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Themis > Evidence > Flashcards

Evidence Flashcards

1
Q

When do rules of evidence apply?

A

civil and criminal proceedings in district court, courts of appeal, bankruptcy court, claims court, u.s. magistrates

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2
Q

When do FRE not apply?

A

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

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3
Q

NY: standards of admissibility

A

standards vary based on the type of issue.

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4
Q

Challenging evidentiary ruling

A

Offer or proof: explain relevance and admissibility, UNLESS apparent from context.

Objection: explain basis, UNLESS apparent from context. Need not renew.

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5
Q

Plain error

A

If error affects substantial right, it can be reversed, even if no objection or offer of proof was made.

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6
Q

Limited admissibility

A

if party makes timely request, court MUST instruct jury to limit scope of evidence.

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7
Q

Completeness rule

A

may compel introduction of rest of a writing or recorded statement, including separate but related writings or statements. NOT irrelevant portions.

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8
Q

NY: judicial notice

A

decision to take notice is ALWAYS within the judge’s discretion

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9
Q

NY: judicial notice of legislative facts

A

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.

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10
Q

Facts subject to judicial notice

A

(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.

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11
Q

Timing of judicial notice

A

At any time, BUT NOT on appeal in a criminal case.

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12
Q

Jury instructions for judicial notice

A

civil case: jury MUST treat facts as conclusive.

criminal case: jury MAY treat facts as conclusive.

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13
Q

Scope of cross-X

A

limited to subject matter of direct examination and witness credibility.

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14
Q

When are leading questions permitted?

A

(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.

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15
Q

Improper questions

A

Compound question

Assumes fact not in evidence

Argumentative

Calls for unwarranted conclusion or opinion

Repetitive

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16
Q

Witness that cannot be excluded

A

(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.

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17
Q

burden of proof in civil cases

A

generally: preponderance of evidence

fraud, etc.: clear and convincing evidence.

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18
Q

NY: presumptions

A

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.

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19
Q

Presumptions in diversity cases

A

when state law is determinative of a claim or defense, state law governs presumptions related to that claim or defense.

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20
Q

Presumptions about destruction of evidence

A

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.

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21
Q

When is evidence relevant?

A

(1) probative: make fact more or less probable.

(2) material: fact is of consequence in determining the action.

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22
Q

NY: non-probative evidence

A

e.g., testimony affected by hypnosis

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23
Q

when to exclude relevant evidence?

A

probative value is substantially outweighed by the danger of unfair prejudice., confusing issues, misleading the jury, undue delay, time wasting.

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24
Q

NY: relevance test

A

excludable if:

(1) value substantially outweighed by prejudice
(2) would “unfairly surprise” a party

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25
Q

NY” relevance conditioned on fact

A

jury could rationally find the conditional fact

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26
Q

Relevance conditional on fact

A

judge must determine that a conditional fact could be found by the jury to be supported by preponderance of the evidence

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27
Q

Curative admission

A

when necessary to avoid unfair prejudice by outweighing previously admitted unfair evidence

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28
Q

character evidence in civil trials

A

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.

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29
Q

character evidence in criminal trial

A

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.

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30
Q

NY: defendant’s good character

A

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.

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31
Q

Victim’s character

A

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.

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32
Q

NY: Victim’s character

A

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.

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33
Q

Witness character

A

evidence of witness character is admissible for impeachment purposes.

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34
Q

When are prior bad acts admissible?

A 
MIMIC:
Motive
Intent
absence of Mistake
Identity
Common Plan

Admissible for any purpose OTHER THAN to show propensity.

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35
Q

NY: prior bad act

A

if offered to prove identity, bad act must be proved by clear and convincing evidence.

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36
Q

Specific acts

A

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.

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37
Q

habit evidence

A

admissible to prove that person of organization acted in accordance with habit or routine on particular occassion

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38
Q

NY: habit evidence

A

must be a deliberate and repetitive pattern of conduct, with no variation from time to time.

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39
Q

NY: witness competency

A

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.

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40
Q

NY: oath

A

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.

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41
Q

juror as witness

A

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.

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42
Q

NY: juror as witness

A

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.

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43
Q

child as witness

A

intelligence, ability to differentiate truth and falsehood, understanding of importance of telling the truth.

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44
Q

Dead Man’s statute

A

if financial interest in outcome, cannot testify adversely about communication with decedant.

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45
Q

NY: dead man’s statute

A

only civil actions.

includes mentally ill and deceased persons.

survivor of vehicular accident is permitted to testify about negligence or contributory negligence.

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46
Q

NY: voucher rule

A

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.

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47
Q

NY: witness character

A

ONLY reputation, NOT opinion

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48
Q

Witnesses: specific conduct

A

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.

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49
Q

NY: prior bad acts of witness

A

admissible if:

(1) relate to truth or veracity;
(2) immoral or vicious;
(3) reveal willingness or disposition to place own interests ahead of society.

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50
Q

Witness criminal convictions

A

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.

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51
Q

Witness juvenile adjudications

A

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.

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52
Q

NY: witness criminal convictions

A

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.

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53
Q

Extrinsic evidence of prior inconsistent statement

A

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.

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54
Q

NY: prior inconsistent statements

A

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.

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55
Q

Rehabilitation of witness

A

(1) explanation or clarification
(2) reputation or opinion evidence of witness character for truthfulness
(3) prior consistent statement.

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56
Q

present recollection refreshed

A

must produce items and let adverse party inspect.

in criminal case, failure to produce requires the judge to strike the witness’ testimony.

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57
Q

NY: refreshing recollection

A

no distinction between item used before testifying to relief upon while testifying.

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58
Q

past recollection recorded

A

hearsay exception

59
Q

lay witness opinions

A

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.

60
Q

expert witness subject matter

A

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.

61
Q

expert witness qualifications

A

(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.

62
Q

NY: Frye standard

A

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

63
Q

NY: basis of expert opinion

A

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.

64
Q

authentication standard of proof

A

sufficient evidence

65
Q

NY: authentication standard of proof

A

clear and convincing evidence

66
Q

ways to authenticate objects

A

personal knowledge

distinctive charcteristics

chain of custody

reproductions and explanatory evidence: witness with personal knowledge

x-ray images and eletrocardiograms: machine working properly

67
Q

ancient documents

A

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.

68
Q

NY: ancient documents

A

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.

69
Q

handwriting authentication

A

expert witness: comparison

lay witness: personal knowledge

70
Q

Self-authenticating documents

A

(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)

71
Q

NY: self-authentication

A

Business records self-authenticating ONLY in civil actions AND produced pursuant to a subpoena.

newspapers and periodicals can be challenged by extrinsic evidence.

72
Q

NY: subscribing witness

A

don’t need witness to authenticate unless statutorily required.

73
Q

Voice identification

A

may be identified by any person who has heard voice at any time.

74
Q

authentication of telephone convo

A

(1) caller recognized voice;
(2) speaker knew facts only particular person would know
(3) caller dialed speaker’s number OR number of business.

75
Q

Best evidence rule

A

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.

76
Q

NY: duplicates / best evidence

A

duplicates inadmissible UNLESS:

(1) photocopy or fax of business record;
(2) duplication of writing via image.

carbon copies are originals.

77
Q

Exceptions to PER

A

(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

78
Q

NY: loss of privilege

A

electronic communication does NOT negate privilege.

authorized disclosure for insurance claim does NOT negate privilege.

79
Q

Ways to waive privilege

A

(1) failure to timely assert;
(2) voluntary disclosure;
(3) contractual waiver.

80
Q

Spousal immunity

A

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.

81
Q

NY: spousal immunity

A

No spousal immunity, EXCEPT:

(1) adultery cases;
(2) non-access during wedlock to show illegitimacy of child.

82
Q

Spousal privilege

A

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.

83
Q

NY: confidentiality between spouses

A

spouse MAY disclose if other spouse is living and consent.

EXCEPTIONS: jointly committed crimes, crimes against spouse, spousal abuse, divorce, ordinary business matters.

84
Q

Elements of attorney client privilege

A

(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.

85
Q

Exception to attorney-client privilege

A

(1) crime or fraud;
(2) dispute between attorney and client;
(3) between parties who claim through same deceased client;
(4) between former co-clients.

86
Q

when is work product discoverable

A

(1) substantial need

(2) cannot obtain by other means without undue hardship

87
Q

NY: privilege and preparation of will

A

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.

88
Q

Physician-patient privilege.

A

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.

89
Q

NY: physician-patient privilege

A

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.

90
Q

Psychotherapist-patient privilege

A

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.

91
Q

NY: psychotherapist-patient privilege

A

only admissible to establish affirmative defense of mental disease or defect.

92
Q

NY: immunity

A

witness is not required to answer questions that will accuse him of a crime or expose him to penalty or forfeiture.

93
Q

NY: clergy-penitent privilege

A

communication protected if:

(1) in confidence
(2) for the purpose of obtaining spiritual guidance.

94
Q

NY: professional journalist privileges

A

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.

95
Q

Government immunity

A

(1) identity of informants

(2) communication of official information by or to public officials

96
Q

NY: additional privileges

A

(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.

97
Q

NY: subsequent remedial measure

A

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.

98
Q

offer to pay medical expenses

A

offer itself is inadmissible, BUT conduct accompanying the offer is admissible

99
Q

NY: offer to pay medical expenses

A

also includes payment for lost wages.

EXCEPTION: admissible to show bias, prejudice, undue delay, or obstruction.

100
Q

Inadmissible plea negotiation

A

(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.

101
Q

NY: plea negotiations

A

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.

102
Q

rape shield exceptions in criminal cases

A

(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.

103
Q

NY: victim’s past sexual conduct

A

admissible if:

(1) victim was convicted of prostitution within 3 years of alleged offense
(2) rebuts evidence of victim’s virginity.

104
Q

rape shield exception in civil cases

A

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.

105
Q

procedure to admit past sexual conduct

A

motion filed at least 14 days before trial, notification to victim.

106
Q

defendant’s past sexual conduct

A

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

107
Q

Hearsay exceptions

A

(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.

108
Q

What is not hearsay

A

(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

109
Q

NY: prior inconsistent statements

A

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.

110
Q

NY: composite sketches

A

Considered hearsay, UNLESS admissible as prior consistent statement to rebut charge that identifying witness is lying.

111
Q

NY: line-up ID

A

If declarant cannot remember who he identified, anyone present at the line-up can testify about who was ID/d.

112
Q

Opposing party statements

A

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.

113
Q

NY: opposing party statement

A

an exception to the hearsay rule, rather than just being non-hearsay.

114
Q

NY: shoulder shrugging

A

shoulder shrugging can be an admission just like silence.

115
Q

NY: Vicarious admissions

A

inadmissible UNLESS agent was specifically authorized as event was occurring.

116
Q

NY: co-conspirators evidence

A

admissible ONLY IF prima faciae case for a conspiracy has already been established.

117
Q

Unavailable declarants

A

(1) privilege
(2) refusal to testify
(3) lacks memory
(4) death, infirmity, mental defect
(5) cannot be made present

117
Q

NY: former testimony in criminal prosecutions

A

admissible ONLY IF from a trial of accusatory instrument, felony hearing, or conditional examination

118
Q

NY: unavailable witnesses

A

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

119
Q

Dying declaration

A

(1) declarant believes death is imminent

(2) statement pertains to causes and circumstances of death

120
Q

NY: dying declaration

A

admissible ONLY in homicide actions.

defendant MAY obtain jury instruction that dying declaration is not of equal weight to in-court testimony.

121
Q

statement against interest

A

(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.

122
Q

NY: statements against penal interest

A

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

123
Q

NY: “pedigree exception”

A

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.

124
Q

NY: present sense impression

A

allows statements “immediately thereafter” or after a “marginal time lag.”

MUST have extrinsic evidence.

124
Q

state of mind hearsay exception

A

statement of present intent, motive, or plan can be used to prove conduct in conformity.

125
Q

statements of physical condition

A

can prove existence of pain, etc., but not cause

126
Q

NY: statements of condition

A

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.

127
Q

NY: statements made for medical diagnosis

A

admissible ONLY for present symptoms.

applicable ONLY to treating physicians.

statements to intermediaries NOT admissible.

128
Q

recorded recollection requirements

A

(1) once knew but not anymore
(2) record made or adopted when memory was fresh
(3) record is accurate

129
Q

business records hearsay exception

A

(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.

130
Q

NY: business records

A

Accident records are admissible.

Circumstances indicating unreliability affect weight of records but not admissibility.

131
Q

public records hearsay exception

A

(1) activities of office or agency
(2) observations in course of duty
(3) factual findings of legal investigation

132
Q

NY: public records

A

(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

133
Q

Learned treatises

A

admissible if:

(1) expert witness relied on it; and
(2) reliable authority

134
Q

NY: learned treatises

A

NY has not learned treatises exception.

treatises MAY be used to impeach expert witness who has conceded its authoritativeness.

135
Q

NY: scientific works

A

NOT admissible to show truth.

admissible for other purposes.

136
Q

judgment hearsay exception

A

admissible IF:

(1) trial or guilty plea
(2) punishable by death or 1+ years
(3) to prove any essential fact

137
Q

miscellaneous hearsay exceptions

A

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)

138
Q

residual hearsay exception

A

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

139
Q

NY: catch-all hearsay exception

A

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.

140
Q

Constitutional limitations on hearsay

A

(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.

141
Q

Hearsay exceptions organized per witness availability

A

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

Themis (20 decks)

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