Term
Evidence Question 01
When is evidence relevant? |
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Definition
Evidence Answer 01
Evidence is RELEVANT if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence. (FRE 401) |
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Term
Evidence Question 02
Where does a court make discretionary exclusion of evidence? |
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Definition
Evidence Answer 02
Relevant evidence will be excluded when the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations |
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Term
Evidence Question 03
Where does a court make non-discretionary exclusion of evidence? |
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Definition
Evidence Answer 03
The court will exclude evidence that is either not relevant or subject to some specific exclusionary rule. |
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Term
Evidence Question 04
What are the six types of pragmatic considerations that a judge will consider in exercising discretionary exclusion of relevant evidence? |
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Definition
Evidence Answer 04
There are six types of pragmatic exclusion considerations:
(1) danger of unfair prejudice
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) waste of time
(6) unduly cumulative |
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Term
Evidence Question 05
What are the five policy-based exclusions to admissible evidence? |
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Definition
Evidence Answer 05
(1) liability insurance
(2) subsequent remedial measures
(3) settlement in civil case
(4) offer to pay medical expenses
(5) withdrawn pleas and discussions in a criminal case |
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Term
Evidence Question 06
What will make evidence generally excluded for policy reasons nonetheless admissible? |
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Definition
Evidence Answer 06
Whether evidence is admissible will depend upon the purpose for which it is offered. Impeachment purposes, proof of ownership, etc. |
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Term
Evidence Question 07
How do judges handle dual purpose evidence? |
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Definition
Evidence Answer 07
Limiting instruction. Use the evidence to prove ownership, not to infer guilt. |
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Term
Evidence Question 08
Ruth fixed her welcome mat. Oz wants to use that fix to show that Ruth should have put up a warning about her welcome mat, not that she was negligent for having a messed up mat. Should it be admitted? |
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Definition
Evidence Answer 08
No. Subsequent remedial measures are inadmissible for the purpose of proving (1) Negligence, (2) culpable conduct (3) product defect (4) a need for warning. Since Oz's purpose is to show a need for warning, it is inadmissible. |
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Term
Evidence Question 09
What is a subsequent remedial measure? |
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Definition
Evidence Answer 09
Repairs, design changes, or policy changes taken after an accident that could have prevented the accident. They are generally inadmissible, to encourage post-accident repairs. |
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Term
Evidence Q10
Emily was hit on the head by a plant that fell from a flower box on Lemerson's roof. Lemerson says it's not hers. Emily wants to introduce evidence that Lemerson built a little fence around the box so it wouldn't happen again. Admissible? |
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Definition
Evidence Answer 10
Yes. Generally, subsequent remedial measures are not admissible to show culpability. But they may be admissible for some other relevant purpose, if an issue is controverted such as
(1) proof of ownership,
(2) control, or
(3) feasibility of a safer condition. |
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Term
Evidence Q11
Plackter sues Hussycles for injuries suffered in a 9th Ave motorcycle accident, claiming brake defects caused it. Plackter claims strict liability, and wants to show Hussycles has since fixed the brake design. Admissible? |
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Definition
Evidence Answer 11
Yes. Generally, subsequent remedial measures are not admissible to prove negligence. But in New York, subsequent remedial measures are admissible in a products liability action based on strict liability for a manufacturing defect. |
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Term
Evidence Question 12
Safia got $10K from Emily in a car accident settlement. Brit sues Emily because he was in Safia's back seat. Safia testifies that Emily's driving was fine. Can Brit introduce the settlment? |
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Definition
Evidence Answer 12
Generally, where there is a disputed claim, evidence of settlement, offers to settle, or settlement statements are inadmissible if offered to prove liability. But, settlement evidence may be admissible if offered to impeach a witness on the ground of bias. |
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Term
Evidence Question 13
In settlement talks, Dayna admitted she whacked Abe with a bottle because he deserved it. Outraged, Abe sued. Can he offer her statement in court? |
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Definition
Evidence Answer 13
No. Generally, where there is a disputed claim, evidence of settlement, offers to settle, or settlement statements are inadmissible if offered to prove liability. |
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Term
Evidence Question 14
Lemerson's and Jeff's cars collided. Jeff ran up to Lemerson and said, "I'll settle with you for $100K if you don't sue." Should Lemerson be allowed to introduce Jeff's statement against him at trial? |
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Definition
Evidence Answer 14
Yes. Rule to exclude settlement evidence does not apply because there is no disputed claim. In fact, there is no claim at all. Also, if there was no dispute, it's admissible. |
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Term
Evidence Q15
D is driving drunk on Park Ave and causes an accident that injures V. V sues D for damages and wants to introduce the fact that D pleaded guilty to DWI in connection with the accident and then withdrew his plea. Admissible? |
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Definition
Evidence Answer 15
Yes. Under the New York rule, prior withdrawn guilty pleas are admissible in a subsequent civil case, but not in a criminal case.;Under the Federal rule? No. Not admissible in criminal or subsequent civil case.
However, a plea of guilty that is not withdrawn is admissible against the defendant in subsequent litigation based on the same facts in both federal court and New York court. |
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Term
Evidence Question 16
What is character evidence? |
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Definition
Evidence Answer 16
Character evidence refers to a person's general propensity or disposition, e.g., the character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness) |
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Term
Evidence Question 17
For which purposes is character evidence admissible? Propensity, veracity of a witness, non-propensity purpose, trait as element. |
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Definition
Evidence Answer 17
Character evidence is not admissible to prove propensity ("conduct in conformity"), but is admissible for veracity, non-propensity, and trait as element. |
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Term
Evidence Question 18
After slugging Michael in a bar fight, Ruth testifies that she is of calm character. Michael wants to introduce evidence of three previous times Ruth punched someone in the face. Admissible? |
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Definition
Evidence Answer 18
Yes. The defendant may introduce evidence of his own good character for a relevant trait. If the defendant does so, the prosecution may rebut with evidence of bad character for the same trait. The defendant can evaluate the risk of unfair prejudice, and if the defendant is willing to open the door to character evidence, we will give him that option. |
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Term
Evidence Question 19
After slugging Michael in a bar fight, Ruth wants her friend Plackter to testify "I personally know Ruth, and in my opinion she is a peaceful person." Admissible? |
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Definition
Evidence Answer 19
Yes on MBE, no in NY. Character evidence turns on the form. This testimony is admissible under federal rules because the federal rules allow opinion and reputation evidence, but NY only allows reputation evidence. Neither allows evidence of specific acts. |
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Term
Evidence Question 20
After slugging Michael in a bar fight, Ruth wants her friend Plackter to testify "I've seen Ruth turn the other cheek when assaulted by bullies;she's the president of the local Pacifist Club." Admissible? |
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Definition
Evidence Answer 20
No. The evidence is in the wrong form - specific acts are not allowed for either NY or MBE. The federal rules allow opinion and reputation evidence, but NY only allows reputation evidence. |
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Term
Evidence Question 21
After slugging Michael in a bar fight, Ruth wants her friend Plackter to testify "Ruth's reputation for bravery and honesty is excellent." |
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Definition
Evidence Answer 21
No. Right form, but wrong trait. Reputation evidence is admissible in both the Federal Rules and in New York. However, the evidence must be relevant to the claims at issue. Here, the relevant trait is violence or peacefulness, not bravery and honesty. Honesty would be good in a fraud case, but not here. |
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Term
Evidence Q22
On trial for kicking serious ass, Lemerson has presented evidence of her good character. When the prosecution is calling its own witnesses to testify to Lemerson's relevant bad character, where does the FRE differ from NY? |
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Definition
Evidence Answer 22
Where the defendant has "opened the door" by calling character witnesses, the prosecution may rebut in two ways: calling its own witnesses, and cross-examining the defendant's character witnesses about specific acts. The federal rules allow prosecution witnesses to testify about the defendant's reputation or their opinion about the defendant. In New York, they may testify only about the defendant's reputation. |
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Term
Evidence Q23
Ruth testified that defendant Oz has good character. Flummoxed, DA Brit started making shit up. "Did you know that Oz defaced Mt. Rushmore?" he asked. Oz (pro se) objected. Brit countered that he didn't have to prove anything. Who wins? |
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Definition
Evidence Answer 23
Oz. Even though the prosecution is not proving the specific act, when rebutting defense's character witness, it must have a good faith basis to believe that the specific act took place. You can't just go making shit up. |
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Term
Evidence Question 24
Dayna kicked Oz's ass, and is on trial. Dayna wants to call Jeff to offer character evidence that Oz is volatile. Admissible under the FRE? |
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Definition
Evidence Answer 24
Yes. A criminal defendant may offer evidence of the victim's violent character to prove that the Victim was the first aggressor. The testimony can discuss reputation or opinion. The prosecution can rebut by evidence of the victim's good character for that trait or the defendant's bad character for that trait.
New York does not allow victim character evidence at all. |
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Term
Evidence Question 25
To prove that Safia was the first aggressor, may Emily call Ruth to testify that she (Ruth) had been the victim of a knife attack by Safia a few years ago? |
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Definition
Evidence Answer 25
No. This is a specific act, which is not allowed in NY or for MBE. |
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Term
Evidence Question 26
May Jeff testify in his own defense that, at the time of the altercation with Ru, he was aware of Ru's prior knife attack on Brit? |
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Definition
Evidence Answer 26
Yes, not to prove Ru started the fight but that Jeff thought Ru was about to attack. Part of his claim of self defense. It shows defendant's state of mind. |
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Term
Evidence Question 27
Can a rape defendant admit evidence of the number of the victim's prior sexual partners? |
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Definition
Evidence Answer 27
In a case involving alleged sexual misconduct (civil or criminal), the defendant ordinarily may not introduce evidence of
(1) The victim's reputation for promiscuity or
(2) The victim's prior sexual conduct. |
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Term
Evidence Question 28
Up on rape charges, D claims that she "wanted it." D wants to introduce that he had sex with her twelve times prior to the events in question. Can he? |
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Definition
Evidence Answer 28
Yes. In a case involving alleged sexual misconduct (civil or criminal), under the "Rape Shield" rule, the defendant ordinarily may not introduce evidence of (1) the victim's reputation for promiscuity or (2) the victim's prior sexual conduct. Evidence of the victim's other sexual activity with the defendant is admissible, but only if the defense is consent. |
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Term
Evidence Question 29
Up on rape charges, D claims that they had sex, but it wasn't rape. D wants to introduce that she had rough sex with two other men earlier that week, which would explain the bruises. Can he? |
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Definition
Evidence Answer 29
Yes. In a case involving alleged sexual misconduct (civil or criminal), under the "Rape Shield" rule, the defendant ordinarily may not introduce evidence of (1) the victim's reputation for promiscuity or (2) the victim's prior sexual conduct. Evidence of the victim's sexual activity with others is admissible, but only to prove that someone other than the defendant was the source of physical evidence (semen, bruises, disease). |
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Term
Evidence Question 30
Ru sues Emily for automobile negligence. During Ru's case in chief, he seeks to offer evidence of Emily's reputation for careless driving. Admissible? |
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Definition
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Term
Evidence Question 31
Ru sues Emily for automobile negligence. During the defense, Emily calls Abe to testify that in his opinion, Emily is a prudent and careful driver. Admissible? |
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Definition
Evidence Answer 31
No. It would be in a criminal case but not in a civil case. |
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Term
Evidence Question 32
Nicole's 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? |
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Definition
Evidence Answer 32
No, still a civil case, though based on criminal acts. In a criminal case he could. |
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Term
Evidence Q33
Oz's estate sues Ru for wrongful death damages, alleging that Ru intentionally killed Oz. In support of his claim of self-defense, may Ru properly introduce evidence of Oz's violent character to prove that Oz was the first aggressor? |
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Definition
Evidence Answer 33
No. Evidence of person's character is admissible in civil action only where such character is an essential element of a claim or defense. (FRE 405) Only two situations:
(1) Negligent hiring/negligent entrustment
(2)Defamation |
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Term
Evidence Q34
Jeff alleges that Dunn's was negligent in hiring Abe in July 2003 and thereafter allowing him to drive on Dunn's behalf. Jeff offers testimony of Safia that since 2001, Abe has had a reputation for being a terrible driver. Admissible? |
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Definition
Evidence Answer 34
Yes, only because negligent hiring. Idea is that Ace should not hire people that have a reputation for being a terrible driver and should know if they have that reputation. |
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Term
Evidence Q35
Jeff sues Dunn's, alleging that Dunn's was negligent in hiring Abe in July 2003 as a driver. Jeff offers evidence that Abe had been involved in three traffic accidents in 2002 and four accidents since he began working for Dunn's. Admissibl |
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Definition
Evidence Answer 35
Admissible. Not about propensity, it's about what Dunn's knew or should have known. |
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Term
Evidence Question 36
What is habit evidence? |
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Definition
Evidence Answer 36
Habit is a repetitive response to a particular set of circumstances. Thus, habit has two distinguishing characteristics:
(1) Frequency (100 times v. 1 time)
(2) particularity (wearing seat belt v. safe driver) |
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Term
Evidence Q37
In an auto accident case, the issue is whether Brit stopped at the stop sign. Dayna will testify that she has seen Brit run the stop sign at the intersection on at least sixty occasions. Admissible under the FRP? |
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Definition
Evidence Answer 37
Yes, admissible as habit. Frequently repeated response to particular set of circumstances. |
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Term
Evidence Question 38
In an auto accident case, the issue is whether Brit stopped at the stop sign. Dayna will testify that she has seen Brit run the stop sign at Hickory and Main on at least sixty occasions. Admissible as habit in New York? |
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Definition
Evidence Answer 38
No. New York rule on habit evidence (the result of confused case law)
(1)Evidence relating to a business, trade, or profession: is admissible. But(2) Evidence relating to personal habit on issue of due care in negligence: is not admissible. And (3) Evidence relating to personal habit in the use of a product is admissible. |
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Term
Evidence Q39
Oz sues RuToasters for products liability alleging that he received a severe electric shock when removing his toast from the toaster. RuToast wants to introduce evidence that Oz has a habit of pulling his toast out with a knife. Admissible |
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Definition
Evidence Answer 39
Yes, for MBE and NY. Use of product exception to personal habit regarding due care. Maybe because the use of the product an P's environment are under his exclusive control, unlike when driving. |
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Term
Evidence Question 40
Lemerson is accused of robbing and killing Plackter. DA Abe wants to introduce evidence that Lemerson and Plackter robbed and killed Jeff a year ago, and Plackter hid the loot. Barred as propensity evidence? |
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Definition
Evidence Answer 40
Yes. A defendant's other crimes or specific bad acts are not admissible during the prosecution's case-in-chief if the only purpose is to prove propensity, i.e., because of defendant's bad character he is more likely to have committed the crime currently charged. But, if the defendant's other crimes or specific bad acts are offered for some purpose other than propensity, then the evidence will not be barred by the rule against character evidence. These other purposes are called the MIMIC rule: Motive, Intent, Mistake or accident (absence of), Identity, or Common Scheme of Plan. This motive evidence: Lemerson killed Plackter to get the money they stole from Jeff. |
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Term
Evidence Q41
Dayna is charged with the murder of Officer Ru. The prosecution seeks to prove that Dayna was convicted and imprisoned five years ago for narcotics sales after an investigation and arrest made by Officer Ru. Dayna objects. Who wins? |
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Definition
Evidence Answer 41
Objection overruled. Admissible because prior conduct shows motive. It's not to show he is a bad guy - that would be propensity reasoning. |
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Term
Evidence Question 42
What are the five most common non-character purposes that will excuse the general rule against admitting prior acts of a defendant? |
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Definition
Evidence Answer 42
The defendant's other crimes or bad acts may be admissible if offered to show something specific about the charged crime (something separate and apart from a propensity to commit the crime). MIMIC: Motive, Intent, Mistake or accident (absence of), Identity, Identity, Common scheme of plan |
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Term
Evidence Q43
Brit is charged with robbing Kim's Video on St. Mark's Place early in the afternoon of July 1. Brit claims he was in the Bronx. DA seeks to introduce evidence that around noon on July 1, Brit robbed a Blockbuster at Union Square. Admissibl |
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Definition
Evidence Answer 43
Yes. Identity exception. This isn't about propensity - "once a robber, always a robber" - but where the defendant was at the time of the crime. |
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Term
Evidence Q44
DA Oz introduces evidence that Apple Bank's robber wore devil's horns, carried a whip, and used a label maker for a stick-up note. DA Oz then seeks to prove that Safia used the same MO when robbing Apple Bank a year ago. Admissible? |
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Definition
Evidence Answer 44
Admissible. Identity. Specific and unusual Modus Operandi that identifies the defendant as the perpetrator. MO must be unique in same way as the present crime. The reasoning here is that "once a robber in red ski mask using notes written on paper with watermelons on it, always a robber in a red ski mask using notes written on paper with watermelons on it." Need the weird note to fit the identity exception. |
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Evidence Question 45
Safia is charged with robbing Apple Bank. DA Oz seeks to prove that two days before the robbery, Safia stole a white Acura from a neighbor in the same town. The robber of Apple Bank used a white Acura for the "getaway." |
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Definition
Evidence Answer 45
Admissible. Car theft is prior bad act but admissible for its part in a common scheme. Not "once a robber always a robber," it's the same plan. ID car thief and ID the bank robber |
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Term
Evidence Question 46
How good does MIMIC evidence have to be? |
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Definition
Evidence Answer 46
When introducing prior bad acts for non-character purposes, the prosecution must produce sufficient evidence for a reasonable jury to conclude that the D committed the prior act by a preponderance of the evidence. In New York, the prosecution must produce clear and convincing evidence that the D committed the prior act. Upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence. |
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Term
Evidence Question 47
D is on trial for raping two women. The prosecution wants to introduce evidence that D molested young boys three times. Admissible for propensity? |
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Definition
Evidence Answer 47
Under the FRP, yes. In any case alleging sexual assault or child molestation, the prosecution may offer evidence of the defendant's prior sexual assault for the purpose of proving the defendant's propensity to commit sexual assault. In New York, rapists and child molesters are treated just like every other defendant - the prosecution may not introduce evidence of prior bad acts to prove propensity. |
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Term
Evidence Question 48
D is charged with rape. D pleads not guilty on the ground of mistaken identity. During its case-in-chief, the prosecution offers evidence that D has raped three other women over the past two years. Admissible? |
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Definition
Evidence Answer 48
In federal court, Yes. It's not MIMIC;it's admissible to show the propensity.
In New York court, no. In New York, rapists and child molesters are treated just like every other defendant - the prosecution may not introduce evidence of prior bad acts to prove propensity. |
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Term
Evidence Question 49
What is required for evidence to be relevant? |
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Definition
Evidence Answer 49
To be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, the evidence is inadmissible. In some limited and specific circumstances, other similar occurrences may be admissible, even if they relate to a time, event, or person other than that involved in the present litigation. |
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Term
Evidence Question 50
Abe is in his sixth whiplash lawsuit. Can the defendant introduce evidence of the prior five? |
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Definition
Evidence Answer 50
Yes, as part of a fraudulent scheme. Generally, a plaintiff's history of accidents or law suits is inadmissible. However, Plaintiff's prior accidents may be admissible to show:
(1) A fraudulent scheme or plan or
(2) Causation. |
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Term
Evidence Q51
Oz drove into a lamp post and sues Rutown for creating a hazardous condition. How can Rutown introduce evidence that Oz has filed ten actions against property owners based on his driving into other stationary objects and lost every time? |
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Definition
Evidence Answer 51
Not to show bad driver, and character evidence is not admissible. Admissible if as part of a fraudulent scheme. Admissible to show back pain came from prior accidents, not current one. |
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Term
Evidence Question 52
Oz drove into a lamp post and sues Rutown for creating a hazardous condition. How can Oz introduce evidence that three other accidents happened at the same lamppost? |
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Definition
Evidence Answer 52
Other similar accidents are generally not admissible, but other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for 3 potential purposes: to show (1) existence of dangerous conditions;(2) causation (3) prior notice to the defendant |
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Term
Evidence Q53
Dayna sues Acistray Co., alleging she was qualified for the job but was not hired because of her race. She seeks to show that Acistray hired no minority job applicants, despite their qualifications, during the past six years. Admissible? |
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Definition
Evidence Answer 53
Yes. Defendant's treatment of minorities shows discriminatory intent, which is the issue in the claim (much like "intent" in MIMIC). |
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Term
Evidence Question 54
Abe offered $100K for Brit's apartment. Admissible to show value of Brit's apartment? |
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Definition
Evidence Answer 54
No. The selling price of other property of a similar type, in the same general location, and close in time to the period at issue, is admissible as evidence of value of the property at issue. |
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Term
Evidence Q55
Ru sues Lawn Co. for negligence because a blade spun off one of its lawnmowers and severed his toes. Can he introduce evidence that 95% of other lawn mower manufacturers at that time had installed a safety device to prevent blade spin-offs |
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Definition
Evidence Answer 55
Yes. This is not a "subsequent remedial measure." It's a measure by other manufacturers at the time. It's about industry standard. That is relevant. |
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Term
Evidence Question 56
What are the rules for the questioning of character witnesses? |
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Definition
Evidence Answer 56
A party may impeach a witness (the "target witness") by calling another witness (the "character witness") to testify to the target witness's bad character for veracity. The federal rules allow reputation and opinion testimony, NY only allows reputation testimony, and neither allows testimony about specific acts. Any witness who has testified may be impeached by this method and extrinsic evidence is allowed. |
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Term
Evidence Q57
Oz testifies that he saw Safia running from the crime scene. Safia calls Brit to testify that Oz has a lousy reputation for truthfulness among members of their law school class, and in Brit's opinion, Oz is not a truthful person. Admissibl |
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Definition
Evidence Answer 57
Yes for MBE, yes and no for NY. The federal rules allow reputation and opinion testimony, NY only allows reputation testimony, and neither allows testimony about specific acts. |
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Term
Evidence Question 58
What is the sufficiency for admission standard for a document? |
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Definition
Evidence Answer 58
Sufficiency for admission standard is that party offering a document must authenticate it such that a reasonable jury could find it authentic. A witness is enough. |
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Term
Evidence Question 59
What kinds of documents are self-authenticating? |
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Definition
Evidence Answer 59
Some documents are presumed authentic. No foundation testimony is needed for these "self-authenticating" documents:
(1) Official publications(government pamphlets)
(2) Certified copies of public or private documents on file in public office (deeds, mortgages)
(3) Newspapers or periodicals (Wall Street Journal, for a stock price)
(4) Trade inscriptions and labels (label on a candy bar, to show the maker)
(5) Acknowledged document (anything notarized)
(6) Commercial paper (a check)
(7) Certified Business Records, offered into evidence under the business records hearsay exception - must be certified. Use an affidavit (a) by someone within the firm/business, (b) who knows how the records are regularly made, and (c) that they were made in the regular way at or about the time of the event recorded. |
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Term
Evidence Question 60
How might you authenticate a document? |
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Definition
Evidence Answer 60
(1) Testimony by a witness with personal knowledge (saw X sign the document)
(2) Proof of the author's handwriting by a lay opinion (person with preexisting knowledge of author's handwriting), expert opinion and comparison, or jury comparison
(3) Ancient Document Rule (20 years old/30 in NY), free of suspicion, found in expected place
(4) Solicited reply doctrine |
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Term
Evidence Question 61
Ru testifies that he has no recollection of signing a contract to direct the musical "Legally Brown." Producer Brit has the contract and wants Safia to testify that she saw him sign the contract. Admissible? |
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Definition
Evidence Answer 61
Yes. Writings can be authenticated by testimony by a witness with personal knowledge. |
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Term
Evidence Question 62
Emily denies writing the ransom note. DA Oz wants to authenticate the note by having Emily's high school boyfriend whom she hasn't seen in years testify that the handwriting matches. Admissible? |
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Definition
Evidence Answer 62
Yes. Writings can be authenticated by proof of the author's handwriting by a lay opinion. The witness must have familiarity with the author's handwriting as a result of experience in the normal course of affairs - not as a result of preparation for the litigation |
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Term
Evidence Question 63
Which documents are self-authenticating? |
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Definition
Evidence Answer 63
Some documents are presumed authentic. No foundation testimony is needed for these "self-authenticating" documents. These include
(1) Official publications (government pamphlets)
(2) Certified copies of public or private documents on file in public office (deeds, mortgages);(3) Newspapers or periodicals (Wall Street Journal, for a stock price);(4) Trade inscriptions and labels (label on a candy bar, to show the maker);(5) Acknowledged document (means notarized);(6) Commercial paper (a check);(7) Certified Business Records, offered into evidence under the business records hearsay exception - must be certified. Use an affidavit by someone within the firm/business who knows how the records are regularly made and that they were made in the regular way at or about the time of the event recorded. |
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Term
Evidence Q64
Lemerson testifies that she saw Abe throw garbage across the room that blinded Brit. She is shown a photo of Room 311 and asked whether it is fair and accurate as she remembers it. Abe objects: Lemerson wasn't the photographer. What ruling |
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Definition
Evidence Answer 64
Overruled. If the purpose of the photograph is to "illustrate" a witness's testimony, it can be authenticated by the Witness testifying, based on personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed. |
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Term
Evidence Question 65
DA Plackter seeks to enter into evidence a security videotape of Safia punching Oz. Safia suspects it is a fake. What will Plackter have to show to get it admitted? |
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Definition
Evidence Answer 65
Sometimes, a photograph is not illustrating a witness's testimony, but rather is itself the evidence (e.g., photos from surveillance cameras, automatic teller machines, etc.). A party offering such a photograph must show:
(a) That the camera was properly installed
(b) That the film was properly removed and developed
(c) And that the film has not been tampered with. The most effective way to show an absence of tampering is by establishing a chain of custody. |
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Term
Evidence Q66
Ruth took pictures during the Fordham Follies fire. She gave her camera to Michael, who took it to a beatnik at the photo lab, and later that day a hipster gave him a set of prints, which DA Abe wants to introduce into evidence. Admissible |
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Definition
Evidence Answer 66
No, not without testimony from Ruth, Michael, the beatnik, the hipster, and anyone else in the chain of custody. |
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Term
Evidence Question 67
What is the best evidence rule? |
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Definition
Evidence Answer 67
If a party seeks to prove the content of a writing, the party must either (1) Produce the writing, or (2) provide an acceptable excuse for its absence.
If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove the contents. |
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Term
Evidence Question 68
The best evidence rule requiring the party to prove the contents of a writing arises in two principal situations? |
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Definition
Evidence Answer 68
(1) The writing is a legally operative document (i.e., the writing itself creates rights and obligations). Examples: deeds, mortgages, divorce decrees, written contracts, or
(2) the witness is testifying to facts that she learned solely from reading about them in a writing. |
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Term
Evidence Q69
Ru is charged with cat-burgling a jewelry store. No one witnessed the break-in, but it was captured on film by a surveillance camera. Officer Plackter testifies, "I watched the film and it clearly shows Ru was the burglar." Objectionable? |
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Definition
Evidence Answer 69
Yes. Plackter has no personal knowledge. The film is the best evidence;the jury should just watch the film. |
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Term
Evidence Q70
Oz is charged with perjury for his testimony at a congressional hearing. At trial, an aide offers to testify to what Oz said during the hearing. Is the aide's testimony is improper because the transcript is the best evidence of what Oz sai |
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Definition
Evidence Answer 70
No. The best evidence rule does not apply because the transcript is not legally operative, since the testimony exists independent of the transcript. Also, the perjury is independent of the transcript. Any witness can testify. |
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Term
Evidence Q71
Dayna sues her boss Ru for failure to pay Dayna's wages and failure to reimburse her expenses. Dayna seeks to testify that she worked 100 hours. Ru objects that Dayna's time sheets are the best evidence of how many hours she worked. Ruling |
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Definition
Evidence Answer 71
Overruled. Her oral testimony is admissible. Time sheets are not legally operative - they do not create the work. |
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Term
Evidence Q72
Dayna sues her boss Ru for failure to reimburse her expenses. Dayna seeks to testify that she incurred $1,000 in expenses. Ru objects that the receipts and canceled checks are the best evidence of Dayna's expenses. Ruling? |
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Definition
Evidence Answer 72
Overruled. Expenses were incurred regardless of the checks and receipts, and the worker has personal knowledge. |
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Term
Evidence Q73
Dayna sues her boss Ru for failure to pay Dayna's wages and failure to reimburse her expenses. Ru seeks to testify that Dayna's time sheets show she worked only 80 hours, and her submitted receipts show only $500 in expenses. Admissible? |
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Definition
Evidence Answer 73
No. Only has knowledge from the documents, no personal knowledge. Ru must produce the documents. |
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Term
Evidence Question 74
What is an original writing under the Best Evidence rule? |
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Definition
Evidence Answer 74
The original includes:
(1) the writing itself,
(2) any counterpart intended to have the same effect
(3) any negative of film or print from the negative
(4) computer print-out. |
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Term
Evidence Question 75
What is a duplicate writing under the Best Evidence rule? |
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Definition
Evidence Answer 75
A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy, computer print-outs). A duplicate is admissible to the same extent as an original, unless
(1)There is a genuine question about the authenticity of the duplicate. Or
(2) It would be unfair to admit the duplicate. Didn't remove the post-its before Xeroxing the documents, or the color of the ink matters.
Photocopies and other duplicates are acceptable substitutes for the original only if the duplicates were made in the regular course of business. |
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Term
Evidence Q76
Brooklyn DA Oz is prosecuting Jeff for arson. Elissa gave the cops a photocopy of Jeff's diary because she thought he might be dangerous. Oz wants to admit the photocopy as a duplicate. Can he? |
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Definition
Evidence Answer 76
No. Generally, A duplicate is admissible to the same extent as an original, unless:
(1) There is a genuine question about the authenticity of the duplicate, or
(2) It would be unfair to admit the duplicate (Didn't remove the post-its before Xeroxing the documents, or the color of the ink matters). But in New York Photocopies and other duplicates are acceptable substitutes for the original only if the duplicates were made in the regular course of business. Since this was not business, it does not fit the exception in NY. |
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Term
Evidence Question 77
What kinds of copies of text documents are not considered original? |
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Definition
Evidence Answer 77
Handwritten copies. |
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Term
| Evidence Question 78;;When will non-production of the original be excused? |
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Definition
Evidence Answer 78
A party need not produce the original (or an acceptable duplicate) if the original
(1)Is lost or cannot be found with due diligence, or
(2) Has been destroyed without bad faith, or
(3) Cannot be obtained with legal process. |
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Term
Evidence Question 79
Under which three circumstances can we dodge the best evidence rule, where we have or could get the best evidence but won't have to? |
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Definition
Evidence Answer 79
(1) Voluminous records 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 public records
(3) Collateral documents, if the court, in its discretion determines that the document is unimportant to the issues in the case. |
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Term
Evidence Question 80
When in doubt, should you pick the best evidence rule as the answer? |
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Definition
Evidence Answer 80
No. When in doubt do not pick the best evidence rule as the answer. It is very narrow and has lots of exceptions. It is often included as a wrong answer because it sounds good. |
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Term
Evidence Question 81
Emily wants to introduce the paper model of a building that Emily built to prove that Jeff copied her design. It has had some damage from wear and tear, so she did a major fix-up before presenting it. Admissible? |
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Definition
Evidence Answer 81
No. Must introduce sufficient evidence that it is what is being claimed to be - laying a foundation. But it must not tampered with: must be in substantially the same condition. |
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Term
Evidence Question 82
What qualifies as the "original writing"? |
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Definition
Evidence Answer 82
The original includes the writing itself;any counterpart intended to have the same effect;any negative of film or print from the negative;computer print-out. |
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Term
Evidence Question 83
What are the requirements for a witness to be considered "competent" to testify? |
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Definition
Evidence Answer 83
There are two requirements for a witness to be considered "competent" to testify:
(1) The witness must have personal knowledge, and
(2) The witness must take oath, which simply means: Demonstrate an understanding of the obligation to tell the truth, and Promise to tell the truth. Oath issues are usually child related. |
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Term
Evidence Question 84
When can't a kid testify? |
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Definition
Evidence Answer 84
A child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth. If they can't do that, they can't testify. This is the Federal Rule as well as a New York rule. |
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Term
Evidence Question 85
What is the child testimony in criminal case exception? |
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Definition
Evidence Answer 85
A child under the age of 9 who cannot understand the oath may still testify (in other words, the child may give unsworn testimony). They can still take the oath, it just doesn't mean anything. This rule is designed to make it easier to prosecute child molesters. BUT, a defendant cannot be convicted based solely on unsworn testimony. There must be some additional evidence. |
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Term
Evidence Question 86
In a NY civil case, can an eight year old give unsworn testimony? |
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Definition
Evidence Answer 86
No. All witnesses, including children, must take an oath. This is also the federal rule. |
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Term
Evidence Question 87
What is a Dead Man's Statute? |
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Definition
Evidence Answer 87
In a civil action, an interested party may not testify against a deceased party's representatives or interests about communications or transactions with the deceased party. "Transaction" means "interaction" - so car wrecks are transactions. It can be waived. Under the Federal Rules, there is no Dead Man's Statute - a witness is not incompetent simply because she may have an interest in the outcome of the litigation. |
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Term
Evidence Question 88
How do you waive a Dead Man's Statute? |
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Definition
Evidence Answer 88
The dead person's rights may waived if:
(1) The decedent's representative does not object,
(2) the decedent's representative testifies about the transaction, or
(3) the decedent's testimony is introduced. |
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Term
Evidence Q89
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. Under the Federal Rules, may Lemerson testify to what Emily said and did in negotiating the contract? |
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Definition
Evidence Answer 89
Yes. There is no Federal dead man rule. |
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Term
Evidence Q90
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. Under Federal Rule, may Lemerson's friend Oz, who witnessed the making of the contract, testify to what Emily said and di |
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Definition
Evidence Answer 90
Yes, no restrictions on witness are tied to the death itself. Have to be an interested party. |
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Term
Evidence Q91
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. In a "Dead Man Statute" jurisdiction, may Lemerson testify to what Emily said and did in negotiating the contract? |
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Definition
Evidence Answer 91
No. Since she is a party, she is interested. |
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Term
Evidence Q92
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. In a "Dead Man Statute" jurisdiction, may Oz, who witnessed the making of the contract, testify to what Emily said and di |
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Definition
Evidence Answer 92
Yes. She is not "interested" under the statute. She will be cross examined for bias but is not precluded from testifying. |
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Term
Evidence Question 93
What is the New York exception to the Dead Man's Statute? |
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Definition
Evidence Answer 93
In an accident case based on negligence, the surviving party:
(1) May testify about the facts of the accident.
(2) But may not testimony about conversation with the decedent.
This exception is only for accidents, not other types of cases, like property. |
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Term
Evidence Q94
Ruth sues Abe's estate in NY for car crash injuries. Abe died shortly after. If no one else witnessed the accident, may Ruth, over a dead man's statute objection, testify that right after the accident, Abe staggered as he approached her? |
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Definition
Evidence Answer 94
Yes. Gets accident exception. In an accident case based on negligence, the surviving party:
(1) May testify about the facts of the accident.
(2) But may not testimony about conversation with the decedent.
This exception is only for accidents, not other types of cases, like property. |
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Term
Evidence Q95
Ruth sues Abe's estate in NY for car crash injuries. Abe died shortly after. No one else witnessed the accident. May Ruth, over a dead man's statute objection, testify that right after the accident Abe said, "It was all my fault?" |
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Definition
Evidence Answer 95
No, this is a conversation, not in the exception. In an accident case based on negligence, the surviving party:
(1) May testify about the facts of the accident.
(2) But may not testimony about conversation with the decedent.
This exception is only for accidents, not other types of cases, like property. |
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Term
Evidence Q96
Ruth sues Abe's estate in NY for car crash injuries. Abe died shortly after the accident. If Safia, Ruth's friend, also witnessed the accident, may she testify for Ruth that Abe admitted his fault? |
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Definition
Evidence Answer 96
Yes, she is not "interested." |
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Term
Evidence Question 97
When is a question leading? |
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Definition
Evidence Answer 97
A question is "leading" when the form of the question suggest the answer (e.g., "Isn't it a fact that . . . ."
or unevenly balanced alternatives). E.g. "was he wearing a red ski mask with blue trim or was he wearing nothing at all?" |
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Term
Evidence Question 98
When may leading questions be allowed on direct examination? |
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Definition
Evidence Answer 98
Leading questions may be allowed on direct examination in four situations:
(1) Preliminary introductory matters. (things not in dispute)
(2) Youthful or forgetful witness
(3) Hostile witness
(4) Adverse party or someone under the control of the adverse party (defendant's employees). A demonstration of hostility is not required. |
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Term
Evidence Question 99
When may a witness read from a prepared memorandum? |
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Definition
Evidence Answer 99
The basic rule is that a witness may not read from a prepared memorandum (that would be hearsay);must testify on basis of current recollection. But if a witness forgets something he once knew, he may be shown a writing (or anything else) to jog his memory. |
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Term
Evidence Q100
To refresh Brit's memory, his attorney shows him a copy of a list of missing items that Brit made for the police the day after the burglary. Insurer objects on the ground of lack of authentication, best evidence rule and hearsay. Who wins |
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Definition
Evidence Answer 100
Brit wins, he can refresh his memory with the copy of the list. But he may not read the list into evidence. The evidence is the recollection, not the refresher material. Has to put the list away and testify. |
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Term
Evidence Question 101
Can the lawyer slip a witness a private refresher note while on the stand? |
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Definition
Evidence Answer 101
No. If an item is used to refresh a witness's memory, the opposing party has a right to
(1) inspect it,
(2) use it in cross examination, and
(3) Introduce it into evidence. |
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Term
Evidence Question 102
When can a writing be read to the jury as a "past recollection recorded"? |
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Definition
Evidence Answer 102
A writing may be read to the jury as a "past recollection recorded" if:
(1) The witness once had personal knowledge,
(2) The witness now forgets, and showing the writing to witness fails to jog the witness's memory,
(3) The writing was either made by the witness or adopted by the witness (e.g. written by the police but he agreed it was accurate,
(4) The writing was made when the event was fresh in the witness's memory, and,;(5) the witness can attest that, when made, the writing was accurate.;;If all that is covered, it may be read to the jury, but not shown, unless the opposing party introduces it as an exhibit.;;In NY, The party using the recorded recollection may also introduce the record as an exhibit (i.e., show it to the jury). |
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Term
Evidence Question 103
When is lay opinion testimony admissible? |
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Definition
Evidence Answer 103
Lay opinion testimony is admissible if it is:
(1) Rationally based on the witness's perception (personal knowledge), and
(2) Helpful to the jury.
A lay witness may testify about such things as sobriety, emotions, speed, handwriting, smells (like marijuana). |
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Term
Evidence Question 104
When is expert witness testimony admissible? |
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Definition
Evidence Answer 104
Witness may testify to an opinion as an expert only if
(1) The witness is qualified (by education and/or experience),
(2) the testimony is about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury,
(3) the opinion has a proper basis, and
(4) the opinion is reliable. |
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Term
Evidence Question 105
What is the "proper basis of opinion" for an expert witness? |
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Definition
Evidence Answer 105
The opinion must be based upon
(1) a "reasonable degree of probability or reasonable certainty," and
(2) one of the following three data sources:
(a) The expert's personal knowledge (for example, what a treating physician saw)
(b) Evidence that is already in the trial record (made known to the expert through a hypothetical question, such as "if the plaintiff slipped and fell, what would be the result." Evidence of the slip and fall must be from evidence in the record, not the expert.)
(c) Facts outside, but only if those facts are of a type reasonably relied on by experts in the particular field. Usually these facts are hearsay. |
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Term
Evidence Q106
Dr. Dunn testifies "Abe's preoccupation with hats is a disabling psychosis, based on (1) interviewing and testing Abe, (2) my medical records in evidence, (3) interviews with Abe's friends, and (4) a written report by Dr. You." Admissible |
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Definition
Evidence Answer 106
Yes. Can't strike the opinion;it's appropriate based on 1 and 2. Even 3 and 4 are ok as basis if it's reasonable. The opinion must be based upon a "reasonable degree of probability or reasonable certainty," and one of three data sources: (1) The expert's personal knowledge, (2) evidence that is already in the trial record, or (3) facts outside, but only if those facts are of a type reasonably relied on by experts in the particular field. Usually these facts are hearsay. |
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Term
Evidence Q107
Safia is alleged to have been driving recklessly at the time of a car accident. Witness Jeff testifies that Safia looked angry, smelled of alcohol and drove at 80 m.p.h. Safia objects as improper opinion testimony. Ruling? |
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Definition
Evidence Answer 107
Objection overruled. Lay opinion is OK for emotions, smells and speed. Opinion testimony (lay or expert) generally is permissible even if it addresses an "ultimate issue" in the case (e.g., "X was drunk," "That's X's signature is on the check"). Opinion testimony may not, however, make legal conclusions ("It looked to me as though Defendant was engaged in conduct constituting a reckless disregard for the safety of others."). |
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Term
Evidence Question 108
How does a court determine the admissibility of expert opinion? |
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Definition
Evidence Answer 108
To be admissible, expert opinion must be sufficiently reliable. That means the expert has used reliable methods and the expert has reliably applied those methods to the particular facts of the case. A federal court examines reliability by asking such questions as: (1) Has the methodology been tested? (2) Are there known rates of error? (3) Has the methodology been subject to peer review? (4) Has the methodology been generally accepted? (the Daubert standard)
New York uses the older Frye standard. NY asks only whether the methodology has been generally accepted by the relevant professional community. |
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Term
Evidence Question 109
How does NY determine the reliability of scientific evidence that forms the basis of expert testimony? |
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Definition
Evidence Answer 109
NY asks only whether the methodology has been generally accepted by the relevant professional community (the Frye standard). |
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Term
Evidence Q110
Ru is alleged to have been driving recklessly at the time of a car crash. Plackter who observed the event testifies that Ru looked angry, smelled of alcohol and drove through at 80 m.p.h. Ru objects: improper opinion testimony. Ruling? |
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Definition
Evidence Answer 110
Overruled. Lay opinion is OK for emotions, smells and speed. |
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Term
Evidence Q111
Ru allegedly drove recklessly in a car accident. Plackter who observed the event testifies that "Ru looked angry, smelled of alcohol and was engaged in conduct constituting a reckless disregard for the safety of others." Admissible? |
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Definition
Evidence Answer 111
The smell and the speed are needed as evidence, but the jury draws conclusions, not the witness. Another example - "put gun to his head and pulled the trigger" is ok. "Put gun to his head, pulled the trigger and intentionally killed the victim" is not. |
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Term
Evidence Question 112
What is the federal criminal ultimate issue exception? |
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Definition
Evidence Answer 112
In a criminal case, an expert witness may not testify that the defendant did or did not have the required mental state. Then the "ultimate issue" objection is ok. This happens when the defendant raises insanity as a defense. The expert cannot say "defendant was insane" (and thus could not have the required mental state/mens rea). Otherwise, no restriction on witnesses testifying to the ultimate issue. |
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Term
Evidence Question 113
What is the learned treatise hearsay exception? |
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Definition
Evidence Answer 113
If a party can establish that a treatise is reliable authority, then the treatise may be used on direct or cross-examination of an expert, and the treatise may be read to the jury as substantive evidence(a hearsay exception). But the treatise may not itself be introduced as an exhibit (may not be shown to the jury). So can read from a medical textbook, but can't submit the book itself into evidence. |
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Term
Evidence Question 114
How do you establish the authoritativeness of a learned treatise? |
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Definition
Evidence Answer 114
(1) Your own expert testifies that the treatise is authoritative,
(2) your opponent's expert admits that the treatise is authoritative, or
(3) The judge takes "judicial notice" that the treatise is authoritative. |
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Term
Evidence Question 115
NY distinction on direct use of learned treatise. |
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Definition
Evidence Answer 115
On direct examination: A treatise may only be used for the purpose of showing the basis of the expert's testimony, not as substantive evidence. So no hearsay exception. Cannot read from the medical textbook but expert CAN say he relied on it. |
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Term
Evidence Question 116
NY distinction on cross use of learned treatise |
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Definition
Evidence Answer 116
(a) May only be used to impeach the opponent's expert's credibility, not as substantive evidence, and
(b) May only be used if the opponent's expert either relied on the treatise in developing her own opinion or acknowledged that it is a reliable authority. So cannot rely on another treatise. |
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Term
Evidence Question 117
What does credibility of a witness rest on? |
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Definition
Evidence Answer 117
Credibility, whether a witness is truthful (believable), rests on three things:
(1)Perception
(2) Memory
(3) Honesty |
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Term
Evidence Question 118
What is witness impeachment? |
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Definition
Evidence Answer 118
Impeachment is the process of trying to demonstrate that a witness is not credible due to dishonesty, bad memory or poor perception. |
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Term
Evidence Question 119
What is witness rehabilitation? |
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Definition
Evidence Answer 119
Rehabilitation is the process of trying to repair a witness's credibility after the witness has been impeached. |
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Term
Evidence Question 120
What is the NY witness "Voucher" rule? |
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Definition
Evidence Answer 120
By calling a witness, a party "vouches" for that witness's credibility. So, ordinarily, the party who calls a witness may not impeach that witness. |
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Term
Evidence Question 121
Prior Inconsistent Statement |
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Definition
Evidence Answer 121
A prior inconsistent statement may be used to impeach a witness. |
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Term
Evidence Question 122
What is Intrinsic impeachment? |
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Definition
Evidence Answer 122
Intrinsic impeachment: Cross-examination of the witness you are trying to impeach. |
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Term
Evidence Question 123
What is extrinsic impeachment? |
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Definition
Evidence Answer 123
Extrinsic impeachment: Impeaching a witness by introducing documentary evidence or by calling other witness. |
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Term
Evidence Q124
Ruth testifies for Plaintiff Oz that she saw the Dodge run the stop sign. On cross-examination, may Defendant seek to establish that a few days after the accident, Ruth told the police that it was the Pontiac that ran the stop sign? |
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Definition
Evidence Answer 124
Yes. Prior inconsistent statement is admissible to impeach. |
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Term
Evidence Q125
Oz is sued for a car crash, with Oz in a Dodge and Abe in a Pontiac. Safia testifies for Abe that the Dodge ran the stop sign. But Safia told the police that it was the Pontiac that ran the stop sign. May Oz introduce it substantively? |
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Definition
Evidence Answer 125
No, for both NY and MBE. Bad purpose. Prior statement is not admissible to prove the truth, for that purpose its hearsay. For MBE - Statements to the police are never in a formal proceeding so does not get exception. |
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Term
Evidence Question 126
What is the NY distinction for a witness being impeached with a prior inconsistent statement? |
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Definition
Evidence Answer 126
In both NY and on MBE, A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement. But in York, there is a timing distinction. The Witness must be given a chance to explain the statement while still on the stand (i.e., the statement must be proven through intrinsic cross-examination before it can be proven extrinsically). If the Witness is the opposing party, there is no need to given the witness/party an opportunity to explain the prior inconsistent statement, since they can take the stand any time. |
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Term
Evidence Question 127
When can a prior inconsistent be admitted as substantive evidence? |
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Definition
Evidence Answer 127
A prior inconsistent statement may be admitted both to impeach and as substantive evidence (i.e., to prove the truth of the prior statement), if the statement was made:
(1)Orally under oath, and
(2)A part of a formal hearing, proceeding, trial or deposition. |
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Term
Evidence Question 128
What are the seven methods of impeachment? |
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Definition
Evidence Answer 128
Methods of impeachment:
(1) Prior Inconsistent Statements
(2) Bias, Interest or Motive to Misrepresent
(3) Sensory Deficiencies
(4) Reputation or Opinion
(5) Criminal Convictions (Bad Character for Truthfulness)
(6) Bad Acts (without conviction)
(7) Contradiction |
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Term
Evidence Question 129
Oz is sued for a car crash, Oz in a Dodge and Abe in a Pontiac. Safia testifies for Abe that the Dodge ran the stop sign. May Oz use Safia's deposition testimony, that the Pontiac ran the stop sign, substantively? |
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Definition
Evidence Answer 129
Yes for the MBE, meets the exception. A prior inconsistent statement may be admitted both to impeach and as substantive evidence (i.e., to prove the truth of the prior statement), if the statement was made: Orally under oath, and A part of a formal hearing, proceeding, trial or deposition.
No for NY, there is no exception. Only permissible use is to impeach. Prior inconsistent statements, even if given in formal testimony under oath, are admissible only to impeach. |
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Term
Evidence Question 130
In NY, Jeff is on the stand for a big-time felony. DA Lemerson introduces his prior inconsistent statements, without giving Jeff the chance to explain himself. Any problem? |
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Definition
Evidence Answer 130
Nope. In New York, a witness confronted with prior inconsistent statements must be given the opportunity to explain while on the stand. However, if the Witness is the opposing party, there is no need to give the witness/party an opportunity to explain the prior inconsistent statement, since they can take the stand any time. |
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Term
Evidence Question 131
In Federal Court, must a witness be given an opportunity to explain prior inconsistent statements? |
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Definition
Evidence Answer 131
Yes, although it doesn't need to be on the stand. In Federal Court, a witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement. The inconsistent statement may be proven by extrinsic evidence, so long as the Witness is later given an opportunity to return to the stand and explain. If the Witness is the opposing party, there is no need to given the witness/party an opportunity to explain the prior inconsistent statement, since they can take the stand any time. |
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Term
Evidence Q132
Plaintiff Ruth testifies she was wearing her seat belt in the crash. Defendant Abe does not cross. Abe calls Oz, who testifies that Ruth told him a week after the accident that she had not worn her seat belt. Ruth objects. Ruling? |
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Definition
Evidence Answer 132
No. Motion denied. Ruth moved to strike on the ground that Ruth was not given an immediate opportunity to explain or deny the inconsistency. But there is no need to give immediate opportunity because witness is the opposing party. |
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Term
Evidence Q133
Plaintiff Ruth testifies she was wearing her seat belt in the crash. Defendant Abe does not cross. Abe calls Oz, who testifies that Ruth told him a week after the accident that she had not worn her belt. Can it be admitted substantively? |
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Definition
Evidence Answer 133
Yes. This is not about a prior inconsistent statement. There is another exception for statements made by opposing party. A prior statement of the opposing party will also be admissible for substantive evidence under the separate hearsay exception for party admissions. |
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Term
Evidence Question 134
What is bias? |
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Definition
Evidence Answer 134
Some relationship between the witness and a party - or some other interest in the litigation - that could cause the witness to lie. They can testify but are open to impeachment. The witness is a party, a friend, relative, or employee of a party, someone paid by a party, someone with a grudge against a party, anyone who has something to gain by the case coming out one way or the other. |
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Term
Evidence Question 135
When can bias be proven by extrinsic evidence? |
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Definition
Evidence Answer 135
Bias, because it is so important, may always be proven by extrinsic evidence. Generally, a witness need not be confronted with the alleged bias before it may be proven by extrinsic evidence. |
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Term
Evidence Question 136
What are Sensory Deficiencies? |
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Definition
Evidence Answer 136
Anything that could affect the witness's perception or memory. Examples: bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the witness stand. Intrinsic confrontation is not required, and extrinsic evidence is allowed. |
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Term
Evidence Question 137
Must a witness be confronted on the stand to challenge her eyesight? |
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Definition
Evidence Answer 137
No. A sensory deficiency is anything that could affect the witness's perception or memory. This might include bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the witness stand. Intrinsic confrontation is not required, and extrinsic evidence is allowed. |
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Term
Evidence Question 138
What is bias? |
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Definition
Evidence Answer 138
Bias means there is some relationship between the witness and a party that could cause the witness to lie. |
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Term
Evidence Question 139
What is character evidence? |
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Definition
Evidence Answer 139
A party may impeach a witness (the "target witness") by calling another witness (the "character witness") to testify to the target witness's bad character for veracity. |
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Term
Evidence Question 140
What are the acceptable forms of testimony for impeaching a witness? |
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Definition
Evidence Answer 140
Form of testimony for impeaching a witness:
Federal: reputation or opinion.
New York: reputation only.
Not allowed: specific acts. |
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Term
Evidence Q141
In the hospital, Ru told a nurse, "I feel good considering Emily tried to kill me." The next day, Ru told a cop, "I know I'm about to die. Safia shot me." At Safia's murder trial, can Ru's statement to the cop overcome a hearsay objection |
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Definition
Evidence Answer 141
Yes. Dying declaration. |
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Term
Evidence Q142
Ru told a nurse, "Emily shot me." The next day, Ru told a cop, "I know I'm dying. Safia shot me." At Safia's murder trial, DA introduces Emily's cop statement. May Safia introduce Emily's statement to the nurse over a hearsay objection? |
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Definition
Evidence Answer 142
Yes, prior inconsistent statement. It's to impeach, not admissible on its own. Impeachment is a non-hearsay use so don't need to follow hearsay rules |
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Term
Evidence Question 143
Which witnesses can be impeached with what prior convictions in New York? |
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Definition
Evidence Answer 143
In New York, any witness may be impeached with a conviction for any crime. When the witness is the criminal defendant, the court must conduct a hearing to balance the probative value of the conviction (on the issue of veracity) against the risk of unfair prejudice. |
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Term
Evidence Question 144
Which witnesses can be impeached with what prior convictions under federal rules? |
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Definition
Evidence Answer 144
To be admissible, a conviction (or the release from prison, whichever is later) must be within 10 years of the trial. Crimes of dishonesty or false statement are admissible (perjury, false statements, but not crimes of violence, drug crimes, or theft). Other misdemeanors are not admissible. Other felonies are admissible if the probative of the conviction (on the issue of veracity) outweighs the risk of unfair prejudice to a party. |
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Term
Evidence Q145
On trial in federal court for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross-examination, may DA Oz properly ask Ru whether he was convicted eight years ago of misdemeanor income tax frau |
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Definition
Evidence Answer 145
Yes, fraud is always in. |
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Term
Evidence Q146
On trial in federal court for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross, may DA Oz ask Ru if he got out of prison nine years ago for misdemeanor possession of marijuana? |
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Definition
Evidence Answer 146
No, not about dishonesty or false statement and it's a misdemeanor so not within the "other crime" criteria. |
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Term
Evidence Q147
On trial in federal court for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross-examination, may DA Oz properly ask Ru whether he was convicted two years ago of misdemeanor shoplifting? |
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Definition
Evidence Answer 147
No. Same as above. Shoplifting is not about lying or betraying trust so can't fit dishonesty or false statement. |
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Term
Evidence Q148
On trial in federal court for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross-examination, may DA oz properly ask Ru whether he was convicted five years ago for felony assault? |
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Definition
Evidence Answer 148
Maybe. Not crime of deceit, but it is a felony. Do the balancing test of probative value and prejudice. |
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Term
Evidence Q149
On trial in NY for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross-examination, may DA Oz properly ask Ru whether he was convicted eight years ago of misdemeanor income tax fraud? |
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Definition
Evidence Answer 149
Probably not. In New York, any witness may be impeached with a conviction for any crime. When the witness is the criminal defendant, the court must balance the probative value of the conviction (on the issue of veracity) against the risk of unfair prejudice. |
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Term
Evidence Q150
On trial in NY for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross, may DA Oz ask Ru whether he was released from prison eleven years ago for misdemeanor possession of marijuana? |
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Definition
Evidence Answer 150
Possibly. In New York, any witness may be impeached with a conviction for any crime. When the witness is the criminal defendant, the court must balance the probative value of the conviction (on the issue of veracity) against the risk of unfair prejudice. |
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Term
Evidence Question 151
On trial in NY for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross, may DA Oz ask Ru whether he was convicted two years ago of misdemeanor shoplifting? |
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Definition
Evidence Answer 151
Possibly. In New York, any witness may be impeached with a conviction for any crime. When the witness is the criminal defendant, the court must balance the probative value of the conviction (on the issue of veracity) against the risk of unfair prejudice. |
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Term
Evidence Question 152
On trial in NY for arson, Ru testifies in his own behalf, urging that the fire at his club was an accident. On cross, may DA Oz ask Ru whether he was convicted five years ago for felony assault? |
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Definition
Evidence Answer 152
Possibly. In New York, any witness may be impeached with a conviction for any crime. When the witness is the criminal defendant, the court must balance the probative value of the conviction (on the issue of veracity) against the risk of unfair prejudice. |
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Term
Evidence Q153
Ruth is charged with conspiracy for agreeing with Oz to rob a bank. Oz confessed to the police that he was one of the robbers, but now asserts his 5th Am. right not to testify. At trial, DA seeks to introduce Oz's confession. Admissible? |
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Definition
Evidence Answer 153
No. It might fit within the exception of statement against interest, but this evidence violates the confrontation clause, since he was not able to be cross-examined by D, and the statement was made during the police interrogations which is testimonial. |
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Term
Evidence Question 154
When are non-Mirandized statements in response to police interrogation admissible? |
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Definition
Evidence Answer 154
Past events potentially relevant to prosecution in response to police questioning are admissible when nontestimonial. It will be nontestimonial if the primary purpose of the questioning is to help the police in an ongoing investigation. |
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Term
Evidence Question 155
Are police records admissible against a criminal defendant under the business records exception? |
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Definition
Evidence Answer 155
No, because police reports are testimonial, business records are not testimonial. Police reports may not be offered against the defendant in a criminal case, only in a civil case. |
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Term
Evidence Question 156
What is the rule of Hearsay Declarants and Impeachment? |
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Definition
Evidence Answer 156
If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of a hearsay declarant. For example - "declarant has a perjury conviction." |
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Term
Evidence Question 157
When may a witness be asked about prior bad acts? |
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Definition
Evidence Answer 157
The federal rule: A witness may be asked about prior bad acts if those acts relate to truthfulness (e.g. lying on a resume). New York Rule: A witness may be asked about prior bad acts that show the witness's moral turpitude (being immoral). (Includes criminal conduct that does not relate to truthfulness.) Lies, arson, murder, rape. [Anything malum in se?].;;There must be a good faith basis to believe that the bad act occurred. No extrinsic evidence unless relevant for some other purpose, such as proof of bias. |
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Term
Evidence Question 158
What is the confrontation clause? |
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Definition
Evidence Answer 158
In criminal cases, the Sixth Amendment requires that the defendant be "confronted" with the witnesses against him. Does not apply to civil cases. The D may not offer testimonial hearsay in violation of the right to confrontation. |
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Term
Evidence Q159
Emily testifies in federal court as a defense witness that Defendant Oz drove through the intersection at a very slow speed. On cross, Plaintiff Abe asks Emily if she bit her mailman last year (never charged). Oz objects. Ruling? |
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Definition
Evidence Answer 159
Sustained. Not about truthfulness. The federal rule is that a witness may be asked about prior bad acts if those acts relate to truthfulness (e.g. lying on a resume). |
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Term
Evidence Q160
Emily testifies in NY as a defense witness that Defendant Oz drove through the intersection at a very slow speed. On cross, Plaintiff Abe asks Emily if she bit her mailman last year (not charged). Oz objects. Ruling? |
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Definition
Evidence Answer 160
Overruled. Shows moral turpitude. The New York rule is that a witness may be asked about prior bad acts that show the witness's moral turpitude (being immoral). (Includes criminal conduct that does not relate to truthfulness.) Lies, arson, murder, rape. |
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Term
Evidence Q161
Emily testifies in NY as a defense witness that Defendant Oz drove through the intersection at a very slow speed. On cross, Plaintiff Abe asks Emily if she lied on a food stamps application four years ago (uncharged). Oz objects. Ruling? |
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Definition
Evidence Answer 161
Admissible for MBE and NY. Prior bad act (without conviction) related to truthfulness (lying = moral turpitude). The New York rule is that a witness may be asked about prior bad acts that show the witness's moral turpitude. The federal rule is that a witness may be asked about prior bad acts if those acts relate to truthfulness. |
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Term
Evidence Q162
Emily testifies in NY as a witness for Defendant Oz that he drove through the intersection at a slow speed. On cross, Emily angrily denies lying in an application for food stamps. May P Abe call a welfare agent to prove that Emily lied? |
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Definition
Evidence Answer 162
No. Need a conviction to use extrinsic evidence on cross-examination questioning of prior bad acts. The cross-examiner must have a good faith basis to believe that the bad act occurred, and the bad act may be proven by intrinsic evidence only. (The cross-examiner is stuck with the witness's answer, even if the witness lies about it on the stand). |
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Term
Evidence Question 163
U.S. v. Ruth for narcotics sales. Jeff testifies for Ruth. On cross-examination, Jeff is asked whether he was arrested three years ago for passing counterfeit money. Objectionable? |
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Definition
Evidence Answer 163
Yes. Not a conviction but also not a bad act. This is not about what witness did, but about what public officials did. The prosecutor could ask "did you pass counterfeit money?" as a prior bad act. |
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Term
Evidence Question 164
Abe is on trial for bank robbery. Plackter testifies for the prosecution. On cross-examination, Plackter is asked whether she was arrested a month ago for selling marijuana and is awaiting trial on those charges. Admissible? |
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Definition
Evidence Answer 164
Yes. The question is not proper for impeachment of character for veracity because marijuana is not about truthfulness. It is also not an act. However, it is admissible due to bias. The pending trial indicates that Plackter may be testifying to curry favor with the prosecution. |
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Term
Evidence Question 165
Can an arrest be introduced as bad act impeachment? |
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Definition
Evidence Answer 165
No. An arrest is not a conviction, and the arrest itself is not a prior bad act. But the bad act may be admissible. |
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Term
Evidence Q166
Lemerson is on the stand as a character witness for Plackter. Lemerson is asked "Did you know Plackter was arrested for beating her husband?" Plackter objects, on the grounds that the question is improper prior bad act impeachment. Ruling |
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Definition
Evidence Answer 166
Admissible. Arrests (while not proof of the bad act) are the kind of things that affect people's opinions and reputations. The question is not trying to show the conduct of the party, but the knowledge (and thus veracity) of the witness. |
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Term
Evidence Question 167
Can an arrest be used to impeach a witness by showing bias? |
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Definition
Evidence Answer 167
Yes. An arrest may make a witness biased against law enforcement;or, pending charges may give a witness an incentive to "curry favor" with the prosecution. |
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Term
Evidence Question 168
On the stand, Jeff says he saw the orange paint explode when Safia shot Oz in the ear at close range. On cross, Safia wants to introduce a green paint pellet, the only ones in use that day. Can she? |
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Definition
Evidence Answer 168
No. A witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct examination. If the contradiction goes to an issue that is significant to the case, then it may be proven by extrinsic evidence. Since the color of the paint is not at issue, it can only be proven by intrinsic evidence. |
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Term
Evidence Question 169
When can witness' contradiction be proven with extrinsic evidence? |
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Definition
Evidence Answer 169
If the contradiction goes to an issue that is significant to the case, then it may be proven by extrinsic evidence. If the contradiction goes to a matter that is collateral (insignificant to the issues in the case or to the witness's credibility), then proof is limited to intrinsic evidence (and the cross-examiner is stuck with the witness's answer). |
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Term
Evidence Q170
Witness Jeff testifies that, while leaning against a maple tree, he saw that the traffic light was red. On cross, Jeff is asked "Isn't it a fact that the tree is an oak?" May Defendant call a municipal employee to testify that it is an oa |
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Definition
Evidence Answer 170
No. Collateral issue, so no extrinsic evidence allowed. That evidence is a waste of the court's time. |
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Term
Evidence Q171
Witness Jeff testifies that he saw the traffic light was red. On cross, Jeff is asked "Isn't it a fact that the light was not working that day?" Jeff sticks to his story. May Defendant call a cop to testify that the light was not working? |
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Definition
Evidence Answer 171
Yes, a significant issue so extrinsic evidence allowed. |
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Term
Evidence Question 172
What is bolstering? |
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Definition
Evidence Answer 172
Introducing evidence to support a witness's credibility before the witness's credibility has been attacked is called bolstering and is not allowed. |
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Term
Evidence Q173
Ru testifies that he saw Dayna's car run the red light. Dayna's counsel states that she has no questions for the Ru. After Ru steps down, Dayna calls Brit, who testifies, "Dayna has a good reputation for truthfulness." Objectionable? |
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Definition
Evidence Answer 173
Yes. This is rehabilitation, but there was no impeachment. That makes it bolstering, which is not allowed. |
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Term
Evidence Question 174
A prosecution witness' prior statement of identification is introduced before cross-examination. Defense objects as bolstering. Admissible? |
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Definition
Evidence Answer 174
Yes. A witness's prior statement of identification is admissible, even if the Witness's credibility has not yet been attacked. |
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Term
Evidence Q175
Abe is mugged. That day, Abe picks Ruth out of a line-up at the police station. Abe testifies at trial and identifies Ruth as the person who mugged him. May Abe also testify on direct examination about his prior ID at the station? |
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Definition
Evidence Answer 175
Yes. In-court identification has not been attacked but bolstering is OK. Line-up is more reliable than an identification made in court. New York: follows the same rule, but restricts prior identification testimony to civil cases, not criminal cases. |
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Term
Evidence Q176
Abe is mugged. Later that day, Abe picks Ruth out of a line-up at the police station. Abe falls ill and is unable to testify at trial. May Officer You, who was present at the line-up, testify that Abe identified Ruth as the mugger? |
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Definition
Evidence Answer 176
No. There is not a general hearsay exception for line-ups. It's a bolster exception so has to be a trial witness's prior statement. |
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Term
Evidence Question 177
Brit is testifying that Safia looked sober as she crossed the street before getting plowed by Jeff's truck. On cross, Jeff's attorney wants to ask Brit whether he was convicted eight years ago of income tax evasion. Admissible? |
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Definition
Evidence Answer 177
Yes. On cross-examination, a witness may be impeached by a prior conviction bad character for truthfulness. On re-direct, Brit cannot properly testify that he told the police on that day that Jeff had looked sober, because cross-examination did not suggest a motive to lie. |
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Term
Evidence Q178
Brit testifies that Safia looked sober before getting plowed by Jeff's truck. On cross, Jeff's atty asks if Brit and Safia have recently become lovers. On re-direct, Brit says he told the police that day that Safia looked sober. Admissibl |
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Definition
Evidence Answer 178
Jeff's question about becoming lovers is admissible, because it suggests Brit's testimony favorable to Safia is biased. Brit's testimony about telling the police on the day of the accident that Safia looked sober is hearsay. But impeachment suggested the motive and prior statement was made before then, so the statement is admissible to counter the charge of bias. Also admissible for substantive purposes (that she was sober) under federal law. In NY, it is not admissible for substantive purposes, only to counter allegations of bias. |
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Term
Evidence Q179
Oz was on the stand testifying for Jeff against Ru. On cross, Ru's attorney asks if Jeff claimed to be able to throw a football 150 yards on his resume. On redirect, can Jeff testify that he won the Fordham Law Honest Abe award? |
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Definition
Evidence Answer 179
Yes. If a witness's character for truthfulness has been attacked (through impeachment methods (4) reputation or opinion, (5) criminal convictions, or (6) bad acts), then the opposing party may introduce corresponding evidence of the witness's good character for truthfulness. FRE: reputation or opinion. NY: reputation only. Specific acts are not allowed. |
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Term
Evidence Question 180
When can a prior consistent statement of a witness be used? |
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Definition
Evidence Answer 180
A prior statement may be used to rehabilitate if:
(1) The prior statement is consistent with the witness's trial testimony,
(2)The opposing party has suggested through impeachment that the witness has a motive to lie (usually due to bias), and
(3) The prior statement was made before the motive to lie arose.
New York Difference: A prior consistent statement is admissible only to rehabilitate. |
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Term
Evidence Question 181
In a federal diversity case, which rules of evidence apply? |
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Definition
Evidence Answer 181
In federal diversity cases (where state law will govern the substantive claims), still apply the federal rules of evidence, but apply state law with respect to:
(1)Burdens of proof and presumptions
(2) Dead Man's Statutes, and
(3) Privileges. |
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Term
Evidence Question 182
Which privileges are recognized in federal court? |
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Definition
Evidence Answer 182
Federal courts use the common law of privileges and recognize the following privileges:
(1) Attorney/client
(2) Husband/wife
(3) Priest/penitent
(4) Psychotherapist/patient (not doctor/patient). |
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Term
Evidence Question 183
Which privileges are recognized in New York? |
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Definition
Evidence Answer 183
NY courts use the common law of privileges and recognize the following privileges:
(1) Attorney/client
(2) Husband/wife
(3) Priest/penitent
(4) Psychotherapist/patient
(5) doctor/patient
(6) Social worker/client
(7) Reporter/source. |
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Term
Evidence Question 184
What is the attorney/client privilege? |
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Definition
Evidence Answer 184
Confidential communication between an attorney and client (or their representatives) made during professional legal consultation will be privileged unless the privilege is waived by the client or an exception applies. |
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Term
Evidence Question 185
What is the joint client rule of attorney/client privilege? |
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Definition
Evidence Answer 185
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. |
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Term
Evidence Q186
Ruth tells her attorney Oz about the car crash and gives him the Sidekick with which she was texting at the time of the accident. In a deposition, can Plaintiff's counsel ask Ruth "What did you tell your attorney about the accident?" |
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Definition
Evidence Answer 186
No, meets all the attorney/client privilege criteria. Confidential communication between an attorney and client (or their representatives) made during professional legal consultation will be privileged unless the privilege is waived by the client or an exception applies. |
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Term
Evidence Q187
Ruth tells her attorney Oz about the car crash and gives him the Sidekick with which she was texting at the time of the accident. In a deposition, can Plaintiff's counsel ask Ruth "Describe what you were doing at the time of the accident? |
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Definition
Evidence Answer 187
Yes, fact he was texting was not itself a communication. "Did you tell your lawyer that you were texting?" would be about a communication and would be protected. |
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Term
Evidence Question 188
How can an accountant/client communication be privileged? |
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Definition
Evidence Answer 188
Accountant/client communications are typically not privileged. However, if the accountant is hired by the lawyer, the client/accountant communications will be privileged. |
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Term
Evidence Q189
Ruth is sued for her alleged negligence in an auto accident. She tells her attorney Abe she was texting with her Sidekick at the time of the crash and gives him the Sidekick. If served with a subpoena, must Abe produce Ruth's Sidekick? |
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Definition
Evidence Answer 189
Yes. The Sidekick is not a communication;it is evidence. Of course attorney Abe does not have to, and should not, say "Dilbert told me he was texting in this sidekick." |
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Term
Evidence Question 190
What are the exceptions to the exclusive right of the client to waive the attorney/client privilege? |
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Definition
Evidence Answer 190
(1) Future crime or fraud
(2) Client put the legal advice in issue
(3) In an attorney/client dispute. |
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Term
Evidence Question 191
What is the Physician/Patient privilege? |
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Definition
Evidence Answer 191
Confidential communication or information acquired by physician from patient for the purpose of diagnosis or treatment of a medical condition is privileged. |
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Term
Evidence Question 192
To whom does the Physician/Patient privilege apply in New York? |
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Definition
Evidence Answer 192
Applies to relationship between doctor and patient where it exists, and typically includes therapists, nurses, and physician's assistants. In New York, also includes dentists, podiatrists, and chiropractors. |
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Term
Evidence Q193
P sues D, alleging that D was intoxicated at time of accident. P seeks pretrial discovery of an emergency room hospital report analyzing D's blood alcohol content shortly after the accident. D objects on ground of privilege. What ruling? |
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Definition
Evidence Answer 193
Defendant wins. ER report is privileged - has confidential information about health condition. P put intoxication in issue, not D, so there was no waiver.
Remember: If D seeks damages, he puts this in issue, so D always waives the privilege in a personal injury suit.
Also, use of medical condition as a defense puts it in issue, so always waived in insanity defense, or if D argues he was unconscious. |
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Term
Evidence Question 194
What is the spousal communication privilege? |
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Definition
Evidence Answer 194
Confidential communications between spouses will be privileged. Have to be married at time of the communication. |
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Term
Evidence Question 195
What is the spousal immunity privilege? |
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Definition
Evidence Answer 195
Spousal Immunity (Spousal Testimony Privilege) In a criminal case, the prosecution cannot compel the defendant's spouse to testify against the defendant. It's like the 5th amendment right against self-incrimination.
The spousal immunity privilege is not recognized in New York. |
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Term
Evidence Question 196
On the night Ru is killed, Plackter comes home to her husband Jared wearing blood-stained jeans. Later, Plackter is prosecuted in NY for murdering Ru. At trial, can Jared be compelled to testify about the jeans? |
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Definition
Evidence Answer 196
Yes, Jared must testify. A pair of jeans is not communication, so spousal communication privilege is inapplicable. Also, she was probably wearing it outside, which is a waiver even if it was a communication. NY does not have a Spousal testimony privilege, which would have prevented him from having to take the stand. |
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Term
Evidence Q197
On the night Ru is killed, Plackter comes home to her husband Jared wearing blood-stained jeans. Later, Plackter is prosecuted for murdering Ru in Federal Court. At trial, can Jared be compelled to testify about the jeans? |
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Definition
Evidence Answer 197
Jared must testify. Spousal communication privilege is inapplicable because jeans are not communication. The MBE does have Spousal testimony privilege, under which Jared can't be forced to testify about spousal communications, but he could do so of his own volition. |
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Term
Evidence Q198
On the night Ru is killed, Plackter comes home to her husband Jared wearing blood-stained jeans. Plackter is prosecuted in Fed Ct for murdering Ru. Jared wants to testify that Plackter told him she stabbed Ru for insulting the U.N. Can he |
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Definition
Evidence Answer 198
No. Jared's statement relates to a privileged spousal communication. Although the testimonial privilege can be waived unilaterally, the communications privilege cannot. |
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Term
Evidence Q199
On the night Ru is killed, Plackter comes home to her husband Jared wearing blood-stained jeans. Plackter is prosecuted in NY for murdering Ru. Jared wants to testify that Plackter told him she stabbed Ru for insulting the U.N. Can he? |
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Definition
Evidence Answer 199
No. Jared's statement relates to a privileged spousal communication. Although the testimonial privilege can be waived unilaterally, the communications privilege cannot. |
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Term
Evidence Q200
On the night Ru is killed, Plackter comes home to her husband Jared wearing blood-stained jeans. Plackter is prosecuted in Federal Court for murdering Ru, and Jared divorces her. Can Jared be compelled to testify about the jeans? |
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Definition
Evidence Answer 200
Yes. Spousal communication privilege is inapplicable because jeans are not communication. Divorce waives the testimony privilege. |
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Term
Evidence Q201
On the night Ru is killed, Plackter comes home to her husband Jared wearing blood-stained jeans. Plackter is prosecuted in NY for murdering Ru, and Jared divorces her. Can Jared be compelled to testify about the jeans? |
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Definition
Evidence Answer 201
Yes. Spousal communication privilege is inapplicable because jeans are not communication. In New York, there is no spousal testimony privilege. |
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Term
Evidence Q202
Plackter is prosecuted in Federal Court for murdering Ru, and Jared divorces her. Can Plackter stop Jared from testifying that Plackter told him she stabbed Ru for insulting the U.N.? |
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Definition
Evidence Answer 202
Yes. Communication privilege attached when they were married and is still in effect. The reason is that we don't want the potential for divorce to discourage communication. |
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Term
Evidence Question 203
Plackter is prosecuted in Federal Court for murdering Ru. Jared divorces her. Can Plackter stop Jared from testifying that Plackter told him she stabbed Ru for insulting the U.N.? |
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Definition
Evidence Answer 203
Yes. Although there is no marital testimony privilege in New York, the communication privilege attached when they were married and is still in effect. The reason is that we don't want the potential for divorce to discourage communication. |
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Term
Evidence Question 204
Elissa is scheduled to testify against Jeff for robbing Dayna as an adverse witness on Tuesday. Monday night, Elissa marries Jeff. Can DA Abe still force her to testify? |
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Definition
Evidence Answer 204
No. The spousal/marital testimony privilege applies, as long as it's not a sham marriage. |
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Term
Evidence Question 205
What is hearsay? |
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Definition
Evidence Answer 205
Hearsay is an out of court statement by a person offered to prove the truth of the matter asserted. Absent an exception or exclusion, hearsay is inadmissible. |
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Term
Evidence Q206
Ruth proposes to testify for Dayna's estate that shortly after the accident, Dayna said, "Oz's car ran the red light." Is it hearsay if offered to prove who ran the red light? To prove Dayna was alive following the crash? |
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Definition
Evidence Answer 206
Yes, it is inadmissible hearsay to prove who ran the red light. No, it is not hearsay if used to prove Dayna was alive. The words are not hearsay if you need to know this for pain and suffering. Statement is not offered to prove its contents, but as evidence of something else (that she was alive). |
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Term
Evidence Question 207
What are the four principal categories of non-hearsay purposes? |
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Definition
Evidence Answer 207
(1) Impeachment,
(2) Verbal Acts,
(3) to show the effect on the person who heard or read the statement (like notice), and
(4) circumstantial evidence of speaker's state of mind. |
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Term
Evidence Q208
Safia alleges she fell on a salsa spill in aisle 3 and Market had prior notice. Safia's witness takes the stand. "Ten minutes before Safia fell, I heard a shopper tell the manager, 'Some salsa spilled in aisle 3.'" Inadmissible hearsay? |
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Definition
Evidence Answer 208
Depends on the purpose. If to prove there was a broken jar, then hearsay. But if offered to show owner had notice of the condition it is not hearsay. Doesn't matter if contents are true, just that they were said. |
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Term
Evidence Q209
Plackter is charged with the murder of Jared. DA Oz seeks to introduce an anonymous note to Plackter that she had when arrested. The note stated, "Jared is having an affair with Lemerson." If offered to prove motive, is it hearsay? |
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Definition
Evidence Answer 209
No. All that matters is that she read it, not that it's true. |
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Term
Evidence Question 210
Oz is prosecuted for murder. Defense: Insanity. Jeff, a witness for Oz proposes to testify: "Two days before the killing, Oz said, 'I am Teddy Roosevelt. It's bully to be back.'" Inadmissible hearsay? |
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Definition
Evidence Answer 210
No. It is not offered to show the truth of the statement, that Oz is Teddy Roosevelt. He isn't. It is offered to show Oz's state of mind. A statement that unintentionally reveals something about the speaker's state of mind is not hearsay. Statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate a lack of knowledge. |
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Term
Evidence Question 211
Prosecution of D for robbery. D takes the stand in his own defense and testifies: (a) "I didn't do it. (b) And I told the cops when they arrested me that I didn't do it." Should (a) and (b) be excluded as hearsay? |
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Definition
Evidence Answer 211
(a) No. It is in court.
(b) Yes. Out of court, by the person, offered to prove matter asserted (that the contents of the statement are true).
A witness's 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. In NY, in civil cases, prior statements are admissible to rehabilitate. |
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Term
Evidence Question 212
When are prior statements of witnesses "excluded" from the definition of hearsay? |
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Definition
Evidence Answer 212
Prior statements of witnesses that are "excluded" from the definition of hearsay:
(1) Prior statement of identified
(2) Prior inconsistent statement, if (a) made under oath (b) during a formal proceeding (but in New York, admissible only to impeach)
(3) Prior consistent statement, if (a) used to rebut an accusation of a motive to lie (bias) and (b) made before the motive to lie arose (but in New York, admissible only to rehabilitate). |
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Term
Evidence Question 213
What are the top ten hearsay exceptions to know for the bar exam? |
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Definition
Evidence Answer 213
(1) party admission,
(2) former testimony,
(3) forfeiture by wrongdoing,
(4) statement against interest,
(5) dying declaration,
(6) excited utterance,
(7) present sense impression,
(8) statement of then-existing mental, emotional, or physical condition,
(9) Statement for purpose of medical treatment or diagnosis,
(10) business and public records |
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Term
Evidence Question 214
What is the hearsay exception for party admissions? |
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Definition
Evidence Answer 214
Any statement made by a party is admissible if it is offered against the party. (i.e., offered by the other side). If you said it, it can be used against you. |
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Term
Evidence Q215
Ru is charged with tax evasion for the 2003. To prove Ru's income during 2003, prosecution offers into evidence Ru's 2003 loan application. Ru objects on the ground that the application is filled with unreliable inflated numbers. Ruling? |
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Definition
Evidence Answer 215
Overruled. Even if false it's admissible against X as a party admission ("statements of a party opponent"). Truth is not the issue. This is not "admission against interest." |
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Term
Evidence Q216
Ma v. Life Insurance Co. for non-payment on the life of Pa. Defense: Suicide. Life offers a letter by Ma to her friend. She wrote, "I came home and Pa was dead on the floor. I didn't see what happened, but Pa did himself in." Admissible? |
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Definition
Evidence Answer 216
Yes. Personal knowledge is not the issue, the fact she said it is the issue. Ma could not say this on the stand because no personal knowledge, but the letter can come it. |
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Term
Evidence Q217
Ru the Acme truck driver smashed into Emily's house. Ru calmly told Emily, "Sorry about wrecking your home. I was looking for a joint and a beer and wasn't paying attention." In Emily v. Acme, is Ru's statement admissible against Acme? |
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Definition
Evidence Answer 217
Federal: Yes. Employee, speaking about driving, driving is within the scope of employment and statement is against employer. New York: No. He is not a spokesperson. |
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Term
Evidence Q218
Ruth v. Acme Trucking for sex discrimination in failing to hire her. Ru, an Acme driver, told her over drinks one night, "I know the Acme personnel office has a policy against hiring women no matter how qualified they are." Admissible? |
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Definition
Evidence Answer 218
In NY, no, Ru is not a spokesperson. For MBE, also no, not within scope of his employment. |
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Term
Evidence Question 219
What is the hearsay exception for vicarious admissions by an agent or employee? |
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Definition
Evidence Answer 219
A statement by an agent or employee of a party, is admissible against the party if it concerns a matter within the scope of the agency or employment and was made during the agency or employment. Basically "speaking about job."
New York Distinction: A statement by an employee or agent is admissible against the principle only if the agent or employee had speaking authority/can speak on behalf of the principle or employer: = "speaking is the job" (E.g., CEO, general counsel, VP for Communications) |
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Term
Evidence Question 220
What is the hearsay exception for vicarious admissions by co-conspirators? |
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Definition
Evidence Answer 220
A statement of one co-conspirator is admissible against other co-conspirators if the statement was made during and in furtherance of the conspiracy. |
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Term
Evidence Q221
Safia is charged robbing Apple Bank with Brit. At trial, the prosecution offers two statements that Brit made to Oz, a federal agent. The day after the robbery, Brit said, "You got us. Safia and I did the Apple Bank job." Admissible? |
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Definition
Evidence Answer 221
No. Conspiracy is over. Even if the conspiracy was still in progress, Cooper is not furthering it by talking to a police officer. Statements made to cops will never qualify for this exception. |
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Term
Evidence Question 222
What circumstances count as "unavailable"? |
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Definition
Evidence Answer 222
(1) privilege
(2) absence from the jurisdiction
(3) illness or death
(4) lack of memory
(5) stubborn refusal to testify (witnesses are not allowed to refuse to testify,it's contempt). I SLAP. The hearsay exceptions for former testimony, forfeiture by wrongdoing, dying declarations, and declarations against interest require that the declarant be "unavailable".;;In NY, (4) and (5) do not count as unavailability. NY does recognize other unavailability grounds in civil cases: (1) Declarant is located 100 miles or more from the courthouse (NYC/Buffalo), (2) Declarant is a physician. |
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Term
Evidence Question 223
Under what four circumstances does unavailability matter? |
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Definition
Evidence Answer 223
The hearsay exceptions for former testimony, forfeiture by wrongdoing, dying declarations, and declarations against interest require that the declarant be "unavailable". |
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Term
Evidence Question 224
When a witness is unavailable, are their prior statements then admissible? |
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Definition
Evidence Answer 224
No. They still must fit one of the four categories. |
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Term
Evidence Question 225
When a declarant is unavailable and the prior statement was given in a proceeding or deposition, is it admissible? |
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Definition
Evidence Answer 225
Only if it also is offered against a party who, in the prior occasion, had an opportunity and a similar notice to cross-examine or to otherwise develop the testimony. The relevance of the former testimony to the current trial must be substantially similar to its relevance in the prior proceeding (so that the party had a similar motive to cross-examine). |
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Term
Evidence Q226
A and B were injured in a crash, and both sue Bus Co. In A v. Bus Co., Witness testified for A that Bus Driver was intoxicated at time of accident. Witness has since died. Admissible now in the separate lawsuit of B v. Bus Co.? |
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Definition
Evidence Answer 226
Yes. W is unavailable. Testimony was in proceeding, offered against Bus company, did they have opportunity to cross examine? Yes, and had some motive to do so as they do now (same liability issues). |
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Term
Evidence Q227
Bus Driver is prosecuted for DWI. At trial, prosecution seeks to introduce a transcript of Witness's grand jury testimony, in which Witness testified that Bus Driver was intoxicated at time of accident. Witness has since died. Admissible? |
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Definition
Evidence Answer 227
No. Bus company had no chance to cross examine. |
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Term
Evidence Question 228
What is the New York Distinction for former testimony? |
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Definition
Evidence Answer 228
New York Distinction (criminal cases only): The former testimony by now-unavailable witness must have been given at a criminal trial, a hearing on felony complaint or at conditional deposition. Defendant and charge must be the same in both former and current case. Former testimony given at a suppression hearing is not admissible against the defendant. Theory is that defendant's objective/motive for cross examination is different in suppression hearing and in trial hearing. |
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Term
Evidence Question 229
What is the hearsay exception for forfeiture by wrongdoing? |
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Definition
Evidence Answer 229
A party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection to admission of the declarant's out-of-court statements. Includes engaging in or acquiescing in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a trial witness |
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Term
Evidence Question 230
Abe is on trial. The key government witness, Oz, has been found dead, probably because of Abe. At the trial, Oz's grand jury testimony and interview statements to the police are offered against Abe. Objection: hearsay. Admissible? |
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Definition
Evidence Answer 230
Yes, if the judge thinks Abe is responsible for Oz's unavailability. The federal burden of proof regarding the party's wrongdoing is preponderance of the evidence. The New York burden of proof regarding the party's wrongdoing is clear and convincing evidence. |
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Term
Evidence Q231
Ru, and Acme truck driver, was fired after a crash. Later, Ru told Plaintiff's pal he had been drunk. At trial, Ru pleads the fifth. Plaintiff offers the pal's testimony about Ru's statement as evidence against Acme. Admissible? |
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Definition
Evidence Answer 231
As a vicarious party admission, no. Not employee when statement was made. As a statement against interest, yes. Saying he was drunk opens him to civil and criminal liability, and unavailable because asserting 5th Amendment rights. |
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Term
Evidence Q232
State v. Ruth for arson of Town Hall. Ruth calls Dayna to testify that Dayna heard Ru say, "I torched Town Hall, but I'm glad they think it's Ruth. I'm leaving town." Ru has not been located despite diligent efforts. Admissible? |
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Definition
Evidence Answer 232
Not unless some evidence corroborates the statement - look for this in the question. |
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Term
Evidence Question 233
Statements against interest will touch on one of what three areas? |
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Definition
Evidence Answer 233
An out of court statement offered to prove the truth of the matter asserted will be not be excluded as hearsay if (1) Declarant is unavailable (2) Statement is against Declarant's pecuniary ($), proprietary (property), or penal (jail) interest. |
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Term
Evidence Question 234
Chick: Do you own a red Mustang?
Dude: Yeah.
Chick: Well, it just rolled down the hill and smashed into my house.
Dude:Oop.
Statement against interest? |
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Definition
Evidence Answer 234
No. Dude didn't know the statement was against interest at the time it was made. |
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Term
Evidence Question 235
What is a "testimonial" statement? |
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Definition
Evidence Answer 235
A "testimonial" statement is grand jury testimony and police interrogation. |
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Term
Evidence Q236
Brit is charged with conspiracy to commit bank robbery with Abe. Abe confessed to the police that he was one of the robbers, but is now asserting his Fifth Amendment right not to testify. Is Abe's confession admissible against Brit? |
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Definition
Evidence Answer 236
No. Might be statement against interest but this violates confrontation clause. |
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Term
Evidence Question 237
What is the NY dying declaration rule? |
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Definition
Evidence Answer 237
New York: criminal homicide cases only - not civil cases. |
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Term
Evidence Q238
Ru was found by Officer Katz in a pool of blood with a knife in his stomach. He told Katz, "It's not looking too good for me. Dayna did it, and I'm going to get him for this." Ru died an hour later. Admissible as a dying declaration? |
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Definition
Evidence Answer 238
No. No showing of behalf of certain and impending death. He expected to live. |
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Term
Evidence Q239
Agent Payne spoke with wounded bank teller Oz, who gasped, "I'm a dead man. Get me a priest. Abe shot me as he made his getaway." Oz then lapsed into a coma which he's still in. Admissible in a robbery case as a dying declaration? |
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Definition
Evidence Answer 239
No. "Get me a priest," "get me to the hospital" or "get me a doctor" = think I'm going to die. Don't have to die, just meet the elements. BUT - not a homicide case. Crime was a bank robbery and a battery. But if Oz does die, then felony murder, which qualifies. |
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Term
Evidence Q240
Agent Payne spoke with wounded bank teller Oz, who gasped, "I'm a dead man. Get me a priest. Abe shot me as he made his getaway." Oz then lapsed into a coma which he's still in. Admissible in a personal injury case as a dying declaration? |
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Definition
Evidence Answer 240
Under the Federal rule? Yes, civil case. Under the New York rule? No, civil case. |
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Term
Evidence Q241
Oz awakes from his coma, knows he is about to die, and says: "Abe shot me." Oz then dies. Is Oz's statement admissible against Abe at Abe's subsequent trial for bank robbery and felony murder? |
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Definition
Evidence Answer 241
Yes. Meets elements and because he died it is now a felony murder. |
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Term
Evidence Q242
Oz awakes from his coma, knows he is about to die, and says: "Abe shot me. And my nephew Ozwald exercised undue influence over me when he got me to sign that will." Oz then dies. Admissible against Ozwald in a probate action on Oz's will? |
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Definition
Evidence Answer 242
Under the New York rule? No. Civil case. Under the Federal rule? No. Statement is not about cause or circumstances of the death. |
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Term
Evidence Q243
Emily observes a head-on crash and excitedly tells a cop 10 minutes later, "Oh my God! Both of those cars were going 80 miles an hour!" May the cop properly testify to Emily's statement in subsequent litigation arising out of the accident |
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Definition
Evidence Answer 243
Yes. Meets elements. The statement concerns a startling event. And was made while the declarant was still under the stress caused by the event. |
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Term
Evidence Question 244
What is the hearsay exception for present sense impression? |
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Definition
Evidence Answer 244
An out of court statement offered to prove the truth of the matter asserted is not excluded as hearsay if it describes an event an event, and is made while the event is occurring, or immediately thereafter. It hinges on contemporaneousness, the declarant has no time to fabricate. The NY Distinction: it requires corroboration. |
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Term
Evidence Q245
Safia's Hardware v. Ru for conversion. An anonymous 911 caller states, "I'm across the street from Safia's and Ru is making off with some chain saws." The police arrest Ru a few blocks away from Harry's. Is a tape of the call admissible? |
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Definition
Evidence Answer 245
Yes. Meets elements. Does not have to be "startling." No Confrontation problem because it is a civil, not criminal case. |
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Term
Evidence Question 246
Under the federal rules, what is a Statement of Then-Existing Mental, Emotional, or Physical Condition? |
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Definition
Evidence Answer 246
There is a hearsay exception for a contemporaneous statement (2)Concerning the declarant's existing: (a) Physical condition, or (b) State of mind (includes emotions, mental feelings, intent or future plans, sensations, and bodily health) (3) But Not a statement of memory or belief about a past condition. (4) Includes statements of future intent to do something with a third person. |
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Term
Evidence Question 247
What is the New York hearsay exception distinctions? |
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Definition
Evidence Answer 247
New York hearsay exception distinctions: (1) If a statement of present physical condition is offered, (a) The statement must be made to a layperson (not a doctor, doctors get their own exception), or (b) The declarant must be unavailable (then a statement to a doctor is OK).
(2) If a statement of future intent is offered to prove the conduct of a third person, New York requires: (a) Corroboration (of the connection between the declarant and the third person), and (b) That the declarant is unavailable. |
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Term
Evidence Q248
Ruth left all her money to the local pet cemetery. Her family challenges that Ruth was insane at the time of the will's execution. A few days before execution of the will, Ruth said to Oz, "I do not love my family anymore." Admissible? |
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Definition
Evidence Answer 248
Yes. About her present state of mind (at the time). Notice the overlap with "I'm Elvis." |
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Term
Evidence Q249
Ru's Family v. Life Insurance Co. for nonpayment of proceeds upon Ru's death. Defense: Suicide. Life seeks to introduce a note found in Ru's apartment (in Ru's handwriting) in which he said "I'm going to end it all next week." Admissible? |
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Definition
Evidence Answer 249
Yes. It's about intent so gets the exception. |
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Term
Evidence Q250
Ru's Family v. Life Insurance Co. for nonpayment of proceeds upon Ru's death. Defense: Suicide. Life Insurance Co. seeks to introduce a note found in Ru's apartment (in Ru's handwriting) in which he said "I am sad." Admissible? |
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Definition
Evidence Answer 250
Admissible. Present mental condition (at the time). |
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Term
Evidence Question 251
Before going out Monday night, Jared told Plackter, "I'm meeting Brit tonight at the bowling alley." Jared's dead body was found Tuesday morning outside the bowling alley. Is Jared's statement to his wife admissible? |
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Definition
Evidence Answer 251
Yes. Future intent (to meet Brit). Shows the 3rd party was there.
NY would require corroboration and unavailability of the witness. |
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Term
Evidence Q252
Abe, whose elbow was broken in accident with Oz in January, sues for damages for pain and suffering. At trial in December, Abe testifies about the pain. Can Ruth testify "Last May, Abe said, 'I'm feeling a lot of pain in my arm.'"? |
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Definition
Evidence Answer 252
Not a party admission. Only defendant could do that. But OK since present condition (at the time). |
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Term
Evidence Q253
Abe's elbow was broken in accident with Oz in 2006. Abe sues for damages for pain and suffering. At trial in 2007, Abe testifies about the pain. Can Ruth testify "Last September, Abe said 'I sure did feel a lot of pain in my arm in May.'" |
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Definition
Evidence Answer 253
Not admissible. Its not present condition, this statement looks backward. |
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Term
Evidence Question 254
What is an admissible statement for purpose of medical treatment or diagnosis? |
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Definition
Evidence Answer 254
A statement made to a medical professional (doctor, nurse, EMT) concerning present symptoms, past symptoms, or general cause of a medical condition for the purposes of treatment or diagnosis. It does not include statements of fault or identity of the wrongdoer.
New York Distinction: Excludes statements made solely for the purpose of obtaining expert testimony at trial (i.e. statement was to expert doctor, not the treating doctor). |
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Term
Evidence Question 255
Safia said to her doctor 'The pain in my arm is killing me.' Admissible? |
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Definition
Evidence Answer 255
Admissible. Present symptoms. |
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Term
Evidence Question 256
Safia said to her doctor 'I've been losing sleep at night for the past six months because of the pain in my arm.' Admissible. |
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Definition
Evidence Answer 256
Admissible. Past symptoms. |
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Term
Evidence Question 257
Safia said to her doctor 'This pain in my arm all started when I fell down the stairway-' Admissible? |
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Definition
Evidence Answer 257
Admissible. General cause of the medical condition. |
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Term
Evidence Question 258
Safia said to her doctor 'This pain in my arm all started when I fell down the poorly maintained stairway at Defendant's store.' Admissible? |
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Definition
Evidence Answer 258
Not admissible. It's about fault and identification of the wrongdoer. These are immaterial for medical treatment. |
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Term
Evidence Question 259
What's the rule on the admissibility of Business and Public Records? |
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Definition
Evidence Answer 259
Hearsay is admissible when it consists of
(1) Records of a business (any type, including public agencies)
(2) Made in the regular course of business (i.e., germane to the business)
(3) The business regularly keeps such records
(4) Made contemporaneously (at or about the time of the event recorded), and
(5) The contents consist of: Information observed by employees of the business, or A statement that falls within some other hearsay exception. (e.g. double hearsay) |
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Term
Evidence Question 260
In a criminal case, are police reports admissible as public records? |
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Definition
Evidence Answer 260
No. Police reports may not be offered against the defendant in a criminal case, only in a civil case. |
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Term
Evidence Q261
Jeff sues Oz for damages for recklessly running him down. Jeff introduces the report of Officer Dunn, who arrived ten minutes after the crash. The report prepared at the scene states "I measured 50 foot skid marks." Admissible? |
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Definition
Evidence Answer 261
Admissible. Business record and fits all elements. |
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Term
Evidence Q262
Jeff sues Oz for running him down. Jeff introduces the report of Officer Dunn, prepared at the scene. It states "Officer You, who witnessed the accident, told me that Oz was driving nearly 60 mph." Admissible? |
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Definition
Evidence Answer 262
This is a business record. Both are employees and as long as all those in the chain of evidence (right term?) is an employee, it's a record. |
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Term
Evidence Q263
Jeff sues Oz for running him down. Jeff introduces the report of Officer Dunn, prepared at the scene. It states "Bystander Lemerson told me, 'I saw the accident and Oz ran through the stop sign.'" |
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Definition
Evidence Answer 263
Inadmissible. Lemerson is not an employee of the business (i.e. not a policeman). Bill needs a separate exception, like excited utterance. Then we would have an excited utterance in a business record. |
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Term
Evidence Question 264
Jeff sues Oz for running him down. Jeff introduces the report of Officer Dunn, prepared at the scene. It states "Oz told me, 'I didn't see the stop sign.'" |
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Definition
Evidence Answer 264
Admissible. Party admission in the business record. |
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Term
Evidence Q265
Dollar seeks to introduce the Hospital record in which Nurse Hussain's notes made immediately after examining Plackter: "Slight bruises on arms and legs.", "Patient says she feels no pain.", "Patient says she ran red light." Admissible? |
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Definition
Evidence Answer 265
Nurse Betty is not testifying. It is about whether report is a business record.
(a) "Slight bruises on arms and legs." Admissible. Betty is employer and meets all elements.
(b) "Patient says she feels no pain." Admissible. It's a party admission, or present physical condition, or for purpose of medical treatment in the business record.
(c) "Patient says she ran red light." Inadmissible. It's a party admission so Nurse could testify but since not relevant to treatment it does not get the business record exception.
Redact: cut out (c) and keep (a) and (b) |
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Term
Evidence Question 266
How does a judge decide if a hearsay exception applies? |
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Definition
Evidence Answer 266
Whether a party has established the required elements of a hearsay exception is to be decided by the judge by a preponderance of the evidence. And in making that determination, the judge may rely on anything (including inadmissible evidence) |
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