Evidence Flashcards
When do rules of evidence apply?
civil and criminal proceedings in district court, courts of appeal, bankruptcy court, claims court, u.s. magistrates
When do FRE not apply?
1) court determination of preliminary fact governing admissibilty;
(2) grand jury;
(3) criminal proceedings for: (a) search or arrest warrants, (b) preliminary examination, (c) extradition or rendition, (d) bail or other release, (e) sentencing, (f) probation
NY: standards of admissibility
standards vary based on the type of issue.
Challenging evidentiary ruling
Offer or proof: explain relevance and admissibility, UNLESS apparent from context.
Objection: explain basis, UNLESS apparent from context. Need not renew.
Plain error
If error affects substantial right, it can be reversed, even if no objection or offer of proof was made.
Limited admissibility
if party makes timely request, court MUST instruct jury to limit scope of evidence.
Completeness rule
may compel introduction of rest of a writing or recorded statement, including separate but related writings or statements. NOT irrelevant portions.
NY: judicial notice
decision to take notice is ALWAYS within the judge’s discretion
NY: judicial notice of legislative facts
MUST take notice of common law, constitutions, and public statutes of US and individual states.
MAY take notice of acts of US and NY congress, agency regs, and foreign laws. MUST take notice of these if requested by party and given info necessary to comply.
Facts subject to judicial notice
(a) Generally known facts in the jurisidiction;
(2) facts accurately and readily determinable from a source whose accuracy cannot be questioned.
NOT judge’s personal knowledge.
Timing of judicial notice
At any time, BUT NOT on appeal in a criminal case.
Jury instructions for judicial notice
civil case: jury MUST treat facts as conclusive.
criminal case: jury MAY treat facts as conclusive.
Scope of cross-X
limited to subject matter of direct examination and witness credibility.
When are leading questions permitted?
(1) to elicit background info not in dispute;
(2) if witness is a child or has trouble communicating due to age of infirmity;
(3) hostile witness;
(4) cross-examination.
Improper questions
Compound question
Assumes fact not in evidence
Argumentative
Calls for unwarranted conclusion or opinion
Repetitive
Witness that cannot be excluded
(1) a person whose presence is essential to the presentation of the case;
(2) witness whose presence is permitted by law;
(3) a party who is a natural person;
(4) designated representative a party that is not a natural person.
burden of proof in civil cases
generally: preponderance of evidence
fraud, etc.: clear and convincing evidence.
NY: presumptions
presumptions against suicide and illegitimacy shift the burden of persuasion to the party against whom the presumption operates.
presumption in favor of receipt of a mailed letter shifts burden of production only.
Presumptions in diversity cases
when state law is determinative of a claim or defense, state law governs presumptions related to that claim or defense.
Presumptions about destruction of evidence
Destroyed evidence is presumed to be adverse to destroyer if it can be shown that:
(1) destruction was intentional;
(2) evidence was relevant;
(3) alleged victim acted with due diligence as to evidence.
When is evidence relevant?
(1) probative: make fact more or less probable.
(2) material: fact is of consequence in determining the action.
NY: non-probative evidence
e.g., testimony affected by hypnosis
when to exclude relevant evidence?
probative value is substantially outweighed by the danger of unfair prejudice., confusing issues, misleading the jury, undue delay, time wasting.
NY: relevance test
excludable if:
(1) value substantially outweighed by prejudice
(2) would “unfairly surprise” a party
NY” relevance conditioned on fact
jury could rationally find the conditional fact
Relevance conditional on fact
judge must determine that a conditional fact could be found by the jury to be supported by preponderance of the evidence
Curative admission
when necessary to avoid unfair prejudice by outweighing previously admitted unfair evidence
character evidence in civil trials
inadmissible to prove action in accordance with a character trait. (EXCEPTION: sexual conduct, in limited cases).
admissible when character is an essential element of a claim or defense.
character evidence in criminal trial
prosecution may NOT raise evidence of defendant’s bad character in order to prove a propensity to commit crime.
defendant MAY introduce evidence of own good character as being inconsistent with crime. (MUST be reputation or opinion testimony).
prosecution MAY introduce evidence of bad character if defendant “opens the door” by supporting own character or attacking victim’s character.
NY: defendant’s good character
evidence of defendant’s good character must be reputation evidence, NOT opinion evidence.
MAY introduce evidence of specific convictions to rebut defendant’s good character.
Victim’s character
defendant MAY introduce evidence of victim’s character when relevant to defense asserted.
prosecution MAY offer rebuttal evidence of victim’s good character ONLY IF defendant opens door.
NY: Victim’s character
defendant may present evidence of victim’s violent reputation ONLY IF defendant reasonably believed life was in danger. evidence MUST be of specific violent acts.
defendant may NOT use character evidence to show victim was initial aggressor.
Witness character
evidence of witness character is admissible for impeachment purposes.
When are prior bad acts admissible?
MIMIC: Motive Intent absence of Mistake Identity Common Plan
Admissible for any purpose OTHER THAN to show propensity.
NY: prior bad act
if offered to prove identity, bad act must be proved by clear and convincing evidence.
Specific acts
civil cases: admissible to prove character.
criminal cases: not admissible to prove character, except for MIMIC exceptions. prosecution must give notice if defendant requests.
allowed for cross-X of character witness.
habit evidence
admissible to prove that person of organization acted in accordance with habit or routine on particular occassion
NY: habit evidence
must be a deliberate and repetitive pattern of conduct, with no variation from time to time.
NY: witness competency
NOT incompetent merely because has interest in event, or is party, or is spouse of party.
spouse NOT competent to testify against spouse in adultery actions except to prove marriage, disprove adultery, or disprove defense.
NY: oath
criminal: person over 9 years old may testify under oath. child under 9 rebuttably presumed incompetent.
court may allow unsworn testimony, but defendant cannot be conviceted solely on unsworn testimony.
juror as witness
at trial: cannot testify before other juror. may testify separately as to juror misconduct.
after trial: during inquiry in validity of verdict, juror may NOT testify about:
(1) statements or incidents in course of juror deliberation;
(2) effect of anything about juror votes;
(3) juror mental processes.
jurors MAY testify about:
(1) extraneous prejudicial info;
(2) improper outside influence;
(3) mistake in entering verdict on verdict form.
NY: juror as witness
governing case law hold that juror is competent to testify at trial, BUT NOT in proceeding about validity of verdict, EXCEPT as to juror misconduct.
child as witness
intelligence, ability to differentiate truth and falsehood, understanding of importance of telling the truth.
Dead Man’s statute
if financial interest in outcome, cannot testify adversely about communication with decedant.
NY: dead man’s statute
only civil actions.
includes mentally ill and deceased persons.
survivor of vehicular accident is permitted to testify about negligence or contributory negligence.
NY: voucher rule
CANNOT impeach witness that you called UNLESS:
(1) evidence contradicting witness testimony on non-collateral matter;
(2) adverse party’s inconsistent statements;
(3) prior inconsistent statement made under oath or in signed writing;
(4) to preempt impreachment by adverse party;
(5) criminal defendants may introduce any admissible evidence.
NY: witness character
ONLY reputation, NOT opinion
Witnesses: specific conduct
generally NOT admissible, UNLESS on cross-X when probative as to (1) witness truthfulness or (2) truthfulness of another witness.
extrinsic evidence NOT admissible, UNLESS to show bias.
NY: prior bad acts of witness
admissible if:
(1) relate to truth or veracity;
(2) immoral or vicious;
(3) reveal willingness or disposition to place own interests ahead of society.
Witness criminal convictions
impeachable IF:
(1) convicted of any crime involving fraud or dishonesty within the past 10 years;
(2) conviction of a crime whose punishment is death or 1+ years prison within past 10 years (BUT for criminal defendant, ONLY IF probative value outweighs prejudice; for others, if value substantially outweighs);
(3) convictions over 10 years old IF probative value significantly outweighs prejudice AND reasonable written notice to other party.
NOT admissible if pardoned or rehabilitated.
Witness juvenile adjudications
NOT admissible to impeach defendant.
Admissible to impeach other witnesses ONLY IF:
(1) in a criminal case;
(2) would be admissible if adult conviction;
(3) necessary to fairly determine guilt.
NY: witness criminal convictions
If witness of defendant denies conviction on examination, MAY introduce extrinsic evidence.
if defendant admits, no extrinsic evidence.
“Sandoval” hearing: balance probative value against risk of unfair prejudice.
Extrinsic evidence of prior inconsistent statement
admissible ONLY IF witness is give opportunity to explain or deny, and opposing party has opportunity to examine witness.
EXCEPTIONS:
(1) impreachment of hearsay declarant;
(2) opposing party’s statement.
NY: prior inconsistent statements
may use prior writing signed by witness or statement under oath.
criminal trials: not admissible if witness testimony does not disprove position of party who called her.
Rehabilitation of witness
(1) explanation or clarification
(2) reputation or opinion evidence of witness character for truthfulness
(3) prior consistent statement.
present recollection refreshed
must produce items and let adverse party inspect.
in criminal case, failure to produce requires the judge to strike the witness’ testimony.
NY: refreshing recollection
no distinction between item used before testifying to relief upon while testifying.
past recollection recorded
hearsay exception
lay witness opinions
admissible with respect to common-sense impressions if:
(1) rationally based on perceptions of witness;
(2) helpful to clear understanding of fact at issue.
opinion must NOT be scientific, technical, or specialized.
expert witness subject matter
must be:
(1) scientific, technicaly, or specialized;
(2) help trier of fact understand the evidence or determine a fact at issue.
may be about ultimate issue, BUT NOT about mens rea in criminal case.
expert witness qualifications
(1) qualified as an expert;
(2) sufficient facts or data;
(3) reliable principles and methods (reasonably accepted in the field, even if not admissible in court)
(4) principled and methods were applied reliably to facts of case.
NY: Frye standard
scientific theory or principle is reliable only if it has gained general acceptance in the field. burden of proof is on proponent.
experimental evidence is admissible IF proven to have substantial similarity to conditions of incident in question
NY: basis of expert opinion
allows facts not otherwise admissible but derivable from other facts.
opinion as to ultimate issue may NOT be based principally or exclusively on inadmissible evidence.
authentication standard of proof
sufficient evidence
NY: authentication standard of proof
clear and convincing evidence
ways to authenticate objects
personal knowledge
distinctive charcteristics
chain of custody
reproductions and explanatory evidence: witness with personal knowledge
x-ray images and eletrocardiograms: machine working properly
ancient documents
authentic if:
(1) at least 20 years old;
(2) condition unlikely to create suspicion;
(3) found in a place where it would likely be if authentic.
NY: ancient documents
must be at least 30 years old.
any maps, surveys, or records affecting real property stored in office of the register for more than 10 years is prima faciae evidence.
handwriting authentication
expert witness: comparison
lay witness: personal knowledge
Self-authenticating documents
(1) public document with gov seal
(2) certified copies of public records
(3) official publications of public authority
(4) newspapers and periodicals
(5) trade inscriptions
(6) notarized documents
(7) commercial paper
(8) federal statute
(9) records of regularly conducted activity (notice to other party required before production)
NY: self-authentication
Business records self-authenticating ONLY in civil actions AND produced pursuant to a subpoena.
newspapers and periodicals can be challenged by extrinsic evidence.
NY: subscribing witness
don’t need witness to authenticate unless statutorily required.
Voice identification
may be identified by any person who has heard voice at any time.
authentication of telephone convo
(1) caller recognized voice;
(2) speaker knew facts only particular person would know
(3) caller dialed speaker’s number OR number of business.
Best evidence rule
When contents of document are at issue or witness is relying on document, original writing must be produced.
contents at issue if:
(1) proof of happening of event
(2) document has legal effect
(3) basis of witness testimony
duplicate admissible UNLESS:
(1) question as to authenticity of original
(2) circumstances make it unfair to admit duplicate
IF original is unavailable, other evidence of contents admissible IF:
(1) no bad faith;
(2) cannot be obtained by judicial process;
(3) attacked party had control of original, was put on notice, and failed to produce;
(4) not closely related to controlling issue.
NY: duplicates / best evidence
duplicates inadmissible UNLESS:
(1) photocopy or fax of business record;
(2) duplication of writing via image.
carbon copies are originals.
Exceptions to PER
(1) clarify ambiguous terms;
(2) prove trade custom or course of dealings;
(3) fraud, duress, mistake, illegal purpose;
(4) to show consideration was not paid
NY: loss of privilege
electronic communication does NOT negate privilege.
authorized disclosure for insurance claim does NOT negate privilege.
Ways to waive privilege
(1) failure to timely assert;
(2) voluntary disclosure;
(3) contractual waiver.
Spousal immunity
Spouse of criminal defendant may NOT be called or compelled to testify against spouse.
Fed courts: spouse holds privilege.
State courts: defendant holds privilege.
ONLY for events before or during the marriage.
ONLY assertable during a valid marriage.
NY: spousal immunity
No spousal immunity, EXCEPT:
(1) adultery cases;
(2) non-access during wedlock to show illegitimacy of child.
Spousal privilege
protects communications made in reliance on the sanctity of marriage.
applies even after termination of marriage, BUT ONLY to communication made during marriage.
NOT applicable when one spouse is suing the other.
applies in both criminal and civil cases.
NY: confidentiality between spouses
spouse MAY disclose if other spouse is living and consent.
EXCEPTIONS: jointly committed crimes, crimes against spouse, spousal abuse, divorce, ordinary business matters.
Elements of attorney client privilege
(1) intended to be confidential
(2) for the purpose of seeking legal advice or representation. (for corporations: state law says control group only, fed law includes all employees in scope of duty)
(3) client holds privilege, even beyond death.
Exception to attorney-client privilege
(1) crime or fraud;
(2) dispute between attorney and client;
(3) between parties who claim through same deceased client;
(4) between former co-clients.
when is work product discoverable
(1) substantial need
(2) cannot obtain by other means without undue hardship
NY: privilege and preparation of will
in probate action, attorney-client privilege is waived as to preparation, execution, or revocation of will, EXCEPT as to info that would disgrace memory of decedent.
Physician-patient privilege.
communications for purpose of obtaining medical treatment.
EXCEPTIONS:
(1) reasons other than treatment;
(2) patient’s physical condition is at issue;
(3) part of commission of crime or tort;
(4) dispute between physician and patient;
(5) patient agreed to waive;
(6) fed court applying fed law.
NY: physician-patient privilege
Dentist required to disclose dental records for identification.
Physician required to disclose that person under 16 is victim or crime.
Physician required to disclose info about mental or physical condition of decedent, unless privilege waived by:
(1) personal representative, surviving spouse, next of kin;
(2) any part in interest where personal rep is adverse to estate;
(3) validity of will is in question.
Psychotherapist-patient privilege
does not apply:
(1) patient’s mental condition at issue
(2) communication was result of court-ordered exam
(3) case is commitment proceeding against patient.
NY: psychotherapist-patient privilege
only admissible to establish affirmative defense of mental disease or defect.
NY: immunity
witness is not required to answer questions that will accuse him of a crime or expose him to penalty or forfeiture.
NY: clergy-penitent privilege
communication protected if:
(1) in confidence
(2) for the purpose of obtaining spiritual guidance.
NY: professional journalist privileges
Shield Law: absolute privilege for confidential information, qualified privilege for non-confidential information.
Reporter may invoke privilege even if info was received passively.
qualified privilege can be overcome by clear and convincing showing that info is:
(1) highly material and relevant;
(2) critical to the claim;
(3) not obtainable from any alternative source.
Government immunity
(1) identity of informants
(2) communication of official information by or to public officials
NY: additional privileges
(1) social worker-client, EXCEPT crime or harmful act, victim under 16, dispute with client
(2) rape counselor-client, EXCEPT intent to commit crime, dispute with client
(3) library records: only upon consent or request, or subpoena
(4) parent-child
(5) eavesdropping: evidence obtained via illegal eavesdropping is inadmissible.
NY: subsequent remedial measure
NOT for negligence or lack of warning.
admissible in strict liability cases to show a manufacturing defect.
remedial measures are those occurring after date of manufacture, NOT date of accident.
offer to pay medical expenses
offer itself is inadmissible, BUT conduct accompanying the offer is admissible
NY: offer to pay medical expenses
also includes payment for lost wages.
EXCEPTION: admissible to show bias, prejudice, undue delay, or obstruction.
Inadmissible plea negotiation
(1) withdrawn guilty plea
(2) plea of no contest
(3) statements made in plea negotiations
(4) statements made in plea proceeding
EXCEPTION: may be admitted if necessary for fairness because other statement from same proceeding already admitted.
Waiver must be knowing and voluntary.
NY: plea negotiations
withdrawn guilty plea may be used as proof of negligence in subsequent civil proceeding.
statements in plea negotiations are admissible ONLY IF prosecutor specifically bargains for use.
rape shield exceptions in criminal cases
(1) to prove someone else was source of semen, etc.
(2) to prove consent if past behavior was with the accused
(3) any evidence whose exclusion would violate defendant’s constitutional rights.
NY: victim’s past sexual conduct
admissible if:
(1) victim was convicted of prostitution within 3 years of alleged offense
(2) rebuts evidence of victim’s virginity.
rape shield exception in civil cases
admissible if probative value substantially outweighs the danger of harm to any victim and of unfair prejudice.
applies ONLY where one party is victim of sexual misconduct.
procedure to admit past sexual conduct
motion filed at least 14 days before trial, notification to victim.
defendant’s past sexual conduct
admissible to prove any relevant matter, including propensity, BUT excludable if probative value is substantially outweighed by risk of prejudice.
arrests or testimony are also admissible, even without conviction.
procedure: disclose 15 days before trial
Hearsay exceptions
(1) Declarant is not a person: dog bark, time stamp on fax, raw data like blood alcohol screening.
(2) nonassertive conduct
(3) statements offered to prove something other than the truth of the matter asserted: (a) prove that statement was made, (b) show effect on recipient of statement, (c) declarant’s mental state, (d) to impeach a witness.
What is not hearsay
(1) prior inconsistent statement made under penalty of perjury is admissible to impeach declarant’s credibility AND as substantive evidence.
(2) prior consistent statements, under oath or not, made before declarant had reason to fabricate, is admissible to rebut accusation of lying.
(3) prior statement of identification
NY: prior inconsistent statements
statement must be in writing and signed or made under oath.
witness must be available for cross-X.
admissible for substantive purposes and for impeachment.
NY: composite sketches
Considered hearsay, UNLESS admissible as prior consistent statement to rebut charge that identifying witness is lying.
NY: line-up ID
If declarant cannot remember who he identified, anyone present at the line-up can testify about who was ID/d.
Opposing party statements
NOT hearsay.
admissible even if not based on personal knowledge.
Judicial admissions are conclusive evidence.
Silence can be an adoptive admission IF: (1) person heard and understood statement (2) had opportunity to deny (3) reasonable person would have denied BUT NOT post-Miranda silence.
Vicarious statements: employee or agent within scope, authorized speaker, or co-conspirators during and in furtherance of conspiracy.
NY: opposing party statement
an exception to the hearsay rule, rather than just being non-hearsay.
NY: shoulder shrugging
shoulder shrugging can be an admission just like silence.
NY: Vicarious admissions
inadmissible UNLESS agent was specifically authorized as event was occurring.
NY: co-conspirators evidence
admissible ONLY IF prima faciae case for a conspiracy has already been established.
Unavailable declarants
(1) privilege
(2) refusal to testify
(3) lacks memory
(4) death, infirmity, mental defect
(5) cannot be made present
NY: former testimony in criminal prosecutions
admissible ONLY IF from a trial of accusatory instrument, felony hearing, or conditional examination
NY: unavailable witnesses
Criminal actions:
(1) death
(2) illness
(3) physical or mental incapacity
(4) presence outside jurisdiction of court
(5) inability to locate after search
Civil:
(1) impeach the declarant
(2) and for any purpose if prior testimony was given by officer, directorm or agent
(3) declarant died
(4) declarant 100+ miles
(5) declarant out of state
(6) declarant cannot attend b/c illness
(7) declarant cannot be located
(8) other exceptional circumstances
Dying declaration
(1) declarant believes death is imminent
(2) statement pertains to causes and circumstances of death
NY: dying declaration
admissible ONLY in homicide actions.
defendant MAY obtain jury instruction that dying declaration is not of equal weight to in-court testimony.
statement against interest
(1) against interest when made;
(2) reasonable person wouldn’t have said it unless true.
BUT statement inviting criminal liability admissible ONLY IF other circumstances clearly indicating trustworthiness.
NY: statements against penal interest
admissible ONLY IF:
(1) declarant unavailable
(2) declarant aware at time of making that statement was contrary to interst
(3) competent knowledge of underlying facts
(4) independent corroborating evidence
NY: “pedigree exception”
admissible if:
(1) declarant unavailable
(2) relates to blood or affinity
(3) made before controversy arose
(4) pedigree directly at issue in case
witness can testify to own age, family, nationality, etc.
NY: present sense impression
allows statements “immediately thereafter” or after a “marginal time lag.”
MUST have extrinsic evidence.
state of mind hearsay exception
statement of present intent, motive, or plan can be used to prove conduct in conformity.
statements of physical condition
can prove existence of pain, etc., but not cause
NY: statements of condition
ONLY involuntary exclamations like shrieks of pain are admissible for physical condition.
statement of intent about third person admissible ONLY IF declarant unavailable and extrinsic evidence.
statements of memory or belief about will are NOT admissible.
NY: statements made for medical diagnosis
admissible ONLY for present symptoms.
applicable ONLY to treating physicians.
statements to intermediaries NOT admissible.
recorded recollection requirements
(1) once knew but not anymore
(2) record made or adopted when memory was fresh
(3) record is accurate
business records hearsay exception
(1) regular course of business
(2) regular practice
(3) made contemporaneously by someone with knowledge
includes medical records that relate to diagnosis or treatment.
includes police records, EXCEPT for witness statements therein.
NY: business records
Accident records are admissible.
Circumstances indicating unreliability affect weight of records but not admissibility.
public records hearsay exception
(1) activities of office or agency
(2) observations in course of duty
(3) factual findings of legal investigation
NY: public records
(1) made by public officer
(2) certificate or affidavit
(3) required or authorized by law
(4) in course of duties
(5) facts are ascertained
(6) on file in public office
Learned treatises
admissible if:
(1) expert witness relied on it; and
(2) reliable authority
NY: learned treatises
NY has not learned treatises exception.
treatises MAY be used to impeach expert witness who has conceded its authoritativeness.
NY: scientific works
NOT admissible to show truth.
admissible for other purposes.
judgment hearsay exception
admissible IF:
(1) trial or guilty plea
(2) punishable by death or 1+ years
(3) to prove any essential fact
miscellaneous hearsay exceptions
personal or family history in records of religious organization.
facts in marriage or baptismal certificate.
statements in family records.
records affecting interest in property.
ancient documents
market reports
reputation about personal or family history
judgment as proof of history (BUT not in NY)
residual hearsay exception
admissible if:
(1) equivalent circumstantial guarantees of trustworthiness
(2) evidence of material fact
(3) more probative than other reasonably attainable evidence
(4) interests of justice
NY: catch-all hearsay exception
NO catch-call exception, UNLESS:
(1) civil matter
(2) statement in writing
(3) guaranteed accuracy
EXCEPTION: shown by clear and convincing evidence that witness is unavailable due to adverse party conduct.
Constitutional limitations on hearsay
(1) testimonial statement admissible ONLY IF (1) declarant unavailable AND (2) prior opportunity to examine.
testimonial = primary purpose is ascertaining past conduct.
(2) due process may prevent exclusion of hearsay if it prevents defendant from presenting witnesses in his own defense.
Hearsay exceptions organized per witness availability
Witness unavailable: former testimony, dying declaration, statement against interest, statement of family history, statement against party causing unavailability.
Irrelevant for: present sense impression, excited utterance, statement of mental, emotional, or physical condition, statement for medical diagnosis or treatment, recorded recollection, business records, public records, learned treatises, judgments on previous convictions
