EVIDENCE

• - Defined: Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case w/o the evidence
• - Rule: All relevant evidence is admissible

• - Defined: Relevant evidence is not admissible if the ct makes a discretionary determination that the probative value of the evidence is substantially outweighed by 1 or more pragmatic considerations.
• - 6 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.

• (1) Liability insurance: Evidence that a person has/does not have liability insurance is inadmissible for the purpose of proving fault/absence of fault. Admissibility depends on purpose of evidence!
• - Exception: Evidence may be admissible for some other relevant purpose, such as (a) proof of ownership or control if that issue is controverted by D, or (b) impeachment of witness (bias).

• (2) Subsequent Remedial Measures: Repairs/design changes/policy changes taken AFTER an accident that could have prevented accident. SRMs are inadmissible to prove negligence, culpable conduct, product defect, need for warning.
• - Exception: Admissible to show ownership, control, feasibility of safer condition IF that issue is controverted by D.
• - NY Exception: SRM admissible for products liability for strict liability manufacturing defect.

• - If there is a disputed civil claim then evidence of settlement, offer to settle, or statements of fact made during settlement discussions are inadmissible to prove liability.
• - Exception 1: admissible if offered to impeach witness on grounds of bias
• - Exception 2: Statements of fact made during settlement discussions in civil litigation w/gov't regulating agency are admissible in later crim case.

• - Not admissible to prove liability
• - NOTE: this rule does not include other statements made in connection w/an offer to pay medical expenses.

• - 4 inadmissible against D in pending criminal litigation or in subsequent civil case; (1) an offer to plead guilty, (2) a withdrawn guilty plea (NOTE - In NY, admissible in subsequent civil case), (3) a plea of non contendere, (4) statements of fact made during plea bargaining.
• - NOTE: A guilty plea that is not withdrawn is admissible in subsequent litigaiton based on same facts in fed and NY cts.

• - Defined: Refers to a person’s general disposition or propensity
• - Purpose Matters: You must identify 1 of 4 purposes; (1) propensity,(2) witness veracity, (3) non-propensity purpose, (4) character trait aselement.
• - General Rule: Character evidence is inadmissible to prove propensity but admissible for the 3 other purposes.

• - General Rule: Character evidence is inadmissible to prove propensity but admissible for the 3 other purposes.
• - Exception 1: D may introduce evidence of his own good character for a relevant trait, but if D does, prosecution may rebut w/evidence of D’s bad character for same trait.
• - Form: When character evidence is used to prove propensity, only proper methods are reputation or opinion (just reputation in NY). No specific acts allowed.
• - NOTE: To rebut, prosecution can call witness to testify to D’s bad character in the form of reputation or opinion (in NY, just rep) or can cross examine D’s character witness by questioning knowledge of specific acts (Have you heard? Did you know) but only to impeach, not to show act actually occurred.

• - General Rule: Crim D may offer evidence of victim’s violent character to show victim was first aggressor
• - Form: Reputation or opinion
• - Prosecution can rebut by evidence of (1) victim’s good character for peacefulness and/or (2) D’s bad character for violence
• - NY: evidence INADMISSIBLE to prove victim was first aggressor
• - Special Rule: D can offer evidence of his own state of mind of victim’s bad character for violence for purpose of showing that he reasonably believed in need to use self-defense.

• - Rape Shield Rule: In a case involving sexual misconduct, D generally cannot use evidence of victim’s reputation for promiscuity or victim’s prior sexual conduct
• - Exception 1: Evidence of victim’s sexual activity w/D only if defense is consent
• - Exception 2: Evidence of victim’s sex activity w/others only to prove someone other than D was the source of physical evidence (i.e. semen)
• - Exception 3: “Love triangle defense” for to protect D’s Due Process rights

• - General Rule: Inadmissible to prove propensity in civil cases
• - Exception: Admissible where such character is essential element of claim or defense. Two situations; (1) a tort case alleging negligent hiring/entrustment, or (2) defamation

• - General Rule: Habit of person (or routine of business) is admissible to infer how person/business acted on the occasion at issue (distinguish from character evidence)
• - Defined: Repetitive response to a particular set of circumstances. Focus on (1) frequency (“always,” “invariably,” “automatically,” “instinctively”) of conduct and (2) particularity of conduct.
• - NY: Admissible for business routine. Not for evidence relating to personal habit on issue of due care in negligence. In products case, admissible if person had complete control of product

• - General Rule: If D’s other crimes or specific bad acts offered for some purpose other than propensity, evidence will not be barred by rule against character evidence.
• - Common non-character purposes(MIMIC): (1) Motive, (2) Intent, (3) Mistake/accident, the absence of, (4) Identity, (5) Common scheme/plan
• - Prove MIMIC-purpose crimes by (1) a conviction, or (2) evidence that MIMIC crime occurred.
• - Burden of proof: Sufficient Evidence for a reasonable jury to be able to conclude D committed prior act by preponderance of evidence. (In NY, clear and convincing evidence)

- Fed Rule: In case alleging sex assault/child molestation, prosecution may offer evidence of D’s prior sex assault for purpose of proving D’s propensity to commit crimes charged with. (in NY, they are treated same as all other D’s)

• - 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 present litigation.
• - Six situations: (1) habit, (2) P’s accident history to show fraud scheme or causation of particular injury, (3) similar accident caused by same event/condition, (4) intent, (5) comparable sales on issue of value, (6) industrial custom as standard of care.

• - Defined: Recognition of a fact as true w/o formal presentation of evidence
• - Rule: Ct may take judicial notice of indisputable facts which come in two forms; (1) matters of common knowledge, (2) matters capable of easy verification by resort to unquestionable sources (i.e. check date on calendar).
• - Judicial notice may be taken at any time, even on appeal. These facts are considered conclusive in civil cases, not crim cases.

• - General Rule: Must introduce sufficient evidence for a reasonable juror to conclude that item is what they claim it to be (“laying a foundation”)
• - Writings: If relevance depends on source/authorship, must prove source/authorship to authenticate by; (1) testimony from witness w/personal knowledge, (2) proof of author’s handwriting, (3) ancient domain rule, (4) solicited reply doctrine.
• - Self authenticating documents: (1) official publications, (2) certified copies of public/private docs on file in public office, (3) newspapers, (4)trade labels, (5) notarized doc, (6) commercial paper, (7) certified business records

• - Rule: If party seeks to prove contents of writing, party must either (1) produce the original, or (2) provide acceptable excuse for its absence. If ct finds acceptable excuse, party may use secondary evidence (copy, testimony) to prove contents
• - Writing includes docs, recordings, films and x-rays
• - Ask...(1) when does this rule apply, (2) what is an original, (3) what is a good excuse

- Rule: Applies only when party seeks to prove contents of a writing, which arises in 2 situations; (1) writing is a legally operative doc (deeds, mortgages, divorce docs, contracts), or (2) witness is testifying to facts she learned solely from reading about them in a writing.

• - Defined: Original includes the writing itself; any counterpart intended to have same effect, any negative of film or print from negative (handwritten doc is NOT original)
• - Duplicate: Counterpart produced by any mechanical means that accurately reproduced original
• - Rule for Duplicates: Admissible to same extent of original unless, (1) there is genuine question about authenticity of the original or (2) it would be unfair to admit duplicate
• - In NY, duplicates only admissible if they were made in regular course of business

- Rule: Party does not need to produce original if it is (1) lost or cannot be found w/due diligence, (2) has been destroyed absent bad faith, or (3) cannot be legally obtained. If ct persuaded by preponderance of evidence that excuse has been established, secondary evidence admissible

- Voluminous records, certified copies of public records, collateral docs (if ct, in its discretion determines that doc is unimportant to the issues of the case)

• - Defined: Actual physical evidence displayed to trier of fact
• - Authentication: Party seeking to introduce must show sufficient evidence that item is what party claims it to be.
• - Methods of authentication: (1) Personal knowledge of item is easily recognizable by sight, (2) chain of custody if not recognizable by sight.
• - May need to show item has not been tampered with.

- Rule: 2 requirements; (1) witness must have personal knowledge and (2) witness must take an oath/affirmation, meaning they demonstrate understanding of obligation to tell truth and (2) promise to tell truth.

• - Rule: Child may testify under oath so long as she understands the obligation to tell truth and promises to tell truth
• - Crim Case Exception: A child under 9 who cannot understand the oath may still testify but a D cannot be convicted solely on unsworn testimony. Need corroboration.

• - Fed Rule: No dead man. A witness is not incompetent simply b/c she may have interest in outcome of civil litigation involving decedent's estate.
• - Rule in some states: In a civil action, an interested (outcome will have legally binding effect) witness may not testify against a deceased about communications or transactions w/deceased party. Waived if (1) decedent's rep does not object, (2) testifies about transaction, or (3) decedent's testimony is introduced

• - Rule: Same as other states rule w/1 exception.
• - Accident exception: In accident case based on negligence, surviving party (1) may testify about facts of accident, (2) but may NOT testify about conversations w/decedent.

• - Defined: When form of question suggests the answer
• - Rule: Generally not allowed on direct examination of witness, allowed on cross though.
• - Exceptions (4): (1) Preliminary introductory matters, (2) youthful/forgetful witness, (3) hostile witness, (4) adverse party/someone under control of adverse party (presumed hostile).

• - Rule: Witness may not read from a prepared mom, must testify based on current recollection BUT if witness forgets something he once knew, he may be shown something to jog his memory. Writing usually used but anything is an acceptable refresher
• - Opposing party has right to (1) inspect refresher, (2) use item during cross of witness, (3) introduce writing into evidence
• - Hearsay exception: Writing may be read to jury as "past recollection recorded" if (1) witness once had personal knowledge, (2) witness now forgets and showing refresher fails to jog memory, (3) writing was either made by witness or adopted by witness, (4) writing was made when event was fresh in witness's memory, and (5) witness can attest that, when made, writing was accurate. If satisfied, witness can read document but not show to jury (in NY, can show too)

• - Rule: Admissible if it is (1) rationally based on witness's perception (personal knowledge) and (2) opinion will be helpful to jury.
• - Examples: testimony to drunkeness, emotions, speed, handwriting, smells, etc...

• - Rule: Witness may testify as expert only if (1) witness is qualified, (2) testimony is about subject matter where scientific, technical or specialized knowledge will be helpful to jury, (3) opinion has proper basis, (4) opinion in reliable.
• - Opinion has proper basis if (1) expert's personal knowledge, (2) evidence that is already admitted at trial from someone else, (3) facts from outside record but only if facts are type reasonably relied on by experts in particular field.
• - Reliability: Expert must use reliable methods and reliably applied methods to particular facts of the case. For scientific evidence, apply Daubert for Fed and Frye for NY.

• - It is a right. If witness testifies but then cannot be cross-examined, testimony will be struck.
• - Proper subject matter of cross includes matters w/in scope of direct examination and matters that affect witness's credibility.

• - Credibility involves whether witness is believable resting on perception, memory and honesty.
• - Impeachment: Process of showing witness is not credible
• - Rehabilitation: Process of repairing witness's credibility after he is impeached
• - Intrinsic Impeachment: Impeaching by asking witness questions on cross
• - Extrinsic Impeachment: Impeaching by introducing outside evidence

• - Defined: Prior statement (oral/written) that is materially inconsistent w/witness's trial testimony
• - Rule: May be used to impeach witness but not as substantive evidence UNLESS statement was made (1) under oath and (2) part of a formal hearing/proceeding/trial/deposition.
• - In NY, only admissible to impeach
• - Attacked witness must be given opportunity to explain (in NY, while still on stand), unless witness is opposing party

• - Defined: Some relationship btw the witness and a party - or some other interest in litigation - that could cause witness to lie.
• - Examples: Witness is (1) a party, (2) a friend, (3) someone paid by party, (4) someone w/grudge against party, (5) anyone w/something to gain or lose by outcome
• - May always be proven with extrinsic evidence

• - Defined: Anything that could affect witness's perception or memory
• - Examples: bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication
• - Intrinsic impeachment not required, extrinsic evidence is allowed

• - Defined (veracity): Character trait for being truthful
• - Rule: Party may impeach witness by calling another witness to testify about target witness's bad character for veracity
• - Fed Form: Reputation or opinion, no specific acts
• - NY Form: Reputation only, no specific acts

• - NY Rule: Any witness may be impeached w/a conviction for any crime. If witness is crim D. ct must have hearing to balance probative value of conviction against risk of unfair prejudice
• - Fed Rule: Conviction/release from prison must be w/in 10 yrs of trial. Crimes of dishonesty/false statement always admissible. Misdemeanors, NOT admissible. Felonies admissible after weighing probative value of conviction against risk of unfair prejudice
• - Conviction may be proven intrinsically or extrinsically

• - Fed Rule: Witness may be asked about prior bad acts if acts relate to truthfulness
• - NY Rule: Witness may be asked about prior bad acts to show witness's moral turpitude(included crim conduct not related to truthfulness).
• - Limits: (1) must have good faith basis bad act occurred, (2) can only be proven by intrinsic evidence. Proof by extrinsic evidence OK if bad act relevant to some other purpose (i.e. bias)

• - Rule: Witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct examination
• - If contradiction goes to issue that is significant in case, than may be proven by extrinsic evidence, If not, then proof limited to intrinsic evidence.

• - Fed Rule: Any party may impeach witness
• - NY Rule: By calling witness, party vouches for witness's credibility. So, can't impeach own except w/prior inconsistent statement that was (1) made in writing and signed by witness, or (2) made in oral testimony and was under oath. In crim case, this exception can only be used if witness's current testimony is AFFIRMATIVELY damaging to party who called witness

• - Needs to be done after witness is attacked. If done before, improper bolstering
• - Exception: Witness's prior statement of ID of a person is admissible even if witness's credibility has not yet been attacked. (In NY, exception only applies to crim cases, not civil cases)
• - Method 1: Good character for truthfullness - If witness's character for truthfulness attacked, then opposing party may introduce corresponding evidence of witness's good character for truthfulness. Fed reputation or opinion. NY, just reputation. No specific acts
• - Method 2: Prior inconsistent statement - may be used to rehab if (1) it is consistent w/witness's trial testimony, (2) opposing party has suggested thru impeachment that witness has recently developed motive to lie, (3) prior statement made before motive to lie arose. In NY, can only be used to rehab, not for truth of prior statement

• - MBE: (1) atty-cl, (2) doc-patient, (3) pyschotherapist-patient, (4) spousal communications, (5) spousal immunity.
• - NY: All but spousal immunity
• - If exam says "action pending in fed ct", if action is based on fed substantive law, fed ct will apply all MBE privileges except doc-patient. If based on diversity jurisdiction, state law applied to burdens of proof, dead man's statutes, privileges.

• - Elements: Protects any communication btw cl and atty so long as it is confidential and for the purpose of legal advice, UNLESS privilege is waived by cl or an exception applies.
• - Communications: does not apply to cl's knowledge of underlying facts, pre-existing docs, physical evidence
• - Only cl can voluntarily waive privilege.
• - Exceptions: future crime/fraud, when cl puts legal advice at issue, atty-cl dispute

• - Elements: Any communication or information acquired by doc from patient so long as it is confidential and for purpose of med treatment/diagnosis
• - Fed only covers psychotherapists
• - Waived if patient expressly/impliedly puts physical or mental condition in issue

- Elements: Applies to relationship btw married spouses, covers communications made during marriage so long as they are confidential, and may be waived only by both spouses

• - FED/MBE: In crim case, prosecution cannot compel D's spouse to testify against D about anything. Not Recognized in NY
• - Elements: Applies only to crim cases, covers testimony against D spouse about anything so long as witness and D are married AT TIME of trial. May be waived by witness spouse alone
• - Exceptions: Communication in furtherance of fraud/future crime, destructive of family unit, litigation btw spouses.

• - Rule: Absent an exception/exclusion, hearsay is inadmissible
• - Defined: An out of ct statement (oral/written) by a person offered to prove truth of matter asserted in the statement.
• - The key is the PURPOSE for which statement is offered.
• - Ask, "do we care whether or not declarant is telling truth? If no, then not hearsay.

• - (1) Impeachment, unless purpose of prior statement is to prove truth of assertion
• - (2) Verbal Acts/Legally Operative Words (i.e. words that make gift, defamation, contract...)
• - (3) To show effect on person who heard/read statement: A statement that is relevant simply b/c someone heard it is not hearsay (i.e. hearing something can give someone motive)
• -(4) Circumstantial evidence of speaker's state of mind: Statement that unintentionally reveals something about speaker's state of mind not hearsay (i.e. statements showing insanity)

• - Rule: A witness's own prior statement, if offered to prove truth of matter asserted in the statement, is hearsay and inadmissible unless and exception/exclusion applies
• - Exclusions: (1) prior statement of ID of person, (2) prior inconsistent statement if made under oath during a formal proceeding, (3) prior consistent statement if used to rebut an assertion of recently developed motive to lie and made before motive arose. (In NY, only admissible to rebut)

• - Rule: Any statement made by a party is admissible if offered against the party ("you say it, you're stuck w/it")
• - Vicarious Admissions: A statement by an employee/agent of party is admissible against party if it concerns matter w/in scope of the agency/employment and was made during existence of agency/employment relationship (in NY, only admissible if agent had speaking authority)
• - Vicarious Admissions of Co-Conspirators: Statement made by one, admissible against another if made during AND in furtherance of conspiracy

• - Witness must be unavailable
• - Grounds for unavailability: (1) privilege, (2) absence from jurisdiction, (3) illness/death, (4) lack of memory, (5) stubborn refusal to testify. In NY, (1),(2),(3) only + declarant is 100 miles away or a doctor.
• - Elements: Declarant unavailable, prior statement given in proceeding/deposition/under oath and is offered against a party who, on prior occasion, had opportunity and similar motive to cross/develop testimony

• - Elements: Declarants out of ct statement may be offered against any party who wrongfully made declarant unavailable and did so w/purpose of preventing declarant from testifying
• - Fed Burden of Proof: Preponderance of evidence
• - NY Burden: Clear and convincing evidence

• - Elements: Declarant is unavailable and statement is against declarant's pecuniary, proprietary, or penal interest
• - NOTE: statement against penal interest MUST be supported by corroborating evidence

• -Elements: Declarant is unavailable, statement was made under belief of certain and impending death and statement concerns cause or circumstances of impending death
• - Fed: Applies to crim homicide only or ANY civil case
• - NY: Applies to crim homicide only

• - Elements: Statement concerns a startling event and was made while declarant was still under the stress of excitement caused by the event
• - Factors that make statement excited: (1) nature of event, (2) passage of time, (3) visual clues, excitement oriented verb, exclamatory phrase, exclamation point.

• - Elements: Statement that describes event and is make while event is occurring or immediately thereafter.
• - In NY, corroboration of the event described needed

• - Elements: Admission of a contemperaneous statement concerning declarant's then-existing physical condition or state of mind. It does NOT include statement of memory, or belief about past condition. It DOES include statements of future intent, including intent to do something to 3rd person
• - NY: If statement of present condition is made to a layperson (rather than doc) declarant must be unavailable. If statement of future intent offered to prove conduct of 3rd person, NY requires corroboration and that declarant is unavailable.

• - Elements: Allows admission of statement made for purpose of obtaining med diagnosis or treatment concerning present symptoms, past symptoms, or general cause of med condition but NOT including statements about fault or identity of wrongdoer.
• - NY: Does not apply for statements made solely for purpose of obtaining expert med testimony at trial, only from treating doc.

• - Elements: Allows admission of records of a business made in the regular course of business. The business must regularly keep such records. Must be made contemporaneously. The contents consist of info observed by employees of business or a statement that falls w/in other hearsay exception
• - Fed Public Record: In addition to observations by employees of public agency, may also include conclusions by public employees after official investigation but NOT police report prepared for prosecution purposes offered against D in crim case.
• - In NY, only observations allowed