - Relevance, Witnesses/Impeachment, Hearsay
Minor - Judicial Notice, Documentary Evidence, Real Evidence, Privileges

Front 2

Relevance/Basic Principles: What makes evidence relevant?

Back 2

Evidence if relevant if it tends to prove or disprove a fact in issue.

Front 3

Relevance/Basic Principles: What's the basic rule on admissibility of evidence?

Back 3

All relevant evidence is admissible.

Front 4

Relevance/Basic Principles: What's the general exception to the basic rule the admissibility of evidence?

Back 4

All relevant evidence is admissible, UNLESS the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by the pragmatic considerations.

Front 5

Relevance/Basic Principles: What are the 3 main categories of pragmatic considerations, encompassing 5 sub-types?

Back 5

3 main types:

1) Unfair prejudice

2) Confusion (the jury) (2 subtypes)

(i) confusion of the issues

(ii) misleading the jury

3) Waste of (judge's) time

(i) undue delay

(ii) waste of time

(iii) unduly cumulative

Front 6

Relevance/Policy-Based Exclusions: What are 2 rationales for policy based exclusions?

Back 6

1)Balancing relevance w/ pragmatic considerations, and

2) Encouraging beneficial out of court conduct

Front 7

Relevance/Policy-Based Exclusions: When is evidence that a person has (or doesn't have) liability insurance inadmissible (rule)?

Back 7

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.

Front 8

Relevance/Policy-Based Exclusions: When is evidence that a person has (or doesn't have) liability insurance admissible (exception to rule)?

Back 8

Such evidence may be admissible for some other relevant purpose, such as:

1) proof of ownership or control, if that issue is controverted, or

2) impeachment of a W

Front 9

Relevance/Policy-Based Exclusions: On what does the decision whether evidence is admissible depend?

Back 9

On the purpose for which it is offered.

Front 10

Relevance/Policy-Based Exclusions: What is the rule on dual purpose evidence?

Back 10

When evidence is admissible for one purpose, but inadmissible for another purpose, the judge should give the jury a limiting instruction.

Front 11

Relevance/Policy-Based Exclusions: What is impeachment?

Back 11

It's the process of trying to show that a W should not be believed

Front 12

Relevance/Policy-Based Exclusions: What is bias?

Back 12

Bias means there is some relationship b/t W and a party that could cause the witness to lie

Front 13

Relevance/Policy-Based Exclusions: When is evidence of a W's bias admissible?

Back 13

Almost always

Front 14

Relevance/Policy-Based Exclusions: What are subsequent remedial measures (SRM)?

Back 14

SRM = repairs, design change, or policy changes taken after an accident that could have prevented the accident

Hint 14

R DC PC

Front 15

Relevance/Policy-Based Exclusions: When are SRMs inadmissible? (4)

Policy for this?

Back 15

SRMs inadmissible to prove

(1) negligence,

(2) culpable conduct,

(3) a product defect, or

(4) a need for a warning.

Policy - encourage post accident repairs

Hint 15

N CC PD NW

Front 16

Relevance/Policy-Based Exclusions: When may SRMs be admissible? (3)

Back 16

SRMs may be admissible for some other relevant purpose, such as proof of

1) ownership, or

2) control, or

3) feasibility of a safer condition, if that issue is controverted.

Hint 16

O C F

Front 17

Relevance/Policy-Based Exclusions: ***What is the NY rule on admissibility of SRMs? What is the exception to the rule?***

Back 17

***NY distinction***

In general, NY rule same as federal rule.

Exception: SRMs admissible in a products liability action based on strict liability for a manufacturing defect.

Front 18

Relevance/Policy-Based Exclusions: In what instance are settlements in civil cases inadmissible? (vi)

Back 18

If there is a disputed claim,

then evidence of settlements or

offers to settle

or statements made in settlement discussions

are inadmissible

if offered to prove liability.

Front 19

Relevance/Policy-Based Exclusions: When are settlements in civil cases admissible?

Back 19

Settlement evidence may be admissible if offered to impeach a witness on the ground of bias.

Front 20

Relevance/Policy-Based Exclusions: What issue will trigger the rule banning settlement evidence triggered?

Back 20

at the time of discussion there is a claim by one side and that claim is disputed by the other side

Front 21

Relevance/Policy-Based Exclusions: What is the rule on offers to pay hospital or medical expenses?

Back 21

Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is inadmissible to prove liability.

Note: This rule doesn't include other statements made in connection with an offer to pay medical expenses.

Front 22

Relevance/Policy-Based Exclusions: What is the rule on pleas and plea discussions in criminal cases and subsequent civil cases? (4)

What is the NY Distinction on #2?

Back 22

The following are inadmissible against a D:

(1) An offer to plead guilty

(2) a withdrawn guilty plea

[**NY distinction: w/drawn guilty pleas admissible in NY**]

(3) a plea of nolo contendre

(4) statements of fact made during any of the above

Front 23

Relevance/Character Evidence: What is character evidence?

Back 23

CE refers to a person's general disposition or propensity for a given character trait

Front 24

Relevance/Character Evidence: What's the first thing to do when approaching a character evidence problem?

What are the 4 mean reasons for intro'ing CE (1 bad, 3 good)?

Back 24

First, ID the purpose for which evidence is offered:

1) propensity - if evidence of a person's character trait offered to prove that person has a propensity to act in a certain way - evidence that person acted in conformity w/ trait on particular occassion in question ('conduct in conformity').

NOTE: CHARACTER EVIDENCE TO SHOW PROPENSITY IS NEVER ADMISSIBLE.

2) Veracity of a W - if evidence of a witness' character for truthfulness 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 element - if evidence of a person's character trait is offered b/c that trait is an essential element of a claim or defense.

Ex: If D claims entrapment as defense, then his predisposition becomes an element of his defense. Then, evidence of disposition is admissible.

Front 25

Relevance/Character Evidence: What is the general rule on the admissibility of character evidence?

Back 25

1) Character evidence is inadmissible to prove propensity

2) Character evidence is admissible for other purposes: to show a witness' veracity, for a non-propensity purpose, and when the trait is an element.

Front 26

Relevance/Character Evidence: What is the rule on character evidence in criminal cases for defendant's character offered by defendant?

What are the exceptions?

How are the Federal Rules/NY Rules different/same?

Back 26

(a) D may introduce evidence of his own good character for a relevant trait

(b) But, if D does so, prosecution may rebut w/ evidence of D's bad character for same trait

(3) Form of character
evidence:

(a) Federal: reputation or opinion

(b) ***NY: reputation only***

(c) Not allowed in either: evidence of specific acts

Front 27

Relevance/Character Evidence: When can prosecution rebut character evidence offered by D of D's good character? (2)

For both, in what forms?

What is required by prosecution to be able to offer this?

Back 27

If the D has opened the door by calling character witnesses, prosecution may rebut in 2 ways

(1) By calling its own witnesses to testify to the D's relevant bad character.

Form:

(a) Federal: Reputation or opinion.

(b) NY: Reputation only.

(2) By cross-examining D's character witnesses by questioning their knowledge of specific acts (usually bad) by the D that are relevant to the character trait at issue.

Form:

(a) For opinion Ws: Did you know...?

(b) For reputation Ws: Have you heard...?

(c) Purpose: to test W's knowledge

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.

Hint 27

Open door

Front 28

Relevance/Character Evidence: ***In NY, what else may the prosecution do to rebut D's good character evidence?***

Back 28

***NY wrinkle - in addition to card 27***
The prosecution may also rebut D's good character evidence by proving that the D has been convicted of a crime that reflects adversely on the character trait in issue

Front 29

Relevance/Character Evidence: What is the federal rule on D offering evidence of V's violent character?

What is the NY Distinction?

How can the prosecution rebut?

Back 29

D can offer R/O evidence of V's violent character to prove that V was the 1st aggressor

***NY Distinction: Can't intro evidence of V's violent charact to prove that V was 1st agressor

Prosecution rebuttal: P may rebut in 2 ways by evidence of
(i) V's good character for that trait or
(ii) D's bad character for that trait

Front 30

Relevance/Character Evidence: ***What is the NY rule on D offering evidence of V's violent character?***

Back 30

***NY Distinction***
In NY, evidence of V's character is inadmissible to prove that V was 1st aggressor

Front 31

Relevance/Character Evidence: What is the special rule for D's knowledge of V's character for violence? (R)

(a): What's the rationale?

(b): What form may this take?

(c): Does NY follow same rule?

Back 31

D may offer evidence of his own knowledge of V's bad character for violence for the purpose of showing that he reasonably believed in the need to use self defense

(a) Rationale - relevant to show D's belief, NOT V's propensity

(b) Form - b/c not prop ev, any form is allowed (rep, opin, spec acts)

(c) NY follows same special rule - NY doesn't allow D to intro ev of V's violent character to prove that V started the fight, but D can intro ev of his knowledge of V's character for violence (b/c that is not a propensity use)

Hint 31

Relates to D, not V

Front 32

Relevance/Character Evidence: What is the rape shield rule?

Back 32

Ordinarily, D may not intro evidence of V's reputation for promiscuity or V's prior sexual conduct.

(Usually in crim, but also applies to civil cases)

Front 33

Relevance/Character Evidence: What are the exceptions to the general rape shield rule? (2)

Why? (1)

***What does NY also allow? (1)

Back 33

A D may intro:

(a) Ev of V's sexual activity w/ D, but only if defense is consent

(b) Ev of V's sexual activity w/ others, but only to prove that someone other than D was the source of physical ev

(c) Ev required to be admitted by D's DP rights (fact driven don't worry about)

(d)***NY only: Ev of V's conviction for prostitution w/in past three years.

Front 34

Relevance/Character Evidence: What is the general rule on character evidence to prove propensity in civil cases?

What is the exception, and the 2 situations that trigger the exception?

Back 34

(a) CE generally inadmissible to prove propensity in civil cases.

(b) Exception: CE admissible in civil action where such character is an essential element of a claim or defense. Only 2 situations:

(i) Negligent hiring (or entrustment)

(ii) Defamation (libel + slander)

Front 35

Relevance/Character Evidence: What is the habit exception (which is an exception to the general rule for propensity evidence)?

What is the definition of habit?

Back 35

The habit exception: Habit of a 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

Definition: Habit is a repetitive response to a particular set of circumstances. 2 distinguishing characteristics are frequency, and particularity

Front 36

Relevance/Character Evidence: On a m/c Q, what words will indicate frequency/habit?

Back 36

always, invariably, automatically, instinctively, do w/o thinking, habitually

Front 37

Relevance/Character Evidence: Is the regular practice of a biz org admissible to prove conduct on a particular occasion?

Back 37

Yes.

Front 38

Relevance/Character Evidence: What's the NY rule on habit evidence? (2 are admissible, 1 is inadmissible)

Back 38

(1) Habit evidence relating to a business, trade, or profession is admissible

(2) Evidence relating to personal habit in the use of a product is admissible

BUT

(3) Evidence relating to personal habit on the issue of due care in negligence is inadmissible

Front 39

Relevance/Character Evidence: Just to review, what is the general rule on crimes/bad acts to prove propensity in Pr's CiC?

What is the exception to the rule?

Back 39

Review: The general rule is that a D's other crimes or specific bad acts are inadmissible during the P's C-i-C if the purpose is to prove propensity, i.e., b/c of D's bad character he is more likely to have committed the crime
currently charged.

But

If the D's other crimes or specific bad acts are offered for some purpose other than propensity, then the evidence will not be barred by the rule against character evidence.

Front 40

Relevance/Character Evidence: What is the MIMIC Rule?

Back 40

D's other crimes or bad acts may be admissible if offered to show something specific about the charged crime.

MIMIC:

1. M MOTIVE

2. I INTENT

3. M MISTAKE or accident, absence of

4. I IDENTITY

5. C COMMON scheme or plan

Front 41

Relevance/Character Evidence: If MIMIC category satisfied, when may P use it?

Back 41

If a MIMIC category is satisfied, P may use other-crimes evidence as part of its C-I-C.

Intro of MIMIC evidence does not depend on D's introduction of favorable character evidence.

Front 42

Relevance/Character Evidence: How to prove MIMIC-purpose crimes?

Back 42

1) By Criminal conviction,

or

2) By evidence that proves the crime occurred, even if D was never convicted/arrested.

Front 43

Relevance/Character Evidence: If using method 2) to prove MIMIC-purpose crime, what is the burden of proof in FRE?

***What is the NY rule?

Back 43

1) Federal: Sufficiency standard (must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of evidence)

2) ***NY: Identity evidence. P must produce C & CE that D committed the prior act.

Front 44

Relevance/Character Evidence: What are other requirements for MIMIC evidence? (3)

Back 44

***May See on NY Essay***

1) Pragmatic consideration - Court must weigh probative value vs. prejudice

2) A limiting instruction - Court must instruct jury about limited purpose of MIMIC evidence

3) Pre-trial notice - Upon D's request, P must give pre-trial notice of intent to introduce MIMIC evidence.

Hint 44

P LI N

Front 45

Relevance/Character Evidence: Can MIMIC evidence be used in civil cases?

Back 45

Yes, it may be used, if relevant. Ex: spite fence Q

Front 46

Relevance/Character Evidence: What is the Federal rule governing other sexual misconduct to show propensity for sexual assaults?

***What is the NY rule?

Back 46

1. Federal Rule: In any case alleging sexual assault or child molestation, prosecution may offer evidence of D's prior sexual assaults for the purpose of proving D's propensity to commit sexual assault. "once a rapist, always a rapist" is OK

2. ***NY Rule: Rapists and child molesters are treated just like every other D - prosecution may not introduce evidence of prior bad acts to prove propensity.***

Front 47

Relevance/Character Evidence: What's the general rule of relevance, and what is its exception?

Back 47

1. To be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, the evidence is inadmissible. [Good fallback on NY essay]

2. Exception: In some limited and specific circumstances, other similar occurrence may be admissible, even if they relate to a time, event, or person other than that involved in the present litigation.

Hint 47

T E P

Front 48

Relevance/Character Evidence: What are six situations that trigger the exception to the rule of similar occurrences?

Back 48

I C SHIP

1. Intent in issue

2. Comparable Sales on issue of value

3. Similar accidents caused by same event or condition

4. Habit (see above cards on habit)

5. Industrial custom as standard of care

6. P's accident history

Hint 48

arctic icebreaker

Front 49

Relevance/Character Evidence: What's the rule (and its exception) on P's accident history? (1), (1, 2)

Back 49

1. P's history of accidents or law suits is inadmissible.

2. Exception: P's prior accidents may be admissible to show

i) a fraudulent scheme or plan, or

ii) causation

Front 50

Relevance/Character Evidence: What's the rule on the admissibility of prior accidents?

What are the exceptions?

Related rule on experiments?

Back 50

Rule: Other similar accidents are generally not admissible,

Except:

Other accidents

(i) involving the same instrumentality or condition, and

(ii) occurring under substantially similar circumstances, may be admitted for three potential purposes:

(a) To show existence of a dangerous condition

(b) To show causation

(c) To show prior notice to D

3. Related rule for experiments and test: The standard for admitting experiments and tests is the same. There must be substantial similarity between the experiment and the disputed fact

Front 51

Relevance/Character Evidence: What's the rule on Intent in issue?

Back 51

Prior similar occurrences may be relevant to draw an inference of intent from a person's prior conduct (similar to MIMIC).

Front 52

Relevance/Character Evidence: What's the rule on comparable sales on issue of value?

Back 52

The sales of comparable property (similar type, in the same general location, in the same time period) is admissible as evidence of the value of the property at issue

Front 53

Relevance/Character Evidence: What's the rule on industrial custom as standard of care?

Back 53

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as evidence as to how the litigating party should have acted, i.e., evidence of the appropriate standard of care

Hint 53

T or I

Front 54

Judicial Notice: What is judicial notice?

Back 54

The recognition of a fact as true w/o formal presentation of evidence (proof w/o ev)

Front 55

Judicial Notice: What is the rule for judicial notice?

Back 55

A court may take judicial notice of indisputable facts, which come in 2 forms:

1. Matters of common knowledge w/in the court's territorial jurisdiction: NY court takes judicial notice of where Times Sq is.

2. Matters capable of easy verification by resort to unquestionable sources (court takes NY that 11/22/64 was Sun.)

Court may take JN on its own, or upon request by a party

Front 56

Judicial Notice: When may JN be taken?

Back 56

At any time, including appeal

Front 57

Judicial Notice: What is the effect of JN?

Back 57

JN facts are considered conclusive in civil cases, but not in criminal cases.

Front 58

Documentary Evidence: What to look out for whenever a writing appears on the exam?

Back 58

Be on the lookout for 3 potential issues (aside from relevance):
1) Authentication,
2) Best evidence, and
3) Hearsay

Front 59

Documentary Evidence/Authentication: What is the general rule on authentication?

Back 59

The party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be.

Front 60

Documentary Evidence/Authentication: What is the authentication rule for writings?

Back 60

If the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship in order to authenticate the writing

Front 61

Documentary Evidence/Authentication: What are the methods for authenticating writings?

Back 61

1. Pleadings or stipulation

2. Evidence of authenticity

a. Admissions - party against whom offered has either admitted/act upon it as authentic

b. Eye-W testimony

c. Handwriting - nonexpert w/ personal knowledge ONLY, expert opinion (compare w/ exemplar), trier of fact thru comparing samples

d. ancient docs - (1) at least 20yo, (2) such condition as to be free from suspicion, (3) found in place where such writing would be kept

e. Reply letter doctrine - written in response to communication sent to claimed author

f. Photographs - (1) if ID'd by W as a portrayal of certain facts relevant to issue, verified by W as a correct rep of facts, W alone enough (2) if unattended camera, show that camera working at time, photo developed from film that came from camera

g. X-rays - can't auth w/ W testifying it's a correct rep of facts, must be shown that process accurate, maching workign, operator qualified, need custodial chain

Front 62

Documentary Evidence/Authentication: What are self-authenticating documents? (7)

Back 62

presumed authentic, no foundation testimony needed:

1. Certified business records - offered into evidence under the business records hearsay exception

2. Certified copies of public or private documents on file in public office - deeds/mortgages in city clerk's office

3. Acknowledged document -
notarized document


4. Newspapers or periodicals - WSJ to prove stock price

5. Trade inscriptions and labels - candy bar wrapper

6. Official publications - gov't pamphlets

7. Commercial paper - check
or promissory note

Hint 62

C CANTO C!~

Front 63

Documentary Evidence/Authentication: How are certified business records certified? (4)

Back 63

Must be certified

1) by someone w/in business

2) who knows how records are regularly made

3) and that these documents were made in the regular way

4) at or about the time of the event recorded

Front 64

Documentary Evidence/Authentication: How is a photograph as demonstrative evidence authenticated?

Back 64

If the purpose of the photograph is to 'illustrate' a W's testimony, it can be authenticated by the W testifying, based on personal knowledge, that the photo is a fair and accurate description of the people or the objects portrayed

Front 65

Documentary Evidence/Authentication: How is a photograph as 'silent witness' authenticated?

Back 65

If the photo itself is evidence (photos from surveillance cameras, ATMs), a party offering such a photo must show:
1) That the camera was properly installed and working
2) That the film was properly removed and developed
3) And that the film has not been tampered with - best way to do this is to establish a chain of custody.

Front 66

Documentary Evidence/Best Evidence rule: What is the best evidence (original document) rule?

Back 66

To prove the terms of a writing, original writing must be produced if terms of writing are material. Secondary evidence of writing (oral testimony) admissible only if original unavailable

Front 67

Documentary Evidence/Best Evidence rule: When does BE rule apply?

Exceptions?

Back 67

Applies where: (i) writing is a legally operative or dispositive instrument, or (ii) the knowledge of a W concerning a fact results from having read it in a document

Does not apply:

a. Fact to be proved exists independently of writing

b. writing is collateral to litigate issue

c. summaries of voluminous records

d. public records

Front 68

Documentary Evidence/Best Evidence rule: What qualifies as the original writing?

Back 68

Original doc and duplicate:

1. Original is the writing itself or any duplicate that is intended by person executing it to have same effect as original.

2. Duplicate - an EXACT copy of an original, photocopy.

Duplicates admissible in federal court unless authenticity of original challenged/unfairness would result

Front 69

Documentary Evidence/Best Evidence rule: What is the rule for duplicates?

Back 69

A duplicate is admissible to the same extent as an original, unless:
i) there is a genuine question about the authenticity of the original, or
ii) it would be unfair to admit the duplicate

Front 70

Documentary Evidence/Best Evidence rule: What's the NY rule for duplicates?

Back 70

***Photocopies and other duplicates are acceptable substitutes for the original only if the duplicates were made in the regular course of business.***

Front 71

Documentary Evidence/Best Evidence rule: What's not considered original?

Back 71

Handwritten copies

Front 72

Documentary Evidence/Best Evidence rule: When will non-production of the original be excused? (3)

Back 72

Rule: A party need not produce the original (or an acceptable duplicate) if the original:

(1) Is lost or cannot be found w/ due diligence, or

(2) Has been destroyed w/o
bad faith, or

(3) Cannot be obtained w/ legal process beyond subpoena

Front 73

Documentary Evidence/Best Evidence rule: What are "escapes" from the requirements of the best evidence rule?

Back 73

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

Front 74

Documentary Evidence/Best Evidence rule: On the MS bar exam, the best evidence rule is?

Back 74

Most often an incorrect choice.

Front 75

Real Evidence: What is real evidence?

Back 75

Actual physical evidence addressed directly to trier of fact. Can be direct, circumstantial, original or prepared

Front 76

Real Evidence: What is the rule on authenticating real evidence?

Back 76

Object must be ID'd as what proponent claims it to be, either by:

1. Testimony of W that she recognizes object as what proponent claims it is

2. Evidence that object held in substantially unbroken chain of possession

Front 77

Real Evidence: What is the process of authentication called?

Back 77

Laying a foundation

Front 78

Real Evidence: What are the methods of authenticating real evidence?

Back 78

(1) Personal knowledge - W testifies "I recognize this gun as the one found at the crime scene."
(2) A chain of custody - W testifies "this drug sample has been in my possession ever since it was seized from the D."
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.

Front 79

Real Evidence: What condition must the real evidence be in?

Back 79

If the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition.

Front 80

Testimonial Evidence/Witnesses/Competency: What requirements must a W meet to be considered competent to testify? (1, 2 + (i),(ii)

Back 80

(1) The W must have personal knowledge, and

(2) The W must take an oath, which simply means:

(i) Demonstrate an understanding of the obligation to tell the truth, and

(ii) Promise to tell the truth.

Front 81

Testimonial Evidence/Witnesses/Competency: What is the NY rule for testimony by children in civil and criminal cases?

Important exception?

Back 81

***NY Distinction***

The general rule: A child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth.

(i) Civil Cases: unsworn testimony of a child is inadmissible.

(ii) Criminal Cases: A child under the age of 9 who cannot understand the oath may still testify

BUT, a D cannot be convicted based solely on unsworn testimony. There must be some corroboration.

Front 82

Testimonial Evidence/Witnesses/Dead Man's Statute: Is there a dead man's statute under the FRE?

Back 82

No. A W is not incompetent simply b/c she may have an interest in the outcome of the litigation.

Front 83

Testimonial Evidence/Witnesses/Dead Man's Statute: Generally, what do the dead man's statutes in the states that have them provide? (5)

Back 83

(1) In a civil action,

(2) An interested party

(3) May not testify

(4) Against a dead party (or that party's representative)

(5) About communications or transactions w/ the dead party.

Front 84

Testimonial Evidence/Witnesses/Dead Man's Statute: What is the definition of "interested."

Back 84

The outcome of the case will have a legally binding effect on the person's rights or obligations.

Front 85

Testimonial Evidence/Witnesses/Dead Man's Statute: When may a dead person's rights be waived? (3)

Back 85

If:

(1) Decedent's representative does not object, or

(2) Decedent's representative testifies about the transaction, or

(3) Decedent's testimony is introduced.

Exam Tip: Although the federal rules have no dead man's statute, the MBE may still test on it by telling you in the Q that the case arises out of a state w/ a Dead Man's Statute.

Front 86

Testimonial Evidence/Witnesses/Dead Man's Statute: What is the NY dead man's statute?

Back 86

***NY Distinction***

(1) The rule: The NY dead man's statute is similar to the rule in most other states w/ one important exception:

(2) The accident exception: In an accident case based on negligence, the surviving party:

(i) May testify about the facts of the accident,

(ii) But, may NOT testify about conversations w/ the decedent.

Front 87

Testimonial Evidence/Form of Testimony/Leading Questions: What is a leading question?

Back 87

when the form of the question suggests the answer.

Front 88

Testimonial Evidence/Form of Testimony/Leading Questions: What's the rule on leading questions?

Back 88

Generally not OK on direct, OK on cross

Front 89

Testimonial Evidence/Form of Testimony/Leading Questions: What are the exceptions to the rule on leading questions? (4)

Back 89

(1) Preliminary introductory matters

(2) A youthful or forgetful W

(3) A hostile witness

(4) The adverse party or someone under the control of the adverse party

Hint 89

P Y H AP

Front 90

Testimonial Evidence/Writings in aid of oral testimony:

What is the present recollection refreshed rule?

What are acceptable refreshers?

What are safeguards against abuse? (3)

Back 90

W may use and writing or thing for the purpose of refreshing her present recollection. May not read from writing while actually testifies, b/c writing not auth and not evidence

Acceptable refreshers: Anything.

opposing party can use the item used to refresh W's recollection by

(i) Inspecting it,
(ii) using it on cross, and
(iii) indtroducing it into evidence.

Front 91

Testimonial Evidence/Writings in aid of oral testimony: What is the past recollection recorded rule? (5 parts)

Back 91

The rule: A writing may be read to the jury as a "past recollection recorded" if:

(1) The W once had personal knowledge,

(2) The W now forgets, and showing the writing to W fails to jog W's memory,

(3) The writing was either made by the W or adopted by the W,

(4) The writing was made when the event was fresh in W's memory,

(5) And, the W can attest that, when made, the writing was accurate,

Her testimony can be read into the record

Hint 91

Applies to the Jury, not to W

Front 92

Testimonial Evidence/Writings in aid of oral testimony: What is the method for reading a past recollection recorded to the jury?

***What's the NY Distinction?

Back 92

If the foundation for a recorded recollection is satisfied (1-5 in prior card), then:

(1) W may read the doc to the jury.

(2) But W may not show the doc to jury.

(3) But the opposing party may show the doc to the jury (by introducing it as an exhibit).

***NY DISTINCTION***
The party using the recorded recollection may also introduce the record as an exhibit (i.e., show it to the jury).

Front 93

Opinion Testimony: When is lay opinion testimony admissable?

Back 93

Admissible if:

1. Rationally related to W's perception (personal knowledge) and

2. helpful to jury

Hint 93

RR, H to FF

Front 94

Opinion Testimony: When is expert opinion testimony admissable? (4)

Back 94

Expert can testify if:

1. Subject matter is one where expert testimony would assist the trier of fact,

2. W qualified as expert, (special knowledge skills, training, education)

3. Expert has reasonable probability re: his opinion

4. Opinion support by proper factual basis:

(i) personal observation,

(ii) facts made known to expert during trial,

(iii) facts not personally known but supplied to him outside courtroom and of a type reasonably relied upon by experts in the particular field

Hint 94

OWES

Front 95

Opinion Testimony: How to determine proper basis of expert opinion? (3)

Back 95

Opinion must be based upon reasonable degree of probability or reasonable certainty

Opinion must be based on one of 3:

1. personal knowledge of expert, OR

2. evidence in the trial record, (made known to expert w/ hypo Q), OR

3. facts outside the record (meaning even facts inadmissible as hearsay), ONLY if those facts are of a type reasonable relied on by experts in the particular field.

Hint 95

PKE or ETR or FOR if ERR

Front 96

Opinion Testimony: What's the FRE rule on reliability of expert testimony? (2)

Back 96

To be admissible, expert opinion must be sufficiently reliable:

1. expert has used reliable methods and

2. expert has reliably applied those methods to the particular facts of the case.

Hint 96

RM, RAM FOC

Front 97

Opinion Testimony: What's the NY rule on reliability of expert testimony?

Back 97

***Frye standard: NY asks whether the methodology has been generally accepted by the relevant professional community.***

Front 98

Opinion Testimony: Rule on ultimate issue?

What's the Exception (FRE only)

Back 98

Opinion (lay or expert) testimony generally OK even if it addresses an ultimate issue in the case (X was drunk, X signature on check).

Exception (FRE only): In a criminal case, an expert W may not testify that D did or didn't have the required mental state (seen in insanity cases)

Front 99

Opinion Testimony: What's the hearsay exception on learned treatise in aid of expert testimony?

***What are the NY Exceptions?

Back 99

Scientific treaties or writings excluded as hearsay when offered as proof of facts assert therein. But on cross, scientific texts which the expert has referred to favorably while on stand or conceded as authoritative on cross can be used to discredit experts opinion

can cross-ex expert about statements contained in any publication established as reliable auth either by expert testimony or by JN.

FRE: can use treatises to impeach experts AND as substantive evidence w/ limitations:

1. Expert must be on stand when excerpt read from treatise,

2. Relevant portion is read into evidence but not received into evidence

Front 100

Cross-examination: What happens if W testifies but then can't be cross-exed?

Back 100

Cross-ex is a right. If W testifies but then can't be cross-exed, W's direct testimony will be struck.

Front 101

Cross-examination: What is the proper subject matter of cross-ex? (2)

Back 101

Includes:

Matter w/in scope of direct examination and

matters that affect W's credibility (cred always an issue, always appropriate)

Front 102

Credibility and Impeachment: What is credibility? (3)

Back 102

Whether W's perception memory or honestyy are believable.

Front 103

Credibility and Impeachment: What is impeachment?

Back 103

process of trying to demo W not credible.

Front 104

Credibility and Impeachment: What's rehab?

Back 104

process of trying to repair W's cred after W impeached.

Front 105

Impeachment methods: What are the methods of impeachment? (7)

Back 105

1. Prior inconsistent statement PIS

2. Bias, Interest, or Motive to Misrepresent

3. Sensory Deficiencies

4. Reputation or Opinion

5. Criminal Convictions

6. Bad Acts (w/o conviction)

7. Contradiction

Note: 4, 5, 6 relate to Character, but for W, not party.

Front 106

Impeachment methods: What is intrinsic impeachment?

Back 106

Asking W Qs on cross-ex.

Front 107

Impeachment methods: What is extrinsic impeachment?

Back 107

Introducing documentary evidence or by calling other Ws.

Front 108

Impeachment methods: What's a PIS?

Back 108

A prior statement (oral or writing) that is materially inconsistent w/ W's trial testimony.

Front 109

Impeachment methods: What can PIS be used for?

For what can it not generally be used?

What's the exception, (and what are its 2 triggers)?

What's the NY distinction

Back 109

To impeach a W.

Purpose: Ordinarily, PIS admissible only to impeach (not as substantive ev that prior statement is true)

Exception: PIS may be admitted both to impeach and as substantive evidence (i.e., to prove truth of prior statement), if statement was made:

+ Orally under oath, and
+ as part of a formal hearing, proceeding, trial or deposition.

***NY DISTINCTION: PIS, even if given in formal testimony under oath, are admissible ONLY to impeach.***

Front 110

Impeachment methods: What must a W who is being impeached w/ PIS get?

What's the timing in NY and FRE?

What's the exception?

Back 110

RULE: Must be given an opportunity to explain or deny the PIS.

Timing:

NY: W must get chance to explain statement while on the stand (statement must be proven through intrinsic cross-ex b/f it can be proven extrinsically)

Federal: Timing more flexible. PIS may be proven by extrinsic evidence, so long as W later given opportunity to return to stand and explain.

EXCEPTION TO RULE: If W opposing party, there is no need to give W/party an opportunity to explain the PIS.

Front 111

Impeachment methods: What is bias, interest, or motive to misrep?

Back 111

Some relationship b/t W and party, or some other interest in litigation, that could cause W to lie.

Front 112

Impeachment methods: How may bias always be proven?

Back 112

b/c so important, bias may always be proven by extrinsic evidence. Generally, W should be confronted w/ alleged bias b/f proven by extrinsic evidence.

Front 113

Impeachment methods: What are sensory deficiencies?

Is intrinsic confrontation required?

Back 113

Anything that could affect W's perception or memory.

Proc Issues: Intrinsic confrontation not required. Extrinsic evidence allowed.

Front 114

Reputation or Opinion About W's Bad Character for Truthfulness: How may a party impeach a W's veracity?

What forms are allowed?

What's not allowed?

Procedural Issues?

Back 114

May impeach the target W by calling another W (character W) to testify to target W's bad character for veracity.

Forms: (same as for character evidence):

Federal: Rep or opinion

NY: Rep only

Not allowed: Specific acts.

Proc issues: Any W who has testified may be impeached by this method and extrinsic evidence is allowed.

Front 115

W's Criminal Convictions: Why do this?

Back 115

A person who has been convicted of a crime more likely to lie under oath than is a person w/ unblemished record.

Front 116

W's Criminal Convictions: NY rule?

Back 116

Any W may be impeached w/ a conviction for any crime.

Sandoval Rule: When W is criminal D, court must conduct hearing to balance the probative value of conviction (on the issue of veracity) against the risk of unfair prejudice.

Front 117

W's Criminal Convictions:

FRE rule?

Time limit?

Back 117

1. Must be a felony or a crime involving dishonesty.

2. Time limit: To be admissible a conviction (or release from prison, whichever is later) must be w/in 10yrs of trial.

Front 118

W's Criminal Convictions: FRE rule, how to balance probative value and unfair prej?

Back 118

1. Factors making conviction probative: Seriousness, relation to trust and deception.

2. Factors that make a conviction unfairly prejudicial: Inflammatory nature (child molestation more prejudicial than DWI), Similarity to the currently charged offense (if identical, +).

Front 119

W's Criminal Convictions: How to prove W's convictions?

Back 119

Proof: Conviction may be proven intrinsically (ask W in cross-ex) or extrinsically (intro record of conviction).

Front 120

Bad Acts (w/o conviction) that reflect adversely on W's character for truthfulness: What may a W be asked about in FRE and NY?

Are there any requirements by cross-examiner?

Back 120

FRE: W can be asked about prior bad acts if those acts relate to truthfulness. Only on cross-ex

NY: W may be asked about prior bad acts that show W's moral turpitude (includes crim conduct that doesn't relate to truthfulness).

Limitations:

Cross-exer must have a good faith basis to believe that the bad act occurred.

The bad act may be proven by intrinsic evidence ONLY. (Cross-exer stuck w/ W's answer)

Front 121

Arrests admissible:

For impeaching W's character for veracity?

For impeaching character W's knowledge?

Impeaching a W by showing bias?

Back 121

Impeaching a W's character for veracity: No

Impeaching a character W's knowledge: Yes

Impeaching a W by showing bias: Yes

Front 122

Contradiction: When may W be impeached through contradiction?

What's the procedure? (2)

Back 122

W may be impeached by showing W made a mistake/lied about any fact she testified to during direct.

Procedure:

1. If contradiction goes to an issue significant to case, may be proven by EE.

2. If contradiction goes to a matter that is collateral, then proof limited to intrinsic evidence (and cross-exer stuck w/ W's answer)

Front 123

Impeachment of own W: What are the FRE and NY rules?

What is the exception to the NY rule?

Back 123

FRE: any party may impeach any W.

NY: (Voucher rule) by calling a W, party vouches for that W's cred. Party who calls a W may not impeach that W.

Exceptions: A party may impeach own W w/ a PIS that was made in writing and signed by W, OR made in oral test and was under oath.

Front 124

Rehabilitation: When allowed?

When not allowed?

***What's NY rule? (w/ warning)

Back 124

Generally, W may be rehabilitated only after the W's cred has been attacked through impeachment. Introducing evidence to support a W's cred b/f W's credibility has been attacked called bolstering and is not allowed.

Exception: W's prior statement of ID admissible, even if W's credibility has not yet been attacked. Prior ID seen as more reliable than in-court ID, admissible as substantive ev (HS exception)

NY: Follows the same rule in crim cases, but doesnt' allow prior ID in civil cases. Warning: Statement of ID must be made by a trial W who is subject to cross.

Front 125

Rehabilitation: Methods?

Back 125

a. Explanation on redirect - W on redirect may explain or clarify facts brought out on cross ex

b. Good rep for truthfulness

c. Prior consistent statement, but only if testimony of W has been attacked by an express or implied charge that W is lying/exaggerating b/c of some motive, PCAS OK to rebut.

FRE: PCS like this is substantive evidence of truth of its contents whether under oath or not.

Front 126

Testimonial Privileges: What procedure to use?

Back 126

General rule: in fed court, apply FRE. Exception: In fed diversity cases (state law governs substantive claims), still apply FRE, but apply state law w/ respect to:
burdens of proof and presumptions,
dead man's statutes,
privileges.

Front 127

Testimonial Privileges: What are the recognized privileges?

Back 127

FRE:
1. atty/client
2. H/W
3. Priest/penitent
4. Psychotherapist/patient
Main diff: F CL doesn’t recognize doctor/patient privilege, majority of S do. Apply majority rule unless Q says in federal court.
NY: In addition to 4 above, NY also recognizes

5. Dr./patient

6. Social worker/client (ex rape crisis counselor)

7. Reporter/source

Front 128

atty/client priv: What's the rule, yo?

Back 128

conf comms b/t atty and client (or their reps) made during professional legal consultation will be privileged unless priv waived by client or exception applies. Elements:
a) applies to relationship b/t atty and client (or their reps)
b) covers communications
c) So long as they are confidential and
d) for the purpose of legal advice
Unless
e) the priv is waived by client, or
f) an exception applies.

Front 129

atty/client priv: how is the privilege lost?

Back 129

a) waiver - client alone has power to waive
b) exceptions -
1 future crime or fraud
2 when client puts legal advice at issue, my lawyer told me it was OK,
3 Atty/client dispute - billing, malpractice.

Front 130

doctor/patient privilege: What's the majority rule?

Back 130

Confidential communication or infor acquired by MD from patient for purpose of diag or treatment ofa medical condition is privileged.
Federal distinction: covers only psychotherapist.
Losing the privilege: waived if patient expressly or impliedly puts phys/mental condition at isse (e.g., P in a personal injury case, criminal D asserting insanity)

Front 131

Spousal Privileges: Spousal Communications Rule?

Back 131

Confidential communication b/t spouses will be privileged. Elements:
1. Comms made in reliance on the intimacy of the marital relationship are privileged. Applies to both civil and criminal proceedings

2. Both spouse have privilege not to disclose, and to prevent the other from disclosing, a confidential marital communication.

3. Privilege survives the marriage, but covers only statements made during the marriage.

Front 132

Spousal Privileges: Spousal Immunity rule (spousal testimony privilege)?

***NY distinction?

Back 132

1. One spouse cannot be compelled to testify against the other spouse in any criminal proceeding

2. Only the W-Spouse may invoke spousal immunity (the party spouse cannot prevent the W-spouse from testifying)

3. The privilege can be claimed only during marriage, but covers information learned before and after marriage.

*NY Distinction: Not recognized.*

Front 133

Spousal Privileges: Exceptions (applicable to both privileges)?

Back 133

Communications or acts:
in furtherance of future crime or fraud or
destructive of the family unit
not privileged.

Front 134

Hearsay: What is it?

Back 134

An out of court statement offered for the truth of the matter asserted.

Front 135

Hearsay: Is the basic rule?

Back 135

Hearsay is inadmissible.

Front 136

Hearsay: What are the 3 non-hearsay uses?

Back 136

1. Verbal Acts/Legally Operative Acts (WILS, Words of Independent Legal Significance)

2. Statements offered to show their effect on the hearer/reader (like prove notice in negligence)

3. Statements offered as circumstantial evidence of the declarant's state of mind (insane, knowledge)

Front 137

Hearsay: In deciding whether evidence is hearsay, what to ask?

Back 137

Does it matter whether declarant is telling the truth? If not, evidence is not hearsay

Front 138

Hearsay: What are the general heasay exceptions?

Party,

Unavailability required

Availability immaterial

Back 138

Party:

1. Party admission in NY, in FRE, non hearsay

Unavailability required:

1. Former testimony

2. Forfeiture by wrongdoing (statements offered against party procuring dec's unavailability)

3. Statements against interest

4. Dying declaration

5. Statement of personal/family history

Availability immaterial:

1. State of mind

2. EU

3. PSI (***NY req corrob)

4. Physical condition (medical diagnosis/treatment)

5. Recorded recollection

6. Business records or absence thereof

7. Public records/reports

8. Records of vital statistics

9. Judgment of prior convictions

10. Ancient documents

11. documents affecting property interest

12. Learned treatises

13. Reputation

14. Family records + bible

15. Market reports

Front 139

Hearsay: What statements are nonhearsay under FRE? (6)

Back 139

1. Nonassertive conduct

2. Statement not offered for its truth

3. PIS made under oath

4. PCS offered to rebut charge that witness is full of shit

5. PS of ID

6. Admission of party-opponent (vicarious admission)

Front 140

Hearsay: What are examples of prior statements by W that aren't hearsay under FRE? (3)

Back 140

a. PIS to Dec's in-court testimony given under oath at a prior proceeding,

b. PCS w/ Dec's in-court testimony and is offered to rebut a charge that W is lying/exaggerating b/c of some motive (and statement was made before any motive to lie or exaggerate arose), or

c. PS is one ID'ing person made after seeing person

Front 141

Hearsay: What are examples of admissions by a party opponent? (3)

Back 141

a. Judicial and extrajudicial admissions - formal judicial admissions (pleading, stipulations) are conclusive. Informal judicial admissions made during testimony and extrajudicial (evidentiary) admissions are not conclusive and can be explained

b. Adoptive Admissions - party makes admission by expressly or impliedly adopting/acquiescing in another's statement

c. Vicarious admissions

Front 142

Hearsay: When will silence be considered an adoptive admission?

Back 142

If a reasonable person would've responded, and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission only if:

(i) the party heard and understood the statement;

(ii) the party was physically and mentally capable of denying the statement; and

(iii) a reasonable person would've denied the accusation.

[doesn't apply in face of silence in face of police accusations of a crime]

Front 143

Hearsay: What are examples of vicarious admissions?

Back 143

P-A, Co-conspirators, Partners

FRE: A statement by an A or Ee of a party is admissible against the party if it concerns a matter w/in the scope of the agency or employment, and was made during the agency or the employment.

***NY Distinction: A statement by an Ee or A is admissible against P only if the A or Ee had speaking authority (CEO, General counsel, VP for comms)

Vicarious admissions by co-consps: A statement of one co-consp is admissible against the other co-consps if the statement was made during and in furtherance of the conspiracy.

Front 144

Hearsay: When is a W unavailabile?

Back 144

W is unavailable if he PAILS

1. His testimony is PRIVILEGED;

2. He is ABSENT from the jurisdiction,

3. He is ILL OR DEAD,

4. He testifies to LACK OF MEMORY

5. He STUBBORNLY refuses to testify.

Front 145

Hearsay: What are the 5 hearsay exceptions in which dec must be unavailable?

Back 145

1. Former Testimony

2. Statements against interest

3. Dying Declarations

4. Statements of Personal or Family History

5. Statements offered against party who procured the dec's unavailability

Front 146

Hearsay: What are the requirements for former testimony to be admissible? (4)

Back 146

need all 4

a. party in the former action

b. former action involved same subject matter

c. testimony given under oath

d. party against whom offered had an opportunity at the prior proceeding to direct, cross, redirect

Note: Doesn't include GJ testimony, no opp to X-examine

Front 147

Hearsay: When are statements against interest admissible?

Back 147

unavailable W

statements that were against that person's pecuniary, proprietary, or penal interest when made, as well as collateral facts in the statement, are admissible

Declarant must also have had personal knowledge of the facts, and must have been aware that statement was against her interest when she made it.

Front 148

Hearsay: When are DDs admissible?

***NY distinction

Back 148

In a homicide or a civil action, a statement made by a now unavailable dec is admissible if:

a. declarant believed his death was imminent (he needn't actually die); and

b. statement concerned the cause or circumstances of what he believed to be his impending death.

***NY DDs admissible ONLY in a HOMICIDE and only if they RELATE TO DEC'S DEATH

Tip: MBE may req that you dist this from the CL rule. Watch out for head fakes reflecting traditional rule, which required that dec ultimately die of injury and restricted statement's use to homicides.

Front 149

Hearsay: When are statements of personal family history available?

Back 149

W unavailable

statements concerning marriages, births, divorces, relationships, genealogical status, etc, admissible if:

a. Dec is a member of the family/intimately associated w/ family,

b. statements based on dec's personal knowledge of the facts or her knowledge of family reputations

Front 150

Hearsay: When are PSIs admissible?

***NY exception?

Back 150

availability immaterial

PSI - comments made concurrently w/ the sense impression of an event

***NY PSIs require corroboration

Front 151

Hearsay: EU?

Back 151

Avail Immat

An OOC statement relating to a startling event, made while under the stress from the excitement of the event (b/f dec had time to reflect)

Front 152

Hearsay: PSI? make sure correct

Back 152

Relies on spontaneity to assure reliability. Unavailability not required.
Elements:
1. Statement describes an event,
and is made while the event is occurring or immediately thereafter (seconds, not minutes).
***NY distinction: Requires corroboration.

Front 153

Hearsay: Past/Present Physical conditions?

NY exceptions?

Back 153

a. Present bodily condition: a spontaneous declaration of present bodily condition is admissible as an exceptio the hearsay rule even tho not made to physician

***NY Statements made to a lay person are not admissible unless declarant is unavailable

b. Past bodily condition: admissible if to assist diagnosis or treatment, even statements about cause OK if related to diagnosis/treatment

***NY: P's statements made to medical personnel solely for purpose of giving expert testimony not admissible

Front 154

Hearsay: Statement for purpose of med treatment or diagnosis?

Back 154

Relies on spontaneity to assure reliability. Unavailability not required.
Elements: Allows admission of a statement
1. Made for purpose of
(a) diagnosis or
(b) treatment
2. Concerning
(a) present symptom, or
(b) past symptom, or
(c) general cause of medical conditions,
3. But not:
(a) statement of fault, or
(b) ID of wrongdoer.
***NY distinction: Doesn't apply to statements made solely for purpose of obtaining expert testimony at trial.

Front 155

Hearsay: Business Records?

***NY exception?

Back 155

Any writing or record made as a mem of any act or Xaction is admissible in evidence as proof of that act or Xaction. Require:

a. Business - including every association, profession, occupation, profit or nonprofit

b. Entry made in regular course of business

c. Personal knowledge - matters w/in personal knowledge of entrant or w/in knowledge of someone w/ duty to transmit matters to entrant. (police reports may qualify, but generally, Ws, or even parties, are not under a business duty to convey info)

c. Entry made near time of event

d. Authentication either through testimony or certifying in writing that record is a business record

***NY: Accident reports prepared in regular course of business operations or practice are admissible in NY, even if made in anticipation of litigation

Front 156

Hearsay: Public records/reports?

Back 156

Admissible:

Records setting forth activities of office/agency;

recordings of matters pursuant to a duty imposed by law (except police observations in crim cases);

or in civil actions and agaisnt the gov't in criminal cases, records of factual findings resulting from an investigation authorized by law.

Writing must have been made by and w/in scope of the duty of the public Ee, and it must have been made at or near the time of the event.

Note: Police records that don't qualify as business records may be admitted under public records/reports
exception. Even PO's opinions and factual conclusions admissible. BUT: test the statements of others contained in the report to make sure they are admissible under an exception, otherwise, those statements will be excluded even if report admitted.

- vital statistics

- statement of absence of public record (to show that matter not recorded or by inference that it didn't occur)

Front 157

Hearsay: Ancient documents?

Back 157

FRE - statements in any authenticated doc 20yrs old or more are admissible, as are statements in any document affecting an interest in property, regardless of age.

Front 158

Hearsay: Judgments

Back 158

Certified copy of a judgment always admissible proof that such judgment entered

1. Prior criminal conviction felony conviction admissible

2. Prior criminal acquittal excluded

3. Judgment in former civil case - clearly inadmissibl in subsequent crim proceeding and generally inadmissible in subseqent civil proceedings

Front 159

Hearsay: Learned treatise?

Back 159

Treatises admissible as substantive proof if called to the attention of, or relied upon by, an expert W, and established as reliable authority by the testimony by that W, other testimony, or JN.

Front 160

Reputation?

Back 160

Admissible under several exception to HS rule as evidence of:

1. character

2. personal/family history

3. land boundaries

4. community's general history

Front 161

Hearsay: Family records?

Back 161

Statements of fact concerning personal or family history contained in Bible, jewelry engravings, genealogies, tombstone, admissible