EVIDENCE OUTLINE

Evidence – Shea

Christeen Walch – Spring 2008





Basics

Evidence

 Material offered to the court and jury

 2 types of evidence

o Real evidence

 Physical/material objects presented to the jury

 Documents

o Papers, documents

o Difficult to get into evidence b/c of hearsay rule

 Things

o Can include anything (ie: bullets, fingerprints, gun, a party

to the case, clothing, etc)

o Testimonial evidence

 People who have knowledge of the events are called as witnesses in court

and through a series of questions tell their story

 Anything can be evidence but you must first lay a foundation to bring something into

court as evidence  rules of evidence provide the process for laying the foundation

 Ways evidence relates to the fact in issue which the evidence is meant to establish:

o Direct Evidence – establishes the fact at issue directly

 Ex: A witness who saw a shooting testifies that he saw the D shoot the V

 directly establishes that D shot the V

o Circumstantial Evidence – evidence of collateral facts from which the

existence of the fact at issue maybe reasonably inferred

 Evidence that relates circumstantially to the fact at issue is sufficient

alone to establish guilt beyond a reasonable doubt

 Ex: W hears someone say “Don’t shoot,” then sees a man run out of the

building. W did not see D shoot V but there is circumstantial evidence to

show that D was in fact the person who shot V. From this the jury could

infer that D shot V.



Evidence that will not be offered into court as evidence

 Irrelevant evidence

o Evidence which does not relate to the fact at issue

 Relevant evidence – tends to prove the existence or non-existence of a

fact in issue  relates to a fact in issue

 Immaterial evidence

o Evidence which is not provable in this particular case

o Even if it is relevant, it doesn’t matter b/c it is not provable to the jury

o Ex: Contributory negligence in a worker’s compensation claim is immaterial in a

worker’s compensation claim the worker will receive the compensation regardless

of negligence.







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 Incompetent evidence

o Competent evidence does not refer to evidence itself BUT rather to the person

offering the evidence

o Person is incompetent to testify  incapable of giving evidence to the jury

 Person under a legally recognized privilege

 Minors

 Mentally incompetent

 Dead Man’s Statute

 Inadmissible evidence

o Evidence which is not receivable under the rules of evidence

 Partially Excluded

o Evidence can be admissible for some purpose but inadmissible for another

purpose in the same case



Federal v. NY

 Federal:

o Generally it is easier to get evidence admitted in federal court

o There is a published Federal Rules of Evidence (aka: blue book we never look

at)

o In diversity cases the federal court is bound by State law regarding:

 Presumptions (FRE 302)

 Privileges (FRE 501)

 Competency (FRE 601)

 NY

o Easier on the Ds

o There is no official publication of the NY Rules of Evidence  most of the

laws of evidence in NY are only in court decisions and some statutes





Judicial Notice

Judicial Notice of an Adjudicative Fact

 Rule of evidence which disposes of the need of evidence to establish a fact at issue

 An adjudicative fact to which no one may rationally dispute and it is relevant to the

case then there is no need for it to be tried and the judge will take judicial notice of

that fact and he will instruct the jury that he is doing so

o Adjudicative fact: Fact in issue, but for judicial notice, the jury would have to

find the fact  a fact which the court takes judicial notice of

 Requirements

 A fact in common knowledge OR

o NOT proper to take judicial notice of a disputable fact

 A fact that can be found in common sources which cannot be

disputed

o NOT proper to take judicial notice of a fact received from

an unidentified source

 Judicial notice may be taken at the request of the parties or the court may do so at its

own initiative.





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 Rationale: concession to the shortness of life



Civil Case

 Court will say that it is:

o taking judicial notice of the fact and

o charge the jury that they MUST consider this fact to be true AND

o the jury can base the case on this fact w/o any evidence  Court is telling the

jury as a matter of law that this fact is true

 Judicial notice of adjudicative facts in civil cases are binding on the jury

o FRE 201(g): In a civil action or proceeding, the court shall instruct the jury to

accept as conclusive any fact judicially noticed

 Judicial notice can be taken at any stage of a civil proceeding including appeal

o FRE 201(f): Judicial notice may be taken at any stage of the proceeding

[including appeal]



Criminal Case

 Court will say that it is:

o taking judicial notice of the fact and

o charge the jury that they MAY, but is not required to, accept as conclusive

any fact that is judicially notice

 Judicial notice in a criminal case may only be taken at the trial level BEFORE the

close of evidence (before the jury is dismissed)  appellate judges may NOT take

judicial notice

o Rationale: Jury has a right in a criminal case to reject the judicially noticed

fact but a jury cannot do this if judicial notice is taken after they are dismissed or

on appeal and the parties do not have the opportunity to object to the fact

being judicially noticed

o Constitutional right of D to a trial by jury (6th amend) is being protected  jury

gets to decide every element of the crime charged against D

 Judicial notice of adjudicative facts in criminal cases are NOT binding on the jury

o FRE 201(g): In a criminal case, the court shall instruct the jury that it MAY, but

is NOT required to, accept as conclusive any fact judicially noticed

 Judicial notice is proper in a criminal case but not mandatory on the jury



Judicial Notice of a Legislative Fact

 Court may also take judicial notice of legislative facts

o Legislative fact: Facts which the legislature rationally believed in fact and

relied upon in enacting a law  the facts satisfy the rational basis test

 For the Court to take judicial notice of legislative fact it need only have a rational basis

it does not need to be indisputable

 May be used to:

o Determine the validity of a statute

o To propagate common law

 Note: FRE 201 Advisory Note (a) - [FRE 201] is the only evidence rule on the subject

of judicial notice. It deals only w/adjudicative facts. NO rule deals w/judicial notice of

legislative facts.





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Judicial Notice of Law

 What is the law? is a question of law for the courts not a question for the jury

 The judge determines what law is applicable to the case by taking judicial notice of

the law

o Judge knows the law b/c he went to law school and learned the law, there is a law

library in which the law may be looked up and each side is invited to submit to

the court requests to charge (how to instruct the jury of the law)

 Once the judge takes judicial notice of law he will instruct the jury as to the law which

is to be applied to the facts of the case

o The judge charges the jury that if they find the facts that prove every element

of the law that the judge gave them, the jury must find accordingly

o Jury MUST apply the law given to them by the courts to the facts they find

 NYCPLR 4511 – Judicial Notice of Law

o Required Judicial Notice - judicial notice shall be taken w/o request to

 Common law

 Constitutions and public statutes of the US and every state/territories

 Local laws and county acts

 NY administrative code

 Official compilation of codes, rules, regulations of NY

 Exception

o Compilation of codes, rules, regulations relating solely to

the organization or internal mgt. of an agency of the

state

o Discretionary Judicial Notice – Judicial notice may be taken w/o request to

 Private acts and resolutions of Congress or state legislatures

 Ordinances and regulations of officers, agencies or govt. subdivisions of

states or US

 Laws of foreign countries

 Exception: Judicial notice must be taken of these matters IF

 A party requests it

 Furnishes sufficient information to enable the court to comply

w/the request

o If the judge does not take judicial notice b/c there is not

sufficient information, the law can still be proven as fact

to judge (ie: bringing in experts on laws of a foreign

country). The judge can then instruct the jury on the law

based on what was proven.

o Note: in this case he has not taken judicial notice BUT

now that it is proven  matter of law

 Notice to the other party









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Presumptions

Doctrine of Presumptions

 A partial release of obligation to produce evidence

 Relieves the party w/the burden of proof of the need to establish a fact  if you prove

one fact, you get the other

 2 types:

o Presumptions of Law – if A then jury must find B

 Allowable in civil cases only

 In NY or Federal Court there are NO presumptions of law/mandatory

presumptions in criminal cases b/c it relieves the prosecutor of his

burden of proof to prove every element of the crime charged against the

D beyond a reasonable doubt

o Permissive Inferences – if A then jury may or may not find B

 Allowable in civil cases

 In criminal cases permissive inference may be used depending on the

facts and circumstances of each case  OK if the permissive inference

as applied is more likely true than not



Presumption of Law/Mandatory Presumptions – ONLY in civil cases

 NY Presumption of Law

o Fact B is presumed to exist once Fact A is proven AND

o Jury will be told that if you find Fact A to be proven you MUST also find Fact

B to be proven even though no evidence was offered as to the truth of the fact

o UNLESS substantial evidence rebutting the ordinary presumption is brought

forward

 NY: the presumption does not automatically drop out it is for the jury to

decide questions of fact and credibility of Ws  question for the jury to

determine if the evidence rebutting the strong presumption is clear

and convincing (note: distinction in standard of proof for strong

presumption)

 Federal distinction: FRE 301 – Bursting Bubble Theory

 ANY/some evidence tending to show that Fact B is not true

destroys the presumption  Judge NOT jury determines if the

presumption is still valid (jury does not hear the presumption)

 NOTE: In diversity cases federal courts apply STATE law as to

presumptions

o IF jury believes the evidence rebutting the presumption then the

presumption drops out AND the burden shifts back to the party that

originally had the burden of proving that fact

 2 conflicting presumptions of equal weight

o Jury will not be instructed as to any presumptions b/c the presumptions cancel

each other out  jury will decide cased based on the facts presented

o Similar result in federal court due to bursting bubble theory  federal courts do

not give much weight to presumptions b/c they are easily rebuttable

 Ordinary Presumptions – substantial rebuttal evidence in NY





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o Bailee Failure to Return Goods: If a bailee fails to return goods there is a

presumption of law that the failure to return the goods was due either to

conversion or negligence  supplies bailor w/presumed fact

 Bailee can rebut the presumption (ie: saying that someone stole the car)

and if the jury believes the evidence offered by D  presumption is

rebutted

 ALL presumptions are rebuttable but in the absence of any

evidence from D the jury MUST find that the bailee’s failure to

return was due to negligence or conversion

o Attempted Suicide: If a person jumps in front of a train and lives there is no

presumption against attempted suicide. Reason being that the guy is alive and

he can tell his story and the jury will decide w/o a presumption on either side.

o Permission of Car Owner: If someone other than the owner of a car is

driving the car then it is presumed that the driver has permission from the

owner (common law presumption)

 If P proves that driver was driving someone else’s care then it is presumed

that the driver had the permission of the owner

o Possession of a firearm: presence of a firearm in a car is permissive inference of

illegal possession by all persons occupying the car

o Documents

 NY: If a document is 30 years or older it is presumed to be a

genuine/legitimate document and whoever signed it really signed it.

 This only establishes authenticity , it does not establish that the

contents of the letter are admissible for the truth of its content

b/c they may be hearsay (only admissible if falls under one of the

hearsay exceptions)

 FRE 901: If a document is 20 years or older it is presumed to be a

genuine/legitimate document and whoever signed it really signed it.

 FRE 803(16): The contents of the document are admissible for

their truth and are not excluded by hearsay rule even if the

declarant is available as a W

o Checks: If someone writes a check it is presumed to be given in payment of

debt.

o Mail: Presumption that mail which is mailed in the same city arrives on the next

business day. Proof that mail is properly addressed, stamped and deposited in an

appropriate receptacle presumes delivery to the addressee.

o Interoffice procedures: Need to show only that there is a procedure and that it

has begun. You don’t need to show every step in the chain.

 Strong Presumptions – Clear and convincing rebuttal evidence in NY

o Suicide: Strong presumption against suicide since self destruction is contrary to

the general conduct of mankind, therefore the insurance co. has the burden of

rebutting the presumption

o Legitimacy: Strong presumption that a child born during marriage is the

legitimate child of the H and W. There is a presumption that children are born

to a certain mother and father. If you are an illegitimate child then you won’t

have any claim on your parents’ estate absent a will.





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 Blood tests: Can rebut the presumption of legitimacy if it excludes the

man as the father of the child. There are times where the court will not

order the blood tests and the presumption of legitimacy stays in effect

o Marriage: Strong presumption of the validity of marriage. If you don’t have a

marriage certificate but you have held yourself out to be married there is still a

presumption that you are validly married.

o Death: After a long period of unexplained absence with no apparent motive to

disappear and no contact for 3 years, a person is presumed dead. Do not have

to rely on this presumption. If there is circumstantial evidence that a person was

exposed to a hazard you can rely on that instead and the person can be declared

dead earlier.

o Common Disasters: If people die in a common disaster it is sometimes important

to determine who died first (H and W w/separate large fortunes and joint wills).

There is a presumption that each has survived the other w/respect to his own

property. This is done to avoid double estate tax.



Permissive Inferences

 Inferences that can be brought up at trial which the jury MAY or MAY NOT take into

account when making their decision  Jury may, but need not find a presumed fact

 Missing Witness Adverse Inference

o If a party fails to call an available W who has facts relevant to the trial and the

W has a relationship w/the party that renders the W under party’s control/

favorable to the party  negative inference may be drawn by the jury that

the missing W’s testimony would not support the party’s version of the case

 For the judge to determine if the W is under the D’s control/favorable

to D before making the adverse inference

 Ex: Wife, employee, friend

 NO adverse inferences for missing Ws that are neither under the

party’s control nor favorable to the party

o Application of Missing W Inference in Criminal Case

 D takes the stand

 When D takes the stand he puts his credibility on issue

 Adverse inference MAY be drawn for any missing Ws

favorable to D which he did not call to the stand

 D calls Ws on his behalf but does NOT take the stand

 Has every right to take the stand BUT may not be compelled to

do so

 Prosecutor can not call D to the stand (D is protected under 5th

amend. from self-incrimination)

 NO adverse inference against D for failure to take the stand 

Prosecution can not even comment to the jury that D did not take

the stand

 Adverse inference MAY be drawn for any missing Ws

favorable to D which he did not call to the stand

o Reason: D has affirmatively gone forward







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D does NOT take the stand AND does NOT call Ws on his behalf

 NO adverse inference can be drawn and the jury cannot hold that

against the D

 All the burden is on the prosecution

 Prosecution can not comment to the jury that D did not take the

stand or call Ws

 Prosecution does NOT call Cop

 Adverse inference maybe drawn if a cop who is relevant to the

fact at issue is not called to the stand by the prosecution 

inference the cop’s testimony would go against the

prosecution’s case or contradict the testimony of another cop

 Prosecution does NOT call Victim or Family Members/Close friends

of V

 Adverse inference that the testimony of V or family

members/close friends of V would go against prosecution’s case

o Application of Missing W Inference in Civil Case

 D pleads the 5th on the stand

 Adverse inference against D for failure to take the stand

o Reason: In a civil action, either side may call the D to the

stand  D can be forced to take the stand but can’t be

forced to incriminate himself

o Note: Prosecution may not tell a criminal jury that D

plead the 5th in the civil case





Burden of Proof

Burden of Proof in A Civil Case

 Preponderance of the Evidence

o More likely than not

o If there is a tie then the party that does not have the burden of proof wins

o Usual burden of proof in civil cases – generally P bears the burden of proof to

establish every element of his cause of action.

o NYCPLR § 1412 - Contributory Negligence

 Old rule: P had the burden of proving that he was totally free from

contributory negligence

 New Rule: D has the burden of proving P’s contributory

negligence/culpable conduct by a preponderance of the evidence 

affirmative defense to be pleaded and proved by the party raising the

defense

 Clear and Convincing Evidence

o Highly probable

o Usual burden of proof in

 Paternity tests

 Custody cases (unfitness of parents)

 Involuntary commitment

 Adverse possession





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 Unjust conviction of a crime

 Traffic law violations

 Termination of life support

 Gifts

 By deceased to fiduciary (D), fiduciary must show capacity of the

donor and lack of fraud, deceit, mistake or undue influence by

clear and convincing evidence

 By P to non-fiduciary, P who is alleging fraud, undue influence

must prove such by preponderance of the evidence

 Defamation

 Actual malice must be proven by clear and convincing evidence by

public figure P

 Ordinary libel (private person) the burden is on the D to prove that

the statement was in fact true by clear and convincing evidence



Burden of Proof in Criminal Cases

 Generally

o Prosecution bears the burden of proving every element of the crime charged

beyond a reasonable doubt

 Defenses

o D has burden of raising the defense by some evidence  once raised by some

scintilla of evidence it becomes a element of the crime

o Prosecution bears the burden of disproving the defense beyond a reasonable

doubt

o Ex:

 Self-defense

 Alibi

 Accident

 Affirmative Defenses

o D bears the burden of proving affirmative defenses by a preponderance of the

evidence

o Prosecution does not bear the burden of proof here b/c an affirmative defense is

not an element of the crime charged

o Ex:

 extreme emotional distress in NY

 insanity/incompetence at the time of commission of the crime in NY

and Federal

 NY – preponderance of the evidence

 Federal – clear and convincing evidence

 Entrapment

 Incompetence to Stand Trial

o Competency to Stand Trial

 Sufficient competency to understand the charges against you AND

assist in your defense









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o Federal

 D bears the burden of proving his incompetence to stand trial by a

preponderance of the evidence

o NY

 Prosecution bears the burden of proving D’s competency to stand trial

by a preponderance of the evidence

 NY is kinder on Ds

 Confessions

o A formal acknowledgment of commission of crime

o Court will NOT accept involuntary confessions even if they may be true

 Types of involuntary confessions

 Rendered through actual force OR

 Threats of force OR

 Threats that would overcome the reasonable person’s will to resist

 Lack of Miranda warning

o Custodial interrogation by police requires a Miranda

warning

 Custody: your freedom of movement is

appreciably restrained

o NY

 Prosecution bears the TWO burdens of proving that a confession is

voluntary beyond a reasonable doubt (no threats, force, Miranda given)

 First: Proved to the judge outside the presence of the jury

o Note: If the judge decides not to allow it, it can still be

used to impeach D IF D takes the stand.

 Second: Proved to the jury

o NY Criminal Jury Instructions No. 11.01: Before jury

may give any weight to the confession they have to find

that the prosecution convinced them beyond a reasonable

doubt that the confession was voluntary

o This is unusual in that this is a decision of law by the jury

(rare)

 If the prosecution fails to meet either burden the confession is

suppressed (prosecution can not mention it)

o Federal

 Under the Const., all that is required is a hearing outside the presence of

the jury

 Prosecution bears ONE burden of proving that the confession is

voluntary by a preponderance of the evidence to the judge

o Fruits of the Forbidden Tree

 If prosecution obtains evidence unlawfully any leads gained as a result

of obtaining the involuntary confession will also be inadmissible

 Narrowing:

 Prosecution may use the fruits of a non-Miranda confession but

a confession illegally obtained for reasons other than lack of







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Miranda will be inadmissible along with any fruits gotten from

that confession.

 Prosecution can not have a D confess w/o Miranda THEN give him a

Miranda warning and have him re-confess so that the confession will

be admissible





Province of Court & Jury

Role of the Judge and Jury At Trial

 Judge/court decides issues of law

o Judge tells the jury what the elements of the COA are and to find whether each

of the elements of the COA has been proven

 By a preponderance of the evidence – civil case

 Beyond a reasonable doubt – criminal case

o Sometimes the court decides questions of fact, which must be found, before

judge can make a ruling on the law

 FRE 104(b) – Relevancy conditioned on fact

 When the relevancy of evidence depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or subject to, the

introduction of evidence sufficient to support a finding of the

fulfillment of the condition.

o Judge can ask Ws questions to clarify evidence NOT to cross-examine

 Federal – Judges can call their own Ws

 NY – they can but rarely do

 Court can NEVER appear to be an advocate for either side  reversible

error

o Judge can charge the jury in a criminal case that if they find that every

element of the crime charged was proved beyond a reasonable doubt that it is

their duty to find the D guilty

o Judge may marshal the evidence for the jury (sum up the evidence on both

sides) as long as even-handed/fair on both sides

 There is a possibility for a judge to be an advocate for one side or the other

 reversible error

 Jury decides issues of fact

o Determines whether the each of the elements of COA are established

o Credibility of Ws

 Civil Case – a self-contradicting W can be declared incredible as a

matter of law

 Criminal Case – Credibility of W is ONLY for the jury to decide

 Concession of fact: D concedes on issues in court and takes them

away from the jury to decide  jury is not bound to accept a

concession and can still consider credibility of W

 Generally if you are the D concede nothing, make the prosecution

prove every element of the crime charged beyond a reasonable

doubt







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 No matter how uncontradicted the evidence on an issue of fact, it

is still for the jury to decide  the court can’t take it away and

decide on it



Jury Trial

 6th amend: In all criminal prosecutions, the accused shall enjoy the right to a speedy

trial and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed

 D, in a criminal case, is NOT always entitled to a jury trial

o Petty Offenses

 Federal & NY – Petty offense, which are punishable by no more than 6

months are not entitled to a jury trial  look to the potential

punishment, not the actual punishment, for the crime charged

 Bench trials: When there is no jury on the case and the judge decides both questions

of law and questions of fact  judge charges himself on the law, comes to a conclusion,

and renders a verdict

o Most common in civil cases in breach of K cases and one party is seeking specific

performance

o D, in a criminal case, who is not entitled to a jury OR who is entitled to a jury

trial, but waives the jury trial



Judicial Interference w/a Jury Verdict

 Civil Case

o a judge may interfere w/the verdict of the jury and take issues away from the

jury and decide them himself

 Jury’s verdict is against the weight of the evidence

 There was evidence to support the verdict but in the judge’s

discretion not enough evidence to support the verdict

 Steps

o Judge sets the verdict aside

o New trial is ordered and another jury will decide on the

facts

 Can not decide the case in favor of the other party

(ie: dismiss the case) b/c it is not for the judge to

decide the facts

o Next judge may also set aside the verdict, and so on, and so

on

 By setting aside a jury verdict as against the weight of the evidence

the judge is conceding that there was evidence and the judge

must ultimately let a jury decide that there is fact in issue in the

case

 Trial court can set aside the verdict on the amount of damages if

it is against the weight of the evidence  money damages

deviate materially from what would be reasonable

compensation

 Legally insufficient evidence





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 NO evidence supporting the verdict. NO rational juror could

have made that verdict

 Steps

o Judges sets the verdict aside

o Case is dismissed/enter judgment for other party

o If damages are to be decided that is fact issue for the jury

to decide

 Criminal Case

o Judge can not set aside a jury verdict of NOT guilty

 Double jeopardy attaches, jury verdict of not guilty in a criminal case IS

binding and there is nothing the prosecution can do to change that  D

can not be re-arrested or re-tried again for the same crime

 This assumes that D has not done anything improper to get the jury to

decide in his favor  forfeit right to a jury trial and render first trial a

nullity

o Judge can order a NEW TRIAL after Conviction for

 Jury misconduct

 Ex: went to the scene of the crime

 Permitted error at trial

 Ex: let evidence in that should no have been let in

 Newly discovered evidence

 that could not have been found prior to jury verdict AND

 could change the result

 Note: D must stand trial again

 Although the jury verdict is set aside, the prosecution did carry its

burden of proof and got a jury verdict, and b/c D said something

was wrong w/the verdict is essentially asking for a proper trial 

double jeopardy is waived here

o Trial Order of Dismissal based on legal insufficiency of evidence

 Before jury verdict

 D can request that prosecution failed to establish guilt beyond a

reasonable doubt

 Judge would dismiss the case before it gets to the jury

 Cannot be appealed – double jeopardy attaches

 After jury verdict

 Judge can set aside jury verdict of guilty and render a verdict of

not guilty  D is free to go home

 Prosecutor can appeal and the court can reinstate the guilty

verdict









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Jury Conduct

 Impeaching jury verdicts

o General rule

 Verdict of the jury is final

 Juries are incompetent to testify to facts that would upset their own

verdicts

o Outside Influence Exception:

 If there were outside influences on the jury, the juror is competent to

testify to facts that would upset their own verdicts

 Outside influence

o Bribes

o NOT internal influences

 How the jurors influence each other

 Juror drunkenness during trial and deliberations

 Juror can report to the court

inappropriate behavior before the verdict

of the trial

 If someone, not a juror, saw the juror being

drunk/drinking during trial then they can

testify to overturn the verdict

o FRE 606(b)

 Upon an inquiry into the validity of a verdict or indictment, a juror may

not testify

 as to any matter or statement occurring during the course of the

jury’s deliberation OR

 to the effect of anything upon that or any other juror’s mind or

emotions as influencing the juror to assent or dissent from the

verdict or indictment OR

 concerning the juror’s mental process in connection therewith

 BUT a juror may testify about

 Whether extraneous prejudicial information was improperly

brought to the jury’s attention

 Whether any outside influence was improperly brought upon any

juror OR

 Whether there was a mistake in entering the verdict on the

verdict form

 Unauthorized visits by jurors to the crime scene

o Jurors can not make unauthorized visits to scenes relevant to the case

o Jurors become unconfronted Ws  violation of D’s 6th amend. right b/c the

jurors cannot be cross-examined

o If the judge finds out about a jury visit before a verdict is rendered, the court

can admonish and sterilize the jury (tell them to forget what the saw on the

visit)

o If the visit is found out after the verdict is rendered  reversible error, new

trial must be ordered







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o If the juror has prior knowledge of the scene he must tell the judge prior to

deliberations and he can remain on the jury IF he does not use his personal

knowledge AND doesn’t tell the other jurors  make a determination based

only on the evidence

 Up to the sound discretion of the court to allow the juror to remain on

the jury

 Juror Experiments

o Experiments are not allowed but common experience is allowed

 Experts as Jurors

o When a person has special knowledge, juror must be instructed not to use it,

and decide the case based solely on the evidence brought at trial



Sentencing Guidelines

 Generally it is improper for a judge, on a finding of his alone (w/o a finding by the

jury) to sentence the D to more than that of the jury verdict

 Sometimes a crime can be punished w/a more severe penalty if the D has been

convicted of a previous offense (ie: 3 strikes you’re out)

o The prior offenses are elements of the crime charged b/c you can’t get the

higher sentence unless the previous crimes occurred

 This would be a question of fact for the jury OR

 NY: Whether D indeed committed the prior crimes is an element

from the crime charged which prosecutor has to prove to the jury

beyond a reasonable doubt

 Judge may find that D committed the prior offenses b/c its on record OR

 D may officially stipulate to the previous crimes charged

 Federal

o A judge has to sentence D w/in a maximum and minimum sentence justified

by a jury verdict

o The guidelines are discretionary BUT if the judge’s sentence deviates largely

from the guidelines  abuse of discretion and sent back to come closer to the

federal guidelines





Real and Demonstrative Evidence

Generally

 Both real and demonstrative evidence are treated the same way

 Before presented to jury the judge must determine the evidence is:

o Authentic

 Evidence must be proven to be what it is claimed to be

o Relevant

o Balanced

 Legitimate probative value v. Unfairly prejudicial effect (inflame the

emotions of the jury)

 FRE 403 – Evidence is admissible unless the unfairly

prejudicial effect outweighs the legitimate probative value

o Easier to get the evidence in under this rule





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o Probative value = prejudicial effect  IN

 NY – Evidence is admissible if the legitimate probative value

outweighs unfairly prejudicial effect

o Probative value = prejudicial effect  NOT IN

 This is all discretionary to the trial judge.

 Probative value

o Ability of the evidence to allow the finder of fact to decide

a relevant and material issue

o Tend to prove or disprove a material/disputed issue

o Illustrate/elucidate or disprove other evidence offered

 Prejudicial effect

o Likelihood the fact finder would use the evidence for an

improper purpose

 Inflame the emotions of the jury

 Cumulative

 Propensity

 Standard for appellate review:

o Abuse of discretion

o Although rare, an appellate court could find an abuse of

discretion and order a new trial



Real Evidence

 Actual thing used in commission of the crime

 Ex:

o Gun

o Intersection where the accident occurred

o Complainant’s body

 People

o Ddoes not have to take the stand to introduce his physical body as

evidence/exhibit (by either side)

 V said rapist had a large scars, D used himself as evidence to show that he

did not have a scar on his body – People v. Shields

 V said rapist had no scars, D used himself as evidence to show the he had

many scars on his body – Coppersmith v. Gold

 When D was arrested it was noticed he had a large white supremacy

tattoo. Prosecution can make the D show the tattoo in court b/c 5th amend

(self-incrimination) only protects your mind not your physical body

 Note: D does not want to take the stand b/c he puts his credibility on issue

(ie: prior convictions could be mentioned by the prosecution)

 Scene of the Crime

o Jury may visit the scene of the crime BUT it must be under the control the

court

 Judge must order the jury to go as a group, under the care of marshals,

and are told to look around, but not discuss what they saw until

deliberation.

 Attorneys and parties may go to





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Demonstrative Evidence

 NOT the actual thing used in commission of the crime, but a demonstration of the

actual thing used

o Ex:

 Demonstration of the gun

 Map of intersection/pictures

 Just as good as real evidence as long as it is relevant AND the foundation is laid that

it:

o Is a fair and accurate representation of what it purports to show (real

evidence) AND

o Assists the jury in understanding what happened

 Photographs/Videos

o Instead of taking the jury to the scene, photographs are used to show the jury what

the accident scene looked like

 Laying the Foundation to admit the photograph/video into evidence

 Photographer has to establish that the picture is a fair and

accurate representation of the scene taken at a relevant time

 Photographer is dead or unavailable, someone else who either

witnessed the event OR saw the photograph being taken can

testify

 Surveillance tapes

o The person who set up the tape can testify that

 Proper procedure was followed AND (tape properly

set up)

 That the procedure yields accurate results (tested it

out and everything worked properly at the relevant

time and it hadn’t been tampered w/ and has left the

possession of the person testifying)

o Videotape experts can testify to the character of motion

sensitive cameras

o Prior Identification of D

 Every jurisdiction will accept the prior identification of the accused as

some evidence of identification of D in trial

 Admissible prior identification

 Videotape lineup

o No hint of prior criminality b/c just videotaping people

on the street and the fact that D is in it does not hint to his

having prior criminality

 Corporeal lineup

o No hint of prior criminality b/c normally everyone in the

lineup is innocent expect D

 Inadmissible prior identification

 If the prior lineup is suggestive to V it can not be used to support

identification of D in court









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 If the prior lineup is SO suggestive V then V can not even ID the

D in court

o Exception: If there is an independent source other than

the lineup, then the so suggestive lineup does not provide

for incorrect in court identification (ie: D held V hostage

for a year)

 Pictorial lineup – looking through mugshots used to identify D

o NY – improper to use pictorial (mugshot) lineups as prior

identification in court b/c there is a hint of prior

criminality (all the pictures are of people who had been

previously arrested for a crime and when the jury hears this

they may be influenced that D has a prior record)

o Federal – Admissible if non-suggestive, like a book

 Composite Sketches – not allowed in NY

o Note: Ps before trial will often make a demand on D to produce any films they

have of P prior to trial

 D must hand over, prior to depositions, any films they have of P so P

knows what he is facing before deposition

 NY: P is entitled to inspect any films D has of him prior to being deposed

o Photographs of the Victim in a Civil Case

 Subject to balancing test

o NY test for admissibility of photographs of the victim’s injuries, crime scene,

or autopsy in a criminal case:  not balancing test being used here

 Pictures must be relevant to a material issue in the case AND

 Ex: the nature of a crime or how it was committed

 NOT solely to inflame the emotion of the jury

 Cumulative - submission of so many similar photos of the crime

scene/autopsy that it may raise a question as to whether they are

being offered to prove an issue or solely to arouse the emotions of

the jury

 NY in criminal cases is NOT kind to Ds

 As long as the pictures have some probative value (not outweighs

prejudicial effect) and are relevant  IN

 People

o Demonstration of the extent of physical/mental damages

o Court has allowed this to be entered at the discretion of the trial judge but there is

a significant possibility that the judge would not let the jury see this evidence b/c

it would inflame the emotions of the jury  fails balancing test

 Doctor Testimony

o Doctor may be called to testify as to the severity of injuries suffered by P

o NY test for admissibility of doctor’s testimony as to the victim’s injuries in a

criminal case:  not balancing test being used here

 Testimony must be relevant to a material issue in the case AND

 Legitimate purpose of proving the elements of the crime charged

 Ex: the nature of a crime or how it was committed







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 NOT solely to inflame the emotion of the jury



Stipulations

 D may want to stipulate to an element of the crime charged to avoid prejudicial

evidence (ie: crime picture, demonstrations of injury, doctor’s testimony)

 General Rule:

o In NY and Federal an offer to stipulate is an offer to enter into a voluntary K

 NY: Prosecution can not be compelled to accept a stipulation to an

element of the crime charged  if the prosecution is not willing to

accept stipulation then D can not stipulate

 NY does not balance in criminal cases

 Federal: Acceptance of stipulation should still be balanced, to do

otherwise would be a violation of Rule 403 (legitimate probative value v.

prejudicial effect of the evidence to the element of the crime)

 NY: Stipulations that MUST be accepted

o If D stipulates to the prior offenses, prosecutor must accept the stipulation,

and jury will never be told about the prior crimes

 Federal: Stipulations that MUST be accepted

o If D stipulates to the prior offenses, prosecutor must accept the stipulation,

AND jury WILL be told about the prior convictions BUT not the nature of the

prior offenses





Circumstantial Evidence

Circumstantial Evidence

 Evidence of collateral facts for which the fact in issue maybe inferred

o Surrounding facts point to some direction which can be used to draw an inference

 Strength of circumstantial evidence depends on the facts of each case

 Circumstantial evidence alone can be used to prove every element of the crime charged

and guilt of the D if it convinces the jury beyond a reasonable doubt

o NY - Moral Certainty Charge

 In criminal cases where the evidence is comprised of only circumstantial

evidence the jury MUST be given the Moral Certainty Charge

 New PJI Charge: The inferences drawn from the facts must

exclude beyond a reasonable doubt any reasonable hypothesis

of innocence

 Can convict someone of murder even if you never find the body (death

is circumstantial) and all other evidence is circumstantial  requires

moral certainty charge in NY

 Normally there is a combination of both circumstantial and direct evidence

o Witnesses see the A hit B on the head with an ax. (direct evidence) But A says his

intent was to kill a fly not the man  prove intent w/circumstantial evidence

o NO moral certainty charge is required where there is both direct and

circumstantial evidence









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Character as Circumstantial Evidence

Character as Circumstantial Evidence

 D may choose to put his character in issue as some circumstantial evidence that he did

not commit the crime charged  chain of inferences w/respect to character trait

o D says I am an honest man, character Ws say they only hear people say that D is

an honest man  jury can infer that an honest man would not commit this crime

(ie: bribery)

o D says I am a peaceful man, character Ws say they only hear people say that D is

peaceful man  jury can infer that peaceful man would not commit this crime

(ie: violent crime)

 Criminal D may prove character by having character Ws testify as to D’s reputation

 D cannot put his character on issue in a civil case  can’t offer character evidence

o Courts consider character evidence to be worthless so they don’t want to put it in

a civil case, but the court throws a life preserver to D in a criminal case and

allows him to bring it in issue



Character v. Reputation

 Character

o What kind of person you are  personal attributes traits

 Ex: honesty or peaceful character trait

o NY – D can only prove his character through reputation, cannot bring the

character W’s opinion of the D into evidence

o FRE 405(a) – D can prove his character through reputation or a character W’s

opinion of the D

 Reputation

o What people in your community say about you

 Do you know others who know the D?

 What do people say about the D?

 Have you heard anything bad said about D’s [character trait]?

o Circumstantial evidence from which character can be inferred



Character Evidence Creating Reasonable Doubt

 NY

o Jury is charged with Standing Alone Character Evidence Instruction

 Good character evidence alone, if believed, when considered w/all other

evidence in a case may be sufficient to create a reasonable doubt where

no reasonable doubt would exist.

 Federal

o NOT required that jury be charged with Standing Alone Character Evidence

Instruction

 Sufficient for trial judge to instruct the jury to consider character

evidence along w/all the other evidence in determining whether the

prosecution has proven guilt beyond a reasonable doubt

 Character evidence is a factor but it is not alone going to get D off









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Four Choices a Criminal D Always Has

1) Criminal D, does not take stand, does not call character Ws

a. D’s credibility is NEVER put in issue

i. Prosecution can not put D’s character in issue

ii. Prosecution can not mention D’s prior bad acts OR convictions

b. Prosecution cannot put D’s character in issue unless D first introduced his

character into evidence (put his character in issue)

1. Can not call D to the stand and can make no mention of the fact

of that D did not take the stand

2. Can not call character Ws on direct to show that D has certain

character traits

2) Criminal D takes the stand but does NOT call character Ws (5th amend. right to

protect himself from self-incrimination)

a. D puts his credibility in issue (character traits of truthfulness and veracity) BUT

by merely taking the stand no other character traits relevant to the crime are

automatically put into issue (ie: violent)

i. Prosecutor can call Ws to show that D had a bad reputation for truth

and veracity

ii. Prosecutor can ask (NY – prove) D about prior convicted offenses and

ask about his prior bad acts subject to Sandoval

3) D does not take the stand, calls character Ws

a. Only D can call character Ws on direct  only the character traits D put in

issue may be attacked by prosecution’s bad character Ws

b. Prosecutor can rebut good character evidence by calling bad character Ws for

the character trait in issue

i. Prosecutor can ask (NY – prove) about D’s prior convictions and ask

about D’s prior bad acts that would negate the character trait in issue

(not just any convictions)

1. If D had opened the door to more than one trait  prosecutor

can use different prior convictions for different character traits

4) D takes the stand, calls character Ws

a. Prosecutor can call Ws to show that D has a bad reputation for truth and

veracity

b. Prosecutor can ask (NY – prove) D about his prior convictions and ask about

his prior bad acts subject to Sandoval

c. Prosecutor can ask good character Ws (NY – prove) about D’s prior

convictions that would negate the character trait in issue

d. Prosecutor can call bad character Ws and ask (NY – prove) about D’s prior

convictions that would negate the character trait in issue



How the D Puts his Character in Issue – Door Openers

 D takes the stand as W on his own behalf

o D has become a W

o Every W puts his credibility (truth & veracity) in issue by taking the stand 

opens the door for the prosecutor to refute the credibility of D/W









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 By calling character Ws

 Only opens the door for evidence relating to

o D’s credibility (character traits of truthfulness and veracity) OR

o Other character traits the D puts in issue

 By merely taking the stand, D has not put every character trait in

issue (ie: peacefulness, violence, etc.) only credibility is automatically

put in issue by taking the stand

 When D calls character Ws  opens door to prosecution character

traits the D put in issue



Weapons for Prosecution if D Puts his Character in Issue

 Prosecution can call bad character Ws to negate the character trait put in issue

o Prosecutor can ask (NY – prove) about D’s prior convictions and prior bad

acts that would negate the character trait in issue

 Prosecution can cross examine D’s character Ws

o Impeach character W about knowledge of D

 Prosecutor can ask in good faith whether the character W heard of D’s

prior convictions, prior arrests, indictments, charges or bad acts 

shows if character W is an expert on D’s reputation (if they haven’t heard

it then they may not know much about D’s reputation)

 Note: Jury is instructed that the character Ws testimony about D’s prior

convictions, arrests, indictments or bad acts are only to be used to show

credibility of character W NOT as evidence that D committed the

crime charged  prosecutor can not prove that D is of a criminal type,

propensity/tendency to commit crime

o Impeach character W about his own character

 Prosecutor can attack the credibility of ANY W that takes the stand

 Prosecutor can show a bad reputation for truth and veracity

 Call bad character Ws

 NY -Prosecutor can ask character W, in good faith, about his prior

convictions

 Goes to credibility of W b/c it shows that in the past he put his

own interests above society’s interests  jury could infer that he

maybe favoring himself now to avoid the crime

 NY ONLY- Prosecutor may ask AND prove, if denied, any prior

convictions of character W

 Can NOT ask about character W’s prior arrests, indictments

 NY - Prosecutor can ask character W, in good faith, about any prior

vicious, criminal or immoral bad act

 Prosecutor is bound by character W’s answer and cannot prove

the prior bad act if character W denies it

 Ex: lying on an application is an immoral bad act

 Prosecution is saying don’t believe W b/c he put his own interests

above those of society and wouldn’t he do the same now by lying

on the witness stand





22

 FRE 609 – Prosecutor can

 Bring into evidence prior felony convictions OR crimes of

dishonesty (fraud perjury)

 Evidence of conviction is not admissible if 10 years has passed

since the conviction unless probative value outweighs

prejudicial effect AND notice is given to adverse party

 FRE 608 – Prosecutor may in the discretion of the court, if probative of

truthfulness or untruthfulness

 Ask about the prior bad act, and is bound by the answer of the

witness, and is not allowed to prove the prior bad act

 Prosecution can cross examine D if he takes the stand (NY -subject to Sandoval

Motion)

o Sandoval Motion

 Motion by the D before trial to suppress prior bad acts/convictions of a

D when he takes the stand  applies ONLY when D takes the stand

 Ordinary W is not entitled to a Sandoval motion before trial to

limit his questioning

 Any W is subject to a Sandoval-like motion during trial but the

unfairly prejudicial effect has to be very heavy to limit questioning

during cross (very unlikely to win)

 Prosecutor has to give a list to the judge of all the prior convictions and

bad acts he would like to use if D takes the stand  judge tells him

which ones are admissible

 Judge balances the legitimate probative value of the prior bad

acts/convictions on the D credibility against the unfairly prejudicial

effect against the D in the eyes of the jury  if both equal evidence

gets IN

 Rules to be used in balancing

o Prior crime bearing heavily on D’s credibility  IN

o Prior crime not bearing heavily on D’s credibility 

NOT IN

 Legitimate probative value of credibility is small

and unfairly prejudicial effect of propensity

 Ie: simple assault (impulsive violent acts), traffic

offenses, narcotics convictions

o Prior crime similar to the crime charged  maybe

 Propensity

o Prior crime which shows that D put his interest above

society and D would probably to protect himself  IN

 Crimes of calculated violence

 D is entitled to an advance ruling

 Sandoval compromise – Prosecution can ask the D if he was convicted

of a crime BUT not name the crime  jury does not know if the crime

is similar to crime charged (reduces propensity)

 Standard for Appellate Review: Abuse of discretion

o Attack the credibility of D (any W who takes stand)





23

 NY - Prosecutor can ask D about prior convictions subject to Sandoval

 Goes to credibility of D b/c it shows that in the past he put his

own interests above society’s interests  jury could infer that he

maybe favoring himself now to avoid the crime

 Can NOT ask about prior arrests, indictments

 NY- Prosecutor may ask AND prove, if denied, prior

convictions of D

 NY - Prosecutor can ask D about prior vicious, criminal or immoral

bad act subject to Sandoval

 Prosecutor is bound by D’s answer and cannot prove the prior

bad act if D denies it

 NY - Prosecutor can not ask D about bad acts w/pending

indictment/prosecution

 Ex: lying on an application is an immoral bad act

 Prosecution is saying don’t believe D b/c he put his own interests

above those of society and wouldn’t he do the same now by lying

on the witness stand

 FRE 609 – Prosecutor can bring into evidence

 D’s prior felony convictions IF probative value outweighs

prejudicial effect OR prior convictions of crimes of dishonesty

(fraud, perjury)

 Evidence of conviction is not admissible if 10 years has passed

since the conviction unless probative value outweighs

prejudicial effect AND notice is given to adverse party

 FRE 608 – Prosecutor may, in the discretion of the court, if probative of

truthfulness or untruthfulness

 Ask about the prior bad act, and is bound by the answer of the

witness, and is not allowed to prove the prior bad act

o Note: Jury is instructed that the D’s testimony about his prior convictions or bad

acts are only to be used to show his credibility as a W NOT as evidence that D

committed the crime charged  prosecutor can not prove that D is of a

criminal type, propensity/tendency to commit crime



Juvenile Convictions

 NY – Can not ask and prove juvenile convictions, can only ask about prior bad acts

 Federal – Sometimes a W can be impeached on the facts of a juvenile conviction









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Character of Homicide or Assault Victim

Character of Victim

 D, in a homicide or assault case, will want to bring the character of the victim in issue

when the D is trying to show he acted in self-defense against the V.

 To bring the character of the dead victim as evidence of self defense in an assault or

homicide case

o D must prove that the

 V had a reputation for violence AND

 D was aware of this reputation at the time of the altercation.

o NY  V’s reputation for violence NOT circumstantial evidence that V was

aggressor BUT is evidence of D’s state of mind at the time of the crime

 Prior threats of V to D are admissible  goes to show D’s state of mind

 Even if the threat was not communicated to D it is circumstantial

evidence that the threat was carried out even if not communicated

 Specific acts of violence by dead V are admissible only IF

communicated to D prior to altercation  shows D’s state of mind

o Federal  V’s reputation for violence IS circumstantial evidence that V was

aggressor

 Specific acts of violence by dead V are admissible only IF

communicated to D prior to altercation

 Once a criminal D seeks to prove the violent reputation of dead V it opens the door to

the prosecution to rehabilitate the dead V

o NY

 Prosecutor can only show good reputation of dead V for peacefulness

AFTER his bad reputation for violence is brought forward by D

o FRE 404(b)(2)

 If D offers evidence of dead V’s reputation for violence, prosecutor may

show V’s good reputation for peacefulness

 ANY evidence that the dead V is aggressor allows the prosecutor to

show good reputation of peacefulness of dead V AND D’s bad

reputation for violence

 NY does not allow this unless the D puts his reputation at issue

first



Character of Sex Crime Victim

Character of Sex Crime Victim

 Sexual conduct of V can not be used to impeach the credibility of V

o May be used to show specific motive to lie against specific D

o May be used to show specific bias of V against specific D

o May be used to show D’s state of mind as to consent

 All go towards D’s 6th amend right to confront W’s against him



NYCPL § 60.42 – Rules of evidence; admissibility of evidence of victim’s sexual conduct in

sex offense cases

 Evidence of victim’s sexual conduct is not admissible in prosecution for a sex offense

UNLESS such evidence:





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o tends to prove or proves specific instances of the victim’s prior sexual conduct

w/D

 Circumstantial evidence that V consented on this occasion

 Can NOT bring in V’s sexual history w/prior men other than D

o tends to prove or proves that the victim has been convicted prostitution w/in 3

years prior to sex offense

 Can only be used to show V is likely to lie, NOT consent

o Exceptions to V’s sexual history w/prior men other than D being inadmissible:

 rebuts prosecution’s evidence of victim’s failure to engage in sex,

deviate sex, or sexual contact in a particular period of time

 rebuts prosecution’s evidence which tends to prove that D caused the

pregnancy, disease, or source of semen in victim OR

o Determined by the court after an offer of proof outside the hearing of the jury

 Show V’s bias against D

 Show V’s motive to lie against D (Husband caught her cheating so she

claimed she was raped)

 Show D’s state of mind (V telling D that she liked being the victim in

S&M sex and had been doing it w/her prior 2 boyfriends  Not showing

V’s propensity to lie but rather to show D’s intent)



NYCPL § 60.43 - Rules of evidence; admissibility of evidence of victim’s sexual conduct in

non-sex offense cases

 Evidence of victim’s sexual conduct in non-sex offense cases is NOT admissible

UNLESS

o Determined by court to be relevant and admissible in the interests of justice

 D in a murder case can not bring evidence of V’s sexual history to impeach the

credibility of V unless admissible in the interest of justice



Character in Civil Cases

Character Evidence in Civil Cases

 In a civil case, you can not use character evidence to make your case or defense unless

character is inherently at issue

 FRE 404 – Unless character is a material issue, character evidence is generally

inadmissible

 Character might be material issue/inherently at issue

o Negligent entrustment – have to show that the person the dangerous instrument

was entrusted to had a reputation for carelessness and the person who

entrusted it to him knew of his bad reputation for carelessness

o Defamation – where P is claiming D ruined his reputation then evidence of P’s

reputation can be brought in by D to show that it was bad to begin with

o Chastity under a statute making chastity an element of the crime









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Uncharged Crimes to Demonstrate Propensity

Uncharged Crimes – Criminal Cases (similar result in civil cases)

 Prosecution can not use D’s uncharged crimes as some evidence that D is a criminal

type  propensity to commit crimes has the possibility of being very prejudicial

o Exceptions

 FRE 413 – criminal sexual offense cases

 FRE 414 – criminal child abuse cases

 FRE 415 – civil sexual offense or child abuse cases

 STILL FRE 403 balancing (inadmissible if unfairly prejudicial effect

substantially outweighs legitimate probative value)

 Federal & NY - Prosecution can use D’s uncharged crimes as circumstantial evidence

if it tends to prove that D committed the crime charged UNLESS unfairly prejudicial

effect substantially outweighs (propensity) the legitimate probative value (prejudicial

effect = probative value  IN)

o Rare for courts to find that the unfairly prejudicial effect outweighs the legitimate

probative value  if there is a legitimate probative value evidence of

uncharged crime will be allowed

 MIMIC Rule is a guide (not an exhaustive) to courts in determining whether the

uncharged crime actually tends to prove that D committee the charged crime 

balancing test must still be applied

o Motive

 Prior uncharged crime shows that D had a motive to commit the current

crime  admissible

 D robs a bank and shoots a cop while escaping, robbery is admissible to

show that D had motive to shoot the cop

o Intent

 Prior uncharged crimes may be shown if it is the only evidence tending to

establish D’s criminal intent of the crime charged

 If intent is obvious from the crime charged then bringing in the prior

uncharged crime as evidence of intent is unnecessary and cumulative

o Mistake or Accident (absence of)

 Prior uncharged crimes can tend to show that current crime was not an

accident or mistake

 Same accident/mistake occurring more than once

o Identity

 Prior uncharged crime may shown if they tend to identify the D as the

perpetrator of the charged crime

 2 robbers w/masks steal a bank key from the janitor, they rob the

bank w/o masks  prosecutor in charging for bank robbery may

show that they robbed the janitor, person who had the key robbed

it from janitor

 Unique modus operandi

o NY – For prior uncharged crime to come in as

circumstantial evidence of modus operandi tending to

identify D as perpetrator of current crime the prosecutor







27

must prove to judge by clear and convincing evidence

that

 Crimes are committed in a unique way AND

 Does not have to be committed in exactly

the same way just substantially similar

 D committed the prior uncharged crime

o FRE 404(b) – Relevance conditioned on fact: Trial judge

determines if a reasonable juror could find the fact relevant

then prosecutor must only prove to the jury by a

preponderance of the evidence

 Crimes are committed in a unique way AND

 Does not have to be committed in exactly

the same way just substantially similar

 D committed the prior uncharged crime

o Common plan or scheme

 Prior uncharged crime and current crime are connected to achieve a

pre-concerted common goal

 Plan to get inheritance, so kill everyone in line for the money

 2 robbers steal a bank key from the janitor, they rob the bank 

prosecutor in charging for bank robbery may show that they robbed the

janitor b/c it is a common plan/scheme, needed to steal the key to rob the

bank

 Exception not fitting under MIMIC rule

o Consciousness of guilt tends to show that D committed the crime charged

 D is robbing a bank and a cop says “Stop Thief” and the bank robber kills

him. At trial for bank robbery the prosecution can show that the cop was

shot when the D ran out of the bank showing his consciousness of guilt

 FRE 404(b) – federal MIMIC rule in both criminal and civil cases

o Evidence of other crimes, wrongs or acts can be admitted for proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident

o Limited only by FRE 402 (relevance) and FRE 403 (balancing)

 FRE 104(b) – Relevance Conditioned on Fact: When the relevancy of

evidence depends upon fulfillment of a condition of fact, the court shall

admit it upon, or subject to, the introduction of evidence sufficient to

support a finding of the fulfillment of the condition Judge determines if

a rational juror could find that fact, then sent to jury to make the finding

of if the evidence is relevant

 D opens the door to prior uncharged crimes

o D makes a false charge against prosecution  D opened the door and

prosecution can rebut

o NY – Statement w/legitimate probative value but introduces evidence of

other prior uncharged crimes

 Prosecutor has to give notice to D and the court

 Have a hearing on motion to suppress the statement outside the presence

of the jury





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 Prosecutor must disclose exact statements that will be used

 Judge parses the statement to make sure no unnecessary material gets

in

o Affirmative defense of entrapment

 D says he didn’t commit the crime, but was encouraged to do so by the

cops and he is not predisposed to committing crimes. Prosecutor can show

that D committed that crime on prior occasions to rebut the affirmative

defense of entrapment.

o State of mind

 Prisoner claims another prisoner raped him and D claims consent.

Prosecutor can show that D raped other men earlier and V knew this and

explained Ds state of mind, which is why he did not resist the attack.

 Acquitted Crimes

o NY

 Acquittal closes the door on the issue and establishes that D did not

commit the crime. Prosecutor can not use acquitted crimes as

circumstantial evidence to prove currently charged crime

o Federal

 Prosecutor can use other acquitted crime as circumstantial evidence to

prove currently charged crime

 No double jeopardy b/c not trying D for the acquitted crime

 Being acquitted for a crime does not establish D’s innocence merely

shows that prosecutor could no prove D’s guilt beyond a reasonable doubt.

 Burden of proof for admitting the circumstantial evidence is whether a

jury could reasonably conclude that the same person committed both

crimes and the jury need only find that the D committed the prior crime

by a preponderance of the evidence



Post Accident Repairs

Post Accident Repairs as Circumstantial Evidence of Negligence/Defect

 Negligence

o NY & Federal: Subsequent repairs/remedial damage are inadmissible as

evidence of negligently maintaining an instrumentality

 FRE 407 Exception:

 Showing ownership or control – D say that he did not maintain

the product, then P can show that D ordered the maintenance

change/repair

 Feasibility of alternatives

o Rationale: Manufacturers would not make repairs if it could be used against

them

 Manufacturing Defect

o FRE 407 - Subsequent Remedial Measures: Evidence of subsequent remedial

measures are not admissible to prove negligence, culpable conduct,

manufacturing defect, design defect, or need for a warning or instruction

 Exception:







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 Showing ownership or control – D say that he did not

manufacture the product, then P can show that D ordered the

manufacturing change

 Feasibility of alternatives

o NY – In a manufacturing defect case subsequent design changes are

admissible to show that the product was defective as manufactured (negligence

in manufacturing)

 Design Defect

o FRE 407 – Subsequent Remedial Measures: Evidence of subsequent remedial

measures are not admissible to prove negligence, culpable conduct,

manufacturing defect, design defect, or need for a warning or instruction

 Exception: Showing ownership or control – D say that he did

not manufacture the product, then P can show that D ordered the

design change

 Feasibility of alternatives

o NY – In design defect cases subsequent design changes are not admissible to

show defect in design (negligence in design)

 NY Exception

 In a criminal case the D may use subsequent design changes as

proof of a defective original design.

 D is charged w/reckless driving and D argues that he was not

driving recklessly but rather there was a defect in the design of the

car. As evidence of defect in design of car, D may show that car

manufacturer soon after the accident changed the design of the car.

o Rationale: Technology is always changing and a design change does not

necessarily mean the original design was defective.



Habit

Habit as Circumstantial Evidence of how Person Probably Acted in a Particular Situation

 Civil Case

o Habit is admissible as circumstantial evidence of how the D acted in this

particular occasion IF (generally accident cases)

 D committed the act a sufficient number of times to create a habit AND

 Circumstances must be totally under control of D

o Court has allowed evidence of a routine practice of a business

 Mailing a letter from a business

 How a judge runs his courthouse  evidence of how something is

carried out on a particular occasion

o FRE 406 – Evidence of a person’s habit is relevant to prove that his conduct on

a particular occasion was in conformity w/his habit.

 Ex: Habitual drinking is circumstantial evidence that P was drunk on this

occasion

 Criminal Case

o Habit is not considered as evidence of D committing the crime  habitual

criminality (propensity)







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o Distinction: D, in a criminal case for drunk driving. Prosecutor is allowed to

show that D has a habit for drinking on weekends as circumstantial evidence

that D was drunk on weekend of accident. Court said that this was not

propensity to commit a crime (driving drunk), but propensity to be in a certain

state (drunk). Habit can be used as long as not proving a habit of committing

crime. Can show a habit of being in a certain place where crime occurred.





Examining Witnesses

Direct Examination

 Leading questions are not permissible

o Any question that suggests the answer in advance is not permissible under direct

examination b/c it is considered testimony of L

 Supplies all the facts to that the W is supposed to know and asks for a yes

or no answer

 Refreshing W’s Recollection

o If W forgets part of his testimony, he can have his memory refreshed and it will

not affect his testimony

o Anything can refresh a W’s memory (ie: document, object)

 Show the W a writing of he made/someone else made regarding the event

at the time of the event  no hearsay b/c not offering writing into

evidence for the truth of its content, writing is only refreshing the W’s

recollection and now W can give an in court statement of what

happened (not hearsay)

 The refreshed recollection is being offered into evidence not

what was used to refresh W’s recollection

 Exception in Criminal Case

 Process of being hypnotized can not refresh the recollection of the

prosecution’s W

 Past Recollection Recorded

o If you show the W a writing, he or someone else made, and ask does that refresh

your recollection and they say NO then you can’t use it to refresh W’s

recollection BUT writing may come in for the truth of its content under

hearsay exception of Past Recollection Recorded

o Requirements

 W observed the event recorded

 W has no current recollection of the event

 W’s recollection was fairly fresh when recorded (up to 30 days)

 W remembers the recording being made and remembers that it was

made accurately

 3rd party can make the recording – W/person who saw the event

does not have to be the one that made the recording, just that they

saw the recording being made OR know that it was being

accurately recorded

o Ex: W reads a license plate # to a cop and he said he wrote

it down but never read it back to W and cop did not





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remember making the writing. No showing that it was

accurately recorded  not admissible as past recollection

recorded

 Newspapers can be past recollection recorded if W says that it

was an accurate representation of the event he saw

 rationale: when all reqs. have been met there is sufficient assurance of the

accuracy of the record and its trustworthiness

 FRE 803(5) Hearsay Exception, Recorded Recollection – A memo/record

concerning a matter about which W once had knowledge but now has insufficient

recollection to enable W to testify fully and accurately, shown to have been:

o Made or adopted by W when matter was fresh in W’s memory AND

o to reflect that knowledge correctly

o IF admitted memo/record may be read into evidence BUT may not be

received as an exhibit UNLESS offered by an adverse party



Cross Examination

 Leading questions are permissible

o L would want to ask all leading questions in order to control testimony of W

 attack the weight of testimony/credibility of other side’s W



Impeaching Witnesses

Impeaching W by Showing Bias

 Bias – Relationship between a party and W which might lead the W to slant his

testimony against OR in favor of a party

o Membership in a group maybe sufficient to show bias

 Membership in a church and good friends  yes, favorable bias

 Membership in a gang  yes, favorable bias

 Membership in a book club where no one knows each other  not

sufficient to show bias

 No specific federal rule on impeaching a W for bias

o But there are other sections in federal rules that cover bias

o FRE 402 – All relevant evidence is admissible

o FRE 401 – Relevant Evidence: A fact of evidence more or less probable is

relevant evidence  bias is always relevant (can always show that there is a

reason for a W to lie b/c lying makes W’s testimony less probable)



Impeaching Your OWN W

 NY

o Party can not attack the credibility of Ws he has called

 Party has lost the ability to impeach W’s credibility by usual methods of

impeaching an adverse W (convictions of other crimes, bias, prior bad

acts, bad reputation for truth and veracity . . . )

o Voucher Rule: If you call W then you have vouched for his credibility.

 It would be inconsistent to impeach the W by showing jury that they

should not believe him.

 Exception: If the W gives a prior inconsistent statement. See below





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o Note: A party is not bound by the version of the story/testimony of W he has

called. Party may call other Ws to give different versions of the same facts.

 Jury has heard the different Ws version though, and will give credit to that



 FRE 607

o The credibility of a W can be attacked by any party, including the party that

called the W



Impeaching Ws by Prior Inconsistent Statements

 Prior Inconsistent Statement – A statement made prior to W’s testimony in court,

which is different from the testimony W is giving in court.

o An omission in the prior statement could lead it to being inconsistent IF it

would naturally have been included.

 NY

o Prior inconsistent statements, written and signed or made under oath, are only

used for impeaching the credibility of Ws, does NOT evidence for the truth of

its content

o Civil Case

 NY CPLR Rule 4514 - Impeachment of W by prior inconsistent

statement

 Any party may introduce proof that any W has made a prior

statement inconsistent with his testimony IF

o Statement was made in writing AND signed OR

o Made under oath

 oral statements to the police are not sufficient

 Note: CPLR governs both civil and criminal, unless there is a criminal

statute on point.



o Criminal Case

 NYCPL § 60.35 Impeachment of Own Witness by Proof of Prior

Inconsistent Statements  note: Generally, for the prosecution b/c of

Chambers v. MI

 A party can impeach the credibility of an adverse W for his

prior inconsistent statements

o made in writing AND signed OR

o Made under oath

 A party can impeach his own W w/his prior inconsistent statement

IF

o Statement is in writing and signed by W or made under

oath AND

o W’s testimony on the stand tends to disprove the

position of the party calling W

 Inconsistent and Disprove: Statement must differ

and also hurt the party calling the W

 Ex: D stuck gun in my back (prior statement made

in grand jury), but at court W says D stuck





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something hard in my back (inconsistent) BUT

testimony does not disprove the prosecution’s

position (it could have been a gun, a gun is a hard

object, testimony is just not as helpful)

o Note: NYCPLR 60.35(3) - Prior inconsistent statement

that does not disprove the position of the party calling the

W may also not be used to refresh the recollection of W

in a manner that discloses its contents to the jury.

 W can read the prior document to himself b/c the

jury won’t learn of its content.

 NOTE: D has the right to impeach the credibility of any W

against him (even those he called) by prior inconsistent statements,

even oral statements  When a W makes a prior statement that

goes towards D’s innocence, voucher rule cannot get in the way of

D confronting Ws “against” him



 Federal - Civil Case & Criminal Case

o Prior inconsistent statement, written and signed or made under oath, are used

for impeaching the credibility of Ws AND are evidence for the truth of its

content  not hearsay under FRE 801(d)(2)(A)

 FRE 607

 The credibility of a W can be attacked by any party, including

the party that called the W

o Oral prior inconsistent statements can be used to

impeach the credibility of a W but they are not evidence

for the truth of its content

 FRE 613(a) – If other party requests the prior inconsistent statement it

must be disclosed to them.



Hostile Ws

 A W called by the party but the party is having difficulty getting answers out of W

o In NY, party can’t impeach the W b/c party called W, so instead can have him

declared hostile  helps to control W testimony, lead W

 If the W is declared hostile, the party can ask leading questions on direct and cross

examine W

 NO additional right to impeach his credibility



Prior Consistent Statements

Prior Consistent Statements

 NY

o Generally, prior consistent statements by W can not be used to bolster W’s

credibility.

o Exceptions:

 Prior consistent statements are admissible IF they were made BEFORE

the motive to fabricate arose  tends to show that W is not lying

 Prompt Outcry/Complaint





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 Are admissible and particularly important in rape crimes, they are

some evidence that the allegation is true

 Offered only to bolster credibility of W, not for the truth of its

content

 Prosecution can ask a V, on direct, when she first complained of

the offense

 Lack of prompt outcry tends to show that perhaps W is not

testifying truthfully



 FRE 801(d)(1)(B)

o A prior consistent statement by W is NOT hearsay IF

 Offered to rebut charge against W of recent fabrication or improper

influence or motive  can use prior consistent statements to bolsters W’s

credibility





Hearsay

General Rule: Hearsay is inadmissible in court unless it falls under one of the hearsay

exceptions.

 Requirements for Hearsay

o Statement made OUT of court

o Offered IN court

o For the truth of its content

 Hearsay Exceptions

o Pedigree

o Business Records

o Declarations Against Interest

o Dying Declarations

o Present Sense Impression

o Excited Utterance

o State of Mind

o Declaration of Intent

o Prompt Complaint

o Former Testimony

o Admissions

o Official Documents

 Declarant – person who makes the out of court statement

 Witness – heard what the declarant said



Where Hearsay is Admissible

 Hearsay is admissible in:

o Administrative hearing

o Arbitration proceeding

o Small claims court

o Motions to suppress evidence

o Motions on summary judgment





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 These cases can be decided completely on hearsay (ie: affidavits)

o Federal grand jury

 NY – Hearsay rule applies in grand juries



Testimonial Hearsay – Crawford

 Confrontation Clause was developed to prevent the use of testimonial hearsay against the

D  let the declarant come into court so D can cross-examine him

 6th amend. Confrontation Clause bars the use of testimonial evidence made by a W

who does not appear at a criminal trial unless

o W is unavailable to testify at trial AND

o W was subject to cross-examination at the time the statement was made

 BUT where the statement is not testimonial the Confrontation Clause is not implicated

o Testimonial – Statement sought out or undertaken by the govt.

 Police structured interrogation (asking formal, structured questions of

W)

 Plea allocutions

 Police record

 Preliminary hearings if D was not allowed to be there, so he could not

cross

 Dying Declaration given to a cop

 NY (lower court authority) – dying declaration even given to a

cop is not testimonial

 Fingerprint Comparison Conclusion

 Requires fingerprint expert to testify in court as to how he arrived

at his conclusion  investigatory

o NOT Testimonial

 911 calls (not initiated by police, but by V seeking govt. aid)

 Ordinary business record (not prepared w/an eye toward litigation)

 Co-conspirators conversation in furtherance of a crime (not testimonial

even if an undercover agent of the law is involved – have to know of govt.

involvement)

 lab work - just routine testing (not trying to incriminate anyone)

 ie: sending DNA from a crime scene to the lab (no investigation

just a computer print out)

 autopsy report

 Forfeiture by wrongdoing

 If there is evidence that a party killed the declarant so he could not

testify at trial then they forfeited their 6th amend. right of

confrontation









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Pedigree

 Hearsay exception that deals w/people’s familial relationships

o Declarant said that X is his son.

o Declarant said that Y is his wife.

o Note: Anyone can testify as to who their relatives are. (ie: D is my father)

 But if W said “I know D is my father b/c mother told me” then this is

subject to pedigree exception if mother is dead (NY)/unavailable (Fed)

 NY

o Pedigree declaration can be offered into evidence, as a hearsay exception IF

 Pedigree is in issue

 Declarant is deceased (otherwise would want him to testify in court)

 Declarant is a member of the family of which he speaks

 Requires independent evidence that declarant is a member of the

family of which he speaks

o Woman merely saying she is a man’s wife does not show

that she is a member of the family. However only requires a

small showing (ie: she has his war medals, held out to be

married, lived together, marriage)

 Ante litum motum - statement is made before there was a motive to lie

(ie: before litigation began)  Declarant had no apparent reason to lie

o Statement does not require a live W if likely to be trustworthy

 Pedigree declaration in family bible or tombstone are OK as long as

declarant/writer is a member of the family on which he wrote about

o Caution: NY CPLR § 4519 - Dead Man’s Statute

 If a person is interested in the event he may not testify to a transaction

w/deceased person against the executor/administrator of deceased

person’s estate.

 FRE 804(b)(4)

o Pedigree declaration can be offered into evidence, as a hearsay exception IF

 Declarant is unavailable (NY requires declarant to be dead)

 Declarant has a sufficiently close connection to the family of which he

speaks  special knowledge of the family

 Butler, Neighbor

 AND Declarant is likely to be trustworthy

o Statement does not require a live W if likely to be trustworthy

 Declarant wrote down the pedigree declaration in a trustworthy place

(family bible)









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Business Records

 Business Records can be admitted into court for the truth of their content IF

o The record is made in the regular course of business

o It is part of the course of business to make the record

 Usually made by someone who has a duty to make the record

o Record was made at or about the time of the event

 Laying the Foundation

o Custodian of the business records may lay the foundation for the records if he is

available OR someone who is not even employed by the business can lay the

foundation for the records to come in  certify in court to the 3 requirements

o Original Record v. Certified Copy

 NY CPLR § 4518

 When offering business records in court, the original record must

be brought

o Tangible exhibits of an electronic business record are

considered the original business record

 Exceptions

o Govt. & Hospital Records

 The original record is not required to be brought

into court, a certified copy of the report is

sufficient

 Custodian or qualified W the records must certify

that the 3 business records requirements are met

o Records from 3rd parties

 Certified copies of business records under oath

from 3rd parties are acceptable but either side can

object and the original must be brought

 Custodian of the records must certify that the 3

business records requirements are met

 FRE 803(6), 902(11), 902(12) – Hearsay Exceptions (availability of

declarant immaterial): Records or Regularly Conducted Activity

 Original business records from either party or a 3rd party are

not required, certified copies of the original business records

under oath are acceptable

 Custodian of the records must make a written declaration

certifying that the 3 business records requirements are met

 Party offering certified copies must give notice to the other side

AND make the copy and the declaration available for inspection

before they are offered into evidence w/fair opportunity to other

party to object

 Note: Business records do not have to be kept/maintained at the

business’s office, they have been kept in L’s office









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 Trustworthiness of the Record

o NY

 If the foundation for the business record is laid, trustworthiness of the

record may affect the weight of the evidence by the jury but does NOT

affect its admissibility

o FRE 803(6)

 Federal rule has a trustworthiness requirement  business record may be

kept out if the party offering it into evidence had a motive to lie

 Personal Knowledge of the Event By the Maker of the Record

o If the foundation for the business record is laid then other circumstances

including lack of personal knowledge of the event by the maker of the record

MAY affect its weight but NOT its admissibility

 Requirements

 Everyone involved in making the record had a business duty to

make the record

o The person who observed the event has to be part of the

same business

o The person who observed the event had a business duty to

observe the event and to report it to the maker of the

record



 Police Reports/Accident Reports

o For the entire police/accident report to come in for the truth of it content

 The maker of the report must have been a W OR

 The W informing the maker was under a business duty to do so

 Needs to be affiliated w/police or unit w/duty to observe the event

 Otherwise, if bystander witnesses the event and reports it to the maker

 the statements of the bystander in the report can not be offered in

court for the truth of its content b/c bystander had no duty to observe

the event or report it to the maker

 Only the parts of the report indicate what the maker saw himself or

that he interviewed the bystander

o Police Reports/Accident Reports are business records and they prove that

statements were made by bystander BUT you need another hearsay

exception to get in the bystander’s statements for the truth of their content

 Ie: admission (if bystander was a party to the event), excited utterance,

spontaneous declaration



 Hospital Records

o What the patient says to the Dr. AND is written by the Dr. in the course of

treatment IS admissible

 In the Course of Treatment

 The business of a hospital is to diagnose and treat  ONLY the

information that Dr. receives from the patient which the Dr. uses

to diagnose and treat the patient is part of the business record







39

o Patient tells Dr. that he was hit by a red car driven by a

woman. The Dr. only needs to know that patient was hit by

A car in order to treat the patient. The part about the car

being red or driven by woman do not come in.

 Hospital record is the exception to the req. that everyone involved in the

making of the record have a business duty (patient has no business duty)



 Market Reports

o Market reports in newspapers can be used as a record to prove a stock price on

a certain date



 Criminal Business Records

o Criminals can have business records

o Loan sharks, drug dealers, etc. all may keep records and those records can be used

as evidence of business records if the foundation is laid

 An expert on loan shark investigating can lay the foundation stating

that he believes they were made in the regular course of business and it

was part of the business to make the record BUT the record would be

inadmissible unless it can be proven the records were made at or

around the time of the event.



 Documents Prepared for Litigation

o Records in preparation for litigation are not admissible as business records

 Ie: police records used to prosecute someone

o Documents that are sufficiently routine and reliable (removed enough from

prosecutorial nature)

 Routinely made accident reports

 How many cops show up at work

 Testing radar machine

 Line sheet for wire taps



Declarations Against Interest

Declaration Against Interest v. Admission

 Admission

o Declaration or statement made by a party (or agent of the party that can bind

the party) to the action before trial

o Which is inconsistent w/party’s position at trial

 Statement may come into court for the truth of its content under the hearsay

exception of admission (NY) or are not hearsay and are admissible (Federal)

o The declaration does not have to be harmful against party at the time it was made

o Admission can only be used against the party who made it OR 3rd party

bound by the party’s admission (vicarious admission)

 Declaration Against Interest

o Statement made NOT by a party to the action

o Made against the interest of the declarant at the time it was made AND

 Interests





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 Penal interest

 Pecuniary interest (being sued)

 Proprietary interest

o The declarant is unavailable as a W at trial

 Unavailable

 Not w/in the jurisdiction of the court

 Dead

 Plead the 5th

 Too physically/mentally sick to come into court

 Can not be found

 If the declarant were available he would come into court to make the

statement

 Statement may come into court for the truth of its content under the hearsay

exception of declaration against interest

 Declaration against interest statement can be introduced in favor of or against

either party

o Rationale: People do not make statements against their interest unless it were

true



Declaration Against Penal Interest Requirements

 Initially, declarations against penal interest were not admissible in criminal cases b/c they

were not seen as trustworthy enough (ie: D could lie and say someone said that they

committed the crime, but now they can’ be found). Now they are admissible in both

civil and criminal cases

 NY

o Declarant is unavailable

o Declarant must have been aware that his statement was contrary to his penal

interest

o Declarant had competent knowledge of the underlying facts AND

o There must be sufficient competent evidence independent of the declaration to

assure its trustworthiness and reliability (ie: Ws establishing that the statement

is reasonably true)

 FRE 804(b)(3)

o A statement tending to expose the declarant to criminal liability (statement

against declarant’s penal interest) AND offered to exculpate the D is not

admissible unless corroborating circumstances clearly indicate the

trustworthiness of the statement

o Requirements (from US v. Katsougrakis)

 Declarant is unavailable as a W

 Statement is sufficiently reliable to a warrant an inference that a

‘reasonable man in the declarant’s position would not have made the

statement unless he believed it to be true” AND

 That corroborating circumstances clearly indicate the trustworthiness

of the statement









41

 Hearsay statement that satisfies the penal interest exception usually

will survive the confrontation clause b/c ‘trustworthiness’ issue is

decided in favor of admissibility



Admissions

Admission

 Requirements

 Out of court declaration or statement made by a party (or an agent of the party

that can bind the party) to the action before trial

 Which is inconsistent w/party’s position at trial

 The declaration does not have to be harmful against party at the time it was made

 Admission can only be used against the party who made it OR against a 3rd party

bound by the party’s admission (vicarious admission)

 Admissions are always explainable though and this affects their weight to the jury

 Rationale: People do not say things that will hurt them unless they are true.

 NY

 Admission may come into court for the truth of its content under the hearsay exception

of admission

 Federal

 Admissions are not hearsay and therefore always admissible if relevant



Vicarious Admission

 Admission made by someone who has the implied authority to make admissions

binding on the party (ie: attorney)

o NY

 High-ranking officers of a corp. are agents of a corp. and are held to

have implied authority to make admissions binding on the corp. (ie:

plant manager)

 Ordinary EEs does not have authority to make admissions for his ER

and are not binding on ER  EE’s admission not admissible against ER

 ER is only responsible for EE’s acts  respondeat superior

 Note: if the EE were not a party to the action then his “admission”

could be admissible against or in favor of any party as a

declaration against interest

o FRE 801(d)(2)

 All EEs can make admissions concerning their work AND they are

binding on ER IF an employment relationship existed at the time of

the admission



Silent Admissions

 NY – Civil & Criminal cases

o Police investigation: Silence by D can not be offered against a party as an

admission EITHER as evidence that D committed a crime OR to impeach D’s

credibility as W









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 Police investigation – when cops, federal agent, law enforcement officers,

undercover cops or someone acting in the auspices of law enforcement are

around  silence is not an admission

 Exception:

 Where you have a duty to speak  an undercover cop has an

obligation to inform his superiors of his undercover activities and

so his silence in the face of direct accusations by fellow cops was

probative of his guilt

o Non-police investigation

 Admission by silence is admissible b/c the natural reaction to someone

accused of something is to refute the allegation

 Federal

o Police investigation: Silence by D can not be offered against a party as an

admission as evidence that D committed a crime BUT pre-Miranda silence

admissions CAN be used to impeach D’s credibility as W

 Miranda warning says you have a right to remain silent  silence after

Miranda can not be construed as an admission



Admission of Deceased

 The admission of deceased is admissible against deceased’s heirs/executors in both

wrongful death and survival actions.



Adoptive Admission

 In an employment situation, if the driver of a truck goes through a red light and tells the

owner “I went through a red light,” then a cop shows up and the owner of the truck tells

the cop “My driver went through a red light.”  adoptive admission (boss adopted the

statement of the driver as the truth)

 Adoptive admission can be used against the declarant and the adoptee.

 But if the Owner says, “My driver says he went through a red light.”  not adoptive

admission and not admissible against owner b/c he is not adopting it as truth, he is

merely restating what driver said



Admissions in a Conspiracy

 A statement made in furtherance of a conspiracy by any of the conspirators may be

used as admissions against all of the other conspirators

o NY

 Laying the Foundation for out of court declaration of conspirator to

be admissible in court as an admission against all other conspirators

 Conspiracy existed

o must be proven by independent evidence from declarant’s

out of court statement

 Declarant was a member of the conspiracy

 The people against whom you are offering the statement are

part of the conspiracy

 NY requires the unavailability of declarant, otherwise declarant must

available for cross (if declarant takes the 5th he is unavailable)





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o FRE 801(d)(2)(E):

 A statement is not hearsay IF

 By a co-conspirator of a party during the course and in

furtherance of the conspiracy.

 The contents of the statement shall be considered but are not alone

sufficient to establish the existence of the conspiracy and the

participation therein of the declarant and the party against whom the

statement is offered

 3 legs of independent evidence

 no 3 legs not admissible in NY, Federal admissible but not

receivable (same thing)

 Does not require unavailability of declarant

 ALL statements made after the conspiracy ends (after arrest) are not admissible

against all other members of the conspiracy b/c no longer in furtherance of the

conspiracy, only admissible against the person who made the statement

o In a joint trial, if a party to the conspiracy makes an admission during trial and it

includes other parties to the conspiracy then only the part of the admission where

the party confesses about himself is read in, not the parts concerning the other

parties.

 Can’t be a declaration against interest b/c the other parties had no

opportunity to cross since they went to trial together as co-Ds.



Statements in Pleadings

 Statements in complaint are formal judicial admissions against P

 Statements in answer are formal judicial admissions against D

 These statements are binding and conclusive on the party that made them

 Parties can amend the pleadings  makes the statements in the first pleading informal

judicial admissions

o Formal – absolutely fact (jury must find such fact to be true)

o Informal – can explain to jury (jury may use your admission against you but

they do not have to accept it)



Settlement Negotiations

 NY

o Civil - NY CPLR § 4548

 Offers to settle AND statements made in connection w/offers to settle

are NOT admissible as admissions

o Criminal

 Offers to plea guilty are not admissible against D

 BUT statements in connection w/offer to plea CAN be used against D

 should not enter a plea conference unless the prosecutor says that

everything is not admissible and all is hypothetical

 Federal

o Civil - FRE 408

 Offers to settle AND statements made in connection w/offers to settle

are NOT admissible as admissions





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o Criminal – FRE 410

 Offers to plea guilty statements made in connection w/pleas are NOT

admissible as admissions



Admissions After the Critical Stage

 NY

o When a criminal proceeding has begun against the D and has reached a critical

stage, then no confession thereafter can be made to the police in the absence of

D’s lawyer

 Critical stage: When the investigation is focused in a meaningful way to a

particular D  when a complaint and a warrant is issued or when D is

indicted



Dying Declarations

 NY

o Can only use dying declarations in a criminal homicide if the charge against D

is homicide of declarant

o Requirements

 Declarant must be dying

 Declarant must know they are dying and abandon all hope of

recovery

 Spoke out about the cause of death

 Declarant must die

o Rationale: Unlikely that someone who is dying is going to lie, and therefore the

statement is admissible for the truth of its content







 FRE 804(b)(2)

o Dying declaration can be used to establish facts in a criminal homicide case or

civil case

 Requirements

 Declarant made the statement while he believed his death was

imminent

 Statement concerns the cause or circumstances of what declarant

believed to be his impending death

 Note: NO requirement that

 Declarant must be dead or

 Abandoned all hope of recovery



Present Sense Impression

 NY

o Present Sense Impression may be offered into court for the truth of its content IF

it is sufficiently corroborated by other evidence









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 Present – while the event is happening, not go back across the street pick

up the phone and say what happened

 Corroborating – ex: testimony of the police finding at the scene what the

caller said he saw

o Availability of declarant is immaterial

o Both recorded statements and in-court testimony are admissible

 911 call recording

 FRE 803(1) – Hearsay Exception, Availability of Declarant Immaterial, Present Sense

Impression

o Present sense impression is not excluded by hearsay rule even though the

declarant is available as W

o Requirements

 Statement describing or explaining an event or condition

 Made while or immediately after the declarant was perceived the event

or condition

o Note: no corroboration requirement



Excited Utterance

 NY

o Spontaneous declarations made by a participant or bystander while he is

under the stress of nervous excitement resulting from an injury or other

startling event are admissible in court for the truth of their content

o Rationale: At the time the declarant is under the stress there is a high degree of

trustworthiness

o Factors in determining if a statement falls under excited utterance exception

 Nature of startling event

 Spontaneity of statement - Amount of time between the event and the

statement  no set arbitrary time limit

 An inquiry into the event which results in excited utterance does

not destroy the spontaneity or excitement of event (merely a factor)

 Activities of declarant in the time between the event and the statement to

see if there was an opportunity to deviate from the truth

 Whether surrounding circumstances reasonably justify the conclusion that

the comment was not made w/readied reflection

o Note: NO Crawford problem if the W is available to testify in court to the excited

utterances she made, which were extracted by cops.

 FRE 803(2) - Hearsay Exception, Availability of Declarant Immaterial, Excited

Utterance

o Excited Utterance is not excluded by hearsay rule even though the declarant is

available as W

o Requirements

 Statement relating to a startling event or condition

 Made while the declarant was under the stress of excitement caused by

the event or condition









46

o Note: If the declarant comes into court and contradicts his excited utterance, but

there were Ws to the excited utterance, then both pieces of evidence can be

admitted and the let the jury decide which they believe.



Statement of Present Pain

 NY

o Declaration of present pain to a treating physician or nurse are admissible

 Declaration of present pain may also get in as part of excited utterance

(but has to be right after the accident)

o Declarations of past pain are not admissible

 FRE 803(3), 803(4)

o Declarations of present pain are admissible when made to anyone

o Declarations of past pain to a treating physician or nurse are admissible

o Availability of declarant is immaterial





Former Testimony

 NY CPLR 4517 – Civil Action

o Former testimony of W in prior proceeding is admissible for the truth of its

content IF

 W is unavailable

 incompetent to testify by NY CPLR 4519 (Dead Man’s statute)

 plead the 5th

 dead

 crazy

 out of jurisdiction

 W can’t be found

 Exception – 4517(4)

o Prior testimony of a doctor maybe used whether doctor is

available or not

 Party (representative of the party) against whom the testimony is being

offered was a party to the first action

 If the 1st action is criminal then the parties are State v. D, in the

2nd action the parties are family of V v. D  testimony of Ws

(now unavailable) against D in the criminal trial can be used in

the 2nd action (for the same issues they were used in 1st action)

b/c D was a party to 1st trial and D had a chance to cross

 Underlying issues are the same so that cross at that trial would cover the

issues at this trial

 Prior proceeding could be anything that provided the party the

opportunity to cross examine W and the party’s motive to cross

examine is the same (NOT grand jury testimony – no opportunity to

cross)

 NY CPL § 670.10 – Criminal Case









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o Former testimony of W is admissible for the truth of its content IF it occurred

in:

 Prior criminal trial of same D for the same crime

 D is saying there is an error in the 1st trial and wants a new trial

 Hearing upon a felony complaint of same D

 Hearing where D is present, Ws are called and D has a right to

cross

 Conditional examination of W in a criminal case

 W to a crime is going to testify but gets into a car accident and

may die before trial so he wants to have a conditional examination

and D will be there and testimony will be recorded

 Conditional b/c if W recovers then he may be called as a W, but if

he dies then his testimony in the conditional examination may be

brought in for the truth of its content

 NOT grand jury testimony

 D has no right to cross Ws in a grand jury, so W testimony from a

grand jury may not be offered in by the prosecution

o Exception: Forfeiture by Wrongdoing of his Right to

Confrontation and Objection to Hearsay

 NY - Prosecution must prove by clear and

convincing evidence that the D caused the

unavailability of W or caused W to be too

frightened to testify against D. If the prosecution

satisfies its burden it may bring in W’s prior

statements, no matter where (cops, friends, etc.).

 D must have killed W to stop him from

being a witness against him not b/c W stole

his money.

 D may be able to offer W’s testimony in the grand jury against

prosecution b/c prosecution did have an opportunity to cross

AND NY says that prosecutor’s have the same motive to cross

(hostile) Ws in a grand jury

 FRE 804(b)(1) – Exception to the Hearsay Rule for Former Testimony

o Former testimony is not excluded by hearsay rule IF

 W is unavailable

 W’s testimony was given at a prior proceeding AND

 Party against whom the testimony is now offered had an opportunity

and similar motive to cross examine W

 Grand Jury

o Generally, the prosecution may not offer W’s testimony in

grand jury as former testimony in trial (D has no

opportunity to cross)

o D may be able to offer W’s testimony in the grand jury

against prosecution b/c prosecution did have an opportunity

to cross BUT the court must determine if the

prosecution had the same motive in crossing the W in





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the grand jury as they would have in court (becomes a

factor in deciding whether to let the former testimony in as

a hearsay exception)

 Exception – FRE 804(b)(6): Forfeiture by Wrongdoing

o Prosecution must prove by a preponderance of the

evidence that D caused the unavailability of W.



Official Documents

Traffic Infractions & Petty Offenses

 D plead guilty

o Some evidence of guilt and is admissible in a civil case against D

 D convicted after a “not guilty” plea

o Not admissible against D in a subsequent civil action



Court Record of Conviction of Felonies

 Record of Conviction

o Being found guilty by a jury, there are no more appeals, and there is a final

conviction OR

o Plea to a guilty charge

 NY

o Record of Conviction of a Felony

 In a civil case it is admissible and conclusive evidence for that felony

against the same D  jury must find D guilty of that felony and only

issue is damages

 Federal

o Record of Conviction of a Felony

 In a civil case it is admissible and conclusive to prove the underlying

facts AND

 May be used against someone who is not the same D if it is relevant



Government Investigations

 FRE 803(8)(C)

o If a govt. body is required to make a report, the factual findings and opinions

are admissible for the truth of it content

o In a civil case against or in favor of a party relevant to the report OR against

the govt. in a criminal case

o Escape clause

 Everything in the report is admissible unless something indicates a lack

of trustworthiness in report  whole report can be throw out

 NY CPLR § 4520

o Similar rule

o Govt. investigation reports are admissible

 Against govt. in a criminal case

 In a civil case against or in favor of a party relevant to the report

o No escape clause but it is implied







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Statements NOT Offered for the Truth of Their Content – NOT Hearsay

Out of Court Statements Not Offered for the Truth of Their Content  NOT Hearsay

 Some out of court statements are admitted into court b/c they are NOT being offered

for the truth of their content NOT hearsay - offered as circumstantial evidence

o Consider NY & FRE 403 balancing rules for circumstantial evidence



State of Mind

 Statements offered not for the truth of its contents BUT to prove the state of mind of

one of the parties  NOT hearsay but circumstantial evidence (see above)

o Statements offered solely to show that the statement was in fact made NOT

whether it is true or not

o Ex: Woman writes a letter to D saying that she is pregnant by him, the

prosecution wants to show that D had motive to kill the woman. Mere fact that W

wrote a letter saying she was pregnant, whether she really is pregnant or not, gave

D motive to kill her. Letter is not being offered for truth of its content, just want

to show that the statement was actually made.



Declaration of Intent

General Rule

 A declaration of intent to do an act is not hearsay BUT rather circumstantial evidence

that he did what he said he intended to do

o Statement is not hearsay b/c the statement is not being offered for the truth of its

content, but only to prove declarant’s state of mind – intention to do the act

o Intention to do an act is some circumstantial evidence that the act was actually

done.



 NY/Hillmon Rule

o Declaration of your intention is circumstantial evidence that you carried out

your intentions AND

o If your intentions mention someone else, then it is also circumstantial evidence

that the person went with you

 Statement is admissible against a non-declarant IF there is independent

evidence that corroborates the declaration (Declaration can’t just say “I

intend to show up w/X.)

 FRE 803(3) – Hearsay Exception, Availability of Declarant Immateria, Existing Mental,

Emotional, or Physical Condition

o A statement of the declarant’s then existing state of mind – declarations as to

speaker’s intent are admissible as evidence that the declarant’s intention was

carried out

o Statements are admissible when made for the purposes of showing declarant’s

then existing state of mind, emotion, sensation or physical condition (ie:

intent, plain, motive, design, mental feeling, pain and bodily health)









50

o Limited to evidence that the declarant carried out his own intentions NOT

someone else also carrying out declarant’s intentions w/him that is only

established by independent evidence



Prompt Complaint

 If a V of a crime, particularly of rape a crime but could be any violent crime,

immediately complains about the crime that prompt complaint may be admissible as

some evidence that the allegation is true

o Offered only to bolster credibility of W, not for the truth of its content  NOT

hearsay

 Prosecution can ask a V, on direct, when if she was the victim of the crime and when

first complained of the offense BUT the statement can not be used to show the details

of the crime or identify the victim

o Note: Where there was a prior description of the assailant by the V, the V may

repeat everything she told to the police if not being offered for the truth of its

content but rather being offered to show V’s recollection, her ability to

identify the assailant, and to remember and accurately relate the events of the

crime.

 Lack of prompt outcry tends to show that perhaps W is not testifying truthfully

 FRE 801(d)(1)(C) – Statements which are not hearsay

o A statement is not hearsay if Prior Statement by W:

 The declarant testifies at trial or hearing and is subject to cross concerning

the statement AND

 The statement is one of identification of a person made after perceiving

the person

 V could testify as to the identity of her attacker in court if she

made a prior statement identifying him after she perceived him.





Lay Opinions

Generally

 Opinion of a lay person is admissible IF it is based on something they have learned or

observed about the event

 Lay person is not allowed to draw opinions or inferences from facts

o Must give the facts to the jury and let them draw the inferences

 Lay person can not testify under the guise of an expert  may not testify to scientific

and technical knowledge

 FRE 701: If W is not testifying as an expert, opinions are limited to those that are

rationally based on perception of W and reasonably related to the case and not based

on technical knowledge.

Lay Person Testifying to the Soundness of Someone’s Mind

 Lay person may testify to the impression produced by Ws acts but he is not

legally competent to give his opinion on whether the mind of someone was

unsound or not









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o Lay person may testify that the acts and declarations of the person

impressed me as rational/irrational

 NY – Exception for Wills

o Attesting Ws who are present at the very act of executing the will may

give their general opinion of whether the testator was of sound or

unsound mind



Other Admissible Lay Opinions

 Voice Recognition

o Lay person can testify as to his opinion of recognizing someone’s voice in

another room

 He must have seen and heard the person speak in his presence on

one prior occasion

o Lay person can testify as to his opinion of recognizing someone’s voice on the

telephone

 NY

 He dialed # listed for that person (X)

 they say “I am X” AND

 Spoke of a matter which X would have had familiarity

 Federal

 He dialed # listed for that person (X)

 they say “I am X”

 Handwriting

o Lay person can testify as to his opinion of someone’s handwriting

 He must have seen the person write once or received a letter from

the person saying they wrote it  small foundation

o Expert W is given the questioned document and a standard of comparison

and the expert is asked if he knows whether or not the same person wrote the

questioned document

 Expert must prove his opinion to judge by a preponderance of the

evidence

o FRE 901(b)(2)

 Lay person opinion on handwriting based on familiarity not

acquired for purposes of litigation are admissible

 Speed of Vehicles

o Lay person can testify as to his opinion of how fast a car was going

 He must have ridden in cars before and observed their

speedometers  this qualifies him to give his opinion

 Identify a particular car

o Lay person can testify as to his opinion of the identity (make/model) of a car

 He must have a general familiarity w/cars

 Drunkenness

o Lay person can testify as to his opinion of how drunk someone is









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 Common experience tells you if someone is drunk, but better to first

tell the factual observation and then come to a conclusion that the

person was drunk





Expert Testimony

Expert

 Someone who has by one way or another gained special knowledge about a relevant

matter beyond the appreciation of the average juror, this qualifies him to testify on the

subject matter. His testimony is helpful to the jury in drawing inferences from facts, or

may provide the jury w/facts or both.

 Requirements

o It is for the judge to determine if the expert may testify

 Is W qualified to be an expert?

 Can be so by study, observation, experience

 Can the W give an opinion?

 Do you need an expert?

o Is the subject matter/conclusion outside the competency

of the avg. juror?

o Is W’s testimony helpful to the jury in making its

decision?

 Expert may testify to both facts and opinions OR can testify solely to an opinion

o The facts upon which an expert bases his opinion must be in the record of the

case

o An expert who is not familiar w/the case (Dr. who never treated the P) can base

his opinions on hypotheticals posed to him (based on the facts of the case), his

personal knowledge of the facts, and professional practices conducted by

experts in that field.

 Professional practice: expert may rely on out of court material if it is of

a kind accepted in the profession as reliable in forming an opinion

 Should the court be told about the professional practice?

o NY – Expert must tell the court of the professional

practice and establish that it is part of the professional

practice.

o FRE 705 – Expert may testify in terms of opinion or

inference and give reasons w/o first testifying to the

underlying facts or data unless the court requires. Expert

may be required to disclose the underlying facts or data

on cross.

 Psychiatrist

o Can rely on professional practices which are based on

methodology consisting of questioning the patient and

interviewing other people who know the patient.

o Prosecution Psychiatrist - D must cooperate

w/psychiatrist of the prosecution if he makes an insanity

defense. If the psychiatrist interviews people who knew the





53

D, the psychiatrist may testify as to his opinion which is

based on the statements from the interviews BUT he may

not testify on direct to their statements in court 

Crawford, this is testimonial evidence b/c the psychiatrist

is an agent of the state hired by the state to testify for the

state and the D never had a chance to cross examine the

interviewees

o However, if on cross the D asks what the interviewees

said  this is a waiver of Crawford rights and the

psychiatrist can testify to the content of the out of court

statements made by the interviewees

 Lie detector test: An expert can not testify that he gave the D a

lie detector test and relied on in it in basing his opinion on D’s

sanity.

 Medical expert can not form an opinion/diagnose the nature of

a patient’s injuries based on casual conversation w/another

doctor

o When facts are not admissible, but are only used by the expert as a foundation

for the opinion should the jury be told?

 NY – It is at the trial judge’s discretion. If the jury is told the court will

instruct the jury to only use the facts to judge the weight of the expert

opinion

 FRE 703 – Inadmissible facts should not be disclosed to the jury unless

the court determines that their probative value in assisting the jury to

evaluate the expert’s opinion substantially outweighs their prejudicial

effect

 Psychiatrists:



Eyewitness Expert

 An eyewitness expert is normally not necessary; this is w/in the competency of the avg.

juror. However, lately they have been allowed to explain to the jury the errors that can

be made in eyewitness testimony.

 Often an abuse of discretion not to allow an eyewitness expert to testify esp. where

there is only a single eyewitness and no corroborating evidence



Scientific Experts

 NY

o Frye Test

 The expert’s opinion needs to be founded on relied on scientific

principles that are generally accepted as reliable in the scientific field

or community

 Hypnotization

o NY

 does not pass the Frye test b/c it is not a generally

accepted method of non-suggestive recollection 

not reliable





54

Prosecution’s W’s hypnotized recollections are

not admissible

 There is no absolute rule that D’s hypnotic

recollection can not be admissible at trial 

determined on a case by case basis to determine if

the testimony is reliable

o Federal

 There is no absolute rule that Prosecution or D’

W’s hypnotic recollection can not be admissible at

trial  determined on a case by case basis to

determine if the testimony is reliable

 FRE 702, 703

o 702 - If scientific . . . knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a W qualified as an expert by

knowledge, skill, experience, training or education, may testify thereto in the

form of an opinion or otherwise.

 Factors in determining admissibility

 Relevance

o Scientific knowledge – an inference or assumption must

be derived by the scientific method (expert opinion has to

be validly supported)

o Helpfulness standard – evidence/testimony must assist

the trier of fact to understand the evidence or determine

an issue

 Reliability

o Whether a theory/technique can be tested or has been

subjected to peer review and publication (relevant but

not dispositive)

o Court should consider the known/potential rate of error

o Note: nothing in the rules establishes general acceptance

as an absolute prerequisite to admissibility 

widespread acceptance is a factor but it is not dispositive

o 703 – Inadmissible facts should not be disclosed to the jury unless the court

determines that their probative value in assisting the jury to evaluate the

expert’s opinion substantially outweighs their prejudicial effect



Non-Scientific Experts

 NY

o Frye test does not apply

o At the court’s discretion to determine the non-scientific expert’s reliability

o The ability of an interpreter, translator, signer or anyone who transmits

testimony of W is not based on a scientific theory  Frye does not apply



Impeaching Expert Testimony

 Published works or studies in the field

o NY





55

 You can impeach the other sides’ experts w/published works or studies

of an author who is recognized as authoritative by

 Expert on the stand

o If the expert on the stand does not recognize the author

as authoritative then the published work or study can not

be used to impeach him.

o The only way to get around this is to call the author or

another expert as your rebuttal W.

 The published works and studies can be brought into the jury at judge’s

discretion.

o Federal

 You can impeach the other sides’ experts w/published works or studies

of an author who is recognized as authoritative by

 judicial notice

 Other experts in the field OR

 Expert on the stand

o If the expert on the stand does not recognize the author as

authoritative the published work or study can still be used

to impeach him if it is recognized as authoritative by

judicial notice or other experts in the field.

 The published works and studies can be read to the jury but they can not

take it into the jury room w/them

 Show the expert is being paid to testify by the party who called him as W

o How often have you testified for L? – shows a financially favorable relationship

 Show that expert has draw erroneous opinions in the past

o If he denies it, ask the court to prove it.





Competency of Witnesses

Competency

 Not all Ws are competent to testify

o Sworn & unsworn Ws - One’s ability to tell the truth

o Dead Man Statute

o Privileges

o Plead the 5th

 Competency goes to the person of the W, admissibility goes to evidence

o A competent person can not offer inadmissible evidence



Sworn & Unsworn Ws



Requirements to be Competent as a W

 NY

o Civil

 W must take an oath OR







56

 Solemn obligation to tell the truth and subject to perjury if you

lie

 Make a solemn promise to tell the truth AND

 Be sworn

 Being sworn means that the W understands the oath 

seriousness of testimony and that he is subject to perjury if he

lies

 Exception: In a civil disciplinary hearing Ws are allowed to

testify unsworn as long as they have the capacity to observe,

remember, and relate the event

o Criminal

 A W who is more than 9 years old may testify only under oath unless

the court is satisfied that the W can not b/c of mental disease/defect

understand the nature of the oath

 A W who is under 9 years old may not testify under oath unless the

court is satisfied that the W understands the nature of the oath

 W understands the nature of the oath if he can tell the difference

between the truth and a lie and that if he does not tell the truth

he can be punished

 If the court is not satisfied, W (over 9 who can’t understand b/c of mental

disease/defect or under 9 who can’t understand) may still be permitted to

give unsworn testimony IF the court is satisfied that the W possesses

sufficient intelligence and capacity to observe, remember and relate

the event

 D can not be convicted of an offense solely upon unsworn

evidence there must be corroborating evidence that tends to

prove D committed the crime

 BUT the acquittal of D may be based solely upon unsworn

evidence

o Child Protection Proceeding – NY Civil Proceeding

 Purpose is to remove the child from her custodians due to physical abuse.

This is not a criminal prosecution

 The in-court, unsworn testimony of the child needs no corroborating

evidence. Unsworn testimony is

 Admissible and

 Can establish abuse itself

 Hearsay exception: Out of court statements of the child concerning the

abuse are admissible for the truth of its content in a child protection

proceeding.

 Federal

o Civil or Criminal

 Will not take unsworn testimony. To be competent W must be sworn

or they can’t testify. No age limit.



Confronting Child Abusers

 Special procedures for testimony by children against their abuser





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o NY CPLR §65.30(2)

 NY has adopted 2-way closed circuit television for children 14 or

younger w/the showing that they can not testify in front of the D

 Court of Appeals has held that it is an error to allow the unsworn 7 year

old prosecution W to sit at a table turned away from the D

o Federal

 1-way closed circuit television (in this case the child was 6)

 SC said that confrontation was a ‘preference’ that must give way to public

policy  here such policy was that the child would be traumatized if they

saw the D



Dead Man Statute

NY CPLR § 4519 – Dead Man’s Statute

 If a person is interested in the event he may not testify to a personal transaction with

the deceased person against the executor/administrator/personal representative of

deceased person’s estate

o Personal transaction

 Anything you heard, said or did w/dead person OR

 If you witnessed a personal transaction of the dead person

o Applies also to person’s who are mentally diseased/defective

 2 classes of protected persons under Dead Man’s Statute  can claim Dead Man

statute as a defense

o Executor

o Person who derived his interest from dead person

 2 classes of incompetent persons under Dead Man’s Statute

o Interested person (has an interest, directly gains by the event of the case)

o Person from whom or under whom the interested party derived her interest

through assignment or otherwise

o Basically anyone who ever touches or wants the emerald ring is incompetent to

testify.

 Raising the Bar of the Statute  incompetent persons may now testify IF

o Executor/administrator/personal representative testifies

o Former testimony of decedent/mentally diseased person is given into evidence

 Either party can put decedent’s former testimony into evidence  this

is the situation where one of the parties to the transaction dies after he

gave his testimony during trial (think breach of K cases)

 Dead Man’s Statute does not apply for a negligence action for personal injuries in a

boat, car, or aircraft accident in NY

o Interested parties can testify to the facts of the accident BUT can not testify as

to conversations w/decedent

 Insurance v. Pension Cases

o Insurance

 A takes out a life insurance for himself and names B as beneficiary. C

comes in and says that while A was alive he changed the beneficiary from

B to C and so C should the money, but A died before he could mail in the

change. C derived his right to the proceeds from the now dead A (Seems





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that C is now in the 2nd class of protected persons) BUT While A was

alive, A had no right to the policy money (C is not really in the protected

class), B – beneficiary – was the one w/the right to money. Since A

never had a right to the money, C may not claim dead man’s statute

as a defense also B received his interests through the insurance co., not

through dead person A (not protected class) and also can’t claim dead

man’s statute as a defense.  In insurance case, dead man’s statute is

not a defense.

o Pension

 A is entitled to a pension when he dies, but while he is alive he builds up

a present right to collect some of that pension money. A has a right to

the some of the proceeds while he is alive. A says that B is the beneficiary

if A never collects any of the money before he dies. C comes in and says

that for value of consideration A changed the beneficiary from B to C. B

is in the 2nd protected class b/c he derived his interest from the dead person

A b/C A did have a right to the proceeds while he was alive. B can

claim dead man’s statute as a defense against C.



Privileged Communications

Privilege

 A privilege renders an otherwise competent W incompetent to testify to information he

received through privileged communications.

 The W may not testify unless the person who provided the information waives the

privilege.

 NY – The civil law governs in both civil and criminal cases unless there is a criminal

statute on point.

 In diversity cases the federal court applies the State’s rules of privilege



Reporter/Newsman – Source

 NY Civil Rights Law § 79-h

o If a source provides information to a reporter under an implied/explicit promise

of confidentiality, reporter can not be compelled to testify

 Absolute privilege for information given in confidence to the reporter

 However, the reporter may testify if he wishes

o If a source provides information, not given in confidence, to a reporter then there

is still a privilege but it is not an absolute privilege

 Reporter may be compelled to testify if the information is

 Highly material and relevant

 Critical or necessary to the maintenance of a party’s claim or

defense or proof of a material issue AND

 Not obtainable from any alternative source

 Federal

o SC has not said that there is a reporter’s privilege

o 2nd Circuit says there is a privilege, but DC circuit says no  split in the circuits

 Note: The reporter is not protected from breach of K by privilege or 1st amend.





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Social Worker – Client

 NY CPLR § 4508

o Statements made by a client to a registered social worker, during the course of

that worker’s employment are deemed confidential communications and

protected from disclosure

 Exceptions – Social Worker may disclose confidential communication

 Which reveals the contemplation of a crime or harmful act

 By a child under 16 years old that reveals they were the victim of

a crime  social worker must testify

 When the client brings charges against the social worker

(waiver of the privilege)

o Disclosure of the information by the client to the insurance co. does not waive

the privilege.



Attorney – Client

Attorney – Client Privilege

 NY CPLR § 4503

o Unless the client waives the privilege, the L shall not disclose confidential

communications made in the course of employment. Nor shall the client be

compelled to disclose.

o Exception – Wills

 In any action involving the probate, validity or construction of a will,

the L or his EE shall be required to disclose information as to the

preparation, execution or revocation of any will or relevant instrument,

BUT he shall not be allowed to disclose any privileged communication

which would tend to disgrace the memory of the decedent.

o Requirements

 Communication must be confidential

 NY CPLR § 4548 – client communications w/lawyer by

electronic means are confidential and remain privileged

 Presence of a 3rd party destroys the privilege

 Exceptions

o 3rd party is required (ie: interpreter)

o Presence of the 3rd party is unknown to the C

 Client must be seeking legal advice

 Communications which concern legal rights and obligations

and where it evidences professional skills such as lawyer’s

judgment and recommended legal strategies

o Business advice is not legal advice and is not privileged

 Does not require that litigation be pending or even

contemplated in seeking legal advice for the privilege to apply

 If a client reasonably believes that a person is a lawyer, then the

privilege attaches even if the person is not a lawyer

o Scope of the Privilege





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 Privilege survives the death of the client

 If the executor of the client uses the client’s lawyer then the executor

has the privilege w/regard to communications between the client and

lawyer and between the executor and lawyer

 Client/executor of client may not be compelled to testify to confidential

communications

 Lawyer may not disclose and not be compelled to testify as to the

confidential communications unless the client waives the privilege

 Any 3rd party w/o the knowledge of the client who overhears the

confidential communication may not disclose and not be compelled to

testify as to the confidential communications unless the client waives

the privilege

o NY CPLR 3101 - Categories of Protected Material

 Privileged matter – Confidential communications

 absolutely immune from discovery

 Lawyer’s Work Product

 Absolutely immune from discovery

 Material in Preparation of Litigation

 Qualified privilege

 Subject to disclosure only on a showing of substantial need and

undue hardship in obtaining the substantial equivalent of the

materials by other means

o Information that is not privileged

 Identity of the Client

 Identity of who is paying the lawyer’s legal fees

o Waiver of the privilege

 Only the client may waive the privilege

 If the client only testifies as to the facts underlying the confidential

communication to the lawyer then he has not waived the privilege

 If the client puts the confidential information itself in issue (puts the

confidential information into evidence) then this is a waiver of the

privilege

o Determining the Existence of a Privilege

 NY

 Court reviews in camera

 Burden of establishing protection by a privilege is on the party

asserting it, the protection claimed must be narrowly construed

and its application must be consistent w/the purposes

underlying the immunity

 FRE 104(a)

 Preliminary questions concerning . . . the existence of a

privilege shall be determined by the court . . . the rules of

evidence will not bind the judge, except those w/respect to

privilege.

o Judge can not summon D’s wife or lawyer and get

information from them.





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o Corporation - In-House Counsel

 Communications regarding legal advice between corporation and in-

house counsel are privileged BUT personal or business

communications are not privileged

 Communication from in-house counsel to corporation dealing with

substance of imminent litigation is generally a legal matter

rather that business or personal matters

 Containment or lack of legal research is not determinative if

the communication concerns legal rights and obligations and

where it evidences other professional skills such as lawyer’s

judgment and recommended legal strategies

o As long as the communication is primarily and

predominantly of a legal character, the privilege is not

lost merely by reason of the fact that it also refers to

certain non-legal matters

o Corporate Representation

 The lawyer’s communications w/all employees of the corp. are

confidential if they are for the purpose of giving the corporation legal

advice.

 Lawyer may not be compelled to disclose the confidential

communications between the lawyer and the corp’s EEs.

 If a report is made by the lawyer, the entire report is privileged

including information about non-clients (unprivileged information)

BUT the lawyer may be compelled to testify to the communications

w/non-client (unprivileged portion of the report).

 If the corporation waives its privilege (ie: it may waive it to receive

immunity from EE’s actions), then there is no privilege for the corp’s

EEs and the lawyer may be compelled to testify as to the

communications he had w/EEs

 Lawyer was never the lawyer for the EE, but rather for the corp.

thus if the corp. waives its privilege there is none left for the EEs.

 Disciplinary Rule 5-109: Lawyer’s investigating on behalf of a

corporation must tell each person he questions that he is not

their lawyer and if the corp. waives the privilege then there is

no privilege for that individual and if the EE has any doubt that

he should get his own lawyer

o Government Representation

 The lawyer’s communications w/all employees of the government are

confidential if they are for the purpose of giving the government legal

advice.

 If a person sues the govt. agency the lawyer may not be

compelled to disclose the confidential communications between

the lawyer and the govt. personnel.

 BUT the lawyer may be compelled to testify in a govt. grand

jury as to the communications between himself and the govt.







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agency’s EE b/c he is not the lawyer for the individual govt.

EEs.

 Note: there is no rule that the lawyer must advise govt. EEs that

there is no privilege but the lawyer should advise them that he is

not the lawyer for the individual EEs

o White House Representation

 Communications between the White House L and the First Lady are not

privileged and the White House L may be compelled to testify as to

their communication b/c he is not the First Lady’s lawyer and she is also

not a govt. EE

 Note: There is no secret service privilege. If the Secret Service observes

the President committing a criminal act they must testify to it.

o Joint Representation

 A lawyer may represent two clients jointly and all communications

between the three are confidential amongst them.

 BUT there is no privileged communication if one client sues the other

client.

o Crime-Fraud Exception

 If the communication between the lawyer and the client is done in

furtherance of a crime or fraud then the communication is not

privileged

 No privilege to information gained on how to commit a future crime or

fraud

 BUT if the client tells the lawyer that he committed the crime  past

crime and is privileged communication

 Court conducts an in camera review and if it turns out not be crime fraud

then it is privileged otherwise lawyer must disclose the information



Ex Parte Communications

 The lawyer for the client, may not seek to interview a represented adverse party ex

parte (w/o the presence of the adverse party’s lawyer)

 Adverse party is a corp.

o NY

 Lawyer can not interview those EEs whose acts are binding on the

corp. through repsondeat superior OR those EEs who are carrying out

the advice of counsel (ie: corp execs., low level EEs who were involved

in the accident)

 Lawyer can interview low level EEs ex parte who were merely Ws to

the event

 Lawyer can interview former EEs ex parte b/c they are no longer

considered a part of the corp. or a ‘party’.

 Former EE may testify to the underlying facts of the event BUT

may not testify as to what the former EE said to the corp.’s

lawyer or what the corp.’s lawyer said to him  invading on

the corp’s privilege







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Clergyman - Penitent

 NY CPLR §4505

o A confession/confidence made to a clergyman in his professional character as

a spiritual advisor shall not be disclosed unless the person

confessing/confiding waives the privilege

o For the privilege to arise there must be reason to believe that the information

sought required

 the disclosure of information under the cloak of the confessional OR

 was in any way confidential

o There is no privilege if the penitent expects the priest to disclose the

information  no confidential communication if it is intended to be revealed

to 3rd parties

o Privilege is also waived if the penitent discloses the confidential information

he provided to the clergyman to 3rd parties.



Physician Patient

 NY CPLR § 4504: Physician, dentist, podiatrist, chiropractor and nurse

o Physician (a psychiatrist is also an MD), registered nurse, chiropractor,

dentist, podiatrist shall not be allowed to testify to disclose any information

which he acquired in attending a patient in a professional capacity AND

which was necessary (helpful) to enable him to act in that capacity

 A general practitioner treats the whole patient, so even if patient came

in w/a sore arm but was also depressed, the general practitioner (MD) can

not testify as to treatment of his arm or depressed state of mind

o Some authority for EMT’s being included in the privilege—agent for ultimately

treating physician, even though employees aren’t mentioned in the statute

o If a Dr., dentist, podiatrist, nurse chiropractor has information about a crime

committed against someone under 16  no privilege

o Dentist information in identifying a patient is not privileged

 Communications which are confidential

o What the patient tells the doctor (and the above other practitioners)

o The parts of your body which you show to the doctor

o Blood

 Note: If the police had taken the blood test then it is not privileged b/c it

is not used for treatment but for evidence against you.

 Communications which are not privileged – NY Exceptions

o Information that is not imparted to the Dr. in confidentiality  readily apparent

for anyone to see (ie: patient has a limp)

o Disclosure of dental identification data

o Information concerning a victim of a crime under age of 16

o Mental or physical condition of a deceased patient

o In proceedings for child abuse or neglect

o Requiring disclosure communicable diseases

o In proceedings for guardianship or custody for dependent children

o Health practitioner must report suspected drug use to the Health Dept.







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 Note: this is merely a reporting statute and not a general waiver  can

not be used in criminal trial

o Gunshot wound

o Stab wound likely to result in death (note: not all knife wounds)

 Waiver of the Privilege

o Patient does not waive his Dr-Patient privilege when he applies for insurance

benefits.

o Waiver after Death of Patient unless it would disgrace the patient

o Dr-Patient privileged is easily waived after patient’s death by surviving

spouse, next of kin, personal representative of the patient

 If a will is being probated any party interested can waive the privilege

 In a litigation where the interest of personal representative are deemed

to be adverse to those of estate, then any person interested can waive

the privilege

o Breach in Dr-Patient Privilege

 The fact that the doctor accidentally breached the Dr-Patient privilege

does not destroy the Dr-Patient privilege BUT the information gotten

from the lead is admissible

o Affirmatively Putting Your Physical Condition in Issue

 P brings a personal injury action

 P naturally waives hisDr.-Patient privilege relative to those

injuries AND P must submit to a physical by D’s doctor

 D puts physical condition in issue to excuse his conduct (ie: D claims he

was not negligent when he hit someone, rather a brick hit him on the head

while driving)

 If D denies every allegation in the complaint this is not

affirmatively putting his physical condition in issue by use of

excuse  Dr.-Patient privilege remains intact

 P can not waive D’s Dr-Patient privilege by putting D’s

physical condition in issue (ie: P says that he has 15 Ws which

can testify that D was drunk  no waiver of Dr.-Patient privilege)

 D counterclaims against P in a physical injury suit  D becomes a P

 FRE 501

o Issues regarding privilege are to be governed by the principles of the common

law as they may be interpreted by the courts of the US in light of reason and

experience

 No Dr-Patient privilege w/respect to the FRE  exist only in common

law



Psychotherapist – Patient

 NY

o There is no psychotherapist-patient privilege

o Instead NY enacted a Registered Psychologist – Client privilege

 Federal

o Supreme Court in Jaffee v. Redmond







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 Creating a psychotherapists’ privilege includes anyone permitted to

render psychotherapy (psychiatrists, psychologists, registered social

workers)

 Absolute privilege in the federal courts

 Waived only by the patient or if the patient says that he will do harm

to himself or another person



Registered Psychologist – Client

 NY CPLR § 4507

o The confidential relations/communications between a registered psychologist

and his client are placed on the same basis as those provided by law between

attorney and client and such privilege communications may not be compelled

to be dislosed.

 Similar to a attorney-client privilege NOT a Dr.-Patient Privilege

 In a Dr-Patient privilege, if the patient testifies to the facts

underlying the communication then the privilege is waived.

 In attorney-client privilege, if the client testifies to the

underlying facts of the communication the privilege is not

waived.

o Client does not waive his Registered Psychologist-Client privilege when he

applies for insurance benefits.

o Waived only by the patient or if the patient says that he will do harm to

himself or another person

o Privilege is not applicable in a child abuse proceeding in NY Family Court



Rape Crisis Counselor - Victim

 NYCPLR §4510: Rape Crisis Counselor

o Confidential communications by a client to a certified rape crisis counselor

are privileged and may not be disclosed by the rape crisis counselor.

o The privilege may be waived by the client

o Communication by client which reveals intent to commit a crime is not

privileged

o If a charge is made against rape crisis counselor by the client then there is an

automatic waiver



 NY CPL § 60.76

o In a criminal case the D has a right to confront the Ws against him and to admit

prior inconsistent statements (ie: show motive to lie)  here privilege will not

hold

o The party seeking the disclosure must file a written motion supported by an

affidavit containing specific factual allegations providing grounds as to why

disclosure is required.

o Court shall conduct an in camera review of the communication outside the

presence of the jury and lawyers for all parties to determine whether disclosure of

any portion of communication is required.







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Husband – Wife

 NY CPLR § 4502 & Common law privileges

o a) Incompetency where adultery is at issue

 Limited to an action for divorce founded on the ground of adultery

 NY gives a divorce on 2 grounds

o adultery by one of the parties OR

o cruel and inhuman treatment by one of the parties

 If the divorce is brought or sought on the ground

of cruel and inhuman treatment there is no

incompetency of one spouse testifying to adultery

against the other

 CA gives divorce for irreconcilable differences, NY would

recognize such divorce under the Full Faith and Credit Clause

 Both spouses are not incompetent to testify against the other EXCEPT

 To prove the marriage

 Disprove the adultery OR

 Disprove a defense

o Condonation – the other spouse knows about the adultery

and condones it  defense to adultery

 Has to illustrated by the H and W resuming

marital relations

 If the husband claims condonation as defense and

has someone testify to that (he can’t testify b/c he

is incompetent to testify to prove a defense) to

divorce on the ground of adultery then the wife can

testify against the husband to disprove the

defense

o b) Confidential communication privileged.

 Husband or Wife shall not be required, or w/o consent of other, if

living, to disclose confidential information (includes acts) from one to

the other during marriage.

 If the communication/acts is made in the presence of a 3rd party

or children over 3 then it is not confidential

 Privilege does not apply to same sex domestic partnership or

common law husband and wife

 Must be relying on the trust that a husband and wife have for

each other

o Beating wife is not confidential b/c not based on trust

o If the marriage is held together by threats this is not

confidential b/c not based on trust

o If the marriage is so deteriorated that there is no

marriage to be saved then there is no privilege

o NO privilege if both spouses are involved in a criminal

conspiracy

o Communications to re-establish the marital relationship

are privileged





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 Even after divorce can not testify as to communication during

the marital relationship.

 Rationale: parties must be able to trust each other and make confidential

communications between each other; legislature wants strong marriages

o Common law – Privilege against adverse spousal testimony

 One spouse can not testify against the other spouse (regardless of how

communication was gained)

 Federal

o Common law Husband-Wife privilege

 Confidential communications between a husband and wife are privileged

 Communications between husband and wife in the presence of 3rd parties

are not confidential

 Federal Modified Adverse Spousal Testimony Privilege

o One spouse can not be compelled to testify against the other BUT

o One spouse can not prevent the other spouse from testifying against him 

one spouse may choose to voluntarily testify against the other



Parent-Child Privilege

 NY

o There is no statutory parent-child confidential communication privilege

o 2nd and 4th Dep’t recognize a parent-child privilege

 Parent-child privilege up to 23

 In one case the child was 23 and the privilege remained, but in

another case the child was 28 and the court found no privilege



Self-Incrimination

 th

Every person has a 5 amend. privilege form incriminating himself  can not be

compelled by the govt. to incriminate yourself

 NY CPL § 190.40

o Any W who gives evidence in the grand jury receives transactional immunity

 Transactional immunity

 W receives immunity from prosecution for offenses to which

his compelled testimony relates

 W can waive his immunity by providing information

gratuitously (ie: not in response to a question)

o Ex: Did you kill X?

 Yes I killed X & Y.  W only receives

transactional immunity for prosecution against him

for killing X but not Y.

o NY is constitutionally required to give as much protection as the federal govt.

but chooses to give more.

 If NY grants a W transactional immunity then W has use and derivative

immunity in federal courts. W does NOT have transactional immunity

in federal courts

 If the federal court grants a W use and derivative immunity then the W

has use and derivative immunity in NY





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

 Federal

o Any W who gives evidence in the grand jury receives use and derivative

immunity

 Use and derivative immunity

 W receives immunity from the use of compelled testimony and

evidence derived from it  What you say nor any leads from

what you say can not be used against you

o W can waive his immunity by providing information

gratuitously (ie: not in response to a question)

 W can be prosecuted for offenses to which his compelled

testimony relates but it must be on totally independent evidence

 Corporations

o Corporations do not have a 5th amend. privilege to self-incrimination

o Officers of the corp. can not claim a 5th amend. privilege w/respect to the

corp.’s books and records

o Custodian of the corp. records receives some protection in that the court will not

tell the jury that the custodian is the one who produced the corp. records



Double Jeopardy

 Double Jeopardy only prevents the same sovereign from trying the same D for the

same crime 2x.

 Thus if commit a crime that is punishable in both NY and federal court (kill an FBI

agent in NY) then the D can be tried and convicted in both NY and federal court

BUT can not receive double punishment (can’t receive punishment above the original

sentence).





Best Evidence Rule

Best Evidence Rule

 If you are offering a document into evidence, the best evidence of the contents of the

document is the document itself



Modern Rule

 NY CPLR § 4539

o If you do not have the original (best evidence) you must lay the foundation for

secondary best evidence

 Show that original document can not be obtained through no fault of

your own OR that adverse party can not comply w/notice to produce

 You can bring in an accurate copy that is signed under oath

 Computer printouts are as good as the original document

 Enlargement or fax of the copy is admissible in evidence if the

original copy is available for inspection

 Electric bills from the electricity co. are considered originals

(instead of originals mailed to customer)







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 Federal

o You can use a copy of document as evidence of its contents w/o laying the

foundation under the best evidence rule unless the other party can show good

cause as to why the copy should not be admitted.

 Computer printouts are as good as the original document









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