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NY Bar 2014 > Evidence > Flashcards

Evidence Flashcards

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1
Q

MBE Authority

A

Federal Rules of Evidence

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2
Q

Relevance

A

Evidence is relevant if it has ANY TENDENCY to make a material fact more or less probable than would be the case without the evidence.

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3
Q

Relevance - Admissibility

A

Relevant evidence is generally admissible UNLESS

  1. Its probative value is substantially outweighed by: the risk of unfair prejudice / confusion / waste of time / misleading the jury / undue delay / unduly cumulative
  2. It is excluded by some other rule.
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4
Q

Evidence of P’s Accident History

A

Not admissible to show the P is accident prone (propensity for carelessness); UNLESS the event that caused P’s injuries is [directly] in issue

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5
Q

Evidence of D’s Accident History

A

NOT admissible to show propensity for carelessness

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6
Q

Evidence of D’s Accident History: Exceptions

A

May be admitted if the other accident happened under SUBSTANTIALLY SIMILAR CIRCUMSTANCES to prove:

  1. Existence of dangerous condition;
  2. Causation of the accident; or
  3. Prior notice to the D
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7
Q

Admissibility of Experiments and Tests

A

“Substantial similar circumstances” test

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8
Q

Past Conduct to Show Intent

A

Prior similar conduct of a person may be admissible to raise an inference of the person’s intent on later occasion.

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9
Q

Past Sales

A

Past sales of similar property, in same general location, and close in time is some evidence of value of property at issue.

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10
Q

Evidence of Habit

A

Habit of a person/business is ADMISSIBLE as circumstantial evidence of how the person acted on the occasion at issue in the legislation.
[NOT when referring to general propensity and disposition]

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11
Q

Habit - Defined

A

Repetitive/frequent response to a
Particular set of circumstances
Under complete control of the circumstances **NYS only (this usually disqualifies driving circs)

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12
Q

Industry Custom as Standard of Care

A

Admissible

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13
Q

Liability Insurance

A

Inadmissible for the purpose of proving fault or the absence of fault.

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14
Q

Liability Insurance - Exception

A

May be admissible for a proper purpose other than fault (with limiting instruction); e.g. proving ownership or control if disputed.

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15
Q

Subsequent Remedial Measures

A

POST-ACCIDENT Repairs, design changes, and policy changes are INADMISSIBLE to prove negligence, culpable conduct, product defect, need for warning.

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16
Q

Subsequent Remedial Measures - Exceptions

A

Admissible for some other proper purpose;e.g. ownership, control, or feasibility of safer condition ONLY IF D disputes them

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17
Q

Subsequent Remedial Measures - NY Exception

A

Admissible in a STRICT PRODUCTS LIABILITY action against manufacturer to suggest the EXISTENCE OF A DEFECT (not in negligence theory)

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18
Q

Evidence of Settlement

A

In disputed civil claim, INADMISSIBLE to prove liability or impeach witness:

  1. Actual settlements
  2. Offers to settle
  3. Statements of fact made during settlement discussions
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19
Q

Timing of settlement discussion excluded as evidence?

A

At time of discussion, a claim has been asserted, and there is a dispute about validity of claim or amount.
(Eg. if drivers discuss at scene of accident –> admissible)

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20
Q

Evidence of Settlement - Exceptions

A
  1. Admissible to show bias (eg. if settling party receives settlement and then testifies, he might be biased)
  2. MBE ONLY: Statements of fact to a CIVIL regulatory discussion w/ gov’t are admissible in a subsequent CRIMINAL case (not offers to settle)
    * *Gov exception NOT adopted in NY
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21
Q

Plea Bargaining in Criminal Cases

A 
The following are INADMISSIBLE
1. Offer to plead guilty
2. Withdrawn guilty plea [In NY - admissible in subsequent civil case]
3. Plea of nolo contendere (no contest)
4. Statements of fact
BUTGUILTY PLEAS ARE ADMISSIBLE
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22
Q

Plea Bargaining - withdrawn guilty plea

A

MBE: Never
NY: Admissible in subsequent civil case against the D.

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23
Q

Offers to Pay Medical Expenses

A

Offers to pay medical expenses are inadmissible regardless of whether or not there is a dispute.
*Statements of fact made in connection with offers to pay medical expenses ARE ADMISSIBLE

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24
Q

Character Evidence - 3 Purposes

A
  1. Character is an ESSENTIAL element of the case (e.g. fraud) (never crim)
  2. Conduct in conformity with character trait
  3. Impeach witness’s credibility
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25
Q

Character Evidence - Criminal Def.

A

INADMISSIBLE during the prosecution’s case-in-chief.
BUT
Crim Def. may introduce OPINION and REPUTATION testimony BUT THAT OPENS THE DOOR TO REBUTTAL

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26
Q

Character Evidence - Criminal Def. in NY

A

Crim. Def. may ONLY introduce character evidence through REPUTATION and NOT OPINION testimony.

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27
Q

Character Evidence - Prosecution’s Rebuttal

A

If D opens the door with good character evidence, then Pros. may

  1. Cross-examine witnesses to impeach knowledge of D (only asking!); and
  2. Call own reputation and opinion witnesses [NY: reputation only]
    * NY* PRIOR CONVICTIONS are admissible to rebut good character evidence.
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28
Q

Victim’s Character - Self Defense

A

Crim. D may introduce evidence of victim’s violent character to prove victim’s conduct in conformity that the victim struck first

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29
Q

Victim’s Character - Self Defense NY Rule*

A

Character evidence to prove that the victim struck first - is inadmissible in NY.

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30
Q

Victim’s Character - Self Defense & Pros. Rebuttal

A

Once D opens the door, P can introduce evidence of

  1. V’s good character for peacefulness
  2. D’s bad character for violence
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31
Q

Victim’s Character - D’s Knowledge of V’s Character for Violence

A

MS & NY - D can offer evidence of HIS OWN AWARENESS through reputation or bad acts to show D’s state of mind (FEAR).

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32
Q

Victim’s Character - Sexual Assault

A

Rape Shield Law - Evidence of sexual propensity or sexual behavior by VICTIM are INADMISSIBLE
EXCEPT
1. to show that someone other than the D was the source of injury/semen,
2. sexual activity with D to show a defense of consent,
3. other DUE PROCESS situations (very rare) (eg. victim had motive to claim rape due to love triangle…)

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33
Q

Character Evidence - Civil Cases

A

Generally INADMISSIBLE by P and D to prove conduct in conformity with that character trait.

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34
Q

Character Evidence - Civil Cases Exceptions

A

Admissible if character trait is an ESSENTIAL ELEMENT of a claim:

  1. Negligent hiring (employer should have known reputation)
  2. Defamation (D shows V’s dishonesty)
  3. Child custody dispute (fitness of parents)
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35
Q

D’s Crimes and Bad Acts - General Rule

A

Bad acts or other crimes are not admissible during the prosecution’s case-in-chief if offered to show D is more likely to have committed the present crime

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36
Q

D’s Crimes and Bad Acts - Exceptions

A

Admissible if to show something specific about crime being charged, eg:
1. Motive
2. Intent
3. Mistake or Accident, the absence thereof
4. Identity
5. Common scheme or plan
[MIMIC] (even in case-in-chief)

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37
Q

D’s Crimes and Bad Acts - Standard of Proof for MIMIC Excpeptions

A

By conviction, or
MBE: By evidence - low standard - “conditional relevance” - reasonablu juror could conclude he committed.
*NY Distinction - higher standard: “clear and convincing evidence.”

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38
Q

What does court weigh in MIMIC Exceptions

A

Probative value v prejudice.

Give limiting instructions!

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39
Q

D’s Prior Sexual Misconduct

A

MBE: In a sexual assault case, a D’s specific prior sexual assaults are admissible for showing D’s PROPENSITY FOR SEXUAL MISCONDUCT
(Acts only, not reputation or opinion)
**Not adopted in NY. Only under MIMIC

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40
Q

Methods of Authentication - Documents

A
  1. Witness’s personal knowledge
  2. Handwriting
  3. Ancient Document Rule
  4. Solicited Reply Doctrine
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41
Q

Handwriting Authentication

A

a. lay witness w/ personal knowledge of handwriting
b. expert
c. jury comparison
(Judge does NOTneed to be convinced. Court determines that there is sufficient evidence from which a REASONABLE JUROR can conclude it is genuine. Then jury decides.)

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42
Q

Ancient Document Rule

A

Authenticity inferred IF

  1. 20+ years old (30 in NY), AND
  2. facially free of suspicion, AND
  3. found in a place of natural custody
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43
Q

Solicited Reply Doctrine

A

Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

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44
Q

Self-Authenticating Documents

A

These are presumed authentic:

  1. Official publications
  2. Certified copies of public or private records on file in public office
  3. Newspapers or periodicals
  4. Trade inscriptions and labels
  5. Acknowledged document
  6. Commercial paper
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45
Q

Authentication of Photographs

A

Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed.
Even if someone else took the picture.

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46
Q

Best Evidence Rule - when?

A

A party who seeks to prove the contents of a writing.
2 principle situations:
- legally operative document (deeds…)
- Witness is testifying to fact learned SOLELY from reading the writing
NOT when witness with personal knowledge testifies to a fact that exists independently of the writing

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47
Q

Best Evidence Rule - requirements

A
  1. produce the original writing, OR

2. provide an acceptable excuse for its absence AND a copy or oral testimony

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48
Q

Bets Evidence Rule - what is the “original”?

A

Whatever parties intended as the original.

Printout of computer stored data is an original.

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49
Q

Best Evidence Rule - Duplicates

A

Duplicates are copies accurately reproduced by mechanical means (photocopies) and are ADMISSIBLE to the same extent as the original,
UNLESS it would be UNFAIR, or genuine question raised as to AUTHENTICITY OF ORIGINAL.

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50
Q

Best Evidence Rule - NY photocopies

A

Admissible as duplicate only when made in the ordinary course of business.

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51
Q

Best Evidence Rule - Excuses

A
  1. Lost or cannot be found with due diligence
  2. Destroyed without bad faith
  3. Cannot be obtained with legal process
    (THEN - secondary evidence is permissible)
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52
Q

Best Evidence Rule - Escapes

A
  1. Voluminous records
  2. Certified copies of public records
  3. Collateral documents (not important to merits)
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53
Q

Children Witnesses - New York Only

A

General rule: A child of any age may testify under oath if the child understands and appreciates the duty to tell the truth.
(Civil/crim distinctions in next cards)

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54
Q

Children Witnesses - New York Civil Cases

A

A child must be able to testify under oath

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55
Q

Children Witnesses - New York Criminal Cases

A

A child under the age of 9 who cannot understand the duty of an oath may still testify,
BUT
a conviction cannot be based solely on the unsworn testimony of a child.
There must be SOME CORROBORATING evidence of the crime.

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56
Q

Dead Man’s Statute*

A

MBE: Personal interest does not make witness incompetent.

  • NY* and others - Dead Man’s Statute:
    1. In a CIVIL action only,
    2. an INTERESTED WITNESS
    3. is INCOMPETENT to testify
    4. against the estate of a decedent
    5. concerning a PERSONAL TRANSACTION OR COMMUNICATION between the interested person and decedent. (NOT JUST TALKING, ALSO RELATED ACTS!!)
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57
Q

NY Dead Man’s Statute Exception

A

In an auto accident the surviving interested party MAY testify regarding “facts of negligence arising out of the ownership/operation” of car, about the

  1. surviving party’s observations of the decedent’s conduct and demeanor, BUT
  2. May not testify about oral statements made by the decedent.
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58
Q

Leading Questions

A

Generally:

  1. Not allowed on direct
  2. Allowed on cross
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59
Q

Leading Questions - Exceptions

A

Allowed on direct if:

  1. Introductory matters
  2. Youthful or forgetful witnesses
  3. Hostile witness
  4. Adverse party or under adverse party’s control
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60
Q

Writings - Refreshing Recollection

A

Witnesses may NOT read from prepared writings;

BUT if witness’s memory fails him, he may be SHOWN a memorandum to job his memory.

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61
Q

Writings - Past Recollection Recorded

A

Contents of the writing may be READ to the jury IF ALL OF THE FOLLOWING:

  1. showing writing to witness fails to job memory
  2. witness had personal knowledge at former time
  3. writing was either made by witness, or adopted by witness
  4. making or adoption occurred while the event was fresh in the witness’s mind
  5. witness can vouch for accuracy of writing when made or adopted
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62
Q

Writings - Past Recollection Recorded - adversary rights?

A

To inspect document
Use in cross-exam
Introduce into evidence

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63
Q

Writings - Past Recollection Recorded NY Distinction (“hearsay exception”)

A

If 5-part foundation is made, the writing may be SHOWN to the jury.
MBE: the proponent may only READ it to the jury.

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64
Q

Opinion Testimony - Lay Witness

A

Lay opinion admissible if:

  1. opinion is RATIONALLY BASED on witness’s perception (i.e. personal knowledge)
  2. opinion must be helpful to the jury in deciding and issue of fact (i.e. relevant)
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65
Q

Opinion Testimony - Expert Witness

A
  1. Qualified
  2. Proper subject matter
  3. Basis of opinion
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66
Q

Expert Witness - Qualifications

A

Qualifications based on education, experience, and training

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67
Q

Expert Witness - Subject Matter

A

Proper subject matter - scientific, technical or other specialized knowledge that will be HELPFUL to the jury in deciding a fact

68
Q

Expert Witness - Basis of Opinion

A

Must have opinion based on REASONABLE DEGREE OF PROBABILITY or REASONABLE CERTAINTY
Expert may draw upon
1. Personal knowledge (e.g. treating physician)
2. Other evidence in the trial record (e.g. X-rays) presente to him as hypo
3. Facts NOT in the record if the material is of a type reasonably relied upon by experts in that particular field.

69
Q

Expert witness - Facts not in Record - disclose to jury?

A

Expert may identify type of facts but may not disclose contents (inadmissible facts).
Opponent may disclose on cross-exam.
Judge has discretion to disclose for purpose of helping jury evaluate opinion.

70
Q

Expert Witness - Reliability - MBE test

A

Court serves as “gatekeeper” using the Daubert factors:

  1. T esting of principles or methodology
  2. R ate of error
  3. A cceptance by other experts in same discipline
  4. P eer review and publication
71
Q

Expert Witness - Reliability NY test

A

The method used by the expert must have achieved general acceptance in the relevant scientific field (Frye standard)

72
Q

Expert Testimony - Learned Treatise

A

An expert on the stand may read relevant portions of a learned treatise into the record as SUBSTANTIVE evidence if ESTABLISHED AS RELIABLE AUTHORITY (hearsay exception).

73
Q

Expert Testimony - Learned Treatise NY Distinction

A

NO HEARSAY EXCEPTION FOR CONTENTS OF A LEARNED TREATISE
1. On Direct: Can only be used to show the basis of the expert’s opinion.
2. On Cross: Treatise can only be used to impeach ONLY IF
a. expert relied on the treatise in developing own opinion; or
b. acknowledged on cross that it is a reliable authority (have to ask him!).
NEVER AS SUBSTANTIVE EVIDENCE.

74
Q

Opinion Testimony - Ultimate Issues

A

Opinion testimony regarding the ultimate issue in a case is ADMISSIBLE provided it is HELPFUL and not excluded by another rule.
i.e. No legal jargon

75
Q

Opinion Testimony - Ultimate Issues - MBE Mental Health distinction

A

Can object if expert says D had or didn’t have relevent mental state at relevant time.
Can only say what a person with that disease knows generally.

76
Q

Cross-Examination (Scope)

A

Party has a right to cross-examine on the proper subject matter:

  1. Matters WITHIN THE SCOPE of direct examination; and
  2. Matters that test the witness’s CREDIBILITY
77
Q

Bolstering own witness?

A

Not allowed

Exception - allowed after witness’s credibility has been impeached (rehabilitation)

78
Q

Prior Consistent Statements

A

Not allowed until credibility is impeached (hearsay, minimal probative evidence)

79
Q

Prior Consistent Statements - Exception

A

Witness’s prior identification of a person

80
Q

Impeaching Own Witness (FRE)

A

Any party can impeach any witness

81
Q

Impeaching Own Witness (NY)

A

Generally, a party may not impeach her own witness

82
Q

Impeaching Own Witness: NY Exception

A

A party may impeach her own witness with only a PRIOR INCONSISTENT STATEMENT but only if it was:

  1. made in writing and signed by the witness; or
  2. made in oral testimony under oath
83
Q

Impeaching Own Witness: NY Criminal Exception

A

A party may impeach her own witness with only a PRIOR INCONSISTENT STATEMENT but only if it was:

  1. made in writing and signed by the witness; or
  2. made in oral testimony under oath; AND
  3. the prior inconsistent statement may be used only if the witness’s current testimony is AFFIRMATIVELY DAMAGING to the party who called the witness, not merely a “cloud on credibility.” (Not - “I don’t remember”)
84
Q

Impeachment Methods

A
  1. Prior inconsistent Statements
  2. Bias, interest, or motive to misrepresent
  3. Sensory deficiencies
  4. Bad reputation or opinion about witness’s character for truthfulness
  5. Criminal convictions
  6. Bad acts that reflect adversely on witness’s character for truthfulness
  7. Contradiction
85
Q

Impeachment Procedures (2 Types)

A
  1. Ask the witness about the impeaching fact with the aim of having the witness admit it
  2. Prove the impeaching fact with EXTRINSIC evidence
86
Q

Impeachment Methods that May Be Proven with Extrinsic Evidence

A

All EXCEPT
Prior bad acts; and
Collateral contradictory facts

87
Q

Impeachment with Extrinsic Evidence - Confrontation First Required (first ask about fact)

A

MBE: Bias
NY: Prior inconsistent statement

88
Q

Prior Inconsistent Statements

A

The prior inconsistent statement is admissible ONLY for the purpose of IMPEACHMENT and NOT as SUBSTANTIVE EVIDENCE

89
Q

Prior Inconsistent Statements - MBE Exception for substantive

A

If the statement was made:
1. under oath, at a
2. testimonial proceeding
(NY only to impeach, never as substantive)

90
Q

Prior Inconsistent Statements - Must witness be confronted first?

A

Federal: No, but witness must be given opportunity to explain later.
NY Yes! On the stand!
EXCEPTION (Fed, NY): If witness is OPPOSING PARTY - no need to give opportunity to explain. (And - party admission admissible as substantive)

91
Q

Impeachment - Bias: Must witness be confronted first?

A

Federal: Yes
NY: No

92
Q

Impeachment - Bias: May it be proven with extrinsic evidence?

A

Yes.

93
Q

Impeachment - Sensory Deficiencies: Confrontation Required?

A

No

94
Q

Impeachment - Sensory Deficiencies: Extrinsic Evidence allowed?

A

Yes.

95
Q

Bad Reputation or Opinion: Confrontation Required?

A

No.

96
Q

Bad Reputation or Opinion - Extrinsic Evidence Allowed?

A

Yes.

97
Q

Bad Reputation or Opinion: NY

A

Only reputation testimony allowed - NO opinion testimony.

In all jurisdictions - no specific acts

98
Q

Prior Criminal Convictions for Impeachment: Types of Convictions under FRE

A

Permissible types of convictions
A. Conviction of any crime as to which the prosecution was required to prove FALSE STATEMENT as an element of the crime;
OR
B. A FELONY unless the probative value is outweighed by unfair prejudice
In each case conviction or release from prison MUST BE WITHIN 10 YEARS.

99
Q

Impeachment: Types of Convictions in NY

A

All prior criminal convictions are admissible for IMPEACHMENT.
No need to balance unfair prejudice.

100
Q

Impeachment: Types of Convictions in NY Criminal D’s

A

Testifying D:
Must conduct hearing on balance between PROBATIVE VALUE versus risk of unfair prejudice.
- Probative: Seriousness of crime, relation to trust/deception
- Unfairly prejudicial: Similarity to current offense, inflammatory nature

101
Q

Impeachment: Prior Bad Acts

A

A witness may be asked about a prior bad act if it relates to DECEIT or DISHONESTY through CONFRONTATION ONLY.
In the COURT’S DISCRETION.

102
Q

Impeachment: Prior Bad Acts in NY

A

Any prior bad acts that is VICIOUS, CRIMINAL, or IMMORAL.
In the COURT’S DISCRETION.
Crim D testifying: Need hearing to balance probative value and prejudice.

103
Q

Impeachment: Prior Bad Acts - Extrinisic?

A

No!

But may be allowed if bad act is shown for another purpose, like bias, where extrinsic is permitted.

104
Q

Impeachment: Contradiction & Extrinsic Evidence

A

Extrinsic evidence is NOT allowed for the purpose of proving a contradictory fact which is COLLATERAL.

105
Q

Rehabilitation - General Rule

A

A witnes may be rehabilitated only after the witness’s credibility has been attacked through impeachment

106
Q

Rehabilitation - 2 Methods

A
  1. Showing witness’s good character for truthfulness

2. Prior consistent statement to rebut a charge of recent fabrication.

107
Q

Rehabilitation - Showing good character for truthfulness

A

Use a character witness to testify about

  1. Reputation; and/or
  2. Opinion (Not in NY)
108
Q

Rehabilitation - Prior Consistent Statement

A

Admissible if the statement was made prior to the motive to fabricate arose for

  1. rehabilitation; AND
  2. MBE ONLY: as substantive evidence that the prior statement was true (hearsay exclusion)
109
Q

Rehabilitation - Prior Consistent Statement NY

A

Admissible ONLY for rehabilitation and NOT as substantive evidence.

110
Q

Privileges - FRE Generally

For questions on federal court

A
  1. Cases in fed court arising under FEDERAL SUBSTANTIVE LAW are governed by the principles of the CL as they may be interpreted by the federal courts in the light of reason and experience.
  2. If it’s a fed court matter based in diversity jurisdiction, the court must apply PRIVILEGE LAW OF THE STATE whose substantive law is applicable.
111
Q

Attorney-Client Privilege: Elements

A

Applies to:
1. Confidential communications
2. between attorney and client
3. made during professional, legal consultation
UNLESS privilege is waived by the client; OR
an EXCEPTION applies

112
Q

Attorney-Client Privilege: Subject Matter Waiver

A

A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:

  1. the partial disclosure is INTENTIONAL
  2. the disclosed and undisclosed communications concern the SAME SUBJECT MATTER
  3. fairness requires that the disclosed and undisclosed communications be considered together.
113
Q

Attorney-Client Privilege: Inadvertent disclosure

A

An inadvertent disclose of a privileged communication will NOT waive the privilege so long as the privilege-holder

  1. took REASONABLE PRECAUTIONS TO PREVENT the disclosure; and
  2. takes reasonable steps to CORRECT the error.
114
Q

Attorney-Client Privilege: Exceptions

A
  1. Future crimes or frauds
  2. Client puts legal advice at issue
  3. Attorney-client dispute
115
Q

Physician-Patient Privilege: Elements

A

Applies to:

  1. Confidential communications or information acquired by physician from patient
  2. for the purpose of diagnosis or treatment of a medical condition
116
Q

Physician-Patient Privilege: Federal Substantive Law

A

Privilege exists ONLY for psychotherapy (not regular physicians and doctors)

117
Q

Physician-Patient Privilege: Exceptions

A

Privilege is lost if patient expressly or impliedly puts mental or physical condition in issue (e.g. plaintiff in personal injury action)

118
Q

Spousal Immunity

A

A spouse cannot be COMPELLED to testify about ANYTHING against the defendant spouse so long as they are MARRIED at the time of testimony.

  • The testifying spouse holds the privilege.
  • *Federal/MS Criminal Cases ONLY!!
119
Q

Spousal Immunity - NY

A

NY does NOT recognize the spousal immunity privilege.

120
Q

Spousal Confidential Communications

A

A spouse is not ALLOWED and CAN’T BE COMPELLED to disclose a CONFIDENTIAL COMMUNICATION said DURING THE MARRIAGE.
*Both spouses hold this privilege requiring waiver by both spouses.

121
Q

Spousal Privileges: Exceptions

A
  1. Communications or acts in furtherance of jointly perpetrated future crime or fraud.
  2. Communications or acts destructive of family unit (e.g. spousal or child abuse)
  3. Civil litigation between the spouses
122
Q

Does divorce end spousal priv?

A

Spousal immunity: Yes. Must be married at time of trial.

Spousal communications: No. Divorce does not end privilege.

123
Q

Hearsay - Defined

A

Out of court statement of a person (oral or in writing)

being offered to prove the truth of the matter asserted in the statement.

124
Q

Non-Hearsay Out of Court Statements

A

An out-of-court statement being offered for some reason OTHER than for the truth of the matter asserted.

125
Q

Non-Hearsay Statement Purpose types (3)

A
  1. Verbal/legally operative Act
  2. To show the effect on the person who heard or read the statement
  3. State of mind
126
Q

Prior Witness Statement Exclusions (3)

A
  1. Witness’s prior statement of identification of a person
  2. Witness’s prior inconsistent statement if made orally under oath during a testimonial hearing. [NY - only to impeach]
  3. Witness’s prior consistent statement if made before the motive for untruthfulness arose. [NY - only to rehabilitate]
127
Q

Hearsay Exception - Party Opponent Statements

A

Any statement made by a party is admissible if it is offered AGAINST the opposing party.
*Also called Statement of Party Admission

128
Q

Party-Opponent Statements: Adoptive Admission

A

If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement.
Adoption by silence occurs when a party remains silent under circumstances in which a reasonable person would protest if the statement were false.

129
Q

Party-Opponent Statements: Vicarious Party Admission - MBE

A

Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.

130
Q

Party-Opponent Statements: Vicarious Party Admission NY

A

The statement of an agent/employee is admissible as a vicarious party admission ONLY IF the principal/employer gave the agent/employee the AUTHORITY to make statements on the principal/employer’s behalf.*The speaking-agent rule

131
Q

Party-Opponent Statements - Co-conspirator statements

A

The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made

  1. during; and
  2. in the furtherance of the conspiracy.
132
Q

Hearsay Exceptions (12)

A
  1. Forfeiture by wrongdoing
  2. Former testimony
  3. Statement against interest
  4. Dying declaration
  5. Excited utterance
  6. Present sense impression
  7. Present state of mind
  8. Declaration of intent
  9. Present physical condition
  10. Statement for the purpose of obtaining medical treatment or diagnosis.
  11. Business records
  12. Public records
133
Q

6th Amend Confrontation

A

Trumps exceptions!
The prosecution may not use a hearsay statement against the criminal D if:
1. the statement is testimonial
2. declarant is unavailable, AND
3. D has had no opportunity for cross examination

134
Q

6th Amend Confrontation - Testimonial: Grand jury testimony

A

Testimonial

135
Q

6th Amend Confrontation - Testimonial: Police interrogation

A
  1. Testimonial IF the PRIMARY PURPOSE of the questioning is to establish or prove PAST EVENTS relevant to a CRIMINAL PROSECUTION
  2. NOT testimonial if statement is made to enable police assistance in an emergency.
136
Q

6th Amend Confrontation - Testimonial: BUSINESS RECORDS

A

NOT testimonial

137
Q

6th Amend Confrontation - Testimonial: SWORN AFFIDAVITS

A

ARE TESTIMONIAL

138
Q

6th Amend Confrontation - Testimonial: FORENSIC LABORATORY REPORT

A

Testimonial IF its primary purpose is to accuse a TARGETED INDIVIDUAL of criminal conduct.

139
Q

Forfeiture Exception

A

Any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds:

  1. by a preponderance of the evidence
  2. that the D’s conduct was specifically designed to prevent the witness from testifying.
    * applies to hearsay and confrontation objections!
140
Q

Forfeiture Exception - NY

A

Standard of proof is CLEAR AND CONVINCING evidence.

141
Q

Hearsay Exception - Former Testimony

A

the former testimony of a now-unavailable witness, if given at a former proceeding, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness.

142
Q

Hearsay Exceptions: Grounds of Unavailability

A
  1. Privilege
  2. Absence from the jurisdiction
  3. Illness or death
  4. Lack of memory
  5. Refusal to testify
143
Q

Hearsay Exceptions: Grounds of Unavailability - NY

A

Additional grounds in civil cases:

  1. Declarant is 100 miles or more from the courthouse; or
  2. Declarant is a physician
144
Q

Hearsay Exceptions - Statements Against Interest

מיגו

A

an UNAVAILABLE declarant’s statement against his or her

  1. pecuniary interest
  2. proprietary interest
  3. penal interest
    * money, property, or criminal liability
145
Q

Hearsay Exceptions - Statements Against Penal Interest

A

In criminal cases, a statement against penal interest must be corroborated with other evidence indicating trustworthiness.

146
Q

Hearsay Exceptions - Dying Declaration: Defined

A

A statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.
*“Swift and certain doom”

147
Q

Hearsay Exceptions - Dying Declaration: Criminal Cases

A

Must be a homicide case

148
Q

Hearsay Exceptions - Dying Declaration: Civil Cases

A

Any type of civil case

149
Q

Hearsay Exceptions - Dying Declaration: NY

A

Criminal homicide case only - no civil cases allowed.

150
Q

Hearsay Exceptions - Excited Utterance (defined)

A

Statement concerning a STARTLING event and made while declarant is STILL UNDER THE STRESS OF EXCITEMENT caused by the event.

151
Q

Hearsay Exceptions - Present Sense Impression (defined)

A

Description of an event made while the event is occurring or immediately thereafter.

152
Q

Hearsay Exceptions - Present Sense Impression: NY

A

must be corroborated with additional evidence

153
Q

Hearsay Exceptions - Present State of Mind

A

A contemporaneous statement concerning declarant’s present state of mind, feelings, emotions.

154
Q

Hearsay Exceptions: Declaration of Intent

A

A statement of declarant’s intent to do something in the future, including the intent to engage in conduct with another person

155
Q

Hearsay Exceptions: Declaration of Intent - NY

A

NY requires:

  1. Corroborating evidence
  2. Declarant is unavailable
156
Q

Hearsay Exceptions - Present Physical Condition

A

Statement made to ANYONE regarding declarant’s CURRENT physical condition

157
Q

Hearsay Exceptions - Present Physical Condition: NY

A

If a statement of present physical condition is made to a layperson, rather than a medical professional, the declarant must be UNAVAILABLE.

158
Q

Hearsay Exceptions: Statement made for the purpose of obtaining medical treatment or diagnosis

A

Statement made to ANYONE concerning the declarant’s
1. Present symptoms
2. Past symptoms
3. General cause of condition
(NOT identifying tortfeasor, describing nature of liability)
(NOT statement by physician to patient)
(NY: NOT statements to doc in preparation of expert testimony)

159
Q

Hearsay Exceptions: Business Records

A
  1. Records of a business of any type
  2. Made in the regular course of business
  3. The business regularly keeps such records
  4. Made contemporaneously with the event
  5. Contains information observed by employees OR a statement that falls within an independent hearsay exception.
160
Q

Hearsay Exceptions: Business Records - proof

A
  1. Call witness to prove 5 points

2. Written certification under oath

161
Q

Hearsay Exceptions: Business Records - when permitted in NY?

A

ONLY:
Civil: records of NONPARTY that produced records for inspection in pretrial discovery
Any time: if from hospital, state/local gov

162
Q

Hearsay Exceptions: Public Records

A

Records of a public office or agency setting forth:

  1. The activities of the office or agency; or
  2. matters observed pursuant to a duty imposed by law; or
  3. findings of fact or opinion resulting from an investigation authorized by law
163
Q

Hearsay Exceptions: Public Records Exception

A

A police report prepared for prosecutorial purposes

164
Q

Hearsay Exceptions: Public Records Exception - NY

A

In NY - not usually used; resort to Business Records exception.
If gov investigatory reports - when report has adequate facts and person giving opinion is qualified.

165
Q

Double hearsay

A

Each one must qualify for exception separately.

166
Q

Impeach hearsay declarant?

A

Yes, by any method.

167
Q

When can testimony be stricken

A

When unresponsive to a question asked.

Only examining attorney can move to strike.

NY Bar 2014 (18 decks)

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