Ny Bar Review - Evidence Lecture Notes

Evidence Bar Exam Lectures I. RELEVANCE Always start with relevance. Every other issue depends on this threshold issue. What’s the purpose of the evidence? Two Theories of admission under relevancy: 1. Logical Relevance or probativeness 2. Discretionary / Pragmatic / Policy based relevance A. Logical Relevance (Rule 401) – Applicable Law Everywhere a. Evidence is logically relevant, if it has any tendency to make a material fact, more probable or less probable than it would be without the evidence. i. TIP: we worry about logical relevancy when the evidence concerns some other time, event, or person (sometimes it might be too remote). B. Discretionary Relevance (Rule 403) – Applicable Law Everywhere a. Stricter standard. Evidence might be logically relevant, but still not admissible, because its probative value is substantially outweighed by one of the following: i. Danger of unfair prejudice ii. Confusion of the issues iii. Misleading the jury iv. Undue delay v. Waste of time vi. Cumulative Evidence b. TIP: Bar Exam Question – what’s missing from the list? i. Unfair Surprise – Sample Question – what’s the least unlikely ground to exclude evidence? Unfair Surprise. This is not a ground for exclusion of evidence under Rule 403. II. LOGICAL RELEVANCY a. There are eight situations where the evidence does concern some other time, event, or person, but is still relevant and admissible. 1. Complicated Issues of Causation (to prove cause and effect in complicated situations). 2. Prior Accidents or Claims (usually two parts) a. ∆ wants to show prior accidents or claims of Plaintiff i. Prior accidents or claims are not admissible, EXCEPT: 1. To prove common claim or scheme of fraud 2. If the prior claims or accidents are relevant to the issue of the

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a. I.e., if you are claiming injury to the same place as you had in the past. b. Plaintiff wants to show the same allegedly offending instrumentality i. Prior accidents involving the same instrumentality which occurred under the same or similar circumstances may be shown. ii. Reason: To show notice / knowledge and also to show that the instrumentality is dangerous. Where the Intent or state of mind of a person is an issue a. How do you show intent? By conduct. To rebut (and for examination purposes, to rebut the claim or defense of impossibility) a. Evidence of a prior event, person, or time may be admitted. I.e., Coca-Cola mouse example. Comparable sales to establish value a. At issue would be the value of your property / chattel. You may show what some other chattel sold for provided that: i. Other items where of the same general description ii. Sales took place in same general geographic area iii. Other sales took place at around the same time period. Habit Evidence a. Under Federal Rules habit evidence is admissible to infer that at the time of the litigated event, that person acted in conformity with his or her habit. i. How do you know is habit? (habit tends to overlap with these two other rules: 1. Disposition Evidence – the disposition of a person to i.e., be careful or careless is not admissible to show that the person was careful or careless at the time of the litigate events. 2. Prior Acts – Evidence that a person acted in a certain way once or twice on a prior occasion is generally not admissible to infer conduct on the occasion in question at the time of the litigated event. ii. Two key words which describe habit evidence: 2

1. Specificity—it must be specific / detailed conduct. 2. Recurrence – it is habitual / automatic. It has to occur often enough. How many times? This is discretionary depending on the circumstances. 3. Buzz Words – “always,” “instinctively,” automatically, invariably. NEW York Distinction: New York is less liberal about admitting habit evidence Rule: 1) Evidence of habit in a professional or business context is admissible in NY. I.e., attorney’s habit of exercising a will. 2) Exception: In NY, generally habit is not admissible to show that a party used care or file to use care in a negligence situation. 3) Exception to Exception: Habit Evidence will be admissible to show that plaintiff in products liability case misused or properly used a product. Rationale: In this area, the actor has more or less complete control of the use of the products. 7. Industrial or business routine – The normal routine of the entity (i.e., corporation) is admissible to show that at the time of the litigated event, this corporation acted in conformity with its business routine. (Same Rule in NY). 8. Industrial Custom as evidence of the standard of care- the custom of the business as a way to establish the standard of care. I.e., what do other parties in the business usually do? a. This is not conclusive evidence, but it will be admissible. III. DISCRETIONARY / PRAGMATIC / POLICY BASED RELEVANCE Three Rules i. Liability Insurance ii. Subsequent remedial measures iii. Settlements a. Liability Insurance a. Is not admissible to show negligence (i.e., any kind of fault) or the ability to pay a substantial judgment (nor would the absence be admissible to show otherwise). i. Two situations where admissible: 1. To prove ownership and control when ownership and control is disputed 2. where it is relevant to impeach the credibility of a witness by showing that the witness has a stake in the litigation (showing, interest, biased or motive) 3

3. TIP: Bar examiners will give you evidence that is not admissible for some purpose, but that can be used to impeach the credibility of a witness by showing a stake in the litigation. b. Subsequent remedial measures (repairs) – are not admissible to prove negligence or comparable conduct. i. Exceptions: 1. To prove ownership and control when it is disputed 2. To rebut or to impeach (to show the feasibility of a precautionary measures when feasibility is challenged). (to rebut a claim that precautions were impossible) a. Example: When ∆ says that there is no way to have avoided the accident / make product safer. Plaintiff could show that ∆ did make the product safer after the fact. 3. Under the federal rules, you cannot get evidence of subsequent remedial measures to show a defect in a product design or need for a warning (not admissible in strict liability). New York Distinction: In NY, it depends what kind of strict liability you are talking about. In design defect cases – not allowed In failure to warn cases – not allowed, However, in a manufacturing defect case, you can bring the evidence in, if the subsequent repair is relevant (to establish defectiveness of product when made). ii. Subsequent remedial measures by third parties - it would be admissible if it is relevant. c. Settlements i. Are not admissible to prove liability for, invalidity of, a claim that is disputed as to validity or amount. (In other words, not admissible as to any kind of fault or liability or damages). 1. an offer to compromise a claim that is disputed as to liability or damages is not admissible 2. An offer to plea guilty is not admissible 3. The withdrawal of a guilty plea is not admissible 4. An admission of fact/ liability/ damages which is made in the course of a compromise is not admissible. 5. Nolo contendere pleas are not admissible. ii. Limitations:

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1. There must be a claim (this does not mean that there has to be litigation). It cannot be too early / there must be a claim 2. there has to be a dispute s to liability and / or amount a. If you admit to full damages or liability then this would be admissible. 3. An offer to pay hospital or medical expenses is NOT admissible. However, an admission of fact as to damages or liability related to an offer to pay medical bills will be admissible. a. The offer itself is not admissible, but the admission would be. CHARACTER EVIDENCE a. Character evidence may be offered as substantive, rather than impeachment evidence to (1) prove character when it is the ultimate issue in the care or (2) serve as circumstantial evidence of how a person probably acted. b. The use of character as substantive evidence to prove a material fact in the litigation: i. Four preliminary questions / considerations upon which applicability depends: 1. For what purpose do you seek to introduce the character evidence- Possible Purposes: a. Character of party is one of the material issues in the case b. Character as circumstantial evidence to infer conduct at the time of litigated event c. Character to impeach credibility of a witness 2. What method can you use to prove character? a. Three possible ways: i. Specific acts of conduct ii. By opinion testimony (call a witness to give an opinion) iii. Reputation evidence (this is the common law traditional way) b. *The method used depends on the purpose. 3. What kind of case? a. Civil b. Criminal 4. Character for what trait? a. This is important because you cannot prove general character. It has to be specific - it has to be the character that is the substance of the case. c. CHARACTER IN CIVIL CASES 5

i. No character in civil cases. No character as circumstantial evidence to infer conduct in a civil case by either party. 1. Character is admissible if the character of a party is at issue in the case. 2. TIP: the only kind of question used has been the defamation action where truth is a defense. In this situation, character evidence will be admissible and you can prove it by using any of the methods. ii. SUMMARY: 1. If it is purpose # 2, not admissible by either party. 2. However, if it is purpose #1, you can prove it 3. and you can use any of the methods (reputation, opinion, specific acts) iii. TIP: don’t be too quick to assume that character is directly at issue (this is rare) V.

CHARACTER IN A CRIMINAL CASE a. Character directly at issue (rarely ever tested) b. Character as circumstantial evidence (very much tested!) i. May evidence of criminal propensity be allowed? 1. Basic Rule: no bad character evidence in any form at the initiative of the prosecution, unless, the defendant first tries to show good character as circumstantial evidence to infer conduct, (i.e., to infer innocence) 2. In a criminal case, the ∆ can use purpose # 2. The accused can take the initiative to show good character, and then and only then, can the prosecution act. 3. TIP: If the ∆ takes the stand, he may be impeached by the prosecution with his prior convictions. However, merely taking the stand and testifying about the facts of the case does not open the door. Taking the stand places the defendant’s credibility (not character) in issue. ii. How methods can the defendant use (to open the door)? 1. Common Law: Reputation evidence is the only way to prove character when offered to show conduct. 2. Under the Federal rules – you can aside from reputation, use opinion testimony. (Call a witness that would give his personal opinion concerning the trait of the ∆). 3. CANNOT USE SPECIFIC ACTS iii. How can the prosecution respond? 1. TWO POSSIBLE WAYS: a. The prosecution is entitled to cross-examine the accused’s own good character witness by inquiring as 6

to any specific acts which would tarnish the reputation of the accused or which would affect the opinion of the witness. i. I.e., the prosecution can inquire about arrests on the defendant’s record, to basically test the witnesses’ knowledge of the reputation. NEW YORK DISTINCTION: In NY, the questions in cross-exam have to be “have you heard,” NOT “do you know?” FEDERAL RULE: Under the federal rule, the prosecutor can ask both “have you heard, and Do you know questions – either form is okay. However, you must live with the answer of the witness! ii. The inquiry as to specific acts is limited to cross-examination, cannot prove it / must take answer of the witness (not extrinsic evidence) 2. The prosecutor is entitled to call his own bad reputation character witness IN NY – this “bad character” witness will be limited to Reputation (not specific acts). a. Under the federal rules, the witness can testify as to opinion or reputation IN NY – the introduction of prior convictions of the ∆ is allowed ONLY when they adversely affect the character trait in issue. c. VICTIM’S CHARACTER i. MS RULE: if the victim’s character is relevant to a defense of the accused, the ∆ is entitled to take the initiative to show the bad character of the victim. ii. TIP: usually more related to assault / murder cases iii. The ∆ can call a witness to testify about the victim’s reputation or opinion but NOT SPECIFIC ACTS. iv. The prosecution can rebut by either or both: 1. showing good character of the victim or / and 2. Attacking the character of the accused himself by reputation or opinion testimony. (By placing the victim’s character in issue, the ∆ also opens the door to his own character). NY DISTINCTION: NY does not allow the attack of the victim’s character in this situation. 3. RAPE SHIELD LAWS: in any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.

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4. MS + NY RULE: A specific act of conduct of the victim would be admissible to show the state of mind of the ∆, if it was communicated to the ∆ (acts of violence) SPECIFIC ACTS OF MISCONDUCT a. A prior act of misconduct will be admissible if it is not to show character AND is relevant apart from a showing of criminal disposition. 1. Exception: If the prior act of misconduct is being used to prove criminal disposition. b. Situations where a prosecutor can show a prior ct of misconduct: i. MOTIVE – prosecutor is entitled to show motive ii. INTENT – or the state of mind of the ∆ is at issue 1. You usually prove mental state by conduct. iii. INDENTITY 1. Modus Operandi – this is a crime that is distinctive and unusual i.e., ∆’s trademark or “signature” a. In order to fall into this category of modus operandi, the crime must be “distinctive and unusual” and then it will be admissible. iv. COMMON PLAN OR SCHEME Motive Intent Mistake (absence of) Identity Common scheme or plan 1. Two points about MIMIC: a. Applies only to prior acts, FRE 403 still applies (even if you have an act that shows of the 5 things, the judge can still exclude it) – IN MS – prejudice and unfairness will be very obvious. b. The MIMIC Rule also applies in civil cases. WRITINGS AND DOCUMENTARY EVIDENCE a. Favorite issue for evidence essay question b. AUTHENTICATION i. The fundamental general rule is that “a writing is not admissible until it has been authenticated. Have to show that the writing is genuine. ii. General rules: 1. Writings are not self-authenticating - need to establish a foundation before it is admitted. 2. You can authenticate a writing by direct evidence or circumstantial evidence iii. SIGNATURE 8

1. You can prove a signature by: a. Lay witness: any witness that is familiar with the signature. The person does not have to be too familiar. i. It can be a person that has seen the signature in the ordinary course of business. b. Expert Testimony: the expert will compare the disputed signature with a genuine specimen that everyone would agree is the signature of the person c. Jury Comparison: the jury itself can compare the signature in question with a genuine specimen. 2. What’s not permitted? a. A lay witness cannot make a comparison b. A lay witness cannot become familiar with the signature just for the purpose of litigation. iv. Circumstantial Evidence 1. Ancient Document Rule: an document may be authenticated by evidence that it: a. is at least 20 years old or more (federal Rule) i. 30 years or more (NY rule) b. is in such condition as to be free from suspicion as to authenticity; and c. Was found in a place where such writing would likely be kept. 2. Solicited Reply Doctrine – A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author. Writing comes in reply to a prior communication. Very strong circumstantial evidence. v. What quantum of proof is necessary? 1. there has to be a foundation laid for the evidence 2. It is for the jury to ultimately decide whether the document is genuine. All you have to do is introduce enough evidence that would allow a reasonable person to conclude the document is genuine. “Sufficient evidence to justify a jury finding.” 3. Self-Authenticated Writings (six kinds) – meaning extrinsic evidence of authenticity is not required for the following: a. Certified copies of public or business records (i.e., certify copy of a mortgage) b. Official publications – i.e., books or pamphlets – indicating on their face that they come from a public authority. c. Newspapers and periodicals 9

d. Trade inscriptions or labels – indicating ownership or control. i.e., can of green giant beans e. Acknowledge documents f. Commercial papers as provided by the UCC. vi. Photographs 1. In order to authenticate photograph – do you have to call the photographer? NO. All that is required is a witness that can look at the photograph and state that it is an accurate representation of the people or objects in it. a. In other words, all you need is a witness that is familiar with the things depicted in the picture. Just lay a “sufficient foundation.” c. THE BEST EVIDENCE RULE i. This is a narrow rule that applies ONLY to writings. Writings are liberally defined to include: film, x-rays, recordings, documents, photos. ii. The rule expresses a preference for the original document. iii. KEY: it requires that a party seeking to prove the contents of a writing must either produce the original document or satisfactorily account for its absence 1. In other words, if your excuse for not producing the original is a good one, then a copy or oral testimony is admissible. iv. When does the rule apply? 1. When the writing is a legally operative document – that is a writing which itself creates or destroys a legal relationship that’s at issue in the case. i.e., a will, a contract, a divorce decree. 2. Where the witness SOLE knowledge comes from a writing (in order words, where the witness knows about something because he or she read it somewhere). v. Analysis for writing: 1. Has the writing been authenticated? 2. If the writing is a copy, worry about the best evidence rule, has the absence of the original been properly explained? 3. Hearsay – are you trying to prove the truth of the writing? a. Applicable Hearsay exceptions to writings i. Admissions of a party ii. Recorded recollection / prior testimony iii. Business records b. Key: only applies when you are seeking to prove the context of a writing. vi. When does it not apply?

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1. When the fact to be proved is independent of the writing. (This is a situation where you want to prove some fact that’s in a writing; however, you have a witness on the stand with personal knowledge. a. I.e., you can prove death – without a death certificate, you can prove birth –without a birth certificate. b. Sample Q - I Spinal make payment? Witness takes the stand and says that she saw Spinal pay and get receipt. Answer: the best evidence rule has nothing to do with this situation, because witness has personal knowledge. 2. A legitimate exception: Collateral document exception: the best evidence rule does not apply to writings of minor importance to the litigation. vii. Modifications to the Best Evidence Rule (Situations where you can produce some other writing – not need the original) 1. Public Records- no need to produce original of public record. (Purpose: it is hard to get the original. The best you can get is a certified copy). 2. Voluminous documents – when the original documents are so voluminous that they cannot conveniently be examined in court, then the proponent may prove its contents by means of a summary, calculation or a chart. a. Two requirements: i. The voluminous originals must be admissible evidence ii. The voluminous originals must be equally available to your opponent, so that he or she may prepare his own summary, chart or calculation. viii. What’s an original? 1. Under the FRE, we have something called a duplicate, which is a counterpart produced by any technique that accurately reproduces the original and that would avoid casual errors. I.e., a fax, carbon copy. a. TIP: If you copied it by hand, this would be secondary evidence and is admissible only if the original or a duplicate is unavailable. 2. Duplicates are admissible, just like the originals unless: a. There is a genuine question raised about the authenticity of the original b. Or it would be unfair to admit the duplicate in place of the original. 11

3. TIP: On the exam, an objection based on the fact that it is a duplicate would lose, because a duplicate is acceptable – unless a or b are shown. NEW YORK DISTINCTION The Uniform photographic copies of business and public records as evidence act : NY does not recognize duplicates. However in the act, photographic copies are admissible as primary evidence, if the copies were made, kept, or recorded in the ordinary course of business, then the copies would be admissible just like the original. VIII. WITNESSES AND TESTIMONIAL EVIDENCE Here we are dealing with live witnesses. A. Competency of the Witness – the focus is on the person on the stand, not so much on the subject matter of the testimony. a. There are four basic requirements for capacity: i. Perception – the witness must have observed something ii. Memory – the witness must be able to remember iii. Communication – the witness must be able to relate what he or she saw iv. Sincerity - the witness must manifest some willingness to tell the truth. i.e., take the oath. b. These for requirements do not have to be met 100%, and the witness will still be found competent. c. The FRE boils it down to two limitations: i. Witness must have personal knowledge of the matter about which he is t testify; and ii. The witness must declare that he will testify truthfully. i.e., take the oath or affirm. d. DISQUALIFICATIONS: i. Infancy: no automatic disqualification. There is no age in the FRE for automatic disqualification of a child. If he child meet the 4 requirements he made testify (this is determined by the judge). ii. Insanity (judicially declared incompetent): An insane person my testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately. iii. Convicted criminals: no disqualifications (even if convicted of perjury 13 times). NY DISTINCTION – Child Witness 1) All testimony in a civil case must be sworn. All witnesses must take the oath (understand the nature of the oath). A child that is not sworn cannot testify for a civil case. 2) In a criminal case, a child under 12 years old or anyone who has a mental defect who does not understand the nature of the oath, can testify without being sworn, if 12

the person has sufficient intelligence to justify reception of the evidence. *However, this unsworn testimony cannot alone be the basis of a conviction. iv. All interest based disqualifications are gone, except: 1. The Dead man statute. There is no federal dead man statute. However, if you are in federal court, a state’s dead man statute can apply, if state substantive law applies. This means that the dead man statute will apply. NY is one of the states that does have a dead man statute. Rationale: Fear of perjury. 2. Definition – an interested survivor is incompetent to testify for his or her interest against the decedent or the decedent’s representative about communications or transactions with the decedent in a civil case unless there is a waiver. 3. TIP: Be suspicious on the exam, because most of the times, the dead man statute is not applicable. All the requirements must be met: a. The witness on the stand must have a direct stake on the outcome of the litigation b. Even if you have an interest, that witness must be testifying in favor of her interest c. The witness must be testifying against the decedent or the decedent’s representative. d. The interested survivor is only prevented to testify as to matters that the decedent could contradict if he was alive. e. The Dead man statute NEVER applies in a criminal case. f. Even if you have all the elements, there may still be a waiver. How do you waive it? i. If the testimony of the decedent gets to the jury by way of deposition, then the survivor can reply. g. TIP: look for all the elements; frequently they will not be there. h. TIP: Multi-state – when they give an answer choice of “dead man statute” do not assume that there is a dead man statute. This is not going to be the right answer, unless the question states that a dead man statute is in play. NY DISTINCTION – automobile exception to the dead man statute: 13

An interested survivor may testify about the facts of negligence or contributory negligence in an accident arising out of the operation of an automobile, airplane or vessel, (i.e., defendant in a wrongful death action may testify that the decedent, not the defendant, was driving at the time of the accident) but cannot testify as to communications about them. B. FORM a. This is a matter of judicial discretion. b. Basic rationale: the witness not the lawyer must testify. There must be interrogatory, not a narrative by the witness. C. Kinds of Questions a. Not leading questions. A leading question is one that suggests the answer to the witness in the body of the question. b. Leading questions are improper on direct examination, but they are used in cross-examination or in situations where necessity or convenience requires you to do it. i. Where can you lead? 1. Cross examination 2. On direct, you may lead as to preliminary / non-crucial matters. 3. When you are having trouble eliciting the testimony because the witness is: a. A child b. Disabled 4. when you are examining someone under the control of the adverse party or a genuinely hostile witness ii. Misleading/compound/argumentative questions all have the same defect – it is the kind of question which assumes as true, something that is still in dispute. D. WHEN CAN A WITNESS USE A WRITING IN AID OF ORAL TESTIMONY (popular area for essay questions / at least one multi-state question)? a. Usually, this arises in a situation where you put some professional (doctor, police officer) on the stand to testify and they want to refer to their notes. i. Basic Rule: witnesses are not supposed to read in court. Witnesses are supposed to testify from personal recollection. ii. Two situations where the witness can use a writing: 1. refreshing recollection (in NY called: present recollection revived) a. Use a writing only to jog the memory of the witness so that she may testify from her

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independent memory. Thus, you can use any writing to try to jog the memory of the witness. b. The writing does not need to abide by the rules. c. Key: the witness must say “I can’t remember, I can’t recall” d. Rule: anything you use to refresh the memory of the witness, opposing counsel is entitled to see and use in his cross-examination of the witness and opposing counsel is entitled to put into evidence any writing that the attorney uses to refresh the recollection. i. Purpose: To avoid attorneys handing the witness the answers. 2. Recording recollection (in NY- past recollection recorded) a. The writing has to come into evidence as a substitute to the independent memory of the witness. b. Need to lay the proper foundation: i. You must show that the witness at one time had personal knowledge ii. The statement must have been made by the witness or under the supervision of the witness or adopted by the witness at the time of its making. (Basically, it must be the witness’ own statement. iii. The statement must have been timely made (made when the matter was fresh in the mind of the witness). iv. Most establish that the document is reliable v. The witness must be unable to remember all or part of the details of the transaction or incident. c. How does the writing come into evidence? i. By being red to the jury. The jury does not get to see the exhibit. To avoid emphasis to the recorded testimony. NEW YORK DISTINCTION: the testimony will be allowed to be handled by the jury. ii. Recorded recollection is an exception to the hearsay rule. E. OPINION TESTIMONY a. Lay opinion i. Lay opinion is admissible if:

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1. The opinion is rationally based on the perception of the witness (meaning, the witness has personal knowledge), AND 2. helpful to the trier of fact b. Expert Witness (powerful tool to litigation) i. 4 basic requirements for expert testimony: 1. The subject matter must be appropriate for expert testimony. a. KEY: assistance / helpful to the trier of fact i. The methodology underlying the opinion must be reliable ii. The opinion must be relevant; it must “fit” the facts of the case. b. The proponent must establish these requirements as a condition to admissibility by a preponderance of the evidence. The proponent has to convince the judge by preponderance of the evidence. NY DISTINCTION: (General acceptance standard) In NY, if the expertise involves novel scientific evidence, then it will be admissible ONLY if the methodology is generally accepted in the appropriate scientific community. 2. The witness must be qualified as an expert. The witness can be qualified based on experience; it does not have to be education necessarily. 3. The expert must possess reasonable certainty or probability regarding his opinion. (The opinion must be elicited in form that informs the judge that this is more than just mere guess work. It has to be something more than mere probability). 4. The opinion must be supported by a proper factual basis. The facts must be a proper basis. a. Three possible basis: i. Facts within the personal knowledge of the expert. i.e., treating doctor of the victim. ii. Facts which are supplied to the expert in court by the evidence usually through the hypothetical question. All the facts in the hypothetical are the facts in evidence at the trial. iii. IN NY AND MS – the expert may base an opinion in facts that are not in evidence, not of personal knowledge and inadmissible as long as the facts underlying the opinion are of a type that experts in the field will 16

reasonably rely in making an outside decision. (Reliability as established by the profession). F. Authoritative Texts and Treatises a. Under the FRE and NY – you can use the content of a publication to impeach the expert witness. (Purpose: to show varying opinions among experts). i. The expert must testify first and you need to lay a foundation 1. If your opponent’s expert actually relies / mentions the publication during his direct, then you can read from the treatise into evidence. 2. You can elicit an admission in cross-examination of the opponent’s expert – i.e., ask the doctor about the treatise 3. You may call your own expert witness and he can testify to the treatise and then you can read from it. 4. Judicial notice – if the work is very well known, then you can ask the judge to take judicial notice. b. The FRE take it one step further (multi-state) i. Under the federal rules, you do not have to wait until the other side puts in an expert, you can put your own expert to give an opinion, and then you can read from the treatise and it will come in for its truth. ii. Hearsay- there is an exception to the hearsay rule. The FRE says that if you can establish that it is a learned treatise – then you can put it in. Two Limitations: 1. there must be an expert on the stand (either your own or the other side) 2. The text or treatise ONLY comes into evidence by being read to the jury. The jury is not allowed to inspect the text IX.

CREDIBILITY AND IMPEACHMENT a. If You want to impeach a witness, you can do it in one of two ways: i. During cross-examination or ii. By extrinsic evidence (which means other means i.e., documents / witnesses) b. Cross Examination for Impeachment: i. Three things to remember: 1. Some opportunity to cross any witness who testifies live is an absolute right (however, the extent of cross is discretionary). 2. The scope of cross is limited to the scope of the direct examination. (You may cross about any issues that were treated either implicitly or implied during the direct examination of the witness). 17

a. If you would like to cross about other issues – you would have to call the witness yourself. 3. COLLATERAL MATTERS DOCTRINE – (impeachment by contradiction) – this is a rule that states that you are bound by the answers that you get from a witness in cross as to collateral matters. (No extrinsic evidence allowed). a. No extrinsic evidence is allowed to contradict a witness as to a collateral matter. i. What’s a collateral matter? It is a matter which is relevant ONLY because of the contradiction. It is not relevant to any other issues in the case, but only to contradict the witness. ii. Purpose of the rule: Interest in efficiency. c. CREDIBILITY AND IMPEACHMENT i. When and in what ways can you call a witness a liar? 1. Narrow issue: It is like a trial within the trial. The only issue being credibility of the witness. ii. Can you bolster the credibility of your witness before his or her credibility has been properly attacked? NO, there has to be an attack to credibility first. BAD MUST COME BEFORE GOOD. iii. Prior Consistent Statements iv. Prior Identifications by the victim New York Distinction Prior Identifications by the victim are allowed in NY. Hearsay-- Not it is excluded from the hearsay rule. IN NY a third party witness cannot testify normally to a prior ID made by the witness (victim) unless the victim himself is unable to make the in court Identification because of a failure of recollection. v. Both NY and MS – a witness may testify as to his own prior consistent ID. vi. In Both NY and MS – third parties are allowed to testify if victim cannot remember. (Being afraid of reprisal is not enough) vii. Unavailable witness – It must be made by the victim, the person who made the ID must be in the courtroom and available for cross (protecting defendant’s right of confrontation). d. Impeaching your own witness i. Under federal rule: yes, free impeachment. The credibility of a witness may be attached by any part. In NY, you may not impeach your own witness, except: By a prior written signed inconsistent statement or a statement that was given under oath. You can use it only in a criminal case by the prosecution, if the witness gives affirmatively harmful testimony. 18

ii. If the witness says “I don’t remember or I don’t know anything about the case,” this is not good enough for impeachment. X. Five Traditional Impeachment Techniques a. Prior inconsistent statement b. Showing of interest / biased or motive to misrepresent c. Prior Convictions of crimes d. Bad act impeachment (specific acts usually of deceit or lies, which may be inquired) e. Bad reputation for truth and veracity. Note: obviously, you can also impeach by showing the witness’ inability to see/hear. A. Prior Inconsistent Statement (most commonly examined) a. A witness may be impeached by showing that the witness at some prior time made a statement different form and inconsistent with the material portion of the witness’ testimony in court. i. The prior inconsistent statement is not affirmative evidence and will not come in for its truth. ii. A party cannot use the prior inconsistent statement to meet burdens of production or persuasion. b. Except: Only Federal rules / Not NY i. In federal rules, a prior inconsistent statement that was given under oath and as part of a prior trial, hearing, proceeding, or deposition; this kind of statement comes in not only to impeach, but also for its TRUTH. ii. The prior inconsistent statement from the hearsay rule. iii. You can use extrinsic evidence to prove that the witness made the statement. You can use oral testimony or a written document c. Do you need to lay a foundation? In NY, you must first ask the witness about the statement, if he denies it, you can bring in the evidence. d. Federal Rule: the witness must have the opportunity to explain or deny the statement. However, there is no time requirement, as long as the target witness is still available to explain or deny the statement. e. Important Q i. P sues D for an automobile accident. P alleges D was speeding. D takes the stand and says he was not speeding. P calls witnesses to show otherwise. The inconsistent statement made by P. 1. A prior inconsistent statement by a party is fully admissible for its truth an you do not need to lay any foundation for it. As an admission by a party. (It comes in as an admission, not need to think about impeachment). f. Exam TIP: 19

i. First question regarding an inconsistent statement: 1. Who made it? If made by a party, when it is 99% of the time admissible as an admission by a party. 2. Showing of interest / biased / motive to represent (any fact showing an interest is enough to show the potential for exaggeration). a. You can prove it by extrinsic evidence, b. After, you lay a foundation c. After you give the witness an opportunity to admit /deny the fact. B. PRIOR CONVICTION OF CRIME a. Just about every jurisdiction would allow for some type of crime to impeach credibility. i. What kind of crime? 1. Federal Rule a. Any crime involving deceit or false statement can be used to impeach. (It is usable to impeach any witness; even the defendant) i.e., larceny by trick, fraud, perjury. The crime has to have an element of fraud. (In this situation, FRE 403 does not apply). b. A felony (not involving deceit or false statement) can be use to impeach but there is discretion. Cannot use misdemeanors. c. What kind of discretion? Depends on the witness. i. Regular witnesses – rule 403 discretion ii. Accused – the prior conviction will be admissible if the probative values outweighs prejudice. d. Whatever type of conviction should not be too remote. i. What’s two remote? 10 years is the general guideline. ii. IF more than 10 years from the date of release from confinement - not allowed. This includes crimes from deceit. NY DISTINCTION You can use any crime to impeach credibility of a witness, but: The trial judge always has the discretion to review it (and this discretion s pretty close to unreviewable). Great discretion. (Usually tested more in the area of ∆ taking the stand). NY discretion standard: prior convictions are admissible unless prejudice far outweighs probative value of the prior conviction on the issue of credibility. Sandoval: In addition, the ∆ is entitled to prior notice, as to whether prior convictions will be used against him. The ∆ can make a Sandoval motion, asking the judge in advance of trial, to 20

exclude prior convictions, in case the ∆ takes the stand. Options for the Trial Judge: 1) Allow the convictions to come in – allow the prosecution just to name them. 2) Allow the prosecution to go into the details of the prior convictions 3) Or Compromise: the judge can let the prosecutor say that there were felony convictions, but not name the crimes or go into the details of the crimes. The trial judge’s discretion in this area is pretty much absolute. b. SPECIFIC ACTS / “BAD ACTS IMPEACHMENT” i. Usually specific acts of deceit or lies which did not result in conviction are allowed. 1. How do you do it? In cross, you ask the witness “did you do it? I.e., did you lie on your application for life insurance in 1998? a. You have to have good faith. Must have a reasonable basis for believing tat the act was done by the witness. b. Multi-state- the act must concern lying or deceit. IN NY – the specific act need not be one of deceit or false statement. You can inquire as to any immoral, vicious or criminal act which may affect the character of the witness and shows the witness is not worthy of belief. In NY – you can ask “did you sell heroin to school children?” ii. In NY and MS – no extrinsic evidence is allowed; you are limited to inquiry under cross-examination. Must take the answer of the witness. c. BAD REPUTATION FOR TRUTH AND VERACITY i. You can use extrinsic evidence. You must call a representative of the community to testify, only as to truth and veracity. ii. Under the Federal rules, the witness can also give its opinion. NY Distinction Reputation or opinion may be used, but the opinion must be based on the reputation of the witness. “In my opinion, on the basis of his reputation, I think . . .” 1. The opinion can be based on personal knowledge. C. REHABILITATION a. How can you rehabilitate a witness? i. Good reputation for truth and veracity – can use it only when there has been a direct character attack on your witness (3, 4, 5 types of impeachment) 1. Under impeachment techniques 1 or 2, you cannot rehabilitate by bringing in a witness for good character. ii. Prior consistent statement 1. You DO NOT rehabilitate a charge of prior inconsistent statement with a prior consistent statement. 2. When can you use it? 21

a. A prior consistent statement may be used to rebut a charge of recent fabrication or improper influence or motive. i. Before you can put in the consistent statement, you need the other side to cross you witness and bring up the charge of recent fabrication, etc. ii. The prior consistent statement would be admissible for its truth, would not be hearsay. b. A prior consistent statement can come in even if it is not under oath or given in the course of a proceeding. IN NY – the prior consistent statement comes in to rehabilitate, however, it is not clear as to if it comes in for its truth. XI. I.

PRIVILEGES Attorney-client privilege a. Confidential communications between attorney and client made during professional legal consultation are privilege for disclosure unless, waived by the client or the representative of the decedent’s estate. i. This privilege survives the death of the client ii. No privilege for a statement shouted in a crowded place iii. No privilege for evidence, i.e., a gun iv. Pre-existing documents / objects are not privileged v. There must be intent on the part of the client to establish a professional legal relationship. Whether it is successful or not. vi. However, retainer negotiations are covered. Key: Predominately legal advice must be sought. b. Exceptions: Three situations that will destroy any privilege: i. The future crimes or fraud – no professional privilege will be allowed to further any crime or fraud ii. At issue – (regarding a communication relevant to an issue between parties claiming through the same deceased client; and iii. For a communication relevant to an issue of breach of duty in a dispute between the attorney and clients c. Exception applicable to attorneys only: i. Joint Client exception – if two or more parties communicate together with a lawyer about a matter of common interest, no privilege between or among those in the group. Privilege will exist only as to other third parties, not involved in the litigation at issue. NY Exception to attorney –client privilege – information of preparation, execution and revocation of any will or relevant document in actions involving probate, validity or construction of will – this kind of information is not privilege Purpose: carry out testator’s intent.

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II.

Doctor/ psychiatrist – patient privilege a. The patient has a privilege against the disclosure of confidential information acquired by the physician in a professional relationship entered into for the purpose of obtaining treatment. b. This includes psychiatrist –patient relationships. c. TIP: when raised in exam – it almost NEVER applies. Why? i. The patient must be seeking treatment 1. If it is a non-treating physician no privilege. A doctor examining for purposes of litigation – no privilege. No privilege for a court ordered exam. ii. Patient litigation exception: 1. It does not apply in situations where the patient sues or defends by putting mental or physical condition at issue. Does not apply to personal injury cases.

III.

Spousal Privilege a. Spousal Immunity: i. Protects the spouse from being forced to testify at all in a criminal case. ii. This is only for the Multi-state; it does not apply in NY. iii. One spouse cannot be forced to give adverse testimony against the other in a criminal case. iv. Rationale: protect the stability of existing marriages. v. Requirements for the privilege: 1. There must be a valid marriage at the time of trial. a. Keep in mind; it makes no difference that the testimony sought is as to pre-marital facts. b. The spousal immunity privilege belongs to the witness spouse, not the defendant. 2. It bars all testimony; the spouse cannot be compelled to take the stand at all. 3. If the witness spouse wants to testify against his / her spouse, then he/she can because the witness holds the privilege. 4. Only applies in Criminal cases. b. Confidential marital communications Privilege i. Protects only against confidential communications made during the marriage. This applies in all cases / civil and criminal. ii. Statement of privilege: A husband or a wife shall not be required or without the consent of the other shall not be allowed to disclose a confidential communication made by one to the other during the marriage.

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1. Rationale: Traditional view: society wants to encourage open communications between spouses, to strengthen the marital unit. 2. Modern rationale: Zone of privacy. iii. Requirements for privilege: 1. For this privilege, the witness must have been married at the time of the protected communication, not necessarily at the time of trial. a. Covers communications that occur during the marriage. It outlasts the marriage. 2. Applies only to confidences not all testimony. a. Spouse must take the stand and testify, but can decline only when the communication comes into play – can assert the privilege. 3. Both spouses hold the privilege. Basically the ∆ spouse can keep the witness spouse from testifying. 4. Both spouses would need to waive the privilege to destroy it. iv. Neither privilege will apply in an intra-family injury case. I.e., one spouse is accused of assault of a child / spouse, incest, etc. X.

RECURRING ISSUES ON THE BAR EXAM a. Application of state law in federal court i. There are three (3) areas of evidence, where if you are in federal court and state substantive law applies, then the state evidence law would apply: 1. Burdens of proof and presumptions 2. Rules regarding the competency of witnesses 3. Privileges ii. If it is a typical diversity case, (were you are only in federal court because the parties are from different states) state law applies. iii. HOWEVER, IF IT IS A SUIT UNDER FEDERAL SUBSTANTIVE LAW, THEN FEDERAL LAW APPLIES. iv. For privileges, you apply federal common law.

XI.

HEARSAY a. Two parts: i. Definition 1. It is an out of court statement which is offered for the purpose of establishing the truth of the context of the statement. 2. Is it hearsay? a. Is it an out of court statement? b. What precisely is the out of court statement? 24

c. Look at the statement and ask, “Is it being offered for the purpose of establishing the truth of the statement? d. Or, is it a writing? It does not matter if it is a witness who wants to report what the ∆ said, or a writing showing what the declarant wrote. 3. Typical actors: a. Declarant – person that makes the statement b. Witness – want to report what the declarant said earlier. 4. There are some situations where a literal application of the hearsay rule, would take you to the wrong conclusion. Keep in mind the rationale. Why do we exclude hearsay? Because Hearsay denies the opponent, the opportunity to crossexamine the one whose memory, perception and sincerity we are really concerned about (the declarant). b. Exceptions and Exclusions – if it is hearsay, what are the exceptions? i. Statements that are not hearsay 1. Verbal Acts or Legally operative facts – words which have legal effect. This is a classic situation where the law gives legal significance to certain words. In these situations all we are concerned with is whether the declarant actually said the words. Anyone can testify to having heard the words. a. I.e., witness wants to testify to hearing Declarant say “I accept your offer.” Words of acceptance to prove an oral contract are not hearsay. b. Words of defamation c. Words of conspiracy / Bribery d. Words of cancellation (i.e., canceling life insurance) e. Words of misrepresentation (in a misrepresentation action) 2. Out of court statements, not offered for its truth, but offered to show effect on the person who heard it or read it. I.e., to show the intent to kill from an anonymous note. 3. An out of court statement that is offered as circumstantial evidence of the relevant state of mind of the declarant. a. It is offered only to show what’s going on in the mind of the declarant. ii. What if the witness and the declarant are the same person? It would still be hearsay, and it is not admissible unless, one of the exceptions applies. It would not be a party admission because it is not offered against the party. 25

c. There are three exclusions to the hearsay rule. These witness’ statements are not hearsay. i. Prior inconsistent statements – given under oath at a prior proceeding. ii. Prior consistent statements – offered t rebut a charge of recent fabrication iii. A prior statement of identification made by a witness is admissible for its truth. d. Exceptions to the Hearsay Rule: i. Why exceptions? Because there are situations that carry a higher bar of reliability. 1. Admissions of a party a. It is a declaration of a party offered against the party. In order to be relevant, usually the declaration would be inconsistent with the present position at the time of the trial. b. Key: at the time of trial. Personal knowledge is not required. c. An admission in the form of a legal conclusion is admissible. I.e., I was grossly negligent in hitting you” d. The Declarant is estopped from complaining because it is his own statement. (He can’t cross-examine himself). This is admissible non-hearsay. In NY, this is an exception to the hearsay rule. e. Vicarious Admission: Does the post accident statement of the employee come in against the employer? In NY (traditional rule) - it depends on agency. Was this employee authorized to speak for the employer? If the employee is the president of the company? Maybe. The public relations representative? Yes. i. Federal Rule: a statement made by an employee concerning a matter within the scope of employment is admissible against the employer if made while the person was still employed (while the employment relationship still exists). 2. Former Testimony a. The special reliability of this evidence is obvious. There are always two proceedings. In the first proceeding, the witness testified live. In the second the person is unavailable- admissible, yes if two requirements are met:

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i. Meaningful opportunity to cross-examine or develop the testimony in the first proceeding when the witness testified live. 1. the issue has to be the same 2. the former testimony will be admissible against someone who was a party in the first proceeding with the opportunity to cross examine 3. Or, if it is a civil case, at least the testimony is being offered against someone who was in privity (i.e., a predecessor in interest). 4. Key: against whom is the transcript being offered? It has to be against a party who had the opportunity to crossexamine in the first action where the witness testified live. ii. Unavailability is required 1. What’s unavailability? a. Absence form the jurisdiction b. Death c. Physical / mental absence. 2. Key: under Federal Rule – a witness can on the stand and refuse to answer. The witness will be considered unavailable. Failure to remember is unavailability. 3. Statement against interest a. Rationale: a person does not usually make a statement against interest if it is not true. b. The statement of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest (the kind of statement that would expose to criminal liability) or the kind f statement that would defeat a civil claim or incur liability at the time it was made. i. The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against her interest when she made it. c. MULTI-STATE LIMITATION: a statement against penal interest which is offered to exculpate is not admissible unless there is corroboration (i.e., corroborating circumstances – we nee to have some 27

connection) of the truthfulness of the statement (third party confessions) d. Do not confuse with the admission of a party – Differences: i. The statement against interest must be against interest at the time that it was made ii. The statement against interest can be made by anyone (does not have to be a party) iii. Personal knowledge is required iv. An admission by a party who is usually there (for admissions against interest, declarant must be unavailable). 4. Dying declarations a. A statement made in contemplation of death. b. Four important points: i. State of mind – the declarant must be aware of the death. There must be an expectation of death. In NY this is a very strict requirement. 1. TIP: in a question, must get the state of mind – in the fact pattern look for the words of the declarant. ii. The declarant does not have to die, just think that he is going to die, as long as the declarant is unavailable at the time of trial (unavailable under any of the situations). IN NY, the person must die. In NY and under the traditional law – a dying declaration is only admitted in a homicide case. iii. Federal Rule: the dying declaration is a homicide case (no other type of case) only or in any civil case iv. The subject matter of the declaration is important. The dying declaration must concern the cause or the circumstances of the impending death. 5. Group of Exceptions: a. Declaration of existing state of mind when state of mind is at issue i. I.e., issue: did spinal act with malice? Witness could testify to spinal saying “I feel malicious today.” 28

b. Present intent to do something in the future i. This is admissible to infer that the intended act was in fact done. E.g., person is allowed to testify that another is i.e., contemplating suicide. c. Excited utterance i. There must be an startling event ii. The statement must be made under the stress of the excitement of the startling event iii. The statement concerns the facts of the startling event iv. QTIP: on the exam – there has to be a startling event. 1. What’s the startling event? 2. There can be a time lapse between the startling event and the statement, as long as the person is still under the effect of the event. 3. However, has the excitement worn off? 4. What was going on during the time lapse? 5. KEY words: “my god,” “good heavens,” the declarant “exclaimed,” screamed, NOT volunteered, discussed. d. Present sense impression i. The declarant is describing something at about the very moment that it is happening. NY – popular on the essays Frequently it involves the use of a cell phone. i.e., the person is describing a robbery on a cell phone as it happens. The person hangs up before saying their name. The present sense impression would be admissible as long as there is corroboration. I.e., the cops find the robbery in progress. However, if the person agrees to testify – you can bring in the tape. The prior consistent statement is admissible because it s a present sense impression. e. Declaration of present physical condition i. A declaration of a then existing physical condition is admissible. You are saying something that you feel as it happened. f. Declaration of past physical condition i. Condition is admissible if made for purposes of diagnosis or treatment. Under the federal rules, declarations of past physical condition made to 29

doctor employed to testify are admissible (Even if the diagnosis is made solely for the purpose of giving testimony).s 6. Business Records a. Two fundamental matters: i. What’s the rationale? Why is a business record more reliable? 1. Because employers are bound to follow rules or get fired. They have more of an incentive to record accurately. ii. What’s the function of the business record? 1. It allows the record to substitute what the employee live would testify to. 2. Problems? Does the rule apply? The answer depends on whether the entry on the record is germane to the business. 3. However, if the entry is germane to the business but, the information came from an outsider – that is someone else observed something and reported it to the company. (This would be double hearsay). a. Double Hearsay: i. First level –the record ii. Second level – the context because it was not made by an employee who kept the record. In NY, a police report can be a business record. 4. TIP: if the live person cannot testify, the record cannot be admitted either. 7. Sample Q – Civil Case. P wants to introduce a police report. There are three entries in the police report. Take the police report entry by entry. a. Observations by the police officer – would qualify as a business record. b. Statement of the witness (not coming in) i. Is it germane? Yes ii. Would the PO be allowed to testify as to what the victim said? NO –this is hearsay. (Double hearsay problem). c. Statement of the driver 30

i. Is it germane? Yes ii. Would the police be allowed to testify to “I ran the red light?” yes, you have an admission by a party. 1. Here we have two exceptions – one to meet each level of hearsay. XII.

OTHER RECURRING QUESTIONS IN MULTI-STATE a. Preliminary questions of fact upon which admissibility depends i. Dying declarations are admissible as long at the declarant thought he was going to die. Who decides this factual question? Judge or Jury. The judge decides the preliminary fact questions. The judge is not bound by the rules of evidence; the judge can rely on hearsay to decide the question. ii. Piece of hearsay comes in and it fits under one of the exceptions 1. You are now allowed to impeach the hearsay declarant as if he was giving live testimony. You can use any of the techniques of impeachment. Key: usually involves a prior inconsistent statement. ii. Hearsay and writings 1. V is found dead in the office – on his hand is his Dictaphone; apparently he was recording some business things. On the take you heard v talking to the defendant saying –“oh it’s you Spinal – come in” and then gunshot. Detective who heard tape wants to testify. a. This would be inadmissible unless the absence of the record is explained. 2. QTIP -This is a best evidence rule question combined with hearsay. The pattern usually resolves one of the issues, but they save one and not the other.

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