MS Evidence w/ NY Distinctions Flashcards
Evidence is relevant when
it has any tendency to make a material fact more/less probable than otherwise
Evidence from occurrences other than those involved in the case
Generally inadmissible
P’s accident history
Inadmissible unless the event that caused P’s injury is at issue
Exception to general rule of accident history: other accidents involving same instrumentality/condition may be admitted:
Under substantially similar circumstances: existence of a dangerous condition, causation of the accident, prior notice to D
Habit of a person is _______ of how person acted on occasion at issue in litigation
admissible as circumstantial evidence
NY distinction of habit: in addition to frequency and particularity of conduct, person must be:
in complete control of the circumstance
Evidence that person has liability insurance is inadmissible for purpose of ______________
proving fault or absence of fault
Evidence of insurance may be admissible when:
proof of ownership/control of instrumentality or location, if ownership/control is disputed by D; or for impeaching a witness
Subsequent remedial measures are generally inadmissible except
to prove ownership/control or feasibility of safer condition, if either is DISPUTED
NY: withdrawn guilty pleas can be used as admission in…
a subsequent CIVIL proceeding arising out of the same facts
NY: in strict products liability for manufacturing defect, post-accident design changes are
admissible to show prior design was defective
In DISPUTED civil claims, settlement offers and statements of fact during settlement negotiations are
inadmissible to show liability or to impeach a witness as a prior inconsistent settlement
Settlement evidence admissible for impeaching witness on grounds of:
bias
Statements of fact during settlement discussions with a government regulatory agency are ________ in later criminal case
inadmissible, unless action involves toxic products
Plea Bargaining in Criminal Cases: Offer to plead guilty is
Inadmissible in pending crim case or subsequent civil case
Plea Bargaining in Criminal Cases: Withdrawn guilty plea is
Inadmissible in pending crim case or subsequent civil case. (NY: admissible in subsequent civil case)
Plea Bargaining in Criminal Cases: Plea of “no contest”
Inadmissible
Plea Bargaining in Criminal Cases: Statement of fact
Inadmissible
Offer to pay medical expenses is
Inadmissible to prove liability, but statements made in connection are not excluded
In crim case, D’s character evidence to prove conduct on particular occasion is inadmissible during
P’s case-in-chief
If D introduces evidence of relevant character trait,
it opens the door to rebuttal by P
Types of character evidence in NY: D may use what kind of evidence?
Reputation only, not opinion
Types of character evidence MBE: reputation and opinion, not:
specific facts
If D “opens the door” with character witnesses, P may ask about specific acts of D for purpose of:
impeaching character witness’s knowledge about the D
NY: P may rebut D’s good character evidence by proving D ________________
has been convicted of a crime that reflects adversely on character trait at issue
Self-defense: Crim D may introduce evidence of victim’s violent character to prove victim’s conduct in conformity. P can rebut by 2 methods:
- Evidence of victim’s good character for peacefulness 2. Evidence of D’s bad character for violence
NY self-defense: evidence of victim’s character for violence is:
inadmissible to prove victim struck first
2 types of self-defense evidence:
Reputation and opinion only, not specific facts (rep only in NY)
In self-defense, special rule for D’s knowledge of victim’s bad character for violence:
D may offer evidence of his own awareness of the victim’s bad character for violence (reputation or bad acts) for purpose of showing D’s state of mind
Rape shield law general rule: the following evidence about victim is ordinarily inadmissible:
Opinion/reputation evidence about victim’s sexual propensity, or Evidence of specific sexual behavior of the victim
Rape shield law exceptions: following evidence is admissible
Specific sexual behavior of victim to prove someone other than D was source of semen; Victim’s sexual activity w/ D if defense of consent is asserted; or Where exclusion would violate D’s right of due process
Character evidence in civil cases is generally inadmissible, with 3 exceptions:
Where character is essential element of a claim or defense: 1. Tort action alleging negligent hiring or entrustment 2. Defamation 3. Child custody dispute
D’s past crimes aren’t admissible to show D’s bad character, but may be admissible for 5 exceptions (“MIMIC”):
Motive Intent Mistake/accident (absence thereof) Identity Common scheme or plan If MIMIC category is satisfied, P may use evidence as part of case-in-chief
MIMIC method of proof standard:
MBE - by evidence with a conditional relevancy standard (reasonable juror could conclude D committed the crime… easy) NY - clear and convincing evidence (harder standard)
In case alleging sexual assault, D’s prior specific acts of sexual assault are:
MBE: Admissible as part of P’s case-in-chief to show D’s propensity for sexual misconduct NY: inadmissible, unless they fit w/in MIMIC
4 Methods of authenticating writing:
Personal knowledge, proof of handwriting, ancient doc rule, solicited reply doctrine
Ancient doc rule: authenticity of doc may be inferred IF doc is:
- At least 20 years old (NY: 30 years) 2. Facially free of suspicion 3. Found in place of natural custody
Authenticating with proof of handwriting must meet what standard
Conditional relevancy standard - sufficient evidence from which reasonable juror could conclude doc is genuine
Types of self-authenticating docs
- Official publications 2. Certified copies of public/private records on file in public office 3. Newspapers or periodicals 4. Trade inscriptions and labels 5. Acknowledged doc 6. Commercial paper
Best evidence rule: general rule
Party who seeks to prove contents of a writing must either produce original writing, or provide acceptable excuse for its absence
BER doesn’t apply when person testifying has
Personal knowledge
BER: excuses for non-production of original
- Lost or cannot be found w/ due diligence 2. Destroyed w/o bad faith 3. Cannot be obtained w/ legal process
3 methods of escaping reqs of BER
- Voluminous records can be presented through summary/chart 2. Certified copies of public records 3. Collateral docs (judge thinks they’re not important to case’s merits)
Two requirements of a competent witness:
Personal knowledge and oath/affirmation
NY: children testimony may testify under oath if:
child understands and appreciates the duty to tell the truth exception: in crim case, kid under 9 who doesn’t understand an oath can testify, but D cannot be convicted based solely on that testimony
IF a state has a “dead man’s statute” (not automatically on MBE):
in a CIVIL action, an interested witness is incompetent to testify against the estate of a decedent concerning a personal transaction/communication b/w interested witness and the decedent
NY has dead man’s statute with one exception:
in auto accident case based on negligence, surviving interested party may testify about his observations of the decedent’s conduct and demeanor, but NOT about oral statements made by decedent
Leading question not allowed on direct, w/ 4 exceptions:
- preliminary matters 2. youthful/forgetful witnesses 3. hostile witness 4. adverse party
Writings to refresh recollection general rule:
if witness’s memory fails him, he may be shown a memo (or any other tangible item) to jog his memory But writing may not be entered as evidence
Past recollection recorded (hearsay exception): 5 foundations for reading contents of writing to jury:
- showing writing to witness fails to jog memory 2. witness had personal knowledge at former time 3. writing was either made or adopted by witness 4. making or adoption occurred while event was fresh in the witness’s mind 5. witness can vouch for accuracy of writing when made or adopted
Lay opinion admissible if: (2 part test)
rationally based on witness’s perception and helpful to the jury in deciding a fact
Expert witness must have an opinion based on “reasonable degree of probability or reasonable certainty.” 3 requirements for expert witness:
- qualified (education and/or experience) 2. proper subject matter (specialized knowledge will be helpful to the jury in deciding a fact) 3. basis of opinion
Expert witness’s basis of opinion can draw on three data sources:
- personal knowledge 2. other evidence in the trial record made known to expert at trial by hypothetical question 3. facts not in evidence if of a type reasonably relied upon by experts
MBE: expert opinion must pass Daubert standard (“TRAP”)
Testing of principles or methodology Rate of error Acceptance by other experts in same discipline Peer review and publication
NY: expert opinion must pass Frye standard
general acceptance in the relevant scientific community
Cross examination must concern proper subject matter (2 elements)
- Matters w/in scope of direct, and
- Matters that test the witness’s credibility
Cannot bolster your own witness until…
the witness’s credibility has been impeached
Impeaching your own witness: general rule for MBE
Any party may impeach any witness, including her own witness, by any method of impeachment
Impeaching your own witness: general rule in NY (and exception)
Party may not impeach her own witness.
Exception: party may impeach own witness w/ prior inconsistent statement but only if it was:
- made in writing and signed by witness, or
- made in oral testimony under oath
- (crim case) witness’s current testimony must be affirmatively damaging to party who called the witness
MBE general rule for prior inconsistent statement:
A witness may be impeached (no substantive evidence) by showing that on some prior occasion, she made a material statement inconsistent w/ her trial testimony
May also be used as substantive evidence if statement was made under oath at trial or deposition
NY general rule for prior inconsistent statements
Can ONLY be used to impeach, never as substantive evidence
Timing of presenting prior inconsistent statement (MBE and NY rules)
MBE: flexible timing. But after proof by extrinsic evidence, witness must be given opportunity to return to stand to explain statement
NY: witness must be confronted w/ prior inconsistent statement while on the stand
General rule of impeachment via bias
May impeach a witness by showing any fact that would give witness a reason to testify favorably or negatively about a party’s case
NOTE: MBE, witness must be confronted on the stand. NY, not required
Impeachment via sensory deficiencies. Confrontation? Extrinsic evidence?
No confrontation required. Extrinsic evidence allowed.
Impeachment via bad reputation/opinion about witness’s character for truthfulness
Confrontation required? Extrinsic evidence allowed?
No confrontation required. Extrinsic evidence is allowed
Impeaching via criminal convictions (MBE rule).
Permissible types of convictions:
- Conviction of any crime where P was required to prove false statement as an element of the crime
- Or a felony (court has discretion to exclude if probative value is outweighed by danger of unfair prejudice)
Conviction, or release from prison, whichever is later, must be w/in 10 years of trial
Impeachment via inquiry on bad acts if they reflect adversely on character for truthfulness (MBE general rule)
Witness may be asked about prior bad act if it relates to deceit or dishonesty
Must be done through confrontation during cross examination. Cannot enter extrinsic evidence of bad acts
Impeachment via inquiry on bad acts (NY rule)
Witness may be asked about any prior bad act that is vicious, criminal, or immoral in court’s discretion
Impeachment via contradiction. Usually, cross examiner tries to make witness admit a mistake or lie. But if witness doesn’t admit, can you use extrinsic evidence?
Extrinsic evidence is not allowed if the fact at issue is collateral (no significant relevance)
2 main ways of rehabilitation after impeachment
- Showing witness’s good character for truthfulness
- Prior consistent statement to rebut a charge of recent fabrication
Can a prior consistent statement be entered as substantive evidence?
MBE: yes
NY: never, only admissible to rehabilitate
Attorney-client privilege definition
Confidential communications between attorney and client made during professional, legal consultation (unless privilege is waived or an exception is applicable)
Subject matter waiver of A-C privilege: voluntary waiver of privilege as to some communications will also waive privilege as to other communications if: (3 elements)
- partial disclosure is intentional
- disclosed and undisclosed communications concern the same subject matter
- fairness requires that the disclosed and undisclosed comms be considered together
Inadvertent waiver of A-C privilege will not waive privilege so long as privilege-holder did 2 things:
- took reasonable steps to prevent the disclosure, and
- takes reasonable steps to correct the error
3 Exceptions to A-C privilege
- future crime or fraud
- if client puts legal advice at issue
- attorney-client dispute
Physicial-patient privilege: general definition for MBE and NY
Confidential communication/info aquired by physician from patient
for the purpose of diagnosis or treatment of a medical condition
Also applicable to psychotherapists
Exception: Physician-patient privilege can be lost if patient…
Expressly or impliedly puts physical or mental condition at issue
Spousal immunity general rule (MBE):
In fed crim cases ONLY, spouse cannot be compelled to testify about anything against D spouse
Witness-spouse holds this privilege. Only valid if people are married during the trial
NY does not recognize this privilege
Confidential communications b/w spouses general rule:
In any type of case (fed, NY), spouse is not allowed (in absence of consent by other spouse) to disclose a confidential communication made by one to the other during the marriage. Both spouses hold the privilege
Exceptions to spousal confidential communication general rule: privilege may not be invoked for cases in these situations:
- communications/acts in furtherance of jointly perpetrated future crime or fraud
- communications/acts destructive of family unit (spousal, child abuse)
- no privilege in civil litigation b/w spouses (divorce, breach of K)
Hearsay definition and general rule:
- Out of ct statement to a person
- offered to prove truth of matter asserted in the statement
General rule: hearsay is inadmissible unless an exception or exclusion applies
Non-hearsay purpose: verbal act (legally operative words)
General rule:
Admissible b/c not offered for truth of the statement. Certain words have independent legal significance (e.g. words of contract, defamation, threats, etc.)
Non-hearsay purpose: to show effect on person who heard/read the statement
Statement offered only to show effect on person who heard statement… not hearsay
Non-hearsay purpose: circumstantial evidence of speaker’s state of mind
E.g. if someone says something crazy, may be used to show insanity, not truth of the matter
Prior statements of trial witness: General rule
A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies
3 exceptions to the general rule that witness’s own prior statement, if offered to prove truth of matter, is hearsay:
- witness’s prior statement is ID of person
- witness’s prior inconsistent statement if oral, under oath, and made during formal testimonial hearing
- witness’s prior consistent statement if being used to rebut charge of recent fabrication or improper motive
Party admissions general rule:
Any statement made by opposing party is admissible if offered against the opposing party
Party admissions special rules: adoptive admission and vicarious party admission
Adoptive: if person expressly/impliedly adopts statement made by another, it’s as if party herself made the statement
Vicarious party: statement by agent is admissible against principal if statement is w/in scope of agency/employment and made during existence of agency/employment relationship (NOTE: in NY, statement is admissible only if principal gave agent the authority to speak about the matter)
Crim D right of confrontation: general rule
P may not use a hearsay statement against crim D (even if it falls w/in hearsay exception) if:
statement is testimonial
declarant is unavailable, and
D has had no opportunity for cross examination
For crim D right of confrontation, statement must be testimonial to be excluded. What is testimonial?
Statements in response to police interrogation if purpose of questioning is to establish events potentially relevant to crim prosecution.
Non-testimonial if primary purpose of questioning is to enable police assistance to meet an ongoing emergency
Documents:
- biz records not testimonial
- forensic lab report is testimonial if primary purpose is to accuse a targeted individual of crim conduct
Even if a forensic report is testimonial, no confrontation violation occurs if…
Prosecutor calls testifying expert who performs independent analysis of the data, and testifying expert only generally refers to report
Hearsay forfeiture exception. General rule:
Any type of hearsay statement is admissible against D whose wrongdoing made witness unavailable if ct finds:
- by a preponderance of the evidence (NY: clear and convincing evidence)
- that D’s conduct specifically designed to prevent witness from testifying
Hearsay exception: former testimony of unavailable witness is admissible if…
Given at former proceeding or in a depo, and the party against whom statement is entered had an opportunity and motive to cross examine or develop the testimony of the witness
Issue must be same in both proceedings
For the former testimony of unavailable witness hearsay exception, what counts as unavailable?
Privilege
Absent from jx
Illness/death
Lack of memory
Stubborn refusal to testify
NY (civil cases only): declarant is 100 miles or more from courthouse, or declarant is a physician
Hearsay exception: statement against interest
Definition:
An unavailable declarant’s statement against his or her:
pecuniary
proprietary (interest in property)
penal interest (crim liability)
Hearsay exception: dying declaration
Definition:
Statement made under belief of impending and certain death by now-unavailable declarant concerning cause or surrounding circumstances of declarant’s death
Types of cases you can use dying declaration exception:
MBE
- Crim: homicide
- Civil: any case
NY
- criminal homicide ONLY
Hearsay exception: excited utterance
Definition:
Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event
Hearsay exception: present sense impression
Definition:
Description of an event made while the event is occuring or immediately thereafter
NY: must be corroborating evidence of the happening of the event described by declarant
Hearsay exception: present state of mind
Definition:
Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions
Hearsay exception: declaration of intent
Definition:
Statement of declarant’s intent to do something in the future, including the intent to engage in conduct w/ another person
NY: if statement is offered to prove joint participation, must be:
- corroborating evidence of a rel. b/w declarant and other person, and
- declarant is unavailable
Hearsay exception: present physical condition
Definition:
Statement made to anyone about declarant’s current physical condition
NY: if statement is made to layperson, not medical professional, declarant must be unavailable
Hearsay exception: statement made to obtain medical treatment or diagnosis
Definition:
Statement made to anyone (usually medical personnel) concerning declarant’s:
present symptoms
past symptoms, or
general cause of declarant’s condition
if made for purpose of obtaining med treatment
NOTE: doesn’t include statements where declarant identies a tortfeasor or describes the nature of alleged liability
Hearsay exception: Business records
Definition
Elements:
Records of biz of any type (including police)
Made in reg. course of biz
Biz regularly keeps such records
Made at or about the time of the event recorded
Contents consist of info observed by employees of the biz OR a statement that falls w/in independent hearsay exception
Hearsay exception: Public records
Definition:
Records of a public office/agency setting forth:
activities of the office, or
matters observed pursuant to duty imposed by law, or
findings of fact/opinion resulting from an investigation
EXCLUSION: police reports prepared for prosecutorial purposes aren’t admissible against D in crim case
Hearsay exception: prior identification. Must witness be available?
Yes, and available for cross
Hearsay exceptions where declarant MUST BE UNAVAILABLE
Dying declaration
Declaration against interest
Prior testimony (if given under oath and other party had opportunity to cross)
5th amdmt privilege against self-incrimination applies in civil or criminal cases?
BOTH!
Generally, crim D can introduce evidence of her good character to show that she didn’t commit the crime. But this can only be accomplished through:
reputation or opinion testimony of a witness. Witness may not talk about specific acts
When D bribes a witness to lie or threatens a witness, it counts as
an admission showing awareness of liability or guilt. It is ADMISSIBLE and not considered hearsay
One step to take before using a photo for evidence
Must lay a foundation. Photo must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts
