2011년 12월 8일 목요일

Sample Evidence Law Outline


Evidence

A.    Relevance:
        i.          Threshold questionis the evidence relevant?
1.      Logical Relevance – if the evidence has the tendency to make a material fact or proposition more probable or less probable than without the evidence, then that evidence is relevant.
A.    Warning signs – if the evidence comes from some time, event or person other than that directly involved in the litigation itself, then it may be too remote to be relevant (see below).
B.     Direct Evidence and Circumstantial Evidence
                                                        i.          Direct evidence – it is offered to prove a fact about the object as an end in itself.
                                                       ii.          Circumstantial Evidence – it is being proved as a basis for an inference that another fact is true.
2.      Discretionary/Pragmatic/Policy-based Relevance – even if evidence is logically relevant, a trial court may exclude the evidence if its probative value is substantially outweighed by the danger of:
A.    unfair prejudice;
B.     confusion of the issues;
C.     misleading the jury;
D.    undue delay;
E.     waste of time;
F.      cumulative evidence.
G.     What’s missing from this list? – unfair surprise (may possibly get an adjournment but not an exclusion).
       ii.          8 situations where the evidence concerns some time, event or person other than that directly involved in the litigation itself, and yet is still admissible.
1.      to prove causation in complicated situations (e.g. - P got sick after eating at McDonald’s; can present evidence that other McDonald’s patrons also got sick to prove that McDonald’s caused the sickness);
2.      prior accidents or claims;
A.    Prior accidents or claims by P - generally not admissible.
                                      i.          Exceptions:
1.      common plan or scheme of fraud (e.g. – claims show pattern of fraud);
2.      if relevant on issues of damage to P (e.g. – injury caused by previous accident not this accident).
B.     Prior accidents involving instrumentality of D – P may introduce evidence of other accidents involving the same instrumentality that occurred under the same or similar circumstances (e.g. – 6 other drivers drove into the same bridge support that P did).
                                      i.          rationale – could show knowledge by D, or defect in instrumentality.
3.      if intent or state of mind is in issue;
A.    e.g. – in a gender discrimination case, P can show that other qualified women were also denied job in order to prove D’s state of mind.
4.      to rebut defense or claim of impossibility (e.g. – mouse in coke can example);
5.      comparable sales to establish value (provided that same kind, time and geographic area);
6.      habit evidence:
A.    What constitutes habit?
                                      i.          NOT disposition – disposition of a person (e.g. – careful or careless, etc.) is generally not admissible to show that the person was in fact careless.
                                     ii.          NOT specific acts of conduct – past conduct of person is generally not admissible to infer person acted in same way.
                                   iii.          Habit is…
1.      specific – detailed conduct.
2.      recurrent – must occur often enough to say it is habitual (exactly how many times is up to discretion of court).
3.      Exam tip: will use words like “invariably” or “routinely” to indicate habit.
B.     NY Distinction – NY is stricter than Federal Rules in terms of admission of habit evidence. 
                                      i.          Evidence of habit in a professional or business context is admissible.
                                     ii.          Habit is not admissible to show that a party used care (or failed to use care) in a negligence situation.
1.      Exception – habit evidence will be admitted if relevant to show P’s use/misuse of product in a products liability suit.
7.      industrial or business routine (like habit, but here we are talking about a business, corporation, entity, etc.);
8.      industrial custom as evidence of the standard of care (not conclusive evidence);
A.    Evidence may be offered to show what other in the same trade or business have done (perhaps as evidence of what this business should have or could not have done).
B.     e.g. – in a negligence action against a bus company, P may introduce evidence that other bus companies have devices that do not allow buses to move while the door is still ajar.
     iii.          Rules based on discretionary/policy-based relevance:
1.      Liability insurance – evidence of liability insurance is not admissible as any kind of indication of fault or ability to pay (or absence of liability insurance as indication of inability to pay).
A.    Still admissible:
                                      i.          to show ownership or control when ownership or control is disputed;
                                     ii.          where relevant to impeach the credibility of a witness by showing bias or motive to misrepresent.
2.      Subsequent remedial measures – evidence of subsequent remedial measures is not admissible to show negligence or culpable conduct.
A.    Still admissible:
                                      i.          to show ownership or control when ownership or control is disputed;
                                     ii.          to rebut or show feasibility of precautionary measure when such feasibility is in controversy;
B.     Strict liability cases:
                                      i.          Federal Rule – evidence of subsequent remedial measures is also not admissible to show any of the forms of strict liability (failure to warn, defective design, defective product).
                                     ii.          NY distinction – NY does not allow the use of evidence of subsequent remedial measures to show failure to warn or defective design, but does allow use of such evidence to show defective product (manufacturing defect).
C.     Evidence of subsequent remedial measures by non-parties is admissible if relevant.
3.      Settlements – evidence of settlements is not admissible as any indication of fault, liability or damages.
A.    This includes an offer to settle a claim that is disputed as to either liability or damages.
B.     Also includes offers to plead guilty, no contest, etc. in a criminal case (and withdrawal of such pleas).
C.     An admission of fact/liability/fault/damages made in course of offer to compromise a claim is not admissible either to prove liability or amount of damages.
D.    Limitations:
                                      i.          There must be a claim (e.g. – D goes to neighbor’s house and asks if he is the guy who got bit by his dog; it then occurs to the neighbor to bring a lawsuit.)
                                     ii.          There must be dispute as to liability or amount.
E.     Offers to pay hospital or medical bills – an offer to pay hospital or medical expenses is not admissible (even though it doesn’t qualify as offer to settle because payor gets nothing in return).
                                      i.          An admission of liability made in the course of an offer to pay hospital or medical expenses is admissible.
     iv.          Character Evidence:
1.      4 preliminary considerations:
A.    What is the purpose for the use of the character evidence?
                                      i.          Possible purposes:
1.      character as direct evidence – character itself is a material issue.
2.      character as circumstantial (disposition) evidence – character evidence is used to infer conduct at time of litigated event.
3.      character to impeach – character evidence is used to impeach the credibility of a witness (see impeachment).
B.     How is character proved?
                                      i.          by specific acts of conduct;
                                     ii.          by opinion testimony;
                                   iii.          by reputation (the only NY way).
C.     What kind of case (civil or criminal)?
D.    Character for what trait?
                                      i.          Character evidence must be offered to prove a trait that is substantively at issue in the case.
2.      Character in Civil Cases:
A.    NO character evidence is admissible in civil cases as circumstantial evidence to infer conduct at time of litigated event (purpose 2 above).
B.     Character evidence is admissible in civil cases when character itself is a material issue (purpose 1 above – these cases are very rare).
                                      i.          Can prove in any of the three ways (specific acts, opinion and reputation).
C.     Character evidence can also be used for purposes other than to infer conduct (to show motive, intent, etc. – MIMIC).
3.      Character in Criminal Cases:
A.    Criminal cases never involve purpose 1.
B.     Character as circumstantial evidence to show conduct (purpose 2 above):
                                      i.          Basic rule – the prosecution may not initiate the presentation of bad character evidence (prior acts, crimes, convictions, bad opinion, bad reputation, etc.) to show the D’s criminal disposition to commit the crime charged unless the D first shows good character evidence in order to infer innocence (D’s testifying to the facts of the case is not enough but this would subject the D to impeachment like any other witness).
1.      How does D show good character?
A.    Call witness to testify to character trait that is substantively at issue in the case (e.g. – peacefulness in assault case).
                                                                    i.          specific acts of conduct - not allowed in Federal or New York.
                                                                   ii.          opinion testimony – allowed in Federal, but not New York.
                                                                 iii.          reputation testimony – allowed in Federal and New York.
2.      If D introduces good character evidence, how can prosecution respond?
A.    Prosecution can cross-examine the D’s witness by inquiring as to any specific acts that would tarnish the reputation of the D (in order to test the witness’ knowledge of the D’s reputation).
                                                                    i.          example 1 – “Have you heard the D was arrested 6 times for robbery?”
                                                                   ii.          example 2 – “Do you know that the D was arrested 6 times for robbery?” (NY distinction – can’t ask “do you know” in NY).
                                                                 iii.          Prosecution must take the answer of the witness even if he says no.
B.     Prosecution can call bad opinion or bad reputation witness.
                                                                    i.          NY distinction – prosecution can only call bad reputation witness.
C.     NY only:
                                                                    i.          Prosecution may also respond by showing any convictions for crimes that involve the pertinent trait or character.
                                     ii.          Character of victim:
1.      Federal Rule – if victim’s character is relevant to defense, then D can take initiative to show bad character of victim (e.g. – D is arguing self-defense and wants to offer evidence of victim’s aggressive nature) through opinion testimony or reputation (no specific acts).
A.    Prosecution can rebut by showing the good character of victim or bad character of the D (through opinion testimony or reputation – no specific acts).
2.      NY Rule – no character evidence may be offered to show the disposition of the victim.
3.      Rape Shield Laws (Federal and NY) – can’t use character of victim to show consent in rape cases.
C.     Specific acts used to show things other than disposition:
                                      i.          Specific acts (evidence of past acts, crimes, convictions, etc.) are only inadmissible if offered to show D’s disposition to commit the crime.
                                     ii.          They can be offered to prove other elements such as (MIMIC):
1.      motive;
2.      intent or state of mind (e.g. – D charged with receiving stolen goods; he argues that he did not know that they were stolen; showing that he received stolen goods 6 times in past goes to knowledge);
3.      mistake, absence of mistake;
4.      identity (anything that connects D to the crime if identity is at issue);
5.      modus operandi (e.g. – when D is charged with a crime that is distinctive or unusual in its detail, and D’s past acts include similar unusual details);
6.      common plan or scheme (e.g. – D charged with bank robbery; prosecution can show that D stole a truck the day before if he used the truck in the robbery).
4.      Additional wrinkles:
A.    Trial judge’s discretion to exclude the aforementioned evidence when its probative value is outweighed by unfair prejudice, etc. (see above) still applies.
B.     2 narrow exceptions to the rule that the prosecution may not offer bad character evidence until the D offers good character evidence: (1) child molestation cases and (2) sexual assault cases.
                                      i.          Federal Rule – in civil or criminal cases where the D is charged with child molestation or sexual assault, the D’s prior acts of child molestation or sexual assault (even if D was not convicted or even prosecuted for the act) may be offered by the prosecution (or P in civil cases) regardless of whether D has offered good character evidence.
                                     ii.          NY Rule – this exception does not exist in NY.
B.     Writings and Documentary Evidence:
        i.          Authentication:
1.      General rule – a writing is not admissible unless authenticated (the court needs preliminary proof that the writing is what it purports to be).
A.    Generally, writings are not self-authenticating (see below).
B.     How to authenticate?
                                      i.          Direct evidence:
1.      admission (e.g. – “this is my signature on the contract”);
2.      eye witness (e.g. – someone who saw the person sign the contract);
3.      proof of handwriting:
A.    with lay witness – anyone familiar with the person’s signature;
B.     with expert witness – by comparison;
C.     by jury comparison – if there is genuine specimen admitted.
                                     ii.          Circumstantial evidence:
1.      some types of circumstantial evidence have been indoctrinated:
A.    ancient document rule – a writing is admissible if:
                                                                    i.          it is 20 years or older (30 years in NY);
                                                                   ii.          it is regular on its face (no evidence of erasure); and
                                                                 iii.          it is found in a place of natural custody.
B.     solicited reply doctrine – a disputed writing is admissible if it comes in response to a prior communication.
                                   iii.          How strong does proof of genuineness have to be?
1.      Rule – a party need only present sufficient evidence to justify a jury finding of genuineness (whether the document is in fact genuine is an issue for the jury to decide).
                                   iv.          Self-authenticating writings:
1.      certified copies of business or public records;
2.      official publications (books and pamphlets that purport on their face to be from a public authority);
3.      newspapers and periodicals;
4.      trade inscription or labels (which are fixed in the course of business purporting to indicate control and ownership);
5.      acknowledged documents (certificate of acknowledgement attached);
6.      signatures on commercial documents in accordance with the UCC.
                                     v.          Photographs and FoundationTo be admissible, a photograph must be identified by a witness (not necessarily expert) as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted.
1.      Q: when you don’t have a witness to state that it is a fair and accurate portrayal (e.g. – photo from a surveillance camera).
A.    In such cases, testimony regarding whether the camera was operating properly, how the film was handled, etc. is necessary to authenticate.
       ii.          Best Evidence Rule:
1.      Narrow rule – applies only to writings (liberally defined to include films, photos, x-rays and recordings).
A.    Expresses a preference for the original document by requiring that a party seeking to prove the content of a writing either:
                                      i.          produce the original document; or
1.      public records – certified copy will do (don’t need to produce the original b/c can’t get original).
2.      voluminous document modification – when original document is so voluminous that it can’t conveniently be examined in court, proponent may prove its content by use of a summary, chart, or calculation if:
A.    the voluminous originals themselves would be admissible (not hearsay, etc.); and
B.     the opponent is given access to the voluminous originals.
C.     e.g. – personnel records that show a pattern of age discrimination.
3.      Duplicates:
A.    Federal Rule – duplicates (counterparts produced by any process or technique that accurately reproduces the original and avoids casual error; e.g. - faxes, copies, etc.) are admissible just like the original unless:
                                                                    i.          a genuine question is raised about the validity of the original; or
                                                                   ii.          it would be unfair (e.g. – contract is 250 pages; produce copy of 2 sentences taken out of context).
B.     NY Rule – photocopies are admissible if the copies are made, kept or recorded in the ordinary course of business.
                                     ii.          account satisfactorily for its absence (in which case a copy or oral testimony may be used to prove the content of the writing).
B.     When applies?
                                      i.          When the writing is a legally operative document (creates or destroys a legal relationship that is at issue in the case).
1.      e.g. – deed, contract, divorce decree.
                                     ii.          Anytime the witness’s sole knowledge of a fact is gleaned from the document (no personal knowledge).
1.      e.g. – H arrested and tried for murder of W. H claims he didn’t do it, he loved his wife and had no motive to kill her.  Police find anonymous note in H’s possession which said that W was having sex with another man.  Police officer wants to testify to content of letter to establish motive.
C.     When doesn’t the Best Evidence Rule apply?
                                      i.          Where the fact to be proved has an existence independent of the writing (you have a witness with personal knowledge and the fact happens to be in writing as well).
1.      example 1 – can testify to birth without birth certificate; death without death certificate.
2.      example 2 – the issue in the case is whether S made payment.  The witness wants to testify and say “I saw S make the payment and get a receipt.”  (Best Evidence Rule not implicated)
3.      example 3 – same witness testifies that he knew S made the payment because he saw the receipt (Best Evidence Rule implicated – sole knowledge gleaned from receipt).
                                     ii.          Collateral Documents Exception – Best Evidence Rule does not apply to writings of minor significance.
C.     Witnesses:
        i.          Competency of Witnesses:
1.      Basic testimonial qualifications:
A.    perception (witness must have observed something); 
B.     memory (witness must remember something observed);
C.     communication (witness must be able to communicate what he saw);
D.    sincerity (witness must demonstrate appreciate for obligation to tell the truth).
2.      Federal Rules:
A.    Witness must:
                                      i.          have communicable personal knowledge; &
                                     ii.          take oath or affirmation.
B.     Infancy – no automatic disqualification.
                                      i.          NY Distinction:
1.      civil cases – all testimony must be sworn and all witnesses must be able to understand the oath (thus a child might not be able to testify).
2.      criminal cases – children under 12 or anyone with a mental defect that does not understand the oath can still testify if the witness has the intelligence to justify the reception of the evidence (but this evidence can’t be the sole basis for a conviction).
C.     Witness’s competence to testify and credibility are always relevant
D.    Many common law reasons for disqualification do not apply any longer.
                                      i.          Religion of witness – now irrelevant.
                                     ii.          Judicially-declared incompetence – not automatically disqualified if person can give helpful testimony.
                                   iii.          Convictions for crime – not grounds for automatic disqualification.
                                   iv.          Conflicts of interest - not grounds for automatic disqualification, but:
1.      Dead Man Statute:
A.    Federal rule – there is no Dead Man Act in the Federal Rules, but a state Act will apply in federal cases where state law, under the Erie doctrine, provides the rule of decision (e.g. – diversity cases).
B.     Most states – requirements:
                                                                    i.          interested witness (direct stake in outcome of litigation);
                                                                   ii.          witness must testify for his/her interest;
                                                                 iii.          must be testifying against decedent (or incompetent) or their representatives;
                                                                 iv.          about communications or transactions with the decedent (or incompetent);
                                                                   v.          civil cases only;
                                                                 vi.          there can be waiver (if decedent’s testimony somehow gets before jury – deposition of decedent, etc.)
C.     NY Dead Man Statute – an interested survivor may not testify for his/her interests against a decedent or incompetent or their representatives about a communication or transaction with the decedent or incompetent in a civil case unless there is a waiver.
                                                                    i.          rationale – fear of perjury (if decedent were alive, their lies will offset, but if one party is dead, the party that is alive has an advantage).
                                                                   ii.          exception – an interested survivor may testify regarding facts (but not communications afterwards) of negligence or contributory negligence in accident arising out of operation of automobile, plane or boat.
       ii.          Examination of Witnesses:
1.      It is the witness not the lawyer who should testify.
2.      Must be an interrogative not a narrative, but
A.    No leading questions – questions that suggest answers to witness who is likely to use suggestion.
                                      i.          A lawyer may use leading questions in the following situations:
1.      on cross examination;
2.      on direct examination as to preliminary matters (non-crucial);
3.      when having difficulty eliciting answers because the witness is handicapped (old, young, immature, dumb, forgetful, etc.);
4.      when examining an adverse party (or someone under control of adverse party) or a generally hostile witness.
B.     No misleading/compound/argumentative questions – kind of questions which assume as true something that is still in dispute.
                                      i.          example 1 – “Have you stopped beating your wife yet?”
                                     ii.          example 2 – “Were you lying then or are you lying now?”
3.      Use of a writing to aid oral testimony:
A.    Basic rule – witnesses are not supposed to read in court (they are supposed to testify from their own recollection of events).
                                      i.          Exceptions:
1.      Refreshing recollection (“present recollection revived”) – any writing (or even any thing: song, scent, etc.) can be used to jog the memory of a witness
A.    foundation – witness must say “I can’t remember.”
B.     Doesn’t have to be authenticated b/c it is not being offered into evidence (thus can be hearsay, or not best evidence, etc.)
C.     Opposing counsel must be allowed to see and use the item (and can put into evidence if so desired).
2.      Recorded recollection (“past recollection recorded”) – if witness can’t remember or be refreshed, writing can replace recollection of witness.
A.    FoundationCan get the list, etc. into evidence provided you lay the proper foundation:
                                                                    i.          the witness at one time had personal knowledge of the fact recited in the writing;
                                                                   ii.          the writing was made by or under the direction of the witness of has been adopted by him;
                                                                 iii.          the writing was timely made when the matter was fresh in the mind of the witness
                                                                 iv.          the writing is accurate
                                                                   v.          the witness has insufficient recollection to testify full and accurately.
B.     How it comes into evidence? – it is read to the jury, but it does not go to the jury.
C.     Hearsay? – yes, but past recollection recorded is an exception to the hearsay exclusion.
     iii.          Opinion testimony:
1.      Lay opinions – admissible if:
A.    opinion is rationally based on the perception of the witness (witness has personal knowledge);
B.     opinion is helpful to the trier of fact; and
C.     not based on scientific, technical, or other specialized knowledge.
2.      Expert opinions – 4 requirements for expert testimony:
A.    the subject matter must be appropriate for expert testimony;
                                      i.          relevance – opinion must fit facts of case;
                                     ii.          reliable – methodology underlying the opinion must be scientifically valid (e.g. – DNA tests).
1.      Who determines reliability:
A.    Federal – it is up to the judge whether the methodology used by the expert is acceptable.
B.     NY (General Acceptance Test) – methodology must have gained general acceptance in the scientific community.
B.     the witness must be qualified as an expert;
                                      i.          The qualification of a witness as an expert is a preliminary fact to be determined by the judge
                                     ii.          Must be established to satisfaction of judge by preponderance of the evidence.
C.     the witness must possess reasonable certainty or probability regarding the opinion (more than mere speculation);
D.    the opinion must be supported by a proper factual basis
                                      i.          3 kinds of facts which can support an experts opinion:
1.      facts within the personal knowledge of the expert;
2.      facts in evidence in case which are supplied to the expert in court (usually via a hypothetical question);
3.      facts of the type that experts in the field would rely upon in making out of court professional decisions (e.g. – general doctor can rely on radiologists report, e.g., learned text).
     iv.          Learned text or treatises:
1.      Federal Rule – may use text or treatise in support of own expert witness
A.    Hearsay problem? – learned treatise exception.
                                      i.          Must establish reliability in 1 of 4 ways:
1.      if opponent’s expert relied on it in his testimony;
2.      eliciting an admission on cross that it is reliable;
3.      by calling own expert to testify to its reliability;
4.      judicial notice (if so well known that judge may take judicial notice of its reliability).
B.     Limitations:
                                      i.          There must be an expert on the stand (information is filtered through the expert, own or opposing).
                                     ii.          Text is only read to jury, not given to jury.
2.      NY Rule – no hearsay exception (thus can’t offer to prove truth of the matter therein), but can offer to impeach opponent’s expert.
                                      i.          Must establish reliability in 1 of 4 ways:
1.      if opponent’s expert relied on it in his testimony;
2.      eliciting an admission on cross that it is reliable;
3.      by calling own expert to testify to its reliability;
4.      judicial notice (if so well known that judge may take judicial notice of its reliability).

Expert Witness learned treaties 의존해서 증언할 경우두가지 문제 발생
i)               Learned treaties reliable?
ii)             Hearsay 문제를 어떻게 해결할 것인가?
Reliability of a Publication (expert witness관련) - May established by
i)               The direct testimony or cross-examination admission of the expert
ii)             The testimony of another expert; or
iii)            Judicial notice
Learned Treaties Hearsay Exception Requirement
i)               The expert is on the stand and it is called to his attention, and
ii)             It is established as reliable authority


       v.          Cross-examination:
1.      You are entitled as of right to cross-examine any witness who testifies live against you.
A.    Scope of Cross-examinationit is limited to (i) matters brought out on direct examination and inferences naturally drawn therefrom; and (ii) matters affecting the credibility of the witness: it is a matter of judicial discretion if there has been an adequate opportunity for meaningful cross-examination.
B.     Collateral Matters Doctrine – no extrinsic evidence is allowed to contradict a witness as to collateral matters.
                                      i.          collateral matters – anything that is only relevant to show contradiction.
                                     ii.          e.g. – witness testifies against you that he saw the accident at the intersection.  In response to a question regarding why he was at that intersection, the witness responds that he was on his way home from his grandmother’s house at 303 Main Street (303 Main St. is actually a brothel).
1.      You can ask the witness whether 303 Main St. is actually a brothel, but you are bound by the answer that he gives (you cannot offer extrinsic evidence to prove that 303 Main St. is actually a brothel even though logically one could infer that if he is lying about this, he might be lying about more important issues).
     vi.          Credibility and Impeachment:
1.      Bolstering own witness:
A.    Rule – you cannot bolster the credibility of your own witness unless there has been an impeachment attack against him (bad before good).
                                      i.          prior consistent statements – this rule includes evidence of prior consistent statements.
1.      exception – prior statements of identification by a witness.
A.    scenario 1 – witness identifies D in court, and then testifies to previous identification he made (e.g. – lineup). 
                                                                    i.          Federal – allowed
                                                                   ii.          NY –allowed
B.     scenario 2 – witness identifies D in court, and then police officer testifies to that witness’s prior identification.
                                                                    i.          Federal – allowed
                                                                   ii.          NY – not allowed (when witness makes in court ID, only that witness can testify to prior ID).
C.     scenario 3 – witness can’t ID D in court (D looks different, etc.), so police officer testifies to that witness’s prior identification.
                                                                    i.          Federal – allowed
                                                                   ii.          NY –allowed (third party can testify only when eye witness who made identification lacks present recollection).
D.    scenario 4 – person who made prior ID is unavailable so police officer testifies to that person’s prior ID.
                                                                    i.          Federal – not allowed (hearsay b/c exception for prior consistent statements only applies to IDs made by a witness, an unavailable person is not a witness).
                                                                   ii.          NY – not allowed
2.      Impeaching own witness:
A.    Federal – you may freely impeach your own witnesses with no conditions (e.g. – call to stand, goes badly, now need to impeach).
B.     NY – can’t impeach own witness except by a prior inconsistent statement which is in writing and signed or given under oath.
3.      Impeachment of adversary’s witness:
A.    5 techniques:
                                      i.          Prior inconsistent statement – showing that witness at some time made a statement different from or inconsistent with a material portion of that witness’ in-court testimony.
1.      Admissible for its truth, or only to impeach the witness?
A.    Federal – a prior inconsistent statement that was given under oath and was given as part of a formal trial, hearing, proceeding or deposition comes in for its truth (substantive evidence) as well as to impeach (because it is a ‘non-hearsay’).
B.     NY – only admissible to impeach.
2.      Extrinsic evidence (or only cross-examination)? – extrinsic evidence allowed.
A.    Foundation (must you give witness opportunity to explain or deny making the inconsistent statement before using extrinsic evidence)?
                                                                    i.          Federal – witness should have the opportunity to explain or deny, but there is no time requirement (thus could introduce the extrinsic evidence and then give the witness an opportunity to explain or deny).
                                                                   ii.          NY – yes; and must first give witness opportunity to explain or deny.
3.      Tip:  if it is a prior inconsistent statement by a party it is an admission and needs no foundation (falls under party admission exception to hearsay).
                                     ii.          showing of bias, interest or motive to lie;
1.      extrinsic evidence? – yes
A.    foundation? – yes
                                   iii.          Prior Conviction of Crime;
1.      Federal Rule:
A.    Any crime, felony or misdemeanor involving dishonesty or false statement is usable to impeach.
                                                                    i.          Public policy relevance (Rule 403 – probative value) – does not apply (admissibility is automatic, no discretion for judge).
                                                                   ii.          What is a crime of dishonesty? – involves deceit or false statement (not robbery, not ordinary larceny, yes larceny by trick).
B.     A felony not involving dishonesty is usable to impeach but is discretionary (Rule 403 applies).
C.     Remoteness – even if the crime falls into the above 2 categories, it may not be used to impeach if more than 10 years has elapsed since release from confinement (or conviction if no confinement).
D.    extrinsic evidence and Foundation – yes
2.      NY Ruleany crime (felony, misdemeanor, etc.) can be used to impeach at the discretion of the judge.
A.    extrinsic evidence and Foundation – yes
                                   iv.          specific acts of misconduct (which do not amount to a conviction);
1.      Federal Rule – must concern act of deceit or lying
A.    Must have a reasonable basis for believing the act was committed.
B.     Extrinsic evidence? – no (cross-examination only)
2.      NY Rule – any specific acts of misconduct can be used (immoral, etc.).
A.    Must have a reasonable basis for believing the act was committed.
B.     Extrinsic evidence? – no (cross-examination only)
                                     v.          bad reputation for truth or veracity.
1.      Extrinsic evidence? – yes (only way is by calling witness).
2.      Federal Rule – witness can testify as to reputation or give his opinion (based on personal knowledge or reputation).
3.      NY Rule – reputation only (will allow opinion only if based on reputation).
4.      Rehabilitation:
A.    Methods:
                                      i.          Good reputation for truth and veracity – can be shown only when there has been a direct character attack on your witness (impeachment techniques 3,4, and 5 above).
                                     ii.          Prior consistent statementa party may rehabilitate a witness by showing a prior consistent statement if opposing counsel has impeached the credibility of a witness by making a charge that the witness is lying or exaggerating because of some motive.
1.      it is non-hearsay; thus can be used for its truth (substantive evidence) as well as to rehabilitate the witness.
2.      Can’t be used to rehabilitate a witness who was impeached by a prior inconsistent statement.
D.    Privileges:
        i.          Applicable law:
1.      Federal – federal privilege law is determined by reference to the common law (judge-made).
2.      State – state privilege law is determined in accordance with state statutory law.
       ii.          Exceptions (that apply to all privileges):
1.      Future (and continuing) crime/fraud exception;
2.      At issue exception (no privilege if client affirmatively puts in issue the communication made to attorney, doctor, etc.);
3.      Disputes between the professional and the client/patient.
     iii.          Attorney-Client Privilege – confidential communications between attorneys and their clients made during the professional/legal consultations are privileged from disclosure unless waived by the client (or representatives of the deceased client – the privilege survives the death of the client).
1.      No privilege for statements made in presence of 3rd party.
2.      No privilege for physical evidence or pre-existing documents.
3.      Must have intent to establish a professional/legal relationship (casual advice to a neighbor is not covered).
4.      Includes things you say to an attorney in retainer negotiations even if you don’t ultimately retain that attorney.
5.      Exceptions (specific to attorney-client privilege):
A.    If 2 or more clients communicate together with an attorney about a matter of common interest, no privilege exists between or among these joined parties.
B.     No privilege for information regarding preparation, execution or revocation when persons are claiming through a deceased client’s will or trust in actions regarding probate, validity or construction of the will or trust (assumes if client were alive he would have waived privilege).
     iv.          Physician-Patient Privilege (includes psychiatrists) – the patient has a privilege against the disclosure of confidential information acquired by a physician in a professional relationship entered into for purposes of obtaining treatment.
1.      pre-requirement: the existence of a licensed physician, or the patient’s reasonable belief that the consultant is a licensed physician
2.      Patient must be seeking treatment (not doctor that is examining for purposes of litigation or court ordered evaluations, etc.)
3.      Patient-litigant exception – does not apply in any case where person sues or defends by putting physical/mental condition in issue.
4.      MBE Tip:
A.    It is not clear that the physician-client relationship even exists in federal court (though it is clear that the psychiatrist-patient relationship does).
B.     Thus, test makers will usually give a reason for it not to apply.
       v.          Spousal privileges:
1.      Spousal immunity privilege (criminal case) – one spouse cannot be forced to give adverse testimony against the other in a criminal case (witness spouse holds this privilege – can testify if wants to).
A.    Rationale – protects the stability of existing marriages.
B.     Requirements:
                                      i.          must be married at the time of trial
                                     ii.          matter concerns pre-marital events or during the marriage;
                                   iii.          holder is witness spouse;
                                   iv.          ONLY applies in criminal cases.
                                     v.          Divorce or annulment terminates the Spousal Immunity
C.     NY – this privilege does not exist.
2.      Confidential Marital Communications Privilege (both civil and criminal) A confidential communication made between the spouses during a valid marriage, both spouses have a privilege to prevent from disclosing such a fact
A.    Rationale – encourages open marriages.
B.     Requirements:
                                      i.          must be married at time of communication;
                                     ii.          Divorce will not terminate the privilege;
                                   iii.          applies only to confidences (not all testimony);
                                   iv.          holder is either spouse (not just witness spouse – thus both must agree to waive);
                                     v.          applies in both civil or criminal cases.
3.      Neither privilege applies in intra-family injury cases.
E.     In Federal court, what law applies as to matters of evidence?
        i.          When federal substantive law applies (federal question cases, etc.) – Federal rules of evidence apply
       ii.          When state substantive law applies (diversity cases, etc.) – generally, federal rules of evidence apply except state evidence rules apply with regard to:
1.      burdens of proof and presumptions;
2.       rules regarding the competence of witnesses (this is how a state’s dead man statute can apply in federal court even though the federal rules don’t have such a statute);
3.      privileges.
F.      Hearsay:
        i.          Definition of Hearsay:
1.      General definitionHearsay is an out-of-court statement offered in evidence to prove the truth of matter asserted. A hearsay statement, to which exception to the rule is not applicable, must be excluded upon appropriate objection to its admissibility.
2.      Cast of characters:
A.    Scenario 1 – declarant makes out of court statement; witness testifies that he/she heard declarant make the statement.
B.     Scenario 2 – declarant makes out of court statement in writing; writing is presented in court.
C.     Same problem in both – declarant is not on the stand to be cross-examined.
3.      Rationale:
A.    When offered to proof truth of the matter – problematic because it denies opponent the opportunity to cross-examine the declarant in order to test the declarant’s perception, memory, sincerity, etc.
B.     When offered simply to proof that declarant said those words – not problematic because the person whose perception, memory or sincerity is at issue is the witness’, who is on the stand to be cross-examined.
4.      Non-hearsay:
A.    Verbal acts (legally operative facts) – those words which by their mere utterance carry legal significance.
                                      i.          Example 1 – witness testifies: “I heard declarant accept the offer.”
                                     ii.          Other examples:
1.      words of contract in contract suit;
2.      words of defamation in defamation action;
3.      words of bribery in a bribery action;
4.      words of conspiracy in a conspiracy action;
5.      words of cancellation;
6.      words of misrepresentation;
7.      words of waiver.
B.      Words offered to show affect on mind of listener/reader – words offered to show why the listener/reader acted the way they did.
                                      i.          Statement of Warning: In negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for showing knowledge or notice on the part of a listener.
1.      Example 1 – V tells police that S mugged him; police arrest S; police release S because he is innocent; S sues for false imprisonment; police can testify to what V said.
2.      Example 2 – V falls on loose step in department store and is injured; V sues Store for negligence; Store claims it had no notice of loose step; a Store employee can testify that he heard another customer tell the Store owner that the step was broken.
3.      Example 3 – H is accused of killing W; H claims he loves W and had no motive to kill her; the prosecution can introduce a letter that was written to H telling him that W was cheating on him (establishes motive).
                                     ii.          Statements offered as relevant circumstantial evidence to show Declarant’s own state of mind – Declarant’s state of mind must be relevant to case
1.      e.g. – D charged with murder raises insanity defense; witness can testify that he heard D say, “I am the pope, I am on a mission from God.”
5.      When witness and declarant are the same person:
A.    Can still be hearsay (thus inadmissible if offered for truth of the matter) even though this goes against the rationale above.
                                      i.          e.g. – D takes stand; lawyer asks him what he told the police when he was arrested; D responds “I told them I was innocent.” (inadmissible hearsay, no exception).
B.     Statements excluded by fiat (though they meet hearsay definition):
                                      i.          Prior inconsistent statement given under oath in prior proceeding (see above);
                                     ii.          Prior consistent statement offered to rebut charge of recent fabrication b/c of improper influence or motive (see above);
                                   iii.          Prior statements of identification admissible for truth (see above).
       ii.          Exceptions (b/c of special reliability):
1.      Admission of a party – a declaration of a party offered against that party.
A.    special reliability – there isn’t any.
B.     Exception or non-hearsay?
                                      i.          Federal – this is non-hearsay
                                     ii.          NY – this is a hearsay exception.
C.     Declarant doesn’t need personal knowledge (e.g. – airline president says “negligent again!” in response to news of crash, even though he doesn’t know any of the facts of the accident).
                                      i.          This comes in even though that same airline president would not have been able to testify to the statement (b/c it is a legal conclusion).
D.    Who is a party?
                                      i.          Vicarious admission
1.      Federal – a statement made by an employee concerning a matter in scope of employment is admissible against employer if made during the employment relationship (before fired).
2.      NY – a matter of agency (was employee authorized to speak for the company?).
                                     ii.          When next of kin sue, statements by the decedent are not admissible (unless some other exception applies) b/c the decedent is not a party.
                                   iii.          Victim is not a party in criminal action.
2.      Former testimony – witness testified live in proceeding 1 but is not available in proceeding 2.
A.    Special reliability? – made under oath.
B.     Admissible under exception if:
                                      i.          There was a meaningful opportunity to cross-examine the witness in proceeding 1.
1.      not grand jury testimony (b/c no cross);
2.      issues must be the same in the two proceedings;
3.      must be certain identity of parties (offered against same party as in proceeding 1 or party in privity with that party) who had opportunity to cross-examine.
A.    Example 1 – A and B are passengers injured in bus accident; each sues bus company; witness to bus accident testifies against the bus company in A’s trial but is unavailable for B’s trial (testimony comes in under exception – bus company had opportunity to cross-examine in A’s trial).
B.     Example 2 – A and B are passengers injured in bus accident; each sues bus company; witness to bus accident testifies for the bus company in A’s trial but is unavailable for B’s trial (testimony is excluded b/c B did not have opportunity to cross-examine in A’s trial and B is not in privity with A).
                                     ii.          Unavailability:
1.      death;
2.      absence from jurisdiction;
3.      physical/mental illness;
4.      includes refusal to answer or failure of memory.
3.      Statement against interest – a declaration of a person, now unavailable as a witness, against that person’s monetary, proprietary, or penal interest or that would expose declarant to defeat of a civil claim at time statement is made.
A.    special reliability? – likely wouldn’t say unless true.
B.     Limitation (re: 3rd party confessions) – statement against penal interest offered to exculpate the accused is not admissible unless there are corroborating circumstances clearly indicating trustworthiness of the statement.
C.     Differences from admission of party exception:
                                      i.          against interest at time made (admission is normally against interest at time of trial);
                                     ii.          can be made by anyone (admission must be made by and offered against a party);
                                   iii.          personal knowledge required (declarant must know what he is talking about);
                                   iv.          unavailability is required (admission requires availability b/c must be party).
4.      Dying declaration – statement made under sense of impending death.
A.    special reliability? – no motive to lie.
B.     Four basic aspects:
                                      i.          State of mind requirement – must be made under sense of impending death (for exam – fact pattern must indicate declarant knew he was going to die – saying it and then dying is not enough);
                                     ii.          Death requirement?
1.      Federal – declarant need not die (but must be unavailable at time of trial)
2.      NY – declarant must die.
                                   iii.          What type of cases?
1.      Federal – homicide cases and any civil cases.
2.      NY – homicide cases only.
                                   iv.          Content limitation – must concern the cause or circumstances of the impending death.
5.      Group of exceptions (unavailability not required)
A.    Declaration of then present state of mind which is at issue in case
                                                        i.          A statement of a declarant’s then-existing state of mind is admissible when the declarant’s state of mind is directly in issue, or as a basis for a circumstantial inference that a particular declaration of intent was carried out.
B.     Declaration of present intent to do something in not too distant future – admissible to infer that the intended future act was carried out.
C.     Excited utterance:
                                      i.          3 requirements:
1.      startling event;
2.      statement must be made under stress of the excitement (can’t think, thus can’t lie);
A.    there can be a time lapse, depending on what’s going on during that lapse.
3.      statement must concern the facts of the startling event;
D.    Present sense impression  - declarant is describing something at very moment it is happening.
                                      i.          e.g. – mother calls victim; victim says “hold on a second, someone’s at the door.  I can’t talk it’s S.” Victim is then found dead.  Mother can testify to what victim said at S’s trial.
                                     ii.          NY corroboration requirement – content of statement must be corroborated.
1.      e.g. – neighbor calls 911 and gives play-by-play of burglary that she can see out her apartment window, but refuses to give her name.  According to her account there were 2 white guys with mustaches burglarizing the apartment.  The fact that the police arrested 2 white guys with mustaches near the scene is enough to corroborate her statement.     
A.    If neighbor did testify, can play 911 tape also even though it is a prior consistent statement because hearsay is no longer a problem
E.     Declaration of present physical condition – admissible by anyone who hears it.
F.      Declaration of past physical condition – admissible if made to medical personnel for purposes of diagnosis or treatment (including diagnosis solely for purposes of giving testimony).
                                      i.          Does not exist in NY.
6.      Business records:
A.    Special reliability – employees have incentive to be accurate in observing, reporting, etc. b/c they may be fired if they are not.
B.     Function – allows record to substitute for what employees could say live.
C.     Requirements:
                                      i.          Entry must be connected to business;
                                     ii.          Information in record must come from someone who has duty within scope of business to accurately record (information in record that came from outsider who reported it to the company and an employee put the information in a business record – doesn’t fall under exception because employees couldn’t testify to this live: 2 levels of hearsay so you need 2 exceptions).
1.      3rd party source – double level hearsay (both levels must have an exception).
                                   iii.          Limitation – FRE gives the court discretion to exclude a business record where its source is indicates a lack of trustworthiness.
1.      Police reports:
                                                                    i.          Admissible: Observations of officer (e.g. length of skid marks) – in under business record exception.
                                                                   ii.          Admissible: Statement of D taken by police – hearsay but admissible b/c of business records and party admission exceptions.
                                                                iii.          Inadmissible: Statement of witnesses questioned by officer – inadmissible b/c hearsay (business record for officer’s recording of statement but no exception for statement of witness).
7.      Judgment of Felony Conviction and Hearsay
A.     Judgment of Felony Convictions is admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty.
Note: the actual plea of guilty is also admissible as an admission of a party-opponent. (non-hearsay)

     iii.          Recurring Fact Questions on Exam:
1.      Who decides preliminary questions of fact upon which admissibility depends?
A.    Judge determines, but judge is not bound by the rules of evidence (can use hearsay, unauthenticated documents, etc.)
                                      i.          e.g. – judge can use letter from declarant saying he is unavailable even if it is unauthenticated and hearsay.
2.      Can impeach credibility of hearsay declarant like any live witness.
A.    e.g. – dying declaration or excited utterance by declarant who later contradicts himself;  witness testifies as to hearing the first statement; can impeach witness with prior inconsistent statement.
3.      Witness wants to testify as to what he heard on a recording.
A.    Recording itself must not be inadmissible hearsay.
B.     Best Evidence Problem (b/c witness’ sole knowledge comes from what he heard on the tape)
                                      i.          Must explain why recording itself was not produced.


Hearsay and Parol Evidence
i)               Parol Evidence is not hearsay.
ii)             If an agreement is reduced to a writing, all prior or contemporaneous negotiations or agreements are merged into the written agreement. Extrinsic evidence is not admissible to add to, detract from, or alter the agreement as written.
iii)            Exception – the parol evidence is admissible to show that a contract was void or voidable. (Fraud, Duress, undue influence)

 [이상은 본인이 작성한 outline이 아님을 밝힙니다. 인터넷에서 쉽게 구할 수 있는 것입니다. 하지만, New York Bar Exam에 도움이 되리라 생각합니다.] 

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