Evidence Flashcards
(30 cards)
Best Evidence Rule
Original doc/video/recording must be provided when its contents are at issue, EXCEPT when there are duplicates or original destroyed.
NB: Certified public records and summaries of voluminous writings are OK.
NY: Copies NOT OK unless for biz records copied through mechanical reproduction OR for other writing, protective copies which can’t be altered.
Judicial Notice - Feds v. NY
In NY, always discretionary except for public acts of US and state gov’ts.
Relevance
Low threshold: evidence w/ any tendency to make fact more or less likely (“probative”) and fact matters for outcome (“material”).
Rule of Completeness
When one party intros part of writing/recording, adverse party may compel intro of omitted portions or of closely related doc (e.g., reply letter) in order to explain/contextualize it.
Rule 403
Feds: Relevant evidence may be excluded if probative value is sub’ly outweighed by danger of unfair prejudice, misleading jury, wasting time, or presenting cumulative evidence.
NY: Same standard. Differs by adding “unfairly surprising” opposing party as reason to deny.
Conditional Relevance
Feds: Judge will allow in if conditional fact COULD be found by preponderance of the evidence.
NY: Will allow in if jury could RATIONALLY find conditional fact.
Prior Bad Acts
Inadmissible to show propensity. EXCEPT in crim cases, admissible for MIMIC. (And NY reqs C&CE evidence for it to get in under MIMIC)
Fed: Can ask about them to impeach on X iff probative of truthfulness.
NY: Can ask about them iff they relate to truth, are immoral, or show willingness to put witness’s interests ahead of society,
MIMIC
Prior bad acts admissible against crim ∆ to show:
Motive Intent absence of Mistake Identity Common scheme or plan
NY: Reqs C&CE that ∆ committed act.
Habit evidence
Evidence of person’s habit OR organization’s routine is admissible to prove actions in conformity w/ that habit. Habit = particular routine reaction to specific circs.
NY: Habit must be “deliberate and repetitive pattern of conduct” that rarely varies.
Dead Man’s Statute
NY: party w/ financial interest in civil case can’t testify about communications w/ adverse party who is dead or mentally ill.
EXCEPT: survivors of crash can testify re negligence-related communications of driver/pilot.
Feds have no such statute but apply states’.
IMPEACHMENT
- Bad Character for Truthfulness: shown thru rep. or opinion testimony OR asking witness about prior untruthfulness (no extrinsic evidence). Also thru prior crimes of dishonesty and sometimes felonies.
- PIS: but intro’d by extrinsic evidence iff other side gets chance to explain.
- By Bias
- Impeaching Hearsay Declarant
Expert Witnesses
Fed: Testimony must be based on sufficient facts/data + reliable methods reasonably relied on by experts in the field + the reasonable application of one to the other.
NY: Frye standard asks whether majority of experts in this field approve of witness’s approach.
Authentication
Fed: Reqs threshold finding by ct that jury COULD find evidence authentic.
NY: Reqs C&CE showing of authenticity for tangible evidence. Same standard as feds for documentary evidence.
Self-authenticating docs: ancient docs (20+/30+ yrs old, found in approp. place w.out suspicion), public records, and replies to letters known to be authentic.
Privileges
1-2. Spousal Privs
- Atty-Client: confidential communs b/w client & atty for purposes of obtaining legal services. Only client can waive. EXCEPT for future crime/fraud.
- Work Product: ≠ atty-client communs but aren’t subject to discovery unless 1) substantial need, and 2) undue hardship to obtain.
- Therapist-Patient: includes social workers. EXCEPT for 1) ct-ordered exams, 2) mental state is an issue, or 3) commitment proceedings.
Spousal Privileges - Specifics
Feds:
A. Spousal immunity: spouse of CRIM ∆ can’t be called as witness; witness spouse can waive.
B. Confid. spousal communs.: protects confidential communs made b/w spouses while married.
NY: NO spousal immunity except no testimony in adultery claim. CSC can be overcome if both spouses waive.
NB: Neither priv applies when spouses suing each other or one spouse charged w/ crime against other or either’s children.
Privileges - NY Distinctions
- Spouses 2. Atty-Client
- Psychotherapist-patient
- Doc-Patient (including dentists, nurses, etc.): must disclose if patient under 16 victim of crime, to explain condition of deceased unless “disgraceful” or if patient intends to harm someone
- Social worker-client
- Clergy-penitent: to obtain “spiritual guidance”
- Journalists: absolute priv for confidential info and qualified for non-confidential
- Parent-child: protects confidential commun from minor child to parent when all parties object
- Library records: reqs ct order to produce them
Public Policy Exclusions - Feds
- Subsequent remedial measures: measured by time of injury - not time of mfr or purchase. Inadmissible to show fault but can show other things.
- Liability Insurance: Inadmissible to show fault but can show other things.
- Offer to pay medical bills: inadmissible to show liability but accompanying statements admissible.
- Settlement offers: inadmissible IFF amount is disputed.
- Plea dealings: inadmissible unless ∆ opens door
- Past sexual history
Past Sexual History - Feds
Rule: evidence of victim’s past sex history inadmissible in sex crimes case EXCEPT: 1) to show physical evidence came from someone else OR 2) consent of victim.
Evidence of promiscuous reputation never getting in.
In civil cases, evidence of past behavior is only admissible if probative value substantially outweighs risk of prejudice. Reputation only admissible if victim opens door.
Hearsay Exceptions
Not hearsay, so admissible as subs. evid. AND to impeach.
- Prior Statements of Testifying Witnesses (subject to X)
A. PIS – but only as subs. if under oath
B. PCS to rehab or rebut influence charge
C. Prior out-of-ct ID upon perceiving them - Party Admissions
A. Adoptive admissions - iff reasonable person would have objected
B. Co-conspirators or agents - no “bootstrapping”
Hearsay Exceptions - Declarant Unavailable
A. Former Testimony: if under oath and other party had opportunity and similar motive to X
B. Dying Declarations: if decl. believed he was dying imminently and statement concerns circs of death. Only for homicide and civil cases (NY: only homicide)
C. Statements Against Interest: @ time of statement
D. Personal History
E. Party Wrongfully Caused Unavailability: iff you caused unavailability in order to prevent testimony.
“Unavailability”
NY: Crim cases = 1) death, 2) illness, 3) incapacity, 4) outside jx, 5) inability to locate.
Civil cases: ???
Hearsay Exceptions - Availability Irrelevant
A. Present Sense Impression B. Excited Utterance C. State of Mind or Emotional Condition: including future intentions, which are admissible to show intention followed. D. Purposes of Medical Treatment E. Past Record of Recollection F. Biz Records G. Public Records H. Past Convictions of ∆
Past Record of Recollection
Declarant’s availability irrelevant. Reqs the record:
- concern matter about which witness once had knowledge,
- adopted at time witness knew,
- witness vouches for its accuracy, AND
- witness no longer remembers.
Confrontation Clause
RULE: Hearsay will violate CC if it’s testimonial (i.e., made under circs where it’s expected it will be used in prosecution).
RULE2: If testimonial, still comes in if 1) declarant unavailable, and 2) ∆ had prior chance to X.
Forfeiture: if you make declarant unavailable for purposes of preventing their testimony, no CC 4u.
