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Flashcards in Evidence Deck (66):


Relevance & Admissibility of Evidence 


  1. Evidence is RELEVANT if it has ANY TENDENCY to make a material fact more or less probable than would be the case without the evidence. 
  2. All relevant evidece is ADMISSIBLE unless an exclusionary rule is applicable, or the judge determines that the PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY
    • ​​Unfair prejudice; 
    • Confusion;
    • Misleading the jury; 
    • Undue delay; 
    • Waste of time; 
    • Unduly cumulative 



Similar Past Occurrences 


  • General Rule:  excluded as irrelevant (evidence concerning some time, event, or person other than that involved in the case at hand). 
  1. ​P's accident history to show prior false claims or where the cause of injury is in issue; 
  2. Similar accidents caused by same condition/instrumentality, if substantially similar & to prove danger, causation, or prior notice; 
  3. Where intent is in issue, as to prove discrimination, etc.; 
  4. Comparable sales on issue of value (e.g., real property); 
  5. Habit evidence (frequency of conduct/particularity)*; 
  6. Industrial custom as standard of care (not determinative

* NY: Habit evidence usually inadmissible unless person is in full control of the circumstances, such as P using a product in a particular way. E.g., automobile driving habits inadmissible. 



Policy-Based Exclusions 

Liability Insurance


  • Generally inadmissible to show fault or absence of fault 
  • Exception: Admissible for some other relevant purpose, such as where D puts it in issue, such as proof of ownership, control, or location, or impeachment, as to show bias (e.g., bias in favor of insurer). 



Policy-Based Exclusions 

Subsequent Remedial Measures 



  • Generally inadmissible to prove negligence, culpable conduct, product defect*, or need for warning. 
  • Exception
    • Admissible for some other relevant purpose, where D puts it in issue, such as proof of onership/control or feasibility of safer design

*NY: Subsequent remedial measures admissible in strict liability product defect cases to suggest the existence of a product defect at the time of accident. 



Policy-Based Exclusions

Settlements of Disputed Civil Claims 


  • Generally inadmissible both for showing liability AND impeachment purposes (inconsistent statement): settlements, offers to settle, and statements of fact made during settlement talks. 
  • Exceptions 
    • Impeachment on bias grounds 
    • Statements of fact during civil settlement discussions with gov't regulatory agency are admissible in later criminal case.
    • *NY has not adopted the government agency exception. 



Policy-Based Exclusions

Plea Bargaining in Criminal Cases 


  • Offers to plead guilty, withdrawn guilty pleas*, and nolo contendere pleas are INADMISSIBLE in subsequent civil litigation -or- pending criminal case. 


  • Guilty plea, not withdrawn, is admissible. 
  • *NY: Withdrawn guilty please are admissible in subsequent civil litigation, against D arising out of the same facts. 



Policy-Based Exclusions

Offers to Pay Hospital/Medical Expenses


  • Offers to pay, or payments of, medical expenses are inadmissible to show liability. However, statements made during discussions of such offers or payments are admissible. 



Character Evidence

General Rules


Potential Purposes for General Propensity Evidence

  1. Where person's character is an essential element in the case (rare in civil cases, never in criminal cases). 
  2. As circumstantial evidence of a person's conduct on a particular occasion (generally not okay, except in criminal cases to show MIMIC purposes). 
  3. Witness/defendant-witness's bad character for impeachment purposes (bad character for truthfulness). 



Character Evidence

Defendant in a Criminal Case 

(NOT for impeachment)


  • Bad Character. Evidence of a defendant's bad character is inadmissible to prove defendant's conduct on a particular occasion, during prosecution's case-in-chief, except to prove non-character purpose such as MOTIVE, INTENT, MISTAKE/ACCIDENT (lack of), IDENTITY, COMMON SCHEME/PLAN ("MIMIC"). 
  • Good Character. The defendant may introduce evidence of his own good character in the form of reputation or opinion evidence, where relevant to the crime charged. 
    • Opens the dooor to prosecution's rebuttal by:
      • (1) Asking witness about specifc acts/arrests (good faith basis to believe); or 
      • (2) Calling its own reputation/opinion witnesses to contradict defendant's witnesses.
      • No extrinsic evidence.
  • New York Rules: 



Character Evidence

Victim's Character in Criminal Self-Defense Cases


  • The criminal D in a case where D asserts self-defense may introduce evidence of victim's violent character as circumstantial evidence that the victim was the first aggressor (no specific acts). 
    • May be done by character witness to testify to victim's bad reputation for violence (or opinion). 
    • *NY: This type of character evidence is inadmissible to prove the victim was the first aggressor, but where NOT to prove victim's aggression, specific acts may be inquired into by D. 
  • Prosecution's Rebuttal: 
    • Evidence of victim's char. for peacefulness (rep/opinion)
    • Evidence of D's bad char. for violence (rep/opinion)
  • HOMICIDE SELF-DEFENSE CASES: If D offers any evidence that V was first aggressor, prosecution may offer evidence of V's good character for peacefulness even if D doesn't introduce evidence attacking victim's character. 



Character Evidence

Victim's Character – Sexual Misconduct Cases 


  • Opinion/rep evidence about victim's sexual propensity, or evidence of victim's specific sexual behavior, ordinarily inadmissible. 
  • Exceptions
    • Criminal Cases: 
      • Specific sexual behavior to prove someone other than D was source of semen or injury to victim; 
      • Victim's sexual activity with D, if defense of consent is asserted; or 
      • Where exclusion woul violate D's right of due process (love triangle defense). 
    • Civil Cases:
      • Court may admit evidence of specific sexual behavior/propensity of the victim, if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. 
  • NEW YORK: PROSTITUTION CONVICTIONS <3 YEARS OLD ARE ADMISSIBLE, as are instances of sexual conduct with "proper bearing." 



Character Evidence

Character Evidence in Civil Cases 


  • Generally inadmissible to prove a person's conduct on a particular occasion. 
  • Exception: where trait is relevant to prove an essential element of claim or defense. 
    • Tort actions alleging negligent entrustment 
    • Defamation
    • Child custody dispute 



Character Evidence

Sexual Assault Cases - 

D's Character for Sexual Assault 


  • Under FRE, in sexual assault cases, D's prior specific acts of sexual assault are admissible in prosecution's or P's case-in-chief for purpose of showing D's propensity for sexual assault or child molestation. 
    • Prior acts only, no reputation/opinion 

NY has not adopted this rule. However, may be admissible if MIMIC rule is satisfied, such as where D has specific M.O. that shows ID; prior sex acts directed at ictim shows motive/common scheme/plan. 



New York Real Evidence Rules (Various)


  • Exhibition of child in paternity suits: jury may not consider  physical resemblance on issue of family relationships (OK in FRE). Child may be produced and exhibited to show age. 
  • Jury view of scene. Judge must be present at the scene at the jury view in a criminal case (not required by FRE). Prosecution, D, and D's counsel have right to attend. Unauthorized visits to scene by juror in criminal cases may require reversal. 
  • Polygraph and voice stress analyzer inadmisible under Frye
  • Paternity dispute: HLA blood testing admissible where definite exclusive of alleged father is established by test; 95% probability of paternity. Rebutable presumption of paternity. 




Whether X is Author of Document 


1. Witness's Personal Knowledge (observes X sign doc)

2. Proof of Handwriting (lay person opinion, if familiarity w/ handwriting other than by preparation for litigation; expert comparison by handwriting expert; or jury comparison based on exemplars). 

3. Circumstantial Evidence (appearance, contents, substance, etc.) (such as doc. refers to info. only X would know). 

4. Ancient Documents: 20 years old, found in place of natural custody, free from suspicion. NY: 30 years. 

5. Solicited Reply Doctrine: Authentication by evidence that doc. was received in response to prior comm'n to alleged offer. 



Self-Authenticating Documents



Presumption of Authenticity - no need for foundational testimony, for:

  • Official publications; 

  • Certified copies of public/private records on file in a public office 

  • Newspapers/periodicals  
  • Trade inscriptions/labels
  • Acknowledged document (witnessed by notary)
  • Signatures on commercial paper 

*NY: Self-authentication allowed only in civil actions, and where document is of (i) a non-party and (ii) produced pursuant to a subpoena in pre-trial discovery. 



Authentication of Photographs, X-Rays, and Voices


  • Photographs: witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed. 
  • X-Rays: must have testimony that the machine was working and the x-rays were taken correctly. 
  • Voices: any person familiar with alleged speaker's voice may give testmony about its identity, even if only became familiar through acts involved in later case. 



Best Evidence Rule


  • A party who seeks to prove the contents of a writing falling under this rule must either produce the original writing or provide an acceptable excuse for its absence. Includes sound recordings; x-rays, films. 
  • When applicable: 
  1. When writing is a legally operative document in the present case: patent, deed, divorce decree, contract, etc. 
  2. When witness is testifying to facts that she learned solely from reading about them in the writing. 

Not applicable when witness has independent personal knowledge. Duplicates (not handwritten) okay, but IN NEW YORK, photocopies are only okay if made in the ordinary course of business. 



Exception to the Best Evidence Rule


  • Excuses for the non-production of the original 
  1. Lost/cannot be found with exercise of due diligence; 
  2. Destroyed without bad faith; 
  3. Cannot be obtained with legal process (beyond subpoena power). 
  • Escapes: 
    • Voluminous records (if available for inspection); 
    • Certified copies of public records;
    • Sufficiently collateral writings 



Witness Competency


  • Judges presiding and jurors in that case may not testify. 
  • Only limitations are that the witness must have personal knowledge of the events, something the witness saw or heard, and the witness must swear to testify truthfully. * An insane person or a child may testify, as long as they can understand duty for truthfulness and accuracy. 
  • *NY: A child of any age may testify under oath if the child understands and appreciates the duty to tell the truth. 
    • ​CIVIL CASE: no unsworn testimony
    • CRIMINAL CASE: child under age of 9 who cannot understand duty of oath may give unsworn testimony, but D cannot be convicted solely on this basis (must be corroborating evidence). 



Dead Man Acts 


New York ONLY, Not FRE 

  • In a civil action, an interested witness is incompetent to testify against the estate of a decedent concerning a personal transaction or communication between the interested witness and the decedent. 
  • Except 
    • Auto-accident case based on negligence. The surviving interested party may testify about D's conduct/demeanor, but not statements made by decedent. 
    • Where the protected party or agent of the deceased testifies to a transaction with the interested person, the interested person may also testify about the same transaction (protected parties are executors, administrators, heirs, legatees, and devisees). Their testimony opens the door to interest witness testimony. 



Judicial Notice


  • Courts take judicial notice of indisputable facts that are either matters of common knowledge, or capable of verification. Increasing use of judicial notice of scientific principles. 
  • May be taken at any time, whether or not requested, and may be taken for the first time on appeal, or by party request. 
  • FRE: Conclusive in civil case, permissive to jury in criminal case. 
  • Must take judicial notice of fed/state law; may take judicial notice of municipal order; laws of foreign countries (but rarely do). 



Leading Questions 

+ Unprompted Witness Statements 


  • Generally, leading Qs not permitted on direct exam but are allowed on cross. 
  • Leading questions will be permitted on direct exam, when:
    • Necessary to jog witness's memory; 
    • Relevant to preliminary intro matters; 
    • Hostile witness; or 
    • Witness is an opposing party or person under opposing party's control. 
  • A court should strike unprompted testimony as "unresponsve" on motion of examining counsel (not opposing counsel). 



Refreshing Recollection


BASIC RULE: witness may not read from prepared memorandum and must not testify from memory/current recollection. 


  • If witness's memory fails, he may be shown a memorandum (or any tangible item) to job memory. 
  • The adversary has a right to inspect the memory refresher, use it on cross, and introduce it into evidence. 





  • Hearsay is an out-of-court statement of a person made to prove the truth of the matter asserted. Such statements are inadmissible unless an exclusion or exception applies.
  • If offered to prove some other purpose, credibility irrelevant so it is not hearsay. 
    • Verbal acts (legally operative words - contract, patent, gift, bribe, perjury, defamation, etc.) 
    • Effect on person hearing (notice, fear, motive) 
    • Circumstantial evidence of speakers state of mind (e.g., insanity). 




Prior Statement of Witness Testifying at Trial 




The prior statement of a witness testifying at trial is admissible as substantive evidence in three circumstances: 

  1. Prior ID of a person; or 
  2. Prior inconsistent statement, orally, made under oath during a formal proceeding; or 
  3. Prior consistent statement, if being used now to rebut a charge of recent fabrication or improper motive. 


  • "I don't remember" on stand probably not inconsistent with previous statement sufficient to bring in this exclusion. 




Party Admissions (Statement of Party Opponent)




  • A statement made by opposing party is admissible for its truth if offered against the opposing party. 
  • Adoptive admission: express/implied adoption of statement made by another, e.g., by silence under circumstances where a reasonable person would protest if false. 
  • Vicarious admission: agent/employee statement admissible if statement concerns matters within the scope of employment. Not applicable to co-parties.  
    • NY: Vicarious admission only if agent/employee has explicit "speaking authority." 
  • Co-conspirators: statements made in furtherance of the conspiracy. 





Past Recollection Recorded


Past recollection recorded admissible under the hearsay exception when: 

  1. Showing writing to W fails to jog memory; 
  2. Winess had personal knowledge at the former time; 
  3. Writing was made/adopted by witness;
  4. Made/adopted when fresh in W's mind; and 
  5. W can vouch for its accuracy when made. 

Only adverse party can introduce into evidence. (NY: Either Party). 




Authoritative Texts and Treatises 


  • Information in learned treatises admissible as substantive evidence on direct exam of party's own expert, if established by a reliable authority; or on cross-examination of opponent's expert. 
  • Treatises may only be admitted in connection with the testimony of an expert and may only be read to the jury, not admitted into evidence. 
  • NY Rule: No hearsay exception; only used to establish general basis of expert's opinion (not substantive evdence). Scientific texts acknowledged as basis for opinion or conceded as reliable on cross may be used to impeach the expert's credibility. 



Hearsay Exceptions

Excited Utterance


  • Statement made concerning a startling event, made while the declarant is still under the stress of excitement caused by the event. 
  • Determining excited utterance:
    • nature of the event; 
    • excitement-oriented verb ("screamed," "shouted," etc.) 
    • exclamation point 



Hearsay Exceptions: 

Present Sense Impression


  • Description of an event made while the event is occurring or immediately thereafter (within a few seconds). 
  • *NY: must be corroborating evidence of the happening of the event described by the declarant. 



Hearsay Exceptions: 

Present State of Mind


  • Contemporaneous statement concerning declarant's present state of mind, feelings, and emotions; plans/intentions. 


  • New York Rule: Special rules regarding statements of plans/intent: if offered to prove joint participation of another person, NY requires: 
    • Corroborating evidence of a relationship between declarant and other person; and 
    • Declarant is unavailable. 



Hearsay Exception

Present Physical Condition


Statement made to anyone about the declarant's current physical condition admissible as hearsay exception. 

  • NY: If statement made to layperson rather than doctor, only admissible if declarant is unavailable. 



Hearsay Exception:

Statement made for the purpose of obtaining medical treatment/diagnosis 


  • Statement made to anyone (medical personnel, typically) for the purpose of obtaining medical treatment or diagnosis
    • Including diagnosis for expert testimony
    • Must concern present/past symptoms, or general cause, but NOT 
      • Details of liability; 
      • ID of tortfeasor, unless ID of abuser in domestic/child abuse case; 
      • Statement from physician to patient 
  • New York: Exception n/a to statements made to a physician solely for the purpose of helping the physician to develop an opinion for expert testimony at trial. 



Hearsay Exception

Business Records


Business records are admissible as hearsay exception if: 

  • Records of a business of any type; 
  • Made in the regular course of business (germane to business); 
  • Where business routinely keeps such a record (duty to report); 
  • Made at or about the time the event occurred; 
  • Consisting of information observed by the employee (including medical treatment, diagnosis, opinions on injury, causation, contained in hospital records, or statements falling within other hearsay exceptions). 
    • NOT accident reports prepared for litigation

Foundational Requirements: 

  • Under the FRE, sponsoring witness (not necessarily the author) to testify about the five elements or written certification. 
  • New York: written cert only okay in a civil case where record is of non-party; any case if hospital record; any case if record is of state/local gov't. Accident reports prepped for litigation OK. Police report may be admissible in ny under business records. 




Hearsay Exceptions

Public Records


  • Admissible as hearsay exception where the public record sets forth: 
    • The activities of the office or agency; 
    • Matters observed pursuant to a legal duty; 
    • Findings of fact/opinion resulting from an investigation authorized by law (no need for "business duty" of employee). 
  • Police reports in criminal cases (prepared for prosecution) are generally not admissible against D (nor under business recs). 


NY: Public records exception is not well-developed; usually admitted under business records exception. Conclusions and opinions in govn't investigatory reports are admissible only if the report sets forth adequate facts and person giving opinion was qualified. 



Hearsay Exceptions



  • Reasons for Unavailability
    • Privilege; 
    • Absence from jur / beyond subpoena power 
    • Illness/death 
    • Lack of memory* 
    • Refusal to testify*
    • ** These last two are not recognized as basis for unavailability in New York. Also, dead man acts incompetence is not unavailability.  



Hearsay Exception

Unavailable Witness Statement Against Interest 


  • Unavailable declarant's statement admissible as hearsay exception where the statement is against the declarant's pecuniary, proprietary, or penal interest. Not the same as a party admission. 



Hearsay Exception 

Unavailable Witness's Dying Declaraton 


Dying Declaration. Unavailable declarant's statement made under belief of impending and certain death, regarding the cause or surrounding circumstances of the death or believed death. This applies only in homicide cases OR civil actions. 




Hearsay Exception

Unavailable Witness's Former Testimony 


Former Testimony.

  • Former testimony of now-unavailable witness, given at a former proceeding or in a deposition, is admissible against a party if the party on the prior occasion had the opportunity and motive to cross-examine and develop the testimony by direct or re-direct examination, and the issue is essentially the same


  • Defendant in criminal case and charge in the former testimony are the same
  • Civil case only: prior testimony of physician is always okay
  • Additional bases for unavailablity for former testimony (civ/crim): 
    • Witness out of state; 
    • 100+ miles 
    • Unable to attend due to illness/age/imprisonment
    • Exceptional circumstances




Hearsay Exception:

Declarant Unavailable Due to D's Forfeiture 


  • Any type of hearsay statement is admissible against a D whose wrongdoing made the witness unavailable, if the court finds by a preponderance of the evidence* that D's conduct was specifically designed to prevent witness from testifying. 
  • NEW YORK RULE: prove by clear and convincing evidence. 




The Sixth Amendment Right to Confrontation



Available only in criminal trials 

  • In context of hearsay, even if a hearsay exception/exclusion applies, the Sixth Amendment prevents prosecution from introducing the statement if: 
  1. The statement is testimonial 
  2. The declarant is unavailable
  3. The defendant has no opportunity for cross-examine before or at trial
  • Testimonial statements include:
    • Statements made to police interrogation (but not for on-going emergency);
    • Forensic lab reports to accuse targeted individual (but expert can refer generally);
    • Sworn affidavits;
    • Grand jury testimony. 
  • Business records are not testimonial 
  • Dying declaratons given to police officers are probably not sixth amendment violations. 





Impeachment of a Hearsay Declarant 


  • Any impeachment method may be used to attack the credibility of a hearsay declarant, whose statement was admitted into evidence. Waiver of explain/deny requirement for prior inconsistent statement if hearsay declarant.  




Hearsay within Hearsay


  • If a hearsay statement is included with another hearsay statement, the evidence is inadmissible unless each statement falls within an exception/exclusion. 






  • Bolstering one's own witness is generally not allowed until after the credibility has been attacked. Exception for prior ID of a witness (hearsay exclusion). 
  • Rehabilitation may be done by a character evidence testifying to the witness's reputation for truthfulness or the character witness's opinion about the witness's truthfulness. NY: Rep only. 

Rehabilitation by showing prior consistent statement of witness: admissible for rehabilitation purposes, and if witness was charged with recent fabrication due to bias, the prior consistent statement (if made before motive to fabricate arose) is admissible as substantive evidence under a hearsay exclusion (hearsay exclusion/exception N/A to NY)






  • Any party may impeach any witness, including one's own 
  • Special NY Rules
    • Generally may not impeach your own witness, except with a witness's prior inconsistent statement made in writing and signed by the witness under oath. Furthermore, 
    • In a criminal case, the prior inconsistent statement may be used only if the witness's current testmony is affirmatively damaging to the party who called the wtness, not merely a cloud on credibility. 





Extrinsic evidence is OK if party is given t

  • Witness may be impeached a prior inconsistent statement, but this is admissible as substantive evidence only if the witness is currently subject to cross-examination and the prior statement was made orally under oath as part of a formal hearing, proceeding, trial, or depo (hearsay exclusion). 
  • Extrinsic evidence is OK if party is given opportunity to explain/deny (MBE: anytime; NY: while on stand). No foundation necessary on MBE: necessary in NY. 
    • FRE & NY: no need to give opportunity to explain if the witness is the opposing party. 
  • NY: Admissible ONLY TO IMPEACH.






bias / interest / motive to misrepresent 


  • May impeach witness by showing any fact giving witness a reason to testify favorably/negatively about a party's case. 
    • Foundation must be laid* 
    • Extrinsic evidence permitted 
  • *NY: confrontation of witness/foundation NOT required




Sensory Deficiencies 


  • Anything that could affect the witness's perception or memory, such as bad eyesight/hering, mental infirmity, consumption of alcohol/drugs at the time of the event or while testifying. 
  • No foundation required
  • Extrinsic evidence permitted. 




bad reputation or opinion about witness's

character for truthfulness 


  • Any witness is subject to impeachment by this method 
  • Confrontation/foundation not required, but the character witness is only permitted to testify as to general reputation/opinion about truthfulness. NY: only reputation, not opinion. 
  • This is, in and of itself, extrinsic evidence, but no specific acts may be mentioned on direct (on cross, acts ok to rebut). 






  1. Crimes involving false statement / dishonesty within 10 years are always admissible; no discretion; felony/misdemeanor. 
  2. Other crimes admissible if felony and <10 years old, but may be excluded if the danger of unfair prejudice substantially outweighs probative value (or in the case of a criminal D, if the prejudice outweighs probative value). Requires balancing. 
  • Extrinsic evidence OK 
  • No foundation requird 


NEW YORK RULE: Any witness may be impeached with a conviction of any time, without regard to the age of the conviction or probativeness v prejudice, except for the criminal D witness. Court must hold a hearing to balance the probativeness as to credibility versus the risk of unfair prejudice to the defendant testifying in his defense (e.g., seriousness, relation to trust, deception, versus the similarity to the current ocurrence and the inflamatory nature). note that this rule about convictions does not apply to traffic violation convictions. Also note that a guilty plea is admissible even though hearsay as party admission. 






  • Witness may be asked about prior bad acts if it relates to deceit / dishonesty but no extrinsic evidence may be produced. Examiner must be satisfied by the witness's answer. But he may not ask about prior arrests. 
  • Consider whether the bad act might be relevant for another purpose like bias (then extrinsic evidence okay). 

New York Rule: Witness may be asked about any prior bad act that is viscious, criminal, or immoral, without regard to the truthfulness. No extrinsic evidence and crim D entitled to balancing prob v prej. 




Basis of Opinion


  • Basis of opinion must be on reasonable degree of probability/certainty. Includes personal knowledge, evidence in trial record, and facts not in evidence if those facts are of a type reasonably relied upon by experts in this field to form opinions. 
  • Generally the contents of out-of-court bases should not be disclosed to the jury, but if the judge determines the basis will be helpful to the jury in evaluating the opinion, out-of-court material may be admitted with limiting instruction. 
  • New York: if opinion based on matters not in evidence, admissible only if it comes from a witness subject to full cross-examination at trial. 




Qualification / Admissible Opinions


  • Qualifications: education and/or experience. 
  • Subject matter = scientific, technical, or other specialized knowledge that will be helpful to the trier of fact in deciding a fact. 
  • The expert must have a reasonable probability regarding the opinion and be sufficiently relible, as determined by testing methodology, rate of error, acceptance in same discipline, or peer review in publications. 

Special New York Rules: 

  • For science expert (medicine, engineering, social psychology) NY applies FRYE TEST of general acceptance in the relevant community. 
  • If case turns on eyewitness ID, trial court must allow expert testimony re reliability, if relevant/generally accepted/qualified/beyond ken. 



Lay Opinion


  • Lay opinion admissible if (1) helpful to jury and (2) rationally based on witnesses own perceptions. 


  • Drunk/sober
  • Speed of vehicle 
  • Handwriting
  • Emotions of another
  • Sane/insane
  • Odors
  • Character (where permitted)
  • Value of own services
  • General appearance/condition of person
  • Rational/irrational nature of separate conduct 

Indadmissible re whether one acted as an agent or whether legal agreement was made. 



Ultimate Issue Testimony 




  • Opinion testimony as to an ultimate issue is admissible if it meets other requirements of admissbility, as long as the testmony is helpful (i.e., not legal jargon such as 'conduct constituted reckless disregard . . . ') 
  • Can't say D is "guilty" or "innocent" 
  • But in criminal case, expert can't give opinion re whether D had requisite mental state. 
  • Party has a right to cross-examination of any opposing witness, to matters within the scope of direct exam and matters testing the witness's credibility. 



Diversity & Federal Question Jurisdiction 


  • Where substantive law of state applies, FRE usually governs nevertheless (if federal court action) -- EXCEPT: 
  • Privilege of the law of the state 
  • Competeny of witness of state (e.g., dead man acts) 
  • Burdens of proof / presumptions of the state 






  • Federal rules: in federal cases based on federal substantive law, FRE applies "common law" of privilege, federall recognized as: 
    • Attorney client 
    • Spousal immunity and marital communication 
    • Psycho-therapist/social worker - client privilege 
  • Diversity cases: privilege laws the state 
  • For privilege to apply, requires: (1) confidentiality and (2) assertion by holder or confidence-holder. 
  • Can be waived by failure to claim, voluntary disclosure by privilege-holder, or prior contractual provision. 

  • Eavesdroppers: only negligence destroys confidentiality 


  • NY - privileges waived by insanity defense 



Attorney-Client Privilege

(FRE Rules)


Applies to confidential comm'n between attoney-client (reasonable belief ok; prospective client ok), made during professional legal consultation.  

  • Also applies to examination by doctor in prep for trial, where comm'n bw dr. and atty is necessary to convey client's condition to atty. 


  1. Express waiver by client 
  2. Subject matter jur, if partial disclosure was intentional and full disclosure necessary for fairness 
  3. Seeking help for future crime or fraud 
  4. Legal advice in issue
  5. Dispute b/w atty/client
  6. Joint clients dispute 
  7. Inadvertent waiver, if no reasonable steps to prevent/correct 



Attorney-Client Privilege 

Special New York Rules 


Atty MUST divulge if: 

  1. Decedent-client's will in question (but no disgracing memory)
  2. Atty can be required to reveal client ID unless ID was intended for good cause to be confidential 
  3. Custody battle: atty must divulge whereabouts of client who has absconded with client. 

A plea of innocence because insanity waives all privilege, including atty-client 



Physician-Patient Privilege


  • Unknown at common law (no FRE - federal Q does not apply, but if fed court sitting in diversity, then it will apply). 
  • Applies to confidential comm'n from patient to physician for purpose of diagnosis or treatment. LOST if patient puts physican condition in issue. 

NY: Recognizes privilege, except: 

  • Medicaid-reporting reqs supercede; 
  • Dentist must disclose to ID patient; 
  • Physician/dentist/chiropractor/nurse must disclose info that person <16 was the victim f a crime. 

Privilege is held by patient, but if dead, physician must disclose IF (a) no objection; (b) waiver by personal rep; (c) interests of personal rep are adverse to decedent's estate and any interested party waives; (d) validity of decedent's will is in question and priv waived by executor. 



Psychotherapist / Social Worker - Client Privilege 


Recognized at federal law – confidential comm'n acquired by psychotherapist for purpose of diagnosis or treatment of mental/emotional illness. Lost if client puts mental condition in issue. 

NY: Psychologist, psychotherapist, social worker, and support staff may not reveal comm'n w/ or advice given to client unless child <16 was victim of a crime. 

RAPE CRISIS COUNSELOR: applies to same extent as psychotherapist except where client <16. 



Spousal Immunity 

Confidential Comm'n Between Spouses 


Spousal Immunity: Federal criminal cases only. A spouse may not be called to testify about anything re defendant spouse. The witness spouse holds the privilege and may waive w/o D-spouse's consent. 

  • No spousal immunity in NY except re adultery (unless to prove marriage/disprove adultery defense); or non-access uring wedlock unless filiation proceeding.

Confidential comm'n between spouses: any type of case (federal & NY, civ/crim). Spouse is not required to disclose confidential comm'n (statement/affirmative act) made by one to the other during marriage. Either spouse may invoke the privilege. 


  1. Comm'n/acts furthering joint crime/fraud
  2. Comm'n/acts destructive of family unit (spousal/child abuse)
  3. No privilege in civil litigation b/w spouses themselves. 



Professional Journalist Privilege


New York Only: NY affords absolute statutory protection for confiential news that is published or broadcast, including the ID of the source of such news. 

NOT a federal privilege. 



Attorney Work Product 


A rule that an opposing party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation. In limited circumstances, however, an opposing party may discover or compel disclosure of work product upon a showing of "substantial need" and "undue hardship." Fed. R. Evid. 26(b)(3).




unavailable witness charge 



The jury may draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events, if three pre-conditions are met: 

  1. Witness in question has knowledge material to the trial;
  2. Witness is expected to give testimony favorable to the party against whom the charge is brought ("CONTROL" element);
  3. Witness must be available to testify. 

Subpoena, leniency for witness negate "unavailability". Fear of deportation --> party adverse to the charge must have tried to make arrangements for leniency.