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  1. Relevance
    1. Definition
      1. The tendency of evidence to prove or disprove a material issue
      2. There are two relevance issue
        1. Logical relevance: FRE 401
        2. Policy based relevance: FRE 403
    2. Logical relevance
      1. Any tendency to make a material fact more or less probable likely without the evidence: FRE 401
      2. You only worry with logical relevance when it involves:
        1. Some other time, event, or persons
          1. The evidence is out.
      3. 8 situations where the evidence is in even though it concerns some other time, events, or persons.
        1. To prove complicated causation situations
        2. Prior accidents of claims
          1. Of Plaintiff
            1. The defendant may not show those to infer conduct if the particular instance except
              1. Fraudulent nature to show common scheme of fraud
              2. Damage of plaintiff
          2. Involving the same instrumentalities:
            1. It can be shown if it occurs under the same circumstances.
            2. It is admissible because it infers notice; it shows it was dangerous.
        3. The intent/ state is an issue
        4. To rebut a defense of impossibility
        5. Comparable sales to establish value
          1. Same geo,
          2. Same time.
        6. Habit Evidence
          1. NYD
            1. Habit evidence is usually inadmissible for the purpose of raising inference that same amount of care was exercised on occasion in question.
            2. However, in products liability cases, habit evidence is admissible to establish plaintiff used product in a particular way.
            3. In a professional or business context, habit is admissible
          2. It is admissible
            1. Definition
              1. Habit describes one's regular response to a specific set of circumstances.
            2. Specific, detailed conduct
            3. Recurrence
              1. Beyond 5 times, it is admissible.
              2. Words that hint to it on MBE:
                1. Always, invariably, automatically
        7. Industrial or business routine
          1. It is like habit.
          2. It is used to infer that on that particular occasion, the party acted in conformity
        8. Industrial custom as evidence of the standard of care.
          1. It is not used as conclusive evidence.
    3. Policy-based relevance:
      1. Evidence is excluded because: FRE 403
        1. It is a stricter standard than FRE 403
          1. When the probative value will be outweighed by prejudice:
            1. Confusion of issues
            2. Misleading the jury
            3. Undue delay
            4. Waste of time
            5. Cumulative evidence
            6. Unfair prejudice.
          2. Unfair surprise is NOT a ground to exclude the evidence.
      2. Liability insurance: FRE 411
        1. It is NOT admissible to show any kind of negligence or to show the ability to pay
        2. It IS admissible:
          1. To prove ownership and control when ownership and control are in issue
          2. When it is relevant to impeach a witness by showing interest, bias on the part of the witness
      3. Subsequent remedial measures: FRE 407
        1. NYD
          1. In manufacturing defect cases, subsequent remedial measures ARE admissible to establish defectiveness of product when made
          2. In a design defect or failure to warn case, post-manufacturing modifications are admissible ONLY to defeat the manufacturer's claim that at the time of the manufacture such modifications were not feasible.
        2. They are NOT admissible to show negligence or comparable conduct
        3. NOT admissible for strict liability cases
        4. They ARE admissible:
          1. To prove ownership and control when it is issue
          2. To rebut or to impeach
            1. To show the feasibility of a precautionary measure when feasibility is in controversy
      4. Settlements offers: FRE 408
        1. NYD:
          1. Admissions of distinct and independent facts discussed during negotiations ARE admissible
        2. NOT admissible. It includes an offer to compromise a claim that is disputed as to liability/ amount, all plea bargains, an admission of fact/ liability made in the course of negotiations.
        3. Conditions:
          1. There must be a claim
          2. The claim must be disputed as to liability or amount
          3. An offer to pay hospital/ medical expenses is NOT admissible
            1. But an admission of fact before offering to pay IS admissible.
    4. The use of character evidence, a special relevance problem
      1. NYD:
        1. How defendant proves character in criminal cases
          1. Character witness may testify about the defendant's REPUTATION in the community and only to those traits that are relevant to the crime involved.
        2. ONLY REPUTATION testimony is allowed.
        3. Victim in criminal cases
          1. Accused may offer evidence that victim had a general reputation for violence, vindictiveness and quarreling to prove that the accused acted upon reasonable belief that his life was in danger.
          2. Evidence of Specific acts of violence IS admissible
          3. Accused must first offer evidence of self-defense and must have known of the victim's reputation before the act.
          4. However, the character evidence is NOT admissible to prove that the victim was the aggressor.
        4. Victim in rape cases
          1. The following evidence relating to victim's sexual conduct IS admissible if it has a proper bearing on the defendant's guilt or innocence:
            1. Victim's conviction for prosecution within three years prior to the sex offense that is the subject of the prosecution; or
            2. Rebuttal evidence of the victim's failure to engage in sexual intercourse, deviate sexual intercourse or sexual conduct during a given period of time.
        5. Prior acts of sexual assault or child molestation
          1. Does NOT allow prior acts of sexual assault or child molestation.
      2. There are 4 basic questions:
        1. What is the purpose of the use of the character evidence?
          1. The character of the party is directly one of the elements
            1. Direct evidence
          2. Character as circumstantial evidence to infer conduct at the time of the litigated event
          3. Character to impeach the credibility of a witness
        2. What technique/ method can be used?
          1. Specific acts of conduct
          2. Opinion testimony
          3. By reputation evidence
        3. What kind of case?
          1. Civil
          2. Criminal
        4. For what trait?
          1. You CANNOT prove a general character.
          2. It HAS to be the substantive trait in issue.
      3. Character in Civil cases
        1. NO character in civil cases as circumstantial evidence to infer conduct
        2. If at issue:
          1. Character IS admissible
            1. Only situation where it exists
              1. The defamation action where truth is alleged
          2. You may use any of the 3 techniques to show character.
      4. Character in criminal cases
        1. No bad character evidence at the initiative if the prosecution if the purpose is to show criminal disposition as to infer guilt UNLESS
          1. The defendant shows good character evidence in order to show innocence.
        2. You cannot use specific acts
        3. Reputation and opinion
        4. The prosecution will rebut:
          1. Cross-x the accused own good character by inquiring as to any specific acts which
            1. NYD:
              1. would tarnish the reputation of the defendant
            2. MBE
              1. Would affect the opinion of the witness.
          2. The prosecution can call it sown witness as to bad character
            1. NO specific acts
            2. Reputation and opinion
          3. Once the defendant has opened the door, the prosecution can show prior conviction as to the particular trait.
        5. Victim character
          1. Defendant is being prosecuted for murder or assault and argues self-defense
          2. The defendant can tale the initiative as to bad character of the victim
          3. The victim was the first aggressor
            1. Reputation and opinion
            2. NO specific acts
          4. It can be proved that the accused defendant was in reasonable fear for his safety ad acted reasonably
            1. Any time: no limitation
          5. Sexual misconduct
            1. The defendant CANNOT attack the victim's sexual behavior or disposition
          6. Exceptions
            1. NO reputation or opinion
            2. Specific prior acts of sexual intimacy by the complainant may be shown ONLY :
              1. To show that a 1/3 party is the source of semen, injury;
              2. Prior acts between victim and defendant; or
              3. The exclusion of which would violate his constitutional rights
            3. Procedure:
              1. There must be advanced notice; in camera hearing the judge may exclude it by balancing its value against prejudice.
      5. Categories relevant and admissible as independent character
        1. Motive
        2. Intent / state of mind is an issue
        3. Absence of mistake
        4. Identity is an issue
          1. Modus operandi evidence
            1. Distinctive, unusual in its details
              1. Signature
        5. Common plan, scheme
        6. MIMIC
          1. It applies in both civil and criminal cases
        7. FRE 403 still applies
      6. Sexual assault and child molestation
        1. Evidence of defendant's prior acts of sexual assault or child molestation ARE admissible.
  2. Judicial notice
    1. Judicial notice of fact
      1. The recognition of a fact as true without formal presentation of evidence.
      2. Facts appropriate for judicial notice
        1. One not subject to reasonable dispute that is either
          1. Generally known within the territorial jurisdiction of the trial court; or
          2. Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
        2. Matters of common knowledge in the community: Notorious facts
        3. Facts capable of certain verification: manifest facts
        4. Judicial notice of scientific principles
          1. It is a type of manifest fact
          2. Sufficiently well established.
          3. Conclusiveness of test results
            1. Some have achieved such universal acceptance that not only are the test results admissible but they are conclusive.
        5. Judge's personal knowledge
          1. Cannot take into account.
      3. Procedural aspects of judicial notice
        1. Requirement of a request:
        2. Judicial notice by appellate court
          1. It can be taken for the 1st time in the appellate court.
        3. Conclusiveness of judicial notice
          1. ONLY in civil cases.
      4. Adjudicative test and legislative facts
        1. The FRE only governs judicial notice of adjudicative facts
    2. Judicial notice of law: mandatory or permissive
      1. Classification depends on accessibility of source materials
      2. Mandatory judicial notice
        1. Federal public law
        2. State public law
        3. Official regulation
      3. Permissive notice
        1. Law of foreign countries, essentially.
  3. Real evidence
    1. In general
      1. Addressed directly to the trier of fact
    2. Types of real evidence
      1. Direct
      2. Circumstantial
      3. Original
      4. Prepared
    3. Genera conditions of admissibility
      1. It must be relevant to the proposition in issue
      2. Authentication
        1. The object must be authenticated
        2. Recognition testimony
        3. Chain of custody
          1. Unbroken chain of possession must be shown
      3. Condition of object: useful probativeness
        1. If it is significant
          1. It must be shown to be substantially in the same condition at the trial
      4. Legal relevance:
        1. Problems concern:
          1. Physical inconvenience of bringing the object in the courtroom
          2. Indecency or impropriety; or
          3. Undue prejudice where the probative value of the object or exhibit is outweighed by the danger of unfair prejudice.
    4. Particular types of real proof:
      1. NYD:
        1. Exhibition of child in paternity suit
          1. Jury may not consider physical resemblance on the issue of family relationship.
          2. However, child may be produced and exhibited for purposes of determining age.
        2. Jury view of the scene
          1. The judge must be present at a jury view in a criminal case.
          2. The prosecutor, defendant, and defendant's counsel are entitles as of right to attend
          3. Unauthorized visit to scene by juror in criminal cases is inherently prejudicial and requires reversal.
          4. Unauthorized visit in civil cases may require reversal.
          5. Lie detectors and voice stress analysis
            1. NOT admissible
          6. Blood grouping and HLA testing
            1. In a dispute over paternity: the results of blood grouping test may be received into evidence where definite exclusion of the alleged father is established by the test.
            2. The results of a human leukocyte antigen blood tissue test and the DNA genetic test are admissible to aid in determining paternity unless exclusion is already established by another blood test, 95% chance that the father is the father
              1. it’s a rebuttable presumption of paternity
      2. Reproductions and explanatory real evidence
        1. Reproductions
          1. ARE admissible IF their value is not outweighed by the danger of unfair prejudice
        2. Explanatory
          1. Permitted at trial but NOT admissible in evidence.
      3. Maps, charts, models
        1. Authentication necessary
        2. Admissible
      4. Exhibition of child in paternity suits
        1. Whether or not it is the race of the father.
      5. Exhibition of juries
        1. In personal injury or criminal cases, it is usually permitted.
      6. Jury view of the scene
        1. They are permitted in both civil and criminal cases
        2. The judge need not be present.
      7. Demonstrations
        1. Demonstrations showing effect of bodily injury
          1. Excluded where the exhibition would reveal hideous wounds.
        2. Demonstrations under sole control of witness are excluded
        3. Scientific experiments
          1. The conditions are substantially similar to those that attended the original event; and
          2. The experiment will not result in undue waste of time or confusion of the issues.
  4. Documentary evidence
    1. It must be relevant to be admissible
      1. It may be excluded if it violates rules of competency
    2. Authentication:
      1. NYD:
        1. Requires documents to be over 30 years old.
      2. The document must be authenticated
        1. Quantum of proof:
          1. Sufficient to support a finding by the jury of genuineness.
        2. Authentication by pleadings or stipulation
        3. Evidence of authenticity
          1. Admissions
            1. Admitted to it or acted upon it
          2. Testimony of eye witness
            1. A writing may be authenticated by testimony of one who sees it executed or hears it acknowledge
          3. Handwriting:
            1. Any lay person who is familiar with the signature
              1. But CANNOT make a comparison
              2. CANNOT become familiar with the signature for trial purposes.
            2. Expert:
              1. Compare the disputed handwriting with a genuine signature
              2. Jury
              3. Can do the same as the expert
        4. Ancient documents
          1. 20 years old
          2. is in such condition as to be free from any suspicion concerning its authenticity; and
          3. Was found in place where such writing, if authentic, would likely be kept.
        5. Reply letter doctrine
        6. Photographs
          1. Accurate representation of facts
            1. It is not necessary to call the photographer to authenticate the photograph
              1. Someone who is familiar with the surroundings is sufficient
          2. Unattended camera: proper operation of camera
          3. X-ray
            1. Machine itself was in proper working order and the operator was qualified to operate the machine.
      3. Authentication of oral statements
        1. As to identity of the speaker
        2. Methods of authentication
          1. Voice identification
          2. Telephone conversations
            1. He recognized the voice of the part on the other end of the line
            2. The speaker has knowledge of certain facts that only a particular person would have
      4. Self-authenticated documents:
        1. Certified copies of public records
        2. Official publication
        3. Books, pamphlets issued by official dept
        4. Newspapers, periodicals
        5. Tags, inscription, labels affixed in the course of business indicating ownership or control
        6. Acknowledged documents
        7. Signatures on commercial papers as provided by the UCC.
    3. Best Evidence Rule
      1. NYD
        1. Narrows the rule from all duplicates to only photographic copies that are made , kept or recorded in the ordinary course of business
      2. It only applies to:
        1. Writings,
        2. Films
        3. Photos,
        4. X-rays
        5. Recording
      3. It requires that a party seeking to prove the CONTENT of a writing must either
        1. Produce the original
        2. Account sufficiently for its absences
          1. If sufficient
            1. A copy
            2. A testimony.
      4. When does it apply
        1. When the writing is a legal operative document
          1. Wills, deeds, contracts, divorce decree
        2. The witness's sole knowledge comes from the documents
        3. On Exam: 3 objections
          1. Authentication
          2. Best evidence rule
          3. Hearsay
            1. Exceptions:
              1. admissions of a party
              2. Recorded recollection
              3. Business record.
      5. When does it NOT apply
        1. When the fact to be proven has an existence independent from the writing
          1. Birth / death certificate
        2. An exception
          1. The collateral document exception
            1. The BRE does not apply to minor documents
        3. Modifications to the rule
          1. Public records
            1. You cannot get the original: a certified copy of the public record will suffice
          2. The voluminous documents
            1. They cannot conveniently be examined in court
              1. Charts, summary will suffice so long as the originals are available
            2. Requirements
              1. Voluminous
              2. Opposing counsel must have equal access
              3. They must be independently admissible
                1. The hearsay rule applies.
      6. Precisions
        1. What is an original
          1. Every copy is a duplicate
          2. The only thing that is not a duplicate is a handwriting copy
          3. It is as good as the original unless:
            1. The genuineness of the original is disputed; or
            2. It is unfair to admit the duplicate
        2. Sufficient foundation to have the copy in:
          1. Loss or destruction of original
          2. Original outside the jurisdiction and not obtainable
          3. Original in possession of adversary who, after notice, fails to produce.
        3. Court and jury
          1. Court
            1. Determination of fact that determines the admissibility of duplicates
          2. Jury
            1. Whether the original ever existed
            2. Whether a writing, recording or photograph produced at trial is an original; and
            3. Whether the evidence offered correctly reflects the contents of the original.
    4. Parol evidence rule
      1. Definition
        1. If an agreement is reduced into writing, that writing is the agreement and hence constitutes the only evidence of it
        2. All prior or contemporaneous negotiations or agreements are merged into the written agreement.
      2. Substantive and evidentiary aspects
        1. Impact on materiality
      3. Nonapplicability of parol evidence
        1. Completion of incomplete or ambiguous contract
          1. Parol evidence is admitted to complete the agreement
        2. Reformation of contract
          1. The parol evidence rule does not apply
        3. Challenge to validity of contract
          1. The parol evidence rule does not apply to show:
            1. Fraud, duress or undue influence inducing consent;
            2. Lack of consideration;
            3. Illegality of subject matter;
            4. material alteration;
            5. nondelivery, if the agreement required delivery for the instrument to be effective; or
            6. Execution or delivery upon a condition precedent, as long as the parol condition does not contradict the writing.
      4. Subsequent modifications of written contract
        1. The rule only applies to things prior to the agreement, not after the agreement.
  5. Testimonial evidence
    1. Competency of witness
      1. NYD:
        1. Civil case
          1. Unsworn testimony of child is inadmissible
        2. Criminal case
          1. Child under 12 or a person who cannot understand nature of oath due to mental defect may testify without being sworn, provided that the child or the mental incompetent has sufficient intelligence to justify reception of evidence
            1. Conviction cannot be had upon such unsworn testimony alone.
      2. A witness is competent if he had the ability:
        1. To perceive;
        2. Remember;
        3. Communicate;
        4. Sincere: oath or affirmation
      3. C.L had a lot of incompetencies
        1. Religious belief, age, married women;
      4. The FRE have no such incompetency rules.
        1. There is no set age under FRE that would render an infant incompetent.
          1. It's a case by case determination.
        2. Judicially declared incompetent:
          1. No problem if he can testify
        3. Conviction
          1. Not a bar
        4. Interest
          1. Not a bar except for the dead man statute.
      5. The NY dead man Statute
        1. Requirements:
          1. The witness must be an interested party
          2. The witness must testify FOR his interest
          3. The witness must testify against the decedent or the representatives of the decedent.
          4. The subject matter of the suit must be the heart of the testimony
          5. It ONLY applies in civil cases
          6. There can be a waiver:
            1. Failure to object
            2. Decedent's testimony gets in for the jury to hear
        2. On MBE, they have to tell you that the jurisdiction has a dead man statute
        3. Exception
          1. A survivor is competent to testify as to facts of negligence or contributory negligence involved in an accident that arose out of the operation or ownership of a motor vehicle, aircraft or vessel.
          2. This is so even though one or more of the parties is the representative of a deceased or mentally ill person.
    2. For of examination of witness
      1. Leading questions
        1. Generally objectionable
        2. When permitted on direct examination
          1. To elicit preliminary or introductory matter;
          2. When the witness needs aid to respond
          3. When the witness is hostile, an adverse party, or a person identified with an adverse party.
      2. Improper questions
        1. Misleading
        2. Compound
        3. Argumentative
        4. Conclusionary
        5. Assuming facts not in evidence
        6. Cumulative
        7. Harassing or embarrassing
    3. Use of memoranda by witness
      1. General rule
        1. Witnesses are not supposed to read in court a previously prepared testimony because it is hearsay and offered to prove the truth of the matter asserted.
      2. Exception 1: refreshing recollection:
        1. When the witness draws a blank.
        2. The writing does not come into evidence.
          1. No objection applies
        3. It can actually be anything
        4. You have to show opposite counsel the writing used to refresh.
        5. Opposite counsel can enter the writing into evidence.
        6. No foundation is necessary
      3. Exception 2: Recorded recollection
        1. The witness does not remember and you cannot make him remember.
        2. The writing will be entered into evidence.
        3. Need a proper foundation
        4. Requirements:
          1. The witness had personal knowledge at one time
          2. The writing was made by the witness or made under her direction or that it was adopted by the witness
          3. The writing was timely made when the matter was fresh in the mind of the witness
          4. The writing is accurate
          5. The witness has insufficient recollection to testify fully and accurately.
        5. It's an exception to the hearsay rule.
    4. Opinion testimony
      1. NYD
        1. Opinion must be supported by proper factual basis
          1. An expert witness may also base his opinion on matters no in evidence if
            1. The information comes from a witness subject to full cross-x on the trial.
        2. Scientific evidence
          1. The Frye Test:
            1. Scientific methodology underlying the opinion must be sufficiently established to have gained general acceptance in the particular field.
        3. Authoritative texts and treatises
          1. Scientific treatises or writings are excluded as hearsay when offered as proof of facts asserted therein.
          2. However, on cross-x, scientific texts may be used to discredit the expert's opinion.
      2. Lay opinion is admissible if
        1. Rationally based on perception of the witness: personal knowledge
        2. Helpful to the trier of fact
          1. It is NOT helpful is conclusionary.
      3. Expert testimony
        1. Requirements
          1. The subject matter must be appropriate to expert testimony
            1. Helpfulness.
          2. The witness must be qualified
            1. It does not mean academia:
              1. A skilled person will suffice.
          3. The witness must possess reasonable certainty/ probability
            1. It must be elicited in a way that shows that is more than mere conjecture
          4. The opinion must be supported by a proper factual basis
            1. The facts underlying the opinion were in the personal knowledge of the expert.
            2. Facts given in court in evidence through a hypo
              1. All the facts must be into evidence
            3. The expert may based his opinion on facts that would not be admissible as long as the facts are of a type reasonably relied upon by experts in making out the court decisions.
        2. Treatise, texts, authoritative articles
          1. You have to lay the proper foundation
          2. Not likely to be cross-x if:
            1. The opposing expert relied upon it
            2. Elicited an admission on cross-x.
            3. You can call your own expert witness and read the treatise that contradicts the other expert's.
      4. Judicial notice
        1. MBE:
          1. You don't have to wait upon the opposing counsel's expert.
          2. You can use it to support your own expert testimony even if there is no opposing expert.
          3. It comes in for its truth
        2. NYD
          1. It can only come in for impeachment purposes
          2. There must be an expert on the stand
          3. It is read to the jury, but the jury does not see it.
    5. Cross-examination
      1. Cross-x
        1. Absolute right to conduct a cross-x any live witness who testified against you
        2. If you cannot cross-x, move to strike the direct
        3. Cross-x is limited by the scope of the direct
          1. Implied or express issue raised on direct.
      2. Collateral matter doctrine
        1. Definition
          1. It is any evidence that, besides the contradiction, would be inadmissible.
        2. The cross-examiner is bound by the answers of the witness
        3. He cannot bring extrinsic evidence as to collateral matters.
    6. Credibility- Impeachment
      1. NYD
        1. Who may impeach
          1. Civil case
            1. No impeachment of one's own witness except by prior inconsistent statement, either in writing and signer by the witness or under oath
          2. Criminal case
            1. Impeachment of one's own witness permitted only when the testimony of the witness did affirmatively damage the case of the party calling him.
        2. Conviction of crime - type of crime
          1. Civil case
            1. Conviction of any crime may be shown or inquired about even if the crime does not involve serious immorality
          2. Criminal case
            1. ONLY the defendant is entitled to a pre-trial hearing to determine admissibility of prior convictions
            2. All crimes can be used to impeach.
              1. Judge has discretion to exclude.
        3. Means of proof
          1. An admission by the witness on cross-x that he has been convicted does not preclude the cross-examiner from questioning the witness further to ascertain the criminal act that was the basis of the conviction.
        4. Specific instances of misconduct - bad acts
          1. Broader standard and allows inquiry into immoral, vicious or criminal acts that effect credibility.
      2. Accrediting or bolstering
        1. General rule:
          1. No bolstering until witness has been impeached
        2. Exceptions
          1. Timely complaint
            1. When the witness made a timely complaint
          2. Prior identification.
            1. Admissible to bolster and as substantive evidence too.
      3. Any party may impeach
      4. Prior consistent statements
        1. Admissible if it is a prior identification statement made by a witness under FRE
          1. In court identification
          2. Can say that he was identified in a line-up 2 days after the crime
            1. Admissible under FRE and NY.
          3. Line-up but police officer is testifying and was present at the time of line-up
            1. FRE: admissible
            2. NYD:
              1. NOT admissible
                1. A third party cannot testify to a prior consistent identification UNLESS the witness who made the identification lacks present recollection
          4. No present recollection on the stand, then the officer takes the stand
            1. FRE and NY: admissible
          5. The witness is not there, the police takes the stand:
            1. NOT admissible under FRE and NY
      5. The methods
        1. The use of prior inconsistent statement
          1. General rule
            1. A witness can be impeached by a prior inconsistent statement if it is different and in contradiction with the present testimony.
          2. It does not come in for its truth
            1. If it was, there would be a hearsay problem
          3. MBE
            1. A prior inconsistent statement which was given under oath and as part of a formal trial, proceeding or hearing is admissible for its truth
              1. Ex: grand jury transcript
          4. You can use extrinsic evidence
          5. Lay a foundation
            1. You must give the witness the opportunity to admit, deny or explain the prior inconsistent statement.
              1. NYD: must be before you get the prior inconsistent statement in
              2. MBE: can be after the prior inconsistent statement is in.
          6. A prior inconsistent statement by a party is always an admission and comes in for its truth: not hearsay.
        2. A showing of bias, interest, motive to misrepresent
          1. You can use both extrinsic evidence and cross-x
            1. Need foundation for extrinsic evidence
        3. Prior convictions of crimes
          1. FRE
            1. Any crime involving dishonesty or false statement is useable to impeach any witness in any case.
              1. No discretion to exclude
              2. Dishonesty:
                1. Deceit or false statement
                2. Robbery is not a crime of dishonesty
                3. It has to be larceny by trick, fraud, perjury, embezzlement
            2. A crime not involving dishonesty
              1. A felony punishable by more than one year
              2. There is discretion to exclude
                1. The probative value outweighs the prejudicial effect.
            3. The crime cannot be older than 10 years after the release
              1. It applies to any crime
          2. You can use extrinsic evidence but it has to be the certificate of conviction:
            1. NO need of foundation
        4. Bad acts
          1. Specific acts which did not result in convictions
          2. It has to relate to the truthfulness
            1. It has to concern a prior deceit or false statement.
          3. No extrinsic evidence is allowed.
          4. Only cross-x is permitted.
        5. Bad reputation for truth and veracity
          1. You can use extrinsic evidence
            1. This is the only way to do it.
              1. A witness
                1. He can only testify as to reputation and opinion.
      6. Rehabilitation
        1. Good reputation for truth and veracity
          1. You can after appropriate impeachment
        2. The prior consistent statement
          1. General rule
            1. It cannot come in until appropriate impeachment
          2. It is the prior consistent statement to rebut a charge of recent fabrication or improper motive or undue influence.
          3. The prior inconsistent statement must have been made before the time of the alleged fabrication
          4. It comes in for its truth.
    7. Privileges
      1. It is not applicable:
        1. The future crime/ fraud exception
          1. NO privilege will be allowed
        2. No privilege if the client/ patient affirmatively outs the communication in issue
        3. When there is a falling down between the parties.
      2. The federal courts recognize:
        1. The attorney-client privilege
        2. The spousal communication privilege
        3. The psychotherapist/social worker-patient privilege
      3. Attorney- client privilege:
        1. NYD
          1. Nonapplicability of the privilege: Adds the following to the majority rule
            1. An attorney is required to disclose information regarding the preparation, execution and revocation of any will or relevant document in actions involving probate, validity or construction of a will.
            2. An attorney can be required to reveal the identity of his client unless identity was intended - for good cause- to be confidential; and
            3. In a custody battle, an attorney must divulge the whereabouts of a client who has absconded with the child.
          2. Waiver of the privilege: NY adds the following to the majority rule:
            1. Insanity plea: a plea of innocence by reason of insanity constitutes a complete and effective waiver of any claim of privilege, including attorney-client privilege.
        2. definition
          1. Confidential communication between attorney and client made during professional legal consultation are privileged from disclosure unless waived by client or representative of the deceased client.
        3. Requirements
          1. An attorney:
            1. Any person working for the firm
          2. Client
          3. Communication:
            1. No privilege for existing documents or real evidence
            2. During professional legal consultation
              1. The client must have intended to establish a professional legal relationship
        4. There is no privilege if the client came solely for notary public reason/ being an attesting witness.
        5. It survives the client.
        6. It is not applicable
          1. The joint parties:
            1. If 2 or more communicate with attorney about a matter common to both clients. It applies between the parties.
            2. But if a third party sues, the privilege applies.
          2. There is no privilege among those who claimed through the same deceased person.
        7. Work product:
          1. Documents prepared by attorney for its won use are not protected by the privilege.
          2. They may be protected by the work-product rule.
            1. Not discoverable except in case of necessity and undue hardship.
      4. The physician - patient privilege:
        1. NYD:
          1. Nonapplicability of the privilege: Adds the following to the majority rule
            1. State and federal record-keeping and reporting requirements regarding Medicaid patients supersede the privilege to the extent necessary to satisfy public interest in proper use of Medicaid funds:
            2. A dentist is required to disclose info necessary for identification of a patient; and
            3. A physician, dentist, chiropractor or nurse is required to disclose info indicating that a patient under the age 16 has been the victim of a crime.
          2. Also applicable in criminal cases
          3. Patient holds privilege: patient dead: physician required to disclose if:
            1. There is no objection
            2. The privilege has been waived by the personal representative, surviving spouse or the next of kin;
            3. In litigation, the interests of the personal representative are adverse to those of the decedent's estate and the privilege is waived by any party in interest; or
            4. Where the validity of the decedent's will is in question and the executor named in that will waives the privilege, surviving spouse, or any heir at law; next of kin of party in interest.
          4. Psychologist/ psychotherapist/ social worker-client privilege:
            1. A psychologist, psychotherapist, social worker and their support staff may not reveal communications with, or advice given to, a client except where the client is a child under age 16 who has been the victim of a crime.
        2. The patient has a privilege against the disclosure of confidential info acquired during a legal professional relationship entered into for the purpose of obtaining treatment
        3. it has to be for a treatment
          1. If it is a doctor hired by the attorney, sent by insurance or ordered by the court, no privilege attaches.
        4. it has to be confidential
          1. It has to be germane to diagnosis or treatment
        5. Exceptions
          1. The privilege does not apply in a personal injury case or when the body's condition is in issue.
      5. Spousal privilege
        1. NYD
          1. NY does not recognize spousal immunity
          2. Exceptions
            1. Neither spouse is competent to testify against the other in an action founded upon adultery except to prove the marriage, disprove the adultery or disprove a defense after evidence tending to prove such defense has been introduced; and
            2. Neither spouse is competent to testify to nonaccess during wedlock where the effect would be to show the illegitimacy of a child except in a foliation proceeding if complainant mother is married or in a proceeding to enforce child support
        2. One spouse cannot be compelled to give adverse testimony in a CRIMINAL case.
        3. There must be a valid marriage at the time of trial.
          1. It does not matter if the events occurred prior to the marriage.
        4. The privilege ONLY belongs to the witness-spouse
          1. If he wants to testify, the other spouse cannot refrain her from doing so.
        5. It applies to all testimonies not only confidential communications.
      6. Confidential communication privilege
        1. A husband/wife shall not be required without his consent/ shall not be allowed to disclose a confidential communication made by one spouse to the other during the marriage
        2. It only applies to confidences
        3. The witness must take the stand and refuse to answer any question alleging the privilege
        4. It outlasts marriage
        5. It applies to both civil and criminal cases
        6. Either spouse has the privilege
      7. Professional journalist privilege
        1. Absolute statutory privilege for confidential news that is published or broadcast:
          1. News obtained in confidence: or
          2. Identity of the source of such news
        2. Qualified protection for unpublished info not obtained in confidence, unless party seeking news has made clear and specific showing that the news is:
          1. Highly material and relevant;
          2. Critical or necessary to the maintenance of a party's claim or defense; and
          3. Not obtainable from any alternative source.
      8. Rape crises counselor privilege
        1. Same as social worker privilege above except that there is no exception here where the client is under 16.
  6. Miscellaneous
    1. What law applies as to matter of evidence?
      1. There are 3 areas of evidence law where state substantive law applies instead of federal procedural law
        1. Burden of proof and presumptions
        2. Rules regarding the competency of witnesses
        3. Privileges
      2. If the case is a fed question: federal law applies
      3. If it is a diversity case, state substantive law applies.
    2. Preliminary q of fact upon which admissibility depends
      1. Generally decided by the judge
        1. He is not bound by the rules and can actually look at hearsay evidence: sufficiency standard.
      2. Questions decided by jury
        1. Those where the answer to the preliminary question determines whether the evidence is relevant at all.
    3. Burden of proof:
      1. NYD: clear and convincing proof:
        1. To prove fraud
        2. In actions to recover on a contract to render services to one now deceased
        3. T prove mistake
        4. To prove that a gift of property has been made by one now deceased;
        5. To establish grounds for reformation or rescission;
        6. To establish paternity; and
        7. To establish claim for adverse possession.
    4. Presumptions
      1. Effect: shift burden of production
      2. Distinguish presumptions from inferences and substantive law
        1. Permissible inferences:
          1. Res ipsa loquitur
          2. Spoliation or withholding evidence
          3. Undue influence
        2. Presumptions in criminal cases
          1. Accused is presumed innocent
        3. Other presumptions in outline p 65.
  7. Hearsay
    1. What is hearsay
      1. Definition
        1. The out of court statement which is offered for the purpose of establishing the truth of the matter contained in the statement.
      2. 3 questions
        1. Is it an out of court statement?
        2. What is the out of court statement?
        3. Is it being offered for the purpose of establishing the truth?
          1. If yes to those three:
            1. Inadmissible unless an exception applies
      3. The declarant is the one making the out of court statement.
      4. The witness hears it and wants to tell the court.
      5. Only a human being:
        1. The hearsay rule does not apply to animals or machines.
      6. It does not apply to nonassertive conduct.
      7. Instead of a witness, it can be a writing of the declarant
    2. What is NOT hearsay
      1. The verbal act/ the legal operative act
        1. " did the defendant really say those words"
          1. words of offer, acceptance, defamation, conspiracy, bribery, misrepresentation, cancellation, permission
      2. to show the impact/ effect on the reader/hearer
        1. notice,
        2. knowledge
        3. good faith
        4. motive
      3. Circumstantial evidence of the speaker's state of mind where it is relevant.
        1. The statements are only offered to show that the declarant believed the fact to be true
          1. Insanity or knowledge are the best examples.
    3. There is one situation where the rationale will mislead:
      1. The declarant/witness are the same person
        1. It is his statement that is offered for its truth :
          1. Prior statement
      2. Prior statement that are not hearsay
        1. A prior inconsistent statement made under oath as part of a formal trial or proceeding.
          1. NYD:
            1. Prior inconsistent statement made under oath is admissible in both civil and criminal cases to impeach the witness's testimony.
            2. They are not admissible as substantive evidence in criminal cases
        2. l, proceeding
        3. A prior consistent statement to rebut a charge of recent fabrication, undue influence.
        4. A prior statement of identification made by the witness
    4. Preliminary matters to exceptions
      1. Unavailability defined
        1. NYD
          1. Does not recognize a witness who:
            1. Refuses to testify despite court order; or
            2. Testifies to lack of memory of subject matter.
          2. A witness may be deemed unavailable by virtue of the Dead Man Act.
        2. MBE
          1. Privilege
          2. Refuses to testify despite court order
          3. Testifies to lack of memory if the subject matter
          4. He is unable to be present or testify because of death or physical/mental illness: or
          5. He is absent and the statement's proponent has been unable to procure his attendance or testimony by process or other reasonable means.
    5. Exception 1: Admission of a party:
      1. NON hearsay under FRE.
      2. NYD:
        1. It is an exception to the hearsay rule
      3. Definition:
        1. It is a declaration of party offered against that party
      4. It is a declaration inconsistent with the party's present position at the time of trial.
      5. Personal knowledge is not required.
      6. It can be in the form of a legal conclusion.
      7. Adoptive admission
        1. Expressly or impliedly adopt someone else's statement as his own
        2. Silence
          1. If a party fails to respond to accusatory statements where a reasonable would have spoken up, his silence may be considered an implied admission.
          2. Requirements
            1. The party must have heard and understood the statement;
            2. The party must have been physically and mentally capable of denying the statement; and
            3. A reasonable person would have denied the accusation under the same circumstances
      8. Vicarious Admission
        1. NY and traditional rule
          1. It all depends on agency:
            1. Was the employee authorized to speak for the employer.
          2. Principal-agent
            1. Employee's statement may not be used against the employer unless employee stands high enough in the hierarchy of the employer's organization to have speaking authority.
        2. FRE
          1. A statement made by employee concerning a matter within the scope of employment is admissible against the employer if made during employment relationship.
          2. Partners:
            1. Within the scope of the partnership business
          3. Co-conspirators:
            1. Admissible if the declarant was part of the conspiracy when statement was made.
    6. Exception 2: the former testimony
      1. NYD:
        1. Rules governing use of former testimony in criminal proceedings are substantially the same as rules governing civil cases except:
          1. The defendant and the charge in the former and the present proceeding must be the same
          2. If the trial judge finds that a grand jury witness's unavailability is due to defendant's unlawful conduct, trial jury may hear the witness's grand jury testimony provided the prosecution first proves defendant's fault by clear and convincing evidence; and
          3. If the former testimony is from a conditional deposition or a hearing on felony complaint.
      2. Unavailability required
      3. There will always be two proceedings
        1. Same issue
        2. Same parties
        3. But the witness is no longer available
      4. There must have been a meaningful opportunity to cross-x in the first proceeding when the witness testified
        1. Grand jury testimony is not admissible.
        2. The issue must essentially be the same
        3. There must be a certain identity of the parties
          1. If it offered against someone who was a party in the first proceeding
          2. Offered in a civil case against someone in privity with one party who had opportunity to cross-x
    7. Exception 3: statement against interest.
      1. It has to be the interest at the time the statement was made
      2. Definition
        1. It is a declaration of a person, now available as a witness, against that person's pecuniary, proprietary or penal interest at the time the statement was made.
      3. It can be made by ANYONE
      4. Personal knowledge is required
      5. The declarant must be unavailable.
      6. Risk of criminal liability
        1. Third party confession allowed
        2. Co-defendant's confession implicating the accused is inadmissible.
    8. Exception 4: Dying declaration
      1. NYD
        1. Only admissible in homicide cases
          1. Where the victim is the declarant.
        2. The person must be dead.
      2. The basic requirement is the state of mind.
      3. The declarant must be aware of his incoming death.
        1. On MBE: they will put in the pattern the state of mind of the declarant.
      4. The subject matter of the declaration matters
        1. It must concern the cause or circumstances of the impending death
      5. It is admissible in homicide cases or civil cases.
    9. Exception 5: Res gestae
      1. Unavailability not required.
      2. Exception 1: state of mind in issue
        1. It is admissible when in issue and material to controversy
        2. Also admissible when the declarant's state of mind is not directly in issue
          1. To show subsequent acts of the defendant.
      3. Exception 2: Excited utterance
        1. Startling event.
        2. The statement must be made under the stress caused by the startling event.
        3. The statement must concern the facts of the events
        4. There can be a time lapse
          1. The q is whether the excitement has worn off.
      4. Exception 3: the present sense impression
        1. NYD:
          1. Corroboration required.
          2. The declarant can be anonymous.
        2. No need of startling event
          1. Precise contemporaneousness
        3. No appreciable time lapse
          1. Description of what is happening at the time of the event
      5. Exception 4: declaration of present physical condition
        1. They are admissible even though not made to a physician.
        2. They must relate to symptoms, including the existence of pain.
      6. Exception 5: declaration of past physical condition:
        1. NYD
          1. Does not recognize that exception
        2. Admissible if made to medical personnel for purposes of diagnosis or treatment.
      7. Exception 6: Business records
        1. NYD
          1. Accidents reports prepared in the regular course of business operations or practice are admissible in NY, even if made in anticipation of litigation.
        2. Preliminary matters
          1. Rationale:
            1. An employee is under a duty to observe, another to report and another to record: they have to do it right
          2. It allows the record to substitute for the live employees in court
        3. The informant must be under the duty to report.
        4. the entry must be germane to the business:
          1. If the info, even though germane to the business, comes from an outsider, the evidence is out
          2. The employee cannot testify because it will be double jeopardy and there will be no exception
            1. But it can come in if the declarant is a party: admission.
        5. Records prepared in view of litigation are not admissible.
      8. Exception 7: official records.
        1. NYD: by statute, it recognizes the following
          1. Ancient filed maps;
          2. Records of out of state real estate;
          3. Marriage certificates;
          4. Presumption of death
          5. Weather reports;
          6. Agricultural inspection certificates; and
          7. Certificates of population.
        2. What may be admitted
          1. Records, reports, statements, or data compilations, in any form, of public offices or agencies are admissible to the extent that they set forth:
            1. The activities of the office or agency;
            2. Matters observed pursuant to a duty imposed by law excluding police observations in criminal cases; or
            3. In civil actions and proceedings and against the govt. in criminal actions, factual findings resulting an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
          2. Requirements:
            1. To duty to record
            2. Entry near time of event
            3. Trustworthiness

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