New York Bar Exam - Evidence

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What source of law governs evidence on the MBE?: Federal rules of evidence.

**Beware of answer choices stating the correct common law rule, rather than the federal rule.
What is direct evidence?: Testimony or real evidence which, if believed, automatically resolves the issue.

**eg, W says "I saw D kill V." This is direct evidence on whether D killed V.
What is circumstantial evidence?: Evidence which, even if believed, does not resolve the issue unless additional reasoning is used.

**eg, W says "I saw D running from the place where D's body was found." Circumstantial evidence of whether D killed V.
What is the general rule for admitting evidence?: Only relevant evidence may be admitted.
When is evidence relevant?: If that tends to prove or disprove a material fact
When can relevant evidence be excluded?: If its probative value is substantially outweighed by the danger of:
1) Unfair prejudice,
2) Confusing issues,
3) Misleading the jury, or
4) Undue delay, waste of time, etc.
When are previous similar occurences to controversy relevant?: If they are probative and that probativeness outweighs the risk of confusion or prejudice.
What are some examples of relevant similar occurences?: 1) Prior false claims â€” shows present claim is likely to be false (common scheme)
2) Same bodily injury â€” shows injury may be attributable to prior accident
3) Similar (prior) accidents or injuries caused by same event or condition â€” may be admissible to prove existence of dangerous condition, D had knowledge of dangerous condition, AND that dangerous condition caused the present injury
4) Motive or intent â€” prior conduct may show motive or intent (e.g., discrimination)
5) Rebutting claim of impossibility â€” eg, evidence that car is able to exceed 50 mph
6) Sales of similar property â€” to establish value
7) Habit â€” regular response to specific circumstances (eg, instinctive or automatic)
8) Industrial or business routineâ€”e.g., routine, standard business conduct
9) Industry custom as evidence of standard of care
What are public policy exclusions of relevant evidence?: 1) Liability insurance - except to prove ownership
2) Subsequent remedial measures - except to show control, or rebut claim that precaution wasn't feasible
3) Settlement offers and withdrawn guilty pleas - admissons made during negotiations are not admissible either
4) Offers to pay medical expenses - admissions in connection are admissible here

**evidence of subsequent remedial measures are never admissible in products liability case.
What is the relevant character evidence exclusion?: Evidence of a person's character is not admissible to prove that he acted in conformity therewith.
When is evidence of D's character allowed as substantive evidence?: 1) Person's general character or particular character trait is an essential element of the case,
2) Specific bad acts or other crimes circumstantially establish an element of the crime charged
3) Criminal D may show good character, and if so P may rebut.
How may character evidence be proven when directly in issue in a civil case?: 1) Proof of specific acts
2) Character W's opinion
3) Subject's reputation
What crime elements are usually circumstantially established by bad acts or other crimes?: MIMIC:
M - Motive
I - Intent
M - Mistake
I - Identity
C - Common plan or scheme

**Not admissible if offered solely to establish criminal disposition or bad character (eg; burned building to hide embezzlement)
How may evidence of D's character be proven in a criminal case (when used to circumstantially establish an element of the crime)?: Only by proof of specific bad acts or other crimes.

**Crimes need not have led to a conviction.
How may a criminal D produce evidence of his good character?: 1) By evidence of reputation
2) A charcter W's opinion as to D's character.

**No specific acts
How may the prosecution rebut a criminal D's proof of good character?: 1) By calling a W to testify as to D's character, or
2) Cross of D's character W, including specific acts if in good faith and relevant

** Cannot introduce extrinsic evidence of specific acts. (eg, other W's or records)
When can evidence of V's character be introduced?: Evidence of a pretinent trait of character of the victim may be offered by an accussed. (except in rape cases)
What the rape sheild provision?: 1) Completely disallows reputation or opinion evidence of V's past sexual behavior
2) Prohibits evidence of specific instances unless used to prove someone else caused injuries.
When are specific instance of sexual behavior between V and D admissible in a criminal trial?: Admissible by P for any reason and by D to prove consent.
What is judicial notice?: The recognition of facts as true w/o formal presentation of evidence.

**rebuttable.
What facts are appropriate for judicial notice?: Indisputable facts that are either matters of common knowledge or capable of verification by resort to easily accessible sources of unquestionable fact.
What is real evidence?: Evidence that is actual physical evidence addressed directly to the trier of fact.

**Eg, the gun used by D
When is real evidence admissible?: Must be relevant and meet the following requirements:
1) Authentication - by testimony or substantially unbroken chain of possession
2) Condition - Must be in shown to be in substantially same condition at trial (if condition significant)
3) Balancing Test - policy or principal may outweigh the need to admitt
What is documentary evidence?: Written evidence and other documents.

**eg; contracts, xrays, etc
When is documentary evidence and admissible?: Must be relevant and writings must be authenticated (ie, proponent must provide preliminary proof that the writing is genuine).
What is necessary to authenticate a writing?: Provide sufficient proof to support a jury finding of genuiness.
Absent a stipulation how can a document be authenticated?: 1) Admission â€” admission by party against whom evidence is offered
2)Eyewitness testimony â€” by anyone who sees it executed or hears it acknowledged
3) Handwriting verifications â€”
Lay witness w/ personal knowledge, expert comparison, jury comparison
4) "Ancient Documents" - at least 20 years old, in such condition to be free from suspicion on its face, AND found in a place where such a writing would likely be kept
5) "Solicited Reply" â€” written in response to letter sent to claimed author
6) Photographs â€” Witness must identify photo as a fair and accurate representation of the persons or objects portrayed
7) Unattended Camera â€” Must show camera was working properly at the relevant time AND that photo was developed from film obtained from that camera
8) Voice identification â€” Voice may be identified by opinion of anyone who has heard the voice at any time, including after litigation has begun for sole purpose of testifying
When is a document self-authenticated?: 1) Certified copies of public records (e.g., deed on file with county clerk)
2) Official publications (e.g., paper published by state/federal government)
3) Newspapers and periodicals
4) Trade inscriptions, signs, tags or labels affixed in normal course of business
5) Acknowledged documents (i.e., author acknowledged in presence of notary)
6) Commercial paper and related documents (i.e., UCC "commercial paper")
7) Certified business records
What is the best evidence rule?: To prove the terms of a writing, recording, or photo, the orginal must be produced. Secondary evidence of the writing (eg, oral testimony) is admissible only if the original is unavailable.
What are the 2 classes of situations where the BER usually applies?: 1) The writting is a legally operative or dispositive instrument, or
2) the knowledge of a witness concerning a fact results from having read the document, photo, or recording.

**If all that is sought to be proven is that the item exists, was executed, or was delivered, the BER does not apply.
What specific instance will the BER not apply?: 1) the fact to proved has an existance independent of any writing
2) Writing is collateral (of minor importance) to the matter in controversy
3) Proponent is merely summarize voluminous records
4) Public record certified or testified as correct
What is an original writing?: Writing itself or any duplicate intended by the person executing to have the same effect as the orginal.
What is a duplicate writing?: An exact copy of an original, such as a photocopy (no handwritten copies)
To what extent are duplicate writings admissible?: To same extent as the original, UNLESS:
1) Authenticity of the original is challenged, OR
2) Unfairness would result (eg, bad fax, fuzzy photocopy)
When may secondary evidence of a writings contents be use, in spite of the BER?: If the proponent can't produce the original writing in court, he may offer secondary evidence of its content if a satifactory explanation is give for nonproduction of the original.

**eg, loss or destruction, unobtainable from 3rd party, in possession of adversary who won't produce it.
Who makes determinations regarding documentary evidence?: 1) Court makes determinations of admissibility of duplicates, copies, or oral testimony
2) Jury determine if an original ever existed, whether the document produced is an original, and whether the evidence offered correctly reflets the contents of the original.
What is the general rule regarding witness competency to give testimonial evidence?: Witnesses must pass tests of basic reliability, but they are generally presumed to be competent until the contrary is established.
What are the 4 basic requirements for a competent witness?: 1) Personal knowledge of the matter
2) Recollection
3) Willingness to communicate
4) Apprection of the obligation to speak truthfully
When is a child competent to be a witness?: No specific age so long as the above 4 requirements are satisfied.
When may an insane person testify?: When he understand the obligation to speak truthfully and has full capacity to testify.
What are the Dead Man Acts?: In a civil case, an interested person CANNOT testify in his own interest against a decedent's estate concerning a personal transaction or communication such person had with decedent, UNLESS there is a waiver
When is a person "interested"?: If he stands to gain or lose by the judgement or the judgement may be used by him in a subsequent action.

**Spouses are not interested per se, unless it's a community property state.
How far does the Dead Man Act stretch?: Interested party not barred from all testimony, just interested portions.
What constitutes a waiver, allowing an interested person to testify?: 1) Decedent's representative testifies as to the transaction or communication
2) Decedent's testimony is put into evidence (eg, EBT prior to death)
Do the Fed Rules have a DMS?: No, so an MBE answer is wrong uless factios mention the state.

**The act only applies in federal case where state law is the substantive law (Erie).
When are leading question allowed on direct examination of a witness?: 1) To elicit preliminary or introductory matter;
2) When W needs aid because of immaturity or physical/mental weakness
3) Witness is hostile
4) To refresh recollection

**Always proper on cross examination.
What sorts of questions to W are improper (other than leading)?: Questions that are
1) Misleading,
2) Compound,
3) Argumentative
4) Conclusionary
5) Cumulative
6) Unduly harrasing or embarrasing
7) Assumes facts not in evidence
When can witness use a prepared memorandum while testifying?: W may use any writing to refresh recollection, but cannot read testimony from the writing.
What are the opposing party's rights when a W used a memorandum to refresh recollection?: They have the right to:
1) See the writing
2) Use the writing for cross
3) Submit for the jury to see
When be a writing may read into evidence (Past Recollection Record)?: If W is unable to recollect after consulting the writing, it may be read into evidence if:
1) W at one time had personal knowledge of the facts,
2) Writing was made or adopted by W,
3) Writing was timely made when matter was fresh in W's mind,
4) Writing is accurate (W must vouch for reliability of writing), AND
5) W has insufficient recollection to testify fully and accurately
Can writing that qualifies as a "Past Recollection Record" be submitted to the jury a; evidence (as opposed to being read in)?: 1) Fed Rule - No
2) NY Rule - Judge can admit writing into evidence as an exhibit.
When is opinion testimony of a lay witness admissible?: 1) Rationally based on perception of W (i.e., personal knowledge),
2) Helpful to trier of fact, AND
3) Not based on scientific, technical or other specialized knowledge

**Opinions not admissible regarding whether one acted as an agent or agreement was made.
When is the opinion testimony of an expert witness admissible?: 1) Scetific, technical or other specialized knowledge will assist the trier of fact
2) Expert is qualified by knowledge, experience, or education,
3) Testimony based on sufficient facts or data, and
4) Testimony is product of reliable methods and principles
When is a W "qualified" as an expert?: Possesses special knowledge, skill, experience, training, or education.
What is the proper basis for expert W testimony?: 1) Personal observation
2) Facts made known to the expert at trial
3) Facts not known to him, but supplied outside the courtroom and are the kind usually relied upon by experts in the field.
When can treaties or texts be used to cross an expert W?: When the publication has been established as reliable authority be either testimony of an expert or judicial notice.
When can treaties or texts be read into the record?: When established as reliable authortity subject and:
1) An expert must be on the stand when the excerpt is read from a treatise, and
2) It is read into evidence but not received as an exhibit.
What is a proper scope of cross examination of a W?: Limited to following:
1) Matters within scope of direct examination (may seek to contradict testimony)
2) Can impeach by attacking matters that test W's credibility
What is the cross-examination collateral matters doctrine?: If question/testimony concerns immaterial matters:
1) Cross-examiner is generally bound by responses of W
2) NO extrinsic evidence may be introduced to refute

** court has considerable discretion in this area.
When may a W be impeached?: Under the federal rules, by any party at any time (including the party that called him).

**Traditional rule prohibited impeaching your own witness except in certain circumstances.
When may a W be accredited or bolstered?: Generally not until W has been impeached. Exception to prove W made a timely complaint or prior statement of identification.
How may a W be impeached?: 1) On Cross, or
2) By offering extrinsic evidence (eg, testimony of another)

**Cross is the only way to impeach for a prior bad act
What are the 7 traditional impeachment devices?: 1) Prior inconsistent statements
2) Bias or interest
3) Prior conviction
4) Bad acts
5) Reputation for untruthfulness
6) Sensory or mental deficiencies
7) Other evidence that contradicts W's testimony
What is impeachment by "prior inconsistent statement"?: Showing W has made statements inconsistent with his present tesimony.

** Under Fed Rule, W must be given a chance to explain or deny at some point
What is impeachment for "bias or interest"?: Producing evidence that W is biased or has an interest in the outcome of suit.

**To lay foundation for extrinsic evidence, W must first be asked about bias or interest.
What is impeachment by "prior conviction"?: 2 types of prior convictions may be used to impeach W's credibility:
1) Crimes involving dishonest or false statement
2) Any felony where the court determines the probative value outweighs unfair prejudice (For all W's other than criminal D, it must be substantial outweighed)

**Can't be used if more than 10 years have elapsed.

**Felony's can only be used when W is a criminal D
What is impeachment by "bad acts"?: W may be interrogated on cross with respect to an act of misconduct that is probative of truthfulness

**Judge's discretion and no extrinsic evidence
What is impeachment by "reputation for untruthfulness"?: Can call other witness offer both general reputation AND personal opinion evidence on W's reputation for truth.

**NO specific instances.
May a hearsay declarant be impeached?: The credibility of someone who does not testify, but who's out of court statement is introduced may be attacked by evidence that would be admissible it declarant had testified.
How may an impeached W be rehabilitated?: 1) Explanation on redirect
2) Good reputation for truth (if character was attacked)
3) Prior consistent statement
When are objections to be made at trial?: 1) If the question calls for an inadmissible matter, objections should be made after the Q and before the A
2) Otherwise, must move to strike as soon as an inadmissible answer arises.
What is the effect of failure to raise an objection?: It is deemed a waiver of any ground for objection. Thus, if no objection is made, inadmissible evidence may be admitted.
What form must objections take?: They must state the reason for the objection.
What are testimonial privileges?: Privileges that permit one to refuse to disclose, and prohibit others from disclosing certain info in judicial proceedings.
Who may assert privilege?: A privilege may generally be only asserted by the holder.
What is a necessary element for a communication to be privileged?: The communication must be shown or presumed to have been made in confidence
May counsel for the parties or the judge comment on privilege?: No.
When will a privilege be waived?: 1) Failure to claim the privilege,
2) Voluntary disclosure of the privileged matter by holder, OR
3) Contractual provision waiving in advance the right to claim privilege.

**Not waived when someone wrongfully discloses without the holder's consent.
Is a privilege based on confidential in waived because someone eavesdropped?: No.
What is the atty-client privilge?: Confidential communications between atty and client, made during professional consultation, are privilged from disclosure.
When does the atty-client relationship exist for purposes of the privilege?: The client must be seeking professional services of the atty at the time of the communication.

**Disclosures may be privileged even before the atty accepts the case
What is a confidential communication for purposes of the privilege?: The communication must not be intended to be disclosed to 3rd parties and not made in the known presence of strangers.

**Communcations can be made through agents, if necessary and a parent can be present for minors.
Who holds the atty-client privilege?: The client holds and he alone may waive it.

**The atty's authority to claim the privilege on behalf of the client is presumed absent contrary evidence.
How long does the atty-client privilege apply?: Indefinitely. Even after client's death.
What are the exceptions to the atty-client privilege?: Privilege does NOT apply where:
1) Made for purposes of facilitating crime or fraud
2) Relevant to issues b/n parties claiming through same deceased client
3) Disputes b/n attorney and client
4) The info sought is merely the fact that an atty has been hired or client's name.
What is the physician-patient privilege?: Confidential communications btw a patient and physician are privileged, if:
1) Professional relationship exists,
2) The info is acquired while attending the patient in the course of treatment, and
3) The info is necessary for treatment.
What are the exclusions to the physician-patient privilege?: Does not apply where:
1) Patient puts physical condition in issue (e.g., personal injury suit, insanity defense)
2) Assistance was sought to aid wrongdoing
3) Disputes b/n physician and patient
4) Federal case applying federal law of privilege
What is the marital privilege?: Confidential communications between a husband and wife during a valid marriage are privileged.

**Can be claimed by either spouse but both must agree to waive.
What is the effect of divorce on maritial privilege?: It will not terminate the privilege but communications after the divorce are not privileged.
What is the exception to the maritial privilege?: Does not apply in actions between the spouses or in cases involving crimes against the testifying spouse or spouse's children.
What is the spousal immunity privilege?: 1) A person who's married spouse is a D in criminal case can't be called as a witness by the prosection
2) Married person can't be compelled to testify against spouse in any criminal proceeding, regardless of whether spouse is D

**Only applies while married and the W-spouse holds the privilege.
What are the other privileges?: 1) Clergy or accountant privilege.
2) Professional journalist privilge
3) Governmental priviliges
What is hearsay?: An out of court statement offered to prove the truth of the matter asserted.
What is the hearsay rule?: Hearsay must be excluded, UNLESS an exception or exclusion applies.
What is an "out of court statement"?: Any statement (written or oral) except one made by a witness while testifying before the trier of fact.

IE: A prior statement by testifying W is hearsay if not made in present trial before the trier of fact.
When is a statement not offered to prove "truth of the matter asserted"?: When it makes no difference whether the statement sought to be introduced is true or false.

**Eg, prior statement offered for impeachment proves contradiction not truth.
What are some examples of statements not offered "for truth of matter asserted"?: 1) Verbal acts - An operative fact that gives rise to legal consequences
2) Effect on hear - A statement offered to show the reader or listner was put on notice
3) Declarant's Statement of Mind - Showing declarant's knowledge, sanity, or emotion.
4) Reputation - Statements about reputation
5) Impeachement - Use of prior inconsistent statements by W.
What statements are excluded from hearsay despite falling within the definition?: 1) Prior statements - by a testifying W if: (a) inconsistent and given under oath,(b) consistent and offered to rebut charge of lying, or (c) an ID after perceiving.
2) Admission by a party - which are offered against him (personal, judicial, adoptive, or vicarious)
What are the unavailability required hearsay exceptions?: 1) Prior testimony
2) Dying declarations
3) Declartions against interest
4) Forfeiture
When is a declarant "unavailable"?: 1) Absent from the jurisdiciton and beyond reach of subpoena
2) Death
3) Physical or mortal illness
4) Lack of memory
5) Refuses to testify
6) Invokes privilege

**also the "dead man" statute in most states and NY.
What is the former testimony exception?: Former testimony of a now-unavailable W is admissible if:
1) Testimony was given at a hearing in the same action,
2) The party offered against was present at the testimony, AND
3) The party offerd against had an opportunity to and similar motive to devolop the testimony

**Grand jury testimony does NOT qualify (b/c no opportunity to cross-examine)
What is the statements against interest exception?: Statements against interest made by an unavailable declarant are admissible if:
1) Statement against declarant's interest (pecuniary, proprietary or penal) when made, and
2) Declarant had personal knowledge

**criminal D's wishing to uses another's statement admitting the crime must have corroborating circumstances.
What is the dying declarations exception?: Statements made under sense of impending death are admissible in a homicide or civil case if:
1) Declarant believed his death was imminent (need not actually die), AND
2) Statement concerned cause or circumstances of impending death
4) Declarant now unavailable

**Traditional rule: could only be used in homicide case and D must have actually died.
What are the execptions to the hearsay rule that do not require that the declarant be unavailable?: 1) Present state of mind
2) Excited utterances
3) Present sense impressions
4) Declarations of physical condition
5) Business Records
6) Past recollection recorded
7) Official records and writings
8) Ancient documents and docs affecting property interest
9) Learned treaties
10) Reputation
11) Family records
12) Market reports
What is the present state of mind exception?: A statement of declarant's then-existing state of mind is admissible.

**Usually offered to establish a person's intent. (Eg, D say "I'm gonna kill you" right before running over V).
What is the excited utterances exception?: Statement while made under stress of a startling event is admissible.
What is the present sense impressions exception?: Statements made concurrently with perception of event described may be admissible.

**There must be little time for miscalculation.
What is the declaration of physical condition exception?: 1) Sopntaneous declaration of present bodily condition is admissible even though not made to a physician
2) Past declarations are admissible if made to medical personel to assist in diagnosing or treating the condition. (Fed Rule)

**Past declarations extends to the cause or sources of condition.
What is the business records exception?: Writing made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit, are admissible.

**Lack of such writing may bue used to show nonoccurence.
How must a business record be authenticated for the exception?: Must be established by the custodian tesifying or certifying in writing that the record is a business record.
What is the past recollection recorded exception?: If W's memory can't be refreshed, a party may introduce a memorandum that the witness made at or near the time of the event.
What is the offical records or writings exception?: A host of records from police, gov't, etc may be excepted from the hearsay rule. SEE NOTES.
What is the ancient docs and docs affecting prop interest exception?: 1) Statements in any authenticated document more than 20 years old are admissible
2) Statements in any document affecting an interest in property is admissible regardless of age.
How does the confrontation clause affect the hearsay exceptions?: Im a criminal case hearsay is only admissible where declarant is unavailable and D had an opportunity to cross.

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