NY BAR REVIEW 19 Flashcards by H A

how is authentication satisfied?

by evidence sufficient to conclude that the matter in question is what its proponent claims

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party introducing physical evidence must provide what?

a basis for the jury to resolve the authenticity question in favor of that party

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a proper foundation may rest on what?

any manner permitted by fed. rules of evid.- ten approaches to authentication

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authentication is made by someone who can what?

verify title, subject, background of painting- would be sufficient. doesnt have to be the original artist.

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composite sketch is what?

an out of court sttmt by a witness and is hearsay that doesnt fall under any exception

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prior testimony or evidence of a witness whos now deceased is inadmissible unless what?

that witness was cross examined about the evidence prior to trial.

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sketch is likely inadmissible why?

bc reliability is seriously questioned

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creating composite sketch carries potential of what?

suggestiveness of having a police artist interpret and possibly influence perceptions of witness

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opposing party’s out of court sttmt can be what?

nonhearsay

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impeachment is allowed for what?

material issues of the case

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out of court sttmts are admissible if sttmts are what?

offered against party who made them, deeming admissible sttmts offered ag an opposing party that were made by the party

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question has no probative value regarding what?

credibility of witness or guilt of def

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citations are what?

too trivial and immaterialto challenge his credibility

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far removed collateral matter that would disrupt what?

flow of trial, for no good reason

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impermissible trek into where?

the outside territories and serve no useful purpose of any kind

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apparent authority exists when?

a reasonable person would understand that assistant had authority to act

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principal is estopped from denying agent’s authority when what?

principal has conferred what reasonably appears to be authority to the apparent agent

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is there a rule that expert opinions in fire cases always must be supported by testing?

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criticisms of methodology are usually best dealt with when?

on cross examination at trial

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questions raised on cross examination must relate to what?

evidence or info already on the record, leading questions are acceptable

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random questions that dont relate to the case or are speculative, are allowed?

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irrelevant argumentative speculative questions are allowed?

NO, not productive, and time wasters

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courts may within their sound discretion deny cross examination if evidence sought is what?

vague, argumentative, speculative

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admissible circumstantial evidence

requires one or more inferences to be made in order to conclude that it was the suspect’s print at the scene

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conclusion associated with inference must still be proved how?

beyond a reasonable doubt

direct evidence is like what?

eyewitness account, no inference required, just have to believe credibility of witness

hearsay

co-conspirator didnt make sttmt during course of conspiracy

establish foundation for admission of evidence under co-conspirator exception to hearsay rule, government is to show what?

existence of conspiracy, sttmt was made by co-conspirator of party, made during course of conspiracy, was made in furtherance of conspiracy

sttmt cannot by itself establish existence of conspiracy of what?

participation in it

there must be independent _________ establishing conspiracy

evidence

promises made in consideration of marriage must be what?

in writing, to be enforceable as per most state statute of fraud laws

actions in conformance with offer

payment, combined with property owner's offer in writing, consistent with statute of frauds- enough to make a binding contract

statute of frauds- party being sued is the one who must have what?

signed

signature is NOT required in order to show mutuality or assent to terms of what?

writing

assent can be shown in other ways, such as by parties' what?

conduct

tort law provides what type of damages?

compensatory/actual and punitive

punitive damages are awarded where what?

defendant's actions were wanton, reckless, and in callous disregard of pl's rights

defendant opened the door to what?

issue of liability coverage when tried to prove that was unable to pay any punitive damage verdict when in fact had liability insurance.

when def left impression that only 100k in coverage was available, they opened the door to what?

issue of availability of coverage for an excess verdict based on bad faith of insurance co.

where treatment of mental patient involves exercise of control by physician who knows or should know that patient is likely to cause bodily harm to others, what arises?

independent duty from that relationship requiring doctor to exercise reasonable care to prevent the harm

duty of those in charge of person having dangerous propensities?

one who takes charge of 3rd person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm

out of ct sttmt quoting another out of ct sttmt

each sttmt must fit an exception to the hearsay rule to be admissible

hearsay within hearsay is admissible if what?

each part of combined sttmts fits an exception to the hearsay rule

with every increased level of hearsay there is what?

corresponding decrease in reliability

every level of hearsay provides what?

another possibility that the facts were inaccurately reported by the declarant, either intentionally or unintentionally or misunderstood by the person to whom the sttmt was made

presumption of innocence

the law endows the accused and which extends to every element of the crime

state cannot create intent through a presumption and thus do what?

take away prosecution's need to prove the intent element

prosecution would be relieved of proving affirmatively the guilt of the defendant ______

beyond a reasonable doubt

no way to tell if jurors were swayed by instruction. with no way to know if finding of intent was an independent one, verdict is what?

tainted and must be reversed

interim freezing of wages without a chance to be heard violates what?

procedural due process

pre-judgment garnishment procedure

could drive a wage earning family to the wall, and is in violation of the fundamental principles of due process. without prior notice and hearing, procedure is UNCONSTL

prejudgment writ of attachment procedure violates what?

due process

garnishment statute was unconstl bc didnt provide for what?

notice, hearing, participation of judicial officer

trespass is what type of tort?

intentional

trespass does not require proof of what?

intent to trespass or intent to harm.

trespass requires proof of what?

proof of intent to perform the act leading to trespass is all that is needed

trespass

causing something to go onto the land is sufficient without personal intrusion by def

trespass is an intentional tort bc what?

it involves an intent to commit an act which violates a property right or would be practically certain to have that effect, although the actor may not know that the act he intends to commit is such a violation

privileges, licenses, certificates, franchises qualify as what?

property interests for purposes of procedural due process

once issued, a license or permit may become what?

essential in the pursuit of a livelihood and may not be taken away without due process

it must be determined whether the process the state provided was what?

constitutionally adequate

due process requires what?

opportunity to be heard at a meaningful time and in a meaningful manner

what does meaningful time mean?

prior to deprivation of liberty or property right at issue

judgment note given by 1 joint tenant on his interest in property does not sever what?

joint tenancy

right of survivorship became operative on death of first cousin, as such ___________?

pl is now sole owner of estate, in its entirety

property right of joint tenant is extinguished at moment of what?

joint tenant's death

while was alive, judgment existed as what?

potential lien on joint tenancy interest in real estate

upon death, interest ceased to exist and along with it what?

the potential lien of judgment note

a sttmt is NOT hearsay if what?

it is offered ag a party and is made by party's agent or servant concerning a matter within the scope of agency or employment during existence of relationship

high degree of reliability and support admission as non hearsay sttmt which is essentially made ag employer's interest by employers agent or servant while what?

in scope of employment