NY Evidence New York Bar Exam Preparation Condensed Revision Notes
Sources of evidence law
Multistate: Federal Rules of Evidence FRE
NY: same as multistate + distinctions
BEST EVIDENCE RULE (BER)
Evidence relevant if has tendency to make material fact more probable or less probable than would be case w/o evidence.
All relevant evidence IS ADMISSABLE unless 1) exclusionary rule applies or 2) court makes a discretionary determination that probative value of evidence is substantially outweighed by 1 of 6 PRAGMATIC CONSIDERATIONS [BALANCING FACTORS]
- Danger of unfair prejudice
- Confusion of issues
- Misleading jury
- Undue delay
- Waste of time
- Unduly cumulative
SIMILAR OCCURENCES (other time, people or events)
Inadmissible if evidence concerns some time, event or person other than that involved in case at hand = evidence INADMISSIBLE (probative value outweighed by pragmatic considerations)
P’s ACCIDENT HISTORY
GENERALLY, INADMISSIBLE as shows that P accident prone
Character evidence- not allowed to prove P’s conduct on particular occasion
EXCEPTION: Admissible if cause of P’s injuries an issue
ASK- for what purpose is evidence being offered
SIMILAR ACCIDENTS CAUSED BY SAME INSTRUMENTALITY/CONDITION
GENERALLY, other accidents of D INADMISSIBLE
EXCEPTION: other accidents with same INSTRUMENTALITY or ISSUE for purposes:
1 show existence of dangerous condition
2 Causation of accident
3 Prior notice to D (happened in past)
MUST have SUBSTANTIALLY SIMILAR CIRCUMSTANCES
Prior similar conduct of person admissible to raise INFERENCE of person’s INTENT on later occasion (Brewski)
COMPARABLE SALES ON ISSUE OF VALUE
Selling price of similar property in same location and close to time to period at issue is some evidence of value of property at issue
ADMISSIBLE as circumstantial evidence of how person acted on occasion at issue in litigation.
Distinguish: character evidence= disposition or propensity (not admissible to prove conduct on particular occasion)
HABIT = repetitive response to particular set of circumstances
FREQUENCY AND PARTICULARITY of conduct
*NY: additional requirement, person must be in COMPLETE CONTROL OF CIRCUMSTANCES
Driving not allowed as too many variables v. dentist (control)
INDUSTRIAL CUSTOM AS STANDARD OF CARE
Evidence of how others in same industry or trade have acted in recent past may be admitted to as some evidence as to how a party in the instant litigation should have acted as evidence of APPROPRIATE STANDARD OF CARE
Eg. Lawn mowers
POLICY BASED EXCLUSIONS
Evidence that person has/does not have LI is NOT ADMISSIBLE for purpose of PROVING FAULT/ABSENCE OF FAULT.
EXCEPTION: ADMISSIBLE for 1) PROOF OF OWNERSHIP or 2) CONTROL OF INSTRUMENTALITY OR LOCATION if these issues DISPUTED BY D or IMPEACHING W/S
EG: well & foliage
SUBSEQUENT REMEDIAL MEASURES (SRM)
Post accident repairs
INADMISSIBLE for purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT OR NEED FOR WARNING
EXCEPTION: SRM may be admissible for proof of 1) OWNERSHIP/CONTROL or 2) FEASIBILITY OF SAFER CONDITION if EITHER IS DISPUTED BY D
EG: coffee thermostat, negligence disputed v. dispute of feasibility of safer condition
*NY: PRODUCTS LIABILITY ACTION against manufacturer based on STRICT LIABILITY FOR MANUFACTURING DEFECT, manufacturer’s post-manufacturing changes or design changes are ADMISSIBLE to suggest existence of defect in product @ time of accident. Doesn’t apply to theory of NEGLIGENCE LIABILITY
SETTLEMENTS OF DISPUTED CIVIL CLAIMS
Following are INADMISSABLE:
1) IMPEACHING W/S on ground of BIAS
2) statements of fact made during settlement discussions in civil litigation with government regulatory agency admissible in later criminal cases (does not include offer to settle just statements of fact “toxic toy figure” = fact)
*NY: exception does NOT apply
!!! EXCLUSIONARY rule applies only if @ time of discussion a CLAIM has been asserted and it is DISPUTED either as to validity of claim or amount of damages (if there is no claim against you and you are not disputing it then there is nothing to settle J )
CLAIM= doesn’t have to be a lawsuit, can be informal such as letter, shouted claim
DISPUTE = liability/amount of damages
PLEA BARGAINING IN CRIMINAL CASE
Offer to plead guilty
Withdrawn guilty plea (*NY: admissible against D is subsequent civil case)
No contest plea
Statements of fact made during the plea discussions
BUT a GUILTY PLEA is ADMISSIBLE against subsequent D in litigation under rule of PARTY ADMISSIONS
OFFER TO PAY HOSPITAL OR MEDICAL EXPENSES
INADMISSIBLE to prove liability (encourage charity)
Rule doesn’t exclude any other statements made in connection with offer to pay hospital or medical expenses (but excluded in settlement discussions)
Refers to person’s general propensity or disposition (honesty, fairness, peacefulness)
Purpose for admissibility of character evidence:
1 Character ESSENTIAL ELEMENT IN CASE (RARE! & NEVER IN CRIM CASE)
2 PROVE CONDUCT IN CONFORMITY WITH CHARACTER (circumstantial evidence)
3 W/S BAD CHARACTER FOR TRUTHFULNESS to IMPEACH CREDIBILITY
D’s character to prove conduct on particular occasion inadmissible during PROSECUTION’S CASE-IN-CHIEF
DEFENDANT during DEFENSE may introduce RELEVANT CHARACTER TRAIT OF D by REPUTATION OR OPINION TESTIMONY of CHARACTER WITNESS to prove conduct – OPENS DOOR to rebuttal by prosecution
*NY: D may seek to prove his good character by REPUTATION evidence ONLY, NOT opinion.
When character evidence about D is admissible through character W/S to prove conduct in conformity the only proper form is:
REPUTATION & OPINION
*NY: REPUTATION ONLY
Evidence of specific facts NOT allowed to prove person’s character trait- REPUTATION AND OPINION
Character traits must be RELEVANT to the crime
If D opened the door by calling character w/s. prosecution may rebut by:
1 cross-examining D’s character W/S with “have you heard” or “do you know” questions about specific acts or arrests of D that reflect adversely on particular character trait D has introduced
LIMITED PURPOSE: IMPEACH CHARACTER W/S’s KNOWLEDGE ABOUT D
2 calling its own REPUTATION or OPINION w/s (*NY: REPUTATION only)
*NY: In addition to 1 & 2 above, prosecution may rebut D’s good character evidence by proving that D has been convicted of a crime that reflects negatively on character trait in issue. (D has to open the door as to the negative character trait).
Prosecutor not allowed to prove that actual arrests or bad acts took place if w/s hasn’t not heard of them (time consuming and distracting)
VICTIM’S CHARACTER – SELF-DEFENSE CASE
Crim D may introduce evidence of VICTIM’S VIOLENT CHARACTER to prove victim’s conduct in conformity as circumstantial evidence that victim was first aggressor (victim struck first).
Character w/s may testify to victim’s bad reputation for violence or may give an opinion.
1 Evidence of VICTIM’S GOOD CHARACTER FOR PEACEFULNESS
2 Evidence of D’S BAD CHARACTER FOR VIOLENCE (reputation or opinion)
*NY: Evidence of victim’s character for violence NOT ADMISSIBLE to prove that victim was first aggressor. L
Only permissible way to prove victim’s violent character is by reputation/opinion NOT specific acts.
“I was also attacked by victim in 2012”
RULE: D’s KNOWLEDGE of victim’s BAD CHARACTER FOR VIOLENCE (FED/NY). D may offer evidence of his own awareness of victim’s bad character for violence (victim’s reputation or bad acts) for PURPOSE OF SHOWING D’S STATE OF MIND (fear of victim) – fear enhanced – violent character trait.
VICTIM’S CHARACTER- SEXUAL MISCONDUCT CASES
Under “rape shield law”, where D alleged to have engaged in sexual misconduct the following evidence about victim is ordinarily inadmissible:
Opinion or reputation evidence about victim’s sexual propensity
Evidence of specific sexual behaviour of victim
1 specific sexual behaviour of victim to prove that someone other than D was source of injury
2 victim’s sexual activity with D if defense of consent asserted
3 Love triangle defences (exclusion would violate D’s right of due process
(false accusation of rape in order to protect the relationship with 3rd party.
Character evidence generally inadmissible to prove conduct in conformity
Evidence of person’s character admissible in civil action where such character is ESSENTIAL ELEMENT OF CLAIM OR DEFENSE (RARE!!!) provable by reputation, opinion or specific acts. 3 situations:
1 Tort action alleging negligent hiring/entrustment
2 Defamation case
3 Child custody dispute
D’s OTHER CRIMES FOR NON-CHARACTER PURPOSES
GENERAL RULE: other crimes/specific bad acts by D are not admissible during PROSECUTION’S CASE IN CHIEF if only purpose is to suggest that because of D’s bad character he is more likely to have committed the crime with which he is currently charged.
BUT D’s bad acts/other crimes may be admissible to show SOMETHING SPECIFIC ABOUT CRIME D IS CURRENTLY CHARGED WITH
MOTIVE (KILL COP WHO ARRESTED YOU EARLIER)
INTENT (DRUG DELAER- INTENT TO SUPPLY LATER)
MISTAKE/ACCIDENT, THE ABSENCE THEREOF (AXE- KILLED MUM- KNIFE INCIDENT EARLIER)
IDENTITY (MODUS OPERANDI) (STICK UP NOTE, CUCUMBER NOT GUN)
COMMON SCHEME/PLAN (STOLEN CAR)
If MIMIC category satisfied, prosecution may use other-crimes evidence as part of its CASE IN CHIEF
Method of proof of MIMIC-purpose crimes:
1 conviction OR
2 evidence (w/s) that proves the crime occurred- prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the crime (easy standard)
*NY: in using MIMIC crime to show IDENTITY the prosecution must produce CLEAR AND CONVINCING EVIDENCE that D committed the other crime.
If relevant for non-character purposes, MIMIC evidence can be used in civil cases.
OTHER SEXUAL MISCONDUCT TO SHOW PROPENSITY FOR SEXUAL ASSAULTS OR CHILD MOLESTATION
In case alleging sexual assault, D’s prior specific acts of sexual assault ADMISSIBLE as part of case-in-chief of prosecution (crim case) or of P (civil case) for purpose of showing D’s propensity for sex crimes.
This rule allows prior acts only, not reputation/opinion.
*NY D’s prior sex crimes not allowed unless MIMIC satisfied.
AUTHENTICATION OF WRITINGS
Relevance of writing depends upon its source or authorship. Showing must be made that writing is authentic (what it purports to be)- authentication
FOUNDATION must be made in order for doc to be admissible
METHODS OF AUTHENTICATION:
Issue: whether X is author of doc
1 W/S’s personal knowledge
2 Proof of handwriting
- Lay person opinion
- Expert comparison
- Jury comparison
3 Ancient document rule: authenticity inferred if doc is:
- At least 20 years old *NY 30 years
- Facially free of suspicion (no whiteouts)
- Found in place of natural custody (desk)
4 Solicited reply doctrine
Doc can be authenticated by evidence that it was received in response to prior communication to alleged author.
Presumed authentic (no need for FOUNDATION testimony)
1 official publications
2 certified copies of public or private records on file in public office (deeds, mortgages)
4 Trade inscriptions and labels
5 Acknowledged document (notary public)
6 Commercial paper (promissory note)
AUTHENTICATION OF PHOTOS
W/S may testify on basis of personal knowledge that photo is “accurate and fair representation” of people/objects portrayed.
BEST EVIDENCE RULE
Party who seeks to prove contents of writing must either:
1 produce original or
2 an acceptable excuse for its absence
If court finds that excuse is acceptable, party may use secondary evidence (oral testimony or copy)
Writing = sound, recording, films, x-rays
When BER applies: when party seeking to prove contents of writing
1 Writing is legally operative (writing creates rights and obligations)
2 W/S testifying to facts that she learned solely from reading about them in a writing.
When BER does not apply: when w/s with personal knowledge testifies to a fact that exists independently of writing that records the facts.
What qualifies as “original writing”?
1 whatever the parties intended as the original (negative, film, counterpart, computer stored data)
2 DUPLICATE any counterpart produced by mechanical means that accurately reproduced the original (photocopy).
*NY: photocopies are acceptable as substitutes for original only if photocopies were made in the ORDINARY COURSE OF BUSINESS.
3 handwritten copy is neither original nor duplicate (not mechanical repro)
Excuses for non-production of original
1 Lost or cannot be found with due diligence
2 destroyed w/o bad faith
3 cannot be obtained with legal process (subpoenas- Swiss bank vaults)
If court is persuaded by preponderance of evidence that an excuse has been established- secondary source admissible- testimony based on memory or handwritten copy.
“Escapes” from requirements of BER:
1 Voluminous records can be presented through summary or chart (originals have to be available for inspection)
2 certified copies of public records
3 collateral docs (not very important to case if so judge decides)
Competency of W/S:
1 Personal knowledge (saw or heard)
2 Oath or affirmation (demonstrates she is telling the truth)
*NY rule for testimony by children: child of any age may testify under oath if child appreciates and understands the duty to tell the truth.
1 civil cases: child must be able to testify under oath
2 Exception for crim cases Child under 9 who cannot understand duty of oath may still testify (unsworn testimony) BUT D cannot be convicted solely on unsworn testimony of child, must be some CORROBORATING EVIDENCE that D committed crime.
Dead Man’s Statute
1 W/S not ordinarily incompetent because she has an interest (direct legal stake) in outcome of litigation. [MULTISTATE]
2 BUT some states have the “dead man’s statute” which provides:
In civil action an interested w/s is incompetent to testify against estate of a decedent concerning personal transaction/communication b/w interested w/s and decedent.
NY has the “dead man’s statute” [NY]
One exception to DMS in NY:
NY AUTOMOBILE ACCIDENT EXCEPTION: in auto accident based on NEGLIGENCE, surviving interested party:
1 may testify about his observations of DECEDENTS CONDUCT AND DEMEANOUR
2 BUT may not testify about ORAL STATEMENT MADE BY DECEDENT
Form of questions suggests the answer (isn’t it a fact that you ran the red light?)
1 GENERALLY not allowed on DIRECT EXAMINATION of w/s
2 GENERALLY, allowed on cross-examination of w/s
3 EXCEPTIONS: leading questions allowed on DIRECT EXAMINATION:
- for preliminary introductory matter
- To examine youthful/forgetful w/s
- Hostile w/s
- Adverse party himself or someone under control of adverse party
Writing in Aid of Oral Testimony
Basic rule: w/s may not read from prepared memorandum, must testify on basis of current recollection
But if w/s’s memory fails him, he may be shown memorandum (or any other tangible item) to jog his memory
Limited purpose: jogging w/s’s memory
After w/s’s memory restored, writing must be put aside- w/s testimony based on memory
Safeguards against abuse, adversary has a right to:
- Inspect memory refresher
- Use it on cross-examination
- Introduce it into evidence
Past Recollection Recorded (hearsay exception)
Substitute to w/s’s memory
Hearsay exception for past recollection recorded
FOUNDATION for reading contents of writing to jury:
1 showing writing to w/s fails to jog their memory
2 W/S has personal knowledge at former time
3 writing was either made or adopted by w/s
4 making or adoption occurred while the event was fresh in w/s’s memory (couple of days)
5 w/s can vouch for accuracy of writing when made or adopted
*NY: if 5-part test established, writing may be SHOWN to jury. Under Fed law, proponent may only READ it to jury.
Opponent always has the right to show writing to jury
Lay opinion admissible if:
1 rationally based on w/s’s own perception (personal knowledge)
2 Helpful to jury in deciding the fact
(drunk, sober, speed of vehicle, handwriting, emotions of another person, sane/insane, odors)
Qualification: education and experience
Proper subject matter: scientific, technical or other specialised knowledge that will be helpful to jury in deciding a fact.
Basis of Opinion: “reasonable degree of probability or reasonable certainty”
3 permissible data sources:
1 Personal Knowledge
2 Other evidence in trial record
3 Facts not in evidence if of a type reasonably relied upon by experts in this particular field in forming an opinion
If expert relies on facts outside record, expert may identify the type of facts underlying opinion but NOT disclose the contents of inadmissible facts to the jury!!!
Expert can’t disclose contents of out of court materials (can identify in general terms what she relied upon)
Relevance and reliability:
To be admissible, expert opinion must be relevant to the issue at hand and sufficiently reliable
Court-gatekeeper & will use 4 factors to determine reliability of principles & methodology used by expert:
Rate of error
Acceptance (by other experts in same discipline)
*NY: Method or principle must have achieved GENERAL ACCEPTANCE in relevant field.
Learned Treatise in Aid of Expert Testimony
1 on DIRECT EXAMINATION of party’s own expert, relevant portions of treatise may be READ INTO EVIDENCE AS SUBSTANTIVE EVIDENCE (to prove of matter asserted) if established as reliable authority.
2 On cross-examination of opponent’s expert: relevant portions of treatise may be read into evidence to IMPEACH AND CONTRADICT opponent’s expert.
Treatise may only be used with testimony of expert (not admissible by itself)
1 on DIRECT EXAMINATION of party’s own expert there is NO HEARSAY EXCEPTION in NY for contents of learned treatise- may only be used to show the GENERAL BASIS of expert’s testimony NOT AS SUBSTANTIVE EVIDENCE
2 On CROSS-EXAMINATION of opponent’s expert, learned treatise may only be used to IMPEACH the expert’s credibility NOT AS SUBSTANTIVE EVIDENCE + ONLY IF EXPERT RELIED ON TREATISE IN DEVELOPING HER OWN OPINION OR ACKNOWLEDGED IT ON CROSS AS RELIABLE.
Opinion Testimony (lay/expert) permissible even if it addresses an “ultimate issue” in case. Opinion must be HELPFUL.
Party has a right to examine any opposing w/s who testifies @ trial.
Proper subject-matter: within scope of direct examination and matters that test w/s’s credibility
Credibility and Impeachment
Bolstering own witness:
Not allowed until after w/s’s credibility has been impeached.
Post-impeachment repair of w/s credibility = rehabilitation
EXCEPTION: prior identification of a person by trial w/s is not barred by hearsay rule
*NY: admissible as substantive evidence (hearsay exception)
Party’s Impeachment of Own W/S:
Any party may impeach any w/s including own w/s
*NY: party may not impeach her own w/s
EXCEPTION: may impeach own w/s with PRIOR INCONSISTENT STATEMENT but only if:
1 made in writing and signed by w/s or
2 made in oral testimony under oath
+ prior inconsistent statement may only be used if w/s’s current testimony is AFFIRMATIVELY DAMAGING to party who called the w/s
Two ways to use impeachment methods:
1 CONFRONT w/s (ask w/s about impeaching fact with aim of having w/s admit it)
2 EXTRINSIC EVIDENCE (documentary evidence/testimony from other w/s)
Extrinsic evidence (to prove impeaching fact): All except BAD ACTS and CONTRADICTORY FACTS
Impeachment methods that allow “extrinsic evidence” - not necessary to confront w/s first before introducing extrinsic evidence EXCEPT:
*NY: PRIOR INCONSISTENT STATEMENTS OF W/S
PRIOR INCONSISTENT STATEMENTS:
W/S may be impeached by showing that on some prior occasion she made material statement that is INCONSISTENT with her trial testimony
GENERAL PURPOSE: Prior inconsistent statement admissible only for the purpose of IMPEACHMENT and NOT AS SUBSTANTIVE EVIDENCE (suggest trial testimony is false)
EXCEPTION: PIS may be admitted both to IMPEACH and as SUBSTANTIVE EVIDENCE (prove truth of matter asserted in previous statement) if statement was made
1 Orally under oath and
2 in a live testimonial context (formal hearing, deposition, trial)
*NY: PIS is admissible only to IMPEACH.
Federal law: extrinsic evidence may be introduced before confrontation of w/s but w/s must be given an opportunity to return to stand and explain/deny PIS
*NY: w/s must be confronted with PIS while she is on stand
EXCEPTION (FED/NY): if opposing party w/s, no need to give opportunity to explain.
+ prior statement of opposing party admissible against party under party admission (hearsay exclusion)
BIAS, INTEREST OR MOTIVE TO MISREPRESENT
May impeach a w/s by showing any fact that would give the w/s a reason to testify favourably or negatively about a party’s case.
FEDERAL: w/s must be confronted with alleged bias whilst on stand
If confrontation pre-requisite met, bias may be proven by “extrinsic evidence”.
*NY: confrontation of w/s not required
Anything affecting w/s’s PERCEPTION OR MEMORY (bad eyesight, hearing, drugs, alcohol)
Purpose: suggest mistake
Allowed to be proven with extrinsic evidence.
No confrontation prerequisite
BAD REPUTATION OR OPINION ABOUT W/S’s CHARACTER FOR TRUTHFULNESS
Extrinsic evidence is ONLY way to do it.
Attack on w/s character for truthfulness
Character w/s may be called- reputation/opinion
*NY: character w/s may only testify about w/s’s bad REPUTATION for truthfulness
Evidence of SPECIFIC ACTS not allowed as cannot prove some other w/s’s bad character for truthfulness
Purpose: suggest testimony is false
Permissible types of conviction:
1 Conviction of ANY CRIME (felony or misdemeanour) as to which prosecution required to prove FALSE STATEMENT AS ELEMENT OF CRIME (truth telling crime)
2 If conviction didn’t require proof of false statement, it must be FELONY
Conviction/release from prison must be within 10 years of trial
Method of proof: ask w/s to admit prior conviction OR introduce record of conviction
1 GENERAL RULE: Any w/s may be impeached with a conviction for ANY TYPE OF CRIME w/o regard to how old conviction is and w/o balancing probative value v danger of unfair prejudice. AUTOMATIC ADMISSION
2 SPECIAL RULE (CRIMINAL Ds ONLY) when w/s is criminal D and testifies in own defense, court must conduct hearing to balance the PROBATIVE value of conviction (on issue of D’s credibility against unfair prejudice)
Factors that make conviction probative:
1 Seriousness (murder v possession)
2 Relation to trust and deception (theft v reckless driving)
Factors that make conviction unfairly prejudicial:
1 Similarity to currently charge offense
2 Inflammatory nature
In court’s discretion
INQUIRY ABOUT BAD ACTS (w/o conviction) IF THEY REFLECT ADVERSELY ON W/S’s CHARACTER FOR TRUTHFULNESS
W/S may be asked about prior “bad act” if it relates to DECEIT or DISHONESTY (doesn’t have to be a crime, lie enough)
CONFRONTATION on cross-examination only permissible procedure (not extrinsic evidence)
*NY: w/s may be asked about any prior bad act that is VICIOUS, CRIMINAL or IMMORAL even if doesn’t directly relate to truthfulness.
SPECIAL RULE (CRIMINAL DS ONLY) when w/s is crim D and testifies in own defense, court must conduct hearing to balance the PROBATIVE value of conviction (on issue of D’s credibility against unfair prejudice)
Factors that make conviction probative:
1 Seriousness (murder v possession)
2 Relation to trust and deception (theft v reckless driving)
Factors that make conviction unfairly prejudicial:
1 Similarity to currently charge offense
2 Inflammatory nature
In court’s discretion
If w/s denies prior bad act, you are stuck with it (collateral, distractive)
Cannot ask whether w/s was arrested
Cross-examiner, through w/s confrontation, may obtain admission that she made mistake/lied about any fact she testified to during direct examination. If w/s admits = impeached by contradiction. If sticks to story, issue whether extrinsic evidence may be introduced.
Extrinsic evidence NOT ALLOWED for purpose of contradiction if fact at issue is COLLATERAL
If contradictory fact significant, extrinsic evidence may be introduced
W/S may be rehabilitated after w/s’s credibility has been attacked through impeachment.
1 showing w/s GOOD CHARACTER FOR TRUTHFULNESS
Only when impeachment clearly suggests w/s was lying (not mistaken)
Bring out character w/s – reputation/opinion, NY reputation only
2 Prior CONSISTENT STATEMENT to rebut a charge of RECENT FABRICATION
Admissible if statement was made BEFORE MOTIVE TO FABRICATE AROSE (natural tendency to neutralise recent fabrication)
Prior consistent statement admissible to REHABILITATE CREDIBILITY and as SUBSTANTIVE EVIDENCE that prior statement was true (hearsay exclusion FEDERAL)
*NY: admissible ONLY TO REHABILITATE (neutralise charge of recent fabrication) NOT as substantive evidence.
Action pending in Federal court
Action arising under federal substantive law
Federal court action based on diversity jurisdiction where state substantive law applies to parties’ claims and defences the Fed court must apply PRIVILEGE LAW OF THE STATE whose substantive law is applicable.
Purpose: encourage client to speak openly to counsel.
Privilege applies to: confidential communications, b/w attorney & client, made during prof/legal consultation UNLESS privilege waived by client OR EXCEPTION applies
Confidentiality - Client must intend confidentiality
Privilege covers exchange of info b/w attorney and client
Physical evidence not covered by privilege (phone)
Client- includes person seeking to become client
Professional legal consultation- primary purpose is to obtain or render legal advice
Voluntary waiver- only client has power to waive privilege (continues after death)
Subject-matter waiver- voluntary waiver of privilege as to some communication will waive privilege to other communication if partial disclosure is intentional, the disclosed and undisclosed info concerns same subject matter and fairness requires that disclosed and undisclosed info be considered together.
Inadvertent Waiver- will not waive privilege so long as privilege holder took reasonable steps to prevent disclosure and takes reasonable steps to correct the error
Future crime/fraud, client puts legal advice in issue, attorney-client dispute
Created by state statute & rationale is to encourage open communication by patient & protect client privacy.
Multistate & NY rule: physician-client privilege applies to:
Confidential communication for purpose of diagnosis or treatment of a medical condition
Privilege lost if patient puts physical/mental condition in issue
MBE CRIMINAL cases ONLY: a spouse cannot be compelled to testify ANYTHING against D spouse.
Reason- protect harmony of existing marriage at time of trial.
W/s spouse, not D holds privilege but may voluntarily testify against D spouse if chooses.
NY- spousal immunity not recognised.
CONFIDENTIAL COMMUNICATION B/W SPOUSES
ANY type of case (federal and NY) spouse not required & NOT ALLOWED to disclose confidential communication made during marriage. Both spouses hold this privilege. Waiver- consent to disclosure.
Reason- encourage open communication during marriage.
EXCEPTIONS TO BOTH PRIVILEGES (Federal and NY)
Communication/acts in furtherance of jointly perpetrated future crime/fraud, destructive of family unit & no privilege in litigation b/w spouses in CIVIL LITIGATION.
Continues after marriage ends (check this)
Out of court statement of a person (oral/written, doesn’t apply to machines, animals) that is offered to prove the truth of the matter asserted
General Rule- hearsay is inadmissible unless EXCEPTION/EXCLUSION applies
Rationale: the credibility of declarant at the time the statement was made was not tested through cross-examination in presence of the current fact-finder. You cannot just take anybody’s word for it!
NOT offered to prove the truth of the matter asserted in the statement.
If offered for some other issue, credibility of the declarant irrelevant.
VERBAL ACTS (legally operative words)
Not used to prove truth of matter asserted- substantial law attaches- legal effects to words because were spoken (do not care if these words are true) i.e. contract “he promised to sell me a Mercedes- legally operative, don’t need to prove this, legal effect”.
TO SHOW EFFECT ON PERSON WHO HEARD OR READ THE STATEMENT
I.e. man robbed, somebody shouted “be careful”- shows effect on person who was robbed- not offered to prove the truth of the matter asserted= non-hearsay! .
CIRCUMSTANTIAL EVIDENCE OF SPEAKER’S STATE OF MIND
“I am Mike Tyson or Stewie from Family Guy”- shows the speaker is insane.
Not offered to prove the truth of the matter asserted= non-hearsay!
PRIOR STATEMENTS OF TRIAL WITNESS
Not hearsay if spoken in court
RULE: W/S’s OWN PRIOR STATEMENT if offered to prove the truth of the matter asserted in the statement is hearsay and is INADMISSIBLE unless EXCEPTION/EXCLUSION applies
-W/S prior statement of identification of a person (NY hearsay exception)
-W/S prior inconsistent statement if oral under oath and made during formal testimonial hearing (NY admissible only to impeach)
-W/S prior consistent statement if being used now to rebut charge of recent fabrication/ improper motive. (NY admissible to rehabilitate credibility only)
Any statement made by opposing party admissible if it is offered against opposing party
(NY hearsay exception) and MBE exclusion
Party should bear consequences of what they say
Adoptive admission- party expressly/impliedly adopts statement made by another person- as if though party made the statement herself. Adoption by silence- if reasonable person would have protested that statement was false.
Vicarious party admission- statement by agent/employee admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.
NY- have to have “SPEAKING AUTHORITY” (if you are stacking shelves, you can’t discuss financial affairs, you are employed to stack shelves and that is it!!)
Admissible against party who was a member of conspiracy if statement made during and in furtherance of the conspiracy.
(above we had non-hearsay purposes)
Statements that come in for their truth- justified by reliability factors or other good reasons to excuse inability to cross-examine declarant
CRIMINAL D’s RIGHT OF CONFRONTATION
Criminal D must be confronted with w/s against him. Confrontation is an opportunity to cross-examination by D. D’s liberty is at stake and so D must have opportunity to cross-examine
RULE- prosecution may not use hearsay statement against criminal D (even if falls within hearsay exception) if statement is testimonial and the declarant is unavailable and the D had no opportunity for cross-examination
MEANING OF TESTIMONIAL
Testimonial= grand jury trial, statements in response to police interrogation (if primary purpose of questioning is to establish or prove past events potentially relevant to a criminal prosecution.
Non-testimonial= primary purpose of questioning is non-testimonial to meet an ongoing emergency
Forensic Lab reports prepared with view towards use in trial are testimonial
Business records- non-testimonial
Police reports prepared for prosecutorial purposes are testimonial
Any type of hearsay statement is admissible against a D whose wrongdoing made w/s unavailable if court finds by preponderance of the evidence that D’s conduct was specifically designed to prevent w/s from testifying
Burden of proof: federal= preponderance of the evidence & NY= clear and convincing evidence
Former testimony of now unavailable w/s if given at former proceeding/deposition admissible against party who on prior occasion had an opportunity and motive to cross-examine or develop the testimony of w/s. Issue in both proceedings must be essentially the same.
Reliability assured by cross-examination on prior occasion- but we prefer live testimony so w/s has to be unavailable.
Grounds of unavailability: privilege, absence from jurisdiction (w/s cannot be found with due diligence or w/s beyond courts subpoena power), illness or death, lack of memory, stubborn refusal to testify
NY- 2 additional grounds of unavailability for former testimony hearsay exception in CIVIL CASES only: declarant located 100 miles or more from courthouse or declarant is a physician (public policy- continue working rather than testifying)
STATEMENTS AGAINST INTEREST
UNAVAILABLE declarant’s statement against her pecuniary (financial), proprietary (property), penal (criminal) interest
Not likely to lie if you say anything negative against these 3 types of interest
Compare with party admission- differences:
Must be against interest when made, any person can make statement against interest (doesn’t have to be party), personal knowledge required and declarant is unavailable
CRIMINAL CASES- statements against penal interest must be supported by circumstances showing trustworthiness of statement (corroboration)
Statement made under belief of impending and certain death by now-unavailable declarant concerning cause or surrounding circumstances of declarant’s death
Expectation of imminent death is a solemn occasion- why lie when you are dying?
Criminal cases: HOMICIDE ONLY!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
CIVIL cases: ANY J YAY!
NY- CRIMINAL HOMICIDE ONLY L
Statement concerning startling event and made while declarant still under stress of excitement caused by event.
Excitement suspends ones capacity to fabricate
Factors to consider if statement qualifies as excited utterance: exclamatory phrases, excitement words, exclamation point !!!!!!!!
PRESENT SENSE IMPRESSION
Description of an event made while the event is occurring or immediately thereafter
Declarant has no time to fabricate
NY- corroborating evidence of the happening of event described by declarant required
PRESENT STATE OF MIND
Contemporaneous statements concerning declarant’s present state of mind, feelings, emotions
Contemporaneous statements about matter as to which declarant has unique knowledge
DECLARATION OF INTENT
Statement of declarant’s intent to do something in the future including intent to engage in conduct with another person.
NY-statement of future intent offered to prove joint participation of another person requires corroborating evidence of a relationship b/w declarant and other person and the DECLARANT IS UNAVAILABLE
PRESENT PHYSICAL CONDITION
Statement made to anyone about declarant’s current physical condition.
NY- if statement of present physical condition made to layperson rather than medical professional the declarant must be unavailable
STATEMENT MADE FOR PURPOSE OF OBTAINING MEDICAL TREATMENT OR DIAGNOSIS
Statement made to anyone concerning declarant’s present symptoms, declarant’s past symptoms or general cause of condition
Doesn’t include statements in which declarant identifies tortfeasor or describes nature of alleged liability.
Records of a business of ANY type, made in 1 regular course of business, 2 business regularly keeps such records, 3 made at or about the time of the event recorded and 4 contents consist of information observed by employees of business OR a statement that falls within hearsay exception.
Theory- employees under business duty to make accurate and up to date records
Proving business records foundation: 1) call w/s to testify 5 elements of business records hearsay exception OR written certification under oath attesting to elements of business records
NY- certification permitted in 3 situations: 1) civil cases 2) any type of case, business records are of hospital OR 3) any type of case and business records are of state or local govt
Records of public office or agency setting forth: 1) activities of office or agency OR 2) matters observed pursuant to a duty imposed by law OR 3) findings of fact or opinion resulting from investigation authorised by law
Police reports prepared for prosecutorial purposes not admissible against D in criminal cases.
NY- public records exception not well developed so govt records are almost always introduced under business records exception
If hearsay included within another hearsay statement, evidence inadmissible unless each statement falls within hearsay exception.
Impeachment of hearsay declarants- any impeachment method may be used to attack credibility of hearsay declarant whose statement admitted into evidence.