Evidence

Question 1

What are the 6 self-authenticating documents (i.e. no need to est. foundation)?

Answer 1

Self-Authenticating Documents… 1) Official gov’t publications 2) Certified copies of public OR private records on file in public office (e.g. a mtg/deed is a PRIVATE document that is filed in a public office) 3) Newspapers or mags 4) Trade inscriptions and labels (e.g. a label on a bottle of water) 5) Notarized (aka “acknowledged”) document 6) Commercial paper (i.e. the signatures are deemed genuine) 7) Certified business records (also admissable under hearsay) Don’t forget about hearsay!!

Question 2

What are the 4 methods ofauthentication? NOTE: NY Distinction

Answer 2

Methods… 1) Witness’ personal knowledge (e.g. witness observed X sign the document; can verify the photograph) 2) Proof of handwriting by…. Lay person opinion (e.g. verifies based on familarity w/ handwriting); Expert comparison opinion (e.g. handwriting expert); OR Jury comparison (e.g. compare document w/ example of X’s handwriting) 3) Ancient document rule: authenticity may be inferred IF the document is… ≥ 20 yrs old [NY DISTINCTION: document must be ≥ 30 yrs old]; facially free of suspicion; AND found in natural place 4) Solicited Reply Doctrine: doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author (e.g., π mails K offer to ∆, properly addressed and posted, and later receives an acceptance purportedly signed by X)

Question 3

What are the3 questions you need to ask for document/photo evidence?

Answer 3

1. Has it been authenticated? 2. Is it the best-evidence? 3. Is there hearsay?

Question 4

When is a document admissible (based on its authenticity)?

Answer 4

The Conditional Relevancy Std:A document is admissible if ct determines that there is suffiicent evidence from which a reasonable juror could conclude doc is genuine

Question 5

What is the purpose of the authentication?

Answer 5

If the relevance of a writing or picture depends on its source or authorship, a showing must be made that the writing is authentic (genuine) This process is “laying foundation”

Question 6

What is the Best Evidence Rule?

Answer 6

Best Evidence Rule: A party who seeks to prove the contents of a writing must EITHER: (i) PRODUCE the “original writing”; OR (ii) provide an ACCEPTABLE EXCUSE for its absence (and provide secondary testimony like oral testimony or copy) “Writing” includes sound recordings, X-rays, and films

Question 7

When does the Best Evidence Rule apply?

Answer 7

When a party is seeking to prove the contents of a writing in TWO situations… 1) the writing is a legally operative document in the present case (e.g. patent, deed, mtg, divorce decree, writen K) 2) witness is testifying to facts that she learned SOLELY from reading about them in a writing (BUT, not when witness has PERSONAL KNOWLEDGE independent of doc)

Question 8

What is an original writing? NOTE: NY distinction

Answer 8

Original writing is a 1) writing or its counterpart; 2) negative of film or print; 3) print-out of computer data; OR 4) photocopy (mechanical) Photocopies are admissible (to same extent as original) UNLESS it would be UNFAIR(e.g. a fuzzy photocopy) or there is a genuine question as to its AUTHENTICITY NY DISTINCTION: photocopies are acceptable BUT only if the copies were made in ordinary course of business (i.e. not made for only for litigation) NOTE: an original is NOT a handwritten copy

Question 9

What counts as a valid EXCUSE for non-production of original writing (under Best Evidence Rule)?

Answer 9

Excuses for non-production of ORIGINAL: 1) lost & can’t be found w/ due diligence; 2) destroyed w/o bad faith; 3) can’t be obtained w/ legal process (beyond ct’s subpoena pwr) NOTE: Secondary evidence would still be necessary if an excuse is est. The ct has to be PERSUADED by a perponderance of the evidence that an excuse has been est.

Question 10

When does the Best Evidence Rule NOT apply?

Answer 10

BER does NOT apply when… 1) voluminous records can be presented viasummary or chart; PROVIDED orignal records would be admissible and are available for inspection 2) certified copies of public records 3) collateral docs (i.e. docs not important for case) can be proven by secondary evidence

Question 11

What is the “public records” exception to hearsay? NOTE: NY Distinction

Answer 11

Allows as ADMISSIABLE any public record of a public office or agency setting forth: 1) the activities of the office/agency (e.g. payroll records); OR 2) matters observed p/t a duty imposed by law; OR 3) findings of fact or opinion resulting from an investigation authorized by law (even if info come fron an outsider) EXCEPTION: the public record exception does NOT include police reports prepared for prosecutorial purposes against a CRIMINAL ∆ NY DISTINCTION: this doctrine is NOT well developed in NY; conclusions/opinions contained in a gov’t report are admissable ONLY IF (i) the report sets forth adequate facts; AND (ii) the person giving the opinion is qualified

Question 12

What are 2 categoriesout-of-court statements asserted for their truth that are STILL admissible as “nonhearsay”? NOTE: NY Distinction

Answer 12

Nonhearsay = nws meeting CL definition of hearsay (they ARE stmts offered to prove the matter asserted), certain stmts are STILL admissible… 1) Certain pior statements of trial witness: Witness’s prior stmt of ID of a person after seeing him Witness’s prior inconsistent stmt if (i) oral; (ii) under oath; AND (iii) made during formal testimonial hearing» serves impeachment AND as substantive evidence NY DISTICTION: In NY this ONLY serves impeachment purpose Witness’s prior consistent stmt if being used to rebut a charge of recent fabrication or improper motive&raquo_space; serves rehabilitation AND as substantive evidence NY DISTICTION: In NY this ONLY serves rehabilitation purpose 2) Party admissions aka Stmt of Opposing Party Any stmt (personal knowledge by declarant is NOT necessary) made by the opposing party is admissible if it is offered against the opposing party Adoptive admission: if a party expressly or impliedly adopts a stmt made by another person, it is AS THOUGH the party herself made the stmt Vicarious party admission: stmt by AGENT/EMP is admissible against principal/employer IF (i) the stmt concerns matters w/in scope of agency/employment; AND (ii) is made during the existence of the agency/employment relationship NY DISTINCTION: stmt is admissible against principal/employer ONLY IF the principal/employer gave agent the authority (express or implied) to speak on the matter Co-conspirator’s stmts: a stmt of a co-conspirator is admissible against a party who was a member of the conspiracy IF the stmt was made (i) during; AND (ii) in furtherance of the conspiracy

Question 13

What is the “declaration of intent” exception to hearsay? NOTE: NY Distinction

Answer 13

Statement of intent by declarant to do something (i) in the future; OR(ii) w/another person. NY DISTINCTION: IF stmt is offered to prove JOINT particpation of another person, NY requires (1) corroboration of prior connection between declarant and other person; AND (2) requires unavailability

Question 14

What are the 12 key EXCEPTIONS to the hearsay rule?

Answer 14

1) Excited utterance 2) Present sense impression 3) Present state of mind 4) Declaration of intent 5) Present physical condition 6) Stmt for the purpose of obtaining medical treatment/diagnosis 7) Business records 8) Public records Requiring UNAVAILABITY of declarant… 9) Forfeiture by wrongdoing (in 6th Am confrontation req on hearsay rules) 10) Former testimony 11) Statement against interest 12) Dying declaration

Question 15

How can a party impeach a hearsay declarant?

Answer 15

ANY impeachment method may be used to attack the credibility of a hearsay declarant whose stmt was admitted into evidence

Question 16

What is the “former testimony” exception to hearsay?

Answer 16

Former testimony of a now-unavailablewitness, from prior proceeding/dep is ADMISSABLE against a party who had: 1) Opportunity andmotive to cross the witness; AND 2) The issue was essentially the same NOTE: Don’t confuse w/prior inconsistent statementunder oath in formal proceeding = nonhearsay exclusion.

Question 17

What is the “present state of mind” exception to hearsay?

Answer 17

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions, or INTENT (i.e. unique knowledge) NOTE: Can overlap w/ non-hearsay exclusion forcircumstantial evidence of declarant’s state of mind (e.g. insane)

Question 18

What are the grounds for UNAVAILABILITY as required by certain hearsay exceptions? NOTE: NY Distinction

Answer 18

1) Privilege 2) Absence from the jx: (i) can’t find declarant w/ due diligence; OR (ii) declarant is beyond ct’s subpoena pwr 3) Illness or death 4) Lack of memory 5) Declarant’srefusal to testify (even if they’d be in contempt) NY has two ADDITIONAL grounds for unavailability (for CIVIL CASES ONLY)… 6) Declarant is > 100 miles from ct house 7) Declarant is a physician (public policy favors that the dr. continues their work rather than testify AGAIN)

Question 19

What is the “medical/diagnoisis” exception to hearsay? NOTE: NY Distinction

Answer 19

Statement is admissible IF Made: 1) To medical personnel (e.g. doc, nurse, EMT, psychologist); 2) Concerning past/present symptoms OR GENERAL cause of condition; AND 3) For the purpose of diagnosis/treatment NOTE: this exception DOES NOT include stmts in which the declarant IDENTIFIES a tortfeasor or DESCRIBES the nature of alleged liability (i.e. it’s not relevant to treatment) UNLESS it’s an ID of an abuser in a domestic/child context NY DISTINCTION: this exception does NOT apply to stmts made to a physcian SOLELY for the purpose of helping the physican to develop an opinion for expert testimnoy at trial

Question 20

What is the “present sense impression” exception to hearsay? NOTE: NY Distinction

Answer 20

Virtually contemporaneous stmt made WHILE event is occurring OR immediately thereafter (descriptive but not necessarily emotional) NY DISTINCTION: requires corroborating evidence of the contents of the present sense impression

Question 21

When is a “statement” subject to the hearsay exclusion rule?

Answer 21

STEP 1: Is the stmt offered to prove the matter asserted? [No = (i) legally operative words; (ii) stmts offered to show effect on hearer/reader; (iii) stmts offered to show declarant’s state of mind] YES: STEP 2 NO: NOT HEARSAY, so not subject to hearsay exclusion rule STEP 2: Is the stmt a nonhearsay exclusion? [Exclusion = (i) prior inconsistent stmt given under oath; (ii) prior consistent stmt used to rebut a charge that witness is lying/has improper motive; (iii) stmt of ID of a person; (iv) party admission] YES: NONHEARSAY, so not subject to hearsay exclusion NO: STEP 3 STEP 3: Does a hearsay exception apply? [(i) excited utterance; (ii) present sense impression; (iii) present state of mind; (iv) declaration of intent; (v) present physical condition; (vi) stmt for medical treatment; (vii) business records; (viii) public records; (ix) former testimony; (x) stmt against interest; (xi) dying declaration (xii) forfeiture] YES: ADMISSIBLE, provided it’s not excluded under any other rules (e.g. best evidence, relevancy, etc) NO: INADMISSIBLE, stmt IS excluded by hearsay rule

Question 22

What is the “dying declaration” exception to hearsay? NOTE: NY Distinction

Answer 22

Statement by a now-UNAVAILABLE declarant is admissible IF made: 1) In ALL civil cases OR homicide (criminal) case; NY DISTINCTION: ONLY available in criminal HOMICIDE cases 2) the declarant is under belief of impending & certain DEATH; AND 3) stmt is concerning cause or circumstances of declarant’s death

Question 23

What is the “excited utterance” exception to hearsay?

Answer 23

Excited Utterance is a stmt: 1) Concerning startling event; 2) While declarant is still under stress of excitement it caused. Factors to consider… the nature of the event the passage of time (no bright line but >1hr is less likely to be valid) NOTE: if the fact pattern look for: (i) exclamatory language; (ii) excitement-oriented verbs; AND (iii) EXCLAMATION PTS!!!

Question 24

What is the “present physical condition” exception to hearsay? NOTE: NY Distinction

Answer 24

Statement made to ANYONEaboutdeclarant’s current physical condition NY DISTINCTION: requires unavailability, if the stmt is made to a LAYPERSON (vs. medical professional)

Question 25

What is hearsay?

Answer 25

Hearsay = (i) an out of ct stmt of a person (oral or written); (ii) offered to prove the truth of the matter asserted (in the stmt) RULE: Hearsay stmts are INADMISSABLE UNLESS an exception or exclusion applies Rationale: The credibility of the declarant (out-of-ct speaker or author) at the time the stmt was made WAS NOT TESTED thru cross examination in the presence of the CURRENT factfinder

Question 26

What is the “stmt against interest” exception to hearsay?

Answer 26

Declarant’s stmt is ADMISSABLE for its truth IF… 1) Declarant is unavailable 2) It is against his/her: Pecuniary interest (i.e. self-damaging stmt abt fin. situation); Property interest (i.e. something that diminishes property interest); OR Penal interest (self-damaging stmt abt penal interest) 3) Must be against interest when made 4) Can be made by ANY declarant (not just party) NOTE: In criminal cases statements by declarant against his penal interest and which are exculpatory for Δ, must be corroborated

Question 27

What is the 6th Am effect on admissablity of hearsay evidence in a criminal case? NOTE: NY Distinction

Answer 27

RULE: In the context of hearsay, the prosecution may NOT use a hearsay stmt against the criminal ∆ (even if falls w/in a hearsay exception) IF: the stmt is TESTIMONAL; “Testimonial” = (i) grand jury testimony; (ii) stmts in response to police interrogation IF purpose of the questiioning is to est/prove past events that are potentially relevant to criminal prosecution; (iii) sworn affidavits; (iv) forensic lab reports used to target individual NOT “testimonial” = (i) police questioning enabling police assistance in meeting ongoing emergency; (ii) business records; (iii) general DNA profiling w/o ind. suspect in mind the declarant is UNAVAILABLE; AND the ∆ has no opportunity for CROSS EXAMINATION (either before or at trial) “Forfeiture exception”: Any type of hearsay stmt IS ADMISSIBLE against a ∆ whose WRONGDOING made the witness unavailable, IF the ct finds (i) by a preponderance of the evidence; (ii) that ∆’s conduct was SPECIFICALLY designed to prevent the witness from testifying NY DISTINCTION: In NY the std of judicial review is higher…Clear and Convincing Evidence

Question 28

What is the rule ofdouble hearsay?

Answer 28

If a hearsay stmt is included WITHIN another hearsay stmt, the evidence is inadmissable UNLESS each stmt falls w/in a hearsay exception E.g. “A told me what B said”; to be admitted, A’s stmt may be an excited utterance in response to B’s excited utterance

Question 29

What are the “business records” exception to hearsay? NOTE: NY Distinction

Answer 29

Allows as ADMISSIABLE any business record of ANY type of business (public/private) IF: 1) Record made in the regular course of business 2) If business regularly keeps such records 3) The record is made at or about the time of the event 4) Consists of: info observed by an employee of the business (personal knowlege); OR info personally observed by the witness Proving business records foundation… 1) Call sponsoring witness to testify to above elements (witness need not be author of report); OR 2) Written certification under oath attesting to above elements (w/ advance notice to opposing party) NY DISTINCTION: certification method is ONLY permitted in: CIVIL ACTIONS, where the business records are those of a nonparty that has produced its records for inspection at part of PRETRIAL DISCOVERY; OR ANY TYPE OF CASE, where the business records are those of a hospital, state or local gov’t

Question 30

What are 3 categories out of court stmts that are “not hearsay”?

Answer 30

Not hearsay= An out-of-court statement which is NOT offered for its truth (so we don’t care abt credibility of declarant) 1) Legally operative words → legal rights/obligations attach SIMPLY b/c words were spoken Contract formation/repudiation, making a gift, bribe, perjury, misrepresentation, defamation, permission E.g. “I heard Trump say to Gates, ‘I accept your offer’” 2) To show effect on listener/reader of the stmt Purpose of stmt is to put listener/reader on notice of something E.g. “I heard the supermarket clerk say that the floor was wet” (We don’t care abt whether the floor is wet, BUT RATHER that speaker was on notice) 3) Circumstantial evidence of declarant’s state of mind E.g. “Two days before the killing, Homer said, ‘I am Elvis Presley.’” (stmt is offered to show the declarant is insane, NOT THAT he’s actually Elvis)

Question 31

What is judicial notice?

Answer 31

Judicial notice = the recognition of a fact as true w/o formal presentation of evidence Cts take JN of indisputable facts that are EITHER: (i) matters of common knowlege in the community; OR (ii) capable of verification by resort to easily accesible sources of unquestionable accuracy (e.g. via almanac)

Question 32

What is the effect when a ct takes judicial notice of a fact?

Answer 32

Depends on the type of case… 1) CIVIL case: a judicially noticed fact is CONCLUSIVE in a civil case 2) CRIMINAL case: a judicially noticed just SATISFIES the PROSECUTION’S BURDEN The jury DOES NOT have to accept the fact as CONCLUSIVE

Question 33

What are the 5 elements of Atty-client Privilege?

Answer 33

1. Confidential communications Intended to be confi by client (i.eno listeners) Joint Client Rule: If ≥ 2 clients with common rep, their comm’n is protected as to OUTSIDERS, but NOT protected as to each other Communication (info exchange)is protected,NOT physical evid., knowledge or EXISTING docs 2. Between attorney and client Atty: member of bar or one a client REASONABLY believes is atty Incl. necessary reps for svcs (e.g. legal secretary) Client inlcuded person seeking to BECOME a client 3. During professional, legal consultation Legal advice, NOT social/business 4. Unless waived by client Only client can waive b/c client holds privilege; survives A/C relationship and death Subject matter waiver: a voluntary waiver of privilege as to SOME communication will ALSO waive the privileg as to the OTHER communication if: (i) partial disclosure is intentional; (ii) the disclosed and undisclosed commn concern the same subject matter; AND (iii) fairness req’s that the disclosed and disclosed info be considered together Inadvertant waiver: an inadvertatnt disclosure of a privileged commn will NOT waive the privileg SO LONG AS the privilege-holder: (i) took reasonable steps to prevent the disclosure; AND (ii) takes steps to correct the error 5. Or an exception applies future crime/fraud (e.g. “Help me defraud these ppl”) legal advice at issue OR dispute b/t atty and client

Question 34

What are the 3 elementsand 1 exception to the doctor-patient privilege?

Answer 34

1. Confidential communication/info Confi info: no 3rd parties present 2. Acquired by doctor Doctor includes certified mental health professional(including pyschotherapists) NOTE: if a federal case based on ARISING UNDER jx, privilege ONLY exists for psychotherapists (no ordinary drs that treat physical symptoms) 3. For purposes of medical diagnosis/treatment Medical diagnosis includes litigation Info necessary for treatment EXCEPTION: If patient expressly or impliedly puts mental or physical state at issue: E.g. π is suing for damages in personal injury case; ∆ in asserting insanity defense Δ must AFFIRMATIVELY put condition at issue (i.e. simple denial that physical or mental condition caused event is NOT putting condition at issue)

Question 35

What privilege rules apply infederal ct?

Answer 35

Depends on type of smjx… 1) For ARISING UNDER cases, “privileges are governed by the principals of the (federal) COMMON LAW as they may be interpreted by the fed cts in the light of reason/experience” These are the basic privilege rules from the MBE 2) For DIVERSITY cases where STATE SUBSTANTIVE LAW applies (Erie), apply STATE law for (i) privilege; (ii) competency (e.g. Dead Man Statute); AND (iii) burdens of proof/presumptions Outside of these 3 exceptions, APPLY Federal Rules of Evidence

Question 36

What is thespousal communication privilege AND when is it available?

Answer 36

In ANY type of case, a spouse is not REQUIRED, and is NOT allowed in absence of consent by other spouse, to disclose confi commn b/t the spouses made in reliance upon the intimacy of the marital relationship BOTH spouses are holders of privilege; disclosure requires consent by BOTH spouses EXCEPTIONS: NO privilege IF… communications or acts are in furtherance of a jointly perpetrated furture crime or fraud communications are destructive of family unit (e.g. spousal/child abuse) there is civil litigation b/t the spouses Policy: To encourage open commn during the marriage

Question 37

What is spousal immunity AND when is it available? NOTE: NY distinction

Answer 37

In federal CRIMINAL cases, a spouse CANNOT be compelled to testify ABOUT anything against the ∆ spouse Witness/spouse is holder of privilege, SO they can CHOOSE to testify against ∆ spouse EXCEPTIONS: NO privilege IF… the couple divorces before trial communications or acts are in furtherance of a jointly perpetrated furture crime or fraud communications are destructive of family unit (e.g. spousal/child abuse) Policy: To protect harmony of existing marriage NY DISTINCTION: This privilege is NOT available in NY

Question 38

When is propensity character evidence admissible AGAINST VICTIM (∆’s affirmative defense) in a CRIMINAL case? NOTE: NY Distinction

Answer 38

Criminal ∆ MAY introduce evidence of VICTIM’S violent character to prove victim’s conduct in CONFIRMITY (e.g. to prove self-defense affirmative defense) Proper method = character witness may testify to VICTIM’S bad (i) reputation for violence; AND/OR (ii) may give opinion Prosecution rebuttal (after “doors open”): prosecutor may introduce… (1) evidence of VICTIM’S good character for peacefulness (reputation OR opinion); OR (2) evidence of the ∆’s BAD character for violence (reputation OR opinion) NY DISTINCTION: evidence of VICTIM’S character for violence is NOT ADMISSABLE to prove that the victim struck first NOTE: there is a SPECIAL RULE for ∆’s KNOWLEDGE of victim’s bad character for violence ∆ MAY offer evidence of HIS OWN awareness of the victim’s bad character for violence (reputation or opinion) for the PURPOSE of showing the ∆’s state of mind (i.e. he was fearful) THIS IS ALLOWED UNDER MBE OR NY

Question 39

When is propensity character evidence admissible AGAINST ∆ in a CRIMINAL case? NOTE: NY Distinction

Answer 39

Propensity C.E. in CRIMINAL cases is generally INADMISSABLE (i.e. to prove conduct in conformity) against the ∆ EXCEPTION: the ∆ MAY introduce character evidence during DEFENSE, which “opens the door” Can be done by (i) reputation; OR (ii) opinion testimony (NOT specific acts) NY DISTINCTION: ∆ can ONLY use reputation evidence, NOT opinion IFF ∆ has “opened the door”, the prosecutor MAY REBUT, by… cross-examining ∆’s character witness re: specific acts or arrests of the ∆ that reflects ADVERSLY on the trait that the ∆ has INTRODUCED; OR by calling ITS OWN reputation/opinion witness to CONTRADICT ∆’s witness [NY DISTINCTION: it would only be a reputation rebuttal]; OR NY DISTINCTION: prosecutor may rebut the ∆’s good character evidence by proving that the ∆ has been convicted of a crime that reflects on RELEVANT trait

Question 40

When is propensity character evidence admissible in a CIVIL case? NOTE: NY Distinction

Answer 40

Propensity C.E. in CIVIL cases is generally INADMISSABLE (i.e. to prove conduct in conformity) EXCEPTION: Very Narrow → where character is an essential element of claim OR defense: 1) a tort action alleging negligent hiring (i.e. ∆ should have known he was hiring a careless person) 2) Defamation (i.e. evidence of π’s reputation and its diminished state) 3) A child custody dispute (i.e. must prove fitness of a particular person) Any method of introducing propensity C.E. OK: (1) reputation, (2) opinion, (3) specific acts NY DISTINCTION: NO opinion evidence (only repuation or specific acts)

Question 41

What is propensity character evidence?

Answer 41

Propensity C.E. = a persons GENERAL propensity or disposition (e.g. honesty, fairness, peacefulness or violence)

Question 42

What is the purpose of the rape shield law? NOTE: NY Distinction

Answer 42

Opinion OR reputation OR acts evidence about VICTIM’S sexual propensity is INADMISSABLE in a sexual misconduct case EXCEPTIONS: specific acts ARE admissable to prove: Other source of semen or injury OTHER than ∆ Previous acts w/Δ to prove consent defense by ∆ Or if exclusion would violate due process NY DISTINCTION: evidence IS admissible when it tends to show that the victim was convicted of prostitution w/in 3 yrs PRIOR to the time of the alleged rape

Question 43

When is OTHERWISErelevant evidence INADMISSABLE? NOTE: NY Distinction

Answer 43

General rule: all relevant evidence is ADMISSABLE, UNLESS… (i) there is a specific exclusionary rule (policy-based); OR evidence that a person has (or DOES not have) liablity insurance for the PURPOSE of showing fault (or absence of);BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; impeachment) evidence of subsequent remedial measures (e.g. post-accident repair, design changes, etc) for the PURPOSE of showing negligence, culpable conduct, product defect, or need for warning; BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; fesibility of safer design IF ∆ disputes) NY DISTINCTION: in a STRICT LIABLITY products liability action, a mnfrs post-accident design change ARE admissable to sugest the existentence of a defect in the product at time of accident evidence of settlements of disputed CIVIL claims(evidence of settlement; offer to stettle; OR stmts of fact made during settlement negotiations) for the PURPOSE of showing liability OR to impeach a witness as a prior inconsistent stmt EXCEPTIONS: settlement evidence IS admissable for the PURPOSE of impeaching witness on grounds of BIAS stmts of fact made during settlement discussions in CIVIL CASE w/ a GOV’T AGENCY ARE admissable in a later CRIMINAL CASE (NY DISTINCTION: this exception DOES NOT exist in NY) evidence of plea bargaining in CRIMINAL cases An offer to plead guilty (can’t be used in criminal or subsequent civil case) Withdrawn guilty plea (can’t be used in criminal or subsequent civil case) [NY DISTINCTION: a withdrawn guilty plea IS admissable in a SUBSEQUENT civil case] BUT a plea of GUILTY (not withdrawn) is ADMISSABLE against ∆ in subsequent litigation under the rule of party admission (both MBE and NY) offer to pay hospital or medical expenses to prove liability NOTE: this exclusion does NOT exclude OTHER stmts made in connection w/ an offer to pay hospital/medical expenses (ii) the probative value of the evidence is outweighed by outweighed by pragmatic considerations (as determined by the ct) Danger of unfair prejudice Confusion of the issues (e.g. by introducing a collateral matter) Misleading the jury Undue delay Waste of time Unduely cumulative

Question 44

What are the methods of proof for AND requirements to introduce non-character (MIMIC)evidence? NOTE: NY Distinction

Answer 44

2 methods of proof for MIMIC evidence: 1) if there was a conviction; OR 2) other evidence (witnesses, etc) sufficient for reasonable juror to conclude that Δ committed other act (i.e. the Conditional Relevancy Std→Preponderance of Evidence) NY DISTINCTION: in showing IDENTITY of ∆, evidence must beclear and convicing 3 Requirements: 1) Pretrial notice to Δ if requested 2) The ct must weigh probative value against prejudice 3) The ct must give limiting instruction

Question 45

When are acts or previous crimes ADMISSABLE as non-character evidence against ∆?

Answer 45

General rule: other crimes/specific bad acts of ∆ are INADMISSABLE during prosecution’s case in chief IF the only purpose is to attack ∆’s character (and establish likeliness of guilt)… BUT…evidence re:other crimes/misconduct IS ADMISSABLE as NON-CHARACTER evidence to show MIMIC: Motive Intent Mistake (the LACK OF) Identity (∆’s M.O.) Common Scheme/Plan NOTE: The std is the SAMEfor criminal and civil trials The trial ct could STILL exclude evidence if the probative value is less than the danger of unfair prejudice

Question 46

When is evidence relevant? NOTE: NY Distinction

Answer 46

Evidence is relevant IF it has ANY TENDENCY to make a material fact MORE/LESS probable than would be the case w/o the evidence Similar occurances rule: generally, evidence concerning SOME TIME, EVENT OR PERSON OTHER than that involved in the case at hand is INADMISSABLE as not relevant; EXCEPT… π’s accident history IF the event that actually caused π’s injuries is at issue (NOT as evidence of π being “accident prone”) similar accidents caused by same instrumentality OR condition IF the other accident occured under similar cirucumstances, AND for 3 purposes: existence of a dangerous condition causation of the accident prior notice to the ∆ (i.e. he knew of the condition and didn’t remedy) prior similar conduct of a personIF it infers intent and “intent” is AT ISSUE (e.g. show practices of emplyr to show intent to discriminate) comparable sales on issue of value (e.g. fair mkt value of a house in a certain neighborhood) habit evidence of a person (or routine of a business org) as circumstantial evidence of how the person acted on the PARTICULAR occasion at issue in the litigtaion (DISNTINGUISH: character evidence, which prefers to a person’s GENERAL DISPOSITION/PROPENSITY, which is NOT admissable) Habit = a repetitive response to a PARTICULAR set of circumstances (frequency & particularity of conduct) NY DISTINCTION: personal, non-business habit evidence is INADMISSABLE in NY EXCEPTION: in a products liability action, to show how π used a product under her exclusive control (e.g. π always dips hairdryer in water before using) Key words = “always”; “never”; “invariably”; “automatically”; “instinctively” evidence that establishes industrial custom as a STD of CARE

Question 47

What is the ONLY instance where a prior act CAN be introduced to establish propensity? NOTE: NY Distinction

Answer 47

In a case alleging sexual assault OR child molestation, Δ’s prior specific sexual misconduct is ADMISSIBLE by anyone atany time and as propensity evidence NOTE: this rule allows for PRIOR ACTS ONLY, NOT reputation or opinion NY DISTINCTION: this is NOT allowed; ∆’s prior sex crimes INADMISSABLE unless MIMIC rule is satisfied (e.g. to ID perp; to show motive against a certain victim)

Question 48

What are the 4 steps to determine the admissibility of evidence based on relevancy?

Answer 48

STEP 1: Is the evidence relevant? [tends to prove/disprove a material fact by relating to time/event/person in PRESENT litigation; OR there is an exception for SIMILAR occurances {(i) π’s accident history NOT as propensity evidence; (ii) similar accidents caused by same intrumentality/condition; (iii) comparable sales; (iv) habit evidence NOT as general propensity evidence}] YES: STEP 2 NO: INADMISSIBLE STEP 2: Can the evidence be excluded based judicial discretion? [(i) danger of unfair prejudice; (ii) confusion of the issues; (iii) misleading the jury; (iv) undue delay; (v) waste of time] YES: INADMISSIBLE NO: STEP 3 STEP 3: Can the evidence be excluded based on policy-based exclusion? [(i) liability insurance to est guilt; (ii) subsequent remedial measures to est guilt; (iii) settlement offers/plea offers; (iv) offers to pay medical expenses] YES: INADMISSIBLE NO: STEP 4 STEP 4: Is the evidence INVALID propensity character evidence? [(i) civil: character evidence when character NOT at issue; (ii) criminal: character evidence when ∆ didn’t “open door”; (iii) non-MIMIC specific conduct evidence in civil/criminal] YES: INADMISSIBLE NO: ADMISSIBLE, provided it’s not exlcluded under other rules (e.g. hearsay, best evidence, etc)

Question 49

What are the purpose andelements of a “Dead Man’s Statute”? NOTE: NY Distinction

Answer 49

Purpose: Death seals lips of 1 party, DMS seals lips of other by making him incompetant to testify 4 elements… 1) In a civil action 2) an interested party IS incompetent to testify in own interest 3) against a decedent’s estate 4) concerning communications/personal trxns between decedent and interested party NOTE: under the FRE (thus MBE) there is NO DMS, so assume a witness is NOT incompetant unless the q states that this jx DOES have a DMS NY DISTINCTION: In an AUTO accident case based on NEGLIGENCE, the surviing interested party: MAY testify about his observations re: the decedant’s conduct/demeanor; BUT MAY NOT testify about oral stmts made by decedent If an agent (executor, administrators, heirs, legatees, devisees) of the deceased testifies to a trxn w/ the interested person, the interested person MAY then testify abt the same trxn (i.e. the door “was opened”)

Question 50

When are leading questions allowed to be asked?

Answer 50

Leading qs suggest the answer in the q (e.g. “Isn’t it true that you ran the read light?”) Generally NOT ALLOWED on DIRECT EXAMINATION of a witness (but IS allowed on CROSS) EXCEPTIONS where leading q’s CAN be asked on DIRECT: 1) Preliminary/introductory matters (i.e. to get the qs started) 2) Youthful or forgetful witness 3) A hostile witness (based on declaration from the ct) 4) Adverse party or someone under cntrl of adverse party

Question 51

When are lay witnesses’opinions admissible?

Answer 51

Lay witnesses’ opinions are admissible IF: 1) the opinion is rationally based on witnesses’ perception (i.e. personal knowledge); AND 2) helpful to the jury in deciding a fact Areas where lay witnesses’ opinion usually admissible: Drunk OR soberiety Speed of vehicle Sane OR insane Emotions of another person Handwriting (Normal Course) Opinion abt character (MBE ONLY, if meets test for relevance)

Question 52

What are the 2 competency requirements for a witness to be deemed competent? NOTE: NY Distinction for children

Answer 52

A competent witness needs… 1) Personal knowledge (i.e. saw with own eyes; heard with own ears); AND 2)Oath or affirmation (i.e. must demonstrate her willingness to tell the truth) NOTE: for children, the general rule is that a child of ANY age may testify under oath IF the child understands and appreciates the duty to tell the truth NY DISTINCTION: Civil cases: a child MUST be able to testify under oath Criminal cases: A child UNDER THE AGE OF 9, who cannot understand the duty of an oath MAY STILL TESTIFY (i.e. unsworn testimony), BUT a ∆ CANNOT be convicted SOLELY on the unsworn testimony of a child (i.e. there must be corroborating evidence)

Question 53

What are the 2 circumstances where WRITINGS are allowed to AID oral testimony? NOTE: NY Distinction

Answer 53

1) Refreshing recollection If witnesses’s memory fails, he may be shown a document (or anything) to jog his memory The doc is NOT offered into evidence by the using party Witness CANNOT read from doc Adversary can: (1) inspect the refesher; (2) use it on cross-examination; OR (3) introduce it into evidence 2) Past Recollection Recorded (Hearsay Exception): if memory fails witness, and can’t testify, the atty MAY read (but not introduce as evidence) a supporting document, IF… the doc fails to jog witness’s memory; the witness had personal knowledge when doc created; writing was EITHER (1) made; OR (2) adopted by witness; writing was made/adopted when event fresh in witnesses’s mind; AND witness can vouch for accuracy of doc when made NY DISTINCTION: if factors established above, the writing MAY BE SHOWN to the jury (as opposed to just read to the jury)

Question 54

What are the 4 requirements for expert testimony? NOTE: NY Distinction

Answer 54

4 requirements for expert testimony = 1) Qualifications: education AND/OR experience 2) Proper Subject Matter: scientific, technical or other specialized knowledge that WILL BE helpful (i.e. non-obvious)to jury in deciding a fact 3) Basis of opinion based on “reasonable degree of certainty”, drawn from THESE permissible sources: personal knowledge; evid. in trial record made known through hypo; facts outside recordIF it’s of type relied by experts in this field NOTE: if an expert is relying on facts OUTSIDE THE RECORD, he MAY generally identify the type of facts underlying the opinion, but MAY NOT disclose the contents of the inadmissible facts to the jury (hearsay!); HOWEVER… the opponent MAY disclose the underlying facts on CROSS the judge has DISCRETION to allow the expert to disclose contents for the NON-HEARSAY PURPOSE of helping the jury evaluate the expert’s opinion 4) Relevance and reliability: Determined by ct based on 4 Factors: T-R-A-P Testing of pinciples or methodology Rate of error Acceptance by other experts in field (not necessarily general acceptance) NY DISTINCTION: GENERAL acceptance is required in the relevant field Peer review and publication

Question 55

When and how can aparty invoke hearsay exception to use a “learned treatise” in aid of expert testimony? NOTE: NY Distinctions

Answer 55

1) On DIRECT examination of a party’s OWN expert: relevant portions of a treatise (periodical or pamphlet) MAY be read into evidence as substantive evidence (to prove the truth of the matter asserted) IF established as reliable authority 2) On CROSS examination of opponent’s expert: relevant portions of treatise (periodical or pamphlet) MAY be read into evidence to IMPEACH and contradict the opponent’s expert, which comes in as SUBSTANTIVE evidence NOTE: the treatise is NOT admissable by itself; it CAN ONLY be read into evidence NY DISTINCTIONS: 1) On DIRECT examination of a party’s OWN expert: there is NO HEARSAY EXCEPTION for the contents of a learned treatise (i.e. it can ONLY be used to show general basis if the expert’s testimony [non-hearsay purpose]; CAN’T be substantive evidence) 2) On CROSS examination of opponent’s expert: the learned treatise may ONLY BE USED to IMPEACH the expert’s credibility (NOT as substantive evidence); AND ONLY IF the expert relied on the treatise in developing her own opinion (ORacknowledged on cross that it is a reliable authority)

Question 56

When can a witness testify to the ultimate issue in a case?

Answer 56

Both expert AND lay witnesses can generally address the ultimate issue in a case Limitations: 1) Criminal case: EXPERT CANNOT give opinion as to Δ’s mental state 2) Witness CANNOT testify in legal jargon or give conclusive legal opinion, b/c is NOT helpful to jury

Question 57

What is the proper subject matter for a cross examination?

Answer 57

A party has the RIGHT to CROSS examine ANY opposing witness who testifies at the trial (NOTE: if this right is impaired, the testimony will be striken at the minimum) Proper subject matter: 1) Matters w/in scope of DIRECT examination; AND 2) Matters that test the witness’s CREDIBILITY

Question 58

How and when can aparty impeach or bolstertheir OWN witness? NOTE: NY Distinction

Answer 58

1) Bolstering own witness isNOT allowed until witness’s credibility is attacked (impeached) No prior consistent statements allowed on direct (hearsay and limited probative value) EXCEPTION: the witness’s prior ID of a person (“I picked ∆ out of a line up”) comes in a SUBSTANTIVE evidence; PROVIDED the witness is subject to CROSS examination 2) Impeaching own witness is allowed by ANY method of impeachment NY DISTINCTION: general rule is that a party MAY NOT impeach their OWN witness EXCEPTION: A party may impeach their own witness with a prior inconsistent stmt BUT ONLY IF it was (i) made in writing and signed by witness; OR (ii) made in oral testimony under oath; AND (iii) IF a CRIMINAL case, the witness’s testimony is AFFIRMATIVELY damaging to the party that called the witness (vs. not helpful testimony or cloudy testimony)

Question 59

What are the 7impeachment methods?

Answer 59

When a party seeks to prove that opposing witness is either lying or mistaken… 1. Prior inconsistent statements 2. Bias, interest, or motive to misrepresent 3. Sensory deficiencies 4. Bad reputation for truthfulness 5. Criminal convictions (felony OR any crime relating to truthfulness) 6. Bad acts (w/o conviction that reflect adversely on witness’s truthfulness ) 7. Contradiction

Question 60

What are the 2 ways to use the impeachment methods?

Answer 60

1) Ask the witness abt the impeaching fact with the aim of having the witness ADMIT IT (i.e. “confronting” the witness) 2) Prove the impeaching fact with “EXTRINSIC” evidence (i.e. documentary evidence or testimony from other witnesses)

Question 61

How does the “prior INCONSISTENT stmt” impeachment method work? NOTE: NY Distinction

Answer 61

Definition: witness previously made material statement (orally or in writing) that’s inconsistent w/ her trial testimony Generally, prior statement ONLY for impeachment (b/c it is usually hearsay) and CANNOT be used as SUBSTANTIVE evidence EXCEPTION: a prior inconsistent stmt can be used BOTH to impeach AND as substantive evidence, IF the stmt was made (i) orally under oath; AND (ii) as part of a formal hearing, trial, proceeding, or deposition NY DISTINCTION: this exception DOES not exist in NY, prior inconsistent stmt can ONLY be used to impeach Procedure: For MBE: confrontation timing is FLEXIBLE; not req’d to IMMEDIATELY confront the witness, but after proof by extrinsic evidence, witness must be given an opportunity to explain/deny; BUT no need to give witness opp to explain, IF she is OPPOSING PARTY For NY: witness MUST be confronted w/ prior inconsistent stmt while she was on stand (and must give specific details about the stmt, i.e. when/where); BUT no need to give witness opp to explain, IF she is OPPOSING PARTY

Question 62

How does the “bias, interest or motive to misrepresent” impeachment method work? NOTE: NY Distinction

Answer 62

Bias, interest, & motive to misrepresent are all critical issues, so parties can use extrinsic evidence to show Procedure: For MBE, witness MUST be confronted while on stand For NY, confrontation of witness is NOT REQUIRED If confrontation prereq is met (if required), then bias, etc may be proven by extrinsic evidence

Question 63

How does the “sensory deficiencies” impeachment method work?

Answer 63

Anything that can effect witness’s perception OR memory is usable (e.g. bad eyes, bad hearing, being high) Can be proven by extrinsic evidence Confrontation is NOT required

Question 64

How does the “bad reputation/opinion for truthfulness” impeachment method work? NOTE: NY Distinction

Answer 64

Bad community reputation OR witness’ opinion that another witness has bad character for truthfulness 1) Confrontation is NOT req’d 2) To bring in extrinsic evidence… Call character witnessto testify abt target witness’s community reputation OR the character witness’s opinion of target witness’s character for truthfulness, butNEVER with specific acts NY DISTINCTION: character witness can ONLY testify abt community reputation (NOT opinion)

Question 65

How does the “criminal conviction” impeachment method work? NOTE: NY Distinction

Answer 65

Purpose: to suggest false testimony [NOTE: do NOT confuse these rules of IMPEACHMENT w/ rules governing MIMIC crimes used as SUBSTANTIVE evidence to prove ∆’s gult] Permissible types of convictions: 1) Conviction of ANY crime (felony or misdemeanor)as to which the proscution was REQUIRED to prove FALSE STMT as an element of the crime (e.g. fraud, perjury, etc); PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old NOTE: judge has NO discretion TO EXCLUDE once this test is met 2) Conviction of any type of FELONY;PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old NOTE: judge may exclude in his discretion (if there is danger of unfair prejudice vs. probative value) Method of proof: 1) Ask witness to admit prior conviction; OR 2) Introduce record of conviction as extrinsic evidence (WITHOUT confrontation) NY DISDINCTION: any witness may be impeached with a conviction for ANY TYPE of crime, REGARDLESS of how OLD the conviction is and WITHOUT balancing probative value vs. unfair prejudice. EXCEPTION for CRIMINAL ∆s: when a ∆ is testifying as HIS OWN WITNESS, the ct must conduct a hearing to balance the probative value of the conviction vs. unfair prejudice Factors that make a conviction probative: (i) seriousness of the crime; (ii) crime’s relation to trust and deception Factors that make a conviction unfairly prejudicial: (i) similarity to the currenly charged offense; (ii) inflamatory nature of conviction (e.g. child molestation)

Question 66

How does the “bad acts w/o conviction” impeachment method work? NOTE: NY Distinction

Answer 66

A witness may be asked about a PRIOR BAD ACT if it relates to DECEIT OR DISHONESTY (doesn’t have to be a crime, e.g. lying on a resume) Procedure: ONLY permitted with CONFRONTATION on CROSS examination with good faith basis Whether to allow is in the ct’s DISCRETION NOTE: NO EXTRINSIC evidence allowed (Can only ask abt the act and hope that the witness admits it; if not, you MUST move on);Be careful of intersection w/ BIAS impeachment where extrinsic evidence IS admissible NY DISTINCTION: A witness may be asked abt ANY prior bad act that is viscous, criminal OR immoral (in the ct’s discretion) EVEN IF the act does not relate to truthfulness NOTE: in the prosecution’s cross of a CRIMINAL ∆ who is testifying as OWN witness, the ∆ is entitled to a hearingat which the ct will balance probative value (of bad act) vs. danger of unfair prejudice

Question 67

How does the “contradiction” impeachment method work?

Answer 67

Contradiction = when cross examiner tries to get witness to admit (thru “confrontation”) that she made a mistake or lied on a previous direct examination (in same trial) NOTE: Extrinsic evidence is NOT allowed when the fact is COLLATERAL (i.e. it has not significant relevance to the case or the witness’s credibility)

Question 68

What are 2 methods a party can use to rehabilitate an impeached witness? NOTE: NY Distinction

Answer 68

A witness may be rehabilitated ONLY AFTER the witness’ credibility has been attacked thru impeachment 2 methods to rehabilitate: 1) Showing witness’s good character for truthfulness When: Rehab only for impeachment suggesting witness is lying (NOT just mistaken) E.g., Bad reputation/opinion, criminal conviction, bad acts w/o conviction How: Character witness who can testify (using REPUTATION or OPINION evidence) NY DISTINCTION: character witness can use REPUATION evidence ONLY 2) Prior CONSISTENT statement to rebut charge of recent fabrication When: If the witness’s trial testimony is charged as a recent fabrication (or the product of improper influence), a PRIOR stmt by the witness that’s consistent w/ testimony IS ADMISSABLE to rebut IF the stmt was MADE before the motive to fabricate arose E.g., if the witness said the same thing PRIOR taking a bribe; this is admissable to show that the stmt was not a lie based on improper influence Purpose: a prior consistent stmt that fits w/in this rule is ADMISSABLE to rehabiliate credibility AND as substantive evidence that prior stmt was true (not hearsay!) NY DISTINCTION: admissable ONLY TO rehab (NOT as substantive evidence)

Question 69

NY ONLY: When is a judge allowed to give an adverse inference instruction based on missing witness?

Answer 69

An adverse inference instruction allows a jury to draw an unfavorable inference based on a party’s FAILURE to call a witness who would normally be expected to support the party’s version of events In NY this is allowed IF: the witness in question has MATERIAL KNOWLEDGE to the trial; the witness was expected to give testimony FAVORABLE to the party against whom the charge is sought (e.g. the witness is an emp and subject to the person’s cntrl); AND the witness is AVAILABLE to testify