Glossary of NY Bar Exam Review - Evidence Law

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What is judicial notice?
Judicial notice is the recognition of a fact as true without formal presentation of evidence.
What facts are appropriate for judicial notice?
Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts). Courts have increasingly taken judicial notice of scientific principles as a type of manifest fact.
How is judicial notice obtained?
A party must formally request that notice be taken of a particular fact.
When may judicial notice be taken?
At trial, or for the first time on appeal.
What is the effect of a judicailly noticed fact?
The federal Rules provide that a judicially noticed fact is c onclusive in a civil case but not in a criminal case.
What jury instructions are given in a criminal case with respect to judicial notice?
In a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed fact.
What are adjudicative facts?
Those that relate to the particular case.
What are legislative facts?
Those relating to legal reasoning and lawmaking, such as the rationale behind the spousal privilege.
What do the Federal Rules govern?
Only judicial notice of adjudicative facts. Legislative facts need not be of common knowledge nor capable of indisputable verification to be judicially noticed.
What MUST courts take notice of?
Federal and state law and the official regulations of the forum state and the federal government.
What MAY courts take judicial notice of?
Municipal ordinances and private acts or resolutions of Congress or of the local state legislature, and laws of foreign countries.
What is real evidence?
Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).
What are the conditions of admissibility of real evidence?
Real evidence must be relevant and meet the following legal requirements:
1) Authentication;
2) Condition of Object;
3) Balancing Test- Legal Relevance.
What is the authentication requirement?
The object must be identified as what the proponent claims it to be, either by:
1) Testimony of a witness that she recognizes the object as what the proponent claims it is (e.g. witness testifies that gun is the one found at crime scene); or
2) Evidence that the object has been held in a substantially unbroken chain of possession (e.g., blood taken for blood-alcohol test).
What is the condition of object requirement?
If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.
What is the balancing test?
Some auxiliary policy or principle may outweigh the need to admit real evidence. Such policeis include physical inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice.
What are the particular types of real proof?
1) Reproductions and Explanatory Real Evidence;
2) Maps, Charts, Models, Etc.;
3) Exhibition of Child in Paternity Suits;
4) Exhibition of Injuries;
5) Jury View of the Scene;
6) Demonstrations
What is the rule with respect to reproductions and explanatory real evidence?
Relevant photographs, diagrams, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. However, items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (i.e, they are not given to the jury during its deliberations)
What is the rule with respect to maps, charts, models, etc.
Maps, charts, models, etc., are usually admissible for the purpose of illustrating tetsimony but must e authenticated (testimonial evidence that they are faithful reproductions of the object or thing depicted).
What is the rule with respect to exhibition of child in paternity suits?
In paternity suits, almost all courts permit exhibition of the child to show whether she is the race of the putative father. The courts are divided with respect to the propriety of exhibition for the purpose of proving physial resemblance to the putative father.
What is the rule in NY with respect to exhibition of child in paternity suits?
In NY, the jury may NOT consider physical resemblance on the issue of family relationships. However, child MAY be produced and exhibited for purposes of determining age.
What is the rule with respect to exhbition of injuries?
Exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this evidence if unfair prejudice would result.
What is the rule with respect to jury view of the scene?
The trial court has the discrtion to permit the jury to view places at issue in a civil or criminal case. The need for the view and changes in the condition of the premises are relevant considerations here.
What is the rule with respect to jury view of the scene in NY?
In NY, the judge must be present at a jury view in a criminal case. The prosecutor, defendant, and defendant's counsel are entitled as of right to attend. Unauthorized visit to the scene by jurors in criminal cases is inherently prejudicial and requires reversal. Unauthorized visit in civil cases MAY require reversal.
What is the rule with respect to demonstrations?
The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. Demonstrations of bodiily injury may not be allowed where the demonstrations would unduly dramatize the injury.
What is the rule with respect to demonstrations in NY?
The trial judge has discretion in civil or criminal cases to allow the jury, upon retirement for deliberation, to take with them any exhibit received in evidence.
What is the rule with respect to scientific experiments in NY?
Neither the polygraph nor the voice stress analyzer has aachieved sufficient reliability to warrant admission of the results of these tests.
What is the rule with respect to blood grouping and HLA Testing?
In a dispute over paternity, the results of a blood grouping test (blood genetic market test) may be received into evidence where definite exclusion of the alleged father is established by the test. Furthermore, the results of a human leukocyte antigen blood tissue test (HLA) and the DNA genetic test are admissible to aid in determining paternity, UNLESS exclusion has already been established by another blood grouping test. When test results indicate at least a 95% probability of paternity, there is a rebuttable presumption of paternity.
What is the burden of proof?
It encompasses the burden of producing or going forward with the evidence, and the burden of persuasion.
What is the rule with respect to the burden of producing evidence?
The party who has the burden of pleading usually has teh burden of producing or going forward with evidence sufficient to make out a prima facie case (i.e., create a fact question of the issue for the trier of fact). Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.
What is the rule with respect to the burden of persuasion (proof)?
After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persusion for civil cases is usually by a preponderance of the evidence (more probably truue than not true), although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.
When is proof by clear and convincing evidence specifically required in NY?
1) To prove fraud;
2) In actions to recover on a contract to render services to one now deceased;
3) To prove mistake;
4) To prove that a gift of property has been made by one now deceased;
5) To establish grounds for reformation or recission;
6) To establish paternity;
7) To establish a claim for adverse possession.
What is a presumption?
A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to hte presumption.
What is the effect of a presumption?
It shifts the burden of production. A presumption operates, until rebutted to shift the burden of production to the party against whom the presumption operates. **NOTE: a presumption does NOT shift the burden of PERSUASION. The burden of persuasion remains on hte same party throughout trial.
When is a presumption rebutted?
A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.
What is a permissible inference?
A permissible inference may allow the party to meet his burden of production (e.g. establish a prima facie case), but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the soliator, and the inference of undue influence when a will's drafter is also the principal beneficiary.
What are the "presumptions" in a criminal case?
The presumption of innocence in criminal cases is merely a permissible inference. The burden of production never shifts to the accused.
What considerations apply when true presumptions arise in the criminal context?
The judge cannot instruct the jury that they MUST find a presumed fact against hte D; he must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.
When must a presumed fact be proved beyond a reasonable doubt?
If, in a criminal case, a presumed fact establishes guilt, is an element of the offense, or negates a defense, it must be proved beyond a reasonable doubt.
What is a conclusive presumption?
Because it cannot be rebutted, a conclusive presumption (e.g., that a child under age secen cannot commit a crime) is really a rule of substantive law.
What are some common rebuttable presumptions?
1) Legitimacy;
2) Agaisnt suicide (in civil cases);
3) Sanity (in both civil and criminal cases);
4) Death from absence (unexplained absence for continuous period of seven years without hearing from someone);
5) Ownership of car - agent driver;
6) Chastity;
7) Regularity;
8) Continuance;
9) Mail delivery;
10) Solvency;
11) Bailee's Negligence;
12) Marriage.
What is the ownership of car - agent driver presumption?
Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent.
What is the regularity presumption?
It is presumed that persons acting in an official office are properly performing their duties.
What is the continuance presumption?
Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
What is the mail delivery presumption?
A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.
What is the bailee's negligence presumption?
Proof of delivery of goods in good condition toa bailee and failure of the bailee to return the goods in the same condition create thhe presumption that the bailee was negligent.
What is the marriage presumption?
Upon proof of a marriage ceremony, a marriage is presumed valid.
What is the death from absence presumption in NY?
In NY, absence need only be for THREE YEARS and a diligent search for the missing person is required.
What is the rule where conflicting presumptions exist?
When two or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.
What is the choice of law rule regarding presumptions in civil actions?
Under the federal rules, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.
What is the allocation of responsibilities amongst parties, judge, and jury?
In our adversarial adjudicative process, the focus is on the party's responsibility to frame the issues in a liigation and to assume the burden of proving the issues he has raised. The trial judgem's primary responsibility is to superintend the trial fairly. As a general rule, questions of law are for the trial judge to determine and questions of fact are for the jury.
What is the rule with respect to judicial power to comment upon evidence in NY?
In NY, the trial judge may NOT comment upon evidence.
What is the rule with respect to confessions in NY?
A confession alone is not sufficient to support a criminal conviction; corroboration is required.
What are preliminary facts decided by the jury?
Examples of preliminary facts to be decided by the jury include agency, authenticity of a document, credibility of a witness, and personal knowledge.
What are preliminary facts decided by judge?
Facts affecting the competency of hte evidence must be determined by the trial judge. Requierments for hearsay exceptions, privileges, and expert testimony, as well as mental competence, must also be decided by the judge.
What evidence may be considered by the judge?
The Federal Rules permit the trial judge to consider any relevant evidence even though not otherwise admissible under the rules of evidence. Most state courts, however, hold that the rulew of evidence apply in preliminary fact determinations as much as in any other phase of the trial; thus, only admissible evidence may be considered.
What is the rule with respect to the presence of the jury during preliminary fact determinations?
Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge.
Does testimony of the accused on a preliminary matter waive the privilege against self-incrimination?
No. An accused may testify on any preliminary matter (e.g. circumstances surrounding an allegedly illegal search) without subjecting herself to testifying at trial.
What is the judicial power to comment upon evidence?
A judge may comment on the weight of the evidence in federal courts, but generally not in state courts (MAY NOT IN NY)
What is the judge's power to call witnesses?
A judge may call and interrogate witnesses on her own initiative.
What is the judge's responsibility with respect to rulings?
A trial judge has an obligation to rule promptly on counsel's evidentiary objections and, upon request, to state the grounds for her rulings.
What are the judge's responsibilities with respect to limited admissibility of evidence?
A judge will restrict evidence to its proper scope and instruct the jury accordingly.
What is relevance?
Evidence is relevant if it has ANY tendency to make a material fact more probable or less probable than would be the case without the evidence.
What is the rule of relevance?
All relevant evidence is admissible UNLESS:
1) Some specific exclusionary rule is applicable; or
2) The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations.
What are the six types of pragmatic considerations?
1) Danger of unfair prejudice;
2) Confusion of the issues;
3) Misleading the jury;
4) Undue delay;
5) Waste of time;
6) Unduly cumulative.
What is never a reason to exclude evidence?
Unfair surprise
What are the policy-based exclusions?
1) Liability insurance;
2) Subsequent remedial measures (SRMs);
3) Settlements in civil cases;
4) Offer to pay hospital or medical expenses;
5) Pleas and plea discussions in criminal cases;
What are the rules with respect to liability insurance exclusion?
1) Evidence that a person has or does not have liability insurance is inadmissible for the purpose of proving fault or absence of fault;
2) BUT such evidence MAY be admissible for some OTHER relevant purpose, such as: a) proof of ownership or control IF that issue is controverted; or b) impeachment of a witness.
What is the result when evidence is admissible for one purpose but inadmissible for another purpose?
The judge should give the jury a limiting instruction.
What is bias?
Bias means there is some relationship b/t the witness and a party that could cause the witness to lie.
What are subsequent remedial measures?
Repairs, design changes, or policy changes taken AFTER an accident that could have prevented the accident.
What are the subsequent remeidal measures rules?
1) SRMs are inadmissible for the purpose of proving:
a) Negligence;
b) Culpable conduct;
c) A product defect; OR
d) A need for a warning;
2) BUT, such evidence may be admissible for some other relevant purpose, such as proof of:
a) Ownership; or
b) Control; or
c) Feasibility of a safer condition
IF that issue is controverted.
What is the NY rule with respect to SRMs?
In general, the NY rule is the same as the federal rule, except:
SRMs are admissible in a products liability action based on strict liability for a manufacturing defect.
What are the rules with respect to settlements in civil cases?
1) If there is a DISPUTED CLAIM, then evidence of:
a) settlements; or
b) offers to settle; or
c) statements
made in settlement
are inadmissible if offered to prove liability.
2) BUT, settlement evidence may be admissible if offered to impeach a witness on the ground of bias.
What is the rule with respect to offers to pay hospital or medical expenses?
1) Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liability.
2)BUT, the rule on offers to pay medical expenses applies ONLY to the offer, and not to statements of fact that are made along with the offer.
What is the rule with respect to pleas and plea discussions in criminal cases?
The following are inadmissible against a D in a pending criminal litigation OR a subsequent civil case:
1) An offer to plead guilty;
2) A withdrawn guilty plea;
3) A plea of nolo contendere (nolo plea or plea of no contest);
4) Statements of fact made during any of the above.
*NOTE: a plea of guilty that is NOT withdrawn IS admissible agaisnt D in subsequent litigation based on the same facts in both federal court and NY court.
What difference exists in the NY rule with respect to pleas and plea discussions?
A withdrawn guilty plea is admissible in NY in a subsequent civil case.
For what purposes is liability insurance inadmissible?
For what purposes is liability insurance admissible?
Ownership or control (if controverted) or Impeachment.
For what purposes are SRMs inadmissible?
Negligence, Culpable conduct, or product defect (*NOTE: NY distinction for manufacturing defects)
For what purposes are SRMs admissible?
Onership, Control, Feasibility (if controverted);
or Impeachment
For what purpose are settlement discussions inadmissible?
For what purpose are settlement discussions admissible?
For what purposes are offers to pay medicat expenses inadmissible?
For what purposes are offers to pay medical expenses admissible?
None, but note only applies to the actual offer and not statements made along with the offer.
For what purpose are withdrawn please inadmissible?
Guild, or (in Federal Court, but not NY), civil liability.
For what purposes are withdrawn please admissible?
None in federal court and only subsquent civil actions in NY.
What is character evidence?
Character evidence refers to a person's general propenisty or disposition, e.g., the character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness).
What questions should you focus on where character evidence is involved?
1) Purpose;
2) Criminal or civil case;
3) What is the form of the evidence
What is a propensity purpose?
If evidence of a person's character trait is offered to prove that hte person has a propensity to act in a certain way - in other words, as evidence that the person acted in conformity with the character trait on the particular occasion in question.
What is the veracity of a witness purpose?
If evidence of a witness's character for truthfulness is offered to impeach the witness.
What is a non-propensity purpose?
If evidence of a person's prior bad act is offered for some purpose OTHER than proving propensity ("conduct in conformity")
What is the trait as element purpose?
If evidence of a person's character trait is offered b/c the trait is an essential element of a claim or defense.
What is the rule regarding character evidence?
1) Character evidence is NOT admissible to prove propensity ("conduct in conformity").
2) Character evidence IS admissible for other purposes (veracity of witness, non-propensity purpose, trait as element).
What is the rule with respect to character evidence offered by D in a criminal case?
1) The D may introduce evidence of his own good character for a RELEVANT trait.
2) If the D does so, the prosecution may rebut with evdidence of D's bad character for the SAME trait.
When character evidence is admissible to prove propensity, what are the proper methods?
1) Federal: reputation or opinion;
2) NY: reputation ONLY
NO SPECIFIC ACTS are allowed to prove character by propensity under either rule.
If the D has "opened the door" by calling character witnesses, in what way may the prosecution rebut?
1) By calling its own witnesses to testify to the D's relevant bad character. Testimony can be in the form of reputation or opinion federally and reputation only in NY;
2) By cross-examining D's character witness by questioning their knowledge of SPECIFIC ACTS by the D that are relevant to the character trait at issue.
What form must the questions of the D's witness take?
For opinion witnesses: "Did you know?"

For reputation witnesses: "Have you heard?"
What requirement must prosecution meet to question in such a way?
It doesn't have to prove the specific act, but has to have a good faith basis to believe that the specific act took place.
In what additional way may the prosecution rebut the D's good character evidence in NY?
By proving that the D has been convicted of a crime that reflects adversely on the character trait in issue.
What if prosecution asks a "have you heard" question regardind D's prior bad act and witness answers no?
Prosecution is stuck with the answer - can't prove that it actually happened.
May the prosecution introduce a certified conviction of D to rebut good character evidence presented by D in his case?
Federal: No, b/c a conviction is a specific act and under the federal rules, the prosecution is not allowed to rebut the D's character evidence with proof of specific acts;
In NY, yes - b/c in NY, the prosecution is allowed to rebut the D's character evidence with proof of a criminal conviction that is related to the character trait at issue.
What is the rule with respect to the victim's character in a self-defense case?
A criminal defendant may offer evidence of the victim's violent character to prove that the victim was the first aggressor.
What form may such evidence take?
Becuase this is not propensity evidence, ANY form is allowed (reputation, opinion, specific acts).
How may the prosecution rebut such evidence ?
By evidence of:
1) The V's good character for peacefulness; or
2) The D's bad character for peacefulness.
What is NY rule with respect to V's character in a self-defense case?
In NY, evidence of the V's character is INADMISSIBLE to prove that the victim was the first aggressor.
What is the special rule for D's knowledge of V's character for violence?
The D may offer evidence of his own knowledge of the V's bad character for violence for the purpose of showing that he reasonably believed in the need to use self-defense.
Does NY follow this special rule?
Yes. Although NY does not allow D to introduce evidence of the V's violent character to prove that V started the fight, a D CAN introduce evidence of his knowledge of V's characer for violence (b/c that is not a propensity use).
What is the "Rape Shield" Rule?
In a case involving alleged sexual misconduct (civil or criminal), the D ordinarily may not introduce evidence of:
1) The V's reputation for promiscuity; or
2) The V's prior sexual conduct.
What are the exceptions to the rape shield rule?
Notwithstanding the general rule, a D may introduce:
1) Evidence of V's other sexual activity with D, but ONLY if the defense is consent;
2) Evidence of V's sexual aactivity with others, but ONLY to prove that someone other than the D was the source of physical evidence;
3) Evidence required to be admitted by the D's due process rights.
What is the rule with respect to character evidence in civil cases?
Character evidence is generally inadmissible to prove propensity in civil cases.
Can the D in a civil case offer evidence of her own good character for a relevant trait?
No. Only in criminal cases do we allow this; not in civil.
When IS evidence of a person's character admissible in a civil action?
Evidence of a person's character is admissible in a civil action where such character is an essential element of a claim or defense. Only two situations:
1) Negligent hiring (sometimes called negligent entrustment);
2) Defamation
Where offering character evidence in a civil case that meets one of the exceptions, what form must such evidence take?
Any form is OK - reputation, opinion, specifc acts.
When may D's other crimes be admissible for non-character purposes?
The MIMIC Rule: D's other crimes or bad acts may be admissible if offered to show something specific about the charged crime. Most common non-character purposes:
1) M - Motive;
2) I - Intent;
3) M - Mistake or accident (absense of mistake or accident);
4) I - Identity;
5) C - Common scheme or plan
When may the prosecution admit such evidence?
If a MIMIC category is satisfied, the prosecutioni may use other crimes evidence as part of its case-in-chief; MIMIC evidence is not dependent on D's introduction of favorable charaacter evidence.
How does the identity prog usually come up?
1) Where D offers an alibi - i wasn't in town so i couldn't have done it, evidence that D committed other crimes in the vicinity around the same time can be admitted to show identity - where the D was at the time in question. OR
2) Where D uses a specific and unusual MO that tends to identify him as the perpetrator.
By what method may the proseuction prove MIMIC-purpose crimes?
1) By conviction;
2) By evidence that proves the crime occurred.
What is the burden of proof with respect to MIMIC-purpose crimes?
1) Federal: The "sufficiency" standard: The prosecution must produce SUFFICIENT evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence;
2) NY - General Rule is the same as the Federal, EXCEPT for "Identity" evidence - The prosecution must produce CLEAR AND CONCINVING evidence that D committed the prior act here.
What are the other requirements for MIMIC evidence?
1) Court must weigh probative value vs. prejudice;
2) Court must give jury a limiting instruction with regard to the purpose of the MIMIC evidence;
3) Upon D's request, P must give pretrial notice of intent to introduce MIIMC evidence.
What is the rule with respect to MIMIC evidence in civil cases?
Although MIMIC evidence most often appears in criminal cases it may also be used, if relevant, in civil cases, such as tort actions for fraud or assault.
What is the rule with respect to other sexual misconduct introduced to show propensity for sexual assaults?
1) Federal: In any case alleging sexual assault or child molestation, the proseution may offer evidence of the D's prior sexual assaults for the purpose of proving teh D's propensity to commit sexual assaults;
2) NY - Rapists and child molesters are treated just like every other D - the P may not introduce evidence of prior bad acts to prove propensity
What is the rule with respect to similar occurrences?
The general rule is that to be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, the evidence si inadmissible. BUT, in some limited and specific circumstances, OTHER SIMILAR OCCURRENCES may be admissible, even if they relate to a time, event, or person other than that involved in the present litigation.
Six situations:
1) P's accident history;
2) Similar accidents caused by same event or condition;
3) Intent in issue;
4) Comparable sales on issue of value;
5) Habit;
6) Industrial custom as standard of care
What are the rules with respect to P's accident history?
Generally, a P's history of accidents or law suits is inadmissible;
BUT, P's prior accidents may be admissible to show:
1) A fraudulent scheme or plan; or
2) Causation (typically of injuries)
What is the rule with respect to similar accidents caused by same event or condition?
Other similar accidents are generally not admissible, BUT other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for 3 potential purposes:
1) Existence of a dangerous condition;
2) Causation;
3) Prior notice to the D
What is the rule for admitting experiments and tests?
The same - there must be substantial similarity b/t the experiment and the disputed fact.
What is the rule with respect to intent in issue?
Prior similar occurrences may be relevant to draw an inference of intent from a person's prior conduct (similar to MIMIC)
What is an example of where prior similar occurrences would be admissible to show intent?
Where P claims racial employment discrimination, showing that D has hired no minority job applicants, despite their qualifications during past six years is admissible to show discriminatory intent.
What is the rule with respect to comparable sales on issues of value?
The selling price of other property of a similar type, in the same general location, and close in time to the period at issue, is admissible as evidence of value of the property at issue.
What are the rules with respect to habit evidence?
1) Charactr evidence that relates to a person's GENERAL disposition or proopensity is usually not admissible to prove conduct on a partiuclar occasion.
BUT, there is a habit exception: Habit of a person (OR routine of a business organization) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation.
What is the definition of habit?
Habit is a repetitive response to a particular set of circumstances. Thus, habit has two distinguishing characteristics:
1) Frequency and
2) Particularity
What words should you look for to indicate habit?
Always, invariably, automatically, instinctively.
What is the business routine rule?
The regular practice of an organization is admissible to prove conduct on a particular occasion.
What is the NY rule on habit evidence?
1) Evidence relating to a business, trade, or profession is admissible, same as under Federal Rules;
2) Evidence relating to personal habit on issue of due care in negligence is NOT admissible, BUT;
3) Evidence relating to personal habit in the use of a product IS admissible
What is the rule with respect to 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 shouls have acted, i.e., as evidenc of the appropriate standard of care.
What issues (besides relevance) should you look out for whenever a writing appears on the exam?
1) Authentication;
2) Best Evidence Rule; and
3) Hearsay
What is the authentication rule?
If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be.
What is the process of authentication called?
Laying a foundation.
What are the ways to authenticate a document?
1) Testimony by a witness with personal knowledge;
2) Proof of the author's handwriting by:
a) Lay opinion;
b) Expert opinion and
c) Jury comparison;
3) Ancient Document Rule;
4) Solicited Reply Doctrine
What is the rule for proof of author's handwriting by law opinion?
The witness must have familiarity wiht X's handwriting as a result of experience in the normal course of affairs - not as a result of preparation for the litigation.
What is the rule for proof of author's handwriting by expert opinion and comparison?
The expert must be qualified and must compare document to a genuine sample or exemplar X's handwriting.
What is the rule for proof of author's handwriting by jury comparison?
The trier of fact compares document to a genuine sample or exemplar X's handwriting.
What is the ancient document rule?
Authenticity may be inferred IF document is:
1) at least 20 years old (OR, in NY, at least 30 years old);
2) facially free of suspicion; and
3) found where it would be expected.
What is the solicited reply doctrine?
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
What is the burden of proof with respect to authentication?
The "sufficiency" standard. Authentication is a matter of "conditional relevance" which means that the party offering the evidence must produce SUFFICIENT evidene for a reasonable juror to conclude that the document is genuine.
*Similar to the standard of proof of prior bad acts (MIMIC)
What types of documents are self-authenticating (i.e. presumed authentic) and don't require foundation testimony?
1) Official publications;
2) Certified copies of public or private documents on file in public office;
3) Newspapers or periodicals;
4) Trade inscriptions and labels;
5) Acknowledged document;
6) Commercial paper;
7) Certified busienss records, offered into evidence under the business records hearsay exception - must be certified:
a) by someone within
the business
b) who knows how the
records are
regularly made
c) and that they were
made in the regular
d) at or about the time
of the event
What authentication is required for photos where they are offered as demonstrative evidence?
If the purpose of the photograph is to illustrate a witness's testimony, it can be authenticated by the witness testifying, based on personal knowledge that hte photo is a FAIR AND ACCURATE REPRESENTATION of the people or objects portrayed.
What authentication is required for photos where they are offered as a "silent witness"?
If the photo is itself the evidence (e.g, photos from surveillance cameras, ATMs, etc.), a party offering such photo must show:
1) That the camera was properly installed and working;
2) That the film was properly removed and developed; and
3) That the film has not been tampered with.
What is the most effective way to show an absence of tampering?
By establishing a chain of custody (meaning that everyone who possessed the film b/t the time it was taken out of the camera to court, must testify).
What is the best evidence rule?
Better understood as the original writings rule, it states:
1) If a party seeks to prove the contents of a writing, the party must either:
a) produce the writing;
b) provide an
acceptable excuse
for its absence;
2) If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove the contents.
What is a writing?
A writing includes documetns, recordings, films, and X-rays.
What questions should you ask in a best evidence fact pattern?
1) When does the best evidence rule apply?
2) What is an original?
3) What is a good excuse?
When does the best evidence rule apply?
Only when the party seeks to prove the contents of a writing, which arises in two principal situations:
1) The writing is a legally operative document (i.e., the writing itself creates rights and obligations); or
2) The witness is testifying to facts that she learned solely from reading about them in a writing.
What are examples of legally operative documents?
Deeds, mortgage, divorce decrees, written contracts.
When does the BER NOT apply?
When a witness with personal knowledge testifies to a fact that exists independently of a non-legally operative writing which records the fact.
What qualifies as the original writing?
The original includes the writing itself, any counterpart intended to have the same effect, any negative of film or print from the negative, computer print-out.
What is a duplicate?
A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy, computer print-outs).
What is the rule for duplicates?
A duplicate is admissible to the same extent as an original, UNLESS:
1) There is a genuine question about the authenticity of the duplicate; or
2) It would be unfair to admit the duplicate (e.g., if the duplicate had different color ink and that was important, or if there were post-its on the original that can't be seen in teh duplicate).
What is the NY rule for duplicates?
Photocopies and other duplicates are acceptable substitutes for the original ONLY if the duplicates were made in the regular course of business. This means, in NY, a duplicate is NOT admissible if it was made for the purpose of litigation (e.g. for discovery purposes).
So, what is NOT considered an original?
Handwritten copies.
When will non-production of the original be excused?
A party need not produce the original (or an acceptable duplicate) if the original:
1) Is LOST or cannot be found with DUE DILLIGENCE; or
2) Has been DESTROYED without bad faith; or
3) Cannot be obtained with LEGAL PROCESS.
What is the burden of proof with respect ot excuse?
If the court is persuaed by a preponderance of the evidence that the excuse has been established, then secondary evidence is admissible (e.g., oral testimony or a handwritten copy).
What escapes the requirements of the best evidence rule?
1) VOLUMINOUS RECORDS can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection;
2) Certified copies of PUBLIC RECORDS;
3) COLLATERAL DOCUMENTS if the court, in its discretion, determines that the document is unimportant to the issues in the case.
What is required for a witness to be considered competent to testify?
1) The witness must have personal knowledge; and
2) The witness must take an oath.
What does it mean to take an oath?
1) Demonstrate an understanding of the obligation to tell the truth; and
2) Promise to tell the truth
What is the NY rule for testimony by children?
The general rule is that a child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth.
1) In civil cases, all witnesses, including children, must take an oath;
2) A child under the age of 9 who cannot understand the oath may still testify (in other words, the child may give unsworn testimony). BUT a D cannot be convicted based solely on unsworn testimony - there must be some corroboration.
What is the federal rule with respect to dead mans' statutes?
Tehre is no Dead Man's Statute under the Federal Rules - a witness is not incompetent simply b/c she may have an interest in the outcome of the litigation.
In states that have dead man's statutes, what do they provide?
1) In a civil action;
2) An interested party
3) May NOT testify
4) Against a deceased party or the deceased party's representatives;
5) About communications or transactions with the deceased party.
What does "interested" mean?
A person is interested ONLY if the outcome of the case will have a legally binding effect on the person's rights or obligations.
How may waiver occur?
The dead person's rights may be waived IF:
1) The decedent's representative does not object;
2) The decedent's representative testifies about the transaction;
3) Or, the decedent's testimony is introduced (typically by introducing the decedent's deposition).
What is the rule under NY's dead man statute?
NY's Dead Man's Statute is similar to the rule in most other states, with one important exception:
In an accident case based on negligence, the surviving party:
1) May testify about the facts of the accident;
2) BUT may NOT testify about conversations with decedent.
What is a leading question?
A question is leading when the form of the question suggests the answer (e.g., "Isn't it a fact that..." or unevenly balanced alternatives)
What is the rule with respect to leading questions?
1) Leading questions are generally NOT allowed on direct examination of a witness;
2) Leading questions generally ARE allowed on cross-examination of a witness.
What are the exceptions to the leading question rule?
Leading questions may be allowed on direct examination in four situations:
1) Preliminary introductory matters;
2) A youthful or forgetful witness;
3) A hostile witness;
4) The adverse party or someone under the control of the adverse party.
What is the rule with respect to present recollection refreshed?
1) Witness may not read from a prepared memorandum; must testify on the basis of current recollection;
2) BUT, if a witness forgets something he once knew, he may be shown a writing (or anything else) to job his memory.
What are acceptable refreshers?
Anything. On the bar, it's most likely to be a writing of some sort, but it can be anything.
What safeguards agaisnt abuse exist in hte use of items to refresh present recollection?
If an item is used to refresh a witness's memory, the oopposing party has a right to:
1) Inspect it;
2) Use it on cross-examination;
3) Introduce it into evidence (show it to the jury)
What is the rule with respect to past recollection recorded?
A writing may be read to the jury as a "past recollection recorded" IF:
1) The witness once had personal knowledge;
2) The witness now forgets, and showing the writing to the witness fails to job the witness's memory;
3) The writing was EITHER made by the witness OR adopted by the witness;
4) The writing was made when the event was fresh in the witness's memory; and
5) The witness can attest that, when made, the writing was accurate.
What is the method of introducing a writing as past recollection recorded?
If the foundation for a recorded recollection is satisfied, then:
1) The witness may READ the document to the jury;
2) But hte witness may NOT show the document to the jury;
3) BUT the opposing party MAY show the document to the jury (by introducing it as an exhibit).
How is the rule different in NY?
In NY, the party using the recorded recollection may also introduce the record as an exhibit (i.e., show it to the jury).
When is lay opinion testimony admissible?
Lay opinion testimony is admissible if it is:
1) Rationally based on the witness's perception (personal knowledge); and
2) Helpful to the jury.
What types of things may a lay witness testify about?
1) Sobriety (or drunkenness);
2) Emotions;
3) Speed;
4) Handwriting;
5) Smells
When may wtinesses testify as to an opinion as an expert?
Witness may testify to an opinion as an expert only if:
1) The witness is qualified (by education and/or experience0;
2) The testimony is about a a subject matter where scientific, technical, or specialized knowlege will be helpful to the jury;
3) The opinion has a proper basis; and
4) The opinion is reliable.
What is requred for a proper basis of opinion to exist?
1) The opinion must be based upon a "reasonable degree of probability or reasonable certainty;" and
2) The opinion must be based on one of the following three data sources:
a) The expert's personal
knowledge (e.g., a
treating physician);
b) Evidence that is
already in the trial
record (made known
to the expert through
a hypothetical
question); or
c) Facts ouside the
record (but ONLY IF
those facts are of
a type reasonably
relied on by
experts in the
particular field)
If an expert relies on facts outside the record, may he discuss them while testifying?
If an expert relies on facts outside the record, the expert may generally discuss the bases of the opinion, but may NOT disclose the inadmissible facts to the jury. The opponent, however, MAY disclose the underlying bases on cross-examination.
What is necessary to meet the reliability requirement?
To be admissible, experrt opinion must be sufficiently reliable. That means:
1) The expert has used reliable methods; and
2) The expert has reliably applied those methods to hte particular facts of the case.
What is the reliability standard for scientific evidence under the Federal Rules?
The Daubert standard: The court examines reliability by asking such questions as:
1) Has the methodology been tested?
2) Are there known rates of error?
3) Has the methodology been subject to peer review?
4) Has the methodology been generally accepted?
What is the reliability standard for scientific evidence in NY?
The Frye standard: NY asks only whether the methodology has been generally accepted by the relevant professional community.
What is the rule with respect to testimony on ultimate issues?
Opinion testimony (lay or expert) generally is permissible even if it addresses an ultimate issue in the case.
On what basis, then, are legal conclusions likely to be inadmissible?
Not on the basis that they are testimony as to an ultimate issue, but rather on the basis that the witness's opinion is "not helpful to the jury".
What is the exception to the general rule permitting witness's opinion testimony?
In a criminal case, an expert witness may NOT testify that the D did or did not have the requried mental state. *This is the only place where ultimate issue will be the appropriate choice. It comes up in insanity cases. D's experts can give diagnoses, explain symptoms, and how they'll affect D's cognitive process, but can't give ultimate conclusion that D was insane.
What is the rule with respect to use of learned treatises in aid of expert testimony?
This is a hearsay exception. If a party can establish that a treatise is reliable authority,
1) Then the treatise may be used on direct or cross-examination of an expert;
2) And the treatise may be READ to the jury as SUBSTANTIVE EVIDENCE;
3) BUT thhe treatise may not itself be introduced as an exhibit (may not be shown to the jury).
How can you establishe authoritativeness?
Three ways:
1) Your own expert testifies that the treatise is authoritative;
2) Your opponent's expert admits that the treatise is authoritative; or
3) The judge takes "judicial notice" that the treatise is authoritative.
What is the NY rule with respect to use of treatises?
1) On direct examination, a treatise may only be used for the purpose of showing the basis of the expert's testimony, NOT as SUBSTANTIVE EVIDENCE;
2) On cross-examination, a) treatise may ONLY be used to impeach the opponent's expert's credibility, NOT as substantive evidence; and b) may ONLY be used if the opponent's expert either relied on the treatise in developingg her own opinion or acknowledged that it is a reliable authority.
When may cross examination take place and what subject matters may it cover?
1) Cross-examination is a right. If a witness testifies but then cannot be cross-examined, the witness's direct testimony will be struck;
2) Proper subject matter of cross-examination includes: a) matters within the scope of direct examination; and b) matters that affect the witness's credibility.
What is credibility?
Whether a witness is believable. It rests on three things. The witness's:
1) Perception;
2) Memory;
3) Honesty
What is impeachment?
The process of trying to demonstrate that a witness is not credible.
What is rehabilitation?
The process of trying to repair a witness's credibility after the witness has been impeached.
May a party impeach his own witness?
1) Under the Fedeal Rules, yes, any party may impeach any witness.
2) Under the NY Rule (also known as the "Voucher rule"), by calling a witness, a party vouches for that witness's credibiltiy. So, ordinarily, the party who calls a witness may not impeach that witness.
What are the exceptions to the NY Voucher rule?
A party MAY impeach its own witness with a prior inconsistent statement that was:
1) Made in writing and was signed by the witness; or
2) Made in oral testimony and was UNDER OATH.
BUT, in a criminal case, this exception may be used ONLY if the witness's current testimony is "affirmatively damaging" to the party who called the witness, not merely a "cloud on credibility."
What are the methods of impeachment?
1) Prior inconsistent statements;
2) Bias, Interest, or Motive to Misrepresent;
3) Sensory Deficiencies;
4) Reputation or Opinion;
5) Criminal Convictions;
6) Bad Acts (without conviction);
7) Contradiction
What is intrinsic impeachment?
Cross-examination of the witness you are trying to impeach.
What is extrinsic impeachment?
Impeaching a witness by introducing documentary evidence or by calling OTHER witnesses.
What are the recurring procedural issues with respect to impeachment?
1) Can the impeaching fact be proven by extrinsic evidence or is the party bound by the witness's answers to impeaching questions?
2) If extrinsic evidence is permissible, must the witness first be confronted with impeaching fact before it can be introduced as extrinsic evidence?
What is a prior inconsistent statement?
A prior inconsistent statement is simply a prior statement (orally or in writing) that is materailly inconsistent with the witness's trial testimony.
What is the rule with respect to prior inconsistent statements?
A prior inconsistent statement may be used to impeach a witness.
For what purpose is a prior inconsistent statement admissible?
Ordinarily, a prior inconsistent statement is admissible ONLY to impeach (i.e., not as substantive evidence that the prior statement is true).
When is a prior inconsistet statement admissible as substantive evidence?
A prior inconsistent statement may be admitted BOTH to impeach AND as substantive evidence (i.e., to prove the truth of the prior statement), IF the statement was made:
1) Orally under oath; and
2) As part of a formal hearing, proceeding, trial or deposition.
What is the rule of prior inconsistent statements in NY
Prior inconsistent statements, even if given in formal testimony under oath, are admissible ONLY to impeach.
Are statements to the police ever considered part of a formal proceeding?
No, never.
What is the procedural rule with respect to a witness being impeached with a prior inconsistent statement?
A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement.
When must the opportunity be given?
1) In NY - The witness must be given a chance to explain the statement while still on the stand (i.e., the statement must be proven through intrinsic cross-examination BEFORE it can be proven extrinsically);
2) In Federal - timing is more flexible. The inconsistent statement may be proven by extrinsic evidence, so long as the witness is later given an opportunity to return to the stand and explain.
What is the exception to the requirement that the witness be given a chance to explain or deny the prior inconsistent statemetn?
If the witness is the opposing party, there is not need to givee the witness/party an opportunity to explain the prior inconsistent statement.
What is bias, interest, or motive to misrepresent?
Some relationship b/t the witness and a party - or some other interest in the litigation - that could cause the witenss to lie.
What are examples of bias?
The witness is:
1) A party;
2) A friend, relative, or EE of a party;
3) Someone paid by a party;
4) Someone with a grudge against a party;
5) Anyone who has something to gain by the case coming out one way or the other.
How may bias be proven?
Bias, because it is so important, may always be proven by extrinsic evidence.
Must a witness be given an opportunity to explain?
Generally, a witness need not be confronted with the alleged bias before it may be proven by extrinsic evidence.
What are sensory deficiencies?
Anything that could affect the witness's perception or memory.
What are examples of sensory deficiencies?
Bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the witness stand.
What types of evidence may be used to show sensory deficiencies?
1) Intrinsic confrontation is NOT required;
2) Extrinsic evidence is allowed.
What is veracity?
The character trait of being truthful. A witness's bad character for veracity is a frequent subject of impeachment and governed by very specific rules.
What is the rule with respect to impeachment using veracity?
A party may impeach a witness (the target witness) by calling another witness (the character witness) to testify to the target witenss's bad character for veracity.
What form can such testimony take?
Same as the rule for character evidecne:
1) Federal: Reputation or opinion;
2) NY: Reputation only
*Neither permit specific acts.
What is the procedural rule here?
Any witness who has testified may be impeached by this method and extrinsic evidence is allowed.
What is the NY rule with respect to admissibility of criminal convictions for impeachment purposes?
Any witness may b e impeached with a conviction for ANY CRIME.
Why is this the rule in NY?
A person who commits a crime has demonstrated his WILLINGNESS TO PUT HIS OWN INTERESTS AHEAD OF SOCIETY's (use this language on essay), and may do so again on the stand by ignorin the oath.
What is the special rule in NY with respect to criminal defendants?
When the witness is the criminal defendant, the court must balance the provative value of the conviction (on the issue of veracity) agaisnt the risk of unfair prejudice.
How is that determination made?
D has the right to a Sandoval hearing - a pretrial hearing at which the court will decide whether or not the D's prior convictions can be used againts him if he testifies.
What is the federal rule with respect to criminal convictions?
To be admissible, a conviction (or the release from prison, whichever is later) must be within TEN years of the trial.
Assuming the time limitation is met, what types of convictions are admissible?
1) Crimes of dishonesty or false statement are admissible;
2) Other crimes (crimes that do not involve dishonesty or false statement) - misdemeanors are not admissible; felonies are admissible IF the probative value of the conviction (on the issue of veracity) outweighs the risk of unfair prejudice to a party.
What is the definition of a crime of dishonesty or false statement?
A crime that, by defintion, involves a lie or a betrayal of trust.
What are examples of such crimes?
Perjury, false statement, fraud, embezzlement.
What are NOT examples of such crimes?
Crimes of violence, drug crimes, theft.
For the balancing test, what factors make a conviction probative?
1) Seriousnes (murder is more probative of veracity than possession of marijuana);
2) Relation to trust and deception (theft is more probative than reckless driving)
What factors make a conviction unfairly prejudicial?
1) Inflammatory nature (child molestation is more prejudicial than DWI);
2) Similarity to the currently charged offence (the prejudice is particularly high if the prior offenses and the charged offense are identical).
How man convictions be proven?
Conviction may be proven:
1) Intrinsically (by asking the witness about it on x-exam); or
2) Extrinsically (by introducing a record of hte conviction)
Must the witness be given a chance to explain?
Are convictions admissible to show propensity to commit crimes?
Are convictions admissible to show propensity to commit sexual assault?
Yes, in federal.
No, in NY.
Are convictions admissible for MIMIC purposes?
Are convictions admissible for impeaching a witness's character for veracity in federal court?
If it's a crime of deceit, yes. If not, if it's a misdemeanor, no. If it's a felony maybe - subject to balancing.
Are convictions admissible for impeaching a witness's character for veracity in NY?
Generally, yes, unless witness is a criminal D, and then maybe - subject to balancing.
Are convictions admissible to impeach a character witness's knowledge in federal court?
You can use those prior convictions if they are the kinds of things that should affect the party's reputation or the W's opinoin of the reputation on the relevant character trait we're talking about - can question ONLY.
Are convictions admissible to impeach a character witness's knowledge in NY?
Allowed to not only question witness about relevant prior convictions of the D, but also prove them.
What is the federal rule with respect to bad acts (without conviction) that reflect adversely on witness's character for truthfulness?
A witness may be asked about prior bad acts if those acts relate to truthfulness (e.g., lying on a resume, lying to spouse).
What is the NY rule with respect to bad acts (without conviction) that reflect adversely on witness's character for truthfulness?
A witness may be asked about prior bad acts that show the witness's moral turpitude (includes criminal conduct that does not relate to truthfulness, e.g., murder, rape, drug use, and arson)
What are the limitations on bad acts questioning?
1) Basis: The cross-examiner must have a good faith basis to believe the bad act occurred;
2) Proof: The bad act may be proven by intrinsic (questioning) evidence ONLY (the cross-examiner is stuck with the witness's answer);
3) BUT NOTE: proof by extrinsic evidence may still be allowed if the bad act is relevant for some other purpose such as proof of bias.
May a witness be asked whether he was arrested for some bad act?
No. An arrest is not a conviction and it is also not a bad act. This is objectionable. You CANNOT ask a witness about an arrest to impeach the witness about their veracity, b/c an arrest is not something the witness DID; it is merely an accusation. What you can do, though, is ask about the act itself.
May a witness be asked whether he was arrested for some bad act and is awaiting trial on those charges?
Yes. Not as a prior bad act. BUT, this would be admissible to show bias - if a witness for the prosecution has pending charges, that gives the witness a strong incentive to curry favor with the prosecution.

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