Evidence w/NY Distinction

EVIDENCE

STEPS
-relevant?
-proper foundation?
-proper form?
-excludable?

ID PURPOSE
/party is presenting evidence for the purpose of/
-ex: as proof of a material fact more or less likely, to show bias and impeach

RELEVANT EVIDENCE (evidence having any tendency to make material fact more/less probable)

JUDICIAL NOTICE (recognition of a fact as true without formal presentation of evidence)

DOCUMENTARY EVIDENCE (all writings have potential authentication, best evidence, and hearsay problems

TESTIMONIAL EVIDENCE
(competency, form, opinion credibility, priviliges)

HEARSAY

LIMITING INSTRUCTION:
-where ev is admissible for one purpose but not another
--ex:

RELEVANCE

RULE/EXCEPTION

POLICY BASED EXCLUSION
-1. Liability Insurance
-2. SRM
-3. Settlement in Civ Case
-4. Offer to Pay Medical
-5. Plea/Plea Discussion in
Crim Case

BAN ON CHARACTER EV
/reference to a party's pre-
dispositions/

RELEVANCE

more/less likely

RULE/
more or less likely/
EXCEPTION/
prob outweighs prej/

RELEVANCE

policy-based exclusions

POLICY BASED EXCLUSION
-1. Liability Insurance
-2. SRM
-3. Settlement in Civ Case
-4. Offer to Pay Medical
-5. Plea/Plea Discussion in
Crim Case

RELEVANCE

policy based exclusion 1

LIABILITY INSURANCE;
rule/exception

RULE/
ban on evidence of a party's status re: liability insurance/

EXCEPTION/
another relevant purpose, e.g., proof of ownership or control, if controverted; impeachment of a witness.

RELEVANCE

policy based exclusion 2

SRM;
-admissible to show
-inadmissable to show

*NY distinction

DEF/repairs, design changes, or policy changes taken after an accident that could have prevent the accident

ADMISSIBLE TO SHOW:
/negligence,/ /culpable conduct/ /product defect/ /need for a warning/

ADMISSIBLE TO SHOW:
/proof of ownership or control/ /feasibility of safer condition where controverted/

NY DISTINCTION
/srm is permissible for SL manufacturing defect suit/

RELEVANCE

policy based exclusion 3

SETTLEMENTS IN CIVIL CASES;
-inadmissible to show
-admissible for imponb

INADMISSIBLE TO SHOW LIAB/
/where a claim is in dispute at: /settlement; offer to settle; statement made in settlement discussion/

ADMISSIBLE TO IMP ON BIAS

RELEVANCE

policy based exclusion 4

OFFERS TO PAY MEDICAL
-inadmissible
-strict construction

RULE
/evidence that a party has paid or offered to pay an accident victim's hospital or medical.../

STRICT CONSTRUCTION:
-other statements made in connection w/prohibited language are not covered

RELEVANCE

policy based exclusion 5

PLEAS (CR/CIV)
-rule
-withdrawn guilty pleas (*NY)
-non-withdrawn guilty pleas

RULE: offers to plead guilty, withdrawn pleas, pleas of nolo contendre, and statements of fact made at any of these, are inadmissible evidence in pending crim lit and subsequent civ lit

WITHDRAWN GUILTY PLEA:
-*NY: admissible for civil; inadmissible for subseq crim

NON-WITHDRAWN GUILTY PLEAS
-admissible against D in subsequent litigation based on the same facts

CHARACTER EVIDENCE
-persons general predispositions

propensity ev, veracity ev, non-propensity ev, trait is element

DEFINITION

INADMISSIBLE TO SHOW

ADMISSIBLE TO SHOW

CRIMINAL CASES

CIVIL CASES

NON-CHARACTER PURPOSES

CHARACTER EVIDENCE;

RULE

RULE/
character evidence is inadmissible to prove Propensity, i.e., a person has a particular character trait and acted in conformity with that trait on the particular occasion in question;
Admissible for other purposes

CHARACTER EVIDENCE

exceptions

-d's good character
-self-defense case
-sexual misconduct
-civil where it is an essential element
-once a rapist always a rapise
-MIMIC exceptions

CHARACTER EVIDENCE

criminal case exception

D's GOOD CHARACTER
-rule
-rebuttal
-form: fedro/nyr/nsa

RULE/
d can present ev of his own good character which opens the door to P's rebuttal/

REBUTTAL/
can rebut by calling own witness, cross d's witness on specific act/

-*NY cross D's witnesses on knowledge of D's previous crim convic

FORM:
-fed RO
-ny R
-nsa (except on p's cross in rebuttal)

CHARACTER EVIDENCE

criminal case exception;
d's good character

SPEC ACT Q IN P REBUTTAL
-rule
-form
*NY Distinction

ALLOWED
/for the purpose of testing witness' knowledge re: the pl to the relevant issue/
-Good Faith Requirement

FORM
-opinion witness: did you know
-rep witness: have you heard

*NY
-P may prove D's prior conviction reflecting adversely on character trait D opened door to

CHARACTER EVIDENCE

self-defense case applications

FIRST AGGRESSOR RULE
-rule/form
-rebuttal
-*NY distinction

RULE/FORM
-Criminal D's may offer ev of the victim's violent character to prove he was the first aggressor in the form of R/O

REBUTTAL/
may prove Victim's good character or D's bad character

*NY NO FIRST AGGRESSOR EXCEPTION: ev of victim' character is inadm to prove he was first aggressor

CHARACTER EVIDENCE

self-defense case application

D's REASONABLE BELIEF
-rule
-no propensity, no form issue

RULE
D may offer evidence of his own knowledge of the victim’s bad character for violence for the purpose of showing he reasonably believed in the need to use self-defense

CHARACTER EVIDENCE

sexual misconduct case application

RAPE SHIELD RULE
-rule
-exception

RULE/
no ev of victim's sexual promiscuity or prior sexual conduct in a sexual midconduct action/

EXCEPTIONS
-d claim of consent allows ev of prior sex w/victim
-controverting source of other physical ev
-due process exception

*NY DOESN'T LIKE PROSTITUTES
-ev of victim's conviction for prostitution w/n 3 yrs is admissible

CHARACTER EVIDENCE

exception for character as an essential element

ONLY CIVIL CASES

RULE/
character ev is permissible in an action where it is an essential element of alleged misconduct, e.g., negligent hiring or misconduct; defamation

CHARACTER EVIDENCE

d's other crimes

THE MIMIC RULE
-rule
-other requirements

RULE/
d's other crimes of specific bad acts are admissible if offered to show...

M motive
I intent
M mistake or absence of accident
I identity or modus operandi
C common scheme or plan

OTHER REQUIREMENTS
-pragmatic consideration
-limiting instruct
-pre-trial notice

CHARACTER EVIDENCE

the mimic rule

REQUIREMENTS
-pragmatic consideration
-limiting instruction
-pre-trial notice

PRAGMATIC CONSIDERATION/
even where non-propensity purpose is shown, probative value must outweigh the prejudice/

LIMITING INSTRUCTION/
when mimic evidence is introduced for non-propensity purpose, the court must instruct the jury about the limited/ purpose of the evidence

PRE-TRIAL NOTICE/
Upon D’s request, prosecution must give pre-trial notice of their intent to use any MIMIC evidence/

CHARACTER EVIDENCE

d's other crimes

THE MIMIC RULE
-form of admiss ev
-burden of proof
==*NY
-application in civil cases

FORM/
by conviction or by evidence of occurrence/

BURDEN OF PROOF
-fed std: sufficiency (judge decides, taking the witnesses at face value, whether a reasonable jury could conclude by a ppev D committed the act in order to admit into ev)
-*NY for identity bop is raised to clear and convincing

IN CIVIL CASES
-mimic ev used generally in cases that sound criminal, e.g., fraud, assault

CHARACTER EVIDENCE

exception to propensity

ONCE A RAPIST ALWAYS A RAPIST
-rule
-*NY rule

RULE/
in any case alleging sexual assault or child molestation, the prosecution may offer evidence of the defendant’s prior sexual assaults or child molestation for the purpose of proving the defendant’s propensity to commit sexual assault

*NY LIKES RAPISTS
-No such once a rapist always a rapist rule in NY

RELEVANT EVIDENCE

similar occurrence issues

SIX SITUATIONS

-habit
-p's accident history
-similar accidents caused by same event of condition
-intent at issue
-comparable sales ev if value at issue
-industrial custom to est std of care

SIMILAR OCCURRENCES

habit exception to propensity
-federal rule
-NY rules

DEF/
a person's regular response to a specific set of circumstances/

RULE/
admissible and relevant to prove that the conduct of a person on a particular occasion was in conformity with habit

NY RULE
-ev relating to business, trade or profession...
-in negligence actions: admissible to show...
-in product liab cases: admiss to show p used the product in a certain way

SIMILAR OCCURRENCES

p's accident history
-inadmissible unless

RULE/
ev of p's accident history is inadmissible unless being used to show a Fraudulent Scheme or Plan or !Causation/

SIMILAR OCCURRENCES

similar accidents caused by same event or condition
-rule
-exceptions
-application to experiments and test

RULE/
ev of similar accidents generally not admissible

EXCEPTION: where other accident involves the same instrumentiality or condition, and occurs under substantially similar circumstances it may be admitted for the purpose of proving:
• existence of a dangerous condition
• cause of injury
• prior notice to D

EXPERIMENTS/TESTS?

SIMILAR OCCURRENCES

intent at issue

RULE/
prior similar occurrences may be relevant to draw an inference of intent from a persons' prior conduct

SIMILAR OCCURRENCES

ev to prove value by comparable

RULE/
the selling price of comparable property (similar type, in the same general location, in the same time period) is admissible as evidence of the value of the property at issue/

SIMILAR OCCURRENCES

ev of industrial custom to est std of care

RULE/
evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant action should have acted, i.e., as evidence of the std of care/

JUDICIAL NOTICE

rule and effect

RULE/
judicial notice is a form of evidence allowed where court is given Indisputable Facts about: "matters of common knowledge within their territorial jurisdiction" or "matters of capable verification by resort to unquestionable sources"
-allowed at any time incl appeal

EFFECT
-in civil cases it is conclusive ev
-in criminal it is admissible but inconclusive

DOCUMENTARY EVIDENCE

potential issues

-authentication
-best evidence
-hearsay

DOCUMENTARY EVIDENCE

authentication of writing
-std
-methods
-self-authenticating
-auth of photos/recordings

STD
if relevance of a writing depends upon source or authorship them the party offering document must prove the source or authorship to authenticate

METHODS
-Proof of Author's Handwriting (lay witness only w/first hand knowledge, expert opinions, jury comparison)
-Ancient Document Rule (automatic authentication inference where document is facially free of suspension and found where it you would expect it, 20 years or 30 in NY)
-Solicited Reply Doctrine (doc can be authen by ev that it was recieved in response to a prior comm to the alleged auth)

SELF-AUTHENTICATING
/official publications/ /certified copies of public or private documents on file in public office/ /newspapers or periodicals/ /trade inscriptions or labels/ /acknowledged document/ /certified business records offered under hearsay exception/.

PHOTOS/RECORDINGS
-photo as demonstrative ev
-photo as silent witness

DOCUMENTARY EVIDENCE

authentication of writing

METHODS

PROOF OF AUTHOR's HANDWRITING
-lay witness only w/first hand knowledge
-expert opinion by comparison
-jury comparison

ANCIENT DOCUMENT RULE
-automatic authentication inference where document is facially free of suspension and found where it you would expect it
-30 years on MS
-20 years in NY

SOLICITED REPLY DOCTRINE
-doc can be authen by ev that it was recieved in response to a prior comm to the alleged auth

DOCUMENTARY EVIDENCE

authentication of writing

SELF-AUTHENTICATING DOCUMENTS

-Official Publications (ex: gov’t pamphlet)
-Certified Copies of Public or Private Documents on File in Public Office (ex: mortgage deed)
-Newspapers or Periodicals (ex: proving a stock price with the WSJ)
-Trade Inscriptions and Labels (ex: label on snickers bar offered to prove manufacturer)
-Acknowledged Document (ex: notarized with seal)
-Commercial Paper (ex: check or promissory note)
-Certified Business Records offered into evidence under business records hearsay exception
--Four Requirements:
-----• by someone within the business
-----• who knows how records are regularly made
-----• and knows that these records were made in the regular way
-----• at or about the time of the event recorded

DOCUMENTARY EVIDENCE

authenticating documents

PHOTOS & RECORDINGS

PHOTOGRAPH AS DEMONSTRATIVE EV:
-where purpose of photograph is to “illustrate” a witness’ testimony
-Requirement: witness must testify with personal knowledge that the photo is a fair and accurate representation of the people or object portrayed

PHOTOGRAPH AS SILENT WITNESS
-where photograph is not illustrating a witness’s testimony, but rather is itself the evidence (e.g., photos from surveillance camera or an ATM machine)
-Requirements:
-----• Camera was properly installed and working
-----• Film was properly removed and developed
-----• Film has not been tampered with
-----------o Sufficient Showing: Chain of Custody

DOCUMENTARY EVIDENCE

best evidence rule; original writings rule

...

DOCUMENTARY EVIDENCE

best evidence rule

Need for Original/Acceptability of Duplicate

...

TESTIMONIAL EVIDENCE

witness competency

RULE

RULE/
witness must be competent, i.e., has Personal knowledge and has take Oath demonstrating an understanding and promise of obligation to tell the truth

TESTIMONIAL EVIDENCE

witness competency

CHILDREN
-rule in civil
-rule in criminal case

RULE/
-children may testify under oath in a civil case where...
-children in a criminal case may testify under oath and children under the age of 9 may give unsworn testimony where D cannot be convicted on this basis alone, there must be corroboration

TESTIMONIAL EVIDENCE

(interested) witness competency

DEAD MAN's STATUTE
-rule
-dead man's minority rule
--waiver
--NY

RULE/
witnesses are not incompetent b/c they have an interest in outcome of litigation, i.e., there will a legally binding effect on their rights or obligations

MINORITY RULE/
-dead man's statutes provide that in a civil action an interested party may not testify against a dead party about communications or transactions with him/

WAIVER/
-decedents rep does not object; and
-decedent's rep testifies about transaction; and
-decedent's testimony is introduced

NY DISTINCTION
-dead mans statute applies
-accident exception: may testify about facts of an accident but not any conversation with decedent in an accident case w/negligence claim.

TESTIMONIAL EVIDENCE

form: leading questions

RULE and EXCEPTIONS

DEF/
question is leading when the form of the question suggests the answer

RULE/
allowed on cross, generally not on direct

EXCEPTIONS for DIRECT
-prelim introductory matters
-youthful or forgetful witnesses
-hostile witnesses
-adverse party or someone under control of adverse party

TESTIMONIAL EVIDENCE

writings used to aid testimony

PRESENT RECOLLECTION REFRESHED
-rule
-exception
-accepted refresher
-rights of opponent to refresh

RULE/
witness may not read from a prepared memorandum; must testify on basis of current recollection/

REFRESH RECOLL EXCEPTION/
if a witness forgets something he once knew, he may be shown a writing or anything else to jog his memory/
-Accepted Refreshers: Anything

RIGHT OF OPPONENT
-3 Safeguards
---Inspection of Item
---Use on Cross
---Introduce into Evidence

TESTIMONIAL EVIDENCE

writings used to aid testimony

PAST RECOLLECTION RECORDED
-rule
-requirements
-*NY

RULE/
offering party may admit certain writings into evidence above a hearsay exception

REQUIREMENTS/
-witness once had personal knowledge
-made or adopted by witness
-when fresh in memory
-attestation to accuracy in orig writing

*NY/
either party may show recordings to jury as opposed to the general rule that only allows an opposing party the right to admit into ev

TESTIMONIAL EVIDENCE

writings in aid of oral testimony

PRESENT RECOLLECTION REFRESHED
-not admitted as evidence

PAST RECOLLECTION RECORDED
-hearsay exception allowing reading to jury or admission into ev

OPINION TESTIMONY

lay witness' opinion

RULE/
admissible where there is...

OPINION TESTIMONY

expert witnesses' opinion

REQUIREMENTS/
-Qualified (by educ or exp)
-Subject Matter (where their scientific, technical, or specialized knowledge will be helpful to the jury)
-Proper Basis
-Reliable

LIMITED ULTIMATE OPINION BAN/
expert testimony in a criminal case may not testify as to whether D had the required mental state incl for an insanity defense/

LEARNED TREATISE HEARSAY EXCEPTION/
-admissible for...
-establishing authoritativeness
-NY distinctions

OPINION TESTIMONY

expert witness's opinion

PROPER BASIS

REQUIREMENTS

Must Come With:
-a reasonable degree of probability or reasonable certainty

Must be Based On:
-expert’s personal knowledge (ex: treating doctor)
-evidence that is already in trial record
-facts outside the record only if those are of a type reasonably relied upon by experts in the field

Note: where expert relies on facts outside the record the expert may generally discuss the bases of his opinion, but may not disclose the inadmissible facts to the jury. The opponent however, may disclose the underlying bases on cross.

OPINION TESTIMONY

expert opinion

RELIABILITY
-rule
-fre std (daubert factors)
-ny std (frye inquiry)

RULE/
Reliable Method Used and Reliable Application to Particular Facts of Case/

FEDERAL STD: DAUBERT FACTORS
-has the methodology been tested?
-are there known rates of error?
-has the methodology been subjected to peer review?
-has the methodology been generally accepted

NY STD: FRYE INQUIRY
-Has the methodology been generally accepted by the relevant professional community

OPINION TESTIMONY

expert opinions

LEARNED TREATISE EXCEPTION
-admissible purposes
-establishing authoritativeness
-NY Distinctions on direct/on cross

ADMISSIBLE PURPOSES/
If a party can establish that a treatise is a reliable authority than it may be used:
-on direct of cross of an expert
-may be read to the jury as substantive evidence
-treatise may not be introduced as an exhibit

ESTABLISHING AUTHORITATIVENESS
-expert testifies as such
-opponent’s expert testifies as such
-judge takes judicial notice

NY DISTINCTION
-On Direct: a treatise may only be used for the purpose of showing the basis of the expert’s testimony, not as substantive evidence
-On Cross: treatise may only be used to impeach the opponent expert’s credibility where he relied on it or acknowledged its authoritativeness and not admissible as substantive evidence

OPINION TESTIMONY

ultimate opinions

RULE/
opinion on ultimate issue is ALLOWED for Lay and Expert witnesses

LIMITED BAN/
experts in criminal cases cannot testify as to whether D had a required mental state for an element or defense

OPINION TESTIMONY

cross examination

RIGHT/SCOPE

RIGHT/
any witness not crossed will give rise to right to strike direct

SCOPE
-any matter w/n scope of direct
-matters affecting witness credibility

CREDIBILITY and IMPEACHMENT

general concepts

CREDIBILITY/
-perception, memory, honesty

IMPEACHMENT
-process of trying to show that a
witness
-Intrinsic: question on cross
-Extrinsic: use of outside ev
-7 Methods (pincs, bimm, sens
def, r/o, crim convic, bad act,
contradict)

REHABILITATION
-process of trying repair
credibility following impeachment

CREDIBILITY

three factors

-perception
-memory
-honesty

IMPEACHMENT

7 methods

-pincs
-bias, interest, motive to misrep
-sens def
-r/o
-crim convic
-bad acts
-contra

CREDIBILITY and IMPEACHMENT

impeachment method

P INC S

...

CREDIBILITY and IMPEACHMENT

impeachment method

BIMM

RULE/
any evidence of a witness' relationship to the litigation which could cause him to lie is admissible to impeach

CREDIBILITY and IMPEACHMENT

impeachment method SENS DEF

RULE?
any evidence showing an effect on witness' perception or memory is admissible to impeach, no need to do intrinsically, extrinsic allowed

CREDIBILITY and IMPEACHMENT

impeachment method R/O

RULE/
party may impeach a witness (target-witness) by calling another (character-witness) to testify to target’s bad character for veracity (lying kind of people may be lying on the stand)

FORM: ROFED / NYR / NSA

PROCEDURAL ISSUES/
-applies to all testifying witnesses
-may use extrinsic ev

CREDIBILITY AND IMPEACHMENT

impeachment method CC

CRIMINAL CONVICTIONS
-ny rule
-fre rule
-balancing inquiry
-procedural issues

NY RULE/
impeachment allowed by any crime after a Sandoval Hearing/
-essay rationale: no qualms about putting indiv interest over society's what's an oath

FRE RULE/
-10 year window
-all crimes of dishonesty or false statement
-other crimes only if felony and prob to veracity > unf prej

BALANCING INQUIRY/
-more probative based on: seriousness and relation to trust and deception
-more prejudicial when:
inflammatory nature or similarity to currently charged offense

PROCEDURAL ISSUES
-intrinsic intro: ask witness
-extrinsic intro: admit record into ev
-no right to explain

CREDIBILITY AND IMPEACHMENT

impeachment method

BAD ACTS REFLECTING ADVERSELY ON VERACITY
-rule and NY distinction

RULE/
allowed to ask a witness about a bad act where it relates to Veracity (intrinsic only; stuck w/answer)

NY RULE/
allowed to ask a witness about a bad act where it relates to Moral Turpitude

GOOD FAITH REQUIREMENT
-applies to questioner

REMEMBER
-not arrests, only bad act conduct
-proof by extrinsic ev only allowed where another purpose may be identified

CREDIBILITY AND IMPEACHMENT

impeachment method 7

CONTRADICTION
-rule
-procedural issues

RULE/
ev to impeach a witness is allowed where is show witness lied or made a mistake about any fact that she testified on during direct

PROCEDURAL ISSUES
-ext ev: allowed where contradiction goes to significant issue
-if issue is collateral, i.e., insignificant to the issues in the case or to the witness's credibility than only intrinsic ev is allowed

CREDIBILITY AND IMPEACHMENT

collateral evidence rule

RULE/
it is inadmissible to use extrinsic evidence to impeach a witness where the matter at issue is not of significant import to the resolution of the litigation

CREDIBILITY AND IMPEACHMENT

impeaching your own witness

FEDERAL RULE/
any party can impeach its own witness

NY VOUCHER RULE/
can't impeach you vouch, you vouch what you bring to court
--exception:impeachment with pincs either made in writing/signed or oral testimony/oath
-----exception to the exception in criminal cases: where pincs creates a cloud on credibility it is not allowed, it must be affirmatively damaging to the party who called the witness
---------ex: whitney after a dom viol case where she testifies for P, in bobby's assault case forgets who assaulted her; says Kevin and not Bobby assaulted her

CREDIBILITY AND IMPEACHMENT

rehabilitation and bolstering

RULE & EXCEPTION
*NY

RULE/
-Rehabilitation (process of rebutting impeachment) is allowed
-Bolstering (before attack) is not allowed

EXCEPTION
-prior statements of id in witness' testimony could be bolstering but is excepted from the rule (trial witness must have made ID)

NY DISTINCTION
-same rule in criminal, no prior statements of ID in civil cases

CREDIBILITY AND IMPEACHMENT

rehabilitation

METHODS

GOOD CHARACTER FOR TRUTHFULNESS
-RULE: bolster after attack on character for truthfulness
-FORM: rofed/nyr/nsa

PRIOR CONSISTENT STATEMENTS
RULE
-where a party has suggested a motive to lie through impeachment prior consistent statements made before any such motive to lie arose are admissible
-FRE: pcs allowed for rehab and as a substantive ev under the hearsay exception
-NY: pcs allowed only to rehab

TESTIMONIAL PRIVILEGES

4 + NY 3

fed diversity cases where state law governs substantive claim state law applies to:
-burden of proof and presumptions
-dead man's statutes
-PRIVILIGES

FEDERAL COURTS
-a\c
-h\w
-clergy
-

NY COURTS +3
-dr.pat
-sw\cl (ex: rape crisis counselor)
-reporter\source

TESTIMONIAL PRIVILEGES

...

TESTIMONIAL PRIVILEGES

a\c

APPLIES:
-client intends confidentiallity
-confidential communica b/w a\c-
---during a professional legal consultations---
-includes prospective clients-

INAPPLICABLE CATEGORIES
-underlying information
-pre existing documents

EXCEPTIONS:
1. Joint Clients Among another

2. Disclosing intent to Commit a crime or fraud

3. Claim of Party Invoking privilege colored by legal advice

4. Dispute Among atty\cl

WAIVED where/
-client discloses to a third party

TESTIMONIAL PRIVILEGES

attorney-client

ELEMENTS

...

TESTIMONIAL PRIVILEGES

attorney-client

DEFINITIONS

...

TESTIMONIAL PRIVILEGES

attorney client

LOSS OF PRIVILIGE

...

TESTIMONIAL PRIVILEGES

doctor patient

...

TESTIMONIAL PRIVILEGES

spousal

COMMUNICATION and IMMUNITY

h\w CONFIDENTIALITY
-married at time of communica?
-waiver requires 2

h\w: IMMUNITY
-in CRIMCASE, prosecution cannot compel D's spouse to testify against him DURING MARRIAGE, waivable by witness spouse

PRIVILEGE DOES NOT PROTECT:
-communica or acts
==in furtherance of future crime/fraud
==destructive of family unit

HEARSAY

rule and question to ask

RULE/
Hearsay, an out of court statement (oral or written) by a person (declarant), not animals (drug sniffing dog) and not machines (thermometer), offered to prove the truth to the matter asserted is inadmissible unless an exception fits/

QUESTION TO ASK/
Ask do we care whether or not the person is telling the truth, if not then it is probably not being presented for the truth of the matter asserted and so no hearsay problem

HEARSAY

exceptions

status of declarant

-declarant is party in case (pa)
-declarant unavail (f-t, ff-b-wd, st-ag-int, d-d)
-declarant is anyone (eu, psi, st-thn-exst-mepc, bus-pub-rec)
-misc (p-rc-rec, lrnd-tr)

HEARSAY EXCEPTIONS

declarant party in case

PARTY ADMISSION
-rule
-vicarious admissions
--*NY
-admission of co-conspir

RULE/
no hs prob for party admission

VICARIOUS ADMISSIONS/
fre: no hs prob where agent/employee acted within scope and made during agency/employment
*NY: additional requirement: speaking authority

VICARIOUS ADMISSIONS OF CO-CONSPIR/
statement of one co-c is admiss against others if made in furtherance of conspir

HEARSAY EXCEPTION

declarant unavail

TR-FT-FW-SAI-DD

THRESHOLD REQUIREMENT
-pails
*NY: pai, no ls, yes 100+ mi or Dr.

FORMER TESTIMONY
-proceeding and opposing party opp to cross
*NY: crim case distinc

FORFEITURE BY WRONGDOING
-intentional/wrongful unavail
-burden of proof: fed (ppev) ny ()

STATEMENT AGAINST INTEREST
-rule
-crim case wrinkle

DYING DECLARATION
-impending death and relation to
-limited app: fre (civ/crim hom) ny (crim hom only)

HEARSAY EXCEPTION

declarant unavailable
*NY

PAILS

-P privilege
-A absence from jurisdiction
-I illness (or death)
-L lack of memory
-S stubborn refusal to testify

HEARSAY EXCEPTION

declarant unavailable

PAI no ls +2

-P privilege
-A absence from jurisdiction
-I illness (or death)
no l/s
1. 100+ miles from court
2. Doctor

HEARSAY EXCEPTION

declarant unavailable

FORMER TESTIMONY

RULE/
unavail decl prior statements in a "proceeding" or "deposition" where the opposing party had opportunity and similar motive to cross examine or otherwise develop testimony is admissible

*NY DISTINC for crim cases:
-proceeding must b: crim trial, hearing on felony complaint, or conditional deposition; NOT suppression hearing
-same D and same charge in both cases

HEARSAY EXCEPTION

declarant unavailable

FORFEITURE BY WRONGDOING

RULE/
unavail decl out-of court statements allowed if unavail was caused by an Intentional and Wrongful act of a party that the ev is being offered against

STD of PROOF
fre: ppev
NY:

HEARSAY EXCEPTION

declarant unavailable

STATEMENTS AGAINST INTEREST

RULE/
statements against unavail decl. own pecuniary, proprietary, or penal interests are admissible

CRIM CASE WRINKLE:
statement against penal interest must be corroborated to come in

HEARSAY EXCEPTION

declarant unavailable

DYING DECLARATIONS

RULE/
statements concerning the cause or circumstances of an impending death made under a belief of certain death are admissible

LIMITED APPLICATION
fre: civil cases and crim hom
*NY: only crim hom

HEARSAY EXCEPTION

declarant is anyone

EU-PSI-STEMEPC-SPMDT- BR/PR

EXCITED UTTERANCE

PRESENT SENSE IMPRESSION

STATEMENT OF THE EXISTING MENTAL EMOTIONAL OR PHYSICAL CONDITION

STATEMENT FOR PURPOSE OF MEDICAL TREATMENT OR DIAG

BUSINESS RECORD/PUBLIC RECORDS