Review Flashcards
What is judicial notice?
Recognition of a fact as true w/o formal presentation of evidence
Cts take JN of indisputable facts that are EITHER:
(i) matters of common knowledge in the community; OR
(ii) capable of verification by resort to easily accessible sources of unquestionable accuracy (e.g. via almanac)
What is the effect when a ct takes judicial notice of a fact?
1) CIVIL case: Fact is CONCLUSIVE in a civil case
2) CRIMINAL case: Jury DOES NOT have to accept the fact as CONCLUSIVE
What are the 2 circumstances where WRITINGS are allowed to AID oral testimony?
NOTE: NY Distinction
1) Refreshing recollection
If witnesses’s memory fails, he may be shown a document (or anything) to jog his memory
The doc is NOT offered into evidence by the using party
Witness CANNOT read from doc
Adversary can:
(1) inspect the refresher;
(2) use it on cross-examination; OR
(3) introduce it into evidence
2) Past Recollection Recorded (Hearsay Exception): if memory fails witness, and can’t testify, the atty MAY read (but not introduce as evidence) a supporting document, IF…
(i) the doc fails to jog witness’s memory;
(ii) the witness had personal knowledge when doc created;
(iii) writing was EITHER (a) made; OR (b) adopted by witness;
(iv) writing was made/adopted when event fresh in witnesses’s mind; AND
(v) witness can vouch for accuracy of doc when made
NY DISTINCTION: if factors established above, the writing MAY BE SHOWN to the jury (as opposed to just read to the jury)
How is character evidence evaluated in a criminal case?
(1) Pros can’t present evid of def’s bad character to show action in conformity therewith
(2) Def allowed to present relevant, good traits to show he acted in conformity with it (opposite of one)
(3) Pros can introd character evidence after Def opens the door
(4) Prior bad acts never used to prove conformity, but can be used for MIMIC (motive, intent, absence of mistake, common scheme
(5) Def’s testimony opens witnesses about truthfulness
How is character evidence evaluated in a civil case?
(1) Can’t introd evid of ch trait if offered to show action in conformity therewith
(2) If lit has other motive for ch evidence, rule prohibiting it will not keep it out (e.g., negligent entrustment, defamation)
NE - A lent car to X. X injured B. Can intro ch evid about X.
Def - A says B’s a thief. A can intro info about this.
(3) Witness’ testimony opens up possible inquiry later about truthfulness
How can habit evidence be used?
Can be used to show action in conformity
When is OTHERWISErelevant evidence INADMISSIBLE?
NOTE: NY Distinction
General rule: all relevant evidence is ADMISSIBLE, UNLESS…
(i) there is a specific exclusionary rule (policy-based); OR
(a) Evidence that a person has (or DOES not have) liability insurance for the PURPOSE of showing fault (or absence of);BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; impeachment)
(b) evidence of subsequent remedial measures (e.g. post-accident repair, design changes, etc) for the PURPOSE of showing negligence, culpable conduct, product defect, or need for warning; BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; feasibility of safer design IF ∆ disputes)
NY DISTINCTION: in a STRICT LIABILITY products liability action, a mnfrs post-accident design change ARE admissible
(a) to suggest the existence of a defect in the product at time of accident
(b) evidence of settlements of disputed CIVIL claims(evidence of settlement; offer to settle; OR stmts of fact made during settlement negotiations)
(c) for the PURPOSE of showing liability OR to impeach a witness as a prior inconsistent stmt
EXCEPTIONS: Settlement evidence IS admissible for the PURPOSE of (a) impeaching witness on grounds of BIAS
Stmts of fact made during settlement discussions in CIVIL CASE w/ a GOV’T AGENCY ARE admissible in a later CRIMINAL CASE (NY DISTINCTION: this exception DOES NOT exist in NY)
Evidence of plea bargaining in CRIMINAL cases
An offer to plead guilty (can’t be used in criminal or subsequent civil case)
Withdrawn guilty plea (can’t be used in criminal or subsequent civil case) [NY DISTINCTION: a withdrawn guilty plea IS admissable in a SUBSEQUENT civil case]
BUT a plea of GUILTY (not withdrawn) is ADMISSABLE against ∆ in subsequent litigation under the rule of party admission (both MBE and NY)
Offer to pay hospital or medical expenses to prove liability
NOTE: this exclusion does NOT exclude OTHER stmts made in connection w/ an offer to pay hospital/medical expenses
(ii) the probative value of the evidence is outweighed by outweighed by pragmatic considerations (as determined by the ct)
(a) Danger of unfair prejudice
(b) Confusion of the issues (e.g. by introducing a collateral matter)
(c) Misleading the jury
(d) Undue delay
(e) Waste of time
(f) Unduely cumulative
How and when can aparty impeach or bolstertheir OWN witness?
NOTE: NY Distinction
1) Bolstering own witness isNOT allowed until witness’s credibility is attacked (impeached)
No prior consistent statements allowed on direct (hearsay and limited probative value)
EXCEPTION: the witness’s prior ID of a person (“I picked ∆ out of a line up”) comes in a SUBSTANTIVE evidence;
PROVIDED the witness is subject to CROSS examination
2) Impeaching own witness is allowed by ANY method of impeachment
NY DISTINCTION: general rule is that a party MAY NOT impeach their OWN witness
EXCEPTION: A party may impeach their own witness with a prior inconsistent stmt BUT ONLY IF it was
(i) made in writing and signed by witness; OR
(ii) made in oral testimony under oath; AND
(iii) IF a CRIMINAL case, the witness’s testimony is
AFFIRMATIVELY damaging to the party that called the witness (vs. not helpful testimony or cloudy testimony)
How does the “criminal conviction” impeachment method work?
NOTE: NY Distinction
Purpose: Suggest false testimony [NOTE: do NOT confuse these rules of IMPEACHMENT w/ rules governing MIMIC crimes used as SUBSTANTIVE evidence to prove ∆’s gult]
Permissible types of convictions:
1) ANY crime (felony or misdemeanor)as to which the prosecution was REQUIRED to prove FALSE STMT as an element of the crime (e.g. fraud, perjury, etc); PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old
NOTE: judge has NO discretion TO EXCLUDE once this test is met
2) Conviction of any type of FELONY;PROVIDED conviction/release from prison (whichever later) is ≤ 10 yrs old
NOTE: judge may exclude in his discretion (if there is danger of unfair prejudice vs. probative value)
Method of proof:
1) Ask witness to admit prior conviction; OR
2) Introduce record of conviction as extrinsic evidence (WITHOUT confrontation)
NY DISTINCTION: any witness may be impeached with a conviction for ANY TYPE of crime, REGARDLESS of how OLD the conviction is and WITHOUT balancing probative value vs. unfair prejudice.
EXCEPTION for CRIMINAL ∆s: when a ∆ is testifying as HIS OWN WITNESS, the ct must conduct a hearing to balance the probative value of the conviction vs. unfair prejudice
Factors that make a conviction probative: (i) seriousness of the crime; (ii) crime’s relation to trust and deception
Factors that make a conviction unfairly prejudicial: (i) similarity to the currently charged offense; (ii) inflammatory nature of conviction (e.g. child molestation)
How does the “contradiction” impeachment method work?
Contradiction = when cross examiner tries to get witness to admit (thru “confrontation”) that she made a mistake or lied on a previous direct examination (in same trial)
NOTE: Extrinsic evidence is NOT allowed when the fact is COLLATERAL (i.e. it has not significant relevance to the case or the witness’s credibility)
What are 2 methods a party can use to rehabilitate an impeached witness?
NOTE: NY Distinction
A witness may be rehabilitated ONLY AFTER the witness’ credibility has been attacked thru impeachment 2 methods to rehabilitate:
1) Showing witness’s good character for truthfulness
When: Rehab only for impeachment suggesting witness is lying (NOT just mistaken)
E.g., Bad reputation/opinion, criminal conviction, bad acts w/o conviction
How: Character witness who can testify (using REPUTATION or OPINION evidence) NY DISTINCTION: character witness can use REPUTATION evidence ONLY
2) Prior CONSISTENT statement to rebut charge of recent fabrication
When: If the witness’s trial testimony is charged as a recent fabrication (or the product of improper influence), a PRIOR stmt by the witness that’s consistent w/ testimony IS ADMISSIBLE to rebut IF the stmt was MADE before the motive to fabricate arose E.g., if the witness said the same thing PRIOR taking a bribe; this is admissible to show that the stmt was not a lie based on improper influence
Purpose: a prior consistent stmt that fits w/in this rule is ADMISSIBLE to rehabilitate credibility AND as substantive evidence that prior stmt was true (not hearsay!)
NY DISTINCTION: admissible ONLY TO rehab (NOT as substantive evidence)
What are the 11 key EXCEPTIONS to the hearsay rule?
AVAILABILITY IRRELEVANT
1) Present sense impression
2) Excited utterance
3) Present state of mind/ physical condition
4) Stmt for the purpose of obtaining medical treatment/diagnosis
5) Recorded Recollection
Declaration of intent
5) Present physical condition
6) Business records
UNAVAILABILITY REQUIRED
7) Former testimony
8) Dying declaration
9) Statement against interest
10) Public records
11) Forfeiture by wrongdoing (in 6th Am confrontation req on hearsay rules)
How should you approach hearsay?
(1) Hearsay?
(2) Excluded from hearsay?
(3) Exception?
When is a “statement” subject to the hearsay exclusion rule?
STEP 1: Is the stmt offered to prove the matter asserted?
[No = (i) legally operative words; (ii) stmts offered to show effect on hearer/reader; (iii) stmts offered to show declarant’s state of mind]
YES: STEP 2
NO: NOT HEARSAY, so not subject to hearsay exclusion rule
STEP 2: Is the stmt a nonhearsay exclusion? [Exclusion = (i) prior inconsistent stmt given under oath; (ii) prior consistent stmt used to rebut a charge that witness is lying/has improper motive; (iii) stmt of ID of a person; (iv) party admission]
YES: NONHEARSAY, so not subject to hearsay exclusion
NO: STEP 3
STEP 3: Does a hearsay exception apply? [(i) excited utterance; (ii) present sense impression; (iii) present state of mind; (iv) declaration of intent; (v) present physical condition; (vi) stmt for medical treatment; (vii) business records; (viii) public records; (ix) former testimony; (x) stmt against interest; (xi) dying declaration (xii) forfeiture] YES: ADMISSIBLE, provided it’s not excluded under any other rules (e.g. best evidence, relevancy, etc)
NO: INADMISSIBLE, stmt IS excluded by hearsay rule
What are 3 categoriesout-of-court statements asserted for their truth that are STILL admissible as “nonhearsay”?
NOTE: NY Distinction
Nonhearsay = nws meeting CL definition of hearsay (they ARE stmts offered to prove the matter asserted), certain stmts are STILL admissible…
1) Certain pior statements of trial witness:
Witness’s prior stmt of ID of a person after seeing him Witness’s prior inconsistent stmt if (i) oral;
(ii) under oath; AND
(iii) made during formal testimonial hearing» serves impeachment AND as substantive evidence
NY DISTINCTION: In NY this ONLY serves impeachment purpose
Witness’s prior consistent stmt if being used to rebut a charge of recent fabrication or improper motive»_space; serves rehabilitation AND as substantive evidence
2) Party admissions aka Stmt of Opposing Party
Any stmt (personal knowledge by declarant is NOT necessary) made by the opposing party is admissible if it is offered against the opposing party
Adoptive admission: if a party expressly or impliedly adopts a stmt made by another person, it is AS THOUGH the party herself made the stmt
Vicarious party admission: stmt by AGENT/EMP is admissible against principal/employer IF (i) the stmt concerns matters w/in scope of agency/employment; AND (ii) is made during the existence of the agency/employment relationship
NY DISTINCTION: stmt is admissible against principal/employer ONLY IF the principal/employer gave agent the authority (express or implied) to speak on the matter
Co-conspirator’s stmts: a stmt of a co-conspirator is admissible against a party who was a member of the conspiracy IF the stmt was made (i) during; AND (ii) in furtherance of the conspiracy
3) Prior Identification in a line-up
