Evidence Handout Barbri

Copyright 2014 BARBRI
NEW YORK EVIDENCE

Prof. Vincent C. Alexander
St. Johns University School of Law

INTRODUCTION

A. SOURCES OF EVIDENCE LAW
1. Multistate Law: _____________________________________________
2. New York Law: 80% the same as the Multistate; 20% NY Distinctions
___________________________________________________________
B. OVERVIEW: EVIDENCE TOPICS
1. The Three Major Topics
(a) __________________________
(b) __________________________
(c) __________________________
2. The Three Minor Topics
(a) __________________________
(b) __________________________
(c) __________________________
3. Five Topics Not Covered in Lecture
(a) Procedural Considerations
(b) Burden of Proof
(c) Presumptions
(d) Judicial Notice
(e) Real Evidence
2. NEW YORK EVIDENCE

I. RELEVANCE

A. Basic Principles

1. Evidence is RELEVANT if it has _______________________to make
a material fact more probable or less probable than would be the case
without the evidence.

2. All relevant evidence is ADMISSIBLE, UNLESS (a) some specific
EXCLUSIONARY RULE is applicable, or (b) the court makes a
discretionary determination that the probative value of the evidence is
substantially outweighed by one or more of six PRAGMATIC
CONSIDERATIONS:

Danger of unfair prejudice

Confusion of the issues

Misleading the jury

Undue delay

Waste of time

Unduly cumulative
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B. Similar Occurrences

IN GENERAL, if evidence concerns SOME TIME, EVENT OR PERSON
OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence
is INADMISSIBLE. Probative value is usually outweighed by pragmatic
considerations (e.g., weak relevance, danger of confusion, misleading the
jury, time-consuming). But six recurring situations have produced
concrete rules that may permit admissibility.

NEW YORK EVIDENCE 3.

1. Plaintiffs Accident History.

GENERALLY, plaintiffs accident history is _____________ because it
shows nothing more than the fact that the plaintiff is accident-prone.
_______________________________________________________
_______________________________________________________

EXCEPTION: Plaintiffs prior accidents ADMISSIBLE if:

_______________________________________________________

HYPO 1. Billy Joel drove into a lamp post and sues the municipality in negligence,
alleging that the placement of the post created a hazardous condition. (a) On the issue
of contributory negligence, should the municipality be allowed to introduce evidence that
Billy has frequently driven into other stationary objects (tree, bridge, brick wall)?

__________________________________________________________________

(b) What if Billy claims that the accident injured his shoulder, and the municipality wants
to show that Billys shoulder was injured when he crashed into a tree a year before the
lamp post incident?

__________________________________________________________________

Q-TIP: Always ask yourselfFor what purpose is the evidence being offered?

__________________________________________________________________

2. Similar Accidents Caused by Same Instrumentality or Condition.

GENERALLY, other accidents involving defendant are inadmissible
because they suggest nothing more than defendants general character
for carelessness.

EXCEPTION: Other accidents involving the same instrumentality or
condition may be admitted for 3 potential purposes IF the other accident
occurred
_______________________________________:

(1) ____________________

(2) ____________________

(3) ____________________


HYPO 2. Assume in Hypo 1 that several other vehicles had collided with the same
lamp post that Billy ran into. Could Billy introduce those other accidents against the
municipality?

___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________

Substantial similarity is also the rule governing the admissibility of
EXPERIMENTS and TESTS.

3. Intent in Issue.

Prior similar conduct of a person may be admissible to raise an inference
of the persons intent on later occasion.

HYPO 3. Paris sues Brewski Co. for gender discrimination, alleging that she was
qualified for the job but was not hired because of her gender. She seeks to show that
Brewski hired no women, despite their qualifications, during the past 6 years.
Admissible?

___________________________________________________________________
___________________________________________________________________

4. Comparable Sales on Issue of Value.

Selling price of other property of similar type, in same general location,
and close in time to period at issue, is some evidence of value of property
at issue.


5. Habit.

Habit of a person (or routine of a business organization) is ADMISSIBLE
as circumstantial evidence of how the person (or business) acted on the
occasion at issue in the litigation.

DISTINGUISH: Character evidence refers to a persons general
disposition or propensity. Character is usually not admissible to prove
conduct on a particular occasion. E.g., Fact that Carlos is a careless
driver is inadmissible to suggest that he ran a red light and caused the
accident involving the plaintiff.

___________________________________________________________

DEFINITION: Habit is a repetitive response to a particular set of
circumstances.

Habit has 2 defining characteristics:

_______________________

_______________________

NEW YORK: Imposes an additional requirement for habit. In addition to
frequency and particularity of the conduct, the person must be: _________
_____________________________________. E.g., a dentist may testify
that she always administers anesthesia within a specific range of the teeth
being worked on. In products liability, New York allows evidence of the
habitual way in which a person uses a product. But a car driver may not
testify that he always signals to make right-hand turns because of the
many external variables that arise on roadways (e.g., traffic conditions,
speed, nature of intersections).

HYPO 4. In an auto accident case, the issue is whether Lindsay stopped her car at the
stop sign at the intersection of Hickory and Main Streets.

(a) Plaintiff calls Britney to testify that during the six months preceding the
accident, she had seen Lindsay run red lights, change lanes without using
signals and run stop signs throughout town. Admissible as habit evidence to
prove that Lindsay ran the stop sign at Hickory and Main?

________________________________________________________________
________________________________________________________________


(b) Britney will testify that she has seen Lindsay run the stop sign at Hickory and
Main on at least 8 occasions within a two-week period. Admissible as habit?

Multistate: __________________________________________________
________________________________________________________________
________________________________________________________________

New York: __________________________________________________
________________________________________________________________
________________________________________________________________

KEY WORDS: always, never, invariably, automatically,
instinctively.

Business Routine: Example: To prove that a particular letter was mailed
by CEO, evidence that CEO put letter in her out-box on Tuesday, and
messenger routinely picks up mail in CEOs out-box at 3:00 P.M. each
business day for delivery to mail room.

6. Industrial Custom as Standard of Care.

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 litigation should have acted, i.e., as evidence of the
APPROPRIATE STANDARD OF CARE.

Example: Plaintiff is injured when a blade spins off a lawn mower. In an
action against the manufacturer, she may show that 80% of all other lawn
mower manufacturers, during the relevant time period, had installed
devices to prevent blade spin-off.
___________________________________________________________
___________________________________________________________

C. Policy-Based Exclusions.

1. Liability Insurance.

Evidence that a person has (or does not have) liability insurance is
_______________ for the purpose of ____________________________
Policy: to avoid risk that jury will base decision on availability of insurance
instead of merits of case, and to encourage people to buy liability
insurance.

EXCEPTION: Evidence of insurance may be _________________ for
some other relevant purpose, such as: (a) proof of OWNERSHIP /
CONTROL OF INSTRUMENTALITY OR LOCATION, IF_____________
____________________________________ or (b) for the purpose of
_________________of a witness (the process of trying to show that a
witness should not be believed).
__________________________________________________________

HYPO 5. Rosie fell down a well on Trumps property. Rosie sues Trump, contending
that the well was impossible to see because of overgrown foliage. Trump denies that he
was negligent and also defends, in the alternative, on the ground that he did not own
the land in question.

(a) Should Rosie be allowed to introduce evidence that Trump carried a
homeowners liability insurance policy on the land?

(b) Same case. Apprentice, a witness called by Trump, testifies that she had
been on Trumps property just prior to the accident and there was no foliage
covering the well. May Rosie show, during cross-examination of Apprentice,
that Apprentice is a claims adjuster employed by the company that issued the
homeowners policy to Trump?

LIMITING INSTRUCTION should be given to the jury whenever evidence
is admissible for one purpose but not for another. Judge should tell jury to
consider the evidence only for the permissible purpose.

____________________________________________________________

2. Subsequent Remedial Measures (Post-accident repairs, design
changes, policy changes).
________________________________________________________

_________________ for the purpose of proving NEGLIGENCE,
CULPABLE CONDUCT, PRODUCT DEFECT, OR NEED FOR
WARNING. Policy: To encourage post-accident repairs, etc. to
avoid future accidents.

EXCEPTION: Subsequent remedial measures may be
_____________ for some other relevant purpose, such as proof of
OWNERSHIP / CONTROL or FEASIBILITY OF SAFER
CONDITION, IF EITHER IS ________________________.

HYPO 6. Penelope bought a cup of coffee at Dantes Coffee Inferno and scalded her
tongue because the coffee was too hot. She sues Dantes in negligence. Dantes
denies that it was negligent.

(a) At trial, Penelope seeks to introduce evidence that after the accident, Dantes
installed new thermostats on its coffee-brewing equipment. Penelope
contends that this conduct is an admission by Dantes that better safety
controls were feasible. Admissible?

(b) Same case, except now assume that Penelope contends that Dantes
negligence consisted of the failure to place warnings on its coffee cups
indicating that its coffee was too hot for human consumption. Dantes
defends, in part, on the ground that it was impossible to affix labels to its
coffee cups. Penelope seeks to introduce evidence that after the accident,
Dantes began to use cups that were pre-printed with warnings. Admissible?

NEW YORK: In a products liability action against a manufacturer
based on strict liability for a manufacturing defect, the
manufacturers post-accident manufacturing changes or design
changes are ___________ to suggest the existence of a defect in
the product at the time of the accident. Theory: The subsequent
changes are probative of a prior defect, and admitting such
evidence will not discourage safety improvements. Manufacturers
will make such changes without regard to evidence law in order to
avoid massive liability. (If the case against the manufacturer is
based on a negligence theory, the usual exclusionary rule applies.)


HYPO 7. Ed sues Empire Motors Inc. for injuries suffered in an accident in which Ed
was driving an automobile manufactured by Empire. Ed asserts strict liability, alleging
that a defect in the brakes of the car caused the accident. Defense: No defect. Ed
seeks to introduce evidence that after the accident, Empire changed the design of the
brakes in the type of car at issue. Admissible?

Multistate: ____________________________________________________________
_____________________________________________________________________

New York: ____________________________________________________________
_____________________________________________________________________

3. Settlements of Disputed Civil Claims.
________________________________________________________

In the event of a __________________________,
the following are INADMISSIBLE:
____________________________

____________________________

____________________________

for the purpose of ______________________________________.

Policy: To encourage settlement.

EXCEPTIONS:

(1) Settlement evidence admissible for the purpose of

_________________________________

(2) Statements of fact made during settlement discussion in civil
litigation with a ______________________________are
admissible in a later _______________ (e.g., corporate fraud
case in which corporate officers make admissions of fact during
civil settlement talks with the SEC and are later prosecuted for
crimes based on the same facts). Rationale: public policy
favors prosecutors use of highly probative factual evidence.

Note: The exception in criminal cases does not apply to
settlements and offers to settle.

NEW YORK has not adopted the government agency exception.

HYPO 8. On their way home from the Super Bowl, Eli and Payton were simultaneously
struck by a car being driven by Tom. Eli and Payton both filed suit against Tom, each
seeking $100,000. Tom denied all allegations.

(a) Before trial, Eli settled with Tom for $50,000. When Paytons case went to
trial, Payton sought to introduce the Eli-Tom settlement as evidence that Tom,
in effect, acknowledged his fault. Admissible?
______________________________________________________________
______________________________________________________________

(b) Before Paytons case went to trial, Payton and Tom met to discuss possible
settlement. During the discussion, Payton said, Ill accept $50,000 in
settlement. So what if I was jay-walking. Tom declined. At trial, should Tom
be allowed to introduce (1) Paytons offer to settle and (2) Paytons admission
that he was jay-walking?
______________________________________________________________
______________________________________________________________
______________________________________________________________

If Payton testified at the trial that he did not jay-walk, could Tom introduce
Paytons prior inconsistent statement to impeach his credibility?
______________________________________________________________
______________________________________________________________

(c) At the trial of Paytons case, Tom called Eli as a witness and Eli testified to
the effect that Tom had not driven negligently. On cross-examination of Eli,
should Payton be allowed to prove the Eli-Tom settlement?
______________________________________________________________
______________________________________________________________

NOTE: The exclusionary rule only applies if, at the time of the discussion, a
CLAIM has been asserted and it is DISPUTED either as to the validity of the
claim or the amount of damages.

HYPO 9(a). As and Bs cars collided. B immediately ran up to A and said, Look, Ill
settle with you for $100,000 if you dont sue. Should A be allowed to introduce Bs
statement against him at a subsequent trial?

______________________________________________________________________
______________________________________________________________________


HYPO 9(b). After As and Bs cars collided, A sent a letter to B saying, The accident
was all your fault. I demand that you pay my damages in the amount of $100,000. B
called A on the phone and said, Youre right about the accident. It was all my fault and
I owe you the full $100,000 youre asking for. But you know how fickle juries can be. If
you dont accept $50,000 now, youll have to sue me to get anything. Should A be
allowed to introduce Bs statements against B at a subsequent trial?

______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

Variation on 9(b): What if B had said, It was all my fault, but you didnt suffer $100,000
in damages?

______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

HYPO 10. Arnold sold toxic Terminator action figures to the public. The
Environmental Protection Agency (EPA) sued Arnold for civil penalties. Arnold denied
liability. In negotiations with the EPA, Arnold offered to settle for half the amount
sought, admitting during the discussions that the toys were toxic. Thereafter, the
Government prosecuted Arnold for violating criminal laws against the distribution of
toxic toys. In the criminal case, as evidence of Arnolds guilt, should the Government be
allowed to introduce:

(A) Arnolds offer to settle with EPA?
___________________________________________________________________
___________________________________________________________________

(B) Arnolds admission to EPA that the toys were toxic?

___________________________________________________________________
___________________________________________________________________


Plea Bargaining in Criminal Cases: The following are INADMISSIBLE:

Offer to plead guiltycannot be used against the defendant in the
pending criminal case or in subsequent civil litigation.

Withdrawn guilty pleacannot be used against the defendant in the
pending criminal case or in subsequent civil litigation. New York
Distinction: Admissible in a subsequent civil case against the
defendant.

Plea of nolo contendere (no contest)cannot be used against the
defendant in subsequent civil litigation.

Statements of fact made during any of the above plea discussions.

BUT, a plea of GUILTY (not withdrawn) is ADMISSIBLE against the
defendant in subsequent litigation under the rule of party
admissions (both federal and New York).

4. Offer to Pay Hospital or Medical Expenses.

Evidence that a party has paid or offered to pay an accident victims
hospital or medical expenses is ________________ to prove
liability. Policy: To encourage charity.
_____________________________________________________

NOTE: This rule does not exclude other statements made in
connection with an offer to pay hospital or medical expenses.
____________________________________________________

HYPO 11. Donnas car hit pedestrian Pablo. Donna immediately ran to Pablo and said,
(a) Dont worry about a thing. Ill pay for your hospital bills. (b) I shouldnt have run
that red light.

(a) Is statement (a) admissible against Donna?
________________________________________________________________

(b) Is statement (b) admissible against Donna?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

D. Character Evidence

Character evidence refers to a persons general propensity or disposition, e.g.,
honesty, fairness, peacefulness, or violence.

Potential purposes for the admissibility of character evidence:

(1) Persons character is an ESSENTIAL ELEMENT IN THE CASE.
__________________________________________________________

__________________________________________________________

(2) Character evidence as CIRCUMSTANTIAL EVIDENCE OF THE
PERSONS CONDUCT ON A PARTICULAR OCCASION.

__________________________________________________________

(3) Witnesss bad character for truthfulness to IMPEACH CREDIBILITY.

__________________________________________________________

__________________________________________________________

1. Criminal Cases.

(a) Defendants Character.

Overview: Evidence of the defendants character to prove
defendants conduct on a particular occasion _________________
DURING THE PROSECUTIONS CASE-IN-CHIEF.

However, DEFENDANT, during the defense, may introduce

___________________________________________________

(by reputation or opinion testimony of a character witness) to prove
conduct, thereby OPENING THE DOOR TO REBUTTAL by the
prosecution.

NEW YORK: The criminal defendant may seek to prove his
good character for the relevant trait only by reputation
evidence, not opinion

HYPO 12. Rambo is charged with murder. During its direct case, should the
prosecution be allowed to introduce evidence that Rambo has been convicted three
times for assault, has a bad reputation for violence, and he recently stampeded a herd
of cattle through the middle of town?

Should the prosecutions proposed evidence be admitted on the ground that
defendants violent character is an essential element of the crime with which Rambo is
charged?

_______________________________________________________________________

HYPO 13. During the defense, Rambo calls Trautman to the stand to testify: (1) Im
familiar with Rambos reputation for peacefulness, and it is excellent. (2) I personally
know Rambo, and in my opinion he is a peaceful person. Admissible? For what
purpose?

When character evidence about the defendant is admissible
through a character witness to prove conduct in conformity, the only
proper form:
______________________
______________________

(New York: ____________________________).

Could Trautman properly testify: Ive seen Rambo turn the other
cheek when assaulted by bullies; just last week he was elected
President of the local Pacifist Club.

Could Trautman properly testify, Rambos reputation for bravery
and honesty is excellent?
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________

(b) Prosecutions Rebuttal

IF defendant has opened the door by calling character witnesses,
the prosecution may rebut:

(1) by cross-examining defendants character witnesses with
Have you heard or Did you know questions about
specific acts or arrests of the defendant that reflect
adversely on the particular character trait that defendant
has introduced (prosecution must have good faith basis
for believing the act or arrest occurred); limited purpose:
to impeach character witnesss knowledge about the
defendant; and/or

(2) by calling its own reputation or opinion witnesses to
contradict defendants witnesses.

(New York: _________________________)

(3) NEW YORK ONLY: In addition to (1) and (2), the
prosecution may rebut the defendants good character
evidence by proving that the defendant has been
___________________________________ that reflects
adversely on the character trait in issue.

HYPO 14. During the defense of the Rambo murder trial, Rambo called Trautman to
testify to Rambos good character for peacefulness.

(a) Could the prosecutor ask Trautman, on cross-examination, (i) Have you
heard that Rambo was arrested last year for assaulting Rocky? and (ii) Did
you know he shot Judge Dredd three years ago?

(b) If Trautman denies having heard of the arrests or bad acts mentioned by the
prosecutor, may the prosecutor prove that they actually occurred?

(c) Could the prosecutor properly ask Trautman, Have you heard that Rambo
cheated on his income taxes last year?

HYPO 15. During the defense of the Rambo murder trial, continue to assume Rambo
introduced Trautmans testimony about Rambos good character for peacefulness.

(a) After the defense rests, the prosecution calls Murdock to testify that he
has known Rambo for twenty years, is familiar with Rambos reputation for
peacefulness in the community, and that such reputation is bad. Rambos
attorney objects on the ground that this is impermissible character
evidence.


(b) After the defense rests, could the prosecution introduce a certified copy of
a 15-year-old conviction of Rambo for assault with a deadly weapon?
Multistate: __________________________________________________

New York: __________________________________________________
__________________________________________________

HYPO 16. In the Rambo murder trial, assume that the only witness who testified during
the defense was Rambo himself, and he testified only to the fact that he did not commit
the murder. After the defense rests, the prosecution calls Murdock to testify that Rambo
has a reputation for violence. Rambos attorney objects on the ground that this is
impermissible character evidence.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

(c) Victims CharacterSelf-Defense Case
FEDERAL RULE
The criminal defendant may introduce evidence of victims violent
character as circumstantial evidence that the victim was the first
aggressor, i.e., that victim struck first.
Proper method: character witness may testify to victims bad
reputation for violence and/or may give opinion.

Prosecution rebuttal:

(1) evidence of _______________ good character for peacefulness
(with reputation or opinion); and/or

(2) evidence of _______________ bad character for violence
(reputation or opinion).

Special rule in Homicide: If defendant offers evidence of any kind
that victim was the first aggressor, prosecution may introduce
evidence of victims good character for peacefulness. Example:
Ds witness testifies, Victim aimed a gun at D.
NEW YORK RULE: Evidence of the victims character for
violence is ___________________________ to prove

______________________________________________.

HYPO 17. Defendant, Coach Bobby, has been charged with assault for throwing a
chair at Tonya. Coach Bobby claims that Tonya started the fight and lunged at him with
a knife. To prove that Tonya was the first aggressor, Bobby calls Nancy to testify:

(a) I know Tonya, and in my opinion Tonya is a very violent woman.

Federal: ____________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________

(b) I myself was the victim of an unprovoked knife attack by Tonya a few years
ago.

Federal: ____________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________

(c) May Bobby testify in his own defense that, at the time of the altercation with
Tonya, he was aware of her bad reputation for violence and her prior knife
attack on Nancy?

Special rule for defendants knowledge of victims bad character for
violence (Federal and New York):

Defendant may offer evidence of his own __________________ of the
victims bad character for violence (victims reputation or bad acts) for the
purpose of showing
___________________________________________________________
___________________________________________________________


(d) Victims CharacterSexual Misconduct Case

Under rape shield law, where defendant is alleged to have
engaged in sexual misconduct, the following evidence about the
victim is ordinarily inadmissible:

Opinion or reputation evidence about the victims sexual
propensity, or

Evidence of specific sexual behavior of the victim

Exceptions in Criminal Cases:

(1) specific sexual behavior of the victim to prove that
someone other than the defendant was the source of
semen or injury to the victim;

(2) victims sexual activity with the defendant if the defense
of consent is asserted; or

(3) where exclusion would violate defendants right of due
process. Example: Love Triangle Defense: Defendant
should be allowed to show that the victim had a sexual
relationship with X at the time of defendants alleged rape
if X became aware that victim and defendant had sexual
contact. Purpose: to suggest the victim had motive to
falsely claim that the sexual contact with defendant was
nonconsensual in order to preserve the victims
relationship with X.

Exception in Civil Cases:

The court may admit evidence of specific sexual behavior or sexual
propensity of the victim if its probative value substantially outweighs
the danger of harm to the victim and unfair prejudice to any party.

2. Civil Cases

(a) Character evidence generally INADMISSIBLE to prove a
persons conduct on a particular occasion.
HYPO 18. A sues B for automobile negligence.

(a) During the plaintiffs case in chief, A seeks to offer evidence of Bs reputation
for careless driving. Admissible?
_____________________________


(b) During the defense, B calls Witness to testify that in her opinion, B is a
prudent and careful driver. Admissible? _______________________
________________________________________________________
________________________________________________________

HYPO 19. Nicoles estate sues OJ for wrongful death damages, alleging that OJ
intentionally killed Nicole. During the defense, may OJ properly introduce evidence of
his peaceful character?
____________________________________________________________________
____________________________________________________________________

(b) Evidence of a persons character is ADMISSIBLE in a civil action
where such character is an ESSENTIAL ELEMENT OF A CLAIM
OR DEFENSE (provable by reputation, opinion, and specific acts).
Only 3 situations:
____________________________
____________________________
____________________________

Example (1): P was struck in 2012 by a truck being driven by
Charlie, who was acting within the scope of his employment for
Acme Trucking. P sues Acme, alleging that Acme was negligent in
hiring Charlie in 2011 and thereafter allowing him to drive on
Acmes behalf. (Tort theory: Acme knew or should have known that
Charlie was an accident risk.) P may introduce the testimony of
character witnesses that Charlie had a reputation for being a
careless driver, and they have a low opinion of Charlies care in
driving. P may also prove that Charlie had been involved in three
prior accidents. (New York: acts and reputation only.)

Example (2): P sues Newspaper for libel based on a story in which
P was accused of being dishonest. To support its defense of
truth, Newspaper may introduce reputation, opinion and specific-
act evidence about Ps dishonesty; and P may use the same type
of evidence to show Ps honesty. (New York: acts and reputation
only.)

Example (3): In a matrimonial dispute, H and W contest the
custody of child X. On the fitness of each parent to have custody,
evidence is allowed of each parents relevant acts and reputation
as well as opinion evidence bearing on their fitness. (New York
allows only acts and reputation, not opinion as to parents fitness.)

E. Defendants Other Crimes for Non-Character Purpose.

General rule: Other crimes or specific bad acts of defendant are not admissible
during the prosecutions case-in-chief if the only purpose is to suggest that
because of defendants bad character he is more likely to have committed the
crime currently charged. Not allowed: Once a robber, always a robber.

Example: D is charged with robbing bank A. The fact that D robbed bank B six
months later would be inadmissible character evidence.

BUT, defendants bad acts or other crimes may be admissible to show:

______________________________________________________________

(something separate and apart from mere propensity to commit the crime.)

The five most common non-character purposes are: MIMIC

_________________________

_________________________

_________________________

_________________________

_________________________

NOTE: If a MIMC category is satisfied, the prosecution may use other-crimes
evidence as part of its case-in-chief. MIMIC evidence is not dependent on
defendants introduction of favorable character evidence.

HYPO 20. Defendant is charged with the murder of Officer Johnson. The prosecution
seeks to prove that Defendant was convicted and imprisoned five years ago for
narcotics sales in the aftermath of an investigation and arrest made by Officer Johnson.
Defendant objects on the ground of impermissible character evidence. What ruling?

_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________


HYPO 21. Defendant is charged with possession of narcotics with the intent to sell. He
defends on the ground that he was merely a possessor and usernot a sellerof the
drugs. The prosecution seeks to prove that Defendant sold drugs a year ago in the
vicinity of the arrest in the current case. Admissible?

_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 22. Lizzie Borden is accused of intentionally killing her mother with an ax.
Defense: accident. Prosecution seeks to show that Lizzie threw a knife at her mother
during a family quarrel one week before the mothers demise. The evidence:

(A) Is admissible because it shows Lizzies propensity for violence.

(B) Is admissible because it shows the ax incident was not an accident.

_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 23. D is charged with the armed robbery of a Wal-Mart in Albany early in the
afternoon of July 1. Defense: mistaken identity. Prosecution seeks to introduce
evidence that around noon on July 1, D robbed a Sears and a Target in Albany, in the
same vicinity as the Wal-Mart.

_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 24. Defendant is prosecuted for robbing the First National Bank. Defense: alibi.
Prosecution introduces evidence that the robber wore a red ski mask, carried a .38
caliber gun and used a unique stick-up note. Prosecution then seeks to prove that
Defendant used the same modus operandi when robbing the Second National Bank a
year ago.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________


HYPO 25. Defendant is charged with robbing the First National Bank. The prosecution
seeks to prove that two days before the robbery, the Defendant stole a white Acura from
a neighbor in the same town. The robber of the First National Bank used a white Acura
for the getaway.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

Method of proof of MIMIC-purpose crimes:

By conviction, or by evidence (witnesses, etc.) that proves the
crime occurred: conditional relevancy standardprosecution need
only produce sufficient evidence from which a reasonable juror
could conclude that defendant committed the other crime.

New York Distinction: In using MIMIC crime to show defendants
identity, the prosecution must produce_____________________
_______________________that the defendant committed the other
crime. (For the other categories of MIMIC, there is no clear rule.)

Upon defendants request, prosecution must give pretrial notice of
intent to introduce MIMIC evidence. In all cases, court must also
weigh probative value vs. prejudice and give limiting instructions if
MIMIC evidence is admitted.

MIMIC IN CIVIL CASES: If relevant for non-character purpose,
MIMIC evidence can also be used in civil cases, such as tort
actions for fraud or assault.
_____________________________________________________

F. Other Sexual Misconduct to Show Propensity for Sexual Assaults or
Child Molestation

Under FRE only, in a case alleging sexual assault, Defendant's __________
_________________________ ADMISSIBLE as part of the case-in-chief of
the prosecution (in a criminal case) or of the plaintiff (in a civil action) for the
purpose of showing _________________________________________.

In a case of child molestation, same rule allows prior acts of child molestation.

Note: This rule allows prior acts only; not reputation or opinion.

NEW YORK: Has not adopted federal rule. Defendants prior sex crimes not
allowed unless MIMIC Rule is satisfied. Examples: (1) If distinctive M.O.
shows identity; (2) Prior sexual acts directed at same person who is the victim
in the current case shows motive (passion toward same person) or common
scheme or plan.

II. AUTHENTICATION OF WRITINGS

Q-TIP: Whenever a writing appears on the exam, be alert to 3 potential issues
(aside from relevance): authentication, best evidence rule, and hearsay.

OVERVIEW: If the relevance of a writing depends upon its source or
authorship, a showing must be made that the writing is authentic
(genuine), i.e., that it is what it purports to be. This is the process of
authentication.

In the absence of a stipulation as to authenticity, a FOUNDATION must be
made in order for the document to be admissible.

A. Methods of Authentication, In General

Issue: whether X is the author of DOCUMENT.

1. Witness personal knowledge: Witness observed X sign document.

2. Proof of Handwriting

(a) ___________________________ (Lay witness testifies to
opinion that X wrote document on basis of familiarity with Xs
handwriting as result of experience in normal course of affairs.)

(b) ___________________________ (Handwriting expert testifies
to opinion that X wrote document on basis of comparison
between document and genuine sample (exemplar) of Xs
handwriting.)

(c) ___________________________ (Jury compares document
with exemplar of Xs handwriting.)

3. Proof by Circumstantial Evidence

A party may rely on circumstantial evidence, such as appearance,
contents, substance, internal patterns or other distinctive
characteristics (e.g., if the document refers to information that only X
would know, this may be used as an inference that X is the author).

4. Ancient Document Ruleauthenticity may be inferred IF document is:

(a) _______________________ (New York: Period is 30 years.)

(b) _______________________

(c) _______________________

5. Solicited Reply Doctrine

Document can be authenticated by evidence that it was received in
response to a prior communication to the alleged author.

Example: P mails contract offer to X, properly addressed and
posted, and later receives an acceptance purportedly signed by X.

Procedure: Questions of fact on issues of authentication:

HYPO 26. During plaintiffs case-in-chief, Witness testifies that, in her opinion,
document was written by X because she is familiar with Xs handwriting. X advises the
judge that he intends to testify during the defense that the document is a forgery and
argues that the judge cannot admit the document into evidence until the judge is
personally convinced that the document was written by X. Good argument? ________

Conditional relevancy standarddocument is admissible if court
determines there is sufficient evidence from which a reasonable
juror could conclude document is genuine, i.e., that X is the author.
_____________________________________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________

B. Self-Authenticating Documents

In General. Presumed authenticno need for foundation testimony:
__________________________________________________________

(a) Official publications

(b) Certified copies of public or private records on file in public
office

(c) Newspapers or periodicals

(d) Trade inscriptions and labels

(e) Acknowledged document

(f) Signatures on Commercial paper

C. Authentication of Photographs

Witness may testify on the basis of personal knowledge that the
photograph is a __________________________ of the people or
objects portrayed.

HYPO 27. Alice testifies that she observed the auto accident that occurred at the
intersection of Hickory and Elm Streets on July 1. She is shown a photograph and
asked whether it is a fair and accurate portrayal of the Hickory and Elm intersection as
she remembers it on July 1. Objection: No foundation that Alice was the
photographer. What ruling?
______________________________________________________________________
______________________________________________________________________

III. BEST EVIDENCE RULE

Definition: A party who seeks to prove the contents of a ______________ must
either:
________________ the original writing, or

provide ____________________________.

If the court finds the excuse is acceptable, the party may then use secondary
evidenceoral testimony or a copy.

NOTE: The definition of writing includes sound recordings, X-rays, and films.


HYPO 28. Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a
written purchase order. In his suit for breach of contract, Bubba takes the stand and
testifies, I didnt get what I ordered. The purchase order called for 3 jumbo shrimp and
they delivered 1 mini-shrimp. Which of the following would be a valid objection to
Bubbas testimony?

(A) The actual shrimp are the best evidence of what was delivered.
(B) The purchase order is the best evidence of what the contract required.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

A. When best evidence rule applies: When a party is seeking to prove
the contents of a writing.

1. The writing is a legally operative document in the present case,
i.e., the writing itself creates the rights and obligations at issue
(e.g., patent, deed, mortgage, divorce decree, written contract.
________________________________________________
________________________________________________
________________________________________________

2. Witness is testifying to facts that she learned solely from reading
about them in a writing.

HYPO 29. Tommy the Terrorist is charged with detonating a bomb. No one witnessed
the detonation, but it was captured on film by an unmanned surveillance camera.
Counterterrorism Agent Jack Bower testifies that he watched the film and it clearly
shows Tommy was the bomber. Objectionable?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

B. When best evidence rule does not apply: When a witness with
personal knowledge testifies to a fact that exists independently of a
writing that records the fact.
_______________________________________________________
_______________________________________________________
_______________________________________________________

HYPO 30. Agent Jack Bower is prosecuted for giving perjured testimony at a
congressional hearing into the use of torture during the interrogation of terrorist
suspects. At trial, a congressional aide offers to testify to what Jack said during the
hearing. True or False: The aides testimony is improper because the transcript is the
best evidence of what Jack said.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 31. Agent Jack Bower, claiming he worked a 24-hour shift, sues Boss for
nonpayment of wages and failure to reimburse for expenses.

(a) Without producing any documents, Jack testifies, I worked 24 hours and my
expenses were $15 million. Boss objectsBest evidence rule. Produce the time
sheets and expense receipts.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

(b) Without producing any documents, Boss testifies: Jacks time sheets show he
worked only 20 hours, and the receipts show only $10 million in expenses.
_____________________________________________________________
_____________________________________________________________

C. What qualifies as the original writing?

1. Whatever the parties intended as the original; any counterpart intended
to have the same effect; any negative of film or print from the negative;
printout of computer-stored data.

2. DUPLICATEany counterpart produced by any mechanical means
that accurately reproduced the original (e.g., photocopy, carbon copy).
Rule on duplicates: duplicate is admissible to same extent as original
UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine
question is raised as to authenticity of original.

New York Distinction: Photocopies are acceptable as substitutes for
the original only if made in ordinary course of business.

3. Handwritten copy is neither an original nor a duplicate.


D. Excuses for non-production of original

1. lost or cannot be found with due diligence

2. destroyed without bad faith

3. cannot be obtained with legal process

If the court is persuaded by a preponderance of the evidence that an
excuse has been established, then secondary evidence is admissible
(e.g., testimony based on memory or a handwritten copy).

E. Escapes from the Requirements of the Best Evidence Rule

1. _______________________ can be presented through a summary or
chart, provided the original records would be admissible and they are
available for inspection.

2. Certified copies of ____________________________

3. ____________________________________

If court, in its discretion, determines writing is unimportant to the issues
in the case, contents may be proven by secondary evidence.
________________________________________________________
________________________________________________________
________________________________________________________


IV. WITNESSES

A. Competency of Witness, In General
(the testimonial qualifications a witness must have in order to be allowed to
testify)
1. Basics:
(a) Personal Knowledge _________________________________
__________________________________________________

(b) Oath or Affirmation _________________________________
__________________________________________________

2. NEW YORK RULE for testimony by CHILDREN.

The general rule is that a child of any age may testify under oath if the
child understands and appreciates the duty to tell the truth.
(a) Civil cases: A child must be able to testify under oath.

(b) Exception for Criminal cases: A child under the age of _____
who cannot understand the duty of an oath may still testify (i.e.,
the child may give __________________________.) BUT, a
defendant cannot be convicted based solely on the unsworn
testimony of a child. There must be some ________________
__________________________________________________.
B. Dead Mans Statute
In General (Multistate rules)
(1) Witness is not ordinarily incompetent merely because she has
an interesta direct legal stakein outcome of the litigation.

(2) BUT some states have a Dead Mans Statute. The typical
statute provides:

i. in a ____________ action,

ii. an _____________ witness

iii. is ______________ to testify

iv. against the estate of a _____________

v. concerning ______________________________
between the interested witness and the decedent.


Rationale: To prevent perjury against the decedents estate.

HYPO 32. Adele sued Elvis for breach of an oral contract. Elvis denied that any
contract was made. Elvis died before trial. (a) May Adele testify to what Elvis said and
did in negotiating the contract? (b) May Adeles friend Katy, who witnessed the making
of the contract, testify to what Elvis said and did?
______________________________________________________________________
______________________________________________________________________

Under the FRE, there is no dead mans statute. Thus, on
Multistate exam, witnesses ordinarily are not incompetent on this
ground. BUT, if question explicitly states that the particular
jurisdiction in which the case arises has a dead mans statute,
apply the rule in B(2) above.

Answer to Hypo 32 in a state that has a Dead Mans Statute:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

NEW YORK:

The New York Dead Mans Statute is similar to the rule in most other
states with one important exception:

New York automobile accident exception: In an auto accident case based
on negligence, the surviving interested party:

(1) May testify about __________________________________________.

(2) BUT may not testify about ___________________________________

__________________________________________________________.


HYPO 33. Adele sues the administrator of Elviss estate in New York for injuries
allegedly caused by Elviss negligent driving. (Elvis died a few days after the accident.)

(a) May Adele testify, over a competency objection, that immediately
after the accident:

(1) Elvis staggered as he approached me.
_______________________________________________________
_______________________________________________________

(2) Elvis said, It was all my fault.
_______________________________________________________
_______________________________________________________

(b) If Katy (a friend of Adele) also witnessed the event, may Katy testify
that Elvis admitted his fault?

_______________________________________________________
_______________________________________________________
_______________________________________________________

C. Leading Questions

Form of question suggests the answer (e.g., Isnt it a fact that you ran the red
light?; or unevenly balanced alternatives, such as Were you driving really fast
or in some other way?)

(a) GENERALLY _____________________ on DIRECT EXAMINATION
of witness.

(b) Generally________________ on CROSS-EXAMINATION of witness.

(c) EXCEPTIONS: Leading questions are allowed on DIRECT EXAM in
four situations:

(1)_____________________________

(2)_____________________________

(3)_____________________________

(4)_____________________________

D. Writings in Aid of Oral Testimony

1. Refreshing Recollection

(a) Basic rule: Witness may not read from prepared memorandum;
must testify on basis of current recollection.

(b) BUT if witnesss memory fails him, he may be shown a
memorandum (or any other tangible item) to jog his memory.

HYPO 34. Homer Simpsons house was burglarized two years ago, and several
valuable items were stolen. Simpson sued his insurer for failing to pay the loss covered
by his homeowners policy. While on the stand at trial, Homer has trouble remembering
all of the stolen items. To refresh Homers recollection, his attorney shows him a copy
of a list of the missing items that Homer prepared for the police the day after the
burglary. Insurer objects on the ground of lack of authentication, best evidence rule and
hearsay.

(a) What ruling? ___________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________

(b) If Homers recollection is refreshed, may he then read the list into evidence?

______________________________________________________________
______________________________________________________________
______________________________________________________________

(c) Safeguards against abuse: adversary has right:

(1) to inspect the memory-refresher

(2) to use it on cross-examination

(3) to introduce it into evidence


2. Past Recollection Recorded (Hearsay Exception)

HYPO 35. In Hypo 34, Homer looks at the list of stolen items he prepared for the police
the day after the burglary. It fails to jog his memory, and he is still unable to testify on
the basis of current recollection. At this point, Homers attorney seeks to read the list to
the jury. Objection: hearsay.

Hearsay exception for past recollection recorded. Foundation for
reading contents of writing to the jury:

(1) showing writing to witness fails to jog memory

(2) witness had personal knowledge at former time

(3) writing was either made by witness, or adopted by
witness

(4) making or adoption occurred ______________________
_____________________________________________
_____________________________________________

(5) witness can vouch for accuracy of writing when made or
adopted.

New York Distinction: If the 5-factor foundation is
established, the writing may be shown to the jury. Under
FRE, the proponent may only read it to the jury.

HYPO 36. After laying foundation, Homers attorney seeks to introduce Homers
memorandum into evidence as an exhibit.

(a) Federal: ___________________________________________________
____________________________________________________________

(b) New York: ___________________________________________________

(c) May the insurer have the memorandum introduced as an exhibit?
____________________________________________________________
____________________________________________________________


E. Opinion Testimony

1. Lay Witness

(a) Lay opinion admissible if:

(1) _______________________________________
(personal knowledge), and

(2) _______________________________________

(b) Examples:

drunk/sober

speed of vehicle

handwriting

emotions of another person

sane/insane

odors

handwriting

character (when permitted)

2. Expert Witness

(a) Qualifications:

education ______________________________________

AND/OR experience _____________________________

(b) Proper Subject Matter

Scientific, technical or other specialized knowledge that will
be __________________ to the jury in deciding a fact. E.g.,
an opinion is not helpful if the proposition is obvious, such as
expert testimony that children are attracted to red balloons.


(c) Basis of Opinion

Expert must have an opinion based on reasonable degree
of probability or reasonable certainty.

The expert may draw upon three permissible data sources:

(1) Personal knowledge (e.g., treating physician);

(2) Other evidence in the trial record (testimony by other
witnesses, exhibits (medical reports, X-rays))made
known to expert at trial by hypothetical question; or

(3) facts not in evidence (from outside the record) if

_________________________________________
_________________________________________

Note: In general, the contents of such out-of-court
material should not be disclosed to the jury (if it does not
fit within an independent hearsay exception) because of
the hearsay danger that the jury will misuse the out-of-
court material for its truth. However, if the judge
determines that disclosure would help the jury evaluate
the experts opinion, the out-of-court material may be
admitted with a warning to the jury to consider it only in
evaluating the quality of the experts opinion.

HYPO 37. Dr. Seuss, a board-certified child psychiatrist, testifies, In my opinion,
within a reasonable degree of medical probability, Bartholomew Cubbins preoccupation
with hats is a disabling psychosis. My opinion is based on (1) my own clinical interviews
and tests of Bartholomew; (2) exhibits 1 and 2 in evidence (MRI test results, medical
office records of Dr. Grinch); (3) interviews of Bartholomews friends Wump, Gump and
Thump; and (4) a written report prepared by Dr. Sam I. Am. As to items (3) and (4), this
is the type of information that psychiatrists like me customarily rely upon in making
evaluations.

(a) Bartholomew moves to strike Dr. Seusss opinion because it is based, in part,
on inadmissible hearsay.
______________________________________________________________
______________________________________________________________


(b) Should Dr. Seuss be permitted to testify further, Let me tell you what Wump
said during our interview . . . . . . . and let me read you what was in Dr. Sam I.
Ams report?
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________

(d) Relevance and Reliability

To be admissible, expert opinion must be relevant to the
issue at hand and SUFFICIENTLY RELIABLE. That means
the expert must use reliable methods and principles and
reliably apply them to the facts of the case.

Court serves as gatekeeper, and will use four principal
factors to determine reliability of principles and methodology
used by expert (all types) to reach opinion (Daubert)
TRAP

Testing of principles or methodology

Rate of error

Acceptance by other experts in same discipline
_____________________________________________

Peer review and publication

NEW YORK: If the opinion is based on science (e.g., medicine,
engineering, social psychology), the method or principle must have
achieved ______________________________ (Frye standard).

Non-scientific opinion may be based on the experts experience
without the need to satisfy the general acceptance standard. E.g.,
a pathologist may testify that, based on her experience, a certain
type of neckhold could kill a person within 1-2 minutes without
having to show general acceptance of this principle among other
pathologists.

(e) Learned Treatise in Aid of Expert Testimony (Federal Hearsay
Exception)

(1) On direct examination of partys own expert:

Relevant portions of treatise, periodical, or pamphlet may be
read into evidence as substantive evidence (to prove truth of
matter asserted) if established as reliable authority.

(2) On cross-examination of opponents expert:

Relevant portions of treatise, etc. may be read into evidence to
impeach and contradict opponents expert. Also, comes in as
substantive evidence.

Note: In both (1) and (2), the treatise may be used only with the
testimony of an expert; the treatise is not admissible by itself.
Also, the treatise may not be introduced as an exhibit; the
proponent can only read relevant passages to the jury.

NEW YORK:

(1) On direct examination of partys own expert:

There is ______________________ in New York for the
contents of a learned treatise. The treatise may only be used to
show the general basis of the experts testimony, not as
substantive evidence._________________________________

(2) On cross-examination of opponents expert:

The learned treatise may only be used to ____________ the
experts credibility (not as substantive evidence), AND only if the
expert relied on the treatise in developing her own opinion or
acknowledged on cross that it is a reliable authority.

Example: On cross-examination, a doctor is asked, Do
you recognize Grays Anatomy as an authoritative
treatise? If the doctor says No, then no further
questions to the doctor may be based on that treatise. If
the doctor answers Yes, then the cross-examiner may
point to passages in the treatise that are inconsistent with
the doctors testimony but only for the purpose of
showing that there is a difference of opinion in the
medical profession. The passages in the treatise are not
admissible as substantive evidence.

3. Ultimate Issues

Opinion testimony (lay or expert) is not objectionable just because it
embraces an ultimate issue in the case (e.g., in DWI case,
layperson testifies X seemed drunk could be admitted). BUT, all
other requirements for opinion testimony must be satisfied including
the requirement that the opinion
is______________________________ (e.g., witness would not be
allowed to give opinion that the defendant is guilty (or innocent)).

HYPO 38. In a personal injury case, Defendant is alleged to have been driving
recklessly at the time of a car accident. Witness who observed the event testifies that
Defendant looked angry, smelled of alcohol and drove away from the scene at 80 m.p.h.
Witness then states, It looked to me as though Defendant was engaged in conduct
constituting a reckless disregard for the safety of others. Objectionable?

(A) Yes, because Witness is testifying to the ultimate issue.

(B) Yes, because Witnesss opinion is not helpful.
______________________________________________________________
______________________________________________________________
______________________________________________________________

Federal Rule on Defendants Mental State in Criminal Cases: Ultimate issue is
still proper objection if expert seeks to give direct opinion that defendant did or
did not have relevant mental state. Thus, the following is not allowed: Ds
insanity prevented him from understanding that he was shooting at the victim in
this case. The expert can only testify in general terms about the effects of a
defendants mental condition without linking it to the particular case, such as: D
has schizophrenia. A person with such disease cannot distinguish fact from
fantasy.

Cross-Examination

1. Party has a RIGHT to cross-examine any opposing witness who
testifies at the trial. Significant impairment of this right will result, at
minimum, in striking of witnesss testimony.

2. Proper subject matter:

(a) Matters ____________________________of direct
examination, __________________________________
______________________________________________ AND

(b) Matters that test the witnesss ______________.

G. Credibility and Impeachment, In General

1. Bolstering Own Witness

The rule: not allowed until _______________________________
____________________________________________________.

(Post-impeachment repair of witnesss credibility is called
rehabilitation.)

HYPO 39. Plaintiff calls Witness 1 to the stand. Witness 1 testifies that she saw
Defendants car run the red light. Defense counsel states that she has no questions for
the witness. After Witness 1 steps down, Plaintiff calls Witness 2 who testifies, Witness
1 has a good reputation for truthfulness. Objectionable?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

Variation: Witness 1, after testifying that she saw Defendants car run the red light, then
testified, I told everyone at work the next day that I had seen Defendant run the red
light. This is an inadmissible prior consistent statement:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

EXCEPTION: ______________________________________
(e.g., Witness testifies that she recognizes D, sitting in court, as the
perpetrator. In addition, I picked D out of a line-up two weeks after
the robbery). Might seem like hearsay (out-of-court statement
offered to prove truth of statement) but prior identification by trial
witness is not barred by hearsay rule. FRE calls this an exclusion
from hearsay, and it comes in as substantive evidence.

New York: admissible as substantive evidence as a hearsay
exception.

NOTE: Witness who made prior identification must testify at trial
and must be subject to current cross-examination. For example, if
the individual who made the identification at the line-up is out of the
country at the time of trial, a police officer who observed the out-of-
court identification would not be permitted to testify about it at trial.


2. Partys Impeachment of Own Witness

FEDERAL: Any party may impeach any witness, including her own
witness, by any method of impeachment. (Note: Although the
Rules speak only of impeaching a witness on cross-examination, a
party can impeach her own witness during direct examination.)

NEW YORK:

(a) General rule: A party may not impeach her own witness.

(b) Exception: A party may impeach her own witness with a prior
inconsistent statement but only if it was:

(1) made in writing and ________________________, or

(2) made in oral _____________________________.

Additional limitation in criminal cases: the prior inconsistent
statement may be used only if the witnesss current
testimony is _______________________ to the party who
called the witness, not merely a cloud on credibility.

HYPO 40. In a domestic violence case, Bella testifies before the grand jury that her
boyfriend Edward assaulted her. At Edwards subsequent trial, the prosecution calls
Bella to the stand to testify against Edward.
(a) If, to the prosecutions surprise, Bella testifies that it was Jacob, not Edward,
who committed the assault, her prior grand jury testimony is:
______________________________________________________________
______________________________________________________________

(b) Now assume, instead, Bella testified, I dont remember who assaulted me:
______________________________________________________________

H. Impeachment Methods

(1) Prior Inconsistent Statements
(2) Bias, Interest or Motive to Misrepresent
(3) Sensory Deficiencies
(4) Bad Reputation or Opinion about witnesss character for
truthfulness
(5) Criminal Convictions
(6) Bad Acts (without conviction) that reflect adversely on witnesss
character for truthfulness
(7) Contradiction

Procedure Overview: There are two possible ways to use impeachment
methods:

(1) Ask the witness about the impeaching fact with the aim of
having the witness admit it (confronting the witness), or

(2) Prove the impeaching fact with extrinsic evidence
(documentary evidence or testimony from other witnesses).

(1) The impeaching fact may be proven with extrinsic evidence as to the
following impeachment methods: ____________________________
__________________________________________________________

(2) For the impeachment methods that allow extrinsic evidence, it is not
necessary to ask the witness about the impeaching fact before the
extrinsic evidence is introduced, EXCEPT:
Multistate:

New York:

1. Prior Inconsistent Statements

A witness may be impeached by showing that on some prior occasion,
she made a material statement (orally or in writing) that is inconsistent
with her trial testimony.

GENERAL PURPOSE: The prior inconsistent statement is admissible
only for the purpose of _____________________ (to suggest trial
testimony is false or mistaken (witness cant keep the story straight),
not as substantive evidence that the statement is true).

EXCEPTION: A prior inconsistent statement of a witness may be
admitted both to impeach and as substantive evidence (to prove the
truth of the matter asserted in the prior statement), if the witness is
currently subject to cross-examination and the prior inconsistent
statement was made:
(a) _______________________________________, and

(b) ___________________________________________
______________________________________________
(called hearsay exclusion)

NEW YORK: Prior inconsistent statements, even if given in formal
testimony under oath, are admissible only to impeach.

HYPO 41. Defendant is sued for negligence in a multi-vehicle accident in which he was
driving his Suburban. Witness testifies for plaintiff that she saw the Suburban run the
stop sign.

(a) On cross-examination, may Defendants counsel seek to establish that a few
days after the accident, Witness told the police that the Jeep Cherokee, not
the Suburban, ran the stop sign? __________________________________
_____________________________________________________________

(b) If Witness admits she made the prior inconsistent statement, may Defendant
use the statement as substantive evidence that the Jeep Cherokee, rather
than the Suburban, ran the stop sign? ______________________________
_____________________________________________________________
_____________________________________________________________

(c) What if Witness made her prior inconsistent statement about the Jeep
Cherokee at a grand jury proceeding in which she gave sworn testimony?

Multistate: ____________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________

Procedural Issue: Must Witness be confronted with her prior inconsistent
statement while still on the stand, or may it be proven later by extrinsic
evidence without such confrontation?

FEDERAL: Confrontation timing is flexible: Not required to immediately
confront Witness. But after proof by extrinsic evidence, Witness must be
given an opportunity at some point to return to stand to explain or deny the
prior inconsistent statement.

NEW YORK: The witness must be confronted with the prior inconsistent
statement while she is on the stand. (If oral, tell witness what was said,
when and where; if in writing, show it to the witness.)

EXCEPTION (FRE and New York): No need to give Witness any
opportunity to explain if Witness is ___________________________.

Also, the prior inconsistent statement of an opposing party can be used
against that party as substantive evidence (party admission or
statement of an opposing party).

HYPO 42. In auto accident case, Plaintiff testifies that she was wearing her seat belt.
Defendant does not cross-examine her. During the defense, Defendant calls Joe the
Bartender, who testifies that Plaintiff told him, at Joes bar a week after the accident,
that she had NOT been wearing her seat belt.

(a) Should Plaintiffs motion to strike be granted on the ground that Plaintiff was
not given an immediate opportunity to explain or deny the inconsistency?
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

(b) Is Plaintiffs statement admissible to impeach Plaintiff AND as substantive
evidence that she was not wearing her seat belt?

_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

2. Bias, Interest or Motive to Misrepresent

May impeach a witness by showing any fact that would give the
witness a reason to testify favorably or negatively about a partys
case. Purpose: to suggest testimony is false, slanted, or mistaken
in partys favor.

Examples: Witness is the party herself; friend, relative or employee
of party; expert witness being paid by party; person with grudge
against a party; witness for the prosecution who is an accomplice of
the defendant, and therefore has motive to curry favor with the
prosecution.
Procedural Issue:

(a) Must witness be confronted with alleged bias while on the
stand?

Federal: ________________________________

New York: Confrontation of witness not required.

(b) If confrontation prerequisite is met, may bias be proven
by extrinsic evidence?
________________________________________

3. Sensory Deficiencies

Anything that could affect witnesss perception or memory.
Examples: bad eyesight, bad hearing, mental infirmity,
consumption of alcohol or drugs at time of event or while on the
witness stand. Purpose: to suggest mistake.

Confrontation required? _______

Extrinsic evidence allowed? _______
_____________________________________________________
_____________________________________________________

4. Bad Reputation or Opinion About Witnesss Character for
Truthfulness

Any witness is subject to impeachment by this method.

Confrontation required? ________

Extrinsic evidence allowed? _______

Call a character witness to testify that Target Witness has bad
reputation for truthfulness, or that character witness has low opinion
of Target Witnesss character for truthfulness. Purpose: to suggest
that Target Witness is not telling the truth on the witness stand.

NEW YORK: Character witness can only testify about target
witnesss bad reputation for truthfulness. (Opinion on truthfulness
not allowed.)

HYPO 43. Larry testifies for the prosecution that he saw Defendant commit the crime.
During the defense: Defendant calls Rev. Al to testify that Larry has a lousy reputation
for truthfulness among members of Rev. Als congregation, and in Rev. Als opinion,
Larry is not a truthful person.

(a) Admissible to suggest Larrys testimony is false?

Multistate: ____________________________________________________

New York: ____________________________________________________
____________________________________________________

(b) May Rev. Al follow up his opinion (or reputation testimony) as follows: During
the past year, Larry lied to me on six separate occasions.
______________________________________________________________
______________________________________________________________
______________________________________________________________

5. Criminal Convictions

Purpose: to suggest testimony is false. Relevance: person who
has been convicted of a crime is more likely to lie under oath than
is a person with an unblemished record. Note: Do not confuse
these rules of impeachment with the rules governing MIMIC crimes
used as substantive evidence to prove defendants guilt (pp. 21-
23).

FEDERAL RULE:

Permissible Types of Convictions:

(1) Conviction of any crime (felony or misdemeanor) as to
which the prosecution was required to prove:
_________________________________________
_________________________________________
_________________________________________
_________________________________________

(2) If conviction did not require proof of false statement, it
must be a ___________, and court may exclude, in its
discretion, if probative value on issue of witness
credibility is outweighed by danger of unfair prejudice to a
party (misuse as evidence of liability or guilt).
_________________________________________

Time Limitation:

As to both categories, the conviction, or release from prison,
whichever is later, generally must be within 10 years of trial.

Method of proof:

Ask witness to admit prior conviction, or

Introduce record of conviction (extrinsic). Not required to
confront witness prior to introduction of record of conviction.

NEW YORK RULE:

(a) In general: Any witness may be impeached with a conviction for
_______________________________________, without regard to
how old the conviction is and ___________________________
probative value vs. the danger of unfair prejudice.

(b) Special rule for Criminal Defendants only: When the witness
is the criminal defendant who testifies in his own defense, the court
must conduct a hearing to balance the ______________________
of the conviction (on the issue of ____________________) against
the risk of ____________________________.

(1) Factors that make a conviction probative:

(i) Seriousness (murder is more probative of credibility
than possession of marijuana)

(ii) Relation to trust and deception (theft is more
probative than reckless driving)

(2) Factors that make a conviction unfairly prejudicial:

(i) Similarity to the currently charged offense (the
prejudice is particularly high if the prior offenses and
the charged offenses are identical)

(ii) Inflammatory nature (child molestation is more
prejudicial than DWI)

HYPO 44. At a criminal trial for arson, Defendant testifies in his own defense. On cross-
examination, may the prosecutor properly ask Defendant:

(a) whether he was released from prison eight years ago for the misdemeanor of
income tax fraud?

Multistate: ____________________________________________________
_____________________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________


(b) whether he was released from jail a year ago for his misdemeanor conviction
for possession of marijuana?

Multistate: ____________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________

(c) whether he was released from jail two years ago for the misdemeanor of
shoplifting?

Multistate: ____________________________________________________
_____________________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________
_____________________________________________________________

(d) whether he was released from prison three years ago for a murder
conviction?

Multistate: ____________________________________________________
_____________________________________________________________

New York: ____________________________________________________

(e) How would you answer (d) if the witness with the prior murder conviction was
not Defendant, but instead was Defendants friend, who testified about
Defendants alibi?

Multistate: ____________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________
_____________________________________________________________


6. Inquiry About Bad Acts (without conviction) if they reflect
adversely on witnesss character for truthfulness

A witness may be asked about a prior bad act if it relates to
____________________________________________________
____________________________________________________

The only permissible procedure: __________________________
_____________________________________________________

No extrinsic evidence of bad acts is permitted for the purpose of
showing bad character for truthfulness. Also, cross-examiner must
have good-faith basis for the inquiry, and permission to make the
inquiry is subject to the courts discretion. The inquiry is limited to
the act of untruthfulness itself, not its consequences, such as job
termination, civil judgment, or arrest.

NEW YORK: A witness may be asked about any prior bad act that
is ___________________________________________________,
even if it does not directly relate to truthfulness, e.g., arson,
burglary, rape. (Proof with extrinsic evidence not allowed.) Inquiry
is subject to courts discretion.

Theory: Any vicious, criminal or immoral act shows the witnesss
willingness to put self-interest above that of society and therefore a
willingness to ignore the oath.

But when the prosecution seeks to ask about a prior bad act to
impeach a criminal defendant who testifies in his own defense, the
defendant is entitled to a hearing at which the court must balance
the probative value of the bad act on the issue of the defendants
credibility against the danger of unfair prejudice. (Apply same
balancing factors that are used to impeach a criminal defendant
with his convictions.)

Exam Tip (MBE and New York): Proof of a prior bad act with
extrinsic evidence may be allowed if the bad act is relevant for
some purpose other than bad character for truthfulness, such as to
show the witnesss bias.

HYPO 45. Witness gives favorable testimony for Defendant. On cross-examination,
Plaintiff asks Witness whether she assaulted her mail carrier two years ago (no charges
were brought).

Multistate: ____________________________________________________________
_____________________________________________________________________

New York: ____________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 46. After Witness testifies for Defendant, Plaintiff asks Witness whether she
made false statements in an application for food stamps in July 2004.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 47. Same cross-examination as Hypo 46. Witness denies making false
statements in the application for food stamps. May Plaintiff thereafter call a welfare
agent to prove that Witness made the false statements?
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 48. Prosecution of Michael for embezzlement of the office petty-cash fund.
Dwight testifies for Michael. On cross-examination, Dwight is asked whether he was
arrested three years ago for passing counterfeit money. Objectionable?
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 49. Prosecution of Donald. Winston testifies for the prosecution. On cross-
examination, Winston is asked whether he was arrested a month ago for selling
marijuana and is awaiting trial on those charges.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

7. Contradiction

Concept: Cross-examiner, through confrontation of witness, may
try to obtain admission that she made a mistake or lied about any
fact she testified to during direct examination. If the witness admits
the mistake or lie, she has been impeached by contradiction.
However, if she sticks to her story, the issue becomes whether
extrinsic evidence may be introduced to prove the contradictory
fact.

Rule: EXTRINSIC EVIDENCE NOT ALLOWED for the purpose of
contradiction IF the fact at issue is ____________ (i.e., if the fact
has no significant relevance to the case or to the witnesss
credibility).

HYPO 50. In an auto accident case, Witness testifies for Plaintiff that, while leaning
against a maple tree near the intersection of Boardwalk and Park Place on March 1, he
saw that the traffic light was red for Defendant as Defendants car entered the
intersection and hit Plaintiff. On cross-examination, Witness is asked (a) Isnt it a fact
that the tree at that intersection is an oak? and (b) Isnt it a fact that the traffic light was
not functioning at all on March 1? Witness insists that his direct testimony was
accurate.

(a) During the defense, may Defendant properly prove that the tree at the
intersection is an oak tree?
____________________________________________________________
____________________________________________________________

(b) During the defense, may Defendant properly call a police officer to testify that
the traffic light at the intersection was not functioning at all on March 1?

____________________________________________________________
____________________________________________________________

I. Rehabilitation

Generally, a witness may be rehabilitated only ______________ the witness
credibility has been attacked through impeachment. There are two methods
of rehabilitation tested on the exam.


1. Showing witnesss good character for truthfulness.

(a) When? ____________________________________
___________________________________________
___________________________________________
___________________________________________

(b) How? _____________________________________
___________________________________________
___________________________________________

2. Prior consistent statement to rebut a charge of recent
fabrication.
When? If the witnesss trial testimony is charged as a recent
fabrication, or as a product of improper influence, a prior
statement by the witness that is consistent with her
testimony will be admissible to rebut the charge IF the
statement was MADE:______________________________

Purpose: A prior consistent statement that fits within the rule
is admissible to rehabilitate credibility and as substantive
evidence that the prior statement was true. It is labeled a
hearsay exclusion.

New York: Admissible only to rehabilitate (to neutralize the
charge of recent fabrication), not as substantive evidence.

HYPO 51. Brad v. Jennifer. On July 1, pedestrian Brad was struck by a car driven by
Jennifer. Angelina, a stranger to Brad and Jennifer at the time, witnessed the accident
and told the police on July 1 that Brad looked sober as he crossed the street. At trial,
six months later, Angelina testifies for Brad, He looked sober as he crossed the street.

(a) On cross-examination, the only question Angelina is asked is whether she
was convicted eight years ago of income tax evasion, to which she answers
Yes. On re-direct, may Angelina properly testify that she told the police on
July 1 that Brad had looked sober?
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

(b) Assume that on the cross-examination of Angelina, she is asked, Isnt it a
fact that after this accident, you and Brad became close friends and are now
living together as lovers? to which she answers, Yes. On re-direct, may
Angelina properly testify that she told the police on July 1 that Brad had
looked sober? If so, for what purpose?

Multistate: ____________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

New York: ____________________________________________________
_____________________________________________________________

V. PRIVILEGES

A. Introduction

1. In general, on MULTISTATE exam, apply basic rules on privileges as
covered in lecture.

2. Federal procedure issue on MULTISTATE exam: If bar examiners
specifically indicate the action is pending in federal court, apply the
following procedural rules:

(a) In federal-court action ARISING UNDER __________________
_____________________ (all civil cases arising under
Constitution or federal statutes, and all federal criminal cases):
privileges are governed by the principles of the common law as
they may be interpreted by the federal courts in the light of
reason and experience. For the most part, these are the basic
rules on privileges as covered in lecture.

(b) In federal-court action based on _______________ jurisdiction,
where state substantive law applies to parties claims and
defenses (Erie situation), the federal court must apply
PRIVILEGE LAW OF THE STATE whose substantive law is
applicable. Note: In diversity actions, federal courts also apply
STATE LAW ON COMPETENCY (e.g., Dead Mans Statutes)
and STATE LAW ON BURDENS OF PROOF and
PRESUMPTIONS. Aside from these 3 exceptions (privileges,
competency, and burdens of proof / presumptions), FRE apply
in all federal-court actions, including diversity cases.

B. Attorney-Client Privilege

1. Rationale: To encourage client to speak openly to counsel.

2. Elements. Privilege applies to

Confidential communications

Between attorney and client (or representative of either)

Made during professional, legal consultation

Unless privilege is waived by the client

Or an exception is applicable

3. Definitions:

(a) Confidential communications: Client must intend confidentiality
(e.g., no privilege if client knows that third party is listening in; or
if client asks attorney to disclose the communication to a third
party). Joint client rule: If two or more clients with common
interest consult the same attorney, their communications with
counsel concerning the common interest are privileged as to
third parties. But if the joint clients later have dispute with each
other concerning the common interest, privilege does not apply
as between them.

Communication: Privilege covers the exchange of
information between attorney and client. It does not apply to
the clients knowledge of the underlying information, pre-
existing documents, or physical evidence.

HYPO 52. Delbert is sued for his alleged negligence in an auto accident. He tells his
attorney what happened and gives her the cell phone with which he was making a call
at the time of the accident. Before trial, Delbert is deposed by plaintiffs counsel:


(a) Must Delbert respond if asked, What did you tell your attorney about the
accident?
___________________________________________________________
___________________________________________________________

(b) Must Delbert respond if asked, Describe what you were doing at the time of
the accident.
___________________________________________________________
___________________________________________________________

(c) If served with a subpoena, must Delberts attorney produce Delberts cell
phone?
___________________________________________________________
___________________________________________________________

(b) Attorneymember of the bar or person that client reasonably
believes is member of the bar

Representative of the attorneyany agent reasonably
necessary to facilitate the provision of legal services (e.g.,
accountant working with attorney to translate clients
financial matters)

(c) Clientincludes person seeking to become client (e.g., privilege
attaches at outset of formal consultation with attorney even if
client does not retain attorney)

Representative of clientany agent reasonably necessary to
facilitate the provision of legal services (e.g., for corporate
client, any employee who communicates with corporations
attorney to enable attorney to provide legal services to the
corporation)

(d) Professional legal consultationprimary purpose of
communication must be to obtain or render legal services, not
business or social advice

(e) Waiver

(1) Voluntary Waiver: Only the _________________ has
the power to waive the privilege. (After the clients death,
the privilege continues and only the clients estate can
waive it.)


(2) Subject Matter Waiver: (E.g., multiple privileged
documents, only some of which are disclosed to the
opponent). A voluntary waiver of the privilege as to some
communications will also waive the privilege as to other
communications if:

i. The partial disclosure is ___________________,

ii. The disclosed and undisclosed communications
concern the ____________________________,
and

iii. _________________ requires that the disclosed
and undisclosed communications be considered
together.

(3) Inadvertent Waiver: (E.g., one privileged document in a
stack of non-privileged documents inadvertently gets
disclosed). An inadvertent disclosure of a privileged
communication will not waive the privilege so long as the
privilege-holder:

i. took ___________________________________
the disclosure, and

ii. takes reasonable steps to
___________________the error.

(f) Exceptions

(1) ____________________________: E.g., Client tells
attorney, Help me disguise the bribes I made so that
they look like legitimate business expenses.

(2) ____________________________: E.g., In tax fraud
prosecution, defendant defends on ground that she relied
on advice of her attorney in reporting income.

(3) ____________________________: E.g., attorney sues
client for unpaid fee, or client sues attorney for legal
malpractice.

C. Physician-Patient Privilege

1. Usually created by state statute. Rationale: to encourage open
communication by patient and to protect privacy.

2. General Multistate and New York Rule: Physician-patient privilege
applies to

Confidential communication or information acquired by physician
from patient

for the purpose of diagnosis or treatment of a medical condition

Also applicable to psychotherapists (M.D. or other professional
certified to diagnose or treat mental / emotional illness).

Federal law distinction: in federal-court actions based solely on
federal substantive law (e.g., civil rights, securities fraud, federal
criminal case), privilege exists only for ______________________.
There is no privilege in federal-court actions based solely on federal
law for confidential communications with physicians as regards
physical conditions.

3. Exception applicable to both physician and psychotherapist privileges:
Privilege is lost if patient expressly or impliedly puts physical or mental
condition in issue. E.g., patient is plaintiff suing for damages for
personal injury or mental suffering.

HYPO 53. Physician examines Patients lungs in hospital room while visitor is present.
(1) Patient tells doctor, Do you suppose my wheezing is due to the 4 packs of
cigarettes I smoke every day? (2) After visitor leaves, Patient says to doctor, Know
any good lawyers? I havent paid my state income taxes in 3 years.

(a) In state court action in which condition of patients lungs is an issue, could
doctor be compelled to disclose statement (1)?
____________________________________________________________
____________________________________________________________

(b) In prosecution for state income tax evasion, could doctor be compelled to
disclose statement (2)?
____________________________________________________________
____________________________________________________________


D. Spousal Privileges

1. Spousal Immunity

IN FEDERAL (MULTISTATE) CRIMINAL CASES ONLY, a spouse
cannot be compelled to testify about anything against the defendant
spouse. (Sometimes called privilege against adverse spousal
testimony.)

Rationale: to protect harmony of existing marriage at time of trial.

Who holds this privilege: _________________________________

(Witness-spouse may voluntarily testify against the
defendant spouse if he/she so chooses.)

NEW YORK: New York does not recognize a spousal immunity
privilege.

2. Confidential Communications Between Spouses

IN ANY TYPE OF CASE, civil or criminal (FEDERAL AND NEW
YORK), a spouse is not required, and is not allowed in the absence
of consent by the other spouse, to disclose a confidential
communication (statements or acts) made by one to the other
during the marriage. Who holds this privilege:
______________________ (Either spouse may invoke the
privilege; waiver occurs only if both consent to disclosure.)

Rationale: to encourage open communication during marriage.

Exceptions applicable to both privileges (FRE and New York)

1. communications or acts in furtherance of jointly perpetrated
future crime or fraud.

2. communications or acts destructive of family unit, e.g., spousal
or child abuse.

3. no privilege in civil litigation between the spouses themselves,
e.g., divorce, breach of contract.


HYPO 54. Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne
are a married couple. Niles comes home on the night of Fraziers demise wearing a
blood-stained Armani topcoat, which Daphne observed.

(a) At trial, the prosecutor calls Daphne to testify to her observations about Niles
topcoat, but she refuses to testify. Can she be compelled?

Multistate: _____________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________

New York: _____________________________________________________
______________________________________________________________

(b) Assume Daphne is willing to testify against Niles. In addition to the topcoat
observation, she seeks to testify to the following: Niles told me when he got
home that he stabbed Frazier. Niles objects.

Multistate: _____________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________

New York: _____________________________________________________

HYPO 55. Assume that Daphne divorces Niles before his case goes to trial. The
prosecutor calls her to the stand.

(a) Can Daphne be compelled to testify to her observations about Niless topcoat?

Multistate: _____________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________

New York: _____________________________________________________
______________________________________________________________


(b) Can Niles prevent Daphne from disclosing his admission to her about stabbing
Frazier?

Multistate: _____________________________________________________
______________________________________________________________
______________________________________________________________

New York: ______________________________________________________

VI. HEARSAY

A. 2-part definition

(1) _________________________________________________ (oral or
written). (The hearsay rule does not apply to machines (e.g., what a clock
said about the time) or to animals (e.g., drug-sniffing dog barked at a
backpack.))

(2) Offered to prove _______________________________________

Hearsay rule: Hearsay is inadmissible unless an exception or exclusion
applies.

Rationale: The credibility of the declarant (out-of-court speaker or author)
at the time the statement was made was not tested through cross-
examination in the presence of the current fact-finder.

B. Non-Hearsay Statements

Some out-of-court statements may look like hearsay at first glance, but are
not hearsay if they are not offered to prove the truth of the matter asserted
in the statement. An out-of-court statement may be relevant to some
issue simply because it was spoken (or written). If offered for some other
purpose, credibility of the declarant is irrelevant. On the issue of whether
the statement was spoken, the witness on the stand can be cross-
examined; or if the statement was in writing, it can be examined as an
exhibit.

HYPO 56. Action by the estate of Percy against Damien seeking damages for the pain
and suffering Percy experienced in an auto accident caused by Damien. Damien
denies liability and also asserts that Percy died instantly in the accident. Witness on the
stand proposes to testify that shortly after the accident, Percy said, Damiens car ran
the red light.


(a) Hearsay if offered to prove who ran the red light?
______________________________________________________________
______________________________________________________________

(b) Hearsay if offered to prove that Percy was alive following the accident?
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________

C. Principal Categories of Non-Hearsay Purposes

1. Verbal Act (Legally Operative Words). A situation where the
substantive law attaches rights and obligations to certain words simply
because they were spoken.

HYPO 57. Gates sued Trump for breach of an oral contract. Witness takes the stand to
testify: I heard Trump say to Gates: I accept your offer to sell Microsoft. Hearsay?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

Similar: terms of patent or copyright, making gift, bribe, perjury, fraud, defamation,
words accompanying ambiguous acts (e.g., D is charged with theft of Xs car; D
testifies, As X handed me the keys, he said I could have the car for the weekend.).

2. To Show Effect on Person Who Heard or Read the Statement. If a
person hears someone else make certain statements, this may be
relevant to put the listener on notice of something, or to create fear, or to
give the listener a motive or probable cause to do something without
regard to whether the statement is true.

HYPO 58. Plaintiff v. Supermarket. Plaintiff alleges she slipped and fell on a broken jar
of salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition.
Plaintiffs witness takes stand and proposes to testify: Several minutes before Plaintiff
entered aisle 3, I heard another shopper tell Supermarket manager, Theres a broken
jar of salsa on the floor in aisle 3. Inadmissible hearsay?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

HYPO 59. Sybil is charged with the murder of her husband Basil. To prove motive, the
prosecutor seeks to introduce an anonymous note to Sybil that was found in her
possession at the time of her arrest. The note stated, Basil is having an affair with
Polly. Inadmissible hearsay?
______________________________________________________________________
______________________________________________________________________

3. Circumstantial Evidence of Speakers State of Mind

HYPO 60. Homer is prosecuted for murder. Defense: Insanity. Witness for Homer
proposes to testify: Two days before the killing, Homer said, I am Elvis Presley. Its
good to be back.
______________________________________________________________________
______________________________________________________________________

Other examples: giving a false alibi implies consciousness of guilt; asking
a question may imply lack of knowledge.

D. Prior Statements of Trial Witness

HYPO 61. Prosecution of D for robbery. D takes the stand in his own defense and
testifies: (a) I didnt do it. (b) And I told the cops when they arrested me that I didnt do
it. Should (a) and (b) be excluded as hearsay?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

General rule: A WITNESSS OWN PRIOR STATEMENT, if offered to
prove the truth of the matter asserted in the statement, is hearsay and is
INADMISSIBLE unless an exception or exclusion applies.
___________________________________________________________
___________________________________________________________

3 Witness-Statement Exclusions from Hearsay (called exclusions or
non-hearsay). Witness is currently subject to cross-examination AND:

1. Witnesss prior statement of ____________________________
(In New York, called a hearsay exception.); or

2. Witnesss prior ___________________statement if oral, under
oath and made during formal testimonial hearing. ___________
(But in New York, admissible only to impeach.); or

3. Witnesss prior _______________ statement if being used now
to rebut charge of recent fabrication or improper motive. ______
(But in New York, admissible only to rehabilitate credibility.)

E. Party Admissions (Statement of an opposing party)

1. Any statement made by ____________________is admissible if
it is offered _________________________________________.

2. Terminology: Called exclusion or non-hearsay. The Federal
Rules of Evidence were recently restyled. There were no
substantive changes to the rules, but there were changes in
terminology, the most important of which is that party
admission is now called statement of an opposing party
under revised Rule 801. The terms are substantively
interchangeable and either admission or statement of an
opposing party may appear as an answer choice on the MBE.

New York: Still called party admission. And party admission is
categorized as a hearsay exception, rather than an exclusion.
In NY, any out-of-court statement admissible for its truth is
called a hearsay exception.

3. Theory: Party ought to bear the consequences of what she
says. Can explain to jury, and cannot complain about inability to
cross-examine self.

HYPO 62. X is charged with income tax evasion for the year 2009. Prosecutor wants
to prove Xs income during 2009, and offers into evidence a loan application X
submitted to a bank in that year. X objects on the ground that the loan application,
which is filled with inflated numbers, was self-serving and unreliable.

______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

HYPO 63. Ma v. Life Insurance Co. for non-payment of policy proceeds on the life of
Pa. Defense: Suicide. Defendant offers a letter by Ma to her friend in which she wrote,
When I came home from shopping I found Pa dead on the floor with his revolver
nearby. I didnt see what happened, but this was no accident. Pa did himself in.
Admissible despite Mas lack of personal knowledge?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

Adoptive Admission
If a party expressly or impliedly adopts a statement made by another
person, it is as though the party herself made the statement. Adoption by
silence occurs when a party who hears another persons statement
remains silent under circumstances in which a reasonable person would
protest if the statement were false.

Vicarious Party Admission
Statement by agent/employee is admissible against principal/employer if
statement concerns matter within scope of agency/employment and is
made during the existence of the agency/employment relationship.

But in New York, the statement of an agent/employee is admissible
as a vicarious party admission only if the principal/employer gave
the agent/employee _____________________________________
(E.g., explicit speaking authority (Talk to X about this), or implicit
speaking authority (employee is upper-level manager).

HYPO 64. Charlie the truck driver smashed into Pams house while on a run for Acme
Trucking, his employer. Charlie descended from the cab and calmly told Pam, Sorry
about wrecking your home. I guess I took my eyes off the road. I was reaching down to
get a beer and a joint. In Pam v. Acme, is Charlies statement admissible vs. Acme?

Multistate: ____________________________________________________________
_____________________________________________________________________

New York: ____________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

HYPO 65. In federal court, Thelma and Louise sue Acme Trucking for sex discrimination
in failing to hire them. They offer the statement of Charlie, an Acme truck driver, who told
them over drinks one night, I know the Acme personnel office has a policy against hiring
women no matter how qualified they are. Charlies statement is inadmissible because:
(A) Charlie was not on the job when he was speaking to Thelma and Louise.
_____________________________________________________________________
_____________________________________________________________________

(B) Charlies statement did not concern a matter within the scope of his employment.
_____________________________________________________________________
_____________________________________________________________________

Co-conspirators Statement
The statement of a co-conspirator is admissible against a party who was a
member of the conspiracy if the statement was made (1) during and (2) in
furtherance of the conspiracy.

F. Hearsay Exceptions

Justified by reliability factors or other good reasons sufficient to excuse
inability to cross-examine declarant:

1. Forfeiture by wrongdoing
2. Former testimony
3. Statement against interest
4. Dying declaration
5. Excited utterance
6. Present sense impression
7. Present state of mind
8. Declaration of intent
9. Present physical condition
10. Statement for the purpose of obtaining medical treatment or
diagnosis
11. Business records
12. Public records

(Also, recall Past Recollection Recorded, Learned Treatises)

Note on Criminal Defendants Right of Confrontation:

The sixth amendment right of confrontation requires that the
criminal defendant be confronted with the witnesses against him.
Confrontation is the opportunity for cross-examination by the
defendant.

Rule: In the context of hearsay, the prosecution may not use a
hearsay statement against the criminal defendant (even if it falls
within a hearsay exception) if:

(1) the statement is ________________________________,

(2) the declarant is _____________________________, and

(3) the defendant has had no opportunity for ____________
(cross-examination requirement may be satisfied either
before or at trial)

The meaning of testimonial statements is still being
developed, but the following applications have been
established:

(1) Grand jury testimony is ________________

(2) Statements in response to police interrogation:

(a) Testimonial if the primary purpose of the questioning
is to establish or prove
____________________________ potentially

relevant to __________________________________
___________________________________________

Example: Police arrive at domestic abuse crime
scene, arrest the abuser, and sit down with the victim
to ask what happened? At defendants trial, the
victim refuses to testify. The victims statements to
the police, even if they fall within a hearsay exception
(e.g., excited utterances), cannot be used against the
defendant because they are testimonial, the witness
is now unavailable, and there has been no cross-
examination.


(b) Non-Testimonial if the primary purpose of the
questioning

is to _____________________________ to meet an

__________________________________.

Example: Domestic abuse victim calls 911 to seek
help while abuser is in the other room with plans to
resume the abuse.

Ongoing emergency includes a situation in which
the crime has recently ended, the perpetrator is
armed, and he still poses a threat to the victim, the
police, or the public at large.

(3) Documents:

(a) Business records are ___________________
(e.g., bank or phone company records).

(b) Sworn Affidavits are ___________________.

(c) A forensic laboratory report is________________

if its primary purpose is to _____________________
___________________ of criminal conduct.

Examples: (1) Analysis of drugs seized from a
particular suspect to ascertain if the drugs are
cocaine, etc. (2) Analysis of the blood of a suspected
DWI driver to ascertain his blood alcohol content.

But a DNA report is _______________ if it analyzes
a sample of bodily fluid collected from a crime scene
for the purpose of developing a DNA profile if ______
____________________ at the time of the analysis.

Even if a forensic report is testimonial, no
confrontation violation occurs if the prosecutor calls a
testifying expert who performed an independent
analysis of the data, and the testifying expert only
generally refers to the report to show a partial basis
for her opinion without reading the report to the jury or
introducing it as an exhibit. Then the report is not
being used for a hearsay purpose.

1. Forfeiture Hearsay Exception (Declarant Unavailable Due to
Defendants Wrongdoing): Any type of hearsay statement is
admissible against a defendant whose wrongdoing made the witness
unavailable if the court finds:

(1) _________________________________________________

(2) that defendants conduct _____________________________

____________________________________________________

(By making the witness unavailable through his own
wrongdoing, defendant forfeits both the hearsay objection
and sixth amendment objection.)

Burden of Proof: Defendants involvement in making the
declarant unavailable to testify must be proven to the courts
satisfaction as follows:

Federal: ________________________________________

New York: _______________________________________

Example: Tony Soprano is prosecuted in federal court for
loan-sharking. Paulie made incriminating statements about
Tony to the police and during a grand jury proceeding. Tony
learned that Paulie was going to be the key government
witness at trial; and the next day Paulies dead body was
found in the river. The court determines by a preponderance
of the evidence that Tony arranged for Paulies
disappearance in order to prevent Paulie from testifying.
Paulies grand jury testimony and interview statements to the
police are admissible against Tony even though the
statements are testimonial, Paulie is unavailable, and Tony
had no opportunity for cross-examination.

New York: ______________________________________

2. Former Testimony

(a) The former testimony of a now-unavailable witness, if given at a
former proceeding or in a deposition, is admissible against a
party who, on the prior occasion, had an opportunity and motive
to cross-examine or develop the testimony of the witness. Issue
in both proceedings must be essentially the same.


(b) Theory: reliability assured by cross-examination on prior
occasion; however, we prefer live testimony, so witness
must now be unavailable

HYPO 66. Bus accident. Passengers A and B were seriously injured. A sued Bus Co.,
alleging negligence by bus driver. At trial, Witness testified for A that bus driver was
intoxicated at time of accident. Thereafter, Witness died. B now sues Bus Co. and
seeks to admit a transcript of Witnesss former testimony.

______________________________________________________________________

______________________________________________________________________

HYPO 67. Same bus accident. At grand jury, Witness testified that bus driver was
intoxicated at time of accident. Thereafter, Witness died. Bus driver is prosecuted for
DWI. Prosecutor seeks to admit a transcript of Witnesss grand jury testimony.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

(c) Grounds of Unavailability:

(1) ______________________________

(2) ______________________________
______________________________

(3) ______________________________

(4) ______________________________

(5) ______________________________

Note: Same grounds of unavailability apply to all exceptions
where unavailability is a requirement.

New York has two additional grounds of unavailability for the
former testimony hearsay exception in civil cases only:

(1) Declarant is located 100 miles or more from the courthouse, or

(2) Declarant is a physician (public policy prefers that doctors
continue their work rather than testify again).

3. Statement Against Interest

(a) An unavailable declarants statement against his or her

________________

________________

________________

(money, property, or criminal liability)

(b) Theory: Not likely to lie when making a personally damaging
statement as to such interests.

(c) Statement against interest differs from party admission:

must be against interest when made

any person (not merely party) can make statement against
interest

personal knowledge is required

declarant must be unavailable

HYPO 68. Plaintiff v. Acme Trucking, based on Charlie the truck drivers negligent
driving. Charlie was fired immediately after the accident. Two weeks later, Charlie told
Plaintiffs insurance adjuster that he had been drunk while driving. At trial, Charlie
refused to testify on the ground of self-incrimination. The insurance adjuster may testify
to Charlies statement as evidence against Acme because the statement is:

(A) A vicarious party admission.

(B) A statement against interest.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________


(d) Qualification in criminal cases: Statement against penal interest
must be supported by circumstances showing trustworthiness of
statement (i.e., corroboration).

HYPO 69. Prosecution of Doppler for arson of Town Hall. Doppler calls Waldo to
testify that while sitting in a bar, Waldo heard Stranger say, Im the guy who torched
Town Hall, so Im leaving town tomorrow. Dopplers attorney demonstrates that
Stranger has not been located despite diligent efforts to find him.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

4. Dying Declaration

(a) Statement made under a belief of impending and certain death
by a now-unavailable declarant concerning the cause or
surrounding circumstances of the declarants death.

(b) Theory: Expectation of imminent death is a solemn occasion.

(c) Type of case:

Criminal cases: ________________

Civil cases: ___________________

NEW YORK: Criminal Homicide only, meaning that
death is the only relevant form of unavailability.

HYPO 70. Prosecution of Dagger Dan for the murder of Victor Victim. A passerby
found Victor lying in the gutter in a pool of blood with a knife in his stomach. Victor told
the passerby, Its not looking too good for me. Dagger Dan did it, and Im going to get
him for this. Victor died an hour later. May the passerby testify to Victors statement as
a dying declaration?
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________

HYPO 71. Prosecution of Dillinger for bank robbery. At the scene, a bank officer spoke
with wounded Teller Tim, who gasped, Im a dead man. Get me a priest. Dillinger shot
me as he made his getaway. Tim then lapsed into a coma from which he has not
emerged. May the officer testify to Tims statement as a dying declaration?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

HYPO 72. Same event except civil action against Dillinger for Tims personal injury
damages. Tim is still in a coma. Is Tims statement admissible as a dying declaration?

Multistate: ____________________________________________________________

New York: ____________________________________________________________

Note on Confrontation: A dying declaration made to a police
officer may be testimonial, but it most likely qualifies as an
exception to the confrontation requirement of cross-examination. In
dicta, the Supreme Court has noted that the admissibility of dying
declarations to law enforcement officials was well established when
the Sixth Amendment was adopted, meaning that dying
declarations were intended to be exempt from the confrontation
rule.

NOTE: Under FRE, none of the remaining hearsay exceptions require
unavailability of the declarant. Same rule in NY except where specified.

Spontaneous Statements

5. Excited Utterance

(a) Statement concerning a startling event and made while
declarant is still under the stress of excitement caused by the
event.

(b) Theory: excitement suspends ones capacity to fabricate.


HYPO 73. Ernie observes a horrific head-on auto collision and excitedly tells a cop,
who arrives 10 minutes later, Oh my God, Officer! Both of those cars were going 90
miles an hour! May the cop properly testify to Ernies statement at a trial based on the
accident?

____________________________________________________________________

Factors to consider in determining whether a statement qualifies as an excited
utterance:

(1) _____________________________

(2) _____________________________

(3) _____________________________

(a) _______________________

(b) _______________________

(c) _______________________

6. Present Sense Impression

(a) Description of an event made while the event is occurring or
immediately thereafter.

(b) Theory: declarant has no time to fabricate

NEW YORK: There must be corroborating evidence of the
happening of the event described by the declarant.

HYPO 74. Mom telephones her son Victor Victim at his apartment. Mom, he says,
Can you wait a minute? Someones at the door. Thirty seconds later, Victor gets back
on the phone and says, Mom, cant talk now. My new friend, Hannibal Lecter, is here
for dinner. Call you later. The next day, the remains of Victors dead body are found in
his apartment. Hannibal is on trial for the murder. May Mom testify that Victor identified
Hannibal as his dinner guest that night?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________


7. Present State of Mind

(a) Contemporaneous statement concerning declarants present
state of mind, feelings, emotions.

(b) Theory: contemporaneous statement about matter as to which
declarant has unique knowledge.

HYPO 75. Probate of Wandas Will, in which she left all her money to the local pet
cemetery. Wandas family challenges the will on the ground that Wanda was insane
when she executed it. Pet cemetery offers testimony that a few days before execution
of the will, Wanda said to her friend, I do not love my family anymore. Admissible over
hearsay objection?
______________________________________________________________________
______________________________________________________________________

8. Declaration of Intent

(a) Statement of declarants intent to do something in the future,
including the intent to engage in conduct with another person.

New York: If the statement of future intent is offered to prove
the joint participation of another person, New York requires:

(1) __________________________ of a relationship
between the declarant and the other person, and

(2) That the declarant is _________________________.

declarant has unique knowledge.

HYPO 76. Susan has died and her family sues Life Insurance Co. for nonpayment of
the policy proceeds. Defense: Suicide. Life Insurance Co. seeks to introduce a note
found in Susans apartment (in Susans handwriting) in which she said, Im going to
end it all next week.

______________________________________________________________________
______________________________________________________________________


HYPO 77. Prosecution of Raymond for murder of Vic. Before going out Monday night,
Vic told wife, Im meeting Raymond tonight at the bowling alley. Vics dead body was
found Tuesday morning outside the bowling alley.

Multistate: ____________________________________________________________
_____________________________________________________________________

New York: ____________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

9. Present Physical Condition

(a) Statement made to anyone about declarants current physical
condition

New York: If a statement of present physical condition is made
to a layperson, rather than a medical professional, the declarant
must be__________________________.

declarant has unique knowledge

HYPO 78. Plaintiff, whose arm was broken in accident with Defendant, sues for
damages for pain and suffering. Plaintiff may, of course, testify about the pain she
experienced. But Plaintiff also calls Neighbor to testify, (a) I was with Plaintiff last July
when she said, Im feeling a lot of pain in my arm and again in December when she
said (b) I sure did feel a lot of pain in my arm last July. Admissible over hearsay
objections?

Multistate: (a) _________________________________________________________

(b) _________________________________________________________

New York: (a) _________________________________________________________

(b) _________________________________________________________


10. Statement made for the purpose of obtaining medical treatment or
diagnosis

(a) Statement made to anyone (usually to medical personnel) for
the purpose of obtaining medical treatment or diagnosis
(including diagnosis for expert testimony) if it concerns the
declarants

1) ____________________ or

2) ____________________ or

3) _____________________________, but not including
statements describing the details of liability or the identity of a
tortfeasor, unless it is the identity of the abuser in a domestic
abuse or child abuse case.

(b) Theory: A patient or injured person has a motive to be honest
and accurate in order to get good medical assistance

(c) This exception does not include oral statements made by a
physician to the patient. (Distinguish written entries made by a
physician in business records (e.g., hospital or office records).)

(d) New York: This exception does not apply to statements made
to a physician solely for the purpose of helping the physician to
develop an opinion for expert testimony at trial.

HYPO 79. Plaintiff v. Defendant for pain-and-suffering damages based on an alleged
accident at Defendants store. At trial, Plaintiff calls Dr. Treat, her treating physician, to
testify, When Plaintiff came to see me for treatment a year after the accident, she said,
(a) The pain in my arm is killing me. (b) Ive been losing sleep at night for the past six
months because of the pain in my arm. (c) This all started when I fell down the
stairway (d) the one with no treads at Defendants store. Objection: hearsay.

______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________


11. Business Records

(a) Elements:

(1) Records of a business of any type

(2) Made in the regular course of business (the information
recorded is germane to the business)

(3) The business routinely keeps such records

(4) Made at or about the time of the event recorded

(5) Contents consist of

information observed by employees of the business
(including medical treatment, and expert diagnoses
and opinions on general causation of a patients injury
contained in medical and hospital records), or

a statement that falls within an independent hearsay
exception

(b) Theory: Businesses depend on accurate, up-to-date record-
keeping, and accuracy is likely when employees are under a
business duty to make such records. Useful substitute for
testimony of employees.

HYPO 80. Civil action for damages by Pedestrian against Hot Rod Kid for recklessly
running him down. At trial, Pedestrian seeks to introduce the report of Officer McNulty,
who arrived at the scene 10 minutes after the accident. The report, which was prepared
by McNulty at the scene, states:

(a) Upon arrival, I measured skid marks 50 feet in length.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

(b) Officer Bunk, who witnessed the accident, told me that Hot Rod Kid was
driving nearly 80 miles per hour.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

(c) Bill Bystander told me that he saw the accident and that Hot Rod Kid ran
through the stop sign.
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________

(c) Proving Business Records Foundation:
(1) Call sponsoring witness to testify to the 5 elements of
business records hearsay exception; witness need not
be author of reportcan be records custodian or any
other knowledgeable person within the business, or

(2) Written certification under oath attesting to elements of
business records hearsay exception (with advance notice
to opposing party).

New York: Certification method is permitted only in three
situations:
1. In civil cases, the business records are those of a
nonparty that has produced its business records
for inspection as part of pretrial discovery,

2. In any type of case, the business records are
those of a hospital, or

3. In any type of case, the business records are
those of state or local government.
12. Public Records

(a) Records of a public office or agency setting forth:

(1) the activities of the office or agency (e.g., payroll records); or
(2) matters observed pursuant to a duty imposed by law (e.g.,
Weather Bureau records of temperature); or
(3) findings of fact or opinion resulting from an investigation
authorized by law (e.g., OSHA inspection report on safety
conditions of factory).
________________________________________________
________________________________________________


(b) Exclusion from public records exception:

Police reports prepared for ________________________

are not admissible against the defendant in a criminal case.
Nor is the prosecution in such cases allowed to introduce such
reports against the defendant under the alternative theory of
business records.

NEW YORK: The public records exception is not well developed under
New York law, so government records are almost always introduced
under the business records exception. Conclusions and opinions
contained in government investigatory reports are admissible only if
the report sets forth adequate facts and the person giving the opinion
is qualified.

Hearsay Within Hearsay

1. If a hearsay statement is included within another hearsay
statement, the evidence is inadmissible unless each statement falls
within a hearsay exception. (For purposes of this rule, a hearsay
exemption (e.g., statement of an opposing party) is treated like a
hearsay exception.)

2. Examples: (1) If witness testifies, A told me what B said, the
evidence is inadmissible unless, for example, As statement is an
excited utterance made in response to Bs excited utterance. (2) In
a homicide prosecution against D, the victim, X, knowing he was
about to die, said D did this to me, and D said he was glad he did it
as he ran away. Xs statement is a dying declaration (level one)
that contains the statement of the opposing party D (party
admission) (level two).

Impeachment of Hearsay Declarants

Any impeachment method may be used to attack the credibility of a
hearsay declarant whose statement was admitted into evidence. If
the impeachment consists of a prior inconsistent statement, the
usual requirement that the declarant be given an opportunity to
explain or deny is waived.

HYPO 81. Shooter is on trial for the murder of Victim. In his hospital bed, Victim told
the nurse, Im feeling pretty good considering Billy Ray tried to kill me. The next day,
Victim told a visitor, I know Im about to die. Shooters the one who shot me. Victim
then died.


(a) May the prosecution introduce Victims statement to the visitor in which he
accused Shooter?
____________________________________________________________
____________________________________________________________

(b) If the prosecutor is allowed to introduce Victims statement to the visitor, may
Shooter introduce Victims statement to the nurse in which he accused Billy Ray?
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________

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