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Flashcards in Evidence Deck (92):

Pragmatic consideration

(1) danger of unfair prejudice
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) waste of time
(6) unduly cumulative


Similar accidents caused by the same instrumentality or condition

(1) accident history is generally not admissible
(2) unless under substantially similar circumstance; (i) existence of a dangerous condition; (ii) causation; (iii) prior notice to defendant


Policy based exclusions

(1) liability insurance for purpose of proving fault/no fault
(2) Subsequent remedial measure: inadmissible for proving negligence, culpable conduct, product defect, or need for warning
(3) settlements of disputed civil claims. Exceptions: (i) impeachment on ground of bias; (ii) statements of fact made in civil litigation with governmental regulatory agency are admissible in later criminal case (not in NY)


NY subsequent changes in PL action

Admissible to suggest the existence of a defect in the product at the time of the accident



Prior similar conduct may be admissible to raise an inference of the person's intent on later occassion


Comparable sales on issue of value

Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue



(1) Habit is admissible as circumstantial evidence of how the person acted on the occasion at issue in the litigation
(2) habit is a repetitive response to a particular set of circumstances: (i) frequency; (ii) particularity
(3) NY also requires that the person is in complete control of circumstances (so like always using turn signal has too many variables)


Business routine



Industrial custom as standard of care

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted


Plea bargaining in criminal case

(1) Not admissible: (i) offering to plead guilty; (ii) withdrawn guilty plea (in NY admissible in subsequent civil case against defendant); (iii) plea of no contest (nolo contendere); (iv) statements of fact
(2) a plea of guilty is admissible against the defendant in subsequent litigation under rule of party admissions


Offers to pay hospital bills or medical expenses

Inadmissible to prove liability


Character evidence: general overview

(1) refers to person's general propensity or disposition (honesty, fairness, peacefulness, or violence
(2) purposes for admissible: (i) character is an essential element in case; (ii) to prove conduct is in conformity with character at the time of the litigated event; (iii) to impeach credibility


Character evidence: criminal case defendant's character

(1) inadmissible to prove conduct on particular occasion during prosecution's case in chief
(2) defendant may introduce evidence of relevant character trait (knowledge of reputation or opinion; no specific acts)
(3) NY: defendant may seek to prove his good character for the relevant trait only by reputation
(4) Prosecution's rebuttal: (i) may cross examine witness to impeach knowledge of defendant (no specific acts; (ii) may call own witness to contradict; (iii) NY: may rebut good character by proving defendant has been convicted of a crime that reflects adversely on the character trait in issue


Character evidence: victim's character (self-defense)

(1) Federal rule: (i) defendant may introduce evidence of victim's violent character; (ii) rebuttal by evidence of victim's good character or defendant's character for violence
(2) NY rule: inadmissible to prove victim struck first


Character evidence: victim's character sexual misconduct

(1) ordinarily inadmissible
(2) exceptions: (i) specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim; (ii) victim's sexual activity with the defendant if the defense of consent is asserted; (iii) where exclusion would violate due process (to show specific motivation for false accusation, etc.)


Character evidence: civil cases

(1) Character evidence is generally in admissible to prove conduct in conformity
(2) Admissible in a civil action where specific trait is an essential element of a claim or defense: (i) tort action for negligent hiring/entrustment; (ii) defamation; (iii) child custody


Defendant's other crimes

(1) generally not admissible during case in chief
(2) may be admissible to show state of mind
(3) 5 common non-character purposes (may be introduced independently by prosecution): (i) Motive; (ii) Intent; (iii) Mistake or accident; (iv) Identity; (v) Common scheme


How to prove MIMIC crimes

(1) by conviction
(2) by evidence that proves the crime occurred (conditional relevancy, sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime) (must be clear and convincing in NY)
(3) Upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence; court must also way probative value v. prejudice and give limiting instructions where appropriate
(4) MIMIC can also be used in civil case if relevant


Propensity for sexual assault or child molestation

(1) defendant's prior specific acts of sexual assault are admissible as part of the case-in-chief of the prosecution or the plaintiff in a civil action to show propensity for sexual conduct
(2) Same rules apply for child molestation
(3) only prior acts are allowed, not reputation or opinion


NY prior sexual crimes

(1) not allowed unless MIMIC
(2) example: Unique M.O show identity; prior sexual acts directed at the same person who is the victim in the current case


Authentication of writing: overview

(1) if relevance of writing depends upon its source or authorship, a showing must be made that the writing is authentic
(2) in absence of a stipulation as to authenticity, a foundation must be made in order for the document to be admissible


Methods of authentication of a writing

(1) witness' personal knowledge (watched x sign document)
(2) Proof of handwriting; (i) lay person's opition; (ii) expert's comparison; (iii) jury comparison
(3) Ancient document rule, authenticity is inferred if: (i) at least 20 years old (30 in NY); (ii) facially free of suspicion; (iii) found in a place of natural custody
(4) solicited reply doctrine: document can be authenticated by evidence that it was received in response to a prior communication to the alleged author


Conditional relevancy standard

Document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine


Self-authenticating documents

(1) presumed authentic: (i) official publications; (ii) certified copies of public or private records on file in public office; (iii) newspapers or periodicals; (iv) trade inscriptions and labels; (v) acknowledged document (certified by notary); (vi) commercial paper


Authentication of photographs

Witness may testify on the basis of personal knowledge that the photo is a "fair and accurate representation" of the people or objects portrayed


Best evidence rule

(1) a party seeking to prove the contents of a writing must either: (i) produce the original writing; (ii) provide an acceptable excuse for its absence
(2) Applies for: (i) writing is a legally operative document in the present case (mortgage, patent, deed, divorce decree, written contract); (ii) witness is testifying to facts that she learned solely from reading about them in a writing
(3) does not apply when witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact


Best evidence rule: what qualifies as original writing

(1) Whatever the parties intended as the original
(2) duplicate that accurately reproduced the original (duplicate is admissible to the same extent as original unless it would be unfair or genuine question is raised as to authenticity of the original
(3) NY: photocopies are only ok if photocopies were made in the ordinary course of business
(4) handwritten copy is neither an original nor a duplicate


Best evidence rule: excuses for non-production of original

(1) lost or cannot be found with due diligence
(2) destroyed without bad faith
(3) cannot be obtained with legal process (beyond subpoena power)


Best evidence rule: escapes from requirements of best evidence rule

(1) voluminous records can be presented through a summary or chart provided the original records would be admissible and are available for inspection
(2) certified copies of public records
(3) Collateral documents (not to important matters of the case)


Witness competency

(1) personal knowledge
(2) oath or affirmation


NY rule for testimony by children

(1) general rule is that a child of any age may testify under oath if the child understands and appreciates the duty to tell the truth
(2) civil cases: a child must be able to testify under oath
(3) A child under 9 who cannot understand the duty of an oath may still testify, but a defendant cannot be convicted based solely on the unsworn testimony of a child (must be some corroborating evidence)


Dead man's statute (no rule under FRE, so must be stated on multistate)

(1) In a civil action
(2) an interested witness
(3) is incompetent to testify
(4) against the estate of a decedent
(5) concerning personal transaction or communication between the interested witness and the decedent


NY Dead man statute exception

(1) automobile accident exception: (i) may testify about observation of decedents conduct and demeanor; (ii) may not testify about oral statements made by decedent


Leading questions

(1) generally not allowed on direct examination
(2) generally allowed on cross
(3) exceptions for direct: (i) preliminary introductory matters; (ii) youthful or forgetful witness; (iii) hostile witness; (iv) adverse party or under control of adverse party


Writings in aid of oral testimony: refreshing recollection

(1) Witness may not read from prepared memorandum
(2) If witnesses's memory fails him, he may be shown a memo or any other tangible item to jog his memory
(3) adversary has right to: (i) inspect the memory-refresher; (ii) to use it on cross-examination; (iii) to introduce it into evidence


Writings in aid of oral testimony: past recollection recorded (hearsay exception

(1) foundation for reading contents of writing to jury if fails to jog witnesses memory: (i) showing writing fails to jog memory; (ii) witness had personal knowledge at former time; (iii) writing was either made by witness or adopted by witness; (iv) making or adoption occurred while it was fresh in mind; (v) witness can vouch for accuracy of writing when made or adopted
(2) under FRE, proponent can only read it; under NY, the writing may be shown to the jury


Lay witness opinion testimony

(1) admissible if: (i) rationally based on witnesses perception; (ii) helpful to the jury in deciding a fact
(2) examples of acceptable things: (i) drunk/sober; (ii) speed of vehicle; (iii) handwriting; (iv) emotions of another person; (v) sane/insane; (vi) odors


Expert witness: what's required to be an expert

(1) qualifications: education and/or experience
(2) proper subject matter: scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact


Expert witness: basis of opinion

(1) based on reasonable degree of probability or reasonable certainty
(2) three permissible data sources: (i) personal knowledge; (ii) other evidence in trial record; (ii) facts outside record if of a type reasonably relied upon by experts


Expert witness: relevance and reliability (TRAP)

(1) to be admissible must be sufficiently reliable; must use reliable methods and principles and reliably apply them to the facts of the case
(2) court serves as gatekeeper
(3) four principal factors to determine reliability (TRAP): (i) testing of principles or methodology; (ii) rate of error; (iii) acceptance by other experts in the same discipline; (iv) peer review and publication
(4) In NY, must have achieved general acceptance in relevant scientific field


Expert witness: learned treatise (MBE)

(1) on direct, relevant portions may be read into evidence as substantive evidence if established as reliable authority
(2) on cross, relevant portions may be read into evidence to impeach or contradict opponent's expert


Expert witness: learned treatise (NY)

(1) on direct, no hearsay exception, but may still be used as general basis of expert's testimony
(2) on cross, may be used only to impeach credibility and only if the expert relied on the treatise in developing her opinion or acknowledge on cross that it is a reliable authority


Expert witness: ultimate issues

(1) Opinion testimony is even if it addresses an ultimate issue as long as other requirements are satisfied
(2) still a proper objection if expert seeks to give direct opinion that defendant did not have the relevant mental state ("d's insanity prevented him from understanding that he was shooting at the victim")


Cross examination: right

part has a right to cross-examine any opposing witness who testifies at trial. Significant impairment of this right will result in at minimum a striking of the witness's testimony


Cross examination: proper subject matter

(1) matters within the scope of direct examination
(2) matters that test the witness's credibility


Impeachment: bolstering own witness

(1) Cannot be done until impeached (rehabilitation)
(2) Exception for prior ID (under FRE exclusion from hearsay, under NY an exception to hearsay


Impeachment: party's impeachment of own witness

(1) federal: any party may impeach any witness, including her own witness, by any method of impeachment
(2) NY: a party may not impeach her own witness; exception: may impeach with prior inconsistent statement but only if: (i) made in writing and signed by witness, or (ii) made in oral testimony under oath (in criminal cases may be used only if witness's current testimony is affirmatively damaging to the party who called the witness, not merely a cloud on credibility


Impeachment: methods

(1) prior inconsistent statements
(2) bias, interest, motive to misrepresent
(3) sensory deficiencies
(4) bad reputation or opinion about witness's character for truthfulness
(5) criminal convictions
(6) bad acts that reflect adversely on witness's character for truthfulness
(7) contradiction


Impeachment: how to use impeachment methods

(1) ask witness about the impeaching fact with aim of having witness admit it (confronting the witness)
(2) prove the impeaching fat with extrinsic evidence


Impeachment: extrinsic evidence

(1) may use for impeaching methods except bad acts and contradictory collateral facts
(2) for impeachment methods that allow extrinsic evidence, it is not necessary to ask the witness about impeaching fact before evidence is introduced except: MBE for bias, NY for prior inconsistent statement


Impeachment: prior inconsistent statements

(1) purpose of admissibility is only impeachment
(2) Exception (MBE only): may be admitted both to impeach and as substantive evidence if made: (i) orally under oath; and (ii) part of a formal proceeding
(3) Confrontation: (i) federal it is flexible, but must be given an opportunity at some point to return to the stand to explain or deny the prior statement; (ii) in NY witness must be confronted with prior inconsistent statement while she is on the stand
(4) exception to confrontation in both NY and MBE if witness is opposing party


Impeachment: bias, interest or motive to misrepresent

(1) may impeach witness by showing any fact that would give the witness a reason to testify favorably or negatively about a party's case
(2) confrontation is required under federal law but not under NY
(3) bias may be proven by extrinsic evidence as long as confrontation is met


Impeachment: sensory deficiencies

(1) anything that could affect witness's perception or memory
(2) no confrontation requirement
(3) extrinsic evidence is allowed


Impeachment: bad reputation or opinion about witness's character for truthfulness

(1) any witness is vulnerable to impeachment
(2) no confrontation
(3) extrinsic evidence is allowed
(4) in NY only bad reputation, not opinion


Impeachment: criminal convictions federal rule

(1) Purpose is that person convicted of a crime is more likely to lie under oath
(2) Permissible convictions: (i) conviction of any crime which prosecution was required to prove a false statement as an element; (ii) felony, may be excluded if probative value of credibility is outweighed by danger of unfair prejudice to a party
(3) time limitation: 10 years from conviction or release from prison
(4) method of proof: (i) ask witness to admit; (ii) introduce record of conviction


Impeachment: NY rule for criminal convictions

(1) In general any witness may be impeached with a conviction for any type of crime without regard to how old the conviction is and without balancing probative value with the danger of unfair prejudice
(2) Special rule for criminal defendants: must balance probative value of the conviction on issue of defendant's credibility against the risk of unfair prejudice. Look to serious and relation to trust and deception for probative factors. Look to similarity to current offense and inflammatory nature for prejudice


Impeachment: Inquiry about bad acts without conviction

(1) witness may be asked about a prior bad act if it relates to deceit or dishonesty
(2) can only come in through confrontation on cross
(3) In NY a witness may be asked about any prior bad act that is vicious, criminal or immoral even if unrelated to truthfulness
(4) witness is entitled to a hearing where court must balance the probative value of the bad act on the issue of the defendant's credibility agains the danger of unfair prejudice
(5) proof of bad act may be allowed if it is relevant for some purpose other than bad character for truthfulness such as to show bias


Impeachment: Contradiction

(1) cross-examiner may try to obtain admission that she made a mistake or lied about any fact she testified to during direct.
(2) extrinsic evidence is not allowed for purpose of contradiction if the fact at issue is collateral


Impeachment: bolstering witness

(1) showing good character after impeachment
(2) prior consistent statement to rebut a charge of recent fabrication occurring before motive to fabricate (in NY only to rehabilitate, not as substantive evidence)


Privileges: introduction

(1) federal court in federal substantive action applies privileges by principles of common law as they may be interpreted in light of reason and experience
(2) federal court in diversity must apply privilege of the state whose substantive law is applicable; also state law on competency and state law on burdens of proof and presumptions


Privileges: Attorney-client

(1) applies to: (i) confidential communications; (ii) between attorney and client (or representative of either); (iii) made during professional, legal consultation; (iv) unless privilege is waived by the client; (v) or exception applicable


Confidential communications between attorney and client

(1) Client must intend confidentiality
(2) if two or more clients with common interest share the same attorney, their communications with counsel concerning the common interest are privileged as to third parties; does not apply between them if later dispute arises


Attorney-client privilege: subject matter waiver

A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if: (i) partial disclosure is intentional; (ii) disclosed and undisclosed communications concern the same subject matter; (iii) fairness requires that the disclosed and undisclosed communications be considered together


Attorney-client privilege: inadvertent waiver

An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder: (i) took reasonable steps to prevent the disclosure; (ii) takes reasonable steps to correct the error


Attorney-client privilege: exceptions

(1) future crime (can't aid commission of crime)
(2) puts legal advice at issue
(3) attorney-client dispute


Physician-patient privilege: overview

(1) usually created by state statute


Physician-patient privilege: application

(1) applies to: (i) confidential communication or information acquired by physician from patient; (ii) for purpose of diagnosis or treatment of medical condition
(2) also applies to psychotherapists (MD or other certified to diagnose or treat medical/emotional illness


Physician-patient privilege: federal law distinction

Privilege exists only for psychotherapy


Physician-patient privilege: exception

privilege is lost if patient expressly or impliedly puts physical or mental condition in issue


Spousal privilege (not recognized in NY)

(1) A spouse cannot be compelled to testify about anything against the defendant spouse
(2) witness spouse holds the privilege (may voluntarily testify)


Confidential communications between spouses

(1) A spouse is not required and is not allowed in the absence of consent by the other spouse to disclose confidential communication made by one to the other during marriage
(2) exceptions: (i) communications or acts in furtherance of jointly perpetuated future crime or fraud; (ii) communications or acts destructive of family unit; (iii) no privilege in civil litigation between the spouses themself


Hearsay: definition

(1) out of court statement by person
(2) offered to prove the truth of the matter asserted
(3) inadmissible unless an exception or exclusion


Hearsay: Non-hearsay statements

Some out-of-court statements may look like hearsay but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement


Hearsay: non-hearsay purposes

(1) verbal act (legally operative words)
(2) to show effect on person who heard or read the statement
(3) Circumstantial evidence of speaker's state of mind ("i am elvis presley")


Hearsay: prior statements of trial witness

(1) A witness's own prior statement, if offered to prove the truth of the matter asserted in the statement is hearsay and is admissible unless an exception or exclusion applies
(2) exclusions: (i) prior statement of identification of a person (exception in NY); (ii) prior inconsistent statement if oral, under oath and made during formal testimony (admissible only to impeach in NY); (iii) witness's prior consistent statement if being used now to rebut charge of recent fabrication or improper motive (in NY admissible only to rehabilitate credibility)


Hearsay: party admissions

(1) any statement made by opposing party is admissible if it is offered against the opposing party
(2) adoptive admission: adoption by silence can also occur where party remains silent under circumstances in which a reasonable person would protest if the statement were false
(3) vicarious party admission: statement of agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the relationship. In NY admissible only if principle gave agent authority to speak
(4) statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made: (i) during; and (ii) infurtherence of the conspiracy


Hearsay: exceptions

(1) forefeiture by wrongdoing
(2) former testimony
(3) statement against interest
(4) dying declaration
(5) excited utterance
(6) present sense impression
(7) present state of mind
(8) declaration of intent
(9) present physical condition
(10) statement for the purpose of obtaining medical treatment or diagnosis
(11) business records
(12) public records


Hearsay: criminal right of confrontation

(1) prosecution may not use a hearsay statement against criminal defendant if: (i) statement is testimonial; (ii) declarant is unavailable; (iii) defendant has no opportunity for cross-examination
(2) testimonial: (i) grand jury testimony; (ii) statements in response to police interrogation are testimonial if primary purpose of questioning is to establish or prove past event potentially relevant to criminal prosecution
(3) non testimonial: if primary purpose is to enable police to meet an ongoing emergency
(4) business records are nontestimonial
(5) forensic lab report is testimonial if its primary purpose is to accuse the targeted individual of criminal conduct (DNA from crime scene is ok as long as no person was suspected when tested)


Hearsay: forfeiture exception

(1) any type of hearsay is admissible against a defendant whose wrongdoing made the witness unavailable if court finds: (i) by a preponderance of evidence; (ii) defendant's conduct was specifically designed to prevent testifying
(2) NY requires clear and convincing evidence


Hearsay: former testimony

(1) no unavailable witness
(2) given at a former proceeding or deposition
(3) is admissible against a party who
(4) had a prior opportunity and motive to cross-examine or develop the testimony of the witness
(5) issue of both proceedings must be essentially the same


Hearsay: grounds for unavailability

(1) privilege
(2) absence from jurisdiction (can't find or beyond subpoena)
(3) illness or death
(4) lack of memory
(5) stubborn refusal to testify
NY specific
(6) declarant is located 100 miles or more from the courthouse
(7) declarant is a physician


Hearsay: statement against interest

(1) unavailable
(2) statement against interest: (i) pecuniary interest; (ii) proprietary interest; (iii) penal interest
(3) must be against interest when made
(4) any person can make statement against interest (not just party)
(5) personal knowledge is required


Hearsay: dying declaration

(1) a statement made under belief of impending and certain death by a now unavailable declarant concerning the cause or circumstances surrounding the declarant's death
(2) unavailable
(3) homicide only in criminal case; any civil case
(4) only homicide in criminal cases in NY


Hearsay: present sense impression

(1) description of an event made while the event is occurring or immediately thereafter
(2) In NY must be corroborating evidence of the happening of the event described by the declarant


Hearsay: present state of mind

contemporaneous statement concerning declarant's present state of mind, feelings, emotions


Hearsay: declaration of intent

(1) statement of declarant's intent to do something in the future including the intent to engage in conduct with another person
(2) NY, if the statement of future intent is offered to prove joint participation of another person must have: (i) corroborating evidence of a relationship between the declarant and the other person; (ii) unavailable


Hearsay: present physical condition

(1) statement made to anyone about declarant's present physical condition
(2) NY declarant must be unavailable if statement is made to layperson rather than a medical professional


Hearsay: statements made for purpose of obtaining medical treatment

(1) statements made to anyone concerning: (i) present symptoms; (ii) past symptoms; (iii) general cause of condition
(2) NY: exception does not apply to statements made a a physician solely for the purpose of helping the physician to develop an opinion for expert testimony at trial


Hearsay: business records elements

(1) records of a business of any type
(2) made in the regular course of business
(3) the business regularly keeps such records
(4) made at or about the time of the event recorded
(5) contents consist of: (i) information observed by employees of business; (ii) a statement that falls within an independent hearsay exception


Hearsay: proving business record foundation

(1) call sponsoring witness to testify to the 5 elements
(2) written certification under oath attesting to elements of business records hearsay exception


Hearsay: NY business records

permitted in only three circumstances: (i) civil cases of a nonparty that has produced its business records for inspection as part of pretrial discovery; (ii) in any case for records of a hospital; (iii) business records of a state or local government


Hearsay: Public record

(1) records of public office or agency setting forth: (i) activities of office or agency; (ii) matters observed pursuant to a duty imposed by law; (iii) finding of fact or opinion resulting from an investigation authorized by law
(2) exclusion: police reports prepared for prosecutorial purposes
(3) NY: not well developed, so almost always come in through business records. Conclusions and opinions contained only if report sets forth adequate facts and person giving the opinion is qualified