Evidence 1 Outline - Professor Fagan

Evidence I (Fagan, J.) Outline 03/26/93 Contents Page ii Introduction 1 Types of Evidence 1 Relevancy 1 Judicial Notice 1 Adjudicative Facts 1 Legislative Facts 2 Presumptions and Inferences 2 Approaches 2 Criminal Actions 3 Missing Witness Charge 3 Specific Presumptions 3 Burden of Proof 4 Weight of Burden in Specific Actions 4 Defenses in Criminal Actions 5 Criminal Confessions 5 Civil Actions - NY 5 Wills 6 Gifts Inter Vivos 6 False Arrest/Malicious Prosecution 6 Defamation 6 Province of the Judge and Jury 6 Jury Trials 6 Criminal Trials 7 Issues -- Whether Determinable by the Jury 7 Admittance of Evidence 7 Relevancy 7 Finality 8 Grounds for reopening - Criminal 8 Grounds for reopening - Civil 8 Damages 8 Judicial Influence Upon Jury 9 Mixed Questions of Law and Fact 9 Real Evidence 9 Real Proof 9 Photographs and Film 10 Children 10 Other Evidence 10 Prejudice 10 Prejudice -- Jury 11 Views 11 Examples of Internal vs. External Influences 11 Demonstrative Evidence 11 Circumstantial Evidence 12 Character 12 Usage of Character 12 Character -- Defendant as Witness 13 Hearings 13 Character - Victim 14 Character - Sexual Assault Victim 15 Character - As an Issue & Habit 15 Prior Alleged Crimes As Evidence (not character) 15 Other Areas of Circumstantial Evidence 17 Conciousness of Guilt 17 Examination of Witnesses 18 Witnesses - Refreshing 19 Past Recollection Recorded 19 Impeachment Prior Statements 19 20 Introduction Evidence - 1) data presented to the trier of fact as proof establishing or disproving and issue or fact; 2) rules that determine what proofs are admissable at trial. Federal - in Code, Federal Rules of Evidence NY -- no rules of evidence, scattered among different statutory sections (EPTL, CPLR, etc.) and in the case law. Types of Evidence 1) Testimonial -- sworn testimony, what a witness says in the witness chair; 2) Demonstrative (Real) - Items which are presented to the trier of fact such that the trier of fact must use his senses to interpret the evidence. a) documentary -- records and material relating to transactions, etc. ex. contracts, acctg. books, .. b) all other evidence -- videotape, tape recordings, photos Direct Evidence -- evidence presented which directly proves some type of issue or fact. ex. witness testifies to personally seeing some event; Circumstantial Evidence -- indirect proof of an issue or fact. ex. testimony of hearing a gunshot. Relevancy 1) Materiality -- whether or not the evidence relates an issue in the case; 2) Probative value -- whether the evidence makes the existence of an issue or fact more likely or less likely; that is does the evidence assist in the determination of the existence of a fact or issue; Incompetency -- applies to the ability of witnesses to give evidence. ex. An attorney cannot testify to what his client said due to att'y.client privilege. Age, mental defect, etc.. Policies: 1) any evidence which illuminates the truth should be admitted; 2) justice/fairness decrees that certain evidence, even if material should not be admitted; 3) there are rules which say that certain types of evidence are not admissible. exs. confessions obtained without Miranda rights; hearsay evidence. Judicial Notice -the finding of a fact by the court without proof premised on that fact being one of common knowledge and experience. Common (undoubtable) knowledge easily verifiable from an unimpeachable source. Ex. dates, locations (from maps), spellings, what is a business district, etc... NY and Maj. Rule -- Appellate courts hearing civil appeals can take judicial notice on appeal even if notice was not taken on the trial level. Adjudicative Facts those facts that relate to the actual (particular) dispute in front of the court. Judicial notice relates to the admissibility of evidence, not to the weight it is accorded. Fed. R. Evid 201(b) -- judicially noticed fact must be one not subject to reasonable dispute since it is 1) generally known in the vicinity of the trial court's jurisdiction or 2) capable of accurate and ready determination. Cases -Fed. R. Evid 201(d) -- A court is required to take judicial notice of adjudicative facts in civil cases if 1) requested by a party and 2) the court has been supplied with the necessary information. Fed. R. Evid 201(c) -A court can at its discretion take judicial notice of adjudicative facts whether or not requested by the parties. Fed. R. Evid 201(g) -- If adjudicative facts are judicially noticed, they are taken to be conclusive in civil cases on that issue. The only challenge that can be made is not to the fact noticed, but to the judge's right to notice the fact. Criminal Cases - Federal - Judicial notice is not conclusive on the issue since under the Constitution a fact must be found by a jury. See F. R. Evid. 201(g). New York -courts have discretion in deciding whether or not to take judicial notice. Judicially noticed facts are only evidence and are not necessarily conclusive to the jury (NYS Ct. of Appeals). Prior cases -- In for a judge to take judicial notice of the findings in a prior action he must: 1) the judge must cite the record, and 2) the judge must tell the parties such notice is being taken. This rule applies to cases in the same court. Judicial notice is not normally taken of cases in other courts. Judical notice is normally not taken of DNA fingerprinting. This must be proven by expert testimony on a case-by-case basis. The defendant can rebut any fact that has been judicially noticed by introducing evidence to rebut the fact. For ex., expert testimony can be introduced to show that the radar in a case was not used in a proper manner. May be hard to rebut a noticed fact. The legislature by statute can establish that certain evidence can be used to satisfy the elements required to prove a certain issue. This obviates the need for judicial notice. ex. NY -- the breathalyzer can be used to establish blood/acohol levels without judicial notice. Judicial Notice of Law -- NYCPLR §4511 -- it is mandatory for courts to take judicial notice of Federal and state statutes (incl. Constitutions) and NY Code of Rules and Regulations. (b) upon request, notice may be taken of Federal and regulations of other states. Legislative Facts observations by courts of legislative history, proposed laws and policies behind existing laws. (less common than adjudicative facts) Ex. constitutional rational basis test which requires judicial notice of legislative policy and intent. (Pg. 1267) Civil Presumptions and Inferences Presumption (mandatory) -if the existence of the basic fact is established, the factfinder must find the existence of the presumed fact. All presumptions are rebuttable, but absent such contrary evidence, the presumed fact must be found. Inference (permissible presumption) -- If the basic fact is established, then the trier of fact (judge/jury) may find the inferred fact, that is the fact-finder is permitted to logical find that the inferred fact exists. Irrebutable presumption -- if the basic fact is established, then the factfinder must conclusively find the presumed fact. ex. Must be over 6 yrs. old to commit a felony. If it is established a person is less that 6 yrs. old, then a court must find a felony was not committed. A divorce nullifies a will, and the spouse divorced cannot rebut this presumption; a new will would be needed. Approaches The weight given to various presumptions depends on 1) procedural considerations; 2) weight of probabilities; and 3) party with the facts will be forced to make the facts known. The four approaches: 1) Pure Thayer (Fed. R. Evid. §301) -- the presumption is "knocked out" if any other contrary evidence is produced by the other party. 2) Modified Thayer -- when the opposing party presents "substantial facts" which rebut the existence of the presumed fact, the presumption drops out. 3) NY Rule -the presumption drops out when the opposing party presents evidence makes the non-existence of the presumed fact as plausible as its existence. (50 % Rule) 4) Pennsylvania Rule -- the presumption drops out when the opposing party presents evidence makes the non-existence of the presumed fact more probable than its existence.(51% Rule) In Federal courts sitting in diversity, the state rules as to presumption apply since this is a rule of substantive law. The fact finder (judge/jury) determines whether the presumption has been knocked out. Criminal Actions Permissible inferences do not unconstitutionally shift the burden of proof in criminal cases since the jury retains discretion in whether or not it finds the inferred fact. The test as to whether a permissible inference is allowable is: 1) is there a rational connection between the basic fact and the inferred fact, & 2) is the inference applied on a case-by-case basis. There are no mandatory presumptions in criminal cases. The test is whether the basic fact alone could establish beyond a reasonable dout the 's guilt. If so, the presumption can be allowed. Missing Witness Charge This rule is still valid in NY. This charge allows there to be an adverse inference when a party does not call a witness who would corroborate/strengthen that party's case. This inference does not apply to the in criminal cases since it would place an unconstitutional burden on 's by forcing them to produce a witness and in the case of the would be violative of the 's rights. However, where the raises an affirmative defense, the missing witness charge can be given as to the defense in the does not call a witness. Note that this presumption only applies to the affirmative defenses; it in no way affects the prosecution's burden of proving all elements of the crime beyond a reasonable doubt. The charge can apply to the prosecution in criminal cases where the prosecution has control. ex. police officers, victims, etc...Note: Even if a witness for the prosecution is under risk of 5th Amed. selfincrimination, the prosecution could gain "control" over the witness through grant of immunity and thus if the witness is not presented a missing witness charge could be issues. In order to gain a presumption based on a missing witness there must be: 1) The witness must be under the control of the party; Control -depends upon the relationship of the witness to the party. Friends, relatives, employer/employee people who would be likely to testify in favor of the would be the subject of the charge. Where a victim has filed a complaint, that victim is considered to be "controlled" by the prosecution since the victim voluntarily came forward. 2) The witness must be available; 3) The testimony would not be cummulative (non-redundant) and would be relevant. Specific Presumptions Suicide -- there is a strong presumption against suicide. If death is established, then it is presumed to be accidental (or criminal if evidence support this view). In NY, this presumption can only be rebutted by clear and convincing evidence. There is no presumption against attempted suicide since there is direct evidence available. Auto -- it is presumed (rebuttable) that any person driving an auto is doing so with the owner's consent. Thus the owner is liable for any torts, etc.... Rebuttals - 1) stolen autos; 2) where there is a) an employer employee relationship and b) the employee is acting outside of the consent of the owner (ex. chaffeur), the judge as a matter of law will find the presumption rebutted. Legitimacy -A child born to a married woman is presumed to be legitimate, that is her husband is considered the father. Policy: family values, do not want to make child illegitimate. Continuity -- weak presumption, if a fact is established as true at one point in time, then it is presumed that fact existed for a reasonable time prior and subsequent to that point in time. Marriage -if two persons publicly hold themselves out to be married, and there was some type of ceremony, it will be presumed they were married. This pressumption applies to the most recent marriage. Enoch Arden Presumption -- If after a dilligent search it is established that a person has been missing from his residence for [Common law - 7 yrs., NY EPTL§2-1.7 - 5 yrs.] without a "reasonable accounting", then the person is presumed dead. Under the NYEPTL§2-1.7(1), if it can be proven that the person was exposed to some specific peril (ex. Titanic), the statutory period for the vesting of the presumption can be shorter. If there is a reasonable explanation for the disappearance of the person other than death, then there has been an "accounting" and the presumption does not apply. Ex. debtor who goes missing on due date, prisoner on bail, etc. Presumption of Survival -NYEPTL§2-1.6 In the case if estate disposition, if it matters which person died first and it cannot be determined that the deaths occured other than simulataneuosly, the eventual beneficiaries will take the estate in equal portions as if the beneficiary through whom they claim had survived. Presumption of Discontinuance - If the maker of the will had possession of the will, and the copy of the will the decedent so possessed cannot be found after the death, the will is presumed to have been revoked. The fact that a copy exists does not affect the presumption. The presumption can be rebutted if it was shown the will was destroyed accidentally. (ex. fire) Ancient Document -- NY common law -- if a document is more than 30 yrs. old (Fed. R. Evid - 20 yrs.) and found where it should be found, and there is no evidence of fraud, then it is presumed that the document is authentic. Check -- If a check is written out to someone, it is presumed to be in payment for a debt. For ex., if uncle makes out a check to father; check bounces; father sues; check is presumed to be for father. Rebuttal: uncle claims check is for niece's birthday (maybe date on check?) Presumption of Delivery -- If a letter is made out to an addressee in the same city, it is presumed it was delivered in the same day. Criminal Actions -- If a either 1) destroys or attempts to destroy evidence or 2) threatens or attempts to threaten witness, there can be an inference that the believes his case to be weak. Burden of Proof the need and standard for satisfying the trier of fact that the facts are as presented by the party. The general rule is that the burden is put on the party seeking to change the status quo. General Rule -- In civil cases, the party asserting the existence of a particular fact or issue must prove such by a preponderance of the evidence (more probable than not, > 50%). Some issues -the standard of proof is clear and convincing evidence. Criminal Cases -The prosecution must establish its case beyond a reasonable doubt, the occurence must be proved to be highly probable. Weight of Burden in Specific Actions Reformation of Contracts -- The party seeking to reform must prove his case by clear and convincing evidence. Presumptions -Suicide and Legitimacy -- there must be clear and convincing evidence to rebut these presumptions. All other presumptions have a lower burden of proof to rebut. Note that it is nearly impossible to rebut the legitimacy presumption unless the husband cannot physically have children. Note that the HLA test cannot be used. Incompetency (civil action) -- party asserting must prove by clear and convincing evidence. Child neglect -- need clear and convincing evidence to take a child away from his natural parents. Unjust Conviction -- must prove by clear and convincing evidence that the conviction was unjust. Right to die -- Must prove that the person wished to avoid life-saving treatment in the particular factual and medical setting (vegetable state,. tube feeding, etc. ) by clear and convincing evidence. NY Public Health Law § 29 -C authorizes courts to honor "living wills" which direct another to act as a proxy in this situation, or direct the course of treatment when a person is in a near-death state. Defenses in Criminal Actions "Pure Defenses" are defenses which when asserted deny the prosection has supported is burden of proving 's guilt beyond a reasonable doubt. The has no burden, the simply must present evidence which rebuts the prosectution's attempt to prove the element beyond a reasonable doubt. Affirmative Defenses -- these are defenses granted by statute. They normally do not go to disproving an element of the crime. Therefore the statute can set the burden of proof the must meet to sustain these affirmative defenses. Penal Law §40.00 (Duress), §40.05(entrapment), must be proven by a preponderance of the evidence. §40.10 Renunciation -- must attempt to stop crime, must be proven by a preponderance of the evidence. Insanity -In NY, must prove by a preponderance of the evidence; Federal -- must prove by clear and convincing evidence (changed in response to Hinckley). Under the Consititution, the burden of proof as to the elements of a crime cannot be placed on the . However, there can be presumptions created as to issues which are not part of the statutory definintion (elements) of a crime. (Justice White) Justice Powell in dissent -- does not believe there should ever be a burden on the in criminal cases. Justice White's rules: 1) Prosecution has burden of proof; 2) Evidence introduced as part of an affirmative defense can be used to rebut the prosecution's proof; 3) If elements not rebutted, then the fact finder can consider whether the has met its burden on the affirmative defense. Criminal Confessions a 's confession is one of the strongest pieces of evidence the prosecution can present. Involuntary confessions are not admissible. Policy: 1) violates 5th Amend. self-incrimination privilege; 2) Unreliable, coerced; 3) fairness, due process; 4) do not want to tempt law enforcement to coerce. Admissibility (Federal) -The judge must find in a pretrial hearing that the confession was voluntary by a preponderance of the evidence (burden on prosecution). Constitutionally required. Proof beyond a reasonable doubt is not required. The Constitution does not require that the issue of voluntariness be adjudicated again at trial. However, evidence of nonvoluntariness can be introduced at trial for the jury's consideration though the jury need not find on this issue. The states can grant 's greater rights. NY Rule -- Huntley hearing (pretrial hearing) -- the prosecution must prove beyond a reasonable doubt the voluntariness of the confession. At trial, the prosecution again has the burden of proving beyond a reasonable doubt the voluntariness of the confession. (Crim. Pro. L. §710.70) Any confession obtained without the being Mirandized is nonvoluntary as a matter of law and is suppressed. (all jurisdictions) Exception -- If the makes an "excited utterance" where there was no chance for Mirandizing, this is not non-voluntary as a matter of law. Once the invokes his Miranda rights, any further statements by the without counsel are not admissible. Civil Actions - NY The party with the burden of proof normally has the burden of pleading (raising) the issue. The normal burden of proof is preponderance of the evidence. The party with the burden of proof has the right to open (opening statement) and to close (last closing statement). Negligence -has burden (preponderance) of establishing negligence. Contributory negligence (defense) pre-1975 had burden of disproving; Post-1975 -has burden of establishing 's negligence (acts to mitigate damages). Contracts -has burden of proving (preponderance) 1) existence of contract; 2) validity of the terms, 3) breach and 4) damages. NY Rule -has burden of proof (preponderance) on defenses when raised by such as duress, fraud, S/F, incapacity, misrrepresentation, etc.. (other states put burden on ) Note that in most other causes of action in NY, the has the burden of proving defenses. Wills proponents -- those who support the validity of the will ( 's); proponents have the burden of proving by a preponderance of the evidence: 1) The will is valid; 2) and duly executed; 3) the testator has testamentary capacity. Testamentary capacity: a) testator knows what his property is (does not deal with issue of capacity), b) testator knows the natural beneficiaries of his estate. ex. express grant in will. objectors -those who oppose the will. They have the burden of proving defenses (preponderance) including fraud, undue influence, duress, etc... / NY -draftsperson bequest inference -- if the draftsperson of a will receives a bequest under the will, undue influence will be inferred. This inference is rebuttable. ex. draftsperson is child of testator. Gifts Inter Vivos donee has burden of establishing elements of gift by clear and convincing evidence: 1) intent, 2) delivery, 3) acceptance. If the donor raises defenses (fraud, duress, etc.) then the donor has the burden of proving such defenses by a preponderance of the evidence. Where there is a fiduciary relationship between donor & donee (ex. trust), the donee has the burden of disproving a defense of undue influence by clear and convincing evidence. False Arrest/Malicious Prosecution False Arrest -- the has been arrested falsely, but has not yet been subject to judicial intervention and was not arrested on a warrant. This cause of action covers the time period from actual arrest and imprisonment until the time of arraignment. Elements: has burden of proving by a preponderance of the evidence 1) Arrest, 2) Imprisonment and 3) damages. The has the burden of proving the defense of justification by a preponderance of the evidence. Malicious Prosecution -has been subject to some judicial action resulting in imprisonment. Elements: has burden of proving by a preponderance of the evidence 1) Arrest, 2) Imprisonment and 3) damages. The also has the burden of proving there was no justification by a preponderance of the evidence. Defamation Where the is a public figure or public official, the must prove by clear and convincing evidence the falsity of the statement, and New York Times malice. Constitutionally required. Province of the Judge and Jury Jury Trials NY CPLR §4101 -a jury trial is required for issues of fact unless waived or a judicial referee is directed under §4317. This right to a jury trial is applicable where the action is for a money judgment only. But equitable defenses and counterclaims shall be tried by the court/judge. If equitable and legal claims are merged, then there is no right to a jury trial. If the equitable claims are dismissed and only the legal claims are left, there is still no right to a jury trial since the right to a jury trial is waived at the time of the original or amended claim. Ex. Divorce based upon adultery. A jury trial is allowed on the legal issue of adultery. However, there is an equitable defense: if the spouse (vicitm) condones the adultery: elements: 1) the victim knows of the adultery and 2) continues to cohabitate with the adulterer(ess); this particular equitable defense is triable to the court/judge. Criminal Trials Const. Amend VI -- the accused is given the right to a speedy and public trial with an impartial jury in all criminal cases. (unless there is a waiver of some sort) This requirement applies to the States through the due process clause of the 14th Amend. The Supreme Court has held that the requirement of a jury trial only applies to "serious crimes" which are those for which the defendant upon conviction could be statutorily subject to longer than six months in jail (it does not matter if the individual 's sentence is for less than this period, it is the maximum penalty in the statute that is determinative). Petty offenses --those with a penalty of less than six months of incarceration are not subject to the jury trial requirement. Exception -- If there is evidence that the legislature thought the crime serious even though it did not give a penalty over six months, then a jury trial is constitutionally required. ex. Prostitution -- the NY Court of Appeals has held that the penalty for this crime is less than six months and though the crime carries a stigma, this does not prove it is a serious crime requiring a jury trial. Where there are multiple offenses, whether a crime is serious depends on the maximum sentence for each individual charge, the maximum sentences are not aggregated. Issues -- Whether Determinable by the Jury General Rule -- the jury decides most issues of fact. Admittance of Evidence Fed. R. Evid. §104(a) -- the judge will determine the factual issue of whether a witness is qualified to be an expert witness. Relevancy this is an evidentiary issue of fact which is triable only by the judge. The judge decides whether the evidence is probative. Fed. R. Evid. §104(a) The court is not bound by any rules of evidence in making the factual determination of whether evidence is admissible except in the case of privileges. a) hearsay -the judge decides whether testimony is hearsay. Note that deathbed hearsay testimony is admissible (See Fed. R. Evid. §804(2)). b) relevancy conditioned on fact -- Fed. R. Evid. §104(3) -the court will admit evidence subject to the introduction of subsequent evidence which supports a finding of the condition. If the condition is not fulfilled, then the evidence will be struck. ex. An agent signs a contract with a third party binding the principal. At a trial upon the contract, the contract can be admitted subject to the condition that it will be shown that the agent was actually an agent of the principal. The evidentiary standard need to support a finding of the condition is that enough evidence has to be adduced such that a jury could find the existence of the condition. The judge decides if the standard has been met. Finality In criminal cases, the judge cannot set aside a jury's not guilty verdict and such a verdict is final. The prosecution cannot appeal a not guilty verdict since that would be double jeopardy. Ex. Even if the jury was bribed, the could not be tried again. However, the could be tried on the new charge of bribery. The same rule applies where a witness later admits to lying on the witness stand. A judge can set aside a jury's conviction. NY Criminal Procedure Law § 330.30 -- this is known as a "30-30 motion". There is no double jeopardy in this case since the prosecution cannot be subject to double jeopardy and the implicitly waives his double jeopardy rights' by asking for the reopening. Note: If a guilty verdict is set aside, the prosecution can appeal the granting of the 30-30 motion since the appeals court can reinstate the original verdict and there is no double jeopardy. However, if the obtains a directed verdict (dismissal), that is the issue does not go to the jury, the prosecution cannot appeal since there is no jury verdict to be reinstated. CPL § 290.10 -- If a dismissal motion is made by the after the trial, but before the jury renders a verdict, the judge can reserve decision on the motion until after there is a jury verdict. This gets around the problem of double jeopardy if the verdict is set aside and allows the prosecution to appeal. Grounds for reopening - Criminal 1) Discretionary: 1a) Insufficiency of the evidence as a matter of law -- under CPL §330.30, a motion may be made on these grounds to the trial court or the Appellate Division (under CPL §470.20). This motion is saying that no rational juror could have found as the jury did based on the evidence. The case must be remanded back for further proceedings. The Court of Appeals can review an appellate court's determination on a motion made on these grounds since the Court of Appeals has jurisdiction over errors of law even though the statute does not specific grant such jurisdiction. 1b) Determination against the weight of the evidence -no juror could have found the facts as the jury did under a "fair" interpretation of the evidence. A motion on these grounds can only be made to the Appellate division and the appellate court can only dismiss, it cannot remand. (CPL §470.20(5)) 1c) In the interest of justice -- a motion on these grounds can only be made to the Appellate Division (CPL §470.20(1)) If the motion is granted, the case must be remanded back for further proceedings. A motion on these grounds is normally used in cases of mercy for the . Buys time for a seriously ill . 2) jury misconduct; 3) New evidence. Grounds for reopening - Civil 1) Insufficient evidence as a matter of law -- this motion can be granted by the trial court, Appellate Division, and reviewed by the Court of Appeals. A directed verdict is the result if the motion is granted. (CPLR §4404(a)) 2) Against the weight of the evidence -- this motion can be granted by the trial court, or Appellate Division. The result of a motion on these grounds is an order for a new trial. 3) Interest of justice -this motion can be granted by the trial court, and Appellate Division. The result of a motion on these grounds is an order for a new trial. Damages The Appellate division has jurisdiction to review damage awards. The standard is whether the jury's award deviates materially from reasonable compensation. The court can reverse and order further proceedings on the issue of damages unless the accepts the amount the appellate court deems reasonable. Judicial Influence Upon Jury Judge can question witness only to clarify the testimony, cannot become advocates. When the testimony is complete, the judge can marshall the evidence an present it to the jury in a fair manner. The judge can also relate the evidence to the relevant law. Mercy charge -juries inherently have the power to dispense mercy. However, the prosecution is entitled to a charge that "if you the jury find that the prosecution has established every element of the crime you must find the guilty." NY Court of Appeals has said that "mercy" charges are not allowable. Mixed Questions of Law and Fact In many cases, legal and factual issues are closely intertwined. Where this occurs, normally the judge will tell the jury the applicable law to apply and the jury will resolve the facts. Ex. civil -- reasonable prudent person standard, due diligence, etc. criminal -- probable cause, etc. Real Evidence Real proof -- any tangible, visible, audible evidence presented to the senses of the trier of fact. Real evidence -real proof which was actually involved in the case. ex. actual murder weapon, etc... Demonstrative Evidence -- proof not actually used in the incident, but introduced to help the jury understand an issue in the case. Ex. map, contract, etc.. Real Proof Real proof is the best type of evidence since it is very persuasive, cannot be questioned, and there is no question of creditability. The judge determines whether or not to admit real proof. Motion in Limine -- this is a motion for have a pretrial determination of whether evidence is potentially prejudicial and should not be admitted. If evidence proves to be prejudicial at trial, the judge can charge the jury to strike it from their minds. Procedure: 1) Evidence must be marked for identification (ex. Exhibit A); laying the foundation for admission. 2) The foundation must be established: a) The proponent of the proof must establish that it is authentic. In NY, authenticity must be shown by clear and convincing evidence; i) real evidence -- the chain of custody must be established. This is done by calling witnesses. Especially important for fungible evidence. This requirement is very strict. Ex. blood samples; ii) demonstrative evidence -proponent must establish that the evidence is a fair and accurate rendition of what was purported to have taken place. b) the relevancy of the evidence must be established. That is the propenent must show a prima facie case (that is enough evidence to prevent the other party form sustaining a directed verdict motion). That is it must be established that the evidence is relevant and material. Ex. police officer must testify that bullet was the one that shot. A person can be real proof in a personal injury case or in a rape case. The victim can show the actual injury. This rule also applies to criminal 's. The Supreme Court has said that where a is being used as demonstrative evidence, for ex. showing a tatoo, this does not violate the self-incrimination privilege since the is not considered to be a witness for this purpose. Under this rule, the can even be forced to speak the words a witness alleges the perpetrator spoke, ex. to show a certain type of accent. Note however, that when a person is used as real proof, courts are skeptical when the person's performance is at their discretion for fear of fabrication. Ex. claims to have a limp. Voice Identification -- NY and Federal courts -- a witness can ID anyone's voice if they heard that person speak at least once before or after the event, even in court. [3) Prejudice -- see heading below] Photographs and Film most courts treat this as demonstrative evidence. The proponents must establish that the photos are relevant and are a fair and accurate rendition of the event. Normally need testimony of the photographer or any present when the photo was taken. However, today an expert can testify that his observation of the film/photo indicates it was taken at a set time and was not tampered with. Fed. R. Evid. § 901(b)(9)Ex. bank security tapes. The same rule applies to X-rays. Where a sample of a substance is introduce as real evidence, the proponent has the burden of establishing that the substance is in a similiar state and condition as when the original incident took place and that there has been no cahnge in the substance. Children NY CPLR §4516 -- when it becomes necessary to prove the physical age of a child, the child may be produced and exhibited (as real evidence) for the factfinder's personal inspection. Note that a birth certificate is prima facie evidence of age, but not conclusive. The NY Court of Appeals has construed the statute to say that when the age of a child is in dispute under a statute, if the factual issue turns on the jury determining the age of a child, the age in dispute must be greater than six months. That is, the Court is saying that upon inspection, a jury can only determine the age of the child with an accuracy of six months. Ex. Penal statute says the victim must be 14 yrs. old. The victim/child by his birth certificate is 13 yrs., 8 mos. old. Since the age in dispute is only 4 mos., the child cannot be present as real evidence to determine the child's age. Other Evidence DNA testing -- has only been allowed in by the 3rd Department of the Appellate Division. Blood testing, blood alcohol tests are admissible. Ballistics; Polygraphs, voice stress test -- have not been allowed in, not reliable enough. Test on hair samples to determine drug use -- Weinstein (E.D.N.Y.) this evidence should be allowed in when corroborated by expert testimony. Confessions -- these are considered to be direct evidence. Prejudice the issue of whether evidence goes to the emotions of the jury rather than logically proving the facts of the case. General Test -- does the probative value of the evidence outweigh the prejudicial nature of the evidence. Juror's personal knowledge of the and victim is not necessarily prejudicial. Where there is a stipulation of a certain fact by both parties, then prejudicial evidence can be exlcuded since it will have less probative value. Ex. Parties can stipulate there were 22 stab wounds rather than having color photos of the stabs introduced into evidence. Fed. R. Evid. §403 - although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of prejudice. Very high standard for excluding evidence. NY - civil cases -- weighing test - probative value must be greater than prejudice. criminal actions -- Pobliner Rule (applies to photos only) -- if the evidence is material to the case, then it is admissible unless its sole purpose is to inflame the jury. Under this standard, photos of victims are normally allowed in. But if the number of photos is excessive, then the excess photos will not be admitted. In some jurisdictions, color photos are deemed to be more prejudicial than black and white. Fed. R. Evid. §702 - Expert testimony should be allowed in when it assists the trier of fact. General resemblance cannot be used as a theory justifying the admission of the physical evidence (in this case the actual person). No basis in scientific fact. Specific resemblance may be used; that is that a specific trait is similar, however photos could be used for this purpose. NY Rule -to prove specific resemblance 1) expert testimony; and 2) demonstrative evidence. Prejudice -- Jury NY and Fed. R. Evid. §606(b) -- in a proceeding or inquiry as to the validity of a verdict, jurors can testify as to external influences which may have affected their deliberations, but they may not testify as to what took place in the internal deliberations of the jury. The fact that the jurors cannot testify as to possible prejudice does not mean that the verdict cannot be impeached, simply that other evidence will have to be introduced. Views View -a physical inspection by the factfinder of the scene. These are only allowed under judicial supervision. If not under judicial supervision such a view msy be prejudicial since the factfinder becomes a sort of unsworn (and non-examinable) witness. NY -criminal cases -an unauthorized view is inherently prejudicial and will lead to a mistrial unless 1) the juror can be replaced with an alternate,or 2) an authorized view is conducted. Civil Cases -- Where there is an unauthorized view, the party must establish the such view was prejudicial in order to sustain a motion for a mistrial. NY and Maj. Rule -- a view is not evidence, it simply helps the jury frame the evidence. Authorized view -- CPL §270.50, CPLR §4110-c -- at the discretion of the court. Factors: a) how important is the issue to be viewed, b) can other types of evidence (ex. photos) be used; c) have conditions in the subject area changed? The following parties are normally part of an authorized view (which is almost always conducted in the daytime) 1) jurors, 2) the judge, 3) court officers, 4) the parties (if they wish. There is no communication during the view; all discussions should take place in court. Examples of Internal vs. External Influences NY Court of Appeals -- juror was ill with flu and went out an drank at night. Held: this was an internal issue and jurors could not testify about impairment of juror. Note however that the bartender could be called as a witness. Unauthorized views -Case #1: juror based on a policeman's testimony went into pkg. lot to see if he could interior contents of car through windshields. Juror related his findings to other jurors during deliberations. Held: Internal, jurors could not testify. Held: internal since this was a commonly known fact. Case #2: juror based on policeman's testimony drove van and stopped at stoplight; looked across to see if he could see interior of vehicle in adjacent lane. Held: external influence. Not a fact of common knowledge. How to harmonize Case #1 and Case #2? Special knowledge of jury members -- If a doctor were a member of the jury, he would only be able to relate to his fellow jury members facts which are common knowledge. Demonstrative Evidence evidence which puports to show the trier of fact the party's view of how an incident occurred or additional proof of alleged facts. Must prove authenticity, relevance and non-prejudice in order to have this evidence admitted. Such evidence must be a fair and accurate representation of what occurred. Frequently used in conjunction with expert testimony. Note that dissimilarities between the demonstrative evidence and the facts asserted does not necessarily mean that the evidence is not fair and accurate, but dissimilarities it can be argued may be a reason why the jury should give the evidence less weight. "Day in the Life Films" -these are films puporting to show the condition of a following an injury. Courts look carefully at these films since they are very effective pieces of evidence and are possibly subject to exaggeration. Surveillance films -- these are films by to show 's injuries are not as serious as claimed. The NY Court of Appeals has ruled that these films are discoverable by the other party. Circumstantial Evidence evidence of collateral facts from which the existence of the non-existence of a fact or issue can be inferred. Note that an inference can be based on an inference where the orginal inferred fact has a sufficient basis in fact. Ex. A heard shots, rounds corner and sees B lying dead on ground and C standing holding gun. All of A's evidence is circumstantial. Federal Courts -- circumstantial evidence is admissible and usable by the fact-finder without restricition. NY Courts -- criminal cases -- where the evidence is totally and completely circumstantial, that is there is no real evidence (such as a confession), the is entitled to a: moral certainty charge -- the circumstantial facts must exclude to a moral certainty every hypothesis but the one the is guilty. This is a restatement of the beyond a reasonable doubt standard. Case #1: Y is found in front of bar with X. X has burglar tools. Y charged with burglary. All the evidence is circumstantial. Y hypothesizes he was passing by, unconnected to X. Held: Not a reasonable hypothesis by Y. Case #2: Y is found in front of auto dealership, X is found coming out of dealership (Y propbably was a lookout). Y hypothesizes he was passing by, unconnected to X. Held: Reasonable hypothesis by Y. #2 is different than #1 in that Y was not in immediate proximity to X. admissions -- An admission is a statement by the which does not help the 's defense. these are circumstantial evidence unlike full confessions which are real (direct) evidence. Circumstantial evidence must be weighed to make sure its probative value outweighs any prejudice. Character evidence which establishes one's personal traits. Character is normally circumstantial evidence used to show that the acts which the is accused of where not consistent with his normal pattern of behavior. Character may also be an operative fact in a case such as a libel action. There are three means of establishing character: 1) reputation -- what is the generally held view about the person in the community (need not be geographical, ex. doctor's reputation in medical field); 2) specific acts -- specific actions which indicate something about the , and 3) opinion -- what a particular person thinks of the . Federal -Fed. R. Evid. §405 -- Can only use reputation and opinion to prove character; that is that the acts of the person were in conformance with a certain pattern of behavior. However, evidence of specific acts can be admitted for other purposes such as to prove intent, excuse, etc... Cannot use specific acts to prove character. New York -- can only use reputation to prove character. Usage of Character Character can only be raised: 1) By a about the 's own character in a criminal action (not by the prosecution first); 2) By a about the victim's character in a criminal action; 3) Character can be used to impeach a witness; Character generally cannot be raised by the prosecution on its direct case unless the has made character an issue. Once a raises character as an issue (that is to show the act alleged was not consistent with 's character), the prosecution can bring in any evidence to disprove or rebut the 's character witnesses. However, the prosecution must 1) do so in good faith, and 2) the prosecution's evidence can only go to the character asserted by the and no further. Ex. Where a party uses reputation to establish character, the other party can cross-examine the witness or use other character witnesses to show a different character. Ex. On cross, the witness may be questioned about how long he knew the , how well witness knows the community, and from whom and how many persons in the community the witness has heard about the . Ex. where has introduced character as an issue, the prosecution on cross can ask 's witnesses whether they knew had been previously arrested. The jury would normally be instructed that this evidence could only be used to show how qualified the 's witnesses were to testify as to 's character, and could not be used as evidence that committed the act in issue. NY CPL §60.40(2) -- The prosecution may bring in evidence of 's prior convictions if the offers witnesses to 's good character. brings in witness to testify to peaceful character fo . Prosecution can bring in crime of assault, but not embezzlement. Use of Character -- Fed., 2nd Circuit -- character is only a piece of evidence which could lead to a finding of reasonable doubt in a criminal proceeding. NY Criminal Jury Instructions -- character evidence alone cannot lead to a finding of a reasonable doubt, but it can when accompanied by other evidence. Character -- Defendant as Witness When the takes the stand as a witness, is placing 's character in issue since the is asking the court to rely on the veracity of 's testimony. In response, the prosecution can: 1) Cross-examine the in an effort to impeach 's testimony; 2) Bring in evidence of/witnesses to 's bad character as it pertains to the 's honesty or truthfulness since this has now been put into issue; NY -- can testify as to reputation for truth, veracity; Fed -can testify as to reputation for truth, veracity and opinion of truth, veracity; 3) Evidence of prior convictions may be introduced. Prior convictions show that the has on previous occasions put 's interest ahead of society's and thus may be doing the same in 's testimony. If refuses to unequivocally answer questions about prior convictions, the prosecution may prove them collaterally. 4) Evidence of 's prior bad acts not leading to conviction; NY -- evidence of any prior immoral act may be admitted; However, the prosecution cannot ask about a pending criminal charge against ( not forced to "take the Fifth"). Fed -Fed. R. Evid. §608(b) -- only those acts which relate to the 's truthfulness or honesty. The prosecution can ask about pending criminal charges if the trial court at its discretion allows such, however the can assert his Fifth Amendment (selfincrimination) rights if necessary, though this has a bad effect on the jury. NY & Fed -- Bad acts may not be proven collaterally. That is the court must accept the witness' response as to whether a bad act was committed or not. If lies, may be subject to a separate prosecution for perjury. Ex. where there has been an acquittal, a question about a bad act would be inadmissible since it would not have been asked in good faith. Cannot ask questions about arrest or indictment since they do not prove the act was commited, but a question about the act itself would be permissible. Hearings In admitting in evidence of 's prior convictions as with other evidence, there must be a balancing by the judge of the probative value versus the possible prejudice. NY -Sandoval hearing -- This is a pre-trial hearing, which is held only upon the request of the , in which the probative and prejudicial value of any evidence of 's prior convictions and bad acts the prosecution wants to introduce is weighed. The judge determines what pieces of this evidence will be admissible at trial. If the Sandoval hearing is unfavorable to the , the result can be appealed. NY CPL §240.43 can request from the prosecution before trial all prior bad acts which the prosecution intends to use for purposes of impeachment at trial. This motion is outside the Sandoval. Sandoval Comprimise -A procedure in which the judge regulates the evidence to be introduced in order to minimize the prejudice that may result. Ex. Prosecution may be allowed to ask if prior acts occurred, but not to ask about the underlying reasons and facts behind the prior acts. Fed -Motion in Limine -motion for have a pretrial determination of whether evidence is potentially prejudicial and should not be admitted. If the result of this motion is unfavorable to the , the cannot appeal directly and must testify and be impeached at trial in order to appeal. Factors: 1) Class of Crime -- Fed. R. Evid. §609(a) -- (1) evidence of any felony committed by the is admissible if probative value outweighs prejudicial effect; (2) evidence of any crime, no matter what the punishment, involving dishonesty or false statement is admissible. Fed. R. Evid. §608(b) -evidence of bad acts is generally inadmissible except when such acts are probative of truthfulness or honesty. NY -any crime is admissible but all are subject to a Sandoval hearing. 2) Time elapsed since the convictions a) Federal -- Fed. R. Evid. §609 -- (b) 10 yr. limitation on prior convictions; (d) in criminal proceedings, prior juvenile proceedings are not admissible, but they may occassionally be admissible in civil cases; b) NY -no time limit, probative value balanced against prejudice; juvenile adjucations are not admissible as prior convictions, but may be admissible as bad acts. 3) Similarity between the bad act/prior conviction and the character issue in question. If the bad act/prior conviction crime is similar to that the is charged with, it may be extremely prejudicial since the jury will think that since committed the same crime once before he has a criminal propensity to do it again. Scales weighed against admittance. 4) In the case of the the character issue is honesty, that is has the previously place his interest ahead of society's. Ex. If the prior act/crime was one of passion, it may be inadmissible since it does not show a deliberate intent to act against society. Character - Victim Reptutation -- Fed. only -- Fed. R. Evid. §404(a)(2) -- can be used as proof of a victim's character. Ex. victim's general reputation for violence could help establish a defense of self-defense by infering that the victim was the likely agressor. NY -- reputation cannot be used as proof of a victim's character. State of Mind -NY & Fed. -- If the knew of the victim's reputation, then evidence of reputation would be admissible as to proving the 's state of mind, not the victim's character. Otherwise, NY does not allow reputation. Specific Acts -- cannot be used to establish character. NY & Fed. -- Can be used to establish state of mind. Fed. R. Evid. §405(b) Ex. Victim threatened 's life, however, was not aware of threat. shoots victim. Evidence of the victim's threat (specific act) would be admissible as to proving that the victim was the likely agressor. The prosecution can in response produce evidence of victim's good character. Character - Sexual Assault Victim Reptutation -- NY & Fed. -- NY CPL §60.42 & Fed. R. Evid. §412(a) -Victim's reputation for past sexual behavior or opinion evidence proving such character is inadmissible. Policy: Reputation does not prove victim was more likely to have consented to 's act. Bad Acts -These cannot be used to establish character. But can be used to rebut evidence of good character. Rebuttal: NY -can be used to show 1) the victim's lack of veracity if victim is a witness or 2) the victim's lack of morals if these are relevant to the defense and used for purposes of impeachment. Fed. R. Evid. §608(b) -- only those acts which relate to the victim's truthfulness or honesty and only used for purposes of impeachment. Specific Prior Sexual Acts NY CPL §60.42(1) - only that evidence which proves or tends to prove that the victim had prior sexual conduct with the accused is admissible. Note that such acts would normally only be relevant if the 's defense is one of consent. §60.42(2) prior convictions for prostitution within the last three years from date of crime alleged. Only be relevant if the 's defense is one of consent. §60.42(2) in the interest of justice -the trial court has discretion in admitting such evidence if it is relavant and essential to its determination. Fed. R. Evid. §412(b) -- Specific prior sexual acts are not admissible except: (b)(2) -- evidence of past sexual behavior with raised as part of a defense of consent; shows that victim was more likely to consent; prior false allegations of sexual offenses; sexual relations with other persons which may show the is not the source of semen. Under this rule, the defense must make a pre-trial motion to offer such evidence of the victim's character. Character - As an Issue & Habit All jurisdictions -Where character is an issue in an element of a crime, then any evidence is admissible which proves such character. This means that in federal courts the §404 limitations do not apply. Specific Acts (all jurisdictions) may be used to prove character when it is an issue in the case. Ex. the competency of a driver is a character issue which is an element in a crime of negligent entrustment of a motor vehicle to such driver. Here character is not circumstantial evidence. Habit -repetitive pattern or routine practice of a person; that is the person responds in a consistent way under similar conditions. Fed. R. Evid. §406 -- if proven, this evidence is admissible. NY -Halloran v. VA Chem. (pg. 1062) -Habit allowed as circumstantial evidence where the person possessing the habit was in total control of the situation or instrumentality. Ex. document was lost. Party wanted to establish the att'y was in habit of completing the form leading to inference that form was completed. Held: admissible. Ex. injured getting on streetcar. wanted to establish that was in habit of jumping on streetcar. Held: inadmissible, was not in complete control of situation. Other independent variables. Repetitive conduct in the business context is admissible as habit in Fed. & NY courts. Prior Alleged Crimes As Evidence (not character) NY & Fed. R. Evid. §404(b) -- Prior alleged crimes by a party can be used to establish: 1) Motive; Intent; Absence of Mistake; Identity; Common Scheme. (Molineux (61 N.E. 286) test from Zackowitz case on pg. 953.) The concept is that a prior crime must be relevant to proving one of these elements. This evidence can be used when the prior crime is inextricably interwoven with the crime alleged based on the above elements. Ex. Zackowitz (pg. 953) -accused of intentional murder. possessed guns in gun rack at home which of itself was a crime. Held: not admissible; possession did not prove intent to murder. Needs more of a connection. The probative value was outweighed by the prejudice of finding a criminal propensity. Must still weigh the probative value of such evidence against its prejudical consequences. The evidence must not be used to establish a 's criminal propensity. NY -if the prosecution intends to use evidence of prior crimes, then there must be a pretrial hearing known as a : Ventimiglia Hearing -- In order to gain admittance of prior alleged crimes, the prosecution must show: 1) Relevancy of the evidence; 2) The other crime must be established by clear and convincing evidence. 3) The probative value of the evidence must outweigh the prejudice. Note that these are not prior convictions, otherwise they would be admissible. If the other crime resulted in an acquittal, then NY will not allow it to be admitted under an estoppel doctrine. Fed -- Motion in Limine -- the prosecution must show: 1) Relevancy; 2) Fed. R. Evid. §104(b) - the judge must be satisfied that from the evidence presented a jury could find the existence of the other crime by a preponderance of the evidence. (Huddleston, pg. 1004-5) In the Federal Courts, even if a has been aquitted, the crime can still be used a a prior alleged crime in another case since the standard of proof is lower; that is rather than beyond a reasonable doubt, preponderance of the evidence. The Supreme Court has held the neither the Double Jeopardy Clause or Due Process Clause bar the admission of this evidence. (Dowling, supp. pg. 523) 3) Fed. R. Evid. §403 The evidence is admissible unless the probative value is substantially outweighed by the prejudice (higher standard for exclusion). A) Motive - where the prior alleged crime provides the motive for the crime in question; ex. Officer sees with mask and bag of money. Officer gives chase and shoots officer. Prosecution can bring in evidence of the robbery since it shows the motive behind the shooting; B) Intent -- alleged prior crime helps to establish the intent behind the subject crime; ex. is counterfeiter. Claims at trial he did not know money was counterfeit and did not have intent to pass illegal bills. Prosecution can establish that the had been seen counterfeiting money on 20 previous occasions. Repetition of the bad act probably shows the was acting in bad faith and while not proving intent, it does help to disprove lack of intent. C) Absence of Mistake -- used to rebut 's claim that there was no intent since action was done under a mistaken belief; ex. claims that wife asked him for medicine and accidently gave wife poison. claims mistake shows lack of intent. Prosecution can introduce evidence that 's other wives have all died the same way. Thus 's actions probably not accidental. D) Common Scheme or Plan -- sometimes several intermediate crimes must be committed as a way of acheiving the ultimate goal. Ex. is third in line of inheritance in a will. kills the two people in line ahead of him. only tried in one murder. Prosecution can use the other murder to show that the murder charged was part of a common scheme to gain inheritance. E) Identity -- Fed. only -- where there is a unique modus operandi used by a person, that can help establish the identity of the as the perpetrator. Ex. Rapist has a certain pattern, uses certain lingerie. Also used the same means to gain access. In the particular case, the same method was used and thus the court allowed in evidence of the prior crimes for purposes of identification. Be careful to note which prior alleged crimes or evidence of such actually establishes one of the elements. Ex. Murder -1 says "let's take him to the beach after we kill him" and 2 says, "where we put the others." A court would allow only 1's statement since it alone proves intent. 2's statement indicating prior crimes would not be admissible. EX. 1 says, "lets put this body where we put the others." This statement would be evidence of prior crimes and would be admissible to establish intent in the present crime. Certain types of alleged prior crimes will normally not be admissible unless the raises the issue. That is if there is no issue of intent as an element of the crime, then any evidence of prior crimes bearing on the issue of intent is inadmissible. Ex. prior drug convictions -- normally not admissible, prejudicial (criminal propensity) and there is normally no issue of intent. But where a raises the defense of entrapement, the issue of intent is put into play and the prosecution can bring in prior alleged crimes. Exceptions -- Certain types of prior crimes are admissible without proof that they fit into one of the five Molineux categories: 1) illegal alleged threats against the victim; 2) evidence of prior attempt at the same crime; Evidence of an indictment can be used as evidence of a motive even without proof of the indicted crime being offered. Ex. A indicted for battery of B to which C is the only witness. A kills C. Prosecution can introduce A's indictment as evidence of motive. NY Court of Appeals -other civil cases can be used elements of a crime. to show the Other Areas of Circumstantial Evidence Conciousness of Guilt Acts by the alleged guilty party which lead to the inference that the person committed the act. a) false alibis/statements -- usually occur in criminal cases, show that the may have been acting wrong; b) fleeing from the scene of the act; c) changing appearance; d) bribing witnesses; e) destroying evidence; NY -these categories are very weak probative circumstantial evidence, but may help prosecution some. There still must be a Molineaux analysis to make sure the evidence is probative. Ex. robs bank & shoots teller, takes money. runs out to street, knocks out police officer who tries to apprehend her. is charged only with shooting teller. Evidence of robbery is admissible since it is inextricably interwoven and is evidence of motive, also, 's flight show conciousness of guilt. Evidence of assault on police is not admissible, does not explain motive for shooting. NY -a statement by a claimed "accomplice" is not enough to convict a . Not enough even with circumstantial evidence of conciousness of guilt. Even if the has an explanation for flight or other evidence of conciousness of guilt, this evidence is still weakly probative. The can offer his explantation in rebuttal at trial and the jury can weigh both pieces of evidence. Ex. in front of crime scene runs when police come. claims ran because was on probation and should not have been there. The prosecution can still offer the evidence of flight as indicating conciousness of guilt even though had an explanation. was committing a wrongful act anyway. Membership The fact that a is a member of an organization may indicate that shares its goals and may prove intent or motive. Special Knowledge If the has knowledge of facts only the perpertrator would know, this may be admitted as circumstantial evidence of guilt. Prior Incidents in a Specific Area Evidence of prior incidents in a specific area may be evidence of a dangerous or other permanent condition. In order to be admissible the evidence must consist of: 1) Many prior incidents at a certain location; and 2) Proof that there was no substantial change in the condition of the location where the incident in question occurred from that which existed at the time of the prior incidents. Evidence of Repairs Fed. R. Evid. §407 & NY -- evidence of subsequent repairs is not admissible to prove negligence or other culpable conduct except that such evidence can be used to for other purposes such as to prove ownership, feasibility of precautionary measures, or impeachment. Policy: Do not want to discourage repairs. Evidence of Change in Design Fed. -- cannot be used in negligence cases; 2nd Cir. (split Cirs. Sup. Ct. has not ruled) -- cannot be used in strict product liability cases involving design or manufacturing defects even though there is no requirement of culpable conduct as applies under §407. NY -can be used in strict product liability cases involving manufacturing defects. (smaller scope) Cannot be used in SPL cases involving design defects. Evidence of Insurance Fed. R. Evid. §411 & NY -- Evidence of insurance is not admissible. Policy: Wnat parties to carry insurance to compensate 's for injuries. Evidence of Custom and Usage Evidence of custom and usage is admissible to show that deviation from such practice is evidence of negligence. Evidence of Person's Acts as to the Person's State of Mind Evidence of a person's acts can be used to prove that a person was insane for example. But the admissibility of this evidence is determined on a case-by-case basis depending on the facts of the case and the particular evidence. Examination of Witnesses Trial: 1) Selection of Jury; 2) Judge makes opening statement to jury; required in NY; 3) Opening statements by the Attorneys, the party with the burden of proof opens first. In NY, the prosecution must make an opening statement. 4) The or prosecution presents its direct case first, followed by the or defenses direct case. 5) Then the presents its rebuttal and the presents its rejoinder. 6) Closing, done in reverse order of opening, thus the prosecution or party with the burden of proof closes last. 7) Jury Instructions -- Required in NY in civil and criminal cases. Direct Examination -- The party calling the witness goes first. The witness is asked to give a narrative description of events. The attorney cannot ask the witness leading questions except: 1) The witness is a child; 2) the witness has given testimony but has exhausted his/her memory; Fed. R. Evid. §611(c). 3) the witness is hostile and thus may not freely give information, in this case the court can determine a) the witness is hostile to the party and b) hostile to the court and thus leading questions are allowed. Cross Examination -- the other party questions the witness to turn up inconsistencies or to impeach the witnesses direct testimony. Leading questions are allowed. Cross examination should be limited to the subject matter of the direct examination or matters affecting the credibility of the witness though the court at its discretion may permit a broader inquiry. Fed. R. Evid. §611(b). Leading questions -- questions stacked full of facts and only requiring an affirmative or negative response. Note that if impeachment occurs during the cross examination, the witness can be rehabilitated during the redirect. This process continues until all avenues or the judge is exhausted. and have the right to call any witness and the right to have the court subpoena witnesses. Sequestration -- Either party can have a witness sequestered, that is held outside the courtroom until their testimony is requested. Reasons: Do not want witnesses to hear attorney's questions and also do not want witnesses to change their testimony. Fed. R. Evid. §615. There is some case law which says that expert witnesses who are needed at the table in order to inform the attorney during the proceedings cannot be sequestered. The parties have a right to be present during the trial unless 1) party is mentally incompetent; or 2) the party is a minor who cannot participate in his/her own defense. Witnesses - Refreshing Where a witness has lost memory; NY -- An attorney can use any material to "refresh" the witnesses testimony except for hypnosis. While anything can be shown to the witness, the aid must be removed and the witness must recall events from his rejuvenated memory. Parroting or repeating what the witness was shown is not admissible as testimony. Fed. R. Evid. §612 -- if a witness uses a writing to refresh his memory for purposes of testifying, then the adverse party is entitled to have the writing produced, inspect it, cross-examine the witness on it, and have the relevant portions introduced into evidence. Past Recollection Recorded In order to use a prior writing by the witness, a foundation must be established; 1) The witness must not be able to remember or recall the fact; 2) The witness must be able to testify the it was he who wrote the document, or saw the document; 3) Witness must be able to testify that the document was an accurate representation of what the witness wrote or saw; 4) The document must have been written contemporaneously with the event. Contemporaneously has been liberally defined as being within 30 days of the occurence. If all the requirements are met then: NY -the document would be admitted into evidence as a truthful statement of the witness; Fed. R. Evid. §803(5) -- the document may be read into evidence, but cannot itself be admitted unless the adverse party moves to have it introduced. Ex. -NY Court of Appeals -- where a desk officer took a phone call from a witness and wrote down the license number the witness gave, that paper was held not to be admissble as a past recollection recorded since the witness never saw the writing to verify its accuracy. Impeachment undermining the credibility of a witness. NY -a party cannot impeach a witness it calls. This applies even if the witness is hostile. (See prior statements on Outline pg. 22 for exception.) Fed. R. Evid. §607 -- any party including the party that calls the witness may impeach the witness. Note that a party is not bound by the answers of witnesses it calls. 1) Prior Convictions -- NY -- any prior conviction can be used to impeach credibility; This evidence is not subject to a Sandoval hearing since that is only available to criminal s. Criminal proceedings -- CPL §60.40(1) -- may be proved by collateral evidence. proceedings -CPLR §4513 -- may be proved by collateral evidence. There still is a balancing of probative value versus possible prejudice, but judges rarely disallow evidence of prior convictions. Fed. R. Evid. §609(a) -- (1) evidence of any felony committed by the witness is admissible if probative value outweighs prejudicial effect; (2) evidence of any crime, no matter what the punishment, involving dishonesty or false statement is admissible. Federal courts are split on whether dishonesty must be an element of the crime itself, or whether is must simply be a part of the commission of the crime (2nd. Cir. view). 2) Prior Bad Acts -these cannot be proven collaterally and the witnesses answer is dispositive though if the witness lies, the witness can be tried in a separate perjury prosecution. Fed. R. Evid. §608(b) -- evidence of bad acts is generally inadmissible except when such acts are probative of truthfulness or honesty. NY -- any crime is admissible; not subject to a Sandoval hearing. 3) Bad Character Witnesses on the issue of truth or veracity; normally used only during in rebuttal; NY -can testify as to reputation for truth, veracity; there is no Sandoval for these witnesses; Fed -can testify as to reputation for truth, veracity and opinion of truth, veracity; 4) Establishing Bias In a Witness -- Common Law right -a showing of why the witness was not testifying accurately/truthfully. This can be established by collateral evidence. Ex. witness was a member in the same organization as and could not tell the truth. 5) Questioning the Witness' ability to observe and recall events; This can be established by collateral evidence. Ex. Witness was drunk, impaired, etc... Prior Statements Note: this is the only means that a party in NY can impeach its own witness with. These statements can be used to impeach any witness and can be proven collaterally. Procedure: **NY -- prior statements can only be used for impeachment purposes. Cannot be used as evidence nor can they be used to establish character..** CPLR §4514 (civil) & CPL §60.35 (criminal) --- If the statement is in writing and signed by the witness or was made under oath, the witness must be shown the writing (no suprise); if oral, the witness must be told the time and place where the witness allegedly made the statements. The inconsistent (and only inconsistent) statements may then be used to impeach the witness. Under CPL §60.35(3) (criminal), there is a third requirement, that is the the testimony offered by the witness must tend to disprove the position of the party questioning him. (Thus a statement by a witness that she "does not recall" cannot be the basis for admitting a prior inconsistent statement since it does not "tend to disprove.) If these three requirments are not met, the statement may be used to refresh the witness' memory, but must not be shown or disclosed to the jury. In NY, if a prior statement contradicts the testimony of the witness, then they essentially cancel each other out. The statement is not admitted into evidence. Civil Fed. R. Evid. §801 -- prior statement given under oath in a hearing, trial, deposition or other proceeding is admissible if: (d)(1)(A) -- it is inconsistent with the witness's testimony. In such case the statement will be admitted in as a truthful statement by the witness. **This means that in federal court a prior statement that is inconsistent can be admitted as evidence to establish facts, not simply impeach. Thus a jury can choose to ignore the witness' testimomy and use the prior statement as a basis for its finding. This is an important difference from NY. §613 -can use prior statements to impeach the witness and need not show the statements to the witness. Rehabilitation -Fed. R. Evid. §801(d)(1)(B) -if the prior statement is consistent with the witness's testimony and is used to rebut a charge of recent fabrication or improper influence or motive it is admissible. Where a prior inconsistent statement is obtained by unconstitutional means, it is suppressed as evidence, but can be used only for impeachment purposes since the is asking the court to rely on 's testimony. NY -Rape Cases -- the prosecution in its direct case can introduce evidence that the vicitm made a prompt complaint though the facts of the complaint cannot be revealed. This helps give the victim credibility and under normal rules would not be admissible. The prosecution can also bring in experts on rape trauma syndrome to explain the victim's reticence to testify and also the victim's denial complex.