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NY Learned Treatise
**NY DISTINCTION - DIRECT: Treatise may only be used for the purpose of showing the basis of the expert's testimony, not as substantive evidence. CROSS-EXAMINATION: Only for impeachment, not as substantive evidence, AND Only if opponent expert relied on treatise or acknowledges as a reliable authority
Character Evidence Review Card
Rule: Evidence of character or past acts is inadmissible when offered to prove propensity. There are other non-propensity uses such as MIMIC, Habit, Trait as Element. Character evidence not admissible in civil. In criminal, D may offer evidence of his good character or V's bad character in the form of reputation or opinion. P can rebut D by showing D's bad character or V's good character in the form of reputation or opinion on direct or specific acts on cross.
Reputation or Opinion About Witnesses Bad Character for Truthfulness
A party may attack a witness by calling another witness to testify to the target witness's bad character for veracity. The same form rules apply
Hearsay and the Confrontation clause
In criminal cases, the Sixth Amendments requires that the defendant be "confronted" with the witnesses against him. The prosecution may offer testimonial hearsay in violation of the defendant's right to cross-examine the declarant. Satisfying right to cross-examine: 1) Already had a chance to cross-examine the declarant; 2) If D can cross at trial - prior statement of trial witness; 3) Forfeited through witness tampering - forfeiture by wrongdoing
Party seeking to intro must intro sufficient evidence for a reasonable juror to conclude that the item is what the party claims to be
Leading question
form of question suggests the answer. RULE: Leading questions not allowed on direct examination, but are generally allowed on cross-examination. EXCEPTIONS - Allowed on direct when: 1) Preliminary introductory matters: 2) Youthful or forgetful witnesses: 3) Hostile witnesses: 4) Adverse party or someone under control of an adverse party (**) - like calling the D
Diversity Cases and Fed Law for testimonial privileges
GENERAL RULE: In federal court, apply federal rules of evidence. EXCEPTION: Federal diversity cases - state law governs substantive issues, federal rules, except for: 1) Burdens of proof and presumptions; 2) Dead Man's Statutes 3) Privileges
FEDERAL: 1) Attorney-client; 2) Husband-wife/spousal; 3) Priest-penitent; 4) Psychotherapist-Patient NOT FEDERAL/MAJORITY RULE: Doctor-patient privilege. **NEW YORK PRIVILEGES: 1) Doctor-patient; 2) Social worker-client (includes rape-crisis); 3) Reporter-source
1) Admissible in relation to business, trade or profession; 2) Inadmissible in relation to personal habit on the issue of due care or negligence
NY Rule: Victim's character is a self defense case
Under NY statutory law, evidence of the victim's character to provie victum was first aggressor is inadmissible.
Escapes from BER
1) Voluminous records can be presented thru summary or chart - original records must be admissible and available for inspection; 2) Certified copies of public records; 3) Collateral docs - court must determine, w/n discretion, that doc is unimportant to issues of case
NY and Federal Tests for Expert Witnesses
FEDERAL RULE (Daubert): Has the methodology been tested, Are there known rates of error, Peer review, Methodology generally accepted. **NY RULE (Frye): Asks whether methodology has been generally accepted the relevant professional community. Think DNA vs. polygraph
NY Rule: V's character in a sexual misconduct case
Evidence of V's conviction for prostitution w/n past three years maybe introduced by D.
Under New York law, the rule is the same as federal law, except for this exception subsquent remedial measures are admissible in a products liability action based on strict liability for a manufacturing defect.
NY Rule on Vicarious Admissin
Under NY Statutory law: Statement only admissible if agent or employee had speaking authority - like CEO, general counsel, VP for communications.
When does BER arise
When party seeks to prove contents of writing, which arise in two principal situations: 1) writing is legally operative doc - E.g. deeds, mortgages, divorce decrees, written Ks; 2) W testifying to facts learned solely from reading about them in writing - W with no personal knowledge. DOES NOT APPLY when W testifying of fact that exists independently of non-legally operative writing
P may rebut character evidence by proving conviction of a crime that reflects adversely on character trait at issue
Methods of rehabilitation
RULE: Good character for truthfulness - If W's character for truthfulness has been attacked through bad acts, criminal conviction, or reputation for truthfulness, opposing party may introduce corresponding good character for truthfulness evidence. Form - FEDERAL: reputation or opinion; NEW YORK: reputation; NOT ALLOWED: specific acts
If evidence admissible for one purpose, but not another
Judge gives limiting instruction
Contradiction by W
RULE: W may be impeached by showing she made a mistake or lied about any fact she testified to during direct. PROCEDURE: Contradiction significant in case - use extrinsic evidence. Matter collateral to issues in case, or W's credibility - only intrinsic evidence.
P must produce clear and convincing evidence that D committed the prior act
Bad acts of W
No conviction, but reflect adversely on W's character. FEDERAL RULE: W may be asked about prior bad acts if they relate to truthfulness (no need for criminality). NEW YORK RULE: W may be asked about bad acts that show W's moral turpitude (criminal conduct that does not relate to truthfulness too). LIMITATIONS: Cross-examiner must have Good faith belief that the bad act occurred. May be proven by intrinsic evidence only. Bring in extrinsic if related to some other issue.
Past recollection recorded
(Hearsay exception) Writing aiding testimony. RULE: Writing may be read to jury as a past recollection recorded if: 1) W once had personal knowledge; 2) Now forgets, seeing writing does not jog memory; 3) Writing was made or adopted by W; 4) Writing made when event was fresh in W's memory; 5) W can attest that, when made, writing was accurate. METHOD: Witness my read (not show) doc to the jury. Opposing party may show the doc to the jury by introducing it as an exhibit. **NY DISTINCTION - Party using recorded recollection may intro record as an exhibit.
Duplicate rule for BER
Duplicate = any counterpart produced by any mechanical means that accurately reproduced the original (almost always enough). DUPLICATE RULE: Admissible to the same extent as original, unless: 1) Genuine question about authenticity of original; OR 2) would be unfair to admit duplicate.
Impeachment Procedural Considerations
A witness who is being impeached with a prior inconsistent statement must be given an opporunity to explain or deny prior inconsistent statement. In NY, the witness must be given a chance to explain the statement while still on the stand.
Character Evidence Analysis
1) Is the case criminal or civil? 2) Is the evidence being offered for propensity? 3) Has the door been opened for character evidence? 4) Is the evidence of the correct form? Is the character evidence being offered for the propensity?
BER Excuse for non-production of originals
A party need not produce the originial if the original is lost or cannot be found with due dilligence, or has been destroyed without bad faith or cannot be obtained with legal process. If the court is persuaded by prepondarance of the evidence that the excuse has been established, then secondary evidence is admissible.
Evidence of Similar occurrences
GENERAL RULE OF RELEVANCE: Evidence must relate to some time, event, or person involved in the present litigation for admissibility, EXCEPTION: Limited and specific, other similar occurrences may be admissible, even if outside scope of relevance parameters
RULE: Prior consistent statement
Hearsay exception - may be used if: 1) It is consistent w/ trial testimony; 2) Opposing party has suggested motive to lie (e.g. bias); and, 3) Prior statement before motive to lie arose **NY RULE: Prior consistent statement ONLY to rehabilitate
EXCEPTION To Similar Occurrences rule
Limited and specific, other similar occurrences may be admissible, even if outside scope of relevance parameters: 1) Habit; 2) P's accident history - RULE: generally inadmissible; EXCEPTION: P's prior accidents may be admissible to show 1) fraudulent scheme or plane, 2) causation; 3) Similar accidents caused by same event or condition - RULE: Generally not admissible (exception)
Laying the foundation for records
Call custodian of the records to give life testimony - knowledgeable witness to testify that five elements were met. Affidavit - can submit a written certification under oath attesting to elements. **NY QUALIFICATION: Written certification only in a civil case and only for biz records of non-party
Ultimate issues and opinion testimony
RULE: Opinion testimony is generally permissible even if addressing ultimate issue in the case. Almost always the wrong answer.
Present recollection refreshed
Writing in aid of oral testimony. BASIC RULE: Witness can't read prepared memorandum; must testify on basis of current recollection. Refreshing recollection - W may be shown a writing/anything else to jog memory, not evidence. Opposing party has a right to 1) inspect item; 2) use it on cross; 3) Introduce it into evidence
Under NY statutory law, photocopies and other dups are acceptable substitutes for original, only if dups made in regular course of biz.
has an EXCEPTION - accident case based in negligence, surviving party: 1) May testify about the facts of the accident; 2) BUT may not testify about converstations w/ decedent
Burden of proof For MIMIC Rule
FEDERAL: The sufficiency standard - sufficient for reasonable jury to conclude D committee prior act by POE
Victim's character is a self defense case SPECIAL RULE AND **NY RULE
D may offer evidence of his own knowledge of V's bad character for violence to show that D reasonably believed in the need to use self-defense. NY Rule: Defendant can introduce evidence of his knowledge of the victim's character for violence.
Procedural Accompaniments to MIMIC Evidence for NY Essays
1) Rule 403: Court must weigh probative value vs prejudice 2) Limiting instruction: Court must instruct jury about limited purpose of MIMIC evidence 3) Pretrial notice: Upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.
**NY DISTINCTION on state of mind
Statement to layperson of present physical condition - Declarant must be unavailable. Statement of future intent, regarding third person - NY requires: Corroboration AND Unavailability
**NY RULE on Propensity for sexual assault
Rapists and child molesters treated just like every other D, no prior bad acts from P to prove propensity
Impeachment of own witness
FEDERAL RULE: Any party can impeach any witness. MBE Wrong answer: "Can't pick your own witness" **NY RULE (VOUCHER RULE): Calling witness = vouching for credibility, usually party who calls may not impeach EXCEPTIONS: Party may impeach own W w/ prior inconsistent statement that was: 1) Made in writing and signed by W; OR 2) Made in oral testimony, under oath
Proper basis of expert witness opinion
1) Opinion must be based upon a reasonable degree of probability or reasonable degree of certainty and, 2) Must be based on one of these data sources: a) Expert's personal knowledge (Like a treating doc); b) Evidence already in trial record; c) facts outside record, but only if they are of a type reasonably relied on by experts in field. On direct - expert may not disclose to jury, but cross-examination may.
Under New York statutory law, withdrawn guilty plea is admissible in the subsequent civil case, NOT crim case. A plea of guilty that is not withdrawn is admissible against the defendant in subsquent litigation based on the same facts in both federal and New York court.
Learned treatise Rule
in aid of expert testimony (hearsay exception) - FEDERAL RULE: If a party can establish treatise is reliable authority: Treatise may be used on direct or cross, may be read into evidence as substantive evidence. BUT, treatise itself may not be introduced as exhibit. RELIABLE AUTHORITY when: 1) Own expert testifies as authoritative; 2) Opponent's expert admits authoritative; OR 3) Judge takes judicial notice treatise is authoritative. There is an **NY DISTINCTION
TIMING RULE on rehabilitation
Generally, rehabilitate only after credibility has been attacked through impeachment. Bolstering = trying to into evidence to support credibility prior to attack, not allowed. EXCEPTION: W's prior statement of ID is admissible w/o credibility attack - MUST be made by trial witness subject to cross. Prior ID seen as more reliable - admissible as substantive evidence, hearsay exception. **NY RULE: Same rule, EXCEPT not allowed in civil cases.
Admitted hearsay, opposing party may use any of impeachment methods to attack credibility of hearsay declarant
Other sexual misconduct to show propensity for sexual assaults
FEDERAL RULE: In any criminal or civil case alleging sexual assault or child molestation, the prosecution may offer evidence of the defendant's prior sexual assaults for the purpose of proving the defendant's propensity for sexual assault. **NY RULE: Rapists and child molesters treated just like every other D, no prior bad acts from P to prove propensity
Admissibility of expert opinions
RULE: To be admissible, expert opinion must be sufficiently reliable: 1) expert has used reliable methods and, 2) Has reliably applied methods to the facts of the case. Standards FEDERAL RULE (Daubert): Has the methodology been tested, Are there known rates of error, Peer review, Methodology generally accepted. **NY RULE (Frye): Asks whether methodology has been generally accepted the relevant professional community. Think DNA vs. polygraph
Rules on Child Witnesses' Competency
FEDERAL RULE ON CHILDREN: Too young for oath, may not testify. **NY RULE ON CHILD'S TESTIMONY: child may testify under oath, so long as child understands the obligation to tell the truth and promises to tell the truth: 1) civil cases - All witnesses, including children, must take an oath; 2) exception in criminal cases - Child < 9, who cannot understand oath, may testify (give unsworn testimony). Cannot convict D on testimony alone - NEEDS corroboration.
Testimonial/Non-testimonial statements
primary purpose is to establish or prove past elements potentially relevant to later criminal prosecution, Grand jury testimony. Non-testimonial - primary puspose is to enable police assistance to meet ongoing emergency. Docs: Police records are testimonial, Business records are not
NY Rule Former Testimony
Former testimony must have been given at a criminal trial, hearing on felony complaint, or conditional deposition. D charge must be same. NOT from a suppression hearing.
Evidence of Similar accidents caused by same event or condition
RULE: Generally not admissible. EXCEPTION: involving same instrumentality of condition, and occurring under substantially similar circumstances admitted for 3 purposes: a) Show existence of dangerous conditions; b) to show causation; c) to show prior notice to D (experiments and tests - must be substantial similarity btn experiment and disputed fact); d) Intent in issue RULE: Prior similar occurrences may be relevant to draw on inference of intent from a person's prior conduct; e) Comparable sales on issue of value. RULE: selling price of comparable property admissible for value of property (standard appraisal); f) Industrial custom as standard of care - shows appropriate standard of care. RULE: evidence on how others in same trade or industry acted, may be admitted to show how party should have acted
Victim's character is a self defense case FEDERAL RULE
A criminal defendant may offer evidence of the victim's violent character to prove that the Victim was the first agressor. If the defendant opens the door, then the prosecution may rebut in two differenet wyas, by evidnce of 1) V's good character for that trait; 2) D's bad character for that trait. Same form rules
Expert witness opinion
GENERAL RULE - Testimony as an expert witness only if: 1) W is qualified by education/experience; 2) Testimony about subject matter where scientific, technical, or specialized knowledge will be helpful to the jury; 3) Opinion has a proper basis; AND 4) Opinion is reliable

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