NY BAR REVIEW evidence 2019 Flashcards
1
Q
every court MUST take judicial notice of these without a request being made:
A
common law. constitution. public statutes of U.S. public statutes of state. public statute of territory. public statutes of jurisdiction. NY CODES, RULES, REGULATIONS. local laws. county acts.
2
Q
court MUST take judicial notice of certain laws if request is made by party. conditions MUST be satisfied. ct has discretion to take judicial notice, on its own motion, of what?
A
private acts and resolutions of U.S. CONGRESS and NYS LEGISLATURE, ordinances and regulations of agencies or govtl subdivisions and laws of foreign countries.
CPLR
3
Q
what is judicial notice of an adjudicative fact?
A
courts accept the adjudicative fact as true w/o offering of evidence by party asserting the fact
4
Q
judicial notice of adjudicative fact is limited to?
A
those incapable of dispute bc they are generally known w/in community where court sits.
capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
5
Q
in criminal case, def may establish good character ONLY by showing what?
A
general reputation in community
6
Q
opinions of those who know def personally and have firsthand knowledge of his character are admissible or not?
A
INADMISSIBLE
7
Q
if def, through testimony of witness called by him offers evidence of his good character, prosecution MAY what?
A
independently prove any previous conviction of def tending to negate trait in issue
8
Q
in CIVIL case, evidence of good character MAY be admitted only after what?
A
a person’s good character has been directly calledinto question by evidence of bad character
9
Q
evidence of person’s character is NEVER admissible for purpose of proving what?
A
that person acted in conformity therewith or had propensity to do so
10
Q
in criminal case, evidence of def’s prior uncharged crimes is admissible or not to prove criminal propensities?
A
INADMISSIBLE
11
Q
evidence of def’s prior uncharged crimes MAY be admitted under certain circumstances where probative value of proof outweighs possible what?
A
prejudicial effect
12
Q
evidence of uncharged but similar acts is admissible to establish what?
A
Motive. Intent. absence of Mistake or accident. Identity. Common scheme or plan.
13
Q
admissibility of evidence of def’s uncharged crimes or prior bad acts - 2 part inquiry:
A
- proponent MUST identify some material issue to which evidence is relevant.
- ct MUST weigh probative worth of evidence ag potential for prejudice.
14
Q
evidence of habit or custom and practice MAY be admitted in civil action to establish person did what?
A
performed certain act
15
Q
party seeking to introduce habit/custom/practice evidence MUST establish that habit /custom/practice is what?
A
a deliberate and repetitive practice by a person in complete control of circumstances as opposed to conduct however frequent yet likely to vary from time to time depending upon surrounding circumstance
16
Q
one spouse is competent to give testimony ag whom?
A
other spouse
17
Q
witness spouse is NOT excused from giving testimony about what?
A
matters that might be damaging to party spouse
18
Q
spouses are entitled to invoke privilege for confidential communication when?
A
in ANY type of proceeding
19
Q
conviction of a crime does NOT render a witness what?
A
incompetent
20
Q
a witness’ convictions MAY be used on cross examination to do what?
A
impeach credibility
21
Q
impeachment is limited to what?
A
crimes - felonies, misdemeanors.
22
Q
if witness denies conviction, it can proven how?
A
by extrinsic evidence
23
Q
DEAD MAN STATUTE
A
any person interested in the event MAY NOT testify in his own behalf ag exectuor/administrator/survivor of a deceased person or committee of mentally ill person concerning transaction or communication w decedent or mentally ill person
24
Q
an interested person is NOT incompetent to testify as to what?
A
facts of accident in action involving claim of negligence in operation of a motor vehicle
25
def may NOT be convicted upon testimony of accomplice w/o support of what?
corroborative evidence tending to connect def w commission of offense
CPLR
26
corroborative evidence need NOT rest upon evidence that is independent of what?
accomplice testimony
27
corroborative evidence MAY be found in evidence which so harmonizes w testimony of accomplice as to have a tendency to what?
furnish necessary connection bw def and crime
28
rebuttable presumption that a child less than 9 yrs of age is incapable of what?
giving testimony under oath
FAMILY COURT ACT
CRIMINAL PROCEDURE LAW
29
to overcome the under 9 yo rebuttable presumption of no testimony under oath, infant witness MUST what?
demonstrate sufficient intelligence and capacity to justify reception of his testimony and that he knows, understands, and appreciates nature of oath before trial ct MAY permit sworn testimony
30
if witness cannot rebut presumption or is under mental defect, ct may nonetheless permit witness to give unsworn evidence if ct is satisfied that witness possesses what?
sufficient intelligence and capacity to justify receipt of evidence
31
at trial of civil action, deposition of deponent party or non-party MAY be used by any party for purpose of what?
contradicting or impeaching deponent.
32
prior trial testimony of witness MAY be used by any party to do what?
contradict or impeach that witness if he testifies in subsequent civil action involving same parties and subject matter, so far as admissible under rules of evidence
33
any party MAY introduce proof that any witness has made prior statement inconsistent w his testimony if sttmt was made how?
in writing subscribed by him or was made under oath
CPLR
34
impeachment allowed by party of that party's witness via witness' prior written sttmt or oral sttmt made under oath where prior sttmt does what?
contradict testimony upon material issue which tends to disprove position of the party
CRIMINAL PROCEDURE LAW
35
in civil proceeding, use of prior conviction to impeach witness provides that:
person convicted of crime is competent witness, but conviction may be proved, for purpose of affecting weight of his testimony, either by cross upon which he shall be required to answer relevant questions or by record. party cross examining is not concluded by such person's answer.
CPLR
36
in criminal proceeding, prosecution authorized to independently provide def's prior conviction if, when asked, the def does what?
denies it or equivocates
37
criminal def who chooses to testify MAY be cross examined concerning what?
prior convictions or criminal, vicious, or immoral acts that bear logically on that individual's credibility as a witness
38
def MAY seek advance ruling on what prior criminal, vicious or immoral acts prosecution will be permitted to inquire about if def does what?
takes the stand
39
trial judge MUST balance probative worth of evidence of prior specific criminal , vicious, or immoral acts on issue of def's credibility with what?
risk of unfair prejudice to def
40
evidence of prior criminal acts to prove intent should be precluded where what?
intent MAY be inferred from commission of act itself
41
guilty knowledge of def MAY be proven by evidence of his complicity in similar offenses so as to what?
support the inference that the act charged was NOT innocently or inadvertently committed
42
admission is warranted only where evidence of acts involved in crimes charged is equivocal so that intention is NOT easily inferred from what?
acts alone
43
in such cases it is recorgnized that proof of intent is often unobtainable except by evidence of what ?
successive repetitions of the act
44
a party who is cross examining a witness CANNOT introduce extrinsic doumentary evidence or call other witnesses to contradict witness' answers concerning what?
collateral matters solely for purpose of impeaching witness' credibility
45
where cross examiner does NOT seek to contradict specific answers given by witness but attempts only to show that witness has a bad reputation in the community for truth and veracity, other witnesses may be called to what?
testify w respect to witness' reputation for untruthfulness
46
opinion testimony of expert is admissible wehre conclusions to be drawn from facts depends upon what?
professional or scientific knowledge or skill NOT within range of ordinary training or intelligence
47
for testimony regarding both ultimate questions and those of lesser significance, admissibility turns on whether what?
given nature of subject, facts CANNOT be stated or described to jury in such manner as to enable them to form an accurate judgment thereo, and no better evidence than such opinions is attainable
48
admissibility and bounds of expert testimony are in who's discretion?
trial court's
49
unless court orders otherwise, questions calling for opinion of expert witness need not be hypothetical in form, and witness MAY state his opinion and reasons without first what?
specifying data upon which it is based
50
upon cross examination, expert MAY be required to specify what?
data supporting his opinion
51
introduction of new scientific evidence requires what?
determination of reliability
52
determination of reliability test is what?
FRYE TEST
53
what is the frye test?
whether the accepted techniques, when properly performed, generate results accepted as reliable within scientific community. while cts
will go a long way in admitting expert testimony deduced from well recognized scientific principle or discovery, thing from which deduction is made MUST be sufficiently established to have gained general acceptance in particular field in which it belongs
54
NY has NOT adopted the more relaxed standard for admissibility of expert testimony, relevance and reliability in federal cts, as adopted by?
SUP CT IN DAUBERT V. MERRELL DOW PHARMS
55
the frye inquiry is a separate and distinct question from admissibility question, whether there is a proper foundation to admit what?
evidence
56
spouses are competent to testify for and against whom?
one another
57
spouse shall NOT be required, or without consent of other spouse, be allowed to disclose a confidential communication made by 1 spouse to the other spouse when?
during marriage.
| to qualify for privilege, communication bw spouses may be oral, written, tape recorded.
58
confidential communications MUST be induced by what?
marital relatshp and made in confidence
59
spousal privilege will NOT attach to communications made by spouses when?
in known presence of outsiders
60
spousal privilege for confidential communications applies when?
in ALL civil and ALL criminal proceedings
61
unless c waives privilege, where legal advice is sought from c's lawyer, all communications relating to that purpose are made in confidence by c are protected by what?
atty / c privilege.
| CANNOT be disclosed by lawyer
62
presence of transmittal through employee of atty, such as secretary, law clerk, will NOT destroy what?
atty / c privilege
63
for atty/c privilege to apply, communications MUST be made for purpose of providing what?
legal advice or services in course of profsl reltshp.
64
atty c privilege extends to what?
atty's own communications to c
65
corporations MAY invoke atty c privilege for what?
confidential communications w attys relating to their legal matters
66
for the privilege to apply when communications are made from c to atty, MUST be made for what purpose?
obtaining legal advice and directed to an atty who has been consulted for that purpose
67
unless patient waives privilege, CPLR prohibits disclosure of any info acquired by whom?
```
physican.
registered nurse.
practical nurse.
dentist.
podiatrist.
chiropractor.
in attending patient in professional capacity and which was necessary to enable him to act in that capacity
```
68
privilege applies to info communicated by patient and obtained from observation of patient, unless info would be what?
obvious to layman
69
privilege applies to info contained in medical files and expert testimony thats what?
sought to be introduced at trial
70
personal injury pl impliedly waives privilege as to medical conditions for which what?
damages are sought
71
details about accident communicated by personal injury pl to medical professional that are unrelated to treatment or diagnosis are or not privileged?
NOT
72
confidential communications bw psychologist and patient are placed on same basis as what?
under atty c privilege
73
witness may NOT refuse to testify on ground that testimony might what?
expose witness to civil liability
74
witness is entitled to avoid testifying to what?
self incriminating facts
75
objection MAY be raised only to specific questions that witness believes would what?
require incriminating answers
76
what is hearsay?
oral out of ct sttmt, written out of ct sttmt, offered for truth of matters they assert
77
hearsay MAY be received into evidence ONLY if fall within what?
one of recognized exceptions to hearsay rule, and provided proponent demonstrates that evidence is reliable
78
reliability determined how?
ct MUST decide whether declaration was spoken under circumstances which render it highly probable that it is truthful
79
what is an admission?
act or declaration of party which constitutes evidence ag party at trial
80
admissions by party of any fact material to issue are always what?
competent evidence ag him, wherever, whenever, or to whomsoever made
81
hearsay sttmt of agent is admissible ag his employer under admissions exception to hearsay rule ONLY if what?
making the sttmt is an activity within scope of his authority
82
admissions are admissible under exception to rule ag hearsay, but under FEDERAL RULES OF EVIDENCE, admissions are what?
non hearsay!
83
present sense impression exception to hearsay rule is available when?
sttmt describes or explains event or condition and made while declarant was perceiving event or condition or immediately thereafter and content of sttmt is corroborated by independent proof.
84
marginal time lag allowed bw what?
event and description by declarant
85
corroboration offered to support admission of sttmts must serve to support sttmts' what?
substance and content
86
corroboration element CANNOT be established merely by showing that sttmts were what?
unprompted and made at or about the time of reported event
87
sufficient corroboration is dependent on what?
circumstances of each case
88
declarant's descriptions need NOT be corroborated by witness at scene w equal opportunity to perceive event, but there MUST be what?
some evidence to assure ct the sttmt sought to be admitted was made spontaneously and contemporaneously w event described
89
hospital records fall within business records exception to hearsay rule as long as the info relates to what?
diagnosis, prognosis, treatment, of patient or records are otherwise helpful to understanding of medical or surgical aspects of hospitalization.
90
determination of admissibility of medical recrods, inquire whether what?
sttmts at issue were relevant to diagnosis and treatment of patient
91
what is the business records hearsay exception?
business record may be admitted to prove truth of its contents
92
requirements under business records hearsay exception are:
doc MUST be made in regular course of business.
at time of act or occurence recorded within reasonable time thereafter.
where it was regular course of such business to make that record.
person who made the record MUST have had actual knowledge of act or occurence or MUST have received his info from someone within business who had actual knowledge and was under business duty to report event. lack of personal knowledge by maker MAY affect its weight but not its admissibility.
93
original records MUST be produced absent what?
proper foundation for introduction of secondary evidence.
94
use of copies or reproductions of docs is permitted if what?
copies were also prepared in regular course of business
95
STATE TECHNOLOGY ACT
electronic record shall have same force and effect as those records not produced by electronic means.
electronic record or electronic signature MAY be admitted into evidence.
96
certification procedure when records sought by subpoena DUCES TECUM are business records
certification MUST be sworn in form of affidavit and signed by custodian or other person charged w responsibility for maintaining records.
97
as of 2014, certification of nonparty's business records, as substitute for in court testimony is permitted without need for what?
production pursuant to subpoena
98
trial testimony of any witness at a prior trial involving same parties and arising from same subject matter MAY be used by any party to do what?
contradict or impeach that witness if he testifies in subsequent civil action
99
party's prior trial testimony is admissible as evidence in chief when?
it is offered by any party who is adversely interested when prior testimony is offered, including prior trial testimony of any person who, at time testimony was given, was an officer, director, member, employee, managing or authorized agent of party.
CPLR
100
hearsay exception for testimony given at prior trial of same subject matter by witness, provided ct finds that what?
witness is NOT available bc of death, age, sickness, infirmity, imprisonment.
witness is more than 100 miles from place of trial or out of state, unless absence was procured by party offering testimony.
attendance cannot be procured despite diligent efforts of party offering testimony.
exceptional circumstances exist making its use desirable.
101
prior testimony of physician MAY be used by any party w/o need to show what?
unavailability or special circumstances, provided admission of prior testimony is NOT prejudicial under circumstances
102
CRIMINAL PROCEDURE LAW provides that testimony given by witness at related prior criminal trial or preliminary hearing MAY be received into evidence at subsequent proceeding or action when at time of such subsequent proceeding, witness what?
is unable to attend by reason of death, illness, incapacity.
cannot w due diligence be found.
is outside stte or in federal custody and CANNOT w due diligence be brought before the ct.
103
subsequent proceedings at which such testimony MAY be admitted include any proceeding constitituing a part of criminal action based upon charges which were pending ag def when?
at time of witness' testimony and to which such testimony related, and any post judgment proceeding challenging convictions based on that charge.
