Evidence II

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what is relevant under the daubert standard?: 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?
x charged with assaulting wife. at trial refuses to testify. prosecution calls police and introduces tape recorder of 911 is that ok?: no confrontation clause issue -- not testimonial.
ny distinction on present sense impression: it requires corroboration.
how is bias proven: any way- even with extrinsic evidence
how may a party impeach a witness: by calling another witness to testify to the target witness's bad character for veracity -- b/c he might be the type to lie on the stand.
what is the collateral evidence rule: if a cotnradiction is a collateral matter, can only use intrinsic evidence to impeach and cannot prove it - stuck with that answer
is the spousal immunity privilege recognized in ny: NO ONLY SPOUSAL COMMUNICATIONS IS PRIVILEGED
new york distinction on unavailability: in ny the grounds for unavailability include 1. privilege, 2. absence from the jurisdiction, 3. illness or death 4. in a CIVIL case--> also if D is 100 miles or more away from the courthouse or if b. the declarant is a doctor
vicarious admissions in the federal system:: a statement by an agent or employee of a party is admissible against the party (principal or employer) if it concerns a matter within the scope of the agency or employment and was during the agency or employment
business and public records exception: records of a business made in the regular course of business and the business regularly keeps such records made contemporaneously - and the contents consist of information observed by employees of the business or a statement that falls within some other hearsay exception.
forfeiture by wrongdoing: a party who intentionally and wrongfully makes a declarant unavailale cannot raise a hearsay objection to admission of the declarant's out of court statements.
what are some examples that a lay witness may testify about: 1. sobriety or drunkeness, emotiom, speed, handwriting, smells
can an expert says-- Let me read to you what Wump said during our interview . . . . . . . and here's what was in Dr. Fraud's report"?: no- may only give opinion and not disclose the contents of the underlying hearsay
spousal immunity: in a criminal case, the prosecution cannot compel the D's spouse to testify against him - when it applies, applies only in CRIMINAL CASES AND IF THEY ARE MARRIED AT THE TIME OF TRIAL NOT THE TIME OF EVENT!
new york distinction on statement of then existing mental emotional or physical condition: if a statement of a present physical condition is offered it must be made from a lay person (not a doctor) or the declarant must be unavailable ( if unavailable doctor is ok). if the statement is of future intent-- declarant must be unabailable and need corroboration.
witness testifies for D and on cross P asks the witness is he was arrested for bla bla. ok?: no! arrest is not a conviction and is also not a bad act. cannot impeach by an arrest.
how may contradictions be proven?: if it goes to an issue significant to the case, then it may be proven by extrinsic evidence.BUT if it foes to a makker that is collateral-- ie insignificant then it is limited to intrinsic evidence only and stuck with the witness' answer.
can you bring up bad acts without conviction that reflect adversely on a witness's character for truthfulness in NY: a witness may be asked about prior bad acts that show the witness's moral turpitude -- so CAN ASK ABOUT CRIMINAL CONDUCT THAT DOES NOT RELATE TO TRUTHFULNESS LIKE DRUG USE AND ARSON
what are exceptions to both types of spousal privilege?: communication/acts in furtherance of future crimes or fraud or destructive of the family unit (like spousal or child abuse)
may a witness be impeached by his prior convictions? in NEW YORK?: any witness may be impeached with a conviction for any crime. BUT WHEN THE WITNESS IS THE DEFENDANT, THE COURT MUST BALANCE THE PROBATIVE VALUE OF THE CONVICTION ON THE ISSUE OF VERACITY AGAINST THE RISK OF UNFAIR PREJUDICE -- sandoval hearing!!!
Does the dead man's statute apply in the federal rules: Under the Federal Rules, there is no Dead Man's Statute - a witness is not incompetent simply because she may have an interest in the outcome of the litigation- so an interest witness may testify
Faith sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial. Under a dead man's statute—May Faith testify to what Elvis said and did in negotiating the contract?: No - Faith cannot testify b/c she's an interested party and incompetent under the Dead Man's Statute
what is a contradiction: where the witness may be impeached by showing that she made a mistake or lied about any fact that hse testified to during the direct examination
what is the NEW YORK RULE for scientific evidence: the FRYE standard
Faith sues the administrator of Elvis's estate in New York state court for injuries she suffered in an auto collision. Elvis died shortly after the accident If no one else witnessed the accident, may Faith, over a dead man's statute objection, testify that immediately after the accident:: No - in NY, this is a direct communication and accident exception does not apply to communications ( note-- If Shania (Faith's friend) also witnessed the accident, may she testify for Faith that Elvis admitted his fault? Yes - in NY, the accident exception allows interested party to testify. But Shania is not an interested party anyway.)
if someone's recollection is refreshed may he then read the list into evidence?: no. The writing is not evidence. (note it can even be a can of beer need not be a writing). if he then remembers he then has personal knowledge so it is no longer hearsay. Evidence is his current recollection
when is ultimate issue a good objection: in a criminal case an expert witness may not testify that the defendant did or did not have the required mental state-- good objection for insanity. this is the Federal rule ONLY!!!!!!
what is past recollection recorded: if the writing FAILS to jog witness's memory and still unable to testify on he basis of his current recollection. then a writing may be read to the jury as past recollection recorded if the witness once had personal knowledge, the witness now forgets and showing the writing to the witness fails to jog his memory and the writing was either made by the witness or adopted by him ( ie cop wrote the list and the witness agreed to the contents in the list) and the writing was made when the event was fresh in the witness's memory and the witness can attest that when made it was accurate
statement for purpose of medical treatment or diagnosis: a statement made to a medical professional concerning present symptoms or past symptoms or the general cause of medical condition FOR THE PURPOSE OF TREATMENT OF DIAGNOSIS. not for fault or identiy of wrongdoer.
what is the affect of a prior consistent statement?: admissible to rehabbilitate AND as substantive evidence that the prior statement was true. but in NY ONLY TO REHABILITATE!!!!!!!
what is the NEW YORK distinction with the party using the recorded recollection?: he may also introduce the record as an exhibit -- show it to the jury
who decides is a witness is hostile?: the court
confrontation clause and police interrogations;: testimonial if the primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecutions it is not testimonial if the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency (9111)
what are the limitations on questioning a witness about prior bad unconvicted acts?: good faith basis and can only be proven with intrinsic evidence only. )note- extrinsic can come in if relates to some other purpose like proof of bias)
to be admissible, expert opinion must be sufficiently reliable. what does reliable mean?: 1. reliable methods and 2. the expert has reliably applied those methods to the particular facts of the case.
is bolserting allowed?: no- this is introducing evidence to support a witnesse's credibility before the credibility has been attacked
dying declaration elements include;: 1. declarant is unavailable 2. statement was made under a belief of certain and impending death 3. the statement concerns the cause and circumstances of the declarant's death. HE MUST THINK HES GANNA DIE!
instrinsic impeachment: impeaching a witness by asking the witness questions on cross examination
exceptions to attorney client privilege: 1. future crime or fraud --if the purpose of the communication is to help facilitate a future crime or fried 2. when the client puts the legal advice at issue (ie in tax fraud prosecution D defends on ground that she relied on advice of her attorney in reporting income) and 3. A/C dispute- if client sues attorney for malpractice
in ny how can a treatist be used 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
If an item is used to refresh a witness's memory the opposing party has a right to: 1. inspect it 2. use it on cross 3. introduce it into evidence
defendant is prosecuted in fed court for arson. at trial D testifies that it was an accident. on cross may prosecutory ask him if he was convicted 8 years ago of felony assault?: maybe- assault is NOT a crime of deceit but is a felony so check if probative value outweighs unfair prejudice.
what does credibility rest on?: 1. perception 2. memory and 3. honesty
differences between spousal communication and spousal testimony privilege?: communication- married at time of communication and in AND case. need both to waive. testimony- married at time of trial, only criminal case and any witness can waive.
in ny is former testimony given in a supression hearing admissible?: NO
Faith sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial. Under a dead man's statute May Faith's friend Shania, who witnessed the making of the contract, testify to what Elvis said and did?: Yes - Shania is not an interested party and thus competent. She may be "interested" in that she's a friend of F, but not an interested party within the statute.
how can a prior statement of ID be used?: as SUBSTANTIVE EVIDENCE and not just to rehabilitate! this is a hearsay exception.
in NEW YORK when can prior inconsistent statements be admitted as susbtantive evidence: never-- only to impeach.
what is the federal rule on impeachment: any party may impeach any witness
what is the reliability standard for scientific evidence - federal rule?: daubert standard
in ny, party admissions are called: an exception
what is an interested person: A person is "interested" only if the outcome of the case will have a legally binding effect on the person's rights or obligations
what are the factors in balancing probative value and unfair prejudice: seriousness, relation to trust and deception. also, the more similar the past crime is to the current crime the more prejudicial it is and more likely it will NOT be allowed!
ultimate issues: opinion testimony-lay or expert- generally is permissible even if it addresses an ultimate issue. (note-- now it is allowed!! but it is USUALLY THE WRONG ANSWER)
business records are: not testimonial
ny distinction on former testimony: the former testimony by a non unavailable witness must have been given at a criminal trial, a hearing on felony comlaint or at a conditional deposition. d and the charge must be the same in both the former and current case.
what is the NEW YORK rule on prior statement of ID?: same as federal, except it is ONLY allowed in CIVIL CASES!! plus MUST BE MADE BY A TRIAL WITNESS WHO IS SUBJECT TO CROSS EXAMINATION!!
under the FRE, party admissions are called: exclusions or not hearsay b/c statutorily excluded.
what is covered under the attornet/client privilege?: applies to relationships between attorney and client (or their reps) and covers communications only so long as they are confidential and for the purpose of professional legal consultation unless it is waived by the client or an exception applies. * client includes a person seeking ot become a client--even at formal consultation
what kind of testimony- what form- may be used to impeach a witnesse's character?: federal - reputation or opinion only; new york- reputation only. specific acts are NOT allowed
if the foundation for a recorded recollection is satisfied then: the witness may read the document to the jury but the witness may not show the document to the jury. but, the opposing party may show the document to the jury (by introducing it as an exhibit)
what are the two competency requirements: personal knowledge and take an oath (demonstrate an understanding of the obligation to tell the truth and promise to tell the truth
there is no confrontation clause issue is;: 1. the declarant is subject to cross 2. the declarant was subject to cross at the time statement was made 3. D has forfeited his confrontation by tampering/making declarant unavailable 4. if it is not testimonial
lay opinion testimony is admissible if it is: rationally based on the witness's perception (personal knowledge) and helpful to the jury
cant the dead person's rights be waived?: yes- if the decedent's rep does not object, the decedent's rep testifies about the transaction or the decedent's testimony is introduced
how can u establish authoritativeness for learned treatise?: 1. your own expert testifies that it 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 a prior inconsistent statement: a prior inconsistent statement is simply a prior statement orally or in writing that is materially inconsistent with the witness's trial testimony.
extrinsic impeachment: impeaching a witness by introducing documentary evidence or by calling other witnesses
what is a prior consistent statement: a prior statement that may be used to rehabilitate where it is consistent with the witness's trial testimony, the opposing party has suggested through impeachment that the witness has a motive to life (usually biase) and the prior statement was made before the motive to lie arose
witness testifies for defense that defendant drove through the itnersection at a very slow speed. on cross examination, plaintiff asks witness whether she assaulted her mail carrier two years ago- no charges were ever brough. defendant objects. how should the court rule?: in fed court, sustained because the prior bad acts do not relate to truthfullness but in NY overruled b/c it does relate to moral turpitude . - if it was about food stamps then admissible in both
statement against interest: declarant is unavailable and the statement is against the declarant's pecuniary, proprietary or penal interest ( money property or criminal liability) -- realize someone is not likely to lie when making a personally damaging statement.
Faith sues the administrator of Elvis's estate in New York state court for injuries she suffered in an auto collision. Elvis died shortly after the accident If no one else witnessed the accident, may Faith, over a dead man's statute objection, testify that immediately after the accident: Elvis staggered as he approached her, and: in NY - yes. Although transaction with the decedent, b/c in NY and accident, the exception applies and living party can testify as to facts of the accident
, based on Charlie the truck driver's negligent driving. Charlie was fired immediately after the accident. Two weeks later, Charlie told Plaintiff's insurance adjuster that he had been drunk while driving. At trial, Charlie refused to testify on the ground of self-incrimination. Plaintiff offers the insurance adjuster's testimony about Charlie's statement as evidence against Acme.Admission as a statement against interest?: Yes - saying he was drunk exposes C to civil and criminal liability. And he's unavailable b/c he asserted a valid privilege (against self-incrimination). Statement can be used against Acme at trial
when may a witness be rehabilitated: only after his credibility has been attacked through impeachment
present sense impression: the statement describes and event and is made while the event is occuring or immediately thereafter
what is the qualification for statement agaisnt penal interest in a criminal case?: when offered to exculpate a D it must be supported by corroborating circumstances
verbal acts examples include:: words of offer, repudiation or cancellation of contract, works that have the effect of making a gift or a bribe, words that are themselves an act of perjury or a criminal misrep or a defamation
what is not a crime of dishonesty: drugs, robbery theft, shopligting
ny distinction of statement for purpose of medical treatment or diagnosis: cannot include statements made solely for the purpose of obtaining expert testimony at trial.
do fed courts recognize doctor patient privilege: no- but most states do so if it is a diversity case apply the rule that it is
how may a witness be impeached by his prior convictions in the federal system?: to be admissible a conviction must be within 10 years of trial and crime of dishonesty or false statement is allowed-- such as perjury, false statement, fraud, embezzlement (not violence, drug crimes, theft) and other crimes that do not involve dishonesty are NOT ALLOWED UNLESS THEY ARE FELONIES WHERE THE PROBATIVE VALUE ON THE ISSUE OF VERACITY OUTWEIGHS THE RISK OF UNFAIR PREJUDICE TO A PARTY
if the witness is the opposing party do u have to give the witness an opportunity to explain the prior inconsistent statement: no
under the federal law, when must a witness be given a chance to explain the prior inconsistent statement: 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.
can one spouse waive the spousal privilege: no only both can
what is the exception to bolstering?: when it is a witnesses prior statement of identification. this is admissible even if the witness's credibility has not yet been attacked. -- ie identification in a lineup, which is more reliable than court id
when will privilege not apply in the client attorney privilege: joint clients and a dispute between THEM
Defendant is sued for negligence in a multi-vehicle accident in which he was driving a Dodge and Plaintiff was driving a Pontiac. Witness testifies for Plaintiff that she saw the Dodge run the stop sign.May Defendant use Witness's statement to the police as substantive evidence that the Dodge, rather than the Pontiac, ran the stop sign?: No - although the prior inconsistent statement ok to impeach, not admissible to prove the truth. For that purpose, it is hearsay. Statements to police are never parts of formal proceedings. - must be a trial, deposition, some kind of hearing.
When may leading questions be allowed on direct examination? (4): 1. preliminary introductory matters (things not in dispute like name, occupation, address) 2. youthful or forgetful witness (like mentally disabled or old) 3. hostile witness 4. the adverse party or someone under control of the adverse party-- if the plaintiff called one of the defendant's employees for example
police reports are: testimonial
a witness's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception applies. what are these exception?: 1. prior statements of ID 2. prior inconsistent statementsi f made under oath during a formal proceeding (IN NEW YORK ONLY TO IMPEACH) 3. prior consistent statement is used to rebut an accusation of a motive to lie and made before the motive arose (IN NEW YORK NOT AS SUBSTANTIVE EVIDENCE)
statement of then existing mental emotional or physical condition: must be a contemporaneous statement concerning the declarant's then existing physical condiciton ro state of mind (BUT NOT A STATEMENT OF MEMORY OR BELIEF ABOUT A PAST CONDITION) it DOES include statement of future intent to do something with a third person.
methods of impeachment include: 1. prior inconsistent statements 2. bias 3. sensory deficiencies 4. reputation or opinion 5. criminal convictions 6. bad avts (without conviction) 7. contradiction
when may a prior inconsistent statement be admitted both to impeach and as substantive evidence: if the statement was made orally under oath and as part of a formal hearing proceeding-- ie trial or deposition
What is the NY dead man's statute rule: : The New York Dead Man's Statute is similar to the rule in most other states (applies to communications/transactions w/the dead party), with one important exception-- In an accident case based on negligence (NEGLIGENCE ONLY), the surviving party (1) May testify about the facts of the accident. (2) But may not testify about conversations w/the decedent
excited utterance: spontaneous statements-- concerns a startlign event and was made while the declarant was still under the stress caused by the event
when does the dying declaration apply?: 1. federal cases-- any civil or criminal homicide (not rape or robbery or burglary or arson) 2. new york-- ONLY IN CRIMINAL homicide.
difference between treatises in ny and fre: in ny not used as substantive evidence and in federal rules they are
can you prove the prior untruthul acts if the witness denies?: no - only ask and never prove
State v. Doppler for arson of Town Hall. Doppler calls Waldo to testify that while sitting in a bar one night recently, Waldo heard Stranger say, "I'm the guy who torched Town Hall, but I'm sure glad they think it's Doppler. Just to be safe, I'm leaving town tomorrow." Doppler's attorney demonstrates that Stranger has not been located despite diligent efforts to find him: Not unless there is some corroboration
what privileges does new york recognize: attorne/client, H &W, priest and penitent, psych and patient, doctor and patient, social worker and client , and reporter/source.
witnesses may testify to an opinion as an expert only if: 1. the witness is qualified (by education and/or experience); 2. the testimony is about a subject matter where scientific, technical or specialized knowledge will be helpful to the jury or 3. the opinion has a proper basis and 4. the opinion is reliable
non hearsay:: 1. impechment 2. verbal acts (legally operative words with independent legal significance) 3. to show effect on person who hear or read it 4. circumstantial evidence of state of mind
what makes an event "excited?": the nature , passage of time, verbal clues
D is charged with conspiracy to commit bank robbery - that is, agreeing with X to rob a bank. X confessed to the police that he was one of the robbers, but is now asserting his Fifth Amendment right not to testify. At trial, the prosecution seeks to introduce X's confession. Admissible?: No. Might fit in the exception as a statement against interest: unavailable and against himself. Still it violates confrontation clause: can't cross, unavailable not through D's fault, and against himself.
how are sensory deficiencies proven: intrinsic OR extrinsic evidence
what is present recollection refreshed: if a witness forgets something he once knew he may be shown a writing or anything else to jog his memory. (anything is acceptable)
vicarious admissions by co conspirators: a statement of one co conspirator is admissible against another co conspirator if the statement was made during and in furtherance of the conspiracy (CONSPIRACY CAN NOT BE OVER)
what is a sensory deficiency: anything that could affect the witness's perception or memory - ie-- bad hearing, bad eyesight, mental retardation, forgetfulness, intoxication
new york distinction to vicarious party admission: in NY, speaking must be PART of his job-- only ih he had speaking authority like general counsel, VP of communications, CEO, etc.
what is the learned treatise in aid of expert testimony testimony hearsay exception: the federal rule-- if a party can establish that a treatise is reliable authority then the treatise may be used on direct or cross examination of an expert, and the treatise may be read to the jury as substantive evidence but the treatise may not itself be introduced as an exhibit ( cannot be shown to the jury)
what does the physicial patient privilege apply to: confidential communication or information acquired by physicial from patient for the purpose of diagnosis or treatment of a medical condition
based on Charlie the truck driver's negligent driving. Charlie was fired immediately after the accident. Two weeks later, Charlie told Plaintiff's insurance adjuster that he had been drunk while driving. At trial, Charlie refused to testify on the ground of self-incrimination. Plaintiff offers the insurance adjuster's testimony about Charlie's statement as evidence against Acme. ). C's statement Admissible as a vicarious party admission?: ? No - when he made the statement, he was already fired. When he made the statement, he was not an employee.
if a witness testifies but then cannot be cross examined his direct testimony will be: struck
excpetion to public records: police records may not be offered against the D in a criminal case-- in a civil case only. - and in NY no conclusions just the observations!!! in federal rules conclusions too!!!
what is the difference between present recollection recorded and past recollection recorded?: in present recollection u dont read the evidence u just show it to the witness and in past recollection u can read it in but u do not give it to the jury
can the opposing side disclose the basis of the expert's opinion?: yes
what is the proper basis of opinion: 1. the opinion must be based on a reasonable degree of probability of reasonable certainty and 2. the opinion must be based one one of the three following sources: 1. the expert's personal knowledge (ie a treating physicial) or 2. evidence that is already in the trial record (made known through a "hypo") or 3. facts outside the record but only if those facts are of a type reasonably relied on by experts in the particular field.
a witness who is being impeached with a prior inconsistent statement must be given: an opportunity to explain or deny prior inconsistent statements
elements of physicial patient privilege: relationship between doctor and patient (therapist, nurses and physicial assistances and in NY also includes dentists, podiatrists and chiropractors) and covers communications AND information acquired by the doctor so long as it is confidential and for the purpose of medical diagnosis or treatment ** federal distinction - covers only psychotherapists
what is a testimonial statement?: grand jury testimony and police interrogation.
for forfeiture by wrongdoing what do u need to prove - burden- to allow this?: federal; preponderance of the evidence. NY-- clear and convincing-- higher standard
statement made to an officer and co conspirator exception: if made to an officer then it is not in furtherance of conspiracy if made to an undercover officer it can be admissible
on cross examination in NEW YORK how are treatises used: they may only be used to impeach the opponent's expert's credibility --NOT as substantive evidence and they may only be used if the opponent's expert either relied on the treatise in developing her own opinion or acknowledged that it is a reliable authorityi
NY RULE for testimony by children: - all witnesses, including children must take an oath but (2) Exception for Criminal cases: A child under the age of 9 who cannot understand the oath may still testify (in other words, the child may give unsworn testimony). Children < 9 can still take an oath. BUT, a defendant cannot be convicted based solely on unsworn testimony. There must be some corroboration.
jury decides questions of: conditional relevance-- if a witness has personal knowledge, if an exhibit is authentic, if the D in fact commited prior bad act.
can you bring up bad acts without conviction that reflect adversely on a witness's character for truthfulness in federal system?: a witness may be asked about prior bad acts-- THEY DO NOT NEED TO BE CRIMES CAN EVEN BE LYING TO A SPOUSE OR ON A RESUME- if those acts relate to truthfulness-- cannot ask about arson, drug use, murder etc
what privileges to fed courts recognize: attorney/client; husband/wife, priest/penitent and psychotherapist/patient
proper subject matter of cross examination includes: matters within the scope of direct examination and matters that affect the witness's credibility
laying the foundation: live testimony or affidavit; in new york, written certification may be used only in civil cases.
if an expert relies on facts outside the record then 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
what is the frye standard?: it asks only whether the methodology has been generally accepted by the relevant professional community. it doesn't really matter what the judge thinks, but what is relevant is what others think-- ie DNA testing has been accepted while polygraph evidence is generally inadmissible- not reliable enough
defendant is prosecuted in fed court for arson. at trial D testifies that it was an accident. on cross may prosecutory ask him if he was convicted 8 years ago of income tax fraud?: yes-- crime of dishonesty (but if it was drugs NOT ok)
Faith sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial. Under the Federal Rules—May Faith testify to what Elvis said and did in negotiating the contract?: Yes - no Dead Man's Statute in the FRE so no rules as to who can and cannot testify against a dead party.(note- her friend may also b/c under the FRE there is no restriction as to who can and cannot testify).
what are the elements of the former testimony exception: 1. declarant is unavailable 2. the prior statement was given in a proceeding or deposition 3. and is offered against a party who in the prior occassion has an opportunity and a similar motive to cross examiner or to otherwise develop the testimony -- but the testimony must have been substantially similar in the past so similar motive to cross examine
former testimony--> UNAVAILABILITY. what are the grounds for unavailability?: 1. privilege. 2. absence from the jurisdiction 3. illness or death 4. lack of memory 5. stubborn refusal to testify
what is the dead mans statute: in a CIVIL action, an INTERESTED party may NOT testify against a DEAD party or his rep about communications or transactions with the dead party
does the confrontation clause apply in civil cases: no only in criminal cases
in NEW YORK when must a witness be given a chance to explain the prior inconsistent statement: while he is still on the stand-- ie the statement must be proven through intrinsic cross examination before it can be proven extrinsically.
hearsay exception: party admission: any statement made by a party is admissible if it is offered against that party (by the other side)

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