Evidence

Question 1

Pragmatic consideration

Answer 1

(1) danger of unfair prejudice
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) waste of time
(6) unduly cumulative

Question 2

Similar accidents caused by the same instrumentality or condition

Answer 2

(1) accident history is generally not admissible
(2) unless under substantially similar circumstance; (i) existence of a dangerous condition; (ii) causation; (iii) prior notice to defendant

Question 3

Policy based exclusions

Answer 3

(1) liability insurance for purpose of proving fault/no fault
(2) Subsequent remedial measure: inadmissible for proving negligence, culpable conduct, product defect, or need for warning
(3) settlements of disputed civil claims. Exceptions: (i) impeachment on ground of bias; (ii) statements of fact made in civil litigation with governmental regulatory agency are admissible in later criminal case (not in NY)

Question 4

NY subsequent changes in PL action

Answer 4

Admissible to suggest the existence of a defect in the product at the time of the accident

Question 5

Intent

Answer 5

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

Question 6

Comparable sales on issue of value

Answer 6

Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue

Question 7

Habit

Answer 7

(1) Habit is admissible as circumstantial evidence of how the person acted on the occasion at issue in the litigation
(2) habit is a repetitive response to a particular set of circumstances: (i) frequency; (ii) particularity
(3) NY also requires that the person is in complete control of circumstances (so like always using turn signal has too many variables)

Question 8

Business routine

Answer 8

Allowed

Question 9

Industrial custom as standard of care

Answer 9

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted

Question 10

Plea bargaining in criminal case

Answer 10

(1) Not admissible: (i) offering to plead guilty; (ii) withdrawn guilty plea (in NY admissible in subsequent civil case against defendant); (iii) plea of no contest (nolo contendere); (iv) statements of fact
(2) a plea of guilty is admissible against the defendant in subsequent litigation under rule of party admissions

Question 11

Offers to pay hospital bills or medical expenses

Answer 11

Inadmissible to prove liability

Question 12

Character evidence: general overview

Answer 12

(1) refers to person’s general propensity or disposition (honesty, fairness, peacefulness, or violence
(2) purposes for admissible: (i) character is an essential element in case; (ii) to prove conduct is in conformity with character at the time of the litigated event; (iii) to impeach credibility

Question 13

Character evidence: criminal case defendant’s character

Answer 13

(1) inadmissible to prove conduct on particular occasion during prosecution’s case in chief
(2) defendant may introduce evidence of relevant character trait (knowledge of reputation or opinion; no specific acts)
(3) NY: defendant may seek to prove his good character for the relevant trait only by reputation
(4) Prosecution’s rebuttal: (i) may cross examine witness to impeach knowledge of defendant (no specific acts; (ii) may call own witness to contradict; (iii) NY: may rebut good character by proving defendant has been convicted of a crime that reflects adversely on the character trait in issue

Question 14

Character evidence: victim’s character (self-defense)

Answer 14

(1) Federal rule: (i) defendant may introduce evidence of victim’s violent character; (ii) rebuttal by evidence of victim’s good character or defendant’s character for violence
(2) NY rule: inadmissible to prove victim struck first

Question 15

Character evidence: victim’s character sexual misconduct

Answer 15

(1) ordinarily inadmissible
(2) exceptions: (i) specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim; (ii) victim’s sexual activity with the defendant if the defense of consent is asserted; (iii) where exclusion would violate due process (to show specific motivation for false accusation, etc.)

Question 16

Character evidence: civil cases

Answer 16

(1) Character evidence is generally in admissible to prove conduct in conformity
(2) Admissible in a civil action where specific trait is an essential element of a claim or defense: (i) tort action for negligent hiring/entrustment; (ii) defamation; (iii) child custody

Question 17

Defendant’s other crimes

Answer 17

(1) generally not admissible during case in chief
(2) may be admissible to show state of mind
(3) 5 common non-character purposes (may be introduced independently by prosecution): (i) Motive; (ii) Intent; (iii) Mistake or accident; (iv) Identity; (v) Common scheme

Question 18

How to prove MIMIC crimes

Answer 18

(1) by conviction
(2) by evidence that proves the crime occurred (conditional relevancy, sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime) (must be clear and convincing in NY)
(3) Upon defendant’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence; court must also way probative value v. prejudice and give limiting instructions where appropriate
(4) MIMIC can also be used in civil case if relevant

Question 19

Propensity for sexual assault or child molestation

Answer 19

(1) defendant’s prior specific acts of sexual assault are admissible as part of the case-in-chief of the prosecution or the plaintiff in a civil action to show propensity for sexual conduct
(2) Same rules apply for child molestation
(3) only prior acts are allowed, not reputation or opinion

Question 20

NY prior sexual crimes

Answer 20

(1) not allowed unless MIMIC
(2) example: Unique M.O show identity; prior sexual acts directed at the same person who is the victim in the current case

Question 21

Authentication of writing: overview

Answer 21

(1) if relevance of writing depends upon its source or authorship, a showing must be made that the writing is authentic
(2) in absence of a stipulation as to authenticity, a foundation must be made in order for the document to be admissible

Question 22

Methods of authentication of a writing

Answer 22

(1) witness’ personal knowledge (watched x sign document)
(2) Proof of handwriting; (i) lay person’s opition; (ii) expert’s comparison; (iii) jury comparison
(3) Ancient document rule, authenticity is inferred if: (i) at least 20 years old (30 in NY); (ii) facially free of suspicion; (iii) found in a place of natural custody
(4) solicited reply doctrine: document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

Question 23

Conditional relevancy standard

Answer 23

Document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine

Question 24

Self-authenticating documents

Answer 24

(1) presumed authentic: (i) official publications; (ii) certified copies of public or private records on file in public office; (iii) newspapers or periodicals; (iv) trade inscriptions and labels; (v) acknowledged document (certified by notary); (vi) commercial paper

Question 25

Authentication of photographs

Answer 25

Witness may testify on the basis of personal knowledge that the photo is a “fair and accurate representation” of the people or objects portrayed

Question 26

Best evidence rule

Answer 26

(1) a party seeking to prove the contents of a writing must either: (i) produce the original writing; (ii) provide an acceptable excuse for its absence
(2) Applies for: (i) writing is a legally operative document in the present case (mortgage, patent, deed, divorce decree, written contract); (ii) witness is testifying to facts that she learned solely from reading about them in a writing
(3) does not apply when witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact

Question 27

Best evidence rule: what qualifies as original writing

Answer 27

(1) Whatever the parties intended as the original
(2) duplicate that accurately reproduced the original (duplicate is admissible to the same extent as original unless it would be unfair or genuine question is raised as to authenticity of the original
(3) NY: photocopies are only ok if photocopies were made in the ordinary course of business
(4) handwritten copy is neither an original nor a duplicate

Question 28

Best evidence rule: excuses for non-production of original

Answer 28

(1) lost or cannot be found with due diligence
(2) destroyed without bad faith
(3) cannot be obtained with legal process (beyond subpoena power)

Question 29

Best evidence rule: escapes from requirements of best evidence rule

Answer 29

(1) voluminous records can be presented through a summary or chart provided the original records would be admissible and are available for inspection
(2) certified copies of public records
(3) Collateral documents (not to important matters of the case)

Question 30

Witness competency

Answer 30

(1) personal knowledge

(2) oath or affirmation

Question 31

NY rule for testimony by children

Answer 31

(1) 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
(2) civil cases: a child must be able to testify under oath
(3) A child under 9 who cannot understand the duty of an oath may still testify, but a defendant cannot be convicted based solely on the unsworn testimony of a child (must be some corroborating evidence)

Question 32

Dead man’s statute (no rule under FRE, so must be stated on multistate)

Answer 32

(1) In a civil action
(2) an interested witness
(3) is incompetent to testify
(4) against the estate of a decedent
(5) concerning personal transaction or communication between the interested witness and the decedent

Question 33

NY Dead man statute exception

Answer 33

(1) automobile accident exception: (i) may testify about observation of decedents conduct and demeanor; (ii) may not testify about oral statements made by decedent

Question 34

Leading questions

Answer 34

(1) generally not allowed on direct examination
(2) generally allowed on cross
(3) exceptions for direct: (i) preliminary introductory matters; (ii) youthful or forgetful witness; (iii) hostile witness; (iv) adverse party or under control of adverse party

Question 35

Writings in aid of oral testimony: refreshing recollection

Answer 35

(1) Witness may not read from prepared memorandum
(2) If witnesses’s memory fails him, he may be shown a memo or any other tangible item to jog his memory
(3) adversary has right to: (i) inspect the memory-refresher; (ii) to use it on cross-examination; (iii) to introduce it into evidence

Question 36

Writings in aid of oral testimony: past recollection recorded (hearsay exception

Answer 36

(1) foundation for reading contents of writing to jury if fails to jog witnesses memory: (i) showing writing fails to jog memory; (ii) witness had personal knowledge at former time; (iii) writing was either made by witness or adopted by witness; (iv) making or adoption occurred while it was fresh in mind; (v) witness can vouch for accuracy of writing when made or adopted
(2) under FRE, proponent can only read it; under NY, the writing may be shown to the jury

Question 37

Lay witness opinion testimony

Answer 37

(1) admissible if: (i) rationally based on witnesses perception; (ii) helpful to the jury in deciding a fact
(2) examples of acceptable things: (i) drunk/sober; (ii) speed of vehicle; (iii) handwriting; (iv) emotions of another person; (v) sane/insane; (vi) odors

Question 38

Expert witness: what’s required to be an expert

Answer 38

(1) qualifications: education and/or experience
(2) proper subject matter: scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact

Question 39

Expert witness: basis of opinion

Answer 39

(1) based on reasonable degree of probability or reasonable certainty
(2) three permissible data sources: (i) personal knowledge; (ii) other evidence in trial record; (ii) facts outside record if of a type reasonably relied upon by experts

Question 40

Expert witness: relevance and reliability (TRAP)

Answer 40

(1) to be admissible must be sufficiently reliable; must use reliable methods and principles and reliably apply them to the facts of the case
(2) court serves as gatekeeper
(3) four principal factors to determine reliability (TRAP): (i) testing of principles or methodology; (ii) rate of error; (iii) acceptance by other experts in the same discipline; (iv) peer review and publication
(4) In NY, must have achieved general acceptance in relevant scientific field

Question 41

Expert witness: learned treatise (MBE)

Answer 41

(1) on direct, relevant portions may be read into evidence as substantive evidence if established as reliable authority
(2) on cross, relevant portions may be read into evidence to impeach or contradict opponent’s expert

Question 42

Expert witness: learned treatise (NY)

Answer 42

(1) on direct, no hearsay exception, but may still be used as general basis of expert’s testimony
(2) on cross, may be used only to impeach credibility and only if the expert relied on the treatise in developing her opinion or acknowledge on cross that it is a reliable authority

Question 43

Expert witness: ultimate issues

Answer 43

(1) Opinion testimony is even if it addresses an ultimate issue as long as other requirements are satisfied
(2) still a proper objection if expert seeks to give direct opinion that defendant did not have the relevant mental state (“d’s insanity prevented him from understanding that he was shooting at the victim”)

Question 44

Cross examination: right

Answer 44

part has a right to cross-examine any opposing witness who testifies at trial. Significant impairment of this right will result in at minimum a striking of the witness’s testimony

Question 45

Cross examination: proper subject matter

Answer 45

(1) matters within the scope of direct examination

(2) matters that test the witness’s credibility

Question 46

Impeachment: bolstering own witness

Answer 46

(1) Cannot be done until impeached (rehabilitation)

(2) Exception for prior ID (under FRE exclusion from hearsay, under NY an exception to hearsay

Question 47

Impeachment: party’s impeachment of own witness

Answer 47

(1) federal: any party may impeach any witness, including her own witness, by any method of impeachment
(2) NY: a party may not impeach her own witness; exception: may impeach with prior inconsistent statement but only if: (i) made in writing and signed by witness, or (ii) made in oral testimony under oath (in criminal cases may be used only if witness’s current testimony is affirmatively damaging to the party who called the witness, not merely a cloud on credibility

Question 48

Impeachment: methods

Answer 48

(1) prior inconsistent statements
(2) bias, interest, motive to misrepresent
(3) sensory deficiencies
(4) bad reputation or opinion about witness’s character for truthfulness
(5) criminal convictions
(6) bad acts that reflect adversely on witness’s character for truthfulness
(7) contradiction

Question 49

Impeachment: how to use impeachment methods

Answer 49

(1) ask witness about the impeaching fact with aim of having witness admit it (confronting the witness)
(2) prove the impeaching fat with extrinsic evidence

Question 50

Impeachment: extrinsic evidence

Answer 50

(1) may use for impeaching methods except bad acts and contradictory collateral facts
(2) for impeachment methods that allow extrinsic evidence, it is not necessary to ask the witness about impeaching fact before evidence is introduced except: MBE for bias, NY for prior inconsistent statement

Question 51

Impeachment: prior inconsistent statements

Answer 51

(1) purpose of admissibility is only impeachment
(2) Exception (MBE only): may be admitted both to impeach and as substantive evidence if made: (i) orally under oath; and (ii) part of a formal proceeding
(3) Confrontation: (i) federal it is flexible, but must be given an opportunity at some point to return to the stand to explain or deny the prior statement; (ii) in NY witness must be confronted with prior inconsistent statement while she is on the stand
(4) exception to confrontation in both NY and MBE if witness is opposing party

Question 52

Impeachment: bias, interest or motive to misrepresent

Answer 52

(1) may impeach witness by showing any fact that would give the witness a reason to testify favorably or negatively about a party’s case
(2) confrontation is required under federal law but not under NY
(3) bias may be proven by extrinsic evidence as long as confrontation is met

Question 53

Impeachment: sensory deficiencies

Answer 53

(1) anything that could affect witness’s perception or memory
(2) no confrontation requirement
(3) extrinsic evidence is allowed

Question 54

Impeachment: bad reputation or opinion about witness’s character for truthfulness

Answer 54

(1) any witness is vulnerable to impeachment
(2) no confrontation
(3) extrinsic evidence is allowed
(4) in NY only bad reputation, not opinion

Question 55

Impeachment: criminal convictions federal rule

Answer 55

(1) Purpose is that person convicted of a crime is more likely to lie under oath
(2) Permissible convictions: (i) conviction of any crime which prosecution was required to prove a false statement as an element; (ii) felony, may be excluded if probative value of credibility is outweighed by danger of unfair prejudice to a party
(3) time limitation: 10 years from conviction or release from prison
(4) method of proof: (i) ask witness to admit; (ii) introduce record of conviction

Question 56

Impeachment: NY rule for criminal convictions

Answer 56

(1) In general any witness may be impeached with a conviction for any type of crime without regard to how old the conviction is and without balancing probative value with the danger of unfair prejudice
(2) Special rule for criminal defendants: must balance probative value of the conviction on issue of defendant’s credibility against the risk of unfair prejudice. Look to serious and relation to trust and deception for probative factors. Look to similarity to current offense and inflammatory nature for prejudice

Question 57

Impeachment: Inquiry about bad acts without conviction

Answer 57

(1) witness may be asked about a prior bad act if it relates to deceit or dishonesty
(2) can only come in through confrontation on cross
(3) In NY a witness may be asked about any prior bad act that is vicious, criminal or immoral even if unrelated to truthfulness
(4) witness is entitled to a hearing where court must balance the probative value of the bad act on the issue of the defendant’s credibility agains the danger of unfair prejudice
(5) proof of bad act may be allowed if it is relevant for some purpose other than bad character for truthfulness such as to show bias

Question 58

Impeachment: Contradiction

Answer 58

(1) cross-examiner may try to obtain admission that she made a mistake or lied about any fact she testified to during direct.
(2) extrinsic evidence is not allowed for purpose of contradiction if the fact at issue is collateral

Question 59

Impeachment: bolstering witness

Answer 59

(1) showing good character after impeachment
(2) prior consistent statement to rebut a charge of recent fabrication occurring before motive to fabricate (in NY only to rehabilitate, not as substantive evidence)

Question 60

Privileges: introduction

Answer 60

(1) federal court in federal substantive action applies privileges by principles of common law as they may be interpreted in light of reason and experience
(2) federal court in diversity must apply privilege of the state whose substantive law is applicable; also state law on competency and state law on burdens of proof and presumptions

Question 61

Privileges: Attorney-client

Answer 61

(1) applies to: (i) confidential communications; (ii) between attorney and client (or representative of either); (iii) made during professional, legal consultation; (iv) unless privilege is waived by the client; (v) or exception applicable

Question 62

Confidential communications between attorney and client

Answer 62

(1) Client must intend confidentiality
(2) if two or more clients with common interest share the same attorney, their communications with counsel concerning the common interest are privileged as to third parties; does not apply between them if later dispute arises

Question 63

Attorney-client privilege: subject matter waiver

Answer 63

A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if: (i) partial disclosure is intentional; (ii) disclosed and undisclosed communications concern the same subject matter; (iii) fairness requires that the disclosed and undisclosed communications be considered together

Question 64

Attorney-client privilege: inadvertent waiver

Answer 64

An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder: (i) took reasonable steps to prevent the disclosure; (ii) takes reasonable steps to correct the error

Question 65

Attorney-client privilege: exceptions

Answer 65

(1) future crime (can’t aid commission of crime)
(2) puts legal advice at issue
(3) attorney-client dispute

Question 66

Physician-patient privilege: overview

Answer 66

(1) usually created by state statute

Question 67

Physician-patient privilege: application

Answer 67

(1) applies to: (i) confidential communication or information acquired by physician from patient; (ii) for purpose of diagnosis or treatment of medical condition
(2) also applies to psychotherapists (MD or other certified to diagnose or treat medical/emotional illness

Question 68

Physician-patient privilege: federal law distinction

Answer 68

Privilege exists only for psychotherapy

Question 69

Physician-patient privilege: exception

Answer 69

privilege is lost if patient expressly or impliedly puts physical or mental condition in issue

Question 70

Spousal privilege (not recognized in NY)

Answer 70

(1) A spouse cannot be compelled to testify about anything against the defendant spouse
(2) witness spouse holds the privilege (may voluntarily testify)

Question 71

Confidential communications between spouses

Answer 71

(1) A spouse is not required and is not allowed in the absence of consent by the other spouse to disclose confidential communication made by one to the other during marriage
(2) exceptions: (i) communications or acts in furtherance of jointly perpetuated future crime or fraud; (ii) communications or acts destructive of family unit; (iii) no privilege in civil litigation between the spouses themself

Question 72

Hearsay: definition

Answer 72

(1) out of court statement by person
(2) offered to prove the truth of the matter asserted
(3) inadmissible unless an exception or exclusion

Question 73

Hearsay: Non-hearsay statements

Answer 73

Some out-of-court statements may look like hearsay but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement

Question 74

Hearsay: non-hearsay purposes

Answer 74

(1) verbal act (legally operative words)
(2) to show effect on person who heard or read the statement
(3) Circumstantial evidence of speaker’s state of mind (“i am elvis presley”)

Question 75

Hearsay: prior statements of trial witness

Answer 75

(1) A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement is hearsay and is admissible unless an exception or exclusion applies
(2) exclusions: (i) prior statement of identification of a person (exception in NY); (ii) prior inconsistent statement if oral, under oath and made during formal testimony (admissible only to impeach in NY); (iii) witness’s prior consistent statement if being used now to rebut charge of recent fabrication or improper motive (in NY admissible only to rehabilitate credibility)

Question 76

Hearsay: party admissions

Answer 76

(1) any statement made by opposing party is admissible if it is offered against the opposing party
(2) adoptive admission: adoption by silence can also occur where party remains silent under circumstances in which a reasonable person would protest if the statement were false
(3) vicarious party admission: statement of agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the relationship. In NY admissible only if principle gave agent authority to speak
(4) statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made: (i) during; and (ii) infurtherence of the conspiracy

Question 77

Hearsay: exceptions

Answer 77

(1) forefeiture by wrongdoing
(2) former testimony
(3) statement against interest
(4) dying declaration
(5) excited utterance
(6) present sense impression
(7) present state of mind
(8) declaration of intent
(9) present physical condition
(10) statement for the purpose of obtaining medical treatment or diagnosis
(11) business records
(12) public records

Question 78

Hearsay: criminal right of confrontation

Answer 78

(1) prosecution may not use a hearsay statement against criminal defendant if: (i) statement is testimonial; (ii) declarant is unavailable; (iii) defendant has no opportunity for cross-examination
(2) testimonial: (i) grand jury testimony; (ii) statements in response to police interrogation are testimonial if primary purpose of questioning is to establish or prove past event potentially relevant to criminal prosecution
(3) non testimonial: if primary purpose is to enable police to meet an ongoing emergency
(4) business records are nontestimonial
(5) forensic lab report is testimonial if its primary purpose is to accuse the targeted individual of criminal conduct (DNA from crime scene is ok as long as no person was suspected when tested)

Question 79

Hearsay: forfeiture exception

Answer 79

(1) any type of hearsay is admissible against a defendant whose wrongdoing made the witness unavailable if court finds: (i) by a preponderance of evidence; (ii) defendant’s conduct was specifically designed to prevent testifying
(2) NY requires clear and convincing evidence

Question 80

Hearsay: former testimony

Answer 80

(1) no unavailable witness
(2) given at a former proceeding or deposition
(3) is admissible against a party who
(4) had a prior opportunity and motive to cross-examine or develop the testimony of the witness
(5) issue of both proceedings must be essentially the same

Question 81

Hearsay: grounds for unavailability

Answer 81

(1) privilege
(2) absence from jurisdiction (can’t find or beyond subpoena)
(3) illness or death
(4) lack of memory
(5) stubborn refusal to testify
NY specific
(6) declarant is located 100 miles or more from the courthouse
(7) declarant is a physician

Question 82

Hearsay: statement against interest

Answer 82

(1) unavailable
(2) statement against interest: (i) pecuniary interest; (ii) proprietary interest; (iii) penal interest
(3) must be against interest when made
(4) any person can make statement against interest (not just party)
(5) personal knowledge is required

Question 83

Hearsay: dying declaration

Answer 83

(1) a statement made under belief of impending and certain death by a now unavailable declarant concerning the cause or circumstances surrounding the declarant’s death
(2) unavailable
(3) homicide only in criminal case; any civil case
(4) only homicide in criminal cases in NY

Question 84

Hearsay: present sense impression

Answer 84

(1) description of an event made while the event is occurring or immediately thereafter
(2) In NY must be corroborating evidence of the happening of the event described by the declarant

Question 85

Hearsay: present state of mind

Answer 85

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

Question 86

Hearsay: declaration of intent

Answer 86

(1) statement of declarant’s intent to do something in the future including the intent to engage in conduct with another person
(2) NY, if the statement of future intent is offered to prove joint participation of another person must have: (i) corroborating evidence of a relationship between the declarant and the other person; (ii) unavailable

Question 87

Hearsay: present physical condition

Answer 87

(1) statement made to anyone about declarant’s present physical condition
(2) NY declarant must be unavailable if statement is made to layperson rather than a medical professional

Question 88

Hearsay: statements made for purpose of obtaining medical treatment

Answer 88

(1) statements made to anyone concerning: (i) present symptoms; (ii) past symptoms; (iii) general cause of condition
(2) NY: exception does not apply to statements made a a physician solely for the purpose of helping the physician to develop an opinion for expert testimony at trial

Question 89

Hearsay: business records elements

Answer 89

(1) records of a business of any type
(2) made in the regular course of business
(3) the business regularly keeps such records
(4) made at or about the time of the event recorded
(5) contents consist of: (i) information observed by employees of business; (ii) a statement that falls within an independent hearsay exception

Question 90

Hearsay: proving business record foundation

Answer 90

(1) call sponsoring witness to testify to the 5 elements

(2) written certification under oath attesting to elements of business records hearsay exception

Question 91

Hearsay: NY business records

Answer 91

permitted in only three circumstances: (i) civil cases of a nonparty that has produced its business records for inspection as part of pretrial discovery; (ii) in any case for records of a hospital; (iii) business records of a state or local government

Question 92

Hearsay: Public record

Answer 92

(1) records of public office or agency setting forth: (i) activities of office or agency; (ii) matters observed pursuant to a duty imposed by law; (iii) finding of fact or opinion resulting from an investigation authorized by law
(2) exclusion: police reports prepared for prosecutorial purposes
(3) NY: not well developed, so almost always come in through business records. Conclusions and opinions contained only if report sets forth adequate facts and person giving the opinion is qualified