1. existence of dangerous condition

2. causation of accident

3. prior notice to D

*but only if under substantially similar circumstances 

repetitive response to a particular set of circumstances.

NEEDS:

-particularity

-frequency

IN NY: also need complete control over the circumstances

for purpose other than fault, i.e.:

-ownership/control IF DISPUTED

-impeaching witness

for purpose other than negligence, can be admitted for ownership/control or feasibility of safer condition IF DISPUTED BY D 

NY PRODUCTS LIABILITY for STRICT LIABILITY: post-accident changes or design admissible to suggest existence of defect in product at time

CIVIL CLAIM, evidence of settlement, offers to settle, statements of fact made during settlement INADMISSIBLE for proving liability:

Exceptions:

1. settlement evidence admissible for purposes of impeaching witness for bias

2. statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in later criminal case

(NOT IN NY)

Note: exclusionary rule only applies if at time of discussion a CLAIM had been asserted (even informally) and it is disputed either as to the validity of claim or amount of damages

Offers to plead guilty--> can't be used in pending criminal case or in subsequent civil lit.

withdrawn guilty plea --> SAME (but in NY admissible in subsequent civil case)

Nolo Contendere --> cannot be used against D in subsequent civil litigation 

(+ statements of fact for all of these) 

GUILTY PLEA IS ADMISSIBLE AGAINST D IN SUBSEQUENT LITIGATION UNDER RULE OF PARTY ADMISSION 

-victim's violent character to prove that victim was the first aggressor (can use character witness or testify as to his own opinion)

NOT AVAILABLE IN NY 

-can intorduce evidence of victim's good character for peacefullness with reputation and opinion OR

-evidence of D's bad character for violence with reputation and opinion 

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

2. victim's sexual activity with defendant if the defense of consent is asserted, or

3. where exclusion would violate D's due process rights

Evidence of person's character is admissible in civil action where character is an essential element of a claim or defense, like:

(can prove by reputation, opinion, AND SPECIFIC ACTS)

but no opinion in NY!

1. tort action for negligent entrustment

2. defamation

3. child custody dispute 

Defendan'ts bad acts/other crimes may be admissible to show:

MIMIC

1. motive

2. intent

3. mistake or accident/lack thereof

4. identity

5. common scheme or plan 

1. by conviction, or

2. by evidence that proves crime occured

(NY: clear & convincing)

in case alleging sexual assault 

(same for child molestation)

Prior acts only, no reputation or opinion!

NOT AVAILABLE IN NY 

Methods of authenticating a writing:

(showing a writing is what it purports to be)

1. witness's personal knowledge 

2. proof of handwriting (by lay person's opinion, expert opinion, or showing jury)

3. ancient document rule

(authenticity inferred if it at least 20 years old (NY: 30), facially free of suspicion, and found in a place of natural custody)

4. Solicited Reply doctrine 

1. official publications (government documents)

2. certified copies of public records on file in public office

3. newspapers or periodicals

4. trade inscriptions and labels

5. acknowledged document

6. commercial paper 

A party who seeks to prove the contents of a writing must either:

1. produce original writing, or

2. provide an acceptable excuse for absence 

if excuse --> oral testimony or copy 

(applies to sound recordings, x-rays, and film)

1. writing is a legally operative document in the present case

2. witness is testifying as to facts that she learned soley from reading about them in writing 

1. whatever parties intended as original 

2. duplicate! counterpart produced by any mechanical means

-admissible to same extent as original unless it would be unfair 

NY: photocopies only acceptable if made in ordinary course of business

1. lost or cannot be found with due diligence

2. destroyed without bad faith

3. cannot be obtained with legal process

1. voluminous records

2. certified copies of public records

3. collateral documents 

in a civil action, an interested witness is incompetent to testify against the estate of a decedent concerning personal transaction or communication between interested witness and decedent 

FRE --> no dead man's statute

NY --> exception for auto accidents 

(may testify as to his observations of decedents conduct/demeanor but NOT oral statements)

1. showing witness fails to jog memory

2. witness had personal knowledge at former time

3. writing was either made by witness or adopted by witness

4. making or adoption occured while fresh in mind of witness

5. witness can vouch for accurarcy of writing when made or adopted 

NY --> writing can be shown to jury (NOT FRE)

1. personal knowledge

2. other evidence in trial record

3. facts not in evidnece if of a type reasonably relied on by experts in this field informing their opinions 

DAUBERT reliability test (FRE)

Factors: 

-testing of principles or methodology

-rater of error

-acceptance by other experts in same discipline

-peer review and publications 

exclusion from hearsay, comes in as substantive evidence

BUT witness who made prior identification must testify at trial subject to trial examination 

Yes (any method)

NOT in NY! unless prior inconsistent statement

1. made in writing signed by witness, or

2. made in oral testimony under oath 

1. confront witness

2. extrinsic evidence

CANNOT PROVE BAD ACTS WITH EXTRINSIC EVIDENCE

BIAS!

NY: prior inconsistent statement 

1. given under oath

2. in live testimonial context 

CONFRONTATION ONLY 

MBE: only if they relate to deceit/dishonesty

NY: any prior bad act that is criminal, vicious, or immoral - subject to court's discretion

D is entitled to hearing if prosecution plans to ask about prior bad act 

*can't ask if someone is arrested for something, only if they did the bad act 

How to rehabilitate one's own witness

(only after attack on credibility)

1. showing witness's good character for truthfulness

-only when impeachment suggests lying

2. prior consistent statement to rebut a charge of recent fabrication 

MBE: substantive evidence too! not NY

1. privileges

2. competency (dead man's statutes)

3. burdens of proof/presumptions

OTHERWISE, apply FRE in diversity suits 

if two or more clients with common interest consult same attorney, their communications with counsel concerning the common interest are privileged as to third parties

BUT if joint clients later have dipsute with each other concerning the common interest, privilege does not apply as between them 

1. partial disclosure is intentional 

2. disclosed and undisclosed communications concern the same subject matter, and

3. fairness requires that the disclosed and undisclosed communications be considered together 

1. took reasonable steps to prevent disclosure

2. took reasonable steps to correct the error 

1. future crime or fraud

2. client puts legal advice in issue

3. client/atty dispute 

applies to communications FOR THE PURPOSE of diagnosis/treatment

also applies to psychotherapists

FEDERAL COURT: only psychotherapy

No federal priv. for physical conditions 

Privilege lost if patient expressly or impliedly puts physical or mental state at issue

spouse cannot be compelled to testify about ANYTHING against other spouse

(only witness spouse holds this privilege)

NO PRIV. IN NY

spouse is not required to disclose confidential communications made during the marriage

-both spouses hold priv (either may invoke)

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

2. communications or acts destructive of the family unit (spousal or child abuse)

3. no privilege in civil litigation between spouses themselves (divorce, breach of K, child custody)

exclusion!

includes adoptive admissions, and vicarious party admissions

(NY: agent has to have the authority to speak)

1. privilege

2. absence from jurisdiction

3. illness/injury

4. lack of memory

5. stubborn refusal to tesify

NY:

-d is located within 100 miles from courthours

-physician 

criminal --> homicide

civil --> ALL

1. additional corroborating evidence of a relationship between the declarant and the other person

2. that the declarant is unavailable 

present symptoms, past symptoms, general cause of condition 

-does not include statements in which declarant identifies tortfeasor, NOR does it include statements from physician to patient

1. records of a business of any type

2. made in the regular course of business

3. the business regularly keeps such reords

4. made at or about the time of the event recorded

5. content includes information observed by employees of the business 

*doesnt have to be the person who authored the reord who introduces it 

*can use written certification under oath attesting to elements of business record 

1. activities of the office or agency

2. matters observed pursuant to duty imposed by law

3. findings of fact or opinion resulting from an investigation authorized by law 

does NOT include police reports prepared for prosecutorial purposes