1. What is Judicial Notice?
    The recogonition of a fact as true without formal presentation of evidence.

    • Two Types:
    • 1) Matters of common knowledge in jurisdiction
    • 2) Matters caable of easy verification from unquestionable sources.
  2. What is relevant evidence?
    Any that has a tendancy to make a material fact more probable or less probable than would be the case without the evidence.
  3. Exception to Rule that All Relevant Evidence is Admissible Evidence?
    Court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations.
  4. What Pragmatic Considerations may Substantially Outweigh Relevant Evidence?
    • 1) danger of unfair prejudice
    • 2) Confusion of jury
    • 3) Waste of Time
  5. What specific policies exclude relevant evidence?
    • 1) Liability Insurance, may not be used to prove fault, but may be used to prove ownership or control if disputed, or to impeach.
    • 2) Subsequent Remedial Measures, may not be used to prove wrongful conduct, but may be used to show ownership, control, or feasibility of improvement, if controverted.
    • 3) Settlements in Civil Cases (only once disputed claim) BUT Settlement evidence may be used to impeach a witness on the ground of bias.
    • 4) Offer to pay medical expenses
    • 5) Pleas and Plea Discussions in Criminal Cases, may not be used for any reason. **** But in NY, withdrawn plea may be used in civil case subsequent.
  6. New York exception to the Rule against admissibility of Subsequent Remedial Measures?
    May use in products strict liability case for manufacturing defect.
  7. What is character evidence?
    What is the general rule?
    referes to a person's disposition or propensity.

    Character and past acts is inadmissible if offered to prove that the person acted in conformity with that trait.
  8. What are the permissible (non-propensity) character evidences purposes?
    • 1) Motive
    • 2) Intent
    • 3) Mistake or accident (absence of them)
    • 4) Identity
    • 5) Common scheme or plan
  9. How should MIMIC used of character evidence be limited?
    1) Balance of probative value against prejudice.

    2) Limiting instructions to the jury

    3) Pretrial notice --> upon difendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.
  10. What civil claims is character evidence admissible to prove?
    Where it is an essential element of the claim, e.g.:

    1) Negligent hiring / negligent intrustment

    2) Defamation
  11. What is habit evidence?

    When is it admissible?
    Habit of a person (or routine of a business organization) is: a repetitive response to a particular set of circumstances (Frequency and Particularity demonstrate this).

    Habit is admissible to infer how the person or business acted on the occasion at issue in the litigation.
  12. When is habit evidence admissible in NY? ****
    **** Only admissible to prove business, trade, or profession. Not admissible to prove personal habits on the issue of due care in negligence.

    BUT, evidence relating to the personal habit in the use of a product is admissible.
  13. What are the True Exceptions to the Character Evidence Rule?
    • 1) Character in Criminal Case
    • a) Defendant may offer reputation or opinion (good character)
    • **** in NY, only reputation admissible****
    • b) Pros. may offer rebutal evidence in the form of rebuttal evidence of Def. bad character.
    • AND Pros. may question Def.'s character witness on knowledge of Def.'s prior bad acts (if they have good faith basis to believe act took place).

    ****NY prosecutors may rebut good character evidence by proving Def. convicted of crime which reflects negatively on the trait at issue.

    • c) Victim's Character in a Self-Defense Case to show that victim was agressor.
    • **** Not allowed in NY****
    • c1) Defendant's knowledge of victim's character for violence to show reasonable beleif in the need for self-defense. NOTE: Not propensity evidence, so this may come in any form. *** NY Follows Same Rule****

    d) Victim's character in a sexual misconduct case (see Card)

    2) Character evidence in not admissible in civil cases to demonstrate propensity.
  14. Rape Shield rule and exceptions?
    In a case involving alleged sexual misconduct, the defendant ordinarily may not introduce evidence of a) the victim's reputation for promiscuity, or b) the victim's prior sexual conduct. (BOTH CRIMINAL AND CIVIL Cases)

    • Except, defendant may introduce:
    • a) evidence of the victim's sexual activity with the defendant, but only if the defense is consent.
    • b) evidence of the victim's sexual activity with others, but only to prove that someon other than the defendant was teh source of physical evidence.
    • c) evidence reuqired to be admitted by the defendant's DPC rights.
  15. What is the general rule on Character evidence in civil cases?
    Character evidence is generally inadmissible to prove propensity in civil cases.
  16. What special exceptions are there to the General Character evidence rule?
    • Federal: In a criminal or civil case alleging sexual assualt or child molestation, the prosecution may offer evidence of defendant's prior sexual misconduct for the purpose of proving D's propensity.
    • "Once a rapist always a rapist" is an allowable propensity evidence.

    **** There is no such rule in NY Courts****
  17. What documents are "self authenticating"?
    • a) official publications (Government pamphlets)
    • b) certified copies of public or private documents on file in public office (deeds, mortgages)
    • c) newspapers or periodicals
    • d) trade inscrpitions and labels (Candy bar wrappers)
    • e) acknowledged document (notorized)
    • f) commercial paper (check, promissory note)
    • g) certified business records, offered into evidence under the business records hearsay exception -- must be certified by someone within the business who knows how the recrods are regularly made and that these docuements were made in the regular way at or about the time of the event recorded.
  18. How to authenticate Photographs and Recordings?
    a) photograph as "demonstrative" --> "fair and accurate representation" of the people or objects portrayed.

    • b) Photograph as a "Silent Witness":
    • 1) Camera properly in stalled and working, and 2) rrecording or image not tampered with (may show with a chain of custody)
  19. What is the Best Evidence Rule?
    • If a party seeks to prove the contents of a writing (including recordings, films and X-rays) party must either:
    • 1) Produce the writing; or

    --- Duplicate acceptable unless: 1) genuine question about authenticity of original; 2) unfair to admit duplicate. **** IN NY Duplicate only if in regular course of business****

    2) provide an acceptable excuse (if acceptable, then party may use oral testimony to prove contents).

    • acceptable excuses (must be proved by preponderance of evidence):
    • 1) Lost and cannot be found w/ due diligence;
    • 2) Destroyed w/out badfaith
    • 3) cannot be obtained with legal process (oustide jurisdiction.
  20. What escapes are there to the best evidence rule?
    • 1) Voluminous records can be presented through summary or chart;
    • 2) Certified copies of public records
    • 3) Collateral documents (if cour determines document is unimportant to the issues in case).
  21. What is "real evidence"?

    How is it authenticated?
    Actual physical evidence that is displayed ot the trier of fact.

    Authentication requires showing of sufficient evidence such that a reasonable jury would find that hte item is what the party claims it to be.
  22. Two methods for authenticating real evidence?
    1) Distinctive Physical evidence: person knowledge is sufficient to authenticate.

    2) Generic physical evidence, then party most show chain of custody.

    NOTE: if condition of hte item before trial is relevent, then must show "sunstantially the same condition" as during relevant period.
  23. What at the testimonial privileges?
    • Federal
    • 1) Attorney-Client
    • 2) Husband-wife
    • 3) clergy-penatent
    • 4) Physchotheripist-patient
    • Majority
    • 5) Doctor-patient (MBE RULE)
    • New York (all of above PLUS)
    • 7) Social worker-client
    • 8) Reporter - source
  24. How do you waive a privilege?
    • Voluntary Waiver
    • NOTE: Only privilege holder may waive.
    • Subject Matter Waiver
    • 1) Parial disclosure is intentional, and
    • 2) Disclosed and undisclosed info concern the same subject matter, and
    • 3) fairness requires unified disclosure.
    • Inadvertant Waiver
    • Not unless party failed to take resonable steps to prevent the disclosure, or failed take reasonable steps to retify the error.

    • Exceptions that waive privilege:
    • 1) Future crime or fraud
    • 2) Holder puts content in issue
    • 3) Dispute b/w holder and professional
  25. What professionals included in Doctor-Patient privilege?
    • Federal - Only psychotheripists
    • MBE - therapists, nurses, and doctor's assistants
    • NY - dentists podiatrists, and chiropractors
  26. What is the spousal immunity (Spousal testmiony privilege)?
    In a criminal case, the prosecution cannot compel the defendant's current spouse to testify against the defendant.

    • Except:
    • 1) where communication was in furtherance of a future crime or fraud;
    • 2) Acts distructive of the family unit (child abuse).

  27. What is hearsay?
    An out of courts statement (oral or written), by a person (not machine or animal) that is offered to prove the truth of hte matter asserted.

    • Non-Hearsay pruposes:
    • 1) Impeachment;
    • 2) Verbal Acts (independant legal significance);
    • 3) Show effect on person who heard or read the statement;
    • 4) Circumstantial evidence of speaker's state of mind.
  28. What are exluded from definition of hearsay?
    1) A prior statement of identification made by a current witness. *** IN NY, only allowed in criminal cases***

    2) A prior inconsistent statment, if: under oath during a formal proceeding. ***Not recognized in NY***

    3) prior consistent statement if: used to rebut an accusation of a motive to lie and made before motive to lie arose. **** Not a New York Exclusion****
  29. What are the 10 Heasay Exceptions?
    • 1) Party Admission (oppossing party)
    • 2) Former testimony (unavailable)
    • 3) Forfeiture by wrongdoing (party wrongly makes declarant unavailable)
    • 4) statement against interest (unavailable)
    • 5) Dying declaration (unavailable, though not necessarily dead)
    • 6) present sense impression (anyone)
    • 7) Excited utterance (anyone)
    • 8) statement of then-existing mental emotional or physical condition (anyone)
    • 9) Statement for purpose of medical treatment or diagnosis (anyone)
    • 10) business records (anyone)
  30. Party admission by an agent or employee?
    • Admissible against the principle or employer only if:
    • 1) it concerns a matter within the scope of the agency or employment, AND
    • 2) was mae during the agency or employment.

    ****In NY, only an agent or employee with speaking authority****
  31. Admission of a Co-conspirator?
    Only admissible against fellow conspirators if made during and in furtherance of the conspiracy.
  32. What can make a person "unavailable" for hearsay purposes?
    • 1) privilege claimed,
    • 2) absence from jurisdiction,
    • 3) illness or death,
    • 4) lack of memory,
    • 5) stuborn refusal to testify,
    • ***Last two not recognized in NY****
  33. When can prior statements under oath be used in New York Criminal Trials?
    Short answer: essentially only in mistrials

    Defendant and charge must be the same in both former and current case.
  34. When is a statement against interest admissible despite being hearsay?
    • 1) Declarant is unavailable and
    • 2) statement is against pecuniary, proprietary, or penal interest. (ridicule or disgrace is insufficient)

    NOTE: In criminal cases where statement against interest is offered to help the accused, must support with corroberating evidence.
  35. When is a dying declaration admissible?
    Where an unavailable declarant made statment while under the beleif of certain and impending death, and the statement concerns teh cause or circumanstance of the impending death.

    ****NY criminal homocide cases only****
  36. When is an excited utterance admissible?
    Any person who makes a statement concerning a startling event and made the statement under the stress caused by the event.
  37. Present sense impression?
    A statement describes an event and is made while the event is occurring, or immediately thereafter.

    ***NY Requires corroberation****
  38. Then-existing mental, emotional, or physical conditions?
    A contemporaneous statment concerning the declarant's then existing physical condition or state of mind.

    (Includes future plans or intent, but NOT memory, or belief about a past condition).

    ****NY, declarant must be unavailable unless statment made to doctor****

    ****NY, if a statement of future intent is used to prove conduct of third person, declarant must be unavailable and corroboration must be evidenced****
  39. When is a statement for the purpose of medical treatment or diagnosis admissible?
    When is is made for the prupose of diagnosis or treatment of a present symptom, past symptom, or general cause of condition;

    BUT NOT statements of fault or wrong-doers identity.

    ****NY, does not apply to statements made solely for purpose of obtaining expert testimony.****
  40. When is a business record admissible?
    • 1) Records of a business made in the regular course of buiness and where the business regularly keeps such records;
    • 2) that are made contemporaneously; AND
    • 3) consist of information observed by employees of the business, or a statment that falls within some other heasay exception.
  41. When are public records admissible?
    May include conclusions by public employees after an official investigation.

    BUT a police report may not be offered against the defendant in a crminal case.

    ****NY requires an affidavit filed with the public records office.***
  42. Laying foundation for business records
    1) Live testmiony reciting the 5 requirements.

    2) Affidavit submitted by custodian of records.

    ****NY allows written certification only in civil cases for records of a non-party****
  43. When does hearsay violate a criminal defendant's confrontation clause rights?
    When they offer testimonial hearsay without ability to cross-examine.

    • Rights to Cross examine satisfied:
    • 1) Already had the chance to cross-declarant;
    • 2) can cross-declarant at trial;
    • 3) Forfieted right to cross witness because of tampering.
  44. What heasay is "testimonial" for confrontation clause purposes?
    • 1) Grand jury testimony
    • 2) statements in response to police interrogation:
    • a) testimonial: if primary purpose is to prove past events potentially relevant to later prosecution
    • b) non-testimonial: if primary purpose is to enable police assistance to meet an ongoing emergency

    • Police reports are testimonial, BUT
    • Business records are non-testimonial.
  45. When is a witness competant?
    • 1) The witness must have personal knowledge AND
    • 2) The witness must take an oath which demonstrates:
    • a) understanding of the obligation to tell the truth, AND
    • b) a promise to tell the truth.
  46. When is a child competant?
    So long as the child understnads the obligation to tell the truth and promises to tell the truth.

    ****In NY, a child under 9 who cannot understand the oath may still testify (unsworn testimony admissible, but requires corroboration to convict defendant)****
  47. Dead man's statute?

    Federal? MBE? NY?
    No federal dead man's statute

    • MBE:
    • In a civil action an intersted party (party subject to legally binding impact of case) may not testify against a dead party about communications or transactions with the dead party.

    • Waiver of right if:
    • 1) Decedent's representative does not object, or
    • 2) decedent's representative testifieds about eh transacton, or
    • 3) decedent's testimony is introduced

    • ****NY allows an accident exception in negligence cases:
    • Interested party may testify about facts sorounding accident but may not testify about conversations with the decedent.****
  48. When may a direct exam use leading questions?
    • 1) Preliminary or introductary matters;
    • 2) youthful or forgetful witness;
    • 3) Hostile witness
    • 4) adverse party as witness
  49. What happens if a witness cannot be cross examined?
    Direct examination is stricken.
  50. What is the proper scope of cross examination?
    • 1) Matters within the scope of direct examination, AND
    • 2) Matters that affect teh witness's credibility.
  51. When can a LAY witness give OPINION testimony?
    Admissible if: rationally based on the witnesses observations and helpful to the jury.

    e.g. Witness may testify to: sobriety, emotions, speed, handwriting (with previous observation), smells
  52. When may an EXPERT witness give OPINION testimony?
    • Admissible if:
    • 1) Witness is qualified (by education or experience);
    • 2) testimony is about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury;
    • 3) Opinoin has a proper basis; AND
    • 4) Opinion is reliable.
  53. What is a "proper basis" for expert testimony?
    1) The opinion must be made to a "reasonable degree of probability or reasonable certainty;"

    • 2) The opinion must be based on ONE of:
    • a) expert's personal knowledge,
    • b) evidence that is already in trial record, or
    • c) facts outside the record but only if those facts are reasonably relied on by experts in the field.

    NOTE: expert may discuss the general bases of the opinion but MAY NOT disclose inadmissible facts to the jury. (on cross-exam may disclose those facts)
  54. What makes expert testimony RELIABLE?
    • Sufficiently reliable if:
    • a) expert used reliable methods, AND
    • b) expert has reliably applied those methods to the particular facts of the case.

    • Scientific Evidence:
    • Federa Rule (Daubert Standard):
    • 1) Tested?
    • 2) Known error rates?
    • 3) Peer review?
    • 4) Generally accepted?

    • *** NY Fry Standard***
    • Generally accepted by the relevant professional community?
    • ********************
  55. When may opinion testimony address an "ultimate issue"?
    • Generally always allowed, EXCEPT:
    • In a crimninal case, an expert witness may not testify that the defendant did or did not have hte required mental state.
  56. When may a LEARNED TREATISE be used in aid of expert testimony?
    Federal: treatise may be used on direct or cross, AND May read in as substantive evidence, BUT may not introduce as an exhibit (to be shown to the jury).

    Must be "authorititive" according to witness or judicial notice.

    ****NY Rule: Treatise may only be used for showing the basis of expert's testimony, not as substantive evidence

    ON cross: May only be used to impeach the opponent's expert's credibility, not as substantive evidence AND may only be used if the opponent's expert either 1) relied on the treatise, or 2) acknoledged that it is a reliable authority.
  57. How is a witnesses memory REFRESHED?
    May refresh using anything, but witness may not read from the document, but must be something a witness once knew.

    Must give oppenant opportunity to inspect the thing, use it on cross, and use it as evidence.
  58. How can you use past recording of recollection?
    • A writing may be used if"
    • 1) the witness once had personal knowledge
    • 2) The witness now forgets, and you fail to "refresh knowledge,"
    • 3) The writing was either made by the witness or adopoted by the witness,
    • 4) The writing was made when the event was fresh in the witnesses memory,
    • 5) Witness can attest that, when made, the writing was accurate.

    ****IN NY, but not MBE, party may use the document as an exhibit***
  59. How can you discredit a witness's testimony?
    • May use any evidence (intrisnic or extrinsic) to show:
    • 1) Bias,
    • 2) mistaken or misperception,
    • 3) inconsistent (not admissible as substantive evidence)

    Federal rule: if inconsistent statement is used, person must be given opportunity to deny the inconsistent statement. EXCEPT if witness is opposing party, no need to give opportunity.

    **** IN NY a witness must be given a chance while on the stand to explain prior inconsistent statments.*****
  60. How to attach a witnesses character for veracity?
    • 1) reputation or opinion
    • 2) Criminal convictions
    • 3) Prior bad acts
  61. How do you use reputation or opinion to attack a witnesses veracity?
    May call another witness to testify to the target witness's bad character for veracity.

    *** NY, may only use reputation****

    No testimony of specific acts is allowed by other witness (must cross)
  62. When can a conviction be used to impeach a witness's credibility?
    ***In NY, any crime may be used


    For criminal defendants must have a Sandoval hearing to determine whether the probative value of the conviction (as to truthfulness) outwieghs teh risk of unfair prejudice.****

    • Conviction (or release from prison) must be within 10 years of the trial.

    Crimes for dishonesty or false statement are always admissible.

    Felonies are admissible if their probabtive value (for veracity) outwights the risk of unfair prejudice to a party.
  63. When are prior bad acts (unconvicted) allowed to use to attack character for truthfulness?
    Federal: A witness may be asked about bad acts that related to veracity.

    ***NY, A witness may be asked about prior bad acts that show witness's moral turpitude.****

    • LIMITS:
    • 1) Cross examiner must have good faith basis to believe that the bad act occured.
    • 2) Bad act may be proven intrinsically ONLY.
    • BUT - may be proven extrinsically if relevent for another purpose (e.g. BIAS).
  64. WHen can you impeach your own witness?
    FEDERAL: Any party may impeach any witness

    ***NY: A party "vouches" for their own witness and cannot impeach him, EXCEPT:

    • May impeach with tnconsistent statements if:
    • 1)in writing and was signed by the witness, or
    • 2) Made in oral testimony and under oath.

    IN a criminal case may only impeach testmony that was 'affirmatively damagein', not merely a "cloud on credibility."
  65. How do you rehabilitate a witness?
    A witness may only be rehabilited after the witness's credibility has been attacked through impeachment.

    • FEDERAL: May use opinion or reputation evidence (no specific acts).
    • ***NY: May use reputation only.***

    • Prior statement may be used if:
    • 1) consistent with witness's trial testimony;
    • 2) The opposing party has suggested through impeachment that the witness has a motive to lie;
    • 3) The statement was made before the witness's motive arose.
  66. What questions of fact are reserved for the jury?

    for the Judge?
    Jury decides questions of conditional relevance --> facts and preliminary facts that make evidence relevant. Judge simply ensures that tthere is sufficient evidence for a reasonable juror to conclude that the conditional fact is true.

    Judge decides all other questions of admissibility:

    • 1) Whetehr testimony is hearsay
    • 2) Whether a communication is privileged
    • 3) whether an expert is sufficiently reliable
Card Set
Evidence Review for NY Bar