Evidence

Question 1

Best Evidence Rule

Answer 1

Original doc/video/recording must be provided when its contents are at issue, EXCEPT when there are duplicates or original destroyed.

NB: Certified public records and summaries of voluminous writings are OK.

NY: Copies NOT OK unless for biz records copied through mechanical reproduction OR for other writing, protective copies which can’t be altered.

Question 2

Judicial Notice - Feds v. NY

Answer 2

In NY, always discretionary except for public acts of US and state gov’ts.

Question 3

Relevance

Answer 3

Low threshold: evidence w/ any tendency to make fact more or less likely (“probative”) and fact matters for outcome (“material”).

Question 4

Rule of Completeness

Answer 4

When one party intros part of writing/recording, adverse party may compel intro of omitted portions or of closely related doc (e.g., reply letter) in order to explain/contextualize it.

Question 5

Rule 403

Answer 5

Feds: Relevant evidence may be excluded if probative value is sub’ly outweighed by danger of unfair prejudice, misleading jury, wasting time, or presenting cumulative evidence.

NY: Same standard. Differs by adding “unfairly surprising” opposing party as reason to deny.

Question 6

Conditional Relevance

Answer 6

Feds: Judge will allow in if conditional fact COULD be found by preponderance of the evidence.

NY: Will allow in if jury could RATIONALLY find conditional fact.

Question 7

Prior Bad Acts

Answer 7

Inadmissible to show propensity. EXCEPT in crim cases, admissible for MIMIC. (And NY reqs C&CE evidence for it to get in under MIMIC)

Fed: Can ask about them to impeach on X iff probative of truthfulness.
NY: Can ask about them iff they relate to truth, are immoral, or show willingness to put witness’s interests ahead of society,

Question 8

MIMIC

Answer 8

Prior bad acts admissible against crim ∆ to show:

Motive
Intent
absence of Mistake
Identity
Common scheme or plan

NY: Reqs C&CE that ∆ committed act.

Question 9

Habit evidence

Answer 9

Evidence of person’s habit OR organization’s routine is admissible to prove actions in conformity w/ that habit. Habit = particular routine reaction to specific circs.

NY: Habit must be “deliberate and repetitive pattern of conduct” that rarely varies.

Question 10

Dead Man’s Statute

Answer 10

NY: party w/ financial interest in civil case can’t testify about communications w/ adverse party who is dead or mentally ill.

EXCEPT: survivors of crash can testify re negligence-related communications of driver/pilot.

Feds have no such statute but apply states’.

Question 11

IMPEACHMENT

Answer 11

1. Bad Character for Truthfulness: shown thru rep. or opinion testimony OR asking witness about prior untruthfulness (no extrinsic evidence). Also thru prior crimes of dishonesty and sometimes felonies.
2. PIS: but intro’d by extrinsic evidence iff other side gets chance to explain.
3. By Bias
4. Impeaching Hearsay Declarant

Question 12

Expert Witnesses

Answer 12

Fed: Testimony must be based on sufficient facts/data + reliable methods reasonably relied on by experts in the field + the reasonable application of one to the other.

NY: Frye standard asks whether majority of experts in this field approve of witness’s approach.

Question 13

Authentication

Answer 13

Fed: Reqs threshold finding by ct that jury COULD find evidence authentic.

NY: Reqs C&CE showing of authenticity for tangible evidence. Same standard as feds for documentary evidence.

Self-authenticating docs: ancient docs (20+/30+ yrs old, found in approp. place w.out suspicion), public records, and replies to letters known to be authentic.

Question 14

Privileges

Answer 14

1-2. Spousal Privs

3. Atty-Client: confidential communs b/w client & atty for purposes of obtaining legal services. Only client can waive. EXCEPT for future crime/fraud.
4. Work Product: ≠ atty-client communs but aren’t subject to discovery unless 1) substantial need, and 2) undue hardship to obtain.
5. Therapist-Patient: includes social workers. EXCEPT for 1) ct-ordered exams, 2) mental state is an issue, or 3) commitment proceedings.

Question 15

Spousal Privileges - Specifics

Answer 15

Feds:
A. Spousal immunity: spouse of CRIM ∆ can’t be called as witness; witness spouse can waive.
B. Confid. spousal communs.: protects confidential communs made b/w spouses while married.

NY: NO spousal immunity except no testimony in adultery claim. CSC can be overcome if both spouses waive.

NB: Neither priv applies when spouses suing each other or one spouse charged w/ crime against other or either’s children.

Question 16

Privileges - NY Distinctions

Answer 16

1. Spouses 2. Atty-Client
2. Psychotherapist-patient
3. Doc-Patient (including dentists, nurses, etc.): must disclose if patient under 16 victim of crime, to explain condition of deceased unless “disgraceful” or if patient intends to harm someone
4. Social worker-client
5. Clergy-penitent: to obtain “spiritual guidance”
6. Journalists: absolute priv for confidential info and qualified for non-confidential
7. Parent-child: protects confidential commun from minor child to parent when all parties object
8. Library records: reqs ct order to produce them

Question 17

Public Policy Exclusions - Feds

Answer 17

1. Subsequent remedial measures: measured by time of injury - not time of mfr or purchase. Inadmissible to show fault but can show other things.
2. Liability Insurance: Inadmissible to show fault but can show other things.
3. Offer to pay medical bills: inadmissible to show liability but accompanying statements admissible.
4. Settlement offers: inadmissible IFF amount is disputed.
5. Plea dealings: inadmissible unless ∆ opens door
6. Past sexual history

Question 18

Past Sexual History - Feds

Answer 18

Rule: evidence of victim’s past sex history inadmissible in sex crimes case EXCEPT: 1) to show physical evidence came from someone else OR 2) consent of victim.

Evidence of promiscuous reputation never getting in.

In civil cases, evidence of past behavior is only admissible if probative value substantially outweighs risk of prejudice. Reputation only admissible if victim opens door.

Question 19

Hearsay Exceptions

Answer 19

Not hearsay, so admissible as subs. evid. AND to impeach.

1. Prior Statements of Testifying Witnesses (subject to X)
   A. PIS – but only as subs. if under oath
   B. PCS to rehab or rebut influence charge
   C. Prior out-of-ct ID upon perceiving them
2. Party Admissions
   A. Adoptive admissions - iff reasonable person would have objected
   B. Co-conspirators or agents - no “bootstrapping”

Question 20

Hearsay Exceptions - Declarant Unavailable

Answer 20

A. Former Testimony: if under oath and other party had opportunity and similar motive to X
B. Dying Declarations: if decl. believed he was dying imminently and statement concerns circs of death. Only for homicide and civil cases (NY: only homicide)
C. Statements Against Interest: @ time of statement
D. Personal History
E. Party Wrongfully Caused Unavailability: iff you caused unavailability in order to prevent testimony.

Question 21

“Unavailability”

Answer 21

NY: Crim cases = 1) death, 2) illness, 3) incapacity, 4) outside jx, 5) inability to locate.

Civil cases: ???

Question 22

Hearsay Exceptions - Availability Irrelevant

Answer 22

A. Present Sense Impression
B. Excited Utterance
C. State of Mind or Emotional Condition: including future intentions, which are admissible to show intention followed.
D. Purposes of Medical Treatment
E. Past Record of Recollection
F. Biz Records
G. Public Records
H. Past Convictions of ∆

Question 23

Past Record of Recollection

Answer 23

Declarant’s availability irrelevant. Reqs the record:

1. concern matter about which witness once had knowledge,
2. adopted at time witness knew,
3. witness vouches for its accuracy, AND
4. witness no longer remembers.

Question 24

Confrontation Clause

Answer 24

RULE: Hearsay will violate CC if it’s testimonial (i.e., made under circs where it’s expected it will be used in prosecution).

RULE2: If testimonial, still comes in if 1) declarant unavailable, and 2) ∆ had prior chance to X.

Forfeiture: if you make declarant unavailable for purposes of preventing their testimony, no CC 4u.

Question 25

Voucher Rule

Answer 25

Unlike feds, NY doesn’t allow you to impeach your own witness unless:

1. offered for some reason besides impeachment
2. adverse party’s inconsistent statements allowable as admissions
3. prior statement under oath or in signed writing
4. PISs made during cross to preempt impeachment by other side
5. otherwise admission evidence for crim ∆

Question 26

Public Policy Exceptions - NY Distinctions

Answer 26

1. Subsequent remedial measures: NY allows in SL mfring defect cases, but looks to date of mfr rather than injury.
2. Offers to pay medical expenses: NY does NOT allow in accompanying statements.
3. Plea dealings: NY allows withdrawn guilty please in civil neg. actions.
4. Sexual conduct of victim: NY allows evidence of past prostitution convictions w/in 3 yrs of alleged sex assault.
5. Past sexual conduct of ∆: NY only allows in under MIMIC exceptions - no rule a la the Feds.

Question 27

Biz Records Exception

Answer 27

Declarant’s availability irrelevant. Reqs the record:

1. made at or near time of event
2. by person w/ knowledge of event and under duty to report it, AND
3. part of reg biz to make that kind of record.

NB: If prep’d in contemplation of litigation, no dice.

Question 28

Character Evidence

Answer 28

NY: Crim ∆ can argue his good character w/ rep evidence ONLY. Opens door to rebuttal through reputation evidence OR specific convictions, which can be shown thru extrinsic evidence iff ∆ denies/equivocates when asked about them.

Fed: No in civil cases unless it’s specific issue in the case. In crim case, ∆ (and then prosecution) can use opinion or rep testimony. Door opened by claiming good character of trashing victim’s.

Question 29

Oath

Answer 29

Children under 9 presumed unable to understand the oath to testify in criminal cases, but ct may find otherwise.

Question 30

Hypnosis

Answer 30

NY: substantive evidence testimony affected by hypnosis is non-probative and inadmissible because hypnosis is not generally accepted as reliable in the scientific community.