Evidence

relevance

any tendency to make a material fact more or less probable

relevant evidence is?

admissible

general exception to admissibility

probative value is substantially outweighed by pragmatic considerations

pragmatic considerations that outweigh probative value (6)

danger of unfair prejudice
confusion of the issues
misleading the jury
undue delay
waste of time
unduly cumulative

policy based exclusions (6)

general
liability insurance
subsequent remedial measures
settlements in civil cases
offer to pay hospital or medical expenses
pleas and plea discussions in criminal cases

policy based exclusions: general

balancing relevancy w/ pragmatism
encouraging good out-of-court conduct

policy based exclusions: liability insurance inadmissible...

for purposes of showing fault

policy based exclusions: liability insurance admissible...

proof of ownership or control if denied by ∆
impeachment of witness'

i.e. evidence of witness bias

dual purpose evidence

purpose matters w/ evidence
same piece may be admissible or not depending on purpose

policy based exclusions: subsequent remedial measures inadmissible...

to prove

negligence
culpable conduct
product defect
need for warning

policy based exclusions: subsequent remedial measures admissible...

to prove

ownership
control
feasibility of safer conditions, if issue is controverted by ∆

policy based exclusions: subsequent remedial measures admissible in NY...

in product liability cases on strict liability for a mfr defect

policy based exclusions: settlements

if there's a disputed civil claim, evidence of

settlement
offer ot settle
statements of fact made during settlement discussions

are INADMISSIBLE to prove liability

policy based exclusions: settlements: exceptions

to impeach a witness for bias
statements made during civil litigation w/ govt agency are admissible in later criminal trial

policy based exclusions: offer to pay medical expenses

inadmissible to prove liability
not excluded? other statements made in connection w/ offer to pay

policy based exclusions: pleas and plea discussions inadmissible

offer to plead guilty
withdrawn guilty pleas

NY: admissible in later civil case

pleas of nolo contendere (no contest)
statements of fact made during plea bargaining

guilty plea not withdrawn

is a party admission against ∆ in later litigation based on same facts

character evidence is...

inadmissible UNLESS

character evidence: general disposition or propensity admissible for...

witness veracity
non-propensity
character as an element

character evidence: general disposition or propensity inadmissible for...

propensity

character evidence in criminal cases: 4 situations

∆'s character offered by ∆
∆'s character offered by prosecution to rebutt
victim's character in self-defense case
victim's character in sexual misconduct case

character evidence in criminal cases: ∆'s character offered by ∆

propensity: inadmissible
EXCEPTIONS

own good character for relevant trait
if ∆ does this, prosection can rebut w/ evidence of bad character for same trait

form of character evidence

fed: reputation or opinion
NY: rep only
inadmissible: specific acts

character evidence in criminal cases: ∆'s character offered by prosecution to rebut (2 ways)

call its own witness
cross examine ∆'s witness

character evidence in criminal cases: prosecution's witness

fed: reputation or opinion
NY: reputation only

character evidence in criminal cases: cross examine ∆'s witness
question form

testing knowledge of specific acts by ∆

feds: have you heard or did you know
NY: have you heard ONLY

character evidence in criminal cases: cross examine ∆'s witness
purpose

to impeach witness's knowledge of ∆'s reputation

character evidence in criminal cases: cross examine ∆'s witness NY

prosecution can rebut by proving ∆ committed a crime that reflects on character trait at issue

character evidence in criminal cases: victim's character in self-defense case

fed: evidence of victim's violent character to prove he was first aggressor

reputation or form
prosection's rebuttal

victim's good character for peacefulness and/or
∆'s bad character for violence

NY: INADMISSIBLE

character evidence in criminal cases: victim's character in sexual misconduct cases: "rape shield" rule: can't intoduce evidence of

victim's reputation for promiscuity
victim's prior sexual conduct

character evidence in criminal cases: victim's character in sexual misconduct cases: "rape shield" rule: EXCEPTIONS

evidence of victim's sexual activity w/ ∆ himself, but only if claiming consent
evidence of victim's sexual activity w/ others, but only to prove someone else was source of physical evidence
evidence required by ∆'s Due Process rights

character evidence in civil cases: general rule

inadmissible to show propensity

character evidence in civil cases: exception

when character is an essential element of a claim or defense

tort case: negligent hiring or entrustment
defamation

habit vs. propensity

inadmissible to prove conduct on particular occassion

habit evidence exception

admissible to infer how they acted on occasion in question

habit: def.

repetitive response to a particular set of circumstances

habit: characteristics

frequency of conduct
particularity of conduct

habit: NY rules

habit re: business, trade, profession: admissible
personal habit on issue of due care in negligence: inadmissible
personal habit in use of product: admissible if person had complete control of circumstances

∆'s other crimes for non-character purposes: MIMIC rule

Motive
Intent
Mistake or accident, absence of
Identity
Common scheme or plan

∆'s other crimes for non-character purposes: MIMIC rule: admissible if

offered to show something specific about the charged crime in prosecution's case-in-chief

∆'s other crimes for non-character purposes: ways to prove MIMIC (2)

conviction
prior act

∆'s other crimes for non-character purposes: MIMIC burden of proof fed

"sufficiency": sufficient evidence for a reasonable jury to conclude ∆ committed prior act by preponderance

∆'s other crimes for non-character purposes: MIMIC burden of proof NY

"identity": clear & convincing evidence that ∆ committed prior act

∆'s other crimes for non-character purposes: MIMIC: other requirements

pragmatic considerations
limiting instruction
pre-trial notice

∆'s other crimes for non-character purposes: MIMIC in civil cases

can be used, such as in tort actions for fault and assault

other sexual misconduct to show propensity for sexual misconduct: fed

prosecution may offer evidence of prior sexual misconduct for the purpose of proving ∆'s propensity to commit crimes charged

other sexual misconduct to show propensity for sexual misconduct: NY

INADMISSIBLE

similar occurrences: relevancy: TEPI

must relate to some
Time
Event
Person
Involved in present litigation

similar occurrences: TEPI or..

INADMISSIBLE

similar occurrences: 6 situations

habit
π's accident history
similar accidents caused by same event or condition
intent in issue
comparable sales on issue of value
industrialll custom as std of care

similar occurrences: π's accident history is generally...

INADMISSIBLE

similar occurrences: π's accident history exception

admissible to show

fraudulent scheme or plan
causation of a particular injury

similar occurrences: similar accidents caused by same event or condition are generally...

INADMISSIBLE

similar occurrences: similar accidents caused by same event or condition exception

accidents involving:

same instrumentality or condition AND
occurring under substantially similar circumstances

purpose

existence of a dangerous condition
causation of accident
prior notice to ∆

similar occurrences: similar accidents caused by same event or condition, related rule for...

experiments and tests

similar occurrences: experiments and tests

same rule as similar accidents, requires

substantial similarity btw experiment and disputed fact

similar occurrences: intent in issue

may be relevant to draw an inference of intent from person's prior conduct

similar occurrences: comparable sales on issue of value

selling price of comparable property

witness is competent if

has personal knowledge AND
takes oath or affirmation

demonstrates an understanding of the obligation to tell the truth AND
promises to tell the truth

NY: testimony by children

child may testify under oath as long as he understands obligation to tell the truth

NY: testimony by children: civil cases

all witnesses, including children, must taken an oath

NY: testimony by children: criminal cases

child <9 who cannot understand an oath may still testify BUT

∆ cannot be convicted based solely on unsworn testimony
must have corroborating evidence

Dead Man's Statute: fed

witness is not incompetent simply because she may have an interest in outcome of civil litigation involving decedent's estate

Dead Man's Statute: NY

in a civil action
an interested witness
may not testify
against a deceased party or its representative
about communications or transactions w/ deceased party

Dead Man's Statute: NY: accident exception

in an accident
based on negligence
surviving party
may testify about facts of accident
BUT may NOT testify about conversations w/ decedent

Dead Man's Statute: "interested" party

only if outcome of case will have a legally binding effect on witness's right or obligations

direct legal stake

Dead Man's Statute: waiver

right to exclude interested witness testimony maybe waived IF:

decedent's rep doesn't object
decendent's rep testifies about transaction
decedent's testimony is introduced

leading question: def.

form of question suggests answer

leading questions: when allowed

NOT allowed on direct
ALLOWED on cross

leading questions: 4 situations when allowed on direct

preliminary introductory matters
youthful or forgetful witness
hostile witness
adverse party or someone under control of adverse party

writings in aid of oral testimony: 2 types

present recollections refreshed: allowed
past recollections recorded: allowed

writings in aid of oral testimony: present recollections refreshed

can't read from prepared statement
safeguards against abuse: opposing party has right

inspect item
use item during cross
introduce right into evidence

writings in aid of oral testimony: past recollections recorded:
may be read IF (foundation)

witness once had personal knowledge
witness now forgets & simply showing fails to jog memory
writing was either

made OR
adopted by witness

writing made when event fresh in witness's memory
witness can attest that when made, writing was accurate

writings in aid of oral testimony: 2 types

null

writings in aid of oral testimony: once foundation is laid

witness may read BUT
NOT SHOW document to the jury AND
opposing party may later show document to the jury

writings in aid of oral testimony: NY

party using may introduce writing into record as an exhibit

opinion testimony: 2 kinds

lay opinion
expert opinion

lay opinion is admissible if

rationally based on witness's perception (personal knowledge) AND
helpful to the jury

expert opinion admissible ONLY IF

witness is qualified
on subject matter where scientific, technical or specialized knowledge will be helpful
opinion has proper basis AND
opinion is reliable

proper basis of opinion

reasonable degree of probability or reasonable certainty AND
based on one of 3 data sources

3 data sources expert opinion can be based on

expert's personal knowledge (treating physician)
evidence already admitted @ trial from others
facts from outside record BUT ONLY IF

facts are of a type reasonably relied on by expert in particular field

reliability of expert opinion

reliable methods AND
reliably applied to particular facts of the case

reliability std for scientific evidence: Fed, Daubert, 4 factors

methodology tested (vs. pure theory)
known rates of error
subjected to peer review
generally accepted

reliability std for scientific evidence: NY, Frye

has methodology been accepted by relevant professional community

expert testimony on ultimate issue

generally acceptable

expert testimony on ultimate issue: FED EXCEPTION

expert witness can't testify re: ∆'s mental state

learned treatise in aid of expert testimony: fed rule

party must establish treatise is reliable authority

learned treatise in aid of expert testimony: fed rule, can be used

on direct or cross of an expert
read to the jury as substantive evidence

EXCEPTION

can't be introduced as exhibit

learned treatise in aid of expert testimony: fed rule
establishing authoritativeness (3 ways)

your own expert testifies it's authoritative
your opponent's expert agree it's authoritative
judge takes judicial notice that treatise is authoritative

learned treatise in aid of expert testimony: NY distinction

on direct: may only be used for purpose of showing bias
on cross:

only to impeach opponent expert's credibility AND
only if opponent's expert relied on treatise or acknowledged it as reliable authority

NOT AS SUBSTANTIVE EVIDENCE

cross-examination is...

a right

if a witness can't be cross-examined, direct testimony is struck

scope of cross-examination

matters within scope of direct AND
matters that affect witness's credibility

credibility rests on 3 things

perception
memory
honesty

impeachment (def.)

proving that witness lacks one or all elements of credibility

rehabilitation (def.)

process of trying to repair witness's credibility after impeachment

intrinsic impeachment

asking witness questions on cross

extrinsic impeachment

introducing outside evidence

impeachment methods (7)

prior inconsistent statements
bias, interest or motive to misrepresent
sensory deficiencies
reputation/opinion of witness's bad character for truthfulness
criminal convictions
bad acts
contradiction

impeachment methods: prior inconsistent statements

oral or written
materially inconsistent w/ trial testimony
may be used to impeach BUT NOT as substantive evidence of prior statement's truth

prior inconsistent statements as substantive evidence

admissible as substantive evidence IF statement was made

orally under oath AND
as part of formal hearing, proceeding, trial or deposition

prior inconsistent statements as substantive evidence: NY

NOT ALLOWED IN NY
- only admissible to impeach

prior inconsistent statements: procedural considerations

witness must have opportunity to explain or deny

NY: while still on witness stand
fed: broader

UNLESS: witness is opposing party

no need to confront the witnes w/ statement OR
give opportunity to explain

prior inconsistent statements: bias, interest, or motive to misrepresent

relationship btw witness and party or some other interest in litigation that could cause witness to lie, i.e.

party
friend, relative, employee
paid by party
grudge against party
something to gain or lose by resolution of case

prior inconsistent statements: bias, interest, or motive to misrepresent
procedural issues

bias may be proven by extrinsic evidence BUT
witness should be confronted before extrinsic evidence is introduced

prior inconsistent statements: sensory deficiencies (4)

bad eye sight, hearing
mental retardation
forgetfulness
intoxication at the time of event or on witness stand

prior inconsistent statements: sensory deficiencies
procedural issues

intrinsic impeachment is NOT required
extrinsic impeachment is allowed

prior inconsistent statements: reputation/opinion of witness's bad character for truthfulness

can impeach by calling another witness

prior inconsistent statements: reputation/opinion of witness's bad character for truthfulness
form of testimony

fed: reputation or opinion
NY: opinion only
NOT ALLOWED: specific acts

prior inconsistent statements: reputation/opinion of witness's bad character for truthfulness
procedural issues

any witness who has testified may be impeached by this method
AND
extrinsic evidence is allowed

prior inconsistent statements:prior convictions NY

any crime

criminal convictions: if witness is criminal ∆: NY

sandoval hearing: separate hearing to balance

probative value v.
unfair prejudice

criminal convictions: federal

within past 10 years
crimes of dishonesty or false statement: always admissible

lie or betrayal of trust

other crimes

misdemeanors: NEVER
felonies: admissible if probative value > risk of unfair prejudice

criminal convictions: balancing probative value & unfair prejudice

probative

seriousness
relation to trust and deception

unfairly prejudicial

inflammatory nature
similarity to currently charged offense

bad acts (without conviction): NY vs Fed

Fed: if acts relate to veracity
NY: if acts relate to moral turpitude

bad acts: limitations: BPEA

Basis: cross examiner must have good faith basis that act occurred
Proof: bad act may be proven by intrinsic evidence ONLY
Extrinsic Evidence: if bad act is relevant to some other purpose
Arrests

arrests: possible purposes

impeaching character for veracity
impeaching witness's knowledge
impeaching bias

arrests: admissible purposes

impeaching witness's knowledge
impeaching for bias

arrests: why some purposes are admissible

arrest may change opinion/reputation
arrest may create bias OR incentivise cooperation with prosecution

how can contradiction be proven?

issue that is significant to the case: extrinsic evidence
collateral matter (i.e. credibility): limited to intrinsic evidence

impeachment of own witnesses: fed v NY

fed: any party may impeach any witness
NY: by calling a witness, you vouch for his credibility, can't impeach

impeachment of own witness: NY: EXCEPTION

may impeach w/ prior inconsistent statement that was

made in writing & signed by witnesses OR
made in oral testimony and under oath

impeachment of own witness: NY: exception: CRIMINAL

maybe used ONLY IF

witness's current testimony is affirmatively damaging
to the party who called the witness
not merely "cloud on credibility"

rehabilitation: timing

generally only after credibility is attacked through impeachment
introducing evidence to support witness's credibility BEFORE attacked?

not allowed: "improper bolstering"

rehabilitation: timing EXCEPTION

witness's prior statement of identification of a person is admissible

even if credibility hasn't been attacked

rehabilitation: timing exception: PURPOSE

prior ID is more reliable than in-court ID

admissible as substantive evidence

prior ID: NY

not allowed in civil cases

statement of ID

must be by a trial witness

who is subject to cross
CANNOT BE VICTIM

methods of rehabilitation (2)

good character for truthfulness
prior consistent statement

methods of rehabilitation: good character for truthfulness: fed v NY

fed: reputation or opinion
NY: reputation
not allowed: specific acts

methods of rehabilitation: prior consistent statement: may be if

prior statement is consistent w/ trial testimony

opposing party suggested that witness developed motive to lie
prior statement was made before alleged motive to lie arose

methods of rehabilitation: prior consistent statement: fed v NY

fed purpose: rehabilitate AND as substantive evidence of its truth
NY purpose: ONLY to rehabilitate, not for the truth

hearsay: def

an out of court statement
oral or written
by a person ("declarant")/(animals & machines OK!)
offered to prove truth of the matter asserted
INADMISSIBLE

what's NOT hearsay

if statement is being offered for a purpose OTHER than the truth of the matter

4 principal categories of non-hearsay purposes

impeachment
verbal acts (legally operative words)
to show effect on person who heard or read the statement
circumstantial evidence of speaker's state of mind

non-hearsay purpose #1: impeachment

i.e. prior inconstistent statements

non-hearsay purpose #2: legally operative words

words of offer, repudiation or cancellation of contract
words that have the effect of making a gift or bribe
words that are themselves

perjury
criminal misrepresentation, or
defamation

non-hearsay purpose #3: effect on hearer

statement is relevant simply because someone heard or read it

put someone on notice
gave someone motive
made some belief reasonable

non-hearsay purpose #4: state of mind

statement unintentionally reveals speaker's state of mind

demonstrates insanity
lies demonstrate consciousness of guilt
questions that demonstrate lack of knowledge

prior statements of trial witnesses: admissible?

witness's own prior statement offered to prove truth of the matter: NO

inadmissibility of witness's own prior statements: EXCEPTIONS (3)

prior statement of identification
prior inconsistent statement IF

made under oath AND
during a formal proceeding

prior consistent statement

see that flashcard

hearsay exceptions: anyone

excited utterance
present sense impression
statement of then-existing condition
statement for purpose of medical treatment or diagnosis
business and public records

hearsay exceptions: declarant (3)

party admission
vicarious admissions
vicarious admissions by co-conspirators

hearsay exceptions: unavailable declarant

former testimony
forfeiture by wrongdoing
statement against interest
dying declaration

hearsay exception: party admission

any statement made by a party is admissible IF

offered against the party
"if you say it, you're stuck with it"

hearsay exception: vicarous admissions

statement made:

by an agent or employee of a party
is admissible against the party
if it concerns a matter within the scope of agency or employment
and was made during existence of that relationship

hearsay exception: vicarous admissions: NY:

admissible ONLY IF:

person had speaking authority on behalf of principal or employer

hearsay exception: vicarous admissions by co-conspirators

admissible if:

statement made DURING and IN FURTHERANCE OF conspiracy

unavailable declarant: grounds of unavailability: PAILS

Privilege
Absence from jurisdiction
Illness or death
Lack of memory
Stubborn refusal to testify

unavailable declarant: grounds of unavailability: PAILS+: NY

NY: PAI = OK; LS = not
Additional grounds:

declarant is > 100 miles from courthouse
declarant is a doctor

hearsay exception: former testimony

declarant is unavailable
prior statement was given as testimony in a proceeding or deposition under oath
and is offered against a party who had an opportunity and similar motive to cross-examine or develop the testimony

hearsay exception: forfeiture by wrongdoing

declarant's out-of-court statement may be offered against any party who:wrongfully made declarant unavailable
and did so
w/ purpose of preventing declarant from testifying

forfeiture by wrongdoing: burden of proof: fed v NY

fed: preponderance
NY: clear and convincing

hearsay exception: statement against interest

declarant is unavailable AND
statement is against declarant's

pecuniary
proprietary or
penal interest

must be supported by corroborating evidence in crim cases

hearsay exception: dying declaration

declarant is unavailable AND
statement was made under a belief of

CERTAIN & IMPENDING DEATH AND
concerns the cause or circumstance of impending death

hearsay exception: dying declaration: fed v NY

fed: homicide or any civil
NY: homicide ONLY

hearsay exception: excited utterance

spontanteous + excited

hearsay exception: excited utterance: spontaneous

startling event +
declarant was still under stress of excitement from event

hearsay exception: excited utterance: excited factors

nature of event
passage of time
visual clues

excitement-oriented verb
exclamatory phrase
exclamation point

hearsay exception: present-sense impression

statement that describes the event AND
is made while event is occurring OR
immediately thereafter

hearsay exception: present-sense impression: NY

corrobation required

hearsay exception: statement of then-existing ? condition

mental
emotional
physical

hearsay exception: statement of then-existing condition

contemporaneous statement
concerning declarant's then-existing condition

hearsay exception: statement of then-existing condition
DOES NOT INCLUDE

memory
belief about past condition

hearsay exception: statement of then-existing condition
DOES INCLUDE

statements about future intent
including intent to do something w/ 3rd person

hearsay exception: statement for purposes of medical treatment/diagnosis

statement concerning

present symptoms
past symptoms
general cause of medical condition

hearsay exception: statement for purposes of medical treatment/diagnosis: DOES NOT INCLUDE

statements about fault
identity of wrongdoer

hearsay exception: statement for purposes of medical treatment/diagnosis: NY

does not apply to statements made for the SOLE purpose of obtaining expert medical testimony at trial

hearsay exception: business records

records of a business of any type
made in the regular course of business
the business regularly keeps such records
made contemporaneously and
content consists of

information observed by employees
statements that falls within some other hearsay exception

hearsay exception: public records: fed

observations by employees of a public agency
conclusions by public employees after official investigation

hearsay exception: public records: fed: EXCEPTIONS

police reports prepared for prosecution purposes
offered against ∆ in criminal case

hearsay exception: public records: NY

does not include fact-findings or opinions
ONLY observations

laying foundation for business records: 2 ways

live testimony
certification

laying foundation for business records: certification: NY

written certification may only be used in
civil cases AND
only for business-records of non-party

hearsay and the Constitution: confrontation clause is satisfied if

∆ had a chance to cross-examine before trial
∆ can cross-examine declarant at trial or
forfeited right thru tampering

what is testimonial?

grand jury testimony
statements in response to police interrogation
documents
inc. affidavits prepared for trial
police records prepared for prosecutorial purposes

what isn't testimonial?

statements in response to policy interrogiation IF to enable police assistance to meet a present emergency
business records
NY: private lab DNA results w/ raw data only

hearsay and impeachment

opposing party may use any impeachment tactics to attack credibility of hearsay declerant

judicial notice

recognition of a fact as true without formal presentation of evidence

judicial notice of indisputable facts, 2 forms

matters of common knowledge w/in court's territorial jurisdiction
matters capable of easy verification by resort to unquestionable sources

judicial notice: procedural aspects

timing: at any time, including on appeal
effect: judicially noticed facts are considered conclusive in civil cases, but not criminal

documentary evidence: authentication

introduce sufficient evidence for a reasonable juror to conclude the item is what the party claims it to be

authentication: authorship

if relevance depends on source or authorship,
must prove it in order to autheticate writing

methods of authentication (6)

testimony by witness w/ personal knowledge
proof of the author's handwriting
ancient document rule
solicited reply doctrine
self-authenticating documents
authentication of photographs and recordings

methods of authentication: handwriting (3)

lay person opinion
expert opinion
jury comparison

methods of authentication: ancient document rule

authenticity is inferred if

at least 20 yrs old (NY: 30)
facially free of suspicion AND
found in a place where it's expected to be located

methods of authentication: solicited reply doctrine

received in response to a prior communication to the alleged author

methods of authentication: self-authenticating documents (7)

official publications
certified copies of public or private docs on file in public office
newspapers/periodicals
trade inscriptions/labels
acknowledged doc (notarized)
commercial paper
certified business records

self-authenticating documents: "certified business records"

must be certified by:

someone within the business
who knows how records are regularly made
and that these were made in the regular way
at or about the time the event took place
NY: only in civil case & only for records of non-party

methods of authentication: photographs and recordings: 2 purposes

demonstrative evidence
"silent witness"

photographs as demonstrative evidence: authentication

authenticated by witness testifying
based on personal knowledge that
photo is a fair and accurate representation of what's portrayed

photographs as silent witness: authentication

itself the evidence
party offering must show

camera was property installed and working
film was properly removed & developed
film was not tempered with

chain of custody

best evidence rule

if a party wants to prove content of writing, must provide

original writing OR
acceptable excuse for its absence

if courts accepts excuse
party can use secondary evidence

copy
oral testimony to prove contents

when does best evidence rule apply?

writing is a legally operative document
witness is testifying to facts that she learned solely from reading them in writing

best evience rule: what is an original?

writing itself:

including any counterpart intended to have same effect, any negative, film or print from the negative

duplicate

counterpart produced by mechanical means that accurately reproduces the original

best evidence rule: what is NOT original?

hand-written copy

best evidence rule: rule for duplicates

admissible like an original UNLESS

genuine question about authenticity of original PR
unfair to admit dupe (blurry copy, etc.)

best evidence rule: rule for duplicates: NY rule

photocopies and other duplicates are acceptable substitutes

ONLY IF

duplicates are made in regular course of business

best evidence rule: what is good excuse?

if original is:

lost or cannot be found w/ due diligence
destroyed w/out bad faith
cannot be obtained w/legal process

escapes from requirements of best evidence rule

voluminous records presented thru summary or chart

provided original records would be admissible

certified copies of public records
collateral documents (ct determines unimportant to issues in the case)

limited reach of best evidence rule

on the bar, rarely results in exclusion of evidence

real evidence

actual physical evidence displayed to the trier of fact

real evidence authentication rule

party introducing evidence must introduce

sufficient evidence that the item is
what the party claims it to be

real evidence: methods of authentication (2)

personal knowledge if item if easily recognizable by sight
chain of custody (if fungible)

must be "substantially unbroken"

condition of real evidence

must be shown at trial to be in substantially the same condition

privileges: MS (5) v NY (4) v fed (substantive 4 v procedural state law)

MS:

atty-client
dr-patient
psychotherapist-patient
spousal communication
spousal immunity

NY: no spousal immunity
fed substantive: no dr. patient
fed procedural: apply FRE generally BUT state law re:

burden of proof/presumptions
dead man's statutes
privileges

privileges: atty-client protects (7 points)

any communication
between atty and client (or their reps)
so long as it is confidential AND
for the purpose of legal advice
UNLESS
privileged is waived by client OR
exception applies

atty-client privileges: does not apply to communications about (3)

client's knowledge of underlying facts
pre-existing document
real evidence

atty-client privileges: atty? (3)

member of the bar
someone client reasonable believes is member of the bar and
representatives of atty helping atty provide legal services

atty-client privilege: client?

includes

person seeking to become client
representative of client

atty-client privilege: confidential?

no third party listening in or atty disclosing into to 3rd party on client's request

atty-client privilege: confidential? joint client rule

communications as to common interests are privileged as to 3rd parties
BUT if there's a dispute re: common interest later
privilege doesn't apply btw them

atty-client privilege: for purpose of legal advice?

to get or give

atty-client privilege: waiver (3 types)

voluntary
subject matter
inadvertent

atty-client privilege: voluntary waiver

only if client has power to waive the privilege

atty-client privilege: subject-matter waiver

voluntary waiver of some comms will also waive it as to others IF

partial disclosure is intentional AND
disclosed and undisclosed comms concern same subject matter AND
fairness requires disclosed and undisclosed comms be considered togehter

atty-client privilege: inadvertant waiver

will not waive the privilege so long as privilege holder

took reasonable steps to prevent disclosure AND
took reasonable steps to correct the error

exceptions to atty-client privilege (3)

future claim or fraud
when client puts legal advice at issue
atty-client dispute

doctor-patient privilege (4)

any communication or info
acquired by doctor from patient
so long as it is confidential AND
for the purpose of medical treatment or diagnosis

doctor-patient privilege: fed

applies only to psychotherapists if fed. substantive law is applied

spousal communications privilege (4)

applies to relationship btw married spouses
covers communications made DURING marriage
so long as it is confidential
may be waived only by BOTH spouses

spousal immunity/spousal testimony privilege (4)

in crim cases only
covers testimony against ∆ spouse about ANYTHING
so long as witness and ∆ are married (OK after divorce)
may be waived by witness spouse ALONE

spousal immunity/spousal testimony privilege: MS/Fed v NY

MS/fed:

in a crim case
prosection can't compel ∆'s spouse to testify against ∆ about anything

NY: not recognized

spousal immunity/spousal testimony privilege: EXCEPTIONS

communications or acts in furtherance of future crime or fraud
doesn't apply to civil litigation btw spouses

Evidence

Business Law 1 with Barbri at New York University

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