Prof. Vincent C. Alexander St. Johns University School of Law
INTRODUCTION
A. SOURCES OF EVIDENCE LAW 1. Multistate Law: _____________________________________________ 2. New York Law: 80% the same as the Multistate; 20% NY Distinctions ___________________________________________________________ B. OVERVIEW: EVIDENCE TOPICS 1. The Three Major Topics (a) __________________________ (b) __________________________ (c) __________________________ 2. The Three Minor Topics (a) __________________________ (b) __________________________ (c) __________________________ 3. Five Topics Not Covered in Lecture (a) Procedural Considerations (b) Burden of Proof (c) Presumptions (d) Judicial Notice (e) Real Evidence 2. NEW YORK EVIDENCE
I. RELEVANCE
A. Basic Principles
1. Evidence is RELEVANT if it has _______________________to make a material fact more probable or less probable than would be the case without the evidence.
2. All relevant evidence is ADMISSIBLE, UNLESS (a) some specific EXCLUSIONARY RULE is applicable, or (b) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by one or more of six PRAGMATIC CONSIDERATIONS:
IN GENERAL, if evidence concerns SOME TIME, EVENT OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is INADMISSIBLE. Probative value is usually outweighed by pragmatic considerations (e.g., weak relevance, danger of confusion, misleading the jury, time-consuming). But six recurring situations have produced concrete rules that may permit admissibility.
NEW YORK EVIDENCE 3.
1. Plaintiffs Accident History.
GENERALLY, plaintiffs accident history is _____________ because it shows nothing more than the fact that the plaintiff is accident-prone. _______________________________________________________ _______________________________________________________
HYPO 1. Billy Joel drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. (a) On the issue of contributory negligence, should the municipality be allowed to introduce evidence that Billy has frequently driven into other stationary objects (tree, bridge, brick wall)?
(b) What if Billy claims that the accident injured his shoulder, and the municipality wants to show that Billys shoulder was injured when he crashed into a tree a year before the lamp post incident?
2. Similar Accidents Caused by Same Instrumentality or Condition.
GENERALLY, other accidents involving defendant are inadmissible because they suggest nothing more than defendants general character for carelessness.
EXCEPTION: Other accidents involving the same instrumentality or condition may be admitted for 3 potential purposes IF the other accident occurred _______________________________________:
(1) ____________________
(2) ____________________
(3) ____________________
4. NEW YORK EVIDENCE
HYPO 2. Assume in Hypo 1 that several other vehicles had collided with the same lamp post that Billy ran into. Could Billy introduce those other accidents against the municipality?
Substantial similarity is also the rule governing the admissibility of EXPERIMENTS and TESTS.
3. Intent in Issue.
Prior similar conduct of a person may be admissible to raise an inference of the persons intent on later occasion.
HYPO 3. Paris sues Brewski Co. for gender discrimination, alleging that she was qualified for the job but was not hired because of her gender. She seeks to show that Brewski hired no women, despite their qualifications, during the past 6 years. Admissible?
Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue.
NEW YORK EVIDENCE 5.
5. Habit.
Habit of a person (or routine of a business organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.
DISTINGUISH: Character evidence refers to a persons general disposition or propensity. Character is usually not admissible to prove conduct on a particular occasion. E.g., Fact that Carlos is a careless driver is inadmissible to suggest that he ran a red light and caused the accident involving the plaintiff.
DEFINITION: Habit is a repetitive response to a particular set of circumstances.
Habit has 2 defining characteristics:
_______________________
_______________________
NEW YORK: Imposes an additional requirement for habit. In addition to frequency and particularity of the conduct, the person must be: _________ _____________________________________. E.g., a dentist may testify that she always administers anesthesia within a specific range of the teeth being worked on. In products liability, New York allows evidence of the habitual way in which a person uses a product. But a car driver may not testify that he always signals to make right-hand turns because of the many external variables that arise on roadways (e.g., traffic conditions, speed, nature of intersections).
HYPO 4. In an auto accident case, the issue is whether Lindsay stopped her car at the stop sign at the intersection of Hickory and Main Streets.
(a) Plaintiff calls Britney to testify that during the six months preceding the accident, she had seen Lindsay run red lights, change lanes without using signals and run stop signs throughout town. Admissible as habit evidence to prove that Lindsay ran the stop sign at Hickory and Main?
(b) Britney will testify that she has seen Lindsay run the stop sign at Hickory and Main on at least 8 occasions within a two-week period. Admissible as habit?
New York: __________________________________________________ ________________________________________________________________ ________________________________________________________________
Business Routine: Example: To prove that a particular letter was mailed by CEO, evidence that CEO put letter in her out-box on Tuesday, and messenger routinely picks up mail in CEOs out-box at 3:00 P.M. each business day for delivery to mail room.
6. Industrial Custom as Standard of Care.
Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted, i.e., as evidence of the APPROPRIATE STANDARD OF CARE.
Example: Plaintiff is injured when a blade spins off a lawn mower. In an action against the manufacturer, she may show that 80% of all other lawn mower manufacturers, during the relevant time period, had installed devices to prevent blade spin-off. ___________________________________________________________ ___________________________________________________________
C. Policy-Based Exclusions.
1. Liability Insurance.
Evidence that a person has (or does not have) liability insurance is _______________ for the purpose of ____________________________ Policy: to avoid risk that jury will base decision on availability of insurance instead of merits of case, and to encourage people to buy liability insurance. NEW YORK EVIDENCE 7.
EXCEPTION: Evidence of insurance may be _________________ for some other relevant purpose, such as: (a) proof of OWNERSHIP / CONTROL OF INSTRUMENTALITY OR LOCATION, IF_____________ ____________________________________ or (b) for the purpose of _________________of a witness (the process of trying to show that a witness should not be believed). __________________________________________________________
HYPO 5. Rosie fell down a well on Trumps property. Rosie sues Trump, contending that the well was impossible to see because of overgrown foliage. Trump denies that he was negligent and also defends, in the alternative, on the ground that he did not own the land in question.
(a) Should Rosie be allowed to introduce evidence that Trump carried a homeowners liability insurance policy on the land?
(b) Same case. Apprentice, a witness called by Trump, testifies that she had been on Trumps property just prior to the accident and there was no foliage covering the well. May Rosie show, during cross-examination of Apprentice, that Apprentice is a claims adjuster employed by the company that issued the homeowners policy to Trump?
LIMITING INSTRUCTION should be given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell jury to consider the evidence only for the permissible purpose.
_________________ for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, OR NEED FOR WARNING. Policy: To encourage post-accident repairs, etc. to avoid future accidents. 8. NEW YORK EVIDENCE
EXCEPTION: Subsequent remedial measures may be _____________ for some other relevant purpose, such as proof of OWNERSHIP / CONTROL or FEASIBILITY OF SAFER CONDITION, IF EITHER IS ________________________.
HYPO 6. Penelope bought a cup of coffee at Dantes Coffee Inferno and scalded her tongue because the coffee was too hot. She sues Dantes in negligence. Dantes denies that it was negligent.
(a) At trial, Penelope seeks to introduce evidence that after the accident, Dantes installed new thermostats on its coffee-brewing equipment. Penelope contends that this conduct is an admission by Dantes that better safety controls were feasible. Admissible?
(b) Same case, except now assume that Penelope contends that Dantes negligence consisted of the failure to place warnings on its coffee cups indicating that its coffee was too hot for human consumption. Dantes defends, in part, on the ground that it was impossible to affix labels to its coffee cups. Penelope seeks to introduce evidence that after the accident, Dantes began to use cups that were pre-printed with warnings. Admissible?
NEW YORK: In a products liability action against a manufacturer based on strict liability for a manufacturing defect, the manufacturers post-accident manufacturing changes or design changes are ___________ to suggest the existence of a defect in the product at the time of the accident. Theory: The subsequent changes are probative of a prior defect, and admitting such evidence will not discourage safety improvements. Manufacturers will make such changes without regard to evidence law in order to avoid massive liability. (If the case against the manufacturer is based on a negligence theory, the usual exclusionary rule applies.)
NEW YORK EVIDENCE 9.
HYPO 7. Ed sues Empire Motors Inc. for injuries suffered in an accident in which Ed was driving an automobile manufactured by Empire. Ed asserts strict liability, alleging that a defect in the brakes of the car caused the accident. Defense: No defect. Ed seeks to introduce evidence that after the accident, Empire changed the design of the brakes in the type of car at issue. Admissible?
New York: ____________________________________________________________ _____________________________________________________________________
3. Settlements of Disputed Civil Claims. ________________________________________________________
In the event of a __________________________, the following are INADMISSIBLE: ____________________________
____________________________
____________________________
for the purpose of ______________________________________.
Policy: To encourage settlement.
EXCEPTIONS:
(1) Settlement evidence admissible for the purpose of
_________________________________
(2) Statements of fact made during settlement discussion in civil litigation with a ______________________________are admissible in a later _______________ (e.g., corporate fraud case in which corporate officers make admissions of fact during civil settlement talks with the SEC and are later prosecuted for crimes based on the same facts). Rationale: public policy favors prosecutors use of highly probative factual evidence.
Note: The exception in criminal cases does not apply to settlements and offers to settle.
NEW YORK has not adopted the government agency exception. 10. NEW YORK EVIDENCE
HYPO 8. On their way home from the Super Bowl, Eli and Payton were simultaneously struck by a car being driven by Tom. Eli and Payton both filed suit against Tom, each seeking $100,000. Tom denied all allegations.
(a) Before trial, Eli settled with Tom for $50,000. When Paytons case went to trial, Payton sought to introduce the Eli-Tom settlement as evidence that Tom, in effect, acknowledged his fault. Admissible? ______________________________________________________________ ______________________________________________________________
(b) Before Paytons case went to trial, Payton and Tom met to discuss possible settlement. During the discussion, Payton said, Ill accept $50,000 in settlement. So what if I was jay-walking. Tom declined. At trial, should Tom be allowed to introduce (1) Paytons offer to settle and (2) Paytons admission that he was jay-walking? ______________________________________________________________ ______________________________________________________________ ______________________________________________________________
If Payton testified at the trial that he did not jay-walk, could Tom introduce Paytons prior inconsistent statement to impeach his credibility? ______________________________________________________________ ______________________________________________________________
(c) At the trial of Paytons case, Tom called Eli as a witness and Eli testified to the effect that Tom had not driven negligently. On cross-examination of Eli, should Payton be allowed to prove the Eli-Tom settlement? ______________________________________________________________ ______________________________________________________________
NOTE: The exclusionary rule only applies if, at the time of the discussion, a CLAIM has been asserted and it is DISPUTED either as to the validity of the claim or the amount of damages.
HYPO 9(a). As and Bs cars collided. B immediately ran up to A and said, Look, Ill settle with you for $100,000 if you dont sue. Should A be allowed to introduce Bs statement against him at a subsequent trial?
HYPO 9(b). After As and Bs cars collided, A sent a letter to B saying, The accident was all your fault. I demand that you pay my damages in the amount of $100,000. B called A on the phone and said, Youre right about the accident. It was all my fault and I owe you the full $100,000 youre asking for. But you know how fickle juries can be. If you dont accept $50,000 now, youll have to sue me to get anything. Should A be allowed to introduce Bs statements against B at a subsequent trial?
HYPO 10. Arnold sold toxic Terminator action figures to the public. The Environmental Protection Agency (EPA) sued Arnold for civil penalties. Arnold denied liability. In negotiations with the EPA, Arnold offered to settle for half the amount sought, admitting during the discussions that the toys were toxic. Thereafter, the Government prosecuted Arnold for violating criminal laws against the distribution of toxic toys. In the criminal case, as evidence of Arnolds guilt, should the Government be allowed to introduce:
(A) Arnolds offer to settle with EPA? ___________________________________________________________________ ___________________________________________________________________
(B) Arnolds admission to EPA that the toys were toxic?
Plea Bargaining in Criminal Cases: The following are INADMISSIBLE:
Offer to plead guiltycannot be used against the defendant in the pending criminal case or in subsequent civil litigation.
Withdrawn guilty pleacannot be used against the defendant in the pending criminal case or in subsequent civil litigation. New York Distinction: Admissible in a subsequent civil case against the defendant.
Plea of nolo contendere (no contest)cannot be used against the defendant in subsequent civil litigation.
Statements of fact made during any of the above plea discussions.
BUT, a plea of GUILTY (not withdrawn) is ADMISSIBLE against the defendant in subsequent litigation under the rule of party admissions (both federal and New York).
4. Offer to Pay Hospital or Medical Expenses.
Evidence that a party has paid or offered to pay an accident victims hospital or medical expenses is ________________ to prove liability. Policy: To encourage charity. _____________________________________________________
NOTE: This rule does not exclude other statements made in connection with an offer to pay hospital or medical expenses. ____________________________________________________
HYPO 11. Donnas car hit pedestrian Pablo. Donna immediately ran to Pablo and said, (a) Dont worry about a thing. Ill pay for your hospital bills. (b) I shouldnt have run that red light.
(a) Is statement (a) admissible against Donna? ________________________________________________________________
(b) Is statement (b) admissible against Donna? ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ NEW YORK EVIDENCE 13.
D. Character Evidence
Character evidence refers to a persons general propensity or disposition, e.g., honesty, fairness, peacefulness, or violence.
Potential purposes for the admissibility of character evidence:
(1) Persons character is an ESSENTIAL ELEMENT IN THE CASE. __________________________________________________________
Overview: Evidence of the defendants character to prove defendants conduct on a particular occasion _________________ DURING THE PROSECUTIONS CASE-IN-CHIEF.
However, DEFENDANT, during the defense, may introduce
(by reputation or opinion testimony of a character witness) to prove conduct, thereby OPENING THE DOOR TO REBUTTAL by the prosecution.
NEW YORK: The criminal defendant may seek to prove his good character for the relevant trait only by reputation evidence, not opinion 14. NEW YORK EVIDENCE
HYPO 12. Rambo is charged with murder. During its direct case, should the prosecution be allowed to introduce evidence that Rambo has been convicted three times for assault, has a bad reputation for violence, and he recently stampeded a herd of cattle through the middle of town?
Should the prosecutions proposed evidence be admitted on the ground that defendants violent character is an essential element of the crime with which Rambo is charged?
HYPO 13. During the defense, Rambo calls Trautman to the stand to testify: (1) Im familiar with Rambos reputation for peacefulness, and it is excellent. (2) I personally know Rambo, and in my opinion he is a peaceful person. Admissible? For what purpose?
When character evidence about the defendant is admissible through a character witness to prove conduct in conformity, the only proper form: ______________________ ______________________
(New York: ____________________________). NEW YORK EVIDENCE 15.
Could Trautman properly testify: Ive seen Rambo turn the other cheek when assaulted by bullies; just last week he was elected President of the local Pacifist Club.
Could Trautman properly testify, Rambos reputation for bravery and honesty is excellent? _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________
(b) Prosecutions Rebuttal
IF defendant has opened the door by calling character witnesses, the prosecution may rebut:
(1) by cross-examining defendants character witnesses with Have you heard or Did you know questions about specific acts or arrests of the defendant that reflect adversely on the particular character trait that defendant has introduced (prosecution must have good faith basis for believing the act or arrest occurred); limited purpose: to impeach character witnesss knowledge about the defendant; and/or
(2) by calling its own reputation or opinion witnesses to contradict defendants witnesses.
(New York: _________________________)
(3) NEW YORK ONLY: In addition to (1) and (2), the prosecution may rebut the defendants good character evidence by proving that the defendant has been ___________________________________ that reflects adversely on the character trait in issue. 16. NEW YORK EVIDENCE
HYPO 14. During the defense of the Rambo murder trial, Rambo called Trautman to testify to Rambos good character for peacefulness.
(a) Could the prosecutor ask Trautman, on cross-examination, (i) Have you heard that Rambo was arrested last year for assaulting Rocky? and (ii) Did you know he shot Judge Dredd three years ago?
(b) If Trautman denies having heard of the arrests or bad acts mentioned by the prosecutor, may the prosecutor prove that they actually occurred?
(c) Could the prosecutor properly ask Trautman, Have you heard that Rambo cheated on his income taxes last year?
HYPO 15. During the defense of the Rambo murder trial, continue to assume Rambo introduced Trautmans testimony about Rambos good character for peacefulness.
(a) After the defense rests, the prosecution calls Murdock to testify that he has known Rambo for twenty years, is familiar with Rambos reputation for peacefulness in the community, and that such reputation is bad. Rambos attorney objects on the ground that this is impermissible character evidence.
NEW YORK EVIDENCE 17.
(b) After the defense rests, could the prosecution introduce a certified copy of a 15-year-old conviction of Rambo for assault with a deadly weapon? Multistate: __________________________________________________
New York: __________________________________________________ __________________________________________________
HYPO 16. In the Rambo murder trial, assume that the only witness who testified during the defense was Rambo himself, and he testified only to the fact that he did not commit the murder. After the defense rests, the prosecution calls Murdock to testify that Rambo has a reputation for violence. Rambos attorney objects on the ground that this is impermissible character evidence. ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
(c) Victims CharacterSelf-Defense Case FEDERAL RULE The criminal defendant may introduce evidence of victims violent character as circumstantial evidence that the victim was the first aggressor, i.e., that victim struck first. Proper method: character witness may testify to victims bad reputation for violence and/or may give opinion.
Prosecution rebuttal:
(1) evidence of _______________ good character for peacefulness (with reputation or opinion); and/or
(2) evidence of _______________ bad character for violence (reputation or opinion).
Special rule in Homicide: If defendant offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of victims good character for peacefulness. Example: Ds witness testifies, Victim aimed a gun at D. NEW YORK RULE: Evidence of the victims character for violence is ___________________________ to prove 18. NEW YORK EVIDENCE
______________________________________________.
HYPO 17. Defendant, Coach Bobby, has been charged with assault for throwing a chair at Tonya. Coach Bobby claims that Tonya started the fight and lunged at him with a knife. To prove that Tonya was the first aggressor, Bobby calls Nancy to testify:
(a) I know Tonya, and in my opinion Tonya is a very violent woman.
New York: ____________________________________________________ _____________________________________________________________
(c) May Bobby testify in his own defense that, at the time of the altercation with Tonya, he was aware of her bad reputation for violence and her prior knife attack on Nancy?
Special rule for defendants knowledge of victims bad character for violence (Federal and New York):
Defendant may offer evidence of his own __________________ of the victims bad character for violence (victims reputation or bad acts) for the purpose of showing ___________________________________________________________ ___________________________________________________________
NEW YORK EVIDENCE 19.
(d) Victims CharacterSexual Misconduct Case
Under rape shield law, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:
Opinion or reputation evidence about the victims sexual propensity, or
Evidence of specific sexual behavior of the victim
Exceptions in Criminal Cases:
(1) specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim;
(2) victims sexual activity with the defendant if the defense of consent is asserted; or
(3) where exclusion would violate defendants right of due process. Example: Love Triangle Defense: Defendant should be allowed to show that the victim had a sexual relationship with X at the time of defendants alleged rape if X became aware that victim and defendant had sexual contact. Purpose: to suggest the victim had motive to falsely claim that the sexual contact with defendant was nonconsensual in order to preserve the victims relationship with X.
Exception in Civil Cases:
The court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
2. Civil Cases
(a) Character evidence generally INADMISSIBLE to prove a persons conduct on a particular occasion. HYPO 18. A sues B for automobile negligence.
(a) During the plaintiffs case in chief, A seeks to offer evidence of Bs reputation for careless driving. Admissible? _____________________________
20. NEW YORK EVIDENCE
(b) During the defense, B calls Witness to testify that in her opinion, B is a prudent and careful driver. Admissible? _______________________ ________________________________________________________ ________________________________________________________
HYPO 19. Nicoles estate sues OJ for wrongful death damages, alleging that OJ intentionally killed Nicole. During the defense, may OJ properly introduce evidence of his peaceful character? ____________________________________________________________________ ____________________________________________________________________
(b) Evidence of a persons character is ADMISSIBLE in a civil action where such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts). Only 3 situations: ____________________________ ____________________________ ____________________________
Example (1): P was struck in 2012 by a truck being driven by Charlie, who was acting within the scope of his employment for Acme Trucking. P sues Acme, alleging that Acme was negligent in hiring Charlie in 2011 and thereafter allowing him to drive on Acmes behalf. (Tort theory: Acme knew or should have known that Charlie was an accident risk.) P may introduce the testimony of character witnesses that Charlie had a reputation for being a careless driver, and they have a low opinion of Charlies care in driving. P may also prove that Charlie had been involved in three prior accidents. (New York: acts and reputation only.)
Example (2): P sues Newspaper for libel based on a story in which P was accused of being dishonest. To support its defense of truth, Newspaper may introduce reputation, opinion and specific- act evidence about Ps dishonesty; and P may use the same type of evidence to show Ps honesty. (New York: acts and reputation only.)
Example (3): In a matrimonial dispute, H and W contest the custody of child X. On the fitness of each parent to have custody, evidence is allowed of each parents relevant acts and reputation as well as opinion evidence bearing on their fitness. (New York allows only acts and reputation, not opinion as to parents fitness.) NEW YORK EVIDENCE 21.
E. Defendants Other Crimes for Non-Character Purpose.
General rule: Other crimes or specific bad acts of defendant are not admissible during the prosecutions case-in-chief if the only purpose is to suggest that because of defendants bad character he is more likely to have committed the crime currently charged. Not allowed: Once a robber, always a robber.
Example: D is charged with robbing bank A. The fact that D robbed bank B six months later would be inadmissible character evidence.
BUT, defendants bad acts or other crimes may be admissible to show:
(something separate and apart from mere propensity to commit the crime.)
The five most common non-character purposes are: MIMIC
_________________________
_________________________
_________________________
_________________________
_________________________
NOTE: If a MIMC category is satisfied, the prosecution may use other-crimes evidence as part of its case-in-chief. MIMIC evidence is not dependent on defendants introduction of favorable character evidence.
HYPO 20. Defendant is charged with the murder of Officer Johnson. The prosecution seeks to prove that Defendant was convicted and imprisoned five years ago for narcotics sales in the aftermath of an investigation and arrest made by Officer Johnson. Defendant objects on the ground of impermissible character evidence. What ruling?
HYPO 21. Defendant is charged with possession of narcotics with the intent to sell. He defends on the ground that he was merely a possessor and usernot a sellerof the drugs. The prosecution seeks to prove that Defendant sold drugs a year ago in the vicinity of the arrest in the current case. Admissible?
HYPO 22. Lizzie Borden is accused of intentionally killing her mother with an ax. Defense: accident. Prosecution seeks to show that Lizzie threw a knife at her mother during a family quarrel one week before the mothers demise. The evidence:
(A) Is admissible because it shows Lizzies propensity for violence.
(B) Is admissible because it shows the ax incident was not an accident.
HYPO 23. D is charged with the armed robbery of a Wal-Mart in Albany early in the afternoon of July 1. Defense: mistaken identity. Prosecution seeks to introduce evidence that around noon on July 1, D robbed a Sears and a Target in Albany, in the same vicinity as the Wal-Mart.
HYPO 24. Defendant is prosecuted for robbing the First National Bank. Defense: alibi. Prosecution introduces evidence that the robber wore a red ski mask, carried a .38 caliber gun and used a unique stick-up note. Prosecution then seeks to prove that Defendant used the same modus operandi when robbing the Second National Bank a year ago. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
NEW YORK EVIDENCE 23.
HYPO 25. Defendant is charged with robbing the First National Bank. The prosecution seeks to prove that two days before the robbery, the Defendant stole a white Acura from a neighbor in the same town. The robber of the First National Bank used a white Acura for the getaway. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
Method of proof of MIMIC-purpose crimes:
By conviction, or by evidence (witnesses, etc.) that proves the crime occurred: conditional relevancy standardprosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.
New York Distinction: In using MIMIC crime to show defendants identity, the prosecution must produce_____________________ _______________________that the defendant committed the other crime. (For the other categories of MIMIC, there is no clear rule.)
Upon defendants request, prosecution must give pretrial notice of intent to introduce MIMIC evidence. In all cases, court must also weigh probative value vs. prejudice and give limiting instructions if MIMIC evidence is admitted.
MIMIC IN CIVIL CASES: If relevant for non-character purpose, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault. _____________________________________________________
F. Other Sexual Misconduct to Show Propensity for Sexual Assaults or Child Molestation
Under FRE only, in a case alleging sexual assault, Defendant's __________ _________________________ ADMISSIBLE as part of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for the purpose of showing _________________________________________.
In a case of child molestation, same rule allows prior acts of child molestation.
Note: This rule allows prior acts only; not reputation or opinion. 24. NEW YORK EVIDENCE
NEW YORK: Has not adopted federal rule. Defendants prior sex crimes not allowed unless MIMIC Rule is satisfied. Examples: (1) If distinctive M.O. shows identity; (2) Prior sexual acts directed at same person who is the victim in the current case shows motive (passion toward same person) or common scheme or plan.
II. AUTHENTICATION OF WRITINGS
Q-TIP: Whenever a writing appears on the exam, be alert to 3 potential issues (aside from relevance): authentication, best evidence rule, and hearsay.
OVERVIEW: If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be. This is the process of authentication.
In the absence of a stipulation as to authenticity, a FOUNDATION must be made in order for the document to be admissible.
A. Methods of Authentication, In General
Issue: whether X is the author of DOCUMENT.
1. Witness personal knowledge: Witness observed X sign document.
2. Proof of Handwriting
(a) ___________________________ (Lay witness testifies to opinion that X wrote document on basis of familiarity with Xs handwriting as result of experience in normal course of affairs.)
(b) ___________________________ (Handwriting expert testifies to opinion that X wrote document on basis of comparison between document and genuine sample (exemplar) of Xs handwriting.)
(c) ___________________________ (Jury compares document with exemplar of Xs handwriting.) NEW YORK EVIDENCE 25.
3. Proof by Circumstantial Evidence
A party may rely on circumstantial evidence, such as appearance, contents, substance, internal patterns or other distinctive characteristics (e.g., if the document refers to information that only X would know, this may be used as an inference that X is the author).
4. Ancient Document Ruleauthenticity may be inferred IF document is:
(a) _______________________ (New York: Period is 30 years.)
(b) _______________________
(c) _______________________
5. Solicited Reply Doctrine
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
Example: P mails contract offer to X, properly addressed and posted, and later receives an acceptance purportedly signed by X.
Procedure: Questions of fact on issues of authentication:
HYPO 26. During plaintiffs case-in-chief, Witness testifies that, in her opinion, document was written by X because she is familiar with Xs handwriting. X advises the judge that he intends to testify during the defense that the document is a forgery and argues that the judge cannot admit the document into evidence until the judge is personally convinced that the document was written by X. Good argument? ________
Conditional relevancy standarddocument is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine, i.e., that X is the author. _____________________________________________________ _____________________________________________________ _____________________________________________________ _____________________________________________________
B. Self-Authenticating Documents
In General. Presumed authenticno need for foundation testimony: __________________________________________________________ 26. NEW YORK EVIDENCE
(a) Official publications
(b) Certified copies of public or private records on file in public office
(c) Newspapers or periodicals
(d) Trade inscriptions and labels
(e) Acknowledged document
(f) Signatures on Commercial paper
C. Authentication of Photographs
Witness may testify on the basis of personal knowledge that the photograph is a __________________________ of the people or objects portrayed.
HYPO 27. Alice testifies that she observed the auto accident that occurred at the intersection of Hickory and Elm Streets on July 1. She is shown a photograph and asked whether it is a fair and accurate portrayal of the Hickory and Elm intersection as she remembers it on July 1. Objection: No foundation that Alice was the photographer. What ruling? ______________________________________________________________________ ______________________________________________________________________
III. BEST EVIDENCE RULE
Definition: A party who seeks to prove the contents of a ______________ must either: ________________ the original writing, or
provide ____________________________.
If the court finds the excuse is acceptable, the party may then use secondary evidenceoral testimony or a copy.
NOTE: The definition of writing includes sound recordings, X-rays, and films.
NEW YORK EVIDENCE 27.
HYPO 28. Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a written purchase order. In his suit for breach of contract, Bubba takes the stand and testifies, I didnt get what I ordered. The purchase order called for 3 jumbo shrimp and they delivered 1 mini-shrimp. Which of the following would be a valid objection to Bubbas testimony?
(A) The actual shrimp are the best evidence of what was delivered. (B) The purchase order is the best evidence of what the contract required. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________
A. When best evidence rule applies: When a party is seeking to prove the contents of a writing.
1. The writing is a legally operative document in the present case, i.e., the writing itself creates the rights and obligations at issue (e.g., patent, deed, mortgage, divorce decree, written contract. ________________________________________________ ________________________________________________ ________________________________________________
2. Witness is testifying to facts that she learned solely from reading about them in a writing.
HYPO 29. Tommy the Terrorist is charged with detonating a bomb. No one witnessed the detonation, but it was captured on film by an unmanned surveillance camera. Counterterrorism Agent Jack Bower testifies that he watched the film and it clearly shows Tommy was the bomber. Objectionable? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
B. When best evidence rule does not apply: When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact. _______________________________________________________ _______________________________________________________ _______________________________________________________ 28. NEW YORK EVIDENCE
HYPO 30. Agent Jack Bower is prosecuted for giving perjured testimony at a congressional hearing into the use of torture during the interrogation of terrorist suspects. At trial, a congressional aide offers to testify to what Jack said during the hearing. True or False: The aides testimony is improper because the transcript is the best evidence of what Jack said. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
HYPO 31. Agent Jack Bower, claiming he worked a 24-hour shift, sues Boss for nonpayment of wages and failure to reimburse for expenses.
(a) Without producing any documents, Jack testifies, I worked 24 hours and my expenses were $15 million. Boss objectsBest evidence rule. Produce the time sheets and expense receipts. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________
(b) Without producing any documents, Boss testifies: Jacks time sheets show he worked only 20 hours, and the receipts show only $10 million in expenses. _____________________________________________________________ _____________________________________________________________
C. What qualifies as the original writing?
1. Whatever the parties intended as the original; any counterpart intended to have the same effect; any negative of film or print from the negative; printout of computer-stored data.
2. DUPLICATEany counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy). Rule on duplicates: duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original.
New York Distinction: Photocopies are acceptable as substitutes for the original only if made in ordinary course of business.
3. Handwritten copy is neither an original nor a duplicate.
NEW YORK EVIDENCE 29.
D. Excuses for non-production of original
1. lost or cannot be found with due diligence
2. destroyed without bad faith
3. cannot be obtained with legal process
If the court is persuaded by a preponderance of the evidence that an excuse has been established, then secondary evidence is admissible (e.g., testimony based on memory or a handwritten copy).
E. Escapes from the Requirements of the Best Evidence Rule
1. _______________________ can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
2. Certified copies of ____________________________
3. ____________________________________
If court, in its discretion, determines writing is unimportant to the issues in the case, contents may be proven by secondary evidence. ________________________________________________________ ________________________________________________________ ________________________________________________________
30. NEW YORK EVIDENCE
IV. WITNESSES
A. Competency of Witness, In General (the testimonial qualifications a witness must have in order to be allowed to testify) 1. Basics: (a) Personal Knowledge _________________________________ __________________________________________________
(b) Oath or Affirmation _________________________________ __________________________________________________
2. NEW YORK RULE for testimony by CHILDREN.
The general rule is that a child of any age may testify under oath if the child understands and appreciates the duty to tell the truth. (a) Civil cases: A child must be able to testify under oath.
(b) Exception for Criminal cases: A child under the age of _____ who cannot understand the duty of an oath may still testify (i.e., the child may give __________________________.) BUT, a defendant cannot be convicted based solely on the unsworn testimony of a child. There must be some ________________ __________________________________________________. B. Dead Mans Statute In General (Multistate rules) (1) Witness is not ordinarily incompetent merely because she has an interesta direct legal stakein outcome of the litigation.
(2) BUT some states have a Dead Mans Statute. The typical statute provides:
i. in a ____________ action,
ii. an _____________ witness
iii. is ______________ to testify
iv. against the estate of a _____________
v. concerning ______________________________ between the interested witness and the decedent.
NEW YORK EVIDENCE 31.
Rationale: To prevent perjury against the decedents estate.
HYPO 32. Adele sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial. (a) May Adele testify to what Elvis said and did in negotiating the contract? (b) May Adeles friend Katy, who witnessed the making of the contract, testify to what Elvis said and did? ______________________________________________________________________ ______________________________________________________________________
Under the FRE, there is no dead mans statute. Thus, on Multistate exam, witnesses ordinarily are not incompetent on this ground. BUT, if question explicitly states that the particular jurisdiction in which the case arises has a dead mans statute, apply the rule in B(2) above.
Answer to Hypo 32 in a state that has a Dead Mans Statute: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
NEW YORK:
The New York Dead Mans Statute is similar to the rule in most other states with one important exception:
New York automobile accident exception: In an auto accident case based on negligence, the surviving interested party:
(1) May testify about __________________________________________.
(2) BUT may not testify about ___________________________________
HYPO 33. Adele sues the administrator of Elviss estate in New York for injuries allegedly caused by Elviss negligent driving. (Elvis died a few days after the accident.)
(a) May Adele testify, over a competency objection, that immediately after the accident:
(1) Elvis staggered as he approached me. _______________________________________________________ _______________________________________________________
(2) Elvis said, It was all my fault. _______________________________________________________ _______________________________________________________
(b) If Katy (a friend of Adele) also witnessed the event, may Katy testify that Elvis admitted his fault?
Form of question suggests the answer (e.g., Isnt it a fact that you ran the red light?; or unevenly balanced alternatives, such as Were you driving really fast or in some other way?)
(a) GENERALLY _____________________ on DIRECT EXAMINATION of witness.
(b) Generally________________ on CROSS-EXAMINATION of witness.
(c) EXCEPTIONS: Leading questions are allowed on DIRECT EXAM in four situations:
(1)_____________________________
(2)_____________________________
(3)_____________________________
(4)_____________________________ NEW YORK EVIDENCE 33.
D. Writings in Aid of Oral Testimony
1. Refreshing Recollection
(a) Basic rule: Witness may not read from prepared memorandum; must testify on basis of current recollection.
(b) BUT if witnesss memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.
HYPO 34. Homer Simpsons house was burglarized two years ago, and several valuable items were stolen. Simpson sued his insurer for failing to pay the loss covered by his homeowners policy. While on the stand at trial, Homer has trouble remembering all of the stolen items. To refresh Homers recollection, his attorney shows him a copy of a list of the missing items that Homer prepared for the police the day after the burglary. Insurer objects on the ground of lack of authentication, best evidence rule and hearsay.
(a) What ruling? ___________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________
(b) If Homers recollection is refreshed, may he then read the list into evidence?
(c) Safeguards against abuse: adversary has right:
(1) to inspect the memory-refresher
(2) to use it on cross-examination
(3) to introduce it into evidence
34. NEW YORK EVIDENCE
2. Past Recollection Recorded (Hearsay Exception)
HYPO 35. In Hypo 34, Homer looks at the list of stolen items he prepared for the police the day after the burglary. It fails to jog his memory, and he is still unable to testify on the basis of current recollection. At this point, Homers attorney seeks to read the list to the jury. Objection: hearsay.
Hearsay exception for past recollection recorded. Foundation for reading contents of writing to the jury:
(1) showing writing to witness fails to jog memory
(2) witness had personal knowledge at former time
(3) writing was either made by witness, or adopted by witness
(4) making or adoption occurred ______________________ _____________________________________________ _____________________________________________
(5) witness can vouch for accuracy of writing when made or adopted.
New York Distinction: If the 5-factor foundation is established, the writing may be shown to the jury. Under FRE, the proponent may only read it to the jury.
HYPO 36. After laying foundation, Homers attorney seeks to introduce Homers memorandum into evidence as an exhibit.
(b) New York: ___________________________________________________
(c) May the insurer have the memorandum introduced as an exhibit? ____________________________________________________________ ____________________________________________________________
NEW YORK EVIDENCE 35.
E. Opinion Testimony
1. Lay Witness
(a) Lay opinion admissible if:
(1) _______________________________________ (personal knowledge), and
(2) _______________________________________
(b) Examples:
drunk/sober
speed of vehicle
handwriting
emotions of another person
sane/insane
odors
handwriting
character (when permitted)
2. Expert Witness
(a) Qualifications:
education ______________________________________
AND/OR experience _____________________________
(b) Proper Subject Matter
Scientific, technical or other specialized knowledge that will be __________________ to the jury in deciding a fact. E.g., an opinion is not helpful if the proposition is obvious, such as expert testimony that children are attracted to red balloons.
36. NEW YORK EVIDENCE
(c) Basis of Opinion
Expert must have an opinion based on reasonable degree of probability or reasonable certainty.
The expert may draw upon three permissible data sources:
(1) Personal knowledge (e.g., treating physician);
(2) Other evidence in the trial record (testimony by other witnesses, exhibits (medical reports, X-rays))made known to expert at trial by hypothetical question; or
(3) facts not in evidence (from outside the record) if
Note: In general, the contents of such out-of-court material should not be disclosed to the jury (if it does not fit within an independent hearsay exception) because of the hearsay danger that the jury will misuse the out-of- court material for its truth. However, if the judge determines that disclosure would help the jury evaluate the experts opinion, the out-of-court material may be admitted with a warning to the jury to consider it only in evaluating the quality of the experts opinion.
HYPO 37. Dr. Seuss, a board-certified child psychiatrist, testifies, In my opinion, within a reasonable degree of medical probability, Bartholomew Cubbins preoccupation with hats is a disabling psychosis. My opinion is based on (1) my own clinical interviews and tests of Bartholomew; (2) exhibits 1 and 2 in evidence (MRI test results, medical office records of Dr. Grinch); (3) interviews of Bartholomews friends Wump, Gump and Thump; and (4) a written report prepared by Dr. Sam I. Am. As to items (3) and (4), this is the type of information that psychiatrists like me customarily rely upon in making evaluations.
(a) Bartholomew moves to strike Dr. Seusss opinion because it is based, in part, on inadmissible hearsay. ______________________________________________________________ ______________________________________________________________
NEW YORK EVIDENCE 37.
(b) Should Dr. Seuss be permitted to testify further, Let me tell you what Wump said during our interview . . . . . . . and let me read you what was in Dr. Sam I. Ams report? ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________
(d) Relevance and Reliability
To be admissible, expert opinion must be relevant to the issue at hand and SUFFICIENTLY RELIABLE. That means the expert must use reliable methods and principles and reliably apply them to the facts of the case.
Court serves as gatekeeper, and will use four principal factors to determine reliability of principles and methodology used by expert (all types) to reach opinion (Daubert) TRAP
Testing of principles or methodology
Rate of error
Acceptance by other experts in same discipline _____________________________________________
Peer review and publication
NEW YORK: If the opinion is based on science (e.g., medicine, engineering, social psychology), the method or principle must have achieved ______________________________ (Frye standard).
Non-scientific opinion may be based on the experts experience without the need to satisfy the general acceptance standard. E.g., a pathologist may testify that, based on her experience, a certain type of neckhold could kill a person within 1-2 minutes without having to show general acceptance of this principle among other pathologists. 38. NEW YORK EVIDENCE
(e) Learned Treatise in Aid of Expert Testimony (Federal Hearsay Exception)
(1) On direct examination of partys own expert:
Relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority.
(2) On cross-examination of opponents expert:
Relevant portions of treatise, etc. may be read into evidence to impeach and contradict opponents expert. Also, comes in as substantive evidence.
Note: In both (1) and (2), the treatise may be used only with the testimony of an expert; the treatise is not admissible by itself. Also, the treatise may not be introduced as an exhibit; the proponent can only read relevant passages to the jury.
NEW YORK:
(1) On direct examination of partys own expert:
There is ______________________ in New York for the contents of a learned treatise. The treatise may only be used to show the general basis of the experts testimony, not as substantive evidence._________________________________
(2) On cross-examination of opponents expert:
The learned treatise may only be used to ____________ the experts credibility (not as substantive evidence), AND only if the expert relied on the treatise in developing her own opinion or acknowledged on cross that it is a reliable authority.
Example: On cross-examination, a doctor is asked, Do you recognize Grays Anatomy as an authoritative treatise? If the doctor says No, then no further questions to the doctor may be based on that treatise. If the doctor answers Yes, then the cross-examiner may point to passages in the treatise that are inconsistent with the doctors testimony but only for the purpose of showing that there is a difference of opinion in the medical profession. The passages in the treatise are not admissible as substantive evidence. NEW YORK EVIDENCE 39.
3. Ultimate Issues
Opinion testimony (lay or expert) is not objectionable just because it embraces an ultimate issue in the case (e.g., in DWI case, layperson testifies X seemed drunk could be admitted). BUT, all other requirements for opinion testimony must be satisfied including the requirement that the opinion is______________________________ (e.g., witness would not be allowed to give opinion that the defendant is guilty (or innocent)).
HYPO 38. In a personal injury case, Defendant is alleged to have been driving recklessly at the time of a car accident. Witness who observed the event testifies that Defendant looked angry, smelled of alcohol and drove away from the scene at 80 m.p.h. Witness then states, It looked to me as though Defendant was engaged in conduct constituting a reckless disregard for the safety of others. Objectionable?
(A) Yes, because Witness is testifying to the ultimate issue.
(B) Yes, because Witnesss opinion is not helpful. ______________________________________________________________ ______________________________________________________________ ______________________________________________________________
Federal Rule on Defendants Mental State in Criminal Cases: Ultimate issue is still proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state. Thus, the following is not allowed: Ds insanity prevented him from understanding that he was shooting at the victim in this case. The expert can only testify in general terms about the effects of a defendants mental condition without linking it to the particular case, such as: D has schizophrenia. A person with such disease cannot distinguish fact from fantasy.
Cross-Examination
1. Party has a RIGHT to cross-examine any opposing witness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of witnesss testimony.
2. Proper subject matter:
(a) Matters ____________________________of direct examination, __________________________________ ______________________________________________ AND
(b) Matters that test the witnesss ______________. 40. NEW YORK EVIDENCE
G. Credibility and Impeachment, In General
1. Bolstering Own Witness
The rule: not allowed until _______________________________ ____________________________________________________.
(Post-impeachment repair of witnesss credibility is called rehabilitation.)
HYPO 39. Plaintiff calls Witness 1 to the stand. Witness 1 testifies that she saw Defendants car run the red light. Defense counsel states that she has no questions for the witness. After Witness 1 steps down, Plaintiff calls Witness 2 who testifies, Witness 1 has a good reputation for truthfulness. Objectionable? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
Variation: Witness 1, after testifying that she saw Defendants car run the red light, then testified, I told everyone at work the next day that I had seen Defendant run the red light. This is an inadmissible prior consistent statement: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
EXCEPTION: ______________________________________ (e.g., Witness testifies that she recognizes D, sitting in court, as the perpetrator. In addition, I picked D out of a line-up two weeks after the robbery). Might seem like hearsay (out-of-court statement offered to prove truth of statement) but prior identification by trial witness is not barred by hearsay rule. FRE calls this an exclusion from hearsay, and it comes in as substantive evidence.
New York: admissible as substantive evidence as a hearsay exception.
NOTE: Witness who made prior identification must testify at trial and must be subject to current cross-examination. For example, if the individual who made the identification at the line-up is out of the country at the time of trial, a police officer who observed the out-of- court identification would not be permitted to testify about it at trial.
NEW YORK EVIDENCE 41.
2. Partys Impeachment of Own Witness
FEDERAL: Any party may impeach any witness, including her own witness, by any method of impeachment. (Note: Although the Rules speak only of impeaching a witness on cross-examination, a party can impeach her own witness during direct examination.)
NEW YORK:
(a) General rule: A party may not impeach her own witness.
(b) Exception: A party may impeach her own witness with a prior inconsistent statement but only if it was:
(1) made in writing and ________________________, or
(2) made in oral _____________________________.
Additional limitation in criminal cases: the prior inconsistent statement may be used only if the witnesss current testimony is _______________________ to the party who called the witness, not merely a cloud on credibility.
HYPO 40. In a domestic violence case, Bella testifies before the grand jury that her boyfriend Edward assaulted her. At Edwards subsequent trial, the prosecution calls Bella to the stand to testify against Edward. (a) If, to the prosecutions surprise, Bella testifies that it was Jacob, not Edward, who committed the assault, her prior grand jury testimony is: ______________________________________________________________ ______________________________________________________________
(b) Now assume, instead, Bella testified, I dont remember who assaulted me: ______________________________________________________________
H. Impeachment Methods
(1) Prior Inconsistent Statements (2) Bias, Interest or Motive to Misrepresent (3) Sensory Deficiencies (4) Bad Reputation or Opinion about witnesss character for truthfulness (5) Criminal Convictions (6) Bad Acts (without conviction) that reflect adversely on witnesss character for truthfulness (7) Contradiction 42. NEW YORK EVIDENCE
Procedure Overview: There are two possible ways to use impeachment methods:
(1) Ask the witness about the impeaching fact with the aim of having the witness admit it (confronting the witness), or
(2) Prove the impeaching fact with extrinsic evidence (documentary evidence or testimony from other witnesses).
(1) The impeaching fact may be proven with extrinsic evidence as to the following impeachment methods: ____________________________ __________________________________________________________
(2) For the impeachment methods that allow extrinsic evidence, it is not necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced, EXCEPT: Multistate:
New York:
1. Prior Inconsistent Statements
A witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony.
GENERAL PURPOSE: The prior inconsistent statement is admissible only for the purpose of _____________________ (to suggest trial testimony is false or mistaken (witness cant keep the story straight), not as substantive evidence that the statement is true).
EXCEPTION: A prior inconsistent statement of a witness may be admitted both to impeach and as substantive evidence (to prove the truth of the matter asserted in the prior statement), if the witness is currently subject to cross-examination and the prior inconsistent statement was made: (a) _______________________________________, and
NEW YORK: Prior inconsistent statements, even if given in formal testimony under oath, are admissible only to impeach. NEW YORK EVIDENCE 43.
HYPO 41. Defendant is sued for negligence in a multi-vehicle accident in which he was driving his Suburban. Witness testifies for plaintiff that she saw the Suburban run the stop sign.
(a) On cross-examination, may Defendants counsel seek to establish that a few days after the accident, Witness told the police that the Jeep Cherokee, not the Suburban, ran the stop sign? __________________________________ _____________________________________________________________
(b) If Witness admits she made the prior inconsistent statement, may Defendant use the statement as substantive evidence that the Jeep Cherokee, rather than the Suburban, ran the stop sign? ______________________________ _____________________________________________________________ _____________________________________________________________
(c) What if Witness made her prior inconsistent statement about the Jeep Cherokee at a grand jury proceeding in which she gave sworn testimony?
New York: ____________________________________________________ _____________________________________________________________
Procedural Issue: Must Witness be confronted with her prior inconsistent statement while still on the stand, or may it be proven later by extrinsic evidence without such confrontation?
FEDERAL: Confrontation timing is flexible: Not required to immediately confront Witness. But after proof by extrinsic evidence, Witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement.
NEW YORK: The witness must be confronted with the prior inconsistent statement while she is on the stand. (If oral, tell witness what was said, when and where; if in writing, show it to the witness.)
EXCEPTION (FRE and New York): No need to give Witness any opportunity to explain if Witness is ___________________________.
Also, the prior inconsistent statement of an opposing party can be used against that party as substantive evidence (party admission or statement of an opposing party). 44. NEW YORK EVIDENCE
HYPO 42. In auto accident case, Plaintiff testifies that she was wearing her seat belt. Defendant does not cross-examine her. During the defense, Defendant calls Joe the Bartender, who testifies that Plaintiff told him, at Joes bar a week after the accident, that she had NOT been wearing her seat belt.
(a) Should Plaintiffs motion to strike be granted on the ground that Plaintiff was not given an immediate opportunity to explain or deny the inconsistency? _____________________________________________________________ _____________________________________________________________ _____________________________________________________________
(b) Is Plaintiffs statement admissible to impeach Plaintiff AND as substantive evidence that she was not wearing her seat belt?
May impeach a witness by showing any fact that would give the witness a reason to testify favorably or negatively about a partys case. Purpose: to suggest testimony is false, slanted, or mistaken in partys favor.
Examples: Witness is the party herself; friend, relative or employee of party; expert witness being paid by party; person with grudge against a party; witness for the prosecution who is an accomplice of the defendant, and therefore has motive to curry favor with the prosecution. Procedural Issue:
(a) Must witness be confronted with alleged bias while on the stand?
Federal: ________________________________
New York: Confrontation of witness not required.
(b) If confrontation prerequisite is met, may bias be proven by extrinsic evidence? ________________________________________ NEW YORK EVIDENCE 45.
3. Sensory Deficiencies
Anything that could affect witnesss perception or memory. Examples: bad eyesight, bad hearing, mental infirmity, consumption of alcohol or drugs at time of event or while on the witness stand. Purpose: to suggest mistake.
4. Bad Reputation or Opinion About Witnesss Character for Truthfulness
Any witness is subject to impeachment by this method.
Confrontation required? ________
Extrinsic evidence allowed? _______
Call a character witness to testify that Target Witness has bad reputation for truthfulness, or that character witness has low opinion of Target Witnesss character for truthfulness. Purpose: to suggest that Target Witness is not telling the truth on the witness stand.
NEW YORK: Character witness can only testify about target witnesss bad reputation for truthfulness. (Opinion on truthfulness not allowed.)
HYPO 43. Larry testifies for the prosecution that he saw Defendant commit the crime. During the defense: Defendant calls Rev. Al to testify that Larry has a lousy reputation for truthfulness among members of Rev. Als congregation, and in Rev. Als opinion, Larry is not a truthful person.
(a) Admissible to suggest Larrys testimony is false?
New York: ____________________________________________________ ____________________________________________________ 46. NEW YORK EVIDENCE
(b) May Rev. Al follow up his opinion (or reputation testimony) as follows: During the past year, Larry lied to me on six separate occasions. ______________________________________________________________ ______________________________________________________________ ______________________________________________________________
5. Criminal Convictions
Purpose: to suggest testimony is false. Relevance: person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record. Note: Do not confuse these rules of impeachment with the rules governing MIMIC crimes used as substantive evidence to prove defendants guilt (pp. 21- 23).
FEDERAL RULE:
Permissible Types of Convictions:
(1) Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove: _________________________________________ _________________________________________ _________________________________________ _________________________________________
(2) If conviction did not require proof of false statement, it must be a ___________, and court may exclude, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt). _________________________________________
Time Limitation:
As to both categories, the conviction, or release from prison, whichever is later, generally must be within 10 years of trial.
Method of proof:
Ask witness to admit prior conviction, or
Introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction. NEW YORK EVIDENCE 47.
NEW YORK RULE:
(a) In general: Any witness may be impeached with a conviction for _______________________________________, without regard to how old the conviction is and ___________________________ probative value vs. the danger of unfair prejudice.
(b) Special rule for Criminal Defendants only: When the witness is the criminal defendant who testifies in his own defense, the court must conduct a hearing to balance the ______________________ of the conviction (on the issue of ____________________) against the risk of ____________________________.
(1) Factors that make a conviction probative:
(i) Seriousness (murder is more probative of credibility than possession of marijuana)
(ii) Relation to trust and deception (theft is more probative than reckless driving)
(2) Factors that make a conviction unfairly prejudicial:
(i) Similarity to the currently charged offense (the prejudice is particularly high if the prior offenses and the charged offenses are identical)
(ii) Inflammatory nature (child molestation is more prejudicial than DWI)
HYPO 44. At a criminal trial for arson, Defendant testifies in his own defense. On cross- examination, may the prosecutor properly ask Defendant:
(a) whether he was released from prison eight years ago for the misdemeanor of income tax fraud?
New York: ____________________________________________________ _____________________________________________________________ _____________________________________________________________
(d) whether he was released from prison three years ago for a murder conviction?
New York: ____________________________________________________
(e) How would you answer (d) if the witness with the prior murder conviction was not Defendant, but instead was Defendants friend, who testified about Defendants alibi?
New York: ____________________________________________________ _____________________________________________________________ _____________________________________________________________
NEW YORK EVIDENCE 49.
6. Inquiry About Bad Acts (without conviction) if they reflect adversely on witnesss character for truthfulness
A witness may be asked about a prior bad act if it relates to ____________________________________________________ ____________________________________________________
The only permissible procedure: __________________________ _____________________________________________________
No extrinsic evidence of bad acts is permitted for the purpose of showing bad character for truthfulness. Also, cross-examiner must have good-faith basis for the inquiry, and permission to make the inquiry is subject to the courts discretion. The inquiry is limited to the act of untruthfulness itself, not its consequences, such as job termination, civil judgment, or arrest.
NEW YORK: A witness may be asked about any prior bad act that is ___________________________________________________, even if it does not directly relate to truthfulness, e.g., arson, burglary, rape. (Proof with extrinsic evidence not allowed.) Inquiry is subject to courts discretion.
Theory: Any vicious, criminal or immoral act shows the witnesss willingness to put self-interest above that of society and therefore a willingness to ignore the oath.
But when the prosecution seeks to ask about a prior bad act to impeach a criminal defendant who testifies in his own defense, the defendant is entitled to a hearing at which the court must balance the probative value of the bad act on the issue of the defendants credibility against the danger of unfair prejudice. (Apply same balancing factors that are used to impeach a criminal defendant with his convictions.)
Exam Tip (MBE and New York): Proof of a prior bad act with extrinsic evidence may be allowed if the bad act is relevant for some purpose other than bad character for truthfulness, such as to show the witnesss bias.
HYPO 45. Witness gives favorable testimony for Defendant. On cross-examination, Plaintiff asks Witness whether she assaulted her mail carrier two years ago (no charges were brought). 50. NEW YORK EVIDENCE
New York: ____________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
HYPO 46. After Witness testifies for Defendant, Plaintiff asks Witness whether she made false statements in an application for food stamps in July 2004. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
HYPO 47. Same cross-examination as Hypo 46. Witness denies making false statements in the application for food stamps. May Plaintiff thereafter call a welfare agent to prove that Witness made the false statements? _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
HYPO 48. Prosecution of Michael for embezzlement of the office petty-cash fund. Dwight testifies for Michael. On cross-examination, Dwight is asked whether he was arrested three years ago for passing counterfeit money. Objectionable? _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
HYPO 49. Prosecution of Donald. Winston testifies for the prosecution. On cross- examination, Winston is asked whether he was arrested a month ago for selling marijuana and is awaiting trial on those charges. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ NEW YORK EVIDENCE 51.
7. Contradiction
Concept: Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.
Rule: EXTRINSIC EVIDENCE NOT ALLOWED for the purpose of contradiction IF the fact at issue is ____________ (i.e., if the fact has no significant relevance to the case or to the witnesss credibility).
HYPO 50. In an auto accident case, Witness testifies for Plaintiff that, while leaning against a maple tree near the intersection of Boardwalk and Park Place on March 1, he saw that the traffic light was red for Defendant as Defendants car entered the intersection and hit Plaintiff. On cross-examination, Witness is asked (a) Isnt it a fact that the tree at that intersection is an oak? and (b) Isnt it a fact that the traffic light was not functioning at all on March 1? Witness insists that his direct testimony was accurate.
(a) During the defense, may Defendant properly prove that the tree at the intersection is an oak tree? ____________________________________________________________ ____________________________________________________________
(b) During the defense, may Defendant properly call a police officer to testify that the traffic light at the intersection was not functioning at all on March 1?
Generally, a witness may be rehabilitated only ______________ the witness credibility has been attacked through impeachment. There are two methods of rehabilitation tested on the exam.
52. NEW YORK EVIDENCE
1. Showing witnesss good character for truthfulness.
2. Prior consistent statement to rebut a charge of recent fabrication. When? If the witnesss trial testimony is charged as a recent fabrication, or as a product of improper influence, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge IF the statement was MADE:______________________________
Purpose: A prior consistent statement that fits within the rule is admissible to rehabilitate credibility and as substantive evidence that the prior statement was true. It is labeled a hearsay exclusion.
New York: Admissible only to rehabilitate (to neutralize the charge of recent fabrication), not as substantive evidence.
HYPO 51. Brad v. Jennifer. On July 1, pedestrian Brad was struck by a car driven by Jennifer. Angelina, a stranger to Brad and Jennifer at the time, witnessed the accident and told the police on July 1 that Brad looked sober as he crossed the street. At trial, six months later, Angelina testifies for Brad, He looked sober as he crossed the street.
(a) On cross-examination, the only question Angelina is asked is whether she was convicted eight years ago of income tax evasion, to which she answers Yes. On re-direct, may Angelina properly testify that she told the police on July 1 that Brad had looked sober? _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ NEW YORK EVIDENCE 53.
(b) Assume that on the cross-examination of Angelina, she is asked, Isnt it a fact that after this accident, you and Brad became close friends and are now living together as lovers? to which she answers, Yes. On re-direct, may Angelina properly testify that she told the police on July 1 that Brad had looked sober? If so, for what purpose?
New York: ____________________________________________________ _____________________________________________________________
V. PRIVILEGES
A. Introduction
1. In general, on MULTISTATE exam, apply basic rules on privileges as covered in lecture.
2. Federal procedure issue on MULTISTATE exam: If bar examiners specifically indicate the action is pending in federal court, apply the following procedural rules:
(a) In federal-court action ARISING UNDER __________________ _____________________ (all civil cases arising under Constitution or federal statutes, and all federal criminal cases): privileges are governed by the principles of the common law as they may be interpreted by the federal courts in the light of reason and experience. For the most part, these are the basic rules on privileges as covered in lecture.
(b) In federal-court action based on _______________ jurisdiction, where state substantive law applies to parties claims and defenses (Erie situation), the federal court must apply PRIVILEGE LAW OF THE STATE whose substantive law is applicable. Note: In diversity actions, federal courts also apply STATE LAW ON COMPETENCY (e.g., Dead Mans Statutes) and STATE LAW ON BURDENS OF PROOF and PRESUMPTIONS. Aside from these 3 exceptions (privileges, competency, and burdens of proof / presumptions), FRE apply in all federal-court actions, including diversity cases. 54. NEW YORK EVIDENCE
B. Attorney-Client Privilege
1. Rationale: To encourage client to speak openly to counsel.
2. Elements. Privilege applies to
Confidential communications
Between attorney and client (or representative of either)
Made during professional, legal consultation
Unless privilege is waived by the client
Or an exception is applicable
3. Definitions:
(a) Confidential communications: Client must intend confidentiality (e.g., no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party). Joint client rule: If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.
Communication: Privilege covers the exchange of information between attorney and client. It does not apply to the clients knowledge of the underlying information, pre- existing documents, or physical evidence.
HYPO 52. Delbert is sued for his alleged negligence in an auto accident. He tells his attorney what happened and gives her the cell phone with which he was making a call at the time of the accident. Before trial, Delbert is deposed by plaintiffs counsel:
NEW YORK EVIDENCE 55.
(a) Must Delbert respond if asked, What did you tell your attorney about the accident? ___________________________________________________________ ___________________________________________________________
(b) Must Delbert respond if asked, Describe what you were doing at the time of the accident. ___________________________________________________________ ___________________________________________________________
(c) If served with a subpoena, must Delberts attorney produce Delberts cell phone? ___________________________________________________________ ___________________________________________________________
(b) Attorneymember of the bar or person that client reasonably believes is member of the bar
Representative of the attorneyany agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to translate clients financial matters)
(c) Clientincludes person seeking to become client (e.g., privilege attaches at outset of formal consultation with attorney even if client does not retain attorney)
Representative of clientany agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any employee who communicates with corporations attorney to enable attorney to provide legal services to the corporation)
(d) Professional legal consultationprimary purpose of communication must be to obtain or render legal services, not business or social advice
(e) Waiver
(1) Voluntary Waiver: Only the _________________ has the power to waive the privilege. (After the clients death, the privilege continues and only the clients estate can waive it.)
56. NEW YORK EVIDENCE
(2) Subject Matter Waiver: (E.g., multiple privileged documents, only some of which are disclosed to the opponent). A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:
i. The partial disclosure is ___________________,
ii. The disclosed and undisclosed communications concern the ____________________________, and
iii. _________________ requires that the disclosed and undisclosed communications be considered together.
(3) Inadvertent Waiver: (E.g., one privileged document in a stack of non-privileged documents inadvertently gets disclosed). An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder:
i. took ___________________________________ the disclosure, and
ii. takes reasonable steps to ___________________the error.
(f) Exceptions
(1) ____________________________: E.g., Client tells attorney, Help me disguise the bribes I made so that they look like legitimate business expenses.
(2) ____________________________: E.g., In tax fraud prosecution, defendant defends on ground that she relied on advice of her attorney in reporting income.
(3) ____________________________: E.g., attorney sues client for unpaid fee, or client sues attorney for legal malpractice. NEW YORK EVIDENCE 57.
C. Physician-Patient Privilege
1. Usually created by state statute. Rationale: to encourage open communication by patient and to protect privacy.
2. General Multistate and New York Rule: Physician-patient privilege applies to
Confidential communication or information acquired by physician from patient
for the purpose of diagnosis or treatment of a medical condition
Also applicable to psychotherapists (M.D. or other professional certified to diagnose or treat mental / emotional illness).
Federal law distinction: in federal-court actions based solely on federal substantive law (e.g., civil rights, securities fraud, federal criminal case), privilege exists only for ______________________. There is no privilege in federal-court actions based solely on federal law for confidential communications with physicians as regards physical conditions.
3. Exception applicable to both physician and psychotherapist privileges: Privilege is lost if patient expressly or impliedly puts physical or mental condition in issue. E.g., patient is plaintiff suing for damages for personal injury or mental suffering.
HYPO 53. Physician examines Patients lungs in hospital room while visitor is present. (1) Patient tells doctor, Do you suppose my wheezing is due to the 4 packs of cigarettes I smoke every day? (2) After visitor leaves, Patient says to doctor, Know any good lawyers? I havent paid my state income taxes in 3 years.
(a) In state court action in which condition of patients lungs is an issue, could doctor be compelled to disclose statement (1)? ____________________________________________________________ ____________________________________________________________
(b) In prosecution for state income tax evasion, could doctor be compelled to disclose statement (2)? ____________________________________________________________ ____________________________________________________________
58. NEW YORK EVIDENCE
D. Spousal Privileges
1. Spousal Immunity
IN FEDERAL (MULTISTATE) CRIMINAL CASES ONLY, a spouse cannot be compelled to testify about anything against the defendant spouse. (Sometimes called privilege against adverse spousal testimony.)
Rationale: to protect harmony of existing marriage at time of trial.
Who holds this privilege: _________________________________
(Witness-spouse may voluntarily testify against the defendant spouse if he/she so chooses.)
NEW YORK: New York does not recognize a spousal immunity privilege.
2. Confidential Communications Between Spouses
IN ANY TYPE OF CASE, civil or criminal (FEDERAL AND NEW YORK), a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication (statements or acts) made by one to the other during the marriage. Who holds this privilege: ______________________ (Either spouse may invoke the privilege; waiver occurs only if both consent to disclosure.)
Rationale: to encourage open communication during marriage.
Exceptions applicable to both privileges (FRE and New York)
1. communications or acts in furtherance of jointly perpetrated future crime or fraud.
2. communications or acts destructive of family unit, e.g., spousal or child abuse.
3. no privilege in civil litigation between the spouses themselves, e.g., divorce, breach of contract.
NEW YORK EVIDENCE 59.
HYPO 54. Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne are a married couple. Niles comes home on the night of Fraziers demise wearing a blood-stained Armani topcoat, which Daphne observed.
(a) At trial, the prosecutor calls Daphne to testify to her observations about Niles topcoat, but she refuses to testify. Can she be compelled?
New York: _____________________________________________________ ______________________________________________________________
(b) Assume Daphne is willing to testify against Niles. In addition to the topcoat observation, she seeks to testify to the following: Niles told me when he got home that he stabbed Frazier. Niles objects.
New York: ______________________________________________________
VI. HEARSAY
A. 2-part definition
(1) _________________________________________________ (oral or written). (The hearsay rule does not apply to machines (e.g., what a clock said about the time) or to animals (e.g., drug-sniffing dog barked at a backpack.))
(2) Offered to prove _______________________________________
Hearsay rule: Hearsay is inadmissible unless an exception or exclusion applies.
Rationale: The credibility of the declarant (out-of-court speaker or author) at the time the statement was made was not tested through cross- examination in the presence of the current fact-finder.
B. Non-Hearsay Statements
Some out-of-court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement. An out-of-court statement may be relevant to some issue simply because it was spoken (or written). If offered for some other purpose, credibility of the declarant is irrelevant. On the issue of whether the statement was spoken, the witness on the stand can be cross- examined; or if the statement was in writing, it can be examined as an exhibit.
HYPO 56. Action by the estate of Percy against Damien seeking damages for the pain and suffering Percy experienced in an auto accident caused by Damien. Damien denies liability and also asserts that Percy died instantly in the accident. Witness on the stand proposes to testify that shortly after the accident, Percy said, Damiens car ran the red light.
NEW YORK EVIDENCE 61.
(a) Hearsay if offered to prove who ran the red light? ______________________________________________________________ ______________________________________________________________
(b) Hearsay if offered to prove that Percy was alive following the accident? ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________
C. Principal Categories of Non-Hearsay Purposes
1. Verbal Act (Legally Operative Words). A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken.
HYPO 57. Gates sued Trump for breach of an oral contract. Witness takes the stand to testify: I heard Trump say to Gates: I accept your offer to sell Microsoft. Hearsay? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
Similar: terms of patent or copyright, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts (e.g., D is charged with theft of Xs car; D testifies, As X handed me the keys, he said I could have the car for the weekend.).
2. To Show Effect on Person Who Heard or Read the Statement. If a person hears someone else make certain statements, this may be relevant to put the listener on notice of something, or to create fear, or to give the listener a motive or probable cause to do something without regard to whether the statement is true.
HYPO 58. Plaintiff v. Supermarket. Plaintiff alleges she slipped and fell on a broken jar of salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition. Plaintiffs witness takes stand and proposes to testify: Several minutes before Plaintiff entered aisle 3, I heard another shopper tell Supermarket manager, Theres a broken jar of salsa on the floor in aisle 3. Inadmissible hearsay? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ 62. NEW YORK EVIDENCE
HYPO 59. Sybil is charged with the murder of her husband Basil. To prove motive, the prosecutor seeks to introduce an anonymous note to Sybil that was found in her possession at the time of her arrest. The note stated, Basil is having an affair with Polly. Inadmissible hearsay? ______________________________________________________________________ ______________________________________________________________________
3. Circumstantial Evidence of Speakers State of Mind
HYPO 60. Homer is prosecuted for murder. Defense: Insanity. Witness for Homer proposes to testify: Two days before the killing, Homer said, I am Elvis Presley. Its good to be back. ______________________________________________________________________ ______________________________________________________________________
Other examples: giving a false alibi implies consciousness of guilt; asking a question may imply lack of knowledge.
D. Prior Statements of Trial Witness
HYPO 61. Prosecution of D for robbery. D takes the stand in his own defense and testifies: (a) I didnt do it. (b) And I told the cops when they arrested me that I didnt do it. Should (a) and (b) be excluded as hearsay? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
General rule: A WITNESSS OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies. ___________________________________________________________ ___________________________________________________________ NEW YORK EVIDENCE 63.
3 Witness-Statement Exclusions from Hearsay (called exclusions or non-hearsay). Witness is currently subject to cross-examination AND:
1. Witnesss prior statement of ____________________________ (In New York, called a hearsay exception.); or
2. Witnesss prior ___________________statement if oral, under oath and made during formal testimonial hearing. ___________ (But in New York, admissible only to impeach.); or
3. Witnesss prior _______________ statement if being used now to rebut charge of recent fabrication or improper motive. ______ (But in New York, admissible only to rehabilitate credibility.)
E. Party Admissions (Statement of an opposing party)
1. Any statement made by ____________________is admissible if it is offered _________________________________________.
2. Terminology: Called exclusion or non-hearsay. The Federal Rules of Evidence were recently restyled. There were no substantive changes to the rules, but there were changes in terminology, the most important of which is that party admission is now called statement of an opposing party under revised Rule 801. The terms are substantively interchangeable and either admission or statement of an opposing party may appear as an answer choice on the MBE.
New York: Still called party admission. And party admission is categorized as a hearsay exception, rather than an exclusion. In NY, any out-of-court statement admissible for its truth is called a hearsay exception.
3. Theory: Party ought to bear the consequences of what she says. Can explain to jury, and cannot complain about inability to cross-examine self.
HYPO 62. X is charged with income tax evasion for the year 2009. Prosecutor wants to prove Xs income during 2009, and offers into evidence a loan application X submitted to a bank in that year. X objects on the ground that the loan application, which is filled with inflated numbers, was self-serving and unreliable. 64. NEW YORK EVIDENCE
HYPO 63. Ma v. Life Insurance Co. for non-payment of policy proceeds on the life of Pa. Defense: Suicide. Defendant offers a letter by Ma to her friend in which she wrote, When I came home from shopping I found Pa dead on the floor with his revolver nearby. I didnt see what happened, but this was no accident. Pa did himself in. Admissible despite Mas lack of personal knowledge? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
Adoptive Admission If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement. Adoption by silence occurs when a party who hears another persons statement remains silent under circumstances in which a reasonable person would protest if the statement were false.
Vicarious Party Admission Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.
But in New York, the statement of an agent/employee is admissible as a vicarious party admission only if the principal/employer gave the agent/employee _____________________________________ (E.g., explicit speaking authority (Talk to X about this), or implicit speaking authority (employee is upper-level manager).
HYPO 64. Charlie the truck driver smashed into Pams house while on a run for Acme Trucking, his employer. Charlie descended from the cab and calmly told Pam, Sorry about wrecking your home. I guess I took my eyes off the road. I was reaching down to get a beer and a joint. In Pam v. Acme, is Charlies statement admissible vs. Acme? NEW YORK EVIDENCE 65.
New York: ____________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
HYPO 65. In federal court, Thelma and Louise sue Acme Trucking for sex discrimination in failing to hire them. They offer the statement of Charlie, an Acme truck driver, who told them over drinks one night, I know the Acme personnel office has a policy against hiring women no matter how qualified they are. Charlies statement is inadmissible because: (A) Charlie was not on the job when he was speaking to Thelma and Louise. _____________________________________________________________________ _____________________________________________________________________
(B) Charlies statement did not concern a matter within the scope of his employment. _____________________________________________________________________ _____________________________________________________________________
Co-conspirators Statement The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1) during and (2) in furtherance of the conspiracy.
F. Hearsay Exceptions
Justified by reliability factors or other good reasons sufficient to excuse inability to cross-examine declarant:
1. Forfeiture by wrongdoing 2. Former testimony 3. Statement against interest 4. Dying declaration 5. Excited utterance 6. Present sense impression 7. Present state of mind 8. Declaration of intent 9. Present physical condition 10. Statement for the purpose of obtaining medical treatment or diagnosis 11. Business records 12. Public records
(Also, recall Past Recollection Recorded, Learned Treatises) 66. NEW YORK EVIDENCE
Note on Criminal Defendants Right of Confrontation:
The sixth amendment right of confrontation requires that the criminal defendant be confronted with the witnesses against him. Confrontation is the opportunity for cross-examination by the defendant.
Rule: In the context of hearsay, the prosecution may not use a hearsay statement against the criminal defendant (even if it falls within a hearsay exception) if:
(1) the statement is ________________________________,
(2) the declarant is _____________________________, and
(3) the defendant has had no opportunity for ____________ (cross-examination requirement may be satisfied either before or at trial)
The meaning of testimonial statements is still being developed, but the following applications have been established:
(1) Grand jury testimony is ________________
(2) Statements in response to police interrogation:
(a) Testimonial if the primary purpose of the questioning is to establish or prove ____________________________ potentially
relevant to __________________________________ ___________________________________________
Example: Police arrive at domestic abuse crime scene, arrest the abuser, and sit down with the victim to ask what happened? At defendants trial, the victim refuses to testify. The victims statements to the police, even if they fall within a hearsay exception (e.g., excited utterances), cannot be used against the defendant because they are testimonial, the witness is now unavailable, and there has been no cross- examination.
NEW YORK EVIDENCE 67.
(b) Non-Testimonial if the primary purpose of the questioning
is to _____________________________ to meet an
__________________________________.
Example: Domestic abuse victim calls 911 to seek help while abuser is in the other room with plans to resume the abuse.
Ongoing emergency includes a situation in which the crime has recently ended, the perpetrator is armed, and he still poses a threat to the victim, the police, or the public at large.
(3) Documents:
(a) Business records are ___________________ (e.g., bank or phone company records).
(b) Sworn Affidavits are ___________________.
(c) A forensic laboratory report is________________
if its primary purpose is to _____________________ ___________________ of criminal conduct.
Examples: (1) Analysis of drugs seized from a particular suspect to ascertain if the drugs are cocaine, etc. (2) Analysis of the blood of a suspected DWI driver to ascertain his blood alcohol content.
But a DNA report is _______________ if it analyzes a sample of bodily fluid collected from a crime scene for the purpose of developing a DNA profile if ______ ____________________ at the time of the analysis.
Even if a forensic report is testimonial, no confrontation violation occurs if the prosecutor calls a testifying expert who performed an independent analysis of the data, and the testifying expert only generally refers to the report to show a partial basis for her opinion without reading the report to the jury or introducing it as an exhibit. Then the report is not being used for a hearsay purpose. 68. NEW YORK EVIDENCE
1. Forfeiture Hearsay Exception (Declarant Unavailable Due to Defendants Wrongdoing): Any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds:
(By making the witness unavailable through his own wrongdoing, defendant forfeits both the hearsay objection and sixth amendment objection.)
Burden of Proof: Defendants involvement in making the declarant unavailable to testify must be proven to the courts satisfaction as follows:
Federal: ________________________________________
New York: _______________________________________
Example: Tony Soprano is prosecuted in federal court for loan-sharking. Paulie made incriminating statements about Tony to the police and during a grand jury proceeding. Tony learned that Paulie was going to be the key government witness at trial; and the next day Paulies dead body was found in the river. The court determines by a preponderance of the evidence that Tony arranged for Paulies disappearance in order to prevent Paulie from testifying. Paulies grand jury testimony and interview statements to the police are admissible against Tony even though the statements are testimonial, Paulie is unavailable, and Tony had no opportunity for cross-examination.
New York: ______________________________________
2. Former Testimony
(a) The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. Issue in both proceedings must be essentially the same.
NEW YORK EVIDENCE 69.
(b) Theory: reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable
HYPO 66. Bus accident. Passengers A and B were seriously injured. A sued Bus Co., alleging negligence by bus driver. At trial, Witness testified for A that bus driver was intoxicated at time of accident. Thereafter, Witness died. B now sues Bus Co. and seeks to admit a transcript of Witnesss former testimony.
HYPO 67. Same bus accident. At grand jury, Witness testified that bus driver was intoxicated at time of accident. Thereafter, Witness died. Bus driver is prosecuted for DWI. Prosecutor seeks to admit a transcript of Witnesss grand jury testimony. _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
Note: Same grounds of unavailability apply to all exceptions where unavailability is a requirement.
New York has two additional grounds of unavailability for the former testimony hearsay exception in civil cases only:
(1) Declarant is located 100 miles or more from the courthouse, or
(2) Declarant is a physician (public policy prefers that doctors continue their work rather than testify again). 70. NEW YORK EVIDENCE
3. Statement Against Interest
(a) An unavailable declarants statement against his or her
________________
________________
________________
(money, property, or criminal liability)
(b) Theory: Not likely to lie when making a personally damaging statement as to such interests.
(c) Statement against interest differs from party admission:
must be against interest when made
any person (not merely party) can make statement against interest
personal knowledge is required
declarant must be unavailable
HYPO 68. Plaintiff v. Acme Trucking, based on Charlie the truck drivers negligent driving. Charlie was fired immediately after the accident. Two weeks later, Charlie told Plaintiffs insurance adjuster that he had been drunk while driving. At trial, Charlie refused to testify on the ground of self-incrimination. The insurance adjuster may testify to Charlies statement as evidence against Acme because the statement is:
(A) A vicarious party admission.
(B) A statement against interest. ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________
NEW YORK EVIDENCE 71.
(d) Qualification in criminal cases: Statement against penal interest must be supported by circumstances showing trustworthiness of statement (i.e., corroboration).
HYPO 69. Prosecution of Doppler for arson of Town Hall. Doppler calls Waldo to testify that while sitting in a bar, Waldo heard Stranger say, Im the guy who torched Town Hall, so Im leaving town tomorrow. Dopplers attorney demonstrates that Stranger has not been located despite diligent efforts to find him. ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________
4. Dying Declaration
(a) Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarants death.
(b) Theory: Expectation of imminent death is a solemn occasion.
(c) Type of case:
Criminal cases: ________________
Civil cases: ___________________
NEW YORK: Criminal Homicide only, meaning that death is the only relevant form of unavailability.
HYPO 70. Prosecution of Dagger Dan for the murder of Victor Victim. A passerby found Victor lying in the gutter in a pool of blood with a knife in his stomach. Victor told the passerby, Its not looking too good for me. Dagger Dan did it, and Im going to get him for this. Victor died an hour later. May the passerby testify to Victors statement as a dying declaration? ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ 72. NEW YORK EVIDENCE
HYPO 71. Prosecution of Dillinger for bank robbery. At the scene, a bank officer spoke with wounded Teller Tim, who gasped, Im a dead man. Get me a priest. Dillinger shot me as he made his getaway. Tim then lapsed into a coma from which he has not emerged. May the officer testify to Tims statement as a dying declaration? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
HYPO 72. Same event except civil action against Dillinger for Tims personal injury damages. Tim is still in a coma. Is Tims statement admissible as a dying declaration?
New York: ____________________________________________________________
Note on Confrontation: A dying declaration made to a police officer may be testimonial, but it most likely qualifies as an exception to the confrontation requirement of cross-examination. In dicta, the Supreme Court has noted that the admissibility of dying declarations to law enforcement officials was well established when the Sixth Amendment was adopted, meaning that dying declarations were intended to be exempt from the confrontation rule.
NOTE: Under FRE, none of the remaining hearsay exceptions require unavailability of the declarant. Same rule in NY except where specified.
Spontaneous Statements
5. Excited Utterance
(a) Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.
(b) Theory: excitement suspends ones capacity to fabricate.
NEW YORK EVIDENCE 73.
HYPO 73. Ernie observes a horrific head-on auto collision and excitedly tells a cop, who arrives 10 minutes later, Oh my God, Officer! Both of those cars were going 90 miles an hour! May the cop properly testify to Ernies statement at a trial based on the accident?
Factors to consider in determining whether a statement qualifies as an excited utterance:
(1) _____________________________
(2) _____________________________
(3) _____________________________
(a) _______________________
(b) _______________________
(c) _______________________
6. Present Sense Impression
(a) Description of an event made while the event is occurring or immediately thereafter.
(b) Theory: declarant has no time to fabricate
NEW YORK: There must be corroborating evidence of the happening of the event described by the declarant.
HYPO 74. Mom telephones her son Victor Victim at his apartment. Mom, he says, Can you wait a minute? Someones at the door. Thirty seconds later, Victor gets back on the phone and says, Mom, cant talk now. My new friend, Hannibal Lecter, is here for dinner. Call you later. The next day, the remains of Victors dead body are found in his apartment. Hannibal is on trial for the murder. May Mom testify that Victor identified Hannibal as his dinner guest that night? ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
74. NEW YORK EVIDENCE
7. Present State of Mind
(a) Contemporaneous statement concerning declarants present state of mind, feelings, emotions.
(b) Theory: contemporaneous statement about matter as to which declarant has unique knowledge.
HYPO 75. Probate of Wandas Will, in which she left all her money to the local pet cemetery. Wandas family challenges the will on the ground that Wanda was insane when she executed it. Pet cemetery offers testimony that a few days before execution of the will, Wanda said to her friend, I do not love my family anymore. Admissible over hearsay objection? ______________________________________________________________________ ______________________________________________________________________
8. Declaration of Intent
(a) Statement of declarants intent to do something in the future, including the intent to engage in conduct with another person.
New York: If the statement of future intent is offered to prove the joint participation of another person, New York requires:
(1) __________________________ of a relationship between the declarant and the other person, and
(2) That the declarant is _________________________.
(b) Theory: contemporaneous statement about matter as to which declarant has unique knowledge.
HYPO 76. Susan has died and her family sues Life Insurance Co. for nonpayment of the policy proceeds. Defense: Suicide. Life Insurance Co. seeks to introduce a note found in Susans apartment (in Susans handwriting) in which she said, Im going to end it all next week.
HYPO 77. Prosecution of Raymond for murder of Vic. Before going out Monday night, Vic told wife, Im meeting Raymond tonight at the bowling alley. Vics dead body was found Tuesday morning outside the bowling alley.
New York: ____________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
9. Present Physical Condition
(a) Statement made to anyone about declarants current physical condition
New York: If a statement of present physical condition is made to a layperson, rather than a medical professional, the declarant must be__________________________.
(b) Theory: contemporaneous statement about matter as to which declarant has unique knowledge
HYPO 78. Plaintiff, whose arm was broken in accident with Defendant, sues for damages for pain and suffering. Plaintiff may, of course, testify about the pain she experienced. But Plaintiff also calls Neighbor to testify, (a) I was with Plaintiff last July when she said, Im feeling a lot of pain in my arm and again in December when she said (b) I sure did feel a lot of pain in my arm last July. Admissible over hearsay objections?
10. Statement made for the purpose of obtaining medical treatment or diagnosis
(a) Statement made to anyone (usually to medical personnel) for the purpose of obtaining medical treatment or diagnosis (including diagnosis for expert testimony) if it concerns the declarants
1) ____________________ or
2) ____________________ or
3) _____________________________, but not including statements describing the details of liability or the identity of a tortfeasor, unless it is the identity of the abuser in a domestic abuse or child abuse case.
(b) Theory: A patient or injured person has a motive to be honest and accurate in order to get good medical assistance
(c) This exception does not include oral statements made by a physician to the patient. (Distinguish written entries made by a physician in business records (e.g., hospital or office records).)
(d) New York: This exception does not apply to statements made to a physician solely for the purpose of helping the physician to develop an opinion for expert testimony at trial.
HYPO 79. Plaintiff v. Defendant for pain-and-suffering damages based on an alleged accident at Defendants store. At trial, Plaintiff calls Dr. Treat, her treating physician, to testify, When Plaintiff came to see me for treatment a year after the accident, she said, (a) The pain in my arm is killing me. (b) Ive been losing sleep at night for the past six months because of the pain in my arm. (c) This all started when I fell down the stairway (d) the one with no treads at Defendants store. Objection: hearsay.
(2) Made in the regular course of business (the information recorded is germane to the business)
(3) The business routinely keeps such records
(4) Made at or about the time of the event recorded
(5) Contents consist of
information observed by employees of the business (including medical treatment, and expert diagnoses and opinions on general causation of a patients injury contained in medical and hospital records), or
a statement that falls within an independent hearsay exception
(b) Theory: Businesses depend on accurate, up-to-date record- keeping, and accuracy is likely when employees are under a business duty to make such records. Useful substitute for testimony of employees.
HYPO 80. Civil action for damages by Pedestrian against Hot Rod Kid for recklessly running him down. At trial, Pedestrian seeks to introduce the report of Officer McNulty, who arrived at the scene 10 minutes after the accident. The report, which was prepared by McNulty at the scene, states:
(a) Upon arrival, I measured skid marks 50 feet in length. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________
(b) Officer Bunk, who witnessed the accident, told me that Hot Rod Kid was driving nearly 80 miles per hour. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ 78. NEW YORK EVIDENCE
(c) Bill Bystander told me that he saw the accident and that Hot Rod Kid ran through the stop sign. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________
(c) Proving Business Records Foundation: (1) Call sponsoring witness to testify to the 5 elements of business records hearsay exception; witness need not be author of reportcan be records custodian or any other knowledgeable person within the business, or
(2) Written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party).
New York: Certification method is permitted only in three situations: 1. In civil cases, the business records are those of a nonparty that has produced its business records for inspection as part of pretrial discovery,
2. In any type of case, the business records are those of a hospital, or
3. In any type of case, the business records are those of state or local government. 12. Public Records
(a) Records of a public office or agency setting forth:
(1) the activities of the office or agency (e.g., payroll records); or (2) matters observed pursuant to a duty imposed by law (e.g., Weather Bureau records of temperature); or (3) findings of fact or opinion resulting from an investigation authorized by law (e.g., OSHA inspection report on safety conditions of factory). ________________________________________________ ________________________________________________
NEW YORK EVIDENCE 79.
(b) Exclusion from public records exception:
Police reports prepared for ________________________
are not admissible against the defendant in a criminal case. Nor is the prosecution in such cases allowed to introduce such reports against the defendant under the alternative theory of business records.
NEW YORK: The public records exception is not well developed under New York law, so government records are almost always introduced under the business records exception. Conclusions and opinions contained in government investigatory reports are admissible only if the report sets forth adequate facts and the person giving the opinion is qualified.
Hearsay Within Hearsay
1. If a hearsay statement is included within another hearsay statement, the evidence is inadmissible unless each statement falls within a hearsay exception. (For purposes of this rule, a hearsay exemption (e.g., statement of an opposing party) is treated like a hearsay exception.)
2. Examples: (1) If witness testifies, A told me what B said, the evidence is inadmissible unless, for example, As statement is an excited utterance made in response to Bs excited utterance. (2) In a homicide prosecution against D, the victim, X, knowing he was about to die, said D did this to me, and D said he was glad he did it as he ran away. Xs statement is a dying declaration (level one) that contains the statement of the opposing party D (party admission) (level two).
Impeachment of Hearsay Declarants
Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence. If the impeachment consists of a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived.
HYPO 81. Shooter is on trial for the murder of Victim. In his hospital bed, Victim told the nurse, Im feeling pretty good considering Billy Ray tried to kill me. The next day, Victim told a visitor, I know Im about to die. Shooters the one who shot me. Victim then died.
80. NEW YORK EVIDENCE
(a) May the prosecution introduce Victims statement to the visitor in which he accused Shooter? ____________________________________________________________ ____________________________________________________________
(b) If the prosecutor is allowed to introduce Victims statement to the visitor, may Shooter introduce Victims statement to the nurse in which he accused Billy Ray? ____________________________________________________________ ____________________________________________________________ ____________________________________________________________ ____________________________________________________________ ____________________________________________________________