What is the primary source of evidence law on the MBE?

Federal Rules of Evidenc

e
What is judicial notice?
"Judicial Notice is the recognition of a fact as
true without formal presentation of evidence (i.e., without witnesses, physical
piece of paper, etc.)"
When can a court take judicial notice? "A court may take notice of indisputable
facts, which come in two forms 1) matters of common knowledge within the courts
territorial jurisdiction and 2) matters of easy verification by resort to unques
tionable sources."
What are the two procedural aspects of judicial notice? "1) Timing: judicial no
tice may be taken at any time, including on appeal (so even if not on record bel
ow).
2) Effect: Judicially noticed facts are considered conclusive in civil cases, b
ut not in criminal cases (jury gets to decide whether to accept facts as true)."
What is the definition of relevance?
Evidence is relevant if it has any tende
ncy to make a material fact more probable or less probable than would be the cas
e without the evidence.
What is the basic rule regarding relevant evidence?
"All relevant evidence i
s admissible, unless the Court makes a discretionary determination that the prob
ative value of the evidence is substantially outweighed by pragmatic considerati
ons."
What are the six types of pragmatic considerations that a court looks at in dete
rmining whether to admit relevant evidence?
"1) Danger of unfair prejudice
2) Confusion of the issues
3) Misleading the jury
4) Undue Delay
5) Waste of Time
6) Unduly Cumulative"
What are the five specific policy-based exclusions to the admission of relevant
evidence?
"1) Liability Insurance
2) Subsequent Remedial Measures
3) Settlements in Civil Cases
4) Offers to Pay Hospital Bills or Medical Expenses
5) Pleas and Plea discussions in Criminal Cases"
Is the liability insurance of the parties admissible evidence? "Evidence that p
erson has or does not have liability insurance is inadmissible for the purpose o
f proving fault or absence of fault. but such evidence may be admissible for som
e other relevant purpose, such as proof of ownership or control, if that issue i
s controverted, or impeachment of a witness"
"When evidence is admissible for one purpose; but inadmissible for another purpo
se, what should the judge do?" The judge should give the jury a limiting instru
ction.
What is bias and when is evidence showing bias admissible?
Bias means there
is some relationship between W and a party that could cause W to lie/shade the
facts. Evidence of a Ws bias is almost always admissible.
What are subsequent remedial measures? "Repairs, design changes, or policy chan
ges taken after an accident that could have prevented the accident."
When is evidence of subsequent remedial measures admissible and when is it inadm
issible?
"SRMS are inadmissible to prove wrongful behavior, such as negli
gence, culpable conduct, product defect, or the need for warning. However, such
evidence may be admissible for some other relevant purpose, such as proof of o
wnership, control, or feasibility (the big one), if that issue is controverted.
Note, in general, the NY rule is the same as the federal rule, except that SRMs
are admissible in a product liability action based on strict liability for a man
ufacturing defect only."
What is the rule regarding the admissibility of evidence of settlements in civil
cases? "If there is a disputed claim, then evidence of settlements or offers to
settle or statements made in settlement discussions Is inadmissible if offered
to prove liability, but may be admissible if offered to impeach a W on the groun

d of bias."
What is the rule regarding the admissibility of evidence of an offer to pay a ho
spital bill or medical expenses?
"Evidence that D has paid or offered to
pay an accident victims hospital or medical expense is inadmissible.
Note, unlike with settlements, this rule does not include other statements made
in connection with an offer to pay medical expenses and is thus very limited."
What is the rule regarding the admissibility of evidence of pleas and plea discu
ssions in criminal cases and subsequent civil litigation?
"An offer to ple
a guilty, a withdrawn guilty plea, no lo contendre/no contest pleas, and stateme
nts of fact in the plea discussions are inadmissible against a D in a pending cr
iminal litigation or in a subsequent civil case:
Note, in NY, withdrawn guilty pleas are admissible in subsequent civil cases. A
lso note that in NY and on the MBE, a plea of guilty not withdrawn is admissible
against D in subsequent litigation based on the same facts in both federal cour
t and NY court, because a guilty plea becomes legal fact (D escapes this by ple
ading no lo contendre/no contest)"
What is character evidence?
"Character evidence refers to a persons general d
isposition or propensity. For example, whether someone is honest (or dishonest)
, peaceful (or violent), careful (or careless)."
"When approaching a character evidence problem, what are the four questions to f
ocus on?"
"1) Is the character evidence being offered for the propensity p
urpose?
2) Is the case criminal or civil? (Determines exceptions)
3) Has the door been opened for character evidence?
4) Is the evidence in the correct form?"
What is the general rule regarding the admission of character evidence for a pro
pensity purpose?
Evidence of a persons character or past acts is inadmissi
ble if offered to prove that the person acted in conformity with that trait.
"What are the five permissible, non-propensity purposes for admitting character
evidence?"
"Think MIMIC:
1) Motive
2) Intent
3) Mistake/Accident, Absence of
4) Identity
5) Common Scheme/Plan"
What is the rule regarding character evidence that is an essential element of a
civil action claim?
"Evidence of a persons character is admissible in a civil
action where such character is an essential element of a claim or defense
Note, it arises in negligent hiring and defamation cases."
What is the MBE habit exception to the rule barring character evidence introduce
d for propensity purposes?
Habit of a person (or routine of a business orga
nization) is admissible to infer how the person (or business) acted on the occas
ion at issue in the litigation
How is habit defined? Habit is a repetitive response to a particular set of ci
rcumstances. It has two distinguishing characteristics: 1) frequency (happens a
lot); and 2) particularity (specific type of activity)
What is the NY rule regarding habit evidence? "Habit evidence relating to a bu
siness, trade, or profession and evidence relating to personal habit in use of a
product is admissible. However evidence relating to personal habit on the issu
e of due care in negligence is inadmissible."
What is the rule for admission of character evidence of the criminal D in a crim
inal trial?
"A criminal D may introduce evidence of his own good character f
or a relevant trait. If D does so, the prosecution may rebut with evidence of Ds
bad character for the same relevant trait"
What is the form that character evidence of a criminal D must take when introduc
ed by D on direct examination in a criminal trial?
"- Federal: Reputation (

what D is generally known to be in the community) or Opinion (Ws personal views o

f D)
- New York: Reputation only
Note, specific acts is not allowed"
"If a criminal D has opened the door by calling a character W, what are the two
ways in which the prosecution may rebut?"
"1) By calling its own character
witnesses to testify to Ds relevant bad character, the form of which can be repu
tation (federal and NY) or opinion (federal only)
2) By cross-examining Ds character W by questioning his knowledge of specific act
s by D that are relevant to the character trait at issue, the purpose of which i
s to test Ws knowledge, not to prove specific acts. Note, there is a good faith
requirement, meaning the prosecution must have a good faith basis to believe tha
t the specific act took place.
Note, in NY, prosecution may also rebut Ds good character evidence by proving tha
t D has been convicted that reflects adversely on character trait in issue"
"On the MBE, when may a criminal D introduce evidence of the character of the vi
ctim?" A criminal D may offer evidence of victims violent character to prove tha
t victim was first aggressor if D raises a defense alleging self-defense.
"On the MBE, if a criminal D introduces evidence of the victims character in a
self-defense case, how may the prosecution rebut?"
With evidence of the Vic
tims good character (for that trait) or with Ds bad character (for that trait)
"On the MBE, when evidence of a victims character is introduced in a criminal c
ase where the D is arguing self-defense, what form must the character evidence t
ake?" "On direct examination, only reputation or opinion evidence, and on cros
s examination, specific acts can be discussed (but only to test character Ws know
ledge)"
"In NY, may a criminal D who is arguing self-defense introduce evidence of the v
ictims character to show that the victim was the first aggressor?"
"No, in
NY, evidence of victims character is inadmissible to prove victim was first aggre
ssor."
What is the special rule of Ds knowledge of victims character for violence?
"The D may offer evidence of Ds own knowledge of victims bad character for violenc
e for the purpose of showing that D reasonably believed in the need to use selfdefense.
Note, since this is not propensity evidence, any form is allowed (reputation, op
inion, specific acts). Also note that NY follows this same rule."
Can D introduce evidence of the victims character in a sexual misconduct case?
"Generally no, Under the Rape Shield Rule, a D In a civil or criminal case invol
ving alleged sexual misconduct, a D ordinarily may not introduce evidence of the
victims reputation for promiscuity or the victims prior sexual conduct"
What are the exceptions to the rape shield rule?
"A D may introduce 1) ev
idence of the victims sexual activity with D, but only if the defense is consent;
2) evidence of the victims sexual activity with others, but only to prove someon
e other than the D was the source of physical evidence; or 3) evidence likely to
be admitted by Ds Due Process Rights
Note, in NY, evidence of the victims conviction for prostitution within the past
three years is also admissible"
What is the general rule for the admission of character evidence in civil cases?
Character evidence is generally inadmissible to prove propensity in civil cases.
What is the federal rule regarding admission of character evidence of other sexu
al misconduct in a sexual assault case? "In any criminal or civil case alleging
sexual assault /child molestation, prosecution may offer evidence of Ds prior sex
ual misconduct for purpose of proving Ds propensity. There is no restriction on
form."
Does NY allow for the admission of character evidence of other sexual misconduct
to be admitted in sexual assault cases?
"No, there is no special excepti

on like in the federal rules."

What is the general rule regarding authentication of evidence? The party seekin
g to show an exhibit must introduce sufficient evidence for a reasonable juror t
o conclude that the item is what the party claims it to be.
Is a Ws testimony that a document is genuine sufficient to authenticate it?
Yes
What are the four ways of authenticating writings?
"1) Testimony by a W wit
h personal knowledge
2) Proof of authors handwriting by lay opinion (W must have familiarity with han
dwriting as a result of experience in the normal course of affairs), Expert Opin
ion; or jury comparison
3) Ancient Document Rule, which states that authenticity may be inferred if the
document Is at least 20 years old (in NY, at least 30 years), is facially free o
f suspicion, and Is found where it would be expected
4) Solicited Reply Doctrine, which states that a document may be authenticated b
y evidence that it was received in response to a prior communication to the alle
ged author."
What is a self-authenticating document? "A document that is presumed authentic s
o that no foundation testimony is needed. Self-authenticating documents include
official publications (e.g. govt pamphlets), certified copies of public/private
documents on file at a public office, newspapers and periodicals, trade inscrip
tion and labels (e.g. candy bar wrapper), acknowledged document (e.g. notarized
document), commercial paper (e.g. check/promissory note), and certified business
records."
How can a photograph that is being used as demonstrative evidence be authenticated
?
"If purpose of the photograph is to illustrate a Ws testimony, a W can auth
enticate the photo simply by testify that it is a fair and accurate representati
on of the people or objects displayed"
"How can a photograph that is being used as a silent W"" be authenticated?"""
"A party offering such a photograph must show:
1) That the camera was properly installed or working; AND
2) That the recording or image has not been tampered with"
What does the best evidence rule apply to?
Only writings
What is the best evidence rule? "If a party seeks to prove contents of a writing
the party must either produce the writing, or provide an acceptable excuse for
its absence. If the court finds excuse acceptable, the party may then use secon
dary evidence, such as oral testimony (or anything else) to prove the contents."
When does the best evidence rule apply? "Only when the party seeks to prove the
contents of a writing, which arises in two principle situations 1) writing is a
legally operating document (i.e. the writing itself creates the right and obliga
tion); or 2) W is testifying to the facts that W learned solely from reading abo
ut them in the writing (W has no personal knowledge)"
What qualifies as the original writing for the best evidence rule?
The orig
inal includes the writing itself or any counterpart intended to have the same ef
fect. Originals include film negatives or prints from negatives and computer pr
intouts (copies from files)
How are duplicates defined in the context of the best evidence rule?
"A dupli
cate is any counterpart produced by any mechanical means that accurately reprodu
ced the original (e.g., photocopy, carbon copy, computer printout)."
What is the MBE rule for duplicates?
"A duplicate is admissible to the same e
xtent as an original, unless there is a genuine question about authenticity of t
he original, or it would be unfair to admit the duplicate"
What is the NY rule for duplicates?
Photocopies and other duplicates are acc
eptable substitutes for the originals only if the duplicates were made in the re
gular course of business.
What is not considered an original or duplicate in the context of the best evide
nce rule?
Handwriting copies (needs to be mechanical) and oral testimony
When will non-production of the original be excused in the context of the best e
vidence rule? "A party need not produce the original (or an acceptable duplica
te) if the original is lost or cannot be found with due diligence, has been dest

royed without bad faith, or cannot be obtained with legal process. If the cour
t is persuaded by a preponderance of the evidence that the excuse has been estab
lished, then secondary source is admissible."
What are the three escapes from the best evidence rule requirements?
"1) Cert
ified copies of public records
2) Voluminous records
3) Collateral documents (the court decides the document is unimportant to the is
sue in the case)"
What is real evidence? Real evidence is actual physical evidence that is displa
yed to the trier of fact.
What is the authentication rule for real evidence?
The party seeking to int
roduce real evidence must introduce sufficient evidence for a reasonable jury to
find that the item is what the party claims it to be.
What are the two methods of authenticating real evidence?
"1) If physical
evidence is distinctive, then personal knowledge is sufficient to authenticate
2) If physical evidence is not distinctive/generic, then the party must show a c
hain of custody"
What must be shown if the condition of real evidence is relevant?
"If the
condition of the item before trial is relevant, it must be shown at trial to be
in substantially the same condition"
"In federal diverse cases, courts should apply state law with respect to what?"
"1) Burden of proof and presumptions
2) Dead Mans Statutes
3) Privileges"
What are the four testimonial privileges recognized by federal courts? "1) Atto
rney-Client
2) Husband-Wife
3) Clergy-Penitent
4) Psychotherapist-Patient
Note, although not recognized by the federal courts, the majority of states, inc
luding NY, also recognize doctor-patient privilege"
What additional two testimonial privileges does NY state recognize?
"1) Soci
al Worker-Client
2) Reporter-Source"
What are the four general requirements for testimonial privileges?
"1) Comm
unications (thus not underlying Information, ore-existing documents, or physical
evidence)
2) Between members of a status relationship
3) When the communication is intended to be confidential
4) And sometimes only when made for a specific purpose"
"In the context of testimonial privileges, who has the power to make a voluntary
(explicit) waiver?"
Only the privilege holder
When does a subject matter waiver apply in the context of testimonial privileges
?
"A voluntary waiver of the testimonial privilege as to some communicatio
ns will also waive the privilege as to other communications when the partial dis
closure is intentional, the disclosed and undisclosed communications concern the
same subject matter, and fairness requires that the disclosed and undisclosed c
ommunications be considered together"
When will an inadvertent waiver of the testimonial privileges not apply?
"An inadvertent disclosure of a privileged communication will not waive the priv
ilege, so long as the privilege holder took reasonable steps to prevent the disc
losure and took reasonable steps to rectify the error"
What are the three exceptions to the testimonial privileges?
"1) Future Crime
or Fraud
2) Holder Puts the Content in Issue
3) A Dispute Between Holder and Professional"
What are the three elements of the attorney-client privilege? "1) Confidential
Communications
2) Status: Client and Attorney

3) Purpose: For purpose of obtaining legal advice"

"For the attorney-client privilege, what does attorney include?"
"Members
of the bar, anyone the client reasonably believes is an attorney, and represent
atives of the attorney"
"For the attorney-client privilege, what does client include?" "Clients, prospe
ctive client, and representatives of the client"
When is there no confidentiality between the attorney and client so that the att
orney-client privilege does not apply? "1) the client knows a third party is li
stening
2) the client asks the attorney to disclose to a third party.
3) If two or more clients with common interest consult the same attorney and la
ter have a dispute with each other concerning the common interest"
What is the joint client rule? "If two or more clients with common interest con
sult the same attorney, their communications with counsel concerning common inte
rest are privileged as to third parties. But if the joint clients later have di
spute with each other concerning the common interest, privilege does not apply a
s between them."
What are the three elements of the doctor-patient privilege?
"1) Confidential
Communications and Information
2) Status: Doctor and Patient
3) Purpose: Medical Treatment"
What is the definition of doctor include in the context of the doctor-patient pr
ivilege?
"Therapists, nurses, doctors assistants.
Note, in New York, it includes dentists, podiatrists, and chiropractors as well.
"
How far does the scope extend for the doctor-patient privilege? The scope extend
s not only to communications but also to include information acquired by the doc
tor
What are the three elements of the marital communication privilege?
"1) Conf
idential Communications
2) Status: Married Spouses
3) Purpose: Any Purpose"
Who can invoke the marital communication privilege and how can it be waived?
"Either spouse may invoke the privilege, meaning that it can be waived only by b
oth spouses"
Is the spousal immunity privilege recognized in NY?
"No, it is not recognize
d"
What is the federal rule regarding the spousal immunity privilege?
"In a cr
iminal case, the prosecution cannot compel Ds spouse to testify against D"
What are the four elements of the federal spousal immunity privilege? "1) Appl
ies only to criminal cases
2) Covers only testimony against spouse
3) So long as witness and D are currently married
4) May be waived by the W spouse"
What are the two exceptions to the federal spousal immunity privilege? "1) Com
munication or acts in furtherance of future crime or fraud (e.g. joint criminal
activity)
2) Communication or acts that are destructive of the family unit (e.g., spousal
or child abuse)"
What is the hearsay rule?
"Absent an exception or exclusion, hearsay is in
admissible."
What is the definition of hearsay?
An out-of-court statement (oral or writt
en) by a person (not animals and not machines) offered to prove the truth of the
matter asserted
When is an out of court statement not hearsay? When its not offered to prove t
he truth of the matter asserted in the statement.
What are the four principle categories of non-hearsay purposes? "1) Impeachment
(to show a W has been inconsistent)
2) Verbal Acts (words with independent legal significance, such as an oral K)

3) To Show Effect on Persons Who Heard or Read the Statement (e.g., show someone
is on notice)
4) Circumstantial Evidence of Speakers State of Mind (e.g., show speaker is insan
e)"
What is the general rule regarding prior statements of a trial W?
"A Ws own
prior (out-of court) statement, even if W is now present at trial, is hearsay i
f offered to prove the truth of the matter asserted, and is inadmissible unless
an exception or exclusion applies."
"On the MBE, when are prior statements of a trial W excluded from the definition
of hearsay?" "1) A prior statement of identification (in NY, this exception o
nly applies in criminal cases)
2) A prior inconsistent statement, if made under oath during a formal proceeding
, which does not include police statements (this hearsay exception is not recogn
ized in NY, although inconsistent statements can be used for impeachment).
3) A prior consistent statement, if used to rebut an accusation of a motive to l
ie and made before motive arose (Ny does not recognize this exception, but consi
stent statements can be used for rehabilitation purpose)"
What are the top ten hearsay exceptions which fall under three umbrella categori
es depending on who the declarant is? "- Declarant is Opposing Party to Case
1) Party Admission
- Declarant is unavailable
2) Former Testimony
3) Forfeiture by Wrongdoing
4) Statement against Interest
5) Dying Declaration
- Declarant is anyone
6) Excited Utterance
7) Present sense impression
8) Statement of then-existing mental, emotion, or physical condition
9) Statement for purpose of medical treatment or diagnosis
10) Business and public records"
What is the hearsay rule regarding party admissions?
Any statement made by a
party is admissible if offered against the party (i.e. offered by the other side
)
What is the federal rule regarding vicarious party admissions? A statement by a
n agent/employee of a party is admissible against the party (principle/ER) if it
concerns a matter within the scope of the agency or employment and was made dur
ing agency/employment
What is the NY rule regarding vicarious party admissions?
"A statement by
an employee or agent is admissible against the principle only if the agent or em
ployee had speaking authority (e.g., CEO, general counsel, VP for Communication)
"
What is the hearsay rule regarding vicarious admissions by co-conspirators?
A statement of one co-conspirator is admissible against other co-conspirators if
it was made during and in furtherance of the conspiracy.
What are the five grounds for declarant unavailability on the MBE?
"1) Priv
ilege (declarant claims privilege)
2) Absence from the Jurisdiction (cant find W)
3) Illness or Death
4) Lack of Memory
5) Stubborn refusal to testify"
What are the five grounds for declarant unavailability in NY? "1) Privilege
2) absence from jurisdiction
3) illness/death
4) Declarant is located 100 miles or more from the courthouse
5) Declarant is a doctor"
What are the three elements to the former testimony hearsay exception on the MBE
and in NY civil cases? "1) The declarant is unavailable
2) The prior statement was given in a proceeding or deposition
3) The statement is offered against a party who, on the prior occasion, had oppo

rtunity and a similar motive to cross-examine or otherwise develop the testimony

."
How can you establish similar motive in the context of the former testimony hear
say exception? "To establish similar motive, the former testimony must have bee
n taken in a substantially similar context (so that the party had a similar ince
ntive to cross-examine)
Note, the grand jury proceeding is not a prior occasion with opportunity to cros
s"
What is the former testimony hearsay exception for NY criminal cases? "The for
mer testimony by a now-unavailable W must have been given at a criminal trial, a
hearing on felony complaint or at conditional deposition. D and charge must be
the same in both former and current case (i.e., when you have a mistrial)."
What is the rule for the forfeiture by wrongdoing hearsay exception?
A declar
ants OOCS may be offered against any party who intentionally (to prevent W from t
estifying and wrongfully (including acquiescing in wrongdoing) made the declaran
t unavailable
What is the burden of proof regarding a partys wrongdoing for the forfeiture by
wrongdoing hearsay exception on the MBE and in NY?
"Federal: Preponderance
of the Evidence
NY: Clear and convincing Evidence"
When is a statement against interest admissible as a hearsay exception? "Declara
nt is unavailable and statement is against declarants proprietary or penal intere
st
Note, in a criminal case, a statement against penal interest offered to help acc
used must be supported by corroborating circumstances."
What are the three elements of the dying declaration hearsay exception? "1) Decl
arant is unavailable
2) Statement was made under a belief of certain and impending death, and
3) Statement concerns cause or circumstances of impending death"
What are the limits to the dying declaration hearsay exception in NY and on the
MBE?
"Federal: Civil of Homicide cases
NY: Criminal Homicide cases only"
What are the two elements of the excited utterance hearsay exception? "1) The
statement concerns a startling event
2) The statement was made while the declarant was still under the stress caused
by the event"
"What factors may make a statement qualify as an excited utterance"" for the exc
ited utterance hearsay exception?"""
"1) Traumatic Event
2) Relatively short passage of time (no bright line real)
3) Verbal Clues (e.g. shouted/screamed)"
What are the two elements of the present sense impression hearsay exception?
"1) The statement describes an event
2)The statement is made while the event is occurring, or immediately thereafter
(seconds not minutes)
Note, NY requires corroboration"
"What does the statement of then-existing mental, emotional, or physical conditi
on hearsay exception allow admission of?"
"A confidential statement concer
ning the declarants then existing physical condition, or state of mind (includes
emotions, mental feelings, intent or future plans, sensations, and bodily health
) is admissible. The exception does not include a statement of memory or belief
about a past condition, but it does include statements of future intent includin
g an intent to do something with a third person."
"What are the NY distinctions for the then-existing mental, emotional, or physic
al condition hearsay exception?"
"1) If a statement of present physical c
ondition is made to a layperson (not a doctor), the declarant must be unavailabl
e
2) If a statement of future intent is offered to prove the conduct of a third pe

rson, NY requires corroboration (of the connection between the declarant and the
third person) and that the declarant is unavailable."
What does the hearsay exception for the statements for purpose of medical treatm
ent or diagnosis allow admission of?
"Any statement made for the purpose of d
iagnosis or treatment concerning present symptoms, past symptoms, general cause
of medical conditions
Note, in NY, this exception does not apply to statements made solely for the pur
pose of obtaining expert testimony at trial."
What does the business and public records hearsay exception allow admission of?
"Records of a Business (any type, including public agencies) made in the regular
course of business where the business regularly keeps such records, the records
were made contemporaneously (at or about the time of the event recorded), and t
he content consist of information observed by employees of the business, or a st
atement that falls within some other hearsay exception"
What is the federal hearsay rule for public records?
"In addition to observat
ions by employees of the public agency, public records may also include conclusi
ons by public employees after an official investigation (e.g. police officers con
clusion about fault in an accident report)
Note, a police report may not be used against a criminal D."
Is the public records hearsay exception often applicable in NY? "No, the public
record exception is more restrictive and rarely applies, so just use business re
cord exception."
What are the two ways to lay the foundation for business records?
"1) Live
Testimony: Call a knowledgeable W who can testify to the five elements of the
business records hearsay exception (often called custodian of records).
2) Affadavit: Submit a written certification under oath attesting to elements of
business records hearsay exception.
Note, in NY, written certification may be used only in civil cases and only for
business records of a non-party."
Are accident reports admissible in NY under the business record hearsay exceptio
n?
"Yes, accident reports prepared in the regular course of business operat
ions or practice are admissible in NY, even if made in anticipation of future li
tigation"
What is the rule regarding hearsay and the confrontation clause?
"In crim
inal cases, the Sixth Amendment requires that D be confronted with W against him,
which means the prosecution may not offer testimonial hearsay in violation of th
e Ds right to cross-examine the declarant."
"In the context of the confrontation clause, when is the right to cross-examine
satisfied?"
"i) D already had the chance to Cross-examine Declarant (e.g. th
e former testimony exception)
2) D can cross-examine declarant at trial (e.g. prior statement of a trial witne
ss), or
3) D forfeited his right through W tampering (e.g., forfeiture by wrongdoing)"
What are some examples of when an OOCS is considered testimonial under the confr
ontation clause?
"1) Grand jury testimony
2) Statements in response to police interrogation when the primary purpose of th
e questioning is to establish or prove past events potentially relevant to later
prosecution (it is non-testimonial if primary purpose of questioning is to enab
le police assistance to meet an ongoing emergency)
3) Documents like police reports are testimonial, but documents like business re
cords are not testimonial"
What are the two requirements for a W considered competent on the MBE? "i) W mu
st have personal knowledge (i.e., observe with own eyes/ears) and
2) W must take an oath, which demonstrates an understanding of obligation to tel
l the truth, and embodies a promise to tell the truth"
What is the NY rule regarding testimony by children?
"The general rule is tha
t a child may testify under oath so long as child understands obligation to tell

the truth and promises to tell the truth. However, in criminal cases, a child
under the age of 9 who cant understand the oath may still testify (give unsworn t
estimony), but a D cannot be convicted based solely on unsworn testimony; there
must be some corroboration.
Note, children 9 and under may still give sworn testimony as long as they unders
tand"
Is there a Dead Mans Statute in federal courts?
"No, there is not."
What do dead mans statutes generally provide? "In a civil action, an intereste
d party (operative word) may not testify against a dead party about communicatio
ns or transactions with dead party"
When is a person interested in the context of the dead mans statutes? A person
is interested only if the outcome in the case will have legally binding effect on
persons rights or obligations (about financial interests)
When may a dead mans rights be waived in the context of the dead mans statues?
"Decendents representative does not object, decendents representative testifies ab
out the transaction, or decendents testimony is introduced."
Does NY have a Dead Mans Statute?
"Yes, it is generally similar to the rul
e in most other states with one important exception (the accident exception)."
What is the accident exception to NYs Dead Mans Statute?
"In an accident
case based on negligence, the surviving party may testify about the facts surrou
nding the accident (what decedent did) but may not testify about conversations w
/ decedent (what decedent said)"
What are leading questions?
"A question is leading when the form of the questi
on suggests the answer (e.g., Isnt it a fact that...?; or unevenly balanced alterna
tives)."
What is the general rule regarding leading questions? "1) Leading questions ar
e generally not allowed on direct examination of witness (when W is your own).
2) Leading questions are generally allowed on cross-examination of W (only thing
supposed to be doing on cross)"
What are the four situations where you can ask leading questions on direct exami
nation? "1) Preliminary Introductory Matters (e.g., you live in Ds neighborhood?)
2) Youth of forgetful W
3) A hostile W
4) An adverse party or someone under the control of adverse power"
Is cross-examination a right? "Yes. If a W testifies but then cannot be crossexamined, the Ws direct testimony will be struck."
What does the scope of cross-examination include?
"1) Matters within the s
cope of direct examination, and
2) Matters that affect the Ws credibility"
What is the rule regarding lay W opinion testimony?
"Lay opinion testimony i
s admissible if it is rationally based on the Ws direct observations (personal kn
owledge) and helpful to the jury
Examples include Sobriety (or drunkenness), emotions (e.g., anger), speed, handw
riting, and smells"
What is the general rule regarding expert W opinion testimony? "A W may testify
to an opinion as an expert only if W is qualified (by education and/or experien
ce), the testimony is about a subject matter where scientific, technical, or spe
cialized knowledge will be helpful to the jury, the opinion has proper basis (ba
sed on analysis that makes sense), and the opinion is reliable"
What is the proper basis for expert W opinion testimony?
"- The opinion m
ust be made to a reasonable degree of probability or reasonable certainty, and
- The opinion must be based on one of following three data sources: 1) the exper
ts personal knowledge; 2) evidence that is already in the trial record; 3) facts
outside the record but only if those facts are of a type reasonably relied on by
experts in the particular field.
Note, if expert relies on facts outside the record, the expert may generally dis
cuss the basis of the opinion, but may not disclose the inadmissible facts to th

e jury. The opponent, however, may disclose the underlying basis on cross-exami
nation."
What is the rule regarding reliability and expert W opinion testimony? "To be a
dmissible, expert opinion must be sufficiently reliable, which means the expert
has used reliable methods and has reliably applied those methods to the particul
ar facts of the case."
What is the federal rule regarding reliability and scientific expert W opinion t
estimony?
"The Daubert Standard, which includes four factors:
1) Has the methodology been tested?
2) Are there known error rates?
3) Has the methodology been subject to peer review?
4) Has the methodology been generally accepted?"
What is the reliability standard used in NY for scientific expert W opinion test
imony? NY asks only whether the methodology has been generally accepted by the
relevant professional community (the Frye Standard)
Is opinion testimony permissible if it goes to an ultimate issue in the case?
"Yes, opinion testimony (lay or expert) generally is permissible even if it addr
esses an ultimate issue in the case
Note, in federal criminal cases, an expert W may not testify that the D did or d
id not have the required mental state."
When is a learned treatise in aid of expert testimony admissible under federal l
aw?
"If a party can establish a treatise is a reliable authority, the treati
se may be used on direct or cross-examination of an expert, and it may be read t
o the jury as substantive evidence (hearsay exception). However, the treatise m
ay not be introduced as an exhibit (may not be shown to the jury)"
What are the three ways to establish authoritativeness of a learned treatise int
roduced in aid of expert testimony in federal law?
"1) Own expert testifies
that the treatise is authoritative
2) Your opponents expert admits that the treatise is authoritative, or
3) The judge takes judicial notice that the treatise is authoritative. (e.g., boo
k so well known and commonly used)"
When is a learned treatise in aid of expert testimony admissible in NY? "- On di
rect examination, a treatise may only be used for the purpose of showing the bas
is of the experts testimony, not as substantive evidence
(no hearsay exception)
- On cross-examination, it may only be used to impeach the opponents experts credi
bility, not as substantive evidence, and it may only be used if the opponents exp
ert either relied on the treaties in developing his own opinion or acknowledged
that it is a reliable authority (only can impeach if accepted treatise as author
itative)"
What is the basic rule for present recollection refreshed?
"A W may not rea
d from a prepared memorandum and must testify on basis of current recollection,
but, if a W forgets something he once knew, he may be shown a writing (or anythi
ng else to jog the memory)."
What are the safeguards against abuse for present recollection refreshed?
"If an item is used to refresh a Ws memory, opposing party has a right to:
1) Inspect
2) Use on Cross
3) Introduce it into Evidence"
What is the past recollection recorded hearsay exception?
"A writing may b
e read to jury as a past recollection recorded if
1) W once had personal knowledge
2) W now forgets and showing writing to W fails to jog Ws memory
3) Writing was either made by W or adopted by W
4) Writing was made when the event was fresh in Ws memory
5) And, the W can attest that, when made, the writing was accurate"
"If the foundation for a recorded recollection is satisfied, then by what method
may the past recollection recorded be introduced into evidence?"
"W may r
ead the document to the jury, but W may not show the document to the jury. Howe

ver, the opposing party may show the document to the jury (by introducing it as
an exhibit)
Note, in NY, the party using the recorded recollection may also introduce the re
cord as an exhibit (i.e., show it to jury)"
What kinds of attacks on W testimony are not subject to special restriction?
"Attempts to discredit Ws testimony as either bias, mistake/misperceived, or inco
nsistent are not subject to special restriction"
What is the definition of bias? Some relationship between the W and a party or s
ome other interest in the litigation that could cause the W to lie.
What is the definition of misperception?
"Anything that could affect the
Ws perception or memory
Examples include bad eyesight, bad hearing, mental retardation, forgetfulness,
intoxication at time of event or while on the W stand."
What is the definition of a prior inconsistent statement?
A prior inconsis
tent statement is simply a prior statement (oral or in writing) that is material
ly inconsistent with Ws trial testimony.
What is the rule regarding prior inconsistent statements and attacks on W testim
ony?
"A prior inconsistent statement may be used to impeach a W
Note, under the federal rules, a prior inconsistent statement may be admissible
both as impeachment and as substantive evidence if its made under oath during a
formal proceeding"
What are the procedural considerations for impeaching W for inconsistent stateme
nts?
"A W who is being impeached with a prior inconsistent statement must be
given an opportunity to explain or deny the prior inconsistent statement.
In NY, W must be given a chance to explain statement while on stand (must be rai
sed intrinsically during cross), while under the federal rules,the inconsistent
statement may be proven with extrinsic evidence as long as the W is later given
an opportunity to return to the stand and explain.
Note, if W is the opposing party, there is no need to give W/party an opportunit
y to explain prior inconsistent statement."
What is veracity?
The character trait of being truthful. A Ws bad characte
r for veracity is a frequent subject of impeachment and is governed by very spec
ific rules.
What are the three methods for attacking veracity?
"1) Reputation or Opinio
n
2) Criminal Convictions
3) Prior Bad Acts (without convictions)"
What is the rule regarding attacking a Ws bad character for truthfulness?
A party may attack a W (the target W) by calling another W (the character W) to test
ify to target Ws bad character for veracity
What is the form testimony about a Ws bad character for veracity must take?
"- Federal: Reputation or Opinion
- NY: Reputation Only
Note, specific acts are not allowed"
What is the NY rule regarding attacking a Ws character for veracity using evide
nce of past criminal convictions?
"Any W may be impeached with a convictio
n for any crime. However, there is special rule for Criminal Ds that provides th
at when W is criminal D, the court must conduct a hearing to balance probative v
alue of the conviction (on issue of veracity) against risk of unfair prejudice (
this hearing is called a Scandoval hearing)"
What is the federal rule regarding attacking a Ws character for veracity using
evidence of past criminal convictions? "To be admissible, a conviction (or the
release from prison, whichever is later) must be within 10 years of the trial.
Crimes of dishonesty or false statement are always admissible. Misdemeanors (no
t involving dishonesty or false statements) are not admissible. Felonies (not in
volving dishonest or false statements) are admissible if the probative value of

the conviction (on the issue of veracity) outweighs the risk of unfair prejudice
to a party."
What are crimes of dishonesty or false statement?
"A crime that, by defini
tion, involves a lie or betrayal of trust, such as perjury, false statement, fra
ud, and embezzlement.
Note, crimes of violence, drug crimes, and theft do not count."
"When courts balance the probative value and unfair prejudice in order to determ
ne whether a past criminal conviction should be admissible for an attack on a W
s character for veracity, what factors should the court look at?"
"- Facto
rs that make a conviction probative: Seriousness (murder is more probative of ve
racity than possession of marijuana) and relation to trust and deception (even i
f not a crime of deceit; e.g., theft is more probative than reckless driving)
- Factors that make a conviction unfairly prejudicial are its Inflammatory natu
re (child molestation vs. DWI) or if it is similar to the currently charged offe
nse (risk of propensity reasoning if similar offenses)"
How may a past criminal conviction be proven in the context of attacks on a Ws
character for veracity? "Conviction may be proven intrinsically (by asking W abo
ut it on cross-examination) or extrinsically (by introducing a record of the con
victions)
Note, in NY, an admission by W on cross that he has been convicted does not prec
lude cross-examiner from questioning W further to ascertain the criminal act tha
t was the basis of the conviction.
Also note, there is no need to give W an opportunity to explain"
What is the federal rule concerning the admissibility of bad acts (not convictio
ns) that reflect adversely on the character Ws character for truthfulness?
A W may be asked about prior bad acts if those acts relate to veracity or truthf
ulness
What is the NY rule concerning the admissibility of bad acts (not convictions) t
hat reflect adversely on the character Ws character for truthfulness? A W may
be asked about prior bad acts that show Ws moral turpitude.
What are the limitations to introducing bad acts (not convictions) that reflect
adversely on the character Ws character for truthfulness?
"- Basis: The c
ross-examiner must have a good faith basis to believe that the bad act occurred
(cant make stuff up)
- Proof: The bad act may be proven by intrinsic evidence only (the cross-examin
er is stuck with the Ws answer)
Note, proof by extrinsic evidence may still be allowed if the bad act is relevan
t for some other purpose (such as proof of bias)"
"Under the federal rules, may a party impeach its own W?"
"Yes, a party ma
y impeach its own W"
"Under NYs Voucher Rule, may a party impeach its own W?"
"By calling W, a
party vouches for that Ws credibility, which means that, ordinarily, the party who
calls a W may not impeach that W."
What are the exceptions to NYs Voucher Rule? "A party may impeach its own W w
ith a prior inconsistent statement that was made in writing and signed by W, or
made in oral testimony and was under oath. However, in a criminal case, this ex
ception may be used only if Ws current testimony is affirmatively damaging to the p
arty who called the W, and not merely a cloud on credibility"
What is the definition of rehabilitation in the context of W credibility?
The process of trying to repair a Ws credibility after the W has been attacked.
When may a party rehabilitate a W?
"Generally, a W may be rehabilitated onl
y after Ws credibility has been attacked through impeachment."
What is bolstering in the context of W credibility?
Introducing evidence to
support Ws credibility before an attack on Ws credibility. This is not allowed.
What are the two methods of rehabilitation in the context of W credibility?
"1) Character Evidence: If a Ws character for truthfulness has been attacked, the

n the opposing party may introduce corresponding evidence of the Ws good characte
r for truthfulness (Federal: Reputation or Opinion; NY: Reputation only; not al
lowed: specific acts)
2) Prior Consistent Statement: A prior statement may be used to rehabilitate if
the prior statement is consistent with the Ws trial testimony, the opposing part
y has suggested through impeachment that W has motive to lie, and the prior stat
ement was made before the motive to lie arose (note, under federal law , this is
also a hearsay exception, while in NY this is only admissible for rehabilitatio
n purposes)"
"Who decides questions of conditional relevance or, in other words, preliminary
facts that make the evidence relevant, such as whether an exhibit is authentic?"
The jury decides these questions. The judges only role for such questions is sim
ply to ensure that there is sufficient evidence for a reasonable jury to conclud
e that the conditional fact is true
"Except for conditional relevance, who decides all other questions of admissibil
ity, such as whether testimony is hearsay, whether a communication is privileged
, or whether an expert is reliable?"
The judge