MBE and NY Distinctions (Evidence) Flashcards Preview

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Flashcards in MBE and NY Distinctions (Evidence) Deck (65):

Admissibility of

Relevant Evidence

Flow Chart

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Credibility & Impeachment

Prior Inconsistent Statements

Prior Inconsistent Statements in NYS


ALL prior inconsistent statements: come in ONLY for impeachment (never for truth)

Even given under oath in formal proceeding


W must be confronted w/ impeaching evidence for immediate opportunity to respond (unless W = Opp. Party)


Hearsay Exceptions:

NYS Unavailability


NYS Grounds for Unavailability (1st 3 from MBE):

Death/Serious Injury
Absence from Jurisdiction
Assertion of Privilege NOT to Testify

(NOT refusal or lack of memory)


Civil Cases: NY has 2 addl grounds of unavailability where former testimony can be used:

W is >100 miles from courthouse
If W is Doc., NO unavailability required


Criminal Cases Limitation on Former Testimony:

Former testimony in prior criminal trial/hearing and Δ and charge must be the same.


Credibility & Impeachment

Broad NYS Rule on Prior Convictions

Generally, NYS allows prior convictions to impeach a W:


Any conviction, misdemeanor OR felony
No balance of prejudice v. probative


BUT Balance IS required in Criminal Case

How old is the conviction?
Nature of crime?  Truthfulness?
Same type of crime? (be careful of prejudice here)


Impeachment & Credibility

What prior bad acts are admissible for impeachment in NYS?

In a court’s discretion, cross examiner can ask a W questions about ANY prior act that tends to show W’s moral turpitude, including vicious, immoral, or illegal acts, and

NOT just acts involving deceit.


Witness Competency

NYS Dead Man’s Statute

Elements of the NYS Dead Man’s Statute


A W is incompetent:

Civil Action
Witness w/ direct legal stake in outcome
Testifying in own interest
Against decedent’s estate (Π or Δ)
Concerning personal transaction or communication w/decedent
UNLESS waiver:

Estate does NOT object
Decedent’s Rep So Testifies
Decedent’s Own Test. Introduced

(pretrial dep before death)


NYS Exception: facts of car accident case in negligence


Credibility & Impeachment

In NYS how does a party impeach

or bolster their own witness?

Bolstering Own Witness

Prior consistent ID only for CRIMINAL trials.
Otherwise, ONLY if attacked.



Impeaching Own Witness (C/L Implicit Voucher)

Only impeach own W with prior inconsistent statements

In writing and signed, OR
Oral testimony under oath

Further limited in CRIMINAL à own W’s current testimony must be affirmatively damaging

NOT just a cloud on credibility (e.g. “I don’t remember”), but affirmatively damaging.


Witness Competency

What are the NY rules on testimony by children

in criminal cases?

In criminal cases, a child under 9, who does NOT understand the oath/affirmation requirement to testify truthfully, MAY testify without the oath/affirmation.


HOWEVER, such evidence, alone, is NOT sufficient for a conviction à corroboration



Learned Treatise in Aid of Expert Testimony in NYS

NYS: NO learned treatise exception to the hearsay rules, so it cannot be read to the jury. 


Direct: CAN form basis for expert’s opinion, and can be spoken about generally


Cross: ONLY for impeachment if opponent expert (1) used, or (2) acknowledges reliability


NY State Exception for

Subsequent Remedial Measures

When are subsequent remedial measures admissible?

Subsequent remedial measures are admissible

In a products liability case
based on strict liability
for a manufacturing defect (not design; something wrong in the process).


Character Evidence (C.E.)

in a Criminal Case in NY

The Victim (V)

Character Evidence About V Relevant to

Mens Rea in Self-Defense Cases


Δ can’t introduce propensity C.E. evidence,


BUT if at time of act, Δ was aware of (1) rep, or (2) specific violent acts, such evidence is admissible to show Δ’s state of mind (fear) to infer reasonable reaction.


Habit Evidence in NY

Personal, non-business habit evidence is inadmissible in NY, with one EXCEPTION:


In a products liability action, to show how Π used a product under her exclusive control (e.g. Π always dips hairdryer in water before using)


Opinion Evidence

NYS adheres to C/L rule banning opinion evidence; Reputation Evidence ONLY


Hearsay Exceptions:

Statement for Purpose of Medical Diagnosis/Treatment

Statement for Medical Diagnosis/Treatment



Statement is Admissible if Made:

To medical personnel (doc, nurse, EMT, psychologist)
Concerning past or present symptoms or general cause of condition
For the purpose of diagnosis/treatment

NYS: NOT diagnosis solely for litigation


Hearsay Exceptions:

Business Records

What are the 5 requirements for admission of a business record?

Business Records


1.Record of ANY type of business (public/private)

2.Made in the regular course of business

3.If business regularly keeps such records

4.At or about the time of the event recorded

5.Made by someone w/personal knowledge

Or from employee w/duty to report
Generally accident reports by employees w/motive to lie are untrustworthy and inadmissible.


Procedural Issues:

Records Custodian to testify to 1-5, OR
Written Certification attesting to 5
Redaction is possible


NYS: ONLY civil actions; produced by non-party in response to subpoena in pretrial discovery


Hearsay Exceptions:

Present Physical Condition

Present Physical Condition



Statement made to anyone about

declarant’s current physical condition.


NYS: requires unavailability



Summary Chart


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Hearsay Exceptions:

Present Sense Impression

Present Sense Impression



Virtually contemporaneous statement made while event is occurring or immediately thereafter (descriptive but not necessarily emotional).


NYS: requires corroborating evidence of the contents of the present sense impression


Hearsay Exceptions:

Declaration of Intent

Declaration of Intent



Statement of intent to do something (1) in the future or (2) w/another person.


NYS: (1) requires corroboration of prior connection between declarant and other person, and (2) requires unavailability.


Hearsay Exceptions:

Excited Utterance

Excited Utterances


Excited Utterance is a Statement

Concerning startling event, while declarant
Is still under stress of excitement it caused.


Can be any actually traumatic event, and significant time can pass so long as declarant is still under stress of excitement.


Hearsay Exceptions:

Present State of Mind

Present State of Mind



Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions (unique knowledge).




Can overlap w/ non-hearsay exclusion for

circumstantial evidence of state of mind.


Hearsay Exceptions:

Former Testimony


Former Testimony


Former testimony of a now-unavailable W, from prior proceeding/dep is admissible against a party who had:


Opportunity and
Motive to Cross W
When issue was essentially the same.


[Don’t confuse w/prior inconsistent statement  under oath in formal proceeding = nonhearsay exclusion.]


Hearsay Exceptions:

Statement Against Interest


Statement Against Interest


Unavailable declarant’s statement is admissible for its truth if it is against:

Pecuniary Interest
Property Interest
Penal Interest


Must Be Against Interest When Made
Can Be Made By ANY W (not just party)


In criminal cases statements by W against his penal interest and which are exculpatory for Δ, must be corroborated.


Hearsay Exceptions:


What happens when

party makes declarant

unavailable by wrongdoing?

Unavailability Procured By Wrongdoing


ANY prior statement of a W is admissible against a party who engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness:

MBE: judge persuaded by preponderance
NYS: judge persuaded by C&CE


Hearsay Exceptions:

Dying Declaration


Dying Declaration


Statement by a now-unavailable declarant is admissible if made:

Under belief of impending & certain death
Concerning cause or circumstances of declarant’s death


When is it available?

MBE: criminal à only homicide; all civil
NYS: ONLY criminal homicide cases


Hearsay Exceptions


Exceptions to the Hearsay Rule


Party Admission
Former Testimony                      UNAVAILABILITY
Statement Against Interest      UNAVAILABILITY
Dying Declaration                     UNAVAILABILITY
Excited Utterance
Present Sense Impression
Present State of Mind
Declaration of Intent
Present Physical Condition
Statement for Med. Treatment/Diagnosis
Business Records


Hearsay Exceptions

Unavailability (MBE)


What are the grounds for unavailability of a W?


Which exceptions require unavailability?

Grounds for Unavailability


Death or Serious Illness
Absence from Jurisdiction
Privilege Not to Testify
Stubborn Refusal To Testify
Lack of Memory


Hearsay Exceptions Requiring Unavailability


Former Testimony
Statement Against Interest
Dying Declaration




Hearsay Exclusions

Which out-of-court prior statements of trial witnesses are admissible for their truth?

5 Witness Statement Exclusions From Hearsay that Can Be Offered for Their Truth:

Prior ID By Witness (NYS: exception)
Prior Inconsistent Statement (oath/formal)
Prior Consistent Statement (rebut charge)
Party Admission (e.g. guilty plea)
Family Pedigree


Hearsay Exceptions

Party Admission

Party Admissions


Rule: any statement by party is admissible against that party (regardless of PK)


Vicarious Liability (MBE) for Principal when agent speaks w/i scope and while employed (even if the agent is not part of the suit).


NYS: agent must have authority to speak re particular matter (spokesperson/middle mgt.


FRE: non-hearsay

NYS: hearsay exception


Privileges: Doctor/Patient

What are the 3 elements

and 1 exception to the doctor-patient privilege?

1.  Confidential Communication/Info

Conf: no 3rd parties present

2.  Acquired by Doctor

Doc: incl certified mental health professes. (CLSW); NYS: dentists, nurses chiropractors

3.  For Purposes of Medical Diagnosis/Treatment

Medical Diagnosis includes litigation
Info necessary for treatment.


EXCEPTION: Patient expressly or impliedly puts mental or physical state at issue:

E.g. PI case; insanity defense
If applied to Δ, Δ must affirmatively put condition at issue.  Simple denial that physical or mental condition caused event is NOT putting condition at issue.




What are 3 out-of-court statements that are routinely admissible as non-hearsay?

An out-of-court statement which is not offered for its truth is not hearsay:


Verbal Act: Legally Operative Words à legal rights/obligations attach b/c words were spoken

E.g. contract formation/repudiation, making a gift, bribe, perjury, misrepresentation, defamation, permission

Effect on Hearer: (notice OR motive)
Circum. Evid. of Declarant’s State of Mind (insane)
Some Prior Statements of Trial W’s: are considered non-hearsay exclusions and are admissible for their truth (e.g. prior ID, prior inconsistent statement (oath), prior consistent statement to rebut charge of recent fabrication)


Privileges: Attorney Client

What are the 5 elements of the attorney client privilege?

Confidential Communication

Intended by CL; no listeners; Joint CL=not protected as to each other.
Communication: NOT physical evid. or docs

Between Attorney/CL

Attny: incl. necessary reps for svcs; & one who CL reasonably believes is attny;
CL: incl. seeking legal advice

3.  During Professional Legal Consultation

Legal advice, NOT social/business

4.  Unless Waived By Client

Only CL can waive b/c CL holds; survives A/C relationship and death

5.  Or Exception Applies: (1) future crime/fraud, (2)    

     legal advice at issue in dispute betw. attny/CL


Privileges: Husband & Wife

What are the two H&W privileges and what is the rationale of each?

Spousal Immunity (Federal Criminal Case)

Spouse CANNOT be compelled to testify against other spouse
Protect harmony of existing marriage
Witness/spouse is holder
Not Available in NYS


Confidential Communications Betw. Spouses

Spouse cannot testify w/o consent about any confidential communication during marriage
Encourage candor between spouses
Non-testifying spouse is holder
Exists until actual divorce.


Neither privilege protects communications/acts in furtherance of crime/fraud OR abuse of family.



Credibility & Impeachment

What are the 7

impeachment methods?

When a party seeks to prove that opposing W is either lying or mistaken:


Prior Inconsistent Statements
Bias, Interest, Motive to Misrepresent
Sensory Deficiencies
Bad Reputation for Truthfulness
Criminal Convictions (felony or any crime relating to truthfulness)
Bad Acts (w/o Conviction) (truthfulness )


Credibility & Impeachment

2 Methods Party Can Use to Rehabilitate Impeached W

W’s Good Character for Truthfulness

Rehab only for lie (not mistake)
Character W: rep, opinion (NYS: rep only)


Prior Consistent Statement to

Rebut Charge of Recent Fabrication

Consistent statement made before alleged motive to lie arose
MBE: for rehab & truth (NYS: rehab ONLY)


Credibility & Impeachment

What are the requirements for admission of evidence of prior bad acts w/o conviction?

If Cross Examiner Has A:


Good faith basis, they can ask W about
Prior acts related to charact for truthfulness
In the court’s discretion.  BUT
Bound by W’s answer, AND
Can’t ask about arrests, just underlying acts


Be careful of intersection w/BIAS where  extrinsic evidence is admissible.




Credibility & Impeachment


Contradiction: when cross examiner tries to get W to admit that mistake lie on direct.


Extrinsic evidence is NOT allowed

when the issue is collateral.


Credibility & Impeachment

What evidence is admissible to show sensory deficiency?

Sensory Deficiency


Anything that can effect W’s perception or memory is admissible.


Can be proven by extrinsic evidence.


Confrontation is NOT required.


Credibility & Impeachment

Impeaching Through Previous Criminal Conviction

Conviction Involving Dishonesty

Any conviction (misdemeanor/felony) involving dishonesty used to impeach.


Other Felony (+1 year in jail)

At court’s discretion (probative v. prejudice).


Other Issues

Conviction/release w/i 10 years

Proof: (1) ask W to admit, or (2) introduce certified copy of record of conviction (no confrontation).
Guilty Plea = party admission (but Δ gets to explain circumstances of the plea)




Credibility & Impeachment

What evidence is admissible to show bias, interest, or 

motive to misrepresent?

Bias, interest, & motive to misrepresent are all critical issues, so parties can use extrinsic evidence to show. 


Confront or prove later (court’s discretion)


Credibility & Impeachment

Bad Community Reputation

or Opinion About W’s Character for Truthfulness

Bad community reputation or witness’ opinion that another W has bad character for truthfulness has to be proven by:


Character witness, and
Extrinsic evidence, about
Target W’s Reputation or W’s Opinion of Target W’s Character for Truthfulness, and
NEVER with specific acts.


(NYS: reputation evidence ONLY)


Opinion Testimony:

Learned Treatise in Aid of Expert

When and how can party invoke hearsay exception to use a treatise in aid of expert testimony?

How, When, and What of Learned Treatise


How: Establish Reliability; 3 Ways:

Opponent’s Expert Admits Reliability
Own Expert Testifies that It’s Reliable
Court Decides Reasonable People Can’t Disagree


When: Direct/Cross

Direct (affirmative use): read into evidence as truth once reliability established
Cross (impeach): read into evidence to contradict


What: read into evidence; not exhibit


(MBE Only)


Credibility & Impeachment

Prior Inconsistent Statements

Prior Inconsistent Statements


Definition: W previously made material statement, orally or in writing, inconsistent w/trial testimony.


Generally, prior statement ONLY for impeachment (b/c it is usually hearsay):

EXCEPT: (1) orally under oath, AND (2) in formal hearing, trial, proceeding, dep.
EXCEPT: statement is part of any hearsay exception (party admission; business record)


No confrontation (later proof by extrinsic evidence OK), but W gets opportunity to respond.




Opinion Testimony:

Ultimate Issues

When can a witness testify to the ultimate issue?

Both expert and lay witnesses can generally address the ultimate issue in a case.



(1) Criminal Case: expert cannot give opinion as to Δ’s mental state

(2) W cannot testify in legal jargon or give conclusive legal opinion, b/c is NOT helpful to jury


Credibility & Impeachment

How and when can a

party impeach or bolster

their own witness?

Bolstering Own Witness

NOT until W’s credibility is attacked
No prior consistent statements (hearsay and limited probative value - lying then, lying now),

EXCEPT Prior Consistent ID by W Subject to Cross


Impeaching Own Witness

When Own W says something damaging: no limits






Writings in Aid of

Oral Testimony

What are the 2 circumstances where writings are allowed to aid oral testimony?

Writings in Aid of Oral Testimony


Refreshing Recollection

If W’s memory fails, shown doc (or anything) to jog mem
NOT offered into evidence
W cannot read from doc
Adversary can (1) inspect, (2) use, (3) introduce


Past Recollection Recorded (Hearsay Excep); 5 Reqs

Doc fails to jog W’s memory
W had personal knowledge when doc created
Writing was (1) made or (2) adopted by W
Writing was made when event fresh in W’s mind
W can vouch for accuracy of doc when made


Doc can only be read into evid., NOT introduced (NYS: introduce); adversary CAN introduce


Opinion Testimony

Expert Witnesses

What are the 4 requirements for expert testimony?

4 Requirements for Expert Testimony


Qualifications: education/experience
Proper Subject Matter: scientific, technical or other specialized knowledge helpful to jury
Basis of Opinion:

Reasonable degree of certainty
3 Permissible Sources: (1) PK, (2) evid. in record through hypo, (3) facts outside record of type relied by experts in field

Reliability (Daubert) 4 Factors: T-R-A-P

T esting of Principles/Methodology
R ate of Error
A cceptance by Other Experts (Frye)

NYS: gen. accepted by relevant experts

P eer Review and Publication


Competency in Civil Action

Elements of the Dead

Man’s Statute (DMS)


(MBE: only applies

if explicitly told)

Dead Man’s Statute


Death seals lips of 1 party, DMS seals lips of other.


4 Elements


Civil action
Interested party incompetent to testify in own interest
Against decedent’s estate
Concerning communications/transactions between decedent and interested party.




(MBE Rule)


Opinion Testimony:

Lay Witnesses

When are lay witnesses’

opinions admissible?

Lay Witnesses


Lay W’s opinions are admissible if:

(1) rationally based on W’s perception (PK); and (2) helpful to the jury in deciding a fact.


Areas Where Lay W’s Opinion Usually Admissible:

Drunk OR Sober
Speed of Vehicle
Sane OR Insane
Emotions of Another Person
Handwriting (Normal Course)


Authentication of Photographs

2 Methods of

Authenticating Photographs

Authenticating Photos


Demonstrative Evidence: W w/personal knowledge à fair & accurate representation
Silent W (e.g. nighttime/surveillance):

(1) camera properly installed and working,

(2) film properly removed and developed,

(3) chain of custody


Witness Competency

What are the 2 requirements

for a witness to be competent?

2 Requirements for Competency


Personal Knowledge (PK)
Oath/Affirmation (understand duty to testify truthfully)

MBE: if child doesn’t understand duty, NOT competent


Document & Photo Evidence

Three Questions for Document/Photo Evidence

Has it been authenticated?
Is it the best-evidence?
Is there hearsay?


Best Evidence Rule

AKA Original Doc. Rule: to prove contents of writing, recording, or photo, original doc. must be produced unless unavailable


Applies to legally operative docs.: (1) creates rights obligations or (2) W is testifying to facts learned solely from doc. (BUT, not when W has personal knowledge independent of doc.)


Original writing is a (1) writing or its counterpart, (2) negative, (3) computer print-out, (4) photocopy (BUT NYS: NOT copy made for litigation).


Excuses for Non-Production: (1) lost & can’t be found w/good faith, (2) destroyed w/o bad faith, (3) can’t be obtained w/legal process (out of juris.).


Exceptions (1) voluminous records (summary if avail for inspect & otherwise admissible), (2) certified copies/public records, (3) collateral docs (not important for case) (e.g. CLSW’s certificate)



Previous Crimes/Misconduct: Non-Character Purposes

Previous Sexual Misconduct in

Sex Crimes Prosec. or Civil Action


In a case alleging sexual assault or child molestation, Δ’s prior specific sexual misconduct is ADMISSIBLE by anyone at

any time and as propensity evidence.





What are 7 self-authenticating documents?

7 Self-Authenticating Documents:

Official govt. docs
Certified Copies (public/private) in Public Office
Trade Inscriptions/Labels
Notarized Document
Commercial Paper (promissory note)
Certified Business Records (hearsay exception)




Don’t forget about hearsay


Previous Crimes/Misconduct: Non-Character Purposes

What is the method of proof for MIMIC non-character evidence?

2 Methods of Proof for MIMIC Evidence

Other evidence sufficient for reasnbl juror to conclude that Δ committed other act

MBE: Preponderance of Evidence
NYS: C&C Evidence


3 Requirements

Pretrial notice to Δ if requested
Weigh probative value against prejudice
Limiting Instruction


Not propensity evid.: can be intro in prosec. c-i-c



What are 4 methods

of authentication

of a document?

When relevance of a writing or picture depends on its source: Authenticate



W’s Personal Knowledge
Proof of Handwriting (Lay W, Expert, Jury)
Ancient Doc.: 20 yrs old (30 in NY); free of suspicion, and found in natural place
Solicited Reply


Conditional relevancy std. à sufficient evidence for a reasonable juror


Character Evidence (C.E.)

in a Criminal Trial

The Victim (V) in a

Sexual Assault Case

Opinion/reputation/acts about V’s sexual propensity is inadmissible.


EXCEPTIONS: specific acts to prove:

Other source of semen or injury
Previous acts w/Δ to prove consent
Or if exclusion would violate due process


Previous Crimes/Misconduct: Non-Character Purposes

When are acts or previous crimes admissible as non-character evidence?

Other Crimes/Misconduct: relevant as non-character evidence to show:

M  otive

I    ntent

M  istake or Absence of Same

I    dentity (M.O.)

C   ommon Scheme/Plan


Same for Criminal and Civil Trials


Character Evidence (C.E.)

in a Criminal Trial

The Victim (V) in a

Self-Defense Case

V’s Character in Criminal Case (MBE)


Δ may intro evidence of V’s violent character to prove conduct in conformity

V not Δ: original aggressor
Reputation/opinion only


Door opens wide to prosecution

V’s good character, AND
Δ’s violent character
Reputation/opinion only


Character Evidence (C.E.)

in Civil Cases

When is propensity character evidence admissible in a civil case?

Civil Cases: propensity C.E. generally inadmissible


EXCEPTION: Very Narrow à where character is an essential element of claim or defense:

Negligent Hiring
Defamation (Libel/Slander)


Any method OK: (1) rep, (2) opinion, (3) acts

BUT, NYS: no opinion




Similar Occurrences

What types of similar occurrences are admissible?

Generally, similar occurrences are inadmissible b/c of pragmatic considerations.  Exceptions:

Similar accidents caused by same event/condition to show existence, causation, or prior notice

BUT, courts reluctant to admit absence of accidents

Motive/intent where relevant
Comparable sales on issue of price/value
Industrial Custom as Std. of Care
Habit/business routine (repetitive response to particular set of circumstances)



Character Evidence (C.E.)

in a Criminal Trial

The Defendant (Δ)

In Criminal Trial C.E. Regarding Δ’s Character


C.E. inadmissible in prosecution’s case-in-chief

Δ CW on Direct: reputation or opinion (opens door)

Must relate to char. trait at issue

Rebuttal: door open

Cross ΔW: specific acts: “Have you heard” Do  you know? (NYS: heard only b/c no opinion).
Call Own CW: reputation/opinion only (no acts)

(NYS: rep only, but convictions on trait in Q. OK)



Weighing Probative Value

What pragmatic considerations might make court exclude otherwise relevant evidence?

Relevant evidence is admissible UNLESS

Exclusionary Rule Applies, OR
Probative Value Outweighed by Pragmatic Considerations, such as

Undue Delay
Waste of Time
Unduly Cumulative


Relevant Evidence: any tendency to make a material fact more or less probable


Policy-Based Exclusions

What are 5 areas in which relevant and otherwise admissible evidence is deemed inadmissible b/c of public policy?

5 Areas Where Public Policy Outweighs Probative Value:


Liability Insurance (for fault, but NOT control or bias if controverted);
Subsequent Remedial Measures (for defect, negligence, etc.; not for ownership or proof of safer condition if controverted);
Settlement Offers (not impeachment for bias); disputed claim (on fault/damages) is required;
Offers and withdrawn Guilty Pleas -civil and criminal (NYS: not civil): offer to plead and facts therein

Plea of guilty admissible in civil as party admission

Offer to Pay Hospital/Medical Expenses (no reqrmnt of dispute, but stmnt. of facts IS admissible).