Evidence
A.
Relevance:
i.
Threshold question – is 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 Foundation– To
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.
Foundation – Can 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 Witness가 learned treaties에 의존해서 증언할 경우 – 두가지 문제 발생
i)
Learned treaties가 reliable?
ii)
Hearsay의 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-examination – it 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 Rule – any 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 statement – a 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 definition – Hearsay
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)
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