1. General Info:
a. Anything can be admitted as evidence as long as it is relevant (makes a fact at issue more or less probable)
b. Judge decides what evidence may enter and the jury decides what weight to give to the evidence
c. Exclusionary Rules
i. Sometimes highly relevant evidence is withheld from the jury
1. Ex. Inflammatory photos of a victim of a murder
ii. Hearsay is generally not permitted in court
a. Cannot judge the credibility of the witness
b. Cannot cross-examine the witness
2. There are many exceptions to the hearsay rule
a. Exception when there are special indications of truthfulness and therefore reliable
d. Federal Rules of Evidence
i. New York does not have their own rules of evidence
1. Get NY rules of evidence from the criminal code, common law, CPLR and the civil rights law
e. Immaterial Evidence
i. Evidence is relevant but as a matter of law is unprovable
ii. Ex. Workers Comp case
1. Employer may not prove contributory negligence of the employee
f. Incompetent Evidence
i. Remember that evidence cannot be competent or incompetent BUT a witness can be incompetent as a
1. Ex. Priest
a. May not testify as to what another told him in confidence by a person seeking spiritual
g. Inadmissible Evidence
i. Evidence kept out by an exclusionary rule
1. Ex. Hearsay
2. Chapter 1; Judicial Notice
a. General Info:
i. Judicial Notice does away with the need to produce evidence
ii. Definition: Information that the judge possesses
1. Some facts relevant to the cause of action that are undisputable or of common knowledge to a
rational person. The judge may charge a jury that they MUST accept the fact.
a. Ex. Distances, existence of a country, dates
2. The fact must be contained in a source that is indisputable
iii. Purpose is to save time and promote efficiency
iv. May be used in criminal cases but there are constitutional limitations
b. Hunter v. NY
i. Question: If a judge is a witness to an accident, can he charge the jury with what he saw?
1. NO, because it is not indisputable
ii. In this case, the judge took judicial notice of the average height of a male human being
iii. This case was the 1 time that judicial notice was taken on appeal Judicial notice can be taken on appeal
c. US v. Jones
i. This is a federal criminal case
ii. D argued that the government did not prove that S. Central Bell was an interstate common carrier at the
trial and therefore he cannot be charged with wire tapping since not every element of the crime was proved.
The gov. asked that judicial notice be taken of the fact that S. Central Bell was an interstate carrier since it
is Common Knowledge.
iii. Ct. held that the fact is a proper subject for judicial notice since it was a matter of common knowledge BUT
the government never asked the court to take judicial notice of the fact and the judge did NOT take judicial
notice of the fact during the trial on his own.
1. Issue: Can judicial notice be taken in a criminal trial on appeal?
i. Although judicial notice can be taken at any time during a proceeding (FRE
201(f)), FRE 201(g) states that the jury must have an opportunity to accept or
reject a judicially noticed fact in a criminal case.
1. *Rule: In a criminal case, the jury is NOT required to accept a
judicially noticed fact.*
2. Rule: In a civil action, the court instructs the jury to accept as
conclusive any judicially noticed fact.
ii. In this case, the jury was never given the chance to accept the fact or reject it and
therefore it cannot be judicially noticed on appeal.
1. RULE: In criminal cases, a fact cannot be judicially noticed after
the trial on appeal.
i. D has a right to a jury trial to determine every
element of the crime charged in the Constitution.
b. Rule is the same in NY
d. People v. Jones
i. D was caught selling Darvocet which is not a crime. All controlled drugs are listed by their chemical names
in the law prosecution must prove that the darvocet is dextropropoxyphene.
ii. Prosecution’s expert testifies that Darvocet is propoxyphene, which is not controlled and the D does not cross-
examine. Trial judge then takes judicial notice that propoxyphene is the same as dextropropoxyphene based on
info he got from an unidentified source and the PDR.
1. The Ct. of Appeals overturned the conviction
i. There was no proper taking of judicial notice.
1. The sources relied on the judge are unacceptable
2. Not true that propoxyphene is the same as dextropropoxyphene because
there is also levopropoxyphene which is not controlled
3. Judicial notice was taken too late because D did have a chance to
challenge it since the judge took notice after the parties rested
4. Judge did not tell the jury that they may accept or reject the fact
e. Viemeister v. White
i. This case deals with a legislative fact (is the statute in question unconstitutional)
ii. P argued that a statute that requires all students to be vaccinated was unconstitutional
1. Ct. held that statute was constitutional
a. Court took judicial notice of legislative facts regarding vaccinations and therefore found the
statue had a rational basis for passing the statute and therefore it is constitutional
i. Legislative Facts:
1. Vaccination tends to prevent the spread of smallpox and renders the
disease less dangerous to those who contract it.
f. Michael M. v. Superior Court of Sonoma
i. The court held that the a state statutory rape statute was constitutional even though it only punished males
1. Took judicial notice of legislative facts and held that the state acted rationally in passing the statute
i. Females suffer the majority of the consequences and that serves as enough of a
ii. Males do not have an inherent deterrent therefore the state must provide one
g. Judicial Notice of Law
i. Judges are charged with knowing all the law of the U.S., states, codes, and localities.
ii. Judges may take judicial notice of:
1. Private Acts
2. Resolutions of Congress
3. Resolutions of state legislatures
4. Regulations and Rules of the U.S. (Tax Code)
5. Law of foreign countries
iii. RULE: Judges can be forced to take judicial notice if:
1. There is a request for judicial notice
2. Judge is furnished sufficient information
3. Notice is given to the other party
iv. If a party proves to the judge what the law of a foreign country is, the judge must accept it
3. Presumptions of Law
a. General Info:
i. Partially does away with the need to produce evidence
ii. From the proof of fact A, the jury must find fact B exists even though no evidence as to fact B is presented.
iii. Why have this rule:
1. Some elements are hard to prove but are probably true if another fact is found to exist.
iv. In a civil trial, a presumption must be taken by the jury
v. All presumptions are rebuttable by actual evidence.
vi. The P may have evidence of a fact, but still ask for a presumption of fact in case the jury does not believe the
b. Legille v. Dann
i. P’s foreign application for a U.S. patent was mailed on 3/1/73 and must be received by the patent office by
3/6/73 in order to get the earlier foreign filing date as his U.S. EFD. The application is not received until
3/8/73 and P cannot get the earlier foreign filing date as his EFD.
ii. P relied on the presumption of the regularity of the mail system.
1. Evidence that the course of the post is 2 days.
2. Trial Ct. took judicial notice of this presumption.
iii. On appeal of summary judgment for the P, the Patent office rebutted the presumption of the regularity of
the mail by offering evidence of their office practice of date-stamping application on the day that they are
received which relies on the presumption that the patent office follows their office practices in every case.
1. Conflict between the 2 presumptions
a. The courts apply the “bursting bubble” doctrine which states that 2 conflicting
presumptions cancel each other out and the case has to go to trial
i. FRE creates the “bursting bubble doctrine”
ii. Does not apply in NY
c. Piwowarski v. Cornwell
i. NY Presumption: A bailee’s failure to deliver property is evidence that bailee was negligent or the bailee
converted the property
1. The bailee then needs to rebut the presumption
ii. Presumption: If P can prove that D owns car that collided with him, there is a presumption that the car
was in use with D-owner’s consent at the time of the accident.
iii. In this case, the D is trying to rebut the above presumption by presenting evidence that D-driver had
permission to use the car in one town and not in the town where the accident occurred.
1. The rebuttal was proven at trial, but the jury found D-owner liable even though the presumption was
rebutted. The jury’s rejection of the rebuttal cannot be overturned on appeal.
a. If “bursting bubble” doctrine applied, then it would be assumed that the presumption was
rebutted and both presumptions would cancel out.
iv. Rule: State law presumptions still apply in federal court (FRE 302)
d. Schelberger v. Easter Savings Bank
i. D-insurer claims insured death was a suicide and therefore they do not need to pay out
ii. Rule: There is a very strong presumption against suicide.
1. D must have clear and convincing evidence of suicide in order to rebut the presumption.
2. There is no presumption against attempted suicide because the person is still alive to tell their story.
iii. D presents evidence that the coroner ruled the death a suicide, decedent took 40 barbiturates. P presented
evidence decedent had taken OD for recreation, decedent was socially involved the night of his death and
there was no suicide death.
iv. Jury found there was NO suicide and rendered verdict for P.
1. If decided by federal law, “bursting bubble” doctrine would apply and presumption would be
v. Rule: There is a very strong presumption of validity of marriage
1. The marriage must be established (change of last name, living together, etc.). Once the marriage
was proved, it is presumed to be valid.
e. People v. Rodriguez
i. D testified at his own trial that the cops set him up. At the time of the event, D, his wife and a friend were
present. Only D and the friend testified on behalf of D.
ii. Rule: A D is never required to testify on his own behalf at trial (5 Amendment).
1. The Prosecutor cannot comment if a D does not take the stand
2. A D is not even required to call any witnesses to testify on his behalf.
a. Again, the prosecutor cannot make a comment if D does not call any witnesses
3. BUT if D testifies and he refuses to call a witness under his control (a witness that would have a
tendency to favor the D) a judge can instruct the jury that they MAY draw a negative inference
by not calling a witness under D’s control (MISSING WINTNESS RULE)
a. The negative inference that the jury may draw is that the witness not called would NOT
have supported the D’s case (civil cases) or their testimony would be unfavorable to the D’s
case (criminal cases)
i. D volunteered his own testimony and called other witnesses and present evidence
in his behalf (D opened the door by taking the stand)
c. If a witness is not called and that witness is not under the control of either party involved,
no inference can be drawn against either party.
d. Prosecution has control of police officers if prosecution does not call a cop involved, an
inference is drawn against the prosecution.
i. Victim of a crime is also under the control of the prosecution unless the victim
has NO knowledge
1. Spouse of a victim is also under the control of the prosecution if the
spouse has knowledge of the event
e. A current employee is under the control of his employer, but the control ends as soon as
the employee leaves the employment
f. If P called D to testify as P’s own witness in a civil case, the D is required to testify even
if the civil case will give rise to a criminal action. If P asks the D if D caused the
damage and the D refuses to answer, the jury may draw a negative inference against the
D. Also, if the D in a civil action never takes the stand on his own behalf, a negative
inference can be drawn.
g. If a party to an action calls a witness under its control and the witness is unavailable or
takes the 5 , no adverse inference can be drawn. BUT, if a witness just refuses to come to
court because he claims that it makes him uncomfortable, an adverse inference may be
drawn against the party who controls the witness if they did not subpoena him or have a
warrant issued for his arrest.
f. County Court v. Allen
i. D was stopped for speeding (valid reason). Cop saw handguns and ammo through the window in a handbag.
D claims the guns were only in the possession of the girl in the car and that he had no knowledge of the guns
being in the car.
ii. The judge instructed the jury that they MAY infer from the presence of the guns that all people in the car
possessed them (NY statute lays out the presumption)
1. D challenges this presumption as being unconstitutional since it effectively shifts the burden to the
D to prove their innocence.
a. On appeal, the federal court held that the fact that the charge gave the jury a choice to
accept the presumption or reject it made it constitutional Not mandatory
2. D also argues that the presumption is not invariably true (ex. Cases of hitchhikers)
a. Court rejects the argument and states that the presumption applies on a case-by-case basis
and that in this case its application was appropriate
g. Francis v. Franklin
i. D escaped custody during a dental appointment. D did not try to shoot his hostage when she escaped and D
did not harm another who refused to hand his keys over. D claims that the decedent slammed door on him
and cause his gun to accidentally go off and kill decedent. D charged with intentional killing.
ii. Judge charges the jury that “the acts of a person of sound mind and discretion are presumed to be the
product of the person’s will, but the presumption may be rebutted.”
1. The court holds that the charge is unconstitutional since it relieves the prosecutor of proving D’s
intent. And also because the charge makes the jury think that they MUST accept the presumption
and this is not constitutional.
4. Burden of Proof
a. General Info:
i. Definition: The things that a party must prove; usually laid out in a statute or substantive law
ii. Remember that in criminal cases, the prosecutor carries the burden of proving every element of the crime
charged beyond a reasonable doubt.
b. Gordon v. Bialystoker
i. In cases where a gift giver wants to get the gift back, the gift giver has the burden of proof on the wrong
circumstances surrounding the gift giving (ex. false misrepresentation, undue influence).
1. The burden in this case is by the “preponderance of the evidence”
ii. Decedent was transferred to D nursing home after discharge from hospital. D had decedent sign withdraw
slips for care and for a donation (gift). The donation was more than the amount she owed for services.
Estate claims the gift was obtained unfairly since decedent was incompetent.
1. Normally, the P-estate would have the burden of proving the undue influence and fraud, BUT not
in circumstances such as this where there is a fiduciary relationship (decedent was helpless and
relied on D for her care).
a. D must prove that decedent was mentally capable and that they did not obtain the funds
fraudulently by clear and convincing evidence.
iii. A judge may change an established level of burden of proof.
c. Rinaldi v. Holt
i. Judge was accused of being corrupt and incompetent in a newspaper article. Usually the D must prove the
statements that were made were true in libel cases.
1. Usually, all P must do is to show that they were defamed.
2. BUT, in this case the P MUST prove the falsity of the statements since he is a public figure and
the statements refer to his public life. P also MUST also prove actual malice on the part of the D.
a. P’s burden is by clear and convincing evidence.
b. This exception applies to all public officials.
d. Patterson v. New York
i. Cases dealing with constitutionality of affirmative defenses.
ii. D was charted with 2 degree murder, but raises the affirmative defense of EED.
1. D must prove EED, but the prosecutor can try to disprove EED
2. Rule: All affirmative defenses place burden of proof on D by the preponderance of the evidence.
iii. D challenges the constitutionality of requiring a D to prove the affirmative defense of EED
1. S.Ct. rejects this argument and holds that it is constitutional
a. Distinguishes this case from Mullaney
i. Mullaney held Maine’s murder statute unconstitutional.
a. Statute contained a presumption that the offense was
committed with “malice aforethought”. Allowed D to rebut
the presumption by proving D acted in the heat of passion on
i. This relieves the prosecutor from having to prove
“malice” and puts burden on D to disprove the
ii. *Also, the lack of EED is NOT an element of the
crime. Therefore, NY is not required to prove non-
existence of an affirmative defense as an element of
iii. NY statute does not include this presumption
b. Statute contains “malice” to being with. The inclusion of
malice implies no EED
i. NY statute does not include “malice” as an element
of the crime.
iv. Other affirmative defenses in NY:
1. Entrapment: crime conceived by police who convinces another to commit a crime.
a. If D can prove, he is found totally innocent.
b. The D MUST prove that he was not predisposed to commit the crime
i. This is hard for D to do, especially in narcotic cases
c. Ex. FBI agent posing as an immigrant; agent bribes Congressman to introduce special
legislation to allow them into the country as a citizen
i. This is NOT entrapment
1. Congressman immediately accepts the cash did not resist at all
d. Ex. Dolorian took a deal to sell cocaine for undercover FBI agents. Dolorian did not
want to do it, but did it so that he could pay off factory loans
i. Ct. held that this was entrapment
2. Insanity at time of the commission of the crime: due to a mental disease, D did not recognize the
consequences of his actions
a. Used to be a defense (D only need to raise, but not prove; makes the defense an element of
the crime), but changed to affirmative defense in the 1980’s.
b. Now D MUST prove insanity by clear and convincing evidence in federal court.
c. In NY, D only needs to establish insanity by preponderance of the evidence.
3. Insanity at the time of trial and therefore incompetent to stand trial
a. In NY, prosecutor must prove D is competent by preponderance of the evidence.
b. In federal court, D must prove incompetence by preponderance of the evidence.
e. People v. Downs
i. Case dealing with defenses
ii. D was asleep and was awaked by a sound; D grabbed his gun and found victim and D’s wife in either
adultery or rape; scuffle between D and victim and the gun went off and victim was killed.
iii. D’s defenses:
b. Defense in both federal and NY courts
2. Accident discharge of the gun
b. Defense in both federal and NY courts
iv. In this case, jury was charged that it was the D’s responsibility to excuse himself by providing/proving
1. Ct. held this was unconstitutional since there is an assumption of murder that the D must then
overcome. This shifts the burden to the D to establish his defense and this is unconstitutional.
f. People v. Huntley
i. Issue of use of confession against D at his trial
1. Def of confession: direct acknowledgment of guilt of crime
2. Def of admission: statement of fact made by a party out of court that is opposite of what the party
claims in court.
ii. Involuntary confessions are NOT permitted in any U.S. court regardless if they are reliable.
a. Suspect may make a false confession to stop police from beating them or torturing them.
2. When police do not read Miranda rights to a person under arrest, it is considered to be an
iii. Process of determining whether a confession is involuntary in NY
1. D makes confession and later claims it was involuntary
2. Judge makes initial decision outside of jury presence prior to trial
a. At this hearing, prosecutor must prove confession was voluntary beyond a reasonable doubt
to the judge.
i. Must prove Miranda rights were read and the D was not coerced to give
3. Once judge makes decision that the confession was voluntary, it can be presented to the jury for
a. The prosecutor must again prove that the confession was voluntary beyond a reasonable
doubt before the jury can begin to give any consideration or weight to the D’s confession.
i. A jury may find the confession voluntary but still false and not give the
confession any weight at all.
g. Lego v. Twomey
i. Process of determining whether a confession is involuntary in federal court
1. D makes confession and later claims it was involuntary
2. Prosecutor must prove by the preponderance of the evidence that the confession was voluntary.
3. Judge does not have to instruct the jury that they must find voluntariness before it can give any
consideration or weight to the confession.
a. Does not give as many right to D as NY rule
h. NY law on the burden of pleading and proof of contributory negligence in a civil action
i. P does not have to prove their lack of contributory negligence in a civil case.
a. Contributory negligence is an affirmative defense
i. D must prove by the preponderance of the evidence
5. Province of Court and Jury
a. People v. Walker
i. D charged with possessing stolen property
1. Element of the crime
a. Property is stolen
b. Property was possessed by another
c. Possessor must know that the property was stolen
ii. Prosecutor called witnesses to prove the 3 elements. All of the evidence was uncontradicted, but the jury
could have disbelieved the evidence of the witnesses who were impeached
iii. The reviewing court held that if a fact is essential to the crime and it is undisputed and is treated as
established by both parties during the trial, the court can charge the jury that the fact was proven
UNLESS the D asks to have the question of fact submitted to the jury.
iv. An alibi is a defense once raised by D, the prosecutor must disprove it beyond a reasonable doubt.
v. Judge can ask questions of a witness but the questions must be neutral.
1. In civil cases, if the testimony of a witness is incredible as a matter of law (no rational person could
put any credence in the testimony), the judge can tell jury to not put any weight into the testimony.
2. In criminal cases, a judge can instruct the jury that the testimony of a prosecution witness is
incredible BUT the judge cannot do the same for the defendant’s witnesses.
b. Duncan v. Louisiana
i. Louisiana only allows jury trials when it is a capital punishment case. Therefore, denied D’s request for a
jury trial for a misdemeanor.
1. But, the 6 amendment guarantees a jury trial in all criminal cases except those for petty crimes
(max. punishment is 6 months or less)
a. A D charged with a petty crime may still be able to get a jury trial
i. Right to trial by jury may be enlarged but NEVER impinged.
2. In this case, the max. punishment for D’s crime was 2 years in prison not a petty crime and is
entitled to a jury trial.
c. Martin v. Albany
i. In a criminal case, if the verdict is against D, the judge may interfere with the verdict BUT can never do
this when the verdict is for the D.
ii. P was awarded $15,000 for unlawful arrest and $5,000 for malicious prosecution. App. Div. reduced P’s
award for unlawful arrest to $5,000 and dismissed the malicious prosecution claim because there was not
sufficient evidence to support the claim.
iii. Court of Appeals held that the App. Div. only could have ordered a new trial if the verdict was against the
weight of the evidence in a civil case Could not dismiss the case
1. How does a judge know that the verdict is against the weight of the evidence?
a. Judge relies on all of his knowledge
2. Can only dismiss a claim if there is no way a rational person could find for the P
a. Not the case here
3. A judge may decrease a judgment award in lieu of a new trial if the amount deviates from
d. Thompson v. City of New York
i. P was stuck by D’s fire truck. D admitted its fault. Judge refused to give a directed verdict and the jury
found for D.
ii. In this case on appeal, the judge reversed and held that there was no way that a rational person could find for
the D because there was legally insufficient evidence.
6. Real and Demonstrative Evidence
a. General Info:
i. Real evidence: An object relevant to facts at issue at a trial and produced for inspection at trial rather than
described by a witness.
ii. Demonstrative evidence: An object or things (ex. Weapon similar to that one used in the commission of the
crime) that may aid the jury in understanding the crime before it but which has no effect on the question of
b. Clark v. Brooklyn Heights R.R.
i. P was injured in a car crash with D. At trial, P allowed to demonstrate his muscular twitching that is a
result of the crash.
ii. The court held that demonstrative evidence is allowed in subject to the judge’s discretion. In this case, there
was no abuse of discretion Admission proper.
1. Demonstrative evidence should be only of a nature to assist the jurors to an understanding of a
situation, or of an act, or to comprehend objective symptoms resulting from an injury.
2. Judge must engage in a balancing act when deciding whether or not to admit demonstrative
evidence. (value of the evidence vs. potential for prejudice)
iii. Although there is a concern that the party admitting the demonstrable evidence is faking or that the evidence
will unduly influence the jury, the D may have their own physician examine the P and there is opportunity
c. Boyarsky v. G.A. Zimmerman
i. P claims he was injured at work. D send private investigator to follow P and investigator films P conducting
himself as if he had no injuries at all.
1. Issue: Can the movie be admitted into evidence?
a. Yes, BUT first there must be testimony by the person taking the film to show that the
movie is a fair and accurate depiction of what actually occurred (“lay the foundation” for
i. A movie or pictures should never be allowed if they are sensational, deceptive,
unfairly prejudicial, inflammatory, etc.
1. Up to judge’s discretion whether or not to admit
ii. But, what if there are no witnesses (ex. Camera in a bank vault)?
1. Must use testimony of person in charge of the premises/camera stating
that the camera was not tampered with. Can also call security company
who installed the camera to testify as to the camera’s positioning. Can
use scientific evidence rather than personal testimony.
b. In this case, P’s injuries were the material issue and the movie was relevant to the issue
Film was properly admitted provided the judge employed the balancing test.
d. Capara v. Chrysler
i. P wanted to use photos and movie to demonstrate his life with his disabilities resulting from the accident.
1. Because the trial judge reviewed the movie before presenting it to the jury to determine whether it
should be admitted under the balancing test, the judge property exercised his discretion.
a. The movie’s probative value outweighed it’s prejudicial effect
b. Rule: The fact that medical testimony is admitted does NOT bar the use of
ii. Rule: Use of movies is subject to notice to opposing party before the trial
1. Also, the party against whom the movies are to be used is entitled to see the movies/pictures before
e. People v. Shields
i. Victim of rape testifies that she saw her assailant’s lower abdomen region during the rape. Victim’s friends
testify that they saw D leaving the building right after the rape. On cross, victim was asked if she saw any
scars on her assailant’s abdomen and she said no. However, D had a large noticeable scar on his lower
1. Issue: Is the presence of the scar relevant?
a. Court held that the presence of the scar might not be relevant if D had received the scar
after the rape.
i. D said that he could establish relevance via medical records and his sister’s
1. Court held that D MUST take the stand as a witness and testify about
the scar and display it if he wants it entered into evidence
a. D only wanted to be an exhibit NOT a witness because he had
prior convictions which would allow his credibility to be
impeached and result in as guilty verdict.
2. On appeal, court held that the trial judge abused his discretion in not
allowing D to prove relevancy of his real evidence.
a. Trial judge should have allowed options to avoid D having to
take the stand resulting in impeachment
f. People v. Edmonson
i. Police videotaped area where attack took place. Film captured all people that passed by but the cops zoomed
in on those individuals fitting the victim’s description of her assailant. Police showed the tape to victim and
she ID’d her assailant. Victim also Id’d D as her assailant at the trial.
ii. Court held that the fact that victim ID’d D from the tape is admissible.
1. The ID at the trial “bolstered” victim’s ID via the videotape.
a. There was no suggestion by police in filming by singling people out Movie was neutral
2. NY holds that “mug shots” are prejudicial and therefore are not admissible in court as a previous
3. Fed. Courts allow previous ID from “mug shots” to be admitted to “bolster” the in-court ID
g. People v. Wood
i. NY law: when real evidence is found to be relevant and material, it may still be kept from the jury if it is
found to be prejudicial in that it arouses the emotions of the jury (inflammatory)
ii. In this case, the prosecutor wants pictures of the murdered victim to be shown to the jury
1. Court employs the Pobliner test
a. Only used in criminal cases
b. Pictures are admissible if they speak to a material issue UNLESS the only purpose is to
arouse the emotions of the jury and to prejudice the D
c. Difference in tests used in criminal and civil trials
i. In civil trials, the balancing test is used. Admissible if probative effect
outweighs the prejudicial effect.
2. Court finds that the pictures tend to disprove D’s affirmative EED defense and therefore the
pictures are material.
iii. In federal court, relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. (Rule 403)
iv. Difference between getting pictures admitted into evidence in a criminal case between NY and federal
court. This could affect the outcome of the case.
h. People v. Crimmons
i. Is it ever proper for a jury to visit the scene of a crime?
1. YES, but only if it is done with the judge’s permission and the jurors are accompanied by the judge
or another court officer.
ii. In this case, 3 jurors visited the scene of crime on their own accord without the judge’s permission and told
the other jurors about what they saw. The jury then returned a guilty verdict. New trial ordered.
a. The jurors that visited the crime scene became witnesses of the facts and this violates the
D’s right to cross-examination of all witnesses
2. BUT, there is a rule that jurors cannot testify in order to impeach their verdict BUT there is an
exception to the rule for “extraneous influences”
a. Here, the jurors that visited the scene became “extraneous influences” and the new trial is
i. Tanner v. US
i. Federal Case Rule 606(b) applies (juror may only testify on issue of “extraneous influence” and nothing
ii. In this case, it was discovered after the trial that some of the jurors may have been drunk during the trial.
1. The court held that this was not an “extraneous influence” on the jury and therefore no new trial
1. Lightening was an issue in the case; jurors did their own experiments on the issue; Ct. held that this
was “extraneous influence” since it affected the jurors determination of the case
2. Cop claims he saw a gun through his car window in another car; jurors did their own experiments to
see if this was possible; St. held that this was an “extraneous influence”
3. While jury goes out for lunch juror looks through window of parked car (issue in the case); Court
held that this was NOT an “extraneous influence” since it was not contrived and was a mere
4. Juror in a personal injury case is a nurse; she works with injuries such as P received; tells jury
about her experiences as a nurse; Court held that this was an “extraneous influence”; Court should
have instructed her not to use her specialized knowledge at the beginning of the case.
j. People v. Hills
i. Law in state and federal court: Stipulation to a fact must be agreed upon by all parties involved in the case.
ii. D did not want pictures and medical evidence as to victim’s injury to be admitted; therefore, stipulated to the
fact victim was seriously injured in the hopes that the evidence will be kept from the jury
1. Court held that prosecutor is NOT required to accept a stipulation as to a material fact and
therefore can still present evidence that proves the material fact
a. Court employed the balancing test in regards to the expert medical testimony and
determined that the testimony would not inflame the jury
i. In criminal cases, when the conflict is over testimony and not pictures, the
balancing test is used
b. BUT, in NY, a statute may require a prosecutor to accept a stipulation
i. In cases where prior convictions increase the degree of subsequent offense
1. Ex. 3 strike rule in CA
2. If D stipulates to prior convictions, the prosecutor must accept it so the
jury may never hear of the convictions
c. In federal court, if a statute contains element that raises degree of the crime charged,
there are situations were the stipulation MUST be accepted BUT the jury is still told D
had prior convictions just not exactly what crimes he was convicted for.
i. In cases were the statute does not contain the element that raises the degree, NO
stipulation must be accepted.
7. Circumstantial Evidence
a. General Info:
i. Definition: Evidence that proves collateral facts which when taken in whole point to either guilt or innocence
ii. Applies to both civil and criminal cases
iii. A D can be found guilty solely on circumstantial evidence.
iv. People v. Barnes
1. D was found hiding in the back of a store and was charged with burglary (breaking into a premises
with the intent to steal) and found guilty. On appeal, D argues that he was not even at the premises
and that he was entitled to the special charge of “moral certainty.’
a. “Moral certainty” charge only applies in criminal cases which depend entirely upon
circumstantial evidence. Only in NY. In federal court, there is NO special charge of
“moral certainty” in cases of purely circumstantial evidence.
b. Equal to the “beyond a reasonable doubt” burden of proof for the prosecution.
c. Only entitled to the charge when every single element is proved via circumstantial evidence
i. In this case, even though there was only circumstantial evidence related to D’s
intent, there was some direct evidence that D broke into the premises Not
entitled to the charge.
d. Charge states that the facts from which the inference of D’s guilt is drawn must be
established with certainty and they must be inconsistent with D’s innocence and exclude to
a moral certainty every other reasonable hypothesis of innocence.
i. BUT, in this case, D’s hypothesis of innocence is that he “wandered” into the
1. Excluded because it is totally irrational.
2. Also did not get the charge because there was some direct evidence
submitted by the police that D was at the scene.
e. What is “moral certainty”?
i. When a juror bases their decision on common human experience and therefore
their decision cannot be absolutely certain because there are things out of the
ordinary that occur.
ii. Ex. Does a mother love her child? Answer based on moral certainty would be
yes; but some mothers do not love their children
v. People v. Francis
1. Another “moral certainty” charge case
2. D approached the passenger side of a car; police found crack on floor of the car; D charged with
criminal possession of a controlled substance (D must knowingly have control of the substance)
3. Circumstantial evidence against D: D had been seen week before driving the car; D had the car
registration and insurance card in his pocket at the time of arrest BUT D did not have the car
keys or the parking ticket for the garage
4. General Rule: When one possesses a controlled substance, knowledge that the substance is
controlled is inferred.
5. The Court of Appeals dismissed the indictment
i. There are many reasonable hypothesis of innocence to prevent a jury from
inferring D’s guilt..
b. Character as Circumstantial Evidence
i. Michelson v. U.S.
1. Is there a difference between character and reputation
i. Reputation – what people think of another
ii. Character – how a person truly is and not how they present themselves
2. Rule: Only in criminal cases is character admissible with a few exceptions
i. D’s wants to prove a good character to show that it is less likely that they
committed a crime
3. Rule: Character is a form of circumstantial evidence
a. In NY, a D proves his character by calling witnesses to testify about D’s reputation
i. This is an exception to the hearsay rule because the witnesses can only testify
as to hearsay (what they have heard about the D around the town) Can
ONLY prove character by reputation.
ii. In federal court, reputation OR opinion is allowed to prove D’s character.
iii. A witness is not allowed to give their own opinion about the D. They can
ONLY testify about what other have said about D.
1. There is a chain of circumstantial evidence (draw inference upon
b. Rule: A prosecutor can only call character witnesses once D opens the door by calling
i. It is a risk for the D to call character witnesses
1. D’s own character witnesses are subject to cross-examination
c. In this case, D took the stand and testified. Prosecutor asked about D’s prior convictions.
1. It goes to credibility of D NOT to the guilt of the crime charged
ii. Also, by D taking the stand, he opened the door to the prosecutor to call
character witnesses against D
1. In cross of D’s own character witnesses, the prosecutor is allowed to ask
witness if he had heard about D’s previous convictions. This is to
contradict statements the witness has heard about D’s good character.
a. The prosecutor may also ask if witness knows of D’s previous
arrests since it goes to D’s reputation and NOT to D’s guilt.
i. If witness did not hear of D’s arrest, then the
witness does NOT know much about D’s reputation
ii. BUT, prosecutor can NOT ask D about an arrest
directly. She can only ask witness about if they know
of D’s arrest.
d. Prosecutor also asked D about an application that D had lied on previously (no conviction,
just a bad act). If D lied about the lie on the stand, the prosecutor is NOT allowed to
attempt to prove the original lie at trial, but it could serve as a basis for new trial for
e. NY LAW: When D calls character witness, the prosecutor may PROVE D was
convicted of an offense (not only ask about it), thus negating the character brought into
f. Old law in NY
i. If D does not take the stand and does not put his own character into issue then
the prosecutor can do nothing
ii. If D does not take the stand but does put his own character into issue, then the
prosecutor may call his own character witnesses to prove D has a bad character
AND the prosecutor can prove prior convictions of any offense negating any
good character brought into issue by D.
iii. If D takes the stand but does not put his own character into issue, then
prosecutor can impeach D’s credibility by calling bad character witnesses to
testify about D’s trait of truthfulness ONLY
iv. If D takes the stand and puts his own character into issue, then prosecutor can
call bad character witnesses and prove D’s past convictions AND ask about
prior convictions and bad acts AND call bad witnesses about D’s trait of
g. In NY, prosecutor may not prove a bad act on the part of the D.
i. If bad act is at a separate trial (separate claim), the act cannot be inquired about
ii. Prosecutor can NOT ask witnesses if they were indicted for a bad act,. She can
only ask if they committed the act, which is usually replied to with a “no.” After
the witness says “no”, the prosecutor cannot prove it. Prosecutor can only ask
if witness committed a bad act but nothing else (ex. Was he arrested, indicted
because of the act)
h. In federal court, the judge must inform the jury that character witnesses are like facts in
that they can be considered by the jury the jury has discretion as to whether to accept
the testimony or not.
i. In NY, the judge tells the jury that if the “good character” testimony is believed,
it may be sufficient to create a reasonable doubt. (good for the D). Without the
“good character” testimony, there may be no reasonable doubt.
ii. People v. Kiss
1. In this case, the prosecutor could have
a. Attacked character by proving prior convictions of D OR
b. Bring in his own “bad” character witnesses to negate D’s “good” witnesses OR
c. Cross-examine D’s “good” character witnesses
i. Prosecutor, on cross, asked witness if he had heard of the previous
charges/reports in the newspaper about D’s previous bad acts.
1. This is allowed cause a previous bad charge affects D’s reputation
testifying witness only has credibility if he has heard of D’s previous
iii. NY law
1. D’s prior convictions can become of interest if D puts his character into issue if the prior conviction
negates a trait the D is trying to prove with the “good” character witnesses EVEN IF the D
NEVER takes the stand.
a. The prior conviction MUST relate to the “good” trait the D is trying to prove.
2. If D does not put his character into issue but does take the stand, the prosecutor can ONLY ask
about the prior bad acts, but can NEVER prove those acts or prior convictions.
a. Only goes to impeach the D’s credibility NOT to prove whether D committed the crime
c. When the D becomes a witness but does NOT call character witnesses
i. People v. Sandoval
1. D wants to testify but is afraid his prior convictions will be brought out to discredit him and create
prejudice against him in the minds of the jury.
2. This case created the Sandoval Hearing
a. It is up to the judge’s discretion whether or not to allow cross examination of D about the
b. Standard: whether the prejudicial effect of impeachment testimony FAR outweighs the
probative worth of the evidence on the issue of credibility.
i. If there is a tie, then cross is allowed about the prior convictions.
c. D can appeal whether or not he takes the stand
d. No limitation on how recent the prior convictions must be in order to be used by the
i. Up to the judge’s discretion
e. Can impeach using either felonies or misdemeanors
i. Even perjury must be subjected to the balancing test before it can be admitted
3. In federal court, Rule 403 applies (although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury)
a. Easier for D to meet the standard in Fed. than in NY
b. D can ONLY appeal the failure to suppress evidence after D takes the stand and has
been impeached (only way to perfect right of appeal in fed. court is for D to take the stand)
i. Also, if D impeaches himself to “take the sting out” he can NO longer appeal
under the failure to suppress evidence rule
c. Any prior convictions that took place more than 10 years before the date of the subsequent
trial are NOT allowed in to impeach the D
d. Can ONLY impeach using felonies, but PERJURY is ALWAYS allowed in
whether it occurred at a trial for a felony or a misdemeanor as long as it has occurred in
the past 10 years.
4. REMEMBER: Prior conviction must relate to the D’s credibility as a witness or to the trait
the D is trying to establish
a. Ex. D is trying to prove his honesty
i. prior convictions of perjury are allowed but not his prior convictions of assault
b. Ex. D is charged with assault
i. prior conviction of assault are not allowed UNLESS the prior crime shows
D putting his own interests above the rest of society’s
d. Character of Homicide or Assault Victim
i. Matter of Robert S.
1. Rule: D can, in some circumstances, put the victim’s character at issue.
2. In this case, D is using the defense of self-defense in the murder trial
a. Prosecutor must prove D did not act in self-defense
b. D puts forth evidence that victim had a reputation for violence.
i. Court ruled evidence inadmissible.
1. No evidence that D knew of victim’s propensity for violence at the time
of incident. D must have known of victim’s violent past before he
attacked D in order to prove D’s state of mind. (NY Rule)
a. D cannot use victim’s reputation of violence to destroy victim’s
reputation or as circumstantial evidence that victim attacked
b. The threat must be communicated to prove D’s state of mind
c. If D is allowed to prove victim’s prior violent character, the
prosecutor can only counter with “good” character witnesses to
testify about the victim.
ii. In Fed. Ct., Victim’s past is:
1. allowed to show victim attacked first/aggression
2. And/OR to show the victim’s state of mind at the time of incident
a. D is not required to have prior knowledge of victim’s propensity
3. D still must have reasonable believed that there was a threat however
a. But, D’s state of mind can be used to prove there was a threat
b. A noncommunicated threat is allowed to prove there was
4. Prosecutor can use “good” character reputation when there is any
evidence presented by D that victim was the aggressor and not just when
D brings up victim’s character.
5. If D brings up victim’s violent reputation at trial, prosecutor can
introduce evidence to prove D’s reputation for violent crime in response
(Rule 404(a)(1)). Cannot do this in NY.
e. Character of Sex Crime victim
i. NY Rules:
a. Evidence of victim’s sexual conduct is not admissible UNLESS:
i. The evidence proves or tends to prove specific instances of the victim’s prior sexual
conduct with the accused
1. Impeaches the credibility of the victim and is circumstantial evidence of
ii. The evidence proves or tends to prove that the victim has been convicted of
prostitution within 3 years prior to the sex offense which is the subject of the
iii. The evidence rebuts evidence introduced by the people of the victim’s failure to
engage in sex, during a given period of time
1. Ex. Victim was in a body cast and claims she could not consent to sex
iv. The evidence rebuts evidence introduced by the people which proves or tends to
prove that the accused is the cause of pregnancy or disease of the victim, or the
source of semen found in the victim
v. The evidence is determined by the court after an offer of proof by the accused
outside the hearing of the jury, or such hearings as the court may require, and a
statement by the court of its findings of fact essential to its determination, to be
relevant and admissible in the interest of justice.
a. Evidence of victim’s sexual conduct, including the past sexual conduct of a deceased victim,
may NOT be admitted unless the evidence is determined by the court to be relevant and
admissible in the interest of the justice, after an offer by proof by the proponent of such
evidence outside the hearing of the jury.
i. What would be a situation of admission in “the interest of justice”?
1. If a woman liked rough sex and D thought the woman was going to kill
D and D accidentally killed woman in his own self-defense
a. Evidence of the woman liking rough sex would be admissible
ii. Olden v. Kentucky
1. D drove victim to her boyfriends house at her request; victim’s BF saw victim with D; victim told
BF that she was raped by D
2. D wanted to introduce evidence of consent at trial (wants to ask victim on the stand about her
relationship with BF)
a. In NY, this would not be admissible
3. The trial court did not allow the evidence to be admitted cause victim’s BF was black and it believed
if the jury found out, it would result in prejudice to victim.
a. D appealed on grounds of error in not allowing the evidence of victim’s relationship with
BF cause he believed that it showed a motive to lie and thus that the victim was biased
(Bias to discredit a witness is VERY important)
i. To conceal evidence of bias from a jury violates Constitutional right to confront
witnesses against you
ii. In NY, the catch all exception would permit the testimony to be heard
iii. People v. Miranda
1. D claims victim made up the whole incident
i. D told victim’s husband victim was cheating on him
1. This is admissible since it proves a motive to lie and therefore the victim
iv. People v. Jovanovic
1. D wanted to offer e-mails from victim saying that she has S&M sex with her BF
a. Not evidence of sexual conduct, but evidence of what she said her sexual conduct was
i. Court rejects this argument BUT allows evidence in in the interests of justice (to
prove D’s state of mind during offense)
f. Character in Civil Cases
i. Beach v. Richtmyer
1. Owner of car only liable if driver had permission, but there is a presumption of permission
a. Can offer evidence tending to show NO permission
2. P wanted to call character witnesses of driver to show he was honest and therefore he would not take
the car without permission
a. Court denied P’s request cause it was a civil case
1. Slows down the process
2. Not necessary
3. RULE: Can NOT call character witnesses in a civil case to indicate the party acted in accordance
with his character at the time of incident
ii. Nakasian v. Incontrade
1. P claims he could not have used undue influence because he is honest and therefore want to call
a. Court denies P’s request
iii. Exceptions to Character in Civil Cases;
1. Defamation Action
a. Harm is to reputation is the essence of the action
2. Negligent hiring/entrustment
a. D should have known employee was drunk, etc.
b. P can prove employee’s bad character at time of hiring and the D should have known
g. Uncharged Crimes
i. General Info:
1. A D ,may be charged with different crimes in 1 indictment as long as they are similar
2. But, if D is only charged with 1 crime, the prosecutor may NOT prove other crimes to aid in the
conviction of the crime charged
3. In federal court, prosecutor, when prosecuting a sex crime, can have evidence admitted that the D
committed prior sex offenses
a. It is not required that the D be convicted to the prior sex offenses.
b. The federal judge still needs to use the balancing test (If the evidence of the prior offenses
is too prejudicial, then it is not admitted)
4. In NY, the only time evidence of D’s criminal propensity is admitted in sex offenses is when it goes
to the victim’s state of mind
a. Ex. Victim did NOT resist the rape cause she knew it was useless as it had happened
5. Same rules and exceptions apply in criminal and civil cases
ii. People v. Zackowitz
1. D found out victim insulted his wife and got a gun and returned and shot victim (D charged with
2. Prosecutor wanted to introduce evidence that D possessed other guns in D’s apartment to show D’s
a. Court did not allow
1. Rule: Evidence tending to show D has a character propensity of
violence cannot be brought in by prosecutor unless D 1 opens the door
i. To protect the innocent; just because the D has a
propensity to act violent, does NOT mean D did this
b. BUT, prosecutor can introduce uncharged crimes not for
propensity but for circumstantial evidence in some cases
iii. People v. Molineux
1. Prosecutor wanted to introduce evidence D murdered another person besides the victim
a. Both victims died of cyanide poisoning they received mislabeled bottles in the mail
b. Someone had opened private mailboxes in the name of both victims
2. 5 exceptions to the rule that past uncharged crimes cannot be introduced in subsequent case:
a. MIMIC (motive, intent, mistake (absence of), identity, common plan/scheme)
1. When the motives of 2 crimes are related
2. Ex. 1 uncharged crime is murder and the crime charged is murder of
witness to the 1 crime
a. Uncharged crime shows the motive for killing the witness
3. Ex. Uncharged crime is attempted assault on a gang member. The
charged crime is murder of the same gang member
a. Uncharged crime is admissible as it shows motive.
1. Repetition of actions shows intent (increased probability there was a
lack of innocence)
2. Rule: If the intent is clear from the act (shooting another), the court
will NOT allow evidence of past uncharged crimes to be admitted since
it points to propensity.
3. Ex. Passing Counterfeit money
a. Almost everyone has passed counterfeit innocently at least
once. If prosecutor can prove D passed counterfeit numerous
times, this points to intent (Less likely the D passed the
4. Ex. Possessing Stolen Guns
a. If prosecutor can prove D continuously possess stolen guns, it
points to intent
5. People v. Ingram
a. It does NOT matter is the uncharged crime happened after
the charged crime
iii. Absence of Mistake or Accident
1. If D testifies the crime was an accident, the prosecutor can introduce
evidence of uncharged crime
a. Very unlikely that an accident occurred twice Evidence
points to the absence of mistake
iv. Common Plan/Scheme
1. Requirement: The 2 crimes must be connected in the mind of the D at
the outset of the 1 crime
2. Ex. Rob the janitor of a bank of his keys; then rob bank later in the day
a. Could not rob the bank without janitor’s keys Common
3. Ex. Killing line of people for inheritance
4. Ex. Bribing all people located on 1 list
5. Ex. BUT, if robber robs string of banks to provide himself with an
income, the evidence of the past uncharged robberies is NOT admissible
since it would only go to propensity
1. When the evidence of an uncharged crime tends to ID the person who
committed it as the same person who committed the charged crime, the
evidence is admissible
2. Ex. Masked man rob janitor of key to bank; masked men then arrested
entering bank with key
a. If charged with robbing janitor, the fact that they had
possession of key later goes to ID in charged crime
3. Ex. Jack the Ripper
a. If Jack was charged with the most recent murder, can
prosecutor introduce evidence of the previous uncharged
i. YES, because there is something UNIQUE in the
manner of killing the victims When prior crimes
are committed in a UNIQUE way, it serves almost
as a signature of the criminal (The combination of
elements must be unique, not every element)
ii. Ex. D gets into victim’s apartments by asking the
women if the could give him any information about
his wife’s rape, then makes the women wear lingerie
and then stabs them
iii. Ex. D invites college men to smoke pot with him and
then takes the men to the same spot in the woods.
Then D rapes them and kills them.
4. People v. Robinson
a. NY Rule: When the prosecutor wants to introduce evidence
of prior uncharged crime to show unique ID, the prosecutor
must convince the judge by Clear and Convincing Evidence that
the prior crime is unique and that the D committed the
uncharged crime. If the prosecutor meets the burden, then the
judge may instruct the jury that they may use it as evidence of
ID in the present charged crime.
i. Clear and Convincing standard only applied to ID
ii. Different from Federal (preponderance of the
5. Dowling v. U.S.
a. Federal Rule: prosecutor may prove D committed a crime
that the D was acquitted of to show unique ID
i. There are 2 difference burdens of proof (beyond a
reasonable doubt vs. preponderance of the evidence)
b. In NY, this rule does not apply
vi. Other exceptions not included in case:
1. Uncharged crime showing consciousness of guilt
a. Ex. Resisting arrest, fleeing the scene of the crime, bribing a
2. Acts that caused fear in the victims
iv. People v. Ventimiglia
1. In this case, D’s driver testified on behalf of the prosecution that D’s had a conversation about “the
spot” where they put dead bodies where no one will ever find them. (Goes to premeditation and
2. Court introduced the VENTIMIGLIA HEARING
a. Trial judge must conduct a hearing regarding testimony about uncharged crimes outside
the presence of the jury to determine if the testimony’s probative effect outweighs its
b. 1 Step: The prosecutor tells judge what the witness will testify about. Judge then
determines what parts of the testimony are admissible and what is to be suppressed.
i. The witness may ONLY testify about what goes to the material issue; all else
that goes to criminal propensity must be excluded unless the statements that go to
uncharged crimes are “inextricably interwoven” with other statements
c. 2 Step: Balancing Test
i. if too prejudicial, then evidence may NOT be admitted
v. Huddleston v. U.S.
1. Federal Court formally adopts the Molineux exceptions
2. Prosecutor wants uncharged crimes to be admitted to go to D’s Intent
a. Repetition negates innocence
b. In this case, the D claims that the did not know that the goods were stolen and the
prosecutor has evidence that the D has had possession of stolen goods in the past
3. The Court holds that the federal prosecutor does NOT need to prove the uncharged criminal acts be
the preponderance of the evidence
a. 1 step: the court must make a preliminary finding of whether the jury could reasonably
find that the uncharged crime occurred by the preponderance of the evidence
b. 2 step: the judge instructs the jury that if they find that the D committed the uncharged
crime then they may use the uncharged crime as evidence of D’s intent in the present case
h. Post-accident repairs
i. General Info:
1. Rule: Evidence of subsequent repairs by manufacturer may NOT be introduced to prove a defect
at the time of accident
i. To encourage the manufacturer to fix defects
ii. The defect may Not have even contributed to the accident and subsequent repairs
are evidence that the manufacturer ONLY wanted to make the product safer
than it was to begin with
2. Rule: In strict liability cases, a P may not show subsequent repair of a product to prove a defect
ii. Cover v. Cohen
1. NY law: In manufacturing design defect cases, evidence of subsequent design changes are
a. BUT in criminal cases, evidence of subsequent design changes can be introduced to show
2. Federal Law: No evidence of subsequent design changes are admissible to show ANY defect in
a. Includes strict liability actions
i. Halloran v. Virginia Chemicals
1. P injured when a can of refrigerant blew up. He claims the product was defective. D argues that
P was using an immersion coil on the day of accident to heat up refrigerant (warned against this)
2. On day of explosion, no one saw P using the immersion coil BUT D wants to introduce evidence
that P has a HABIT of using a heating coil
a. Remember: Habits do NOT equal character traits
b. Habit: repetitive pattern of conduct under certain circumstances
3. Requirements for admission of HABIT:
a. Habit is admissible only when P is in complete control of the circumstances NO
attendant circumstances (no one else is involved)
b. D MUST be able to prove a number of instances of the conduct in question in order for
the habit to go to the jury
ii. NJ v. Radziwil
1. Issue: what was the D’s state of mind at the time of that accident (reckless, etc)
2. Prosecutor wants to introduce evidence of D’s habit of drinking at the same bar every weekend until
he got drunk since there was no evidence of what his BAC was at the time of accident
a. Prosecutor could not introduce evidence that D was a drunk cause that goes to a character
b. Prosecutor could not introduce evidence that D drank and drove since that goes to
iii. Keltner v. Ford
1. P admitted of having a habit of drinking 4 nights per week
a. Court allowed evidence of this habit to be admitted
8. Examination of Witnesses
a. General Info:
i. 2 types of examination of a witness
1. Direct – helps to prove your case
2. Cross – want to discredit the witness so the jury will not believe them
ii. Rule: Lawyers cannot lead witnesses on direct (ask questions containing all the facts)
a. Can lead to get witness to substance of their testimony
b. When witness has depleted his recollection
2. No Rule against leading on cross
iii. In cases where witness cannot remember
1. Ask a leading question
2. Have them read their diary
a. Their diary entry is not evidence, their testimony after reading it is
3. In NY, a prosecution witness cannot be refreshed by hypnotism
4. Rule: If witness has made a memo of the event while it was still fresh in her mind and the witness
will testify that the memo was made correctly, the memo is evidence of the truth of the event even if
the witness cannot remember at trial (PAST RECOLLECTION RECORDED RULE)
iv. Party may show that a witness has a character trait of untruthfulness
1. Can ask about past convictions (if denied, party cannot prove)
2. Ask if witness was drunk at the time of the event (if denied, can be proved)
v. People v. Taylor
1. Neighbor of rape victim got the license plate number of D and wrote it down and called the police.
At trial, the neighbor did not remember the license number. The neighbor also lost the piece of
paper that she wrote the number on. The prosecutor then argues that the neighbor relayed the info
to the police and the police wrote it down and therefore the past recollection recorded rule applies.
a. The court holds that the cop’s memo is admissible for its truth only if the license number
was verified by the neighbor after the cop transcribed it.
i. In this case, the neighbor did not see the memo and the neighbor cannot
remember if the cop repeated the number back to her and the cop cannot testify
that he was positive that he wrote down exactly what the neighbor told him..
1. It would not have been enough for the cop to say that he usually
transcribes things correctly. He must be able to say that this one
specific time he wrote it down correctly.
vi. U.S. v. Abel
1. Federal Court: Bias is permitted to be shown to impeach a witness even though the Rules do not
expressly say so.
a. If bias is denied, it is allowed to be proven.
b. Bias can be shown is a co-defendant agrees to testify against D and in return he gets
c. Bias can also be shown by proving a tenant of a gang that states that all members are
required to commit perjury on each member’s behalf.
b. Prior Inconsistent Statements
i. General Info:
1. The adverse party may ask about the prior statements of the witness and is allowed to prove the
statements to impeach a witness
a. Can call other witnesses to prove the prior inconsistent statements if the witness denies
b. The form of the prior inconsistent statement does not matter (can be oral or written)
2. Rule: Prior Inconsistent statements are NOT admitted for the truth of the statement. ONLY
go to the credibility of the witness’ in court testimony
a. Except, in a civil case, when at trial the D denies fault, but then P calls a witness that
testifies that the D told him that it was his fault, the witness’s testimony is admitted for its
truth since it is considered to be an ADMISSION by the D.
3. If at trial, the witness adds facts that are relevant,, it is considered inconsistent since it would have
been NATURAL to include those facts previously.
4. Remember: One’s attorney is one’s agent
a. If attorney makes prior inconsistent statements about the D, the prior inconsistent
statements are attributed to the D.
5. Alibi cannot be used as a prior inconsistent statement
a. D is required to give notice to prosecutor if he intends to offer an alibi
b. If D withdraws notice of alibi (prior inconsistent statement to what D testifies to in
court), it cannot be used as a prior inconsistent statements because giving notice of the alibi
is a requirement of law
6. Can a party impeach their own witness if they are unhappy with the witness’ testimony?
a. In NY, NO
i. Exception: Can impeach your own witness if the prior inconsistent statement is in
writing and is signed by the witness or the prior inconsistent statement was given
under oath (in civil and criminal cases)
1. If the testimony is only variant from what party thought he would say,
the witness may NOT be impeached Can only impeach if the
testimony given tends to disprove the position of the party that called
2. In civil cases, the party may read the prior inconsistent statement of the
witness in front of the jury
b. In Fed. Ct., YES
i. The prior statement only goes to impeachment NOT to the facts of the event
ii. BUT, if the witness gave the prior inconsistent statement at GRAND
JURY under oath, the prior inconsistent statement can GO TO THE
TRUTH of the fact of the events.
a. This is not hearsay and therefore it is admissible for its truth
7. Is a party bound by their witness’s testimony?
a. NO, a party must not adopt the witness’s version of the facts
ii. Spampinato v. ABC
1. Rule: A party is not bound by their witness’s testimony
a. Can rebut testimony of one’s own witness
2. Remember: A party can make an adverse witness their own by asking about things not asked about
on direct examination
a. In NY, that means that the party cannot impeach the witness since the witness is its own
b. In Federal Court, the party can still impeach
c. Criminal Cases
i. Remember: If D takes the stand, the prosecutor may impeach the D by asking about prior criminal
convictions. If D denies, the prosecutor may prove
ii. In NY, if party calls a witness as their own in a criminal trial, the party may NOT impeach if the witness
hurts you BUT the party may ask about and prove prior inconsistent statements that are written and signed
or given under oath and if the witness testimony tends to disprove the position of the party that called him
1. IN these cases, the party may NOT attempt to refresh the witness’s recollection by reading his
prior statements BUT the party may have the witness read it to himself to refresh his memory so
that the jury will not hear the prior statement
a. Can only read a party’s prior inconsistent statements to impeach the witness
iii. In criminal cases, witnesses may be sequestered so that they do not hear what the other witnesses testify to
1. BUT D has the right to be at his own trial and be is own witness. This allows the D to tailor his
testimony to the other witnesses
a. Prosecutor allowed to point out this probability to the jury
iv. If D takes the stand and testifies that he did not commit the crime charged, can the prosecutor ask about
prior confession to the crime that were suppressed as being involuntary (either was not read Miranda rights
or denied counsel)?
1. YES, but only admitted for impeachment purposes not to the facts of the event
a. D should never take the stand when he confessed but the confession was suppressed as
involuntary since the jury will still hear of the prior confessions
v. Chambers v. Mississippi
1. In this case, the S.Ct. held that it does NOT matter who calls a witness in criminal cases
a. If D calls a witness, that witness can be impeached by the D even though the D called
2. Also, the court held that oral prior inconsistent statements can be admitted by the D in criminal
cases. BUT, the rule does NOT apply to prosecutors.
a. This rule also is now applicable in NY since it is a constitutional right
d. Hostile Witnesses (NY)
i. If the brother of D witnessed the accident and D does not call his own brother as a witness, the P is entitled
to an adverse inference against the D.
ii. BUT if P calls D’s brother as her own witness and the witness does NOT want to testify, the court may
declare the witness as HOSTILE
1. Even still, the P may NOT impeach the witness since she called him unless P has a written signed
prior inconsistent statement by the witness.
2. All P can do is LEAD the witness
e. Prior Consistent Statements
i. Used to bolster or improve the credibility of a witness
ii. General Rule: A witnesses’ trial testimony ordinarily may NOT be bolster with pretrial statements (there
is an exception in some limited cases)
a. Untrustworthy testimony does NOT become less so merely by repetition
iii. People v. McDaniel
1. At trial, the victim testified that the D raped her. D tried to prove victim’s prior inconsistent
statements (no rape) and the reason why the victim now claims rape (visited by her step-father)
2. Prosecutor then wants to bolster the victim’s testimony with prior consistent statements (statements
that the D raped victim before she was visited by step-father)
a. These prior consistent statements are admissible to disprove fabrication BUT the
statements must have been made before the point of alleged fabrication (visit with the step-
father). Anything after the visit with the step-father are NOT admissible. Same rule in
a. In General:
i. Def: Out of court statement offered in court for the truth of its content
1. If statement does not meet all 3 requirements it is NOT hearsay, but a prior statement that goes to
2. Any sign language or pointing is hearsay as well since they are assertions of fact
ii. 2 characters:
1. Declarant: person that makes the out of court statement
2. Witness: person or thing (paper) that hears the statement and wants to testify to that statement
a. If declarant makes written memo of the event he witnesses and then signs it and a friend
of the declarant ID’s the signature as that of the declarant in court, the piece of paper is
i. Is this hearsay?
1. YES, but there is an exception for written memos to the hearsay rule
iii. People v. Minor
1. D raises entrapment defense and wants to testify about what the police informer who introduced
him to the undercover officer said to D.
a. Court allows because the testimony is NOT hearsay because it does not go to the truth of
the statement since the statement was totally false to begin with. The statements offered to
go to the effect they had on the D’s state of mind.
2. Ex. In a slander case, the P wants to testify about what the D said about P, but what the D said
was totally false
a. P allowed to testify about what D said since the statement is NOT offered for the
truth of the statement since the statement is NOT true
3. Ex. When D wants to prove EED when D committed a crime, D may testify about what another
said to D to cause the EED
a. The statement is offered to go to D’s state of mind regardless of the truth of the statement
4. Ex. Letter found in D’s home to establish a motive for D to commit a crime
a. This is not hearsay because the letter offered goes to motive regardless of the truth of the
contents of the letter
iv. People ex rel. Vega v. Smith
1. Some proceedings have no rule against hearsay (administrative hearings)
2. In arbitration hearings, hearsay is permitted as well as in small claims court
3. Hearsay rule does not apply in hearing on a motion to suppress
4. In FEDERAL GRAND JURY, hearsay is admissible to obtain an indictment
a. BUT in NY, hearsay rule still applies to grand juries with some exceptions
b. Pedigree Exception to Hearsay Rule
i. General Info:
1. One only knows who their relatives are by what their parents tell them (hearsay)
a. But, a mother can testify to the fact that a particular child is hers and so can a father
b. A child can testify to the fact that a particular man or woman is her father or mother
even though it is hearsay
ii. Eisenlord v. Clum
1. Rule: When DNA cannot be used cause a person is dead and cremated), one is allowed to testify
as to what they heard the deceased say about who were his children
i. Declarant MUST be dead
ii. Pedigree is an issue
iii. Statement made before the controversy
iv. No apparent motive for declarant to lie
2. In this case, there is an issue whether the son is actually the deceased’s son
a. Son proves he is actually deceased’s son by calling witnesses to testify that heard the
deceased say that the P was his son
i. Rule: It does NOT matter who the witnesses are
ii. Rule: Declarant MUST be a member of the family of the deceased
3. What is witness heard the mother/wife say the son was hers and her husband/deceased and then
both the father and mother die?
a. The mother’s statement is only admissible if she is a member of deceased’s family
i. Is mother proven to be a member of the family only by her own statement?
1. NO, because it is hearsay
2. There must be independent evidence (circumstantial evidence)
a. Marriage Certificate, witness to wedding, others who the told,
4. What if father tells son that he is his song and the father was married to the son’s mother and now
the father is dead?
a. Son may not testify about what his father told him
1. In NY, the DEAD MAN’S STATUTE applies in civil cases.
The statute provides that a person interested in the results of a trial
may NOT testify (because he is incompetent) to a personal transaction
he has had with a person who is now dead against the
executor/administrator of the deceased persons estate
a. A transaction can be a conversation or witnessing something
the dead person did
iii. People v. Lewis
1. Criminal Case
2. 2 witnesses:
a. Victim’s mother/wife of D
i. Testified victim was daughter of her and D as a fact
1. Admissible (not hearsay)
ii. D was the only man she had sex with at that time
1. Admissible (not hearsay)
i. Testified D was her father
1. Hearsay and exception did NOT apply since D was still alive
ii. If D told victim he was her father, it would be admissible as an admission
iii. If mother told victim D was her father, it would not be admissible under the
exception since D is NOT dead
c. In Fed. Ct., if D is unavailable, the exception applies (D does not need to be dead).
Also, declarant does NOT have to be a member of the family as long as declarant is close
to the claimant (ex. Maid, neighbor, friend., etc.)
i. Also, reputation in the community of who one’s relatives are is admissible
d. In NY, statements found in a family bible as to who one’s family is are admissible even if
one doesn’t know who wrote the statements because it is assumed that the declarant was a
member of the family.
i. Same for tombstone inscriptions
c. Business Record Exception to the Hearsay Rule
i. General Info:
1. The paper is the witness
a. Business Records are admissible for their truth even if the person who made the record is
available to testify
1. It is assumed that businesses make accurate records
ii. D can always argue the record is wrong
b. 3 requirements:
i. Record must be made in the usual course of business
ii. It is within the regular course of business to make records
iii. Record must be made at or about the time the event occurred
iv. Maker of the record does NOT have to remember the facts of the event or even
have personal knowledge of the facts as long as he had a business duty to make the
c. The business record can be used for or against the business and can be used even if the
business is NOT involved in the action
d. Only in Fed. Ct., the person with the knowledge must have a business duty to know the
facts and the person recording the facts must have a business duty to record. Also, in
federal court only, if the source of the info contained in the report indicates a lack of
trustworthiness (ex. The person making the report was personally involved in the accident),
even though all 3 requirements are met, the business record is not admissible.
e. Before business records can be admitted, a foundation must be laid
i. Person must testify that all 3 requirements are met
ii. Any person who is familiar enough with the business’ practices can do this
1. Ex. Dr’s wife who knows how a Dr. make his records
iii. But, if the records are governmental or hospital records, it is NOT necessary
for a live person to appear to lay the foundation for admissibility. A certificate
from the custodian of the records answering the 3 requirements is all that is
necessary in these cases
1. Since 2000, in FEDERAL COURT, when a normal business
wants to admit its business records, it does NOT have to provide a live
witness or original record if the record is considered to be a self-
authenticating record and it is certified by the custodian of the records
2. Since 2003, in NY, a live witness or original record is NOT required
if the records submitted are those of a non-party if a certificate is
attached to the record. The certificate must fulfill the 3 requirements.
a. Does NOT apply to party records
ii. People v. Mertz
1. D agreed to take a breathalyzer test and his BAC was over the legal limit
a. Remember: D is NOT required to submit to a breathalyzer test, but if the refuse, it can
be used as a negative inference at the trial
2. Are the breathalyzer results admissible as evidence at the trial?
a. They are only if one can lay the foundation that the machine was working properly
i. The tech at the police lab made a record that the ampoules they tested were good
1. The tech did NOT come to court, only copies of his records were
admitted, which is OK since they are government records
a. BUT, in this case, the certificate could not ensure that the
record was made within a reasonable time after the testing. If
tech would have come to court, he could have answered that
requirement and the test results would have been admissible.
i. Record is inadmissible
iii. Toll v. State
1. Accident involving a private individual and a municipal snow plow
a. The plow driver filed an accident report 15 days after the accident.
i. Admissible as a business record
1. Admissible even though the person making the record making the
record has an interest in the litigation
i. It was the practice of the municipality to make
accident reports for their own purposes.
ii. But, the possibility of bias in the report goes to
affecting the weight the jury gives to the record.
b. Only when a business makes a record that it would not
usually make is the record prepared for litigation and
therefore NOT admissible
i. Documents produced for litigation are generally
b. A cop made a report at the scene of the accident that includes witness statements and
conclusions drawn by the cop
i. Cop’s conclusions are not admissible since he is NOT an expert
ii. Written witness statements are NOT admissible under the business record
a. The witness who gave the statements did NOT have a business
duty to make the record, BUT the report is admissible as a
business record to prove that a witness gave a statement to the
i. If P or D gives statement to police, it is an
ADMISSION (same in NY and federal court)
2. Hypo: If a subway supervisor writes a report stating that a man yelled at him to stop the train
because a woman was hanging out of the door and the train then stopped too late the woman was
dead, is the report admissible under the business record exception for the truth of the man’s
a. Yes even though the business record exception generally would only be admissible as proof
that the man made a statement to the supervisor. BUT, in this case, the man made the
statement immediately relating to an event that excited him.
i. No time for the man to think of a lie
ii. Courts allow the business record containing statements made by a person who
immediately gave a statement about an event that excited him to be admitted for
the truth of the witness’ statements
1. Requires a business record containing the statement and an excited
iv. Kelly v. Wasserman
1. Rule: If a business record contains a statement made by a party to an action, the business record is
admissible as to the truth of the statement made by the party since it constitutes an admission.
v. NY CPLR §4533 Market Reports
1. Market Reports are admissible in evidence to prove the market price or value of any article
regularly sold or dealt in such a market.
a. Exception to the hearsay rule
b. Do NOT ever have to prove the report is a real copy if it looks like it
vi. Williams v. Alexander
1. Hospital records contain statements made by patient about how his injury occurred.
a. If the Dr. showed up to court to testify about the statements made by the patient, the
statements would be able to be admitted to go to the truth since they would be considered
i. BUT, in this case, the statements may NOT be admitted under the business
record exception since the statements do NOT relate to the medical aspects of the
1. If statements do NOT held Dr. understand the medical aspects of
the patent’s case, the statement is NOT admissible under the business
a. Ex. Patient tells Dr. that he got hurt by a car hitting him but
the car that hit him was rear ended by another car causing the
i. This is NOT admissible
d. Declarations Against Interest Exception to the Hearsay Rule
i. General Info:
1. Different from admissions in that the statement does NOT need to be made by a party to the
2. The statement must hurt the interests of the declarant probably true
a. The statement must be against declarant’s interest at the time the statement is made
3. Statement is admissible in favor of anyone or against anyone regardless of the declarant’s
relationship with the affected party.
a. Declarant MUST BE UNAVAILABLE at the time of trial
b. Statement must be against declarant’s interest
c. There must be no reason for declarant to lie
d. Declarant must have had competent knowledge of the facts
5. Vicarious admissions:
a. When a party’s agent makes admissions that are enforceable against the party
b. Ex. Employees
c. In NY, an employee can only make a vicarious admission when the employee is
authorized to speak on employer’s behalf
i. If employee is only allowed to act on behalf of employer, his statements made
to others are not enforceable against the employer.
d. BUT, if an employee is only authorized to act on behalf of his employer, but employee gets
into accident and admits he is negligent and at the time of trial, the employer is
unavailable, the employee’s statement is admissible under the declaration against interest
exception to the hearsay rule.
i. Remember: If employee is not sued in conjunction with the employer, then
there is no evidence against the employer as to the employee’s negligence.
ii. Jamison v. Walker
1. Driver takes a car for a test drive from the car dealer. During the test drive the driver hit P.
Driver tells police that he was P too late to avoid hitting him. At the time of trial, driver is
unavailable P sues the car dealer.
a. Only way driver’s statements can be admitted as evidence is under the declaration against
interest exception to the hearsay rule
1. Declarant-driver is unavailable
2. Statement was against driver’s pecuniary interests
3. There was no reason for driver to lie
4. Driver had competent knowledge of the facts
a. Driver’s statement is admissible against D-car dealer even
though D and driver were strangers.
iii. Basile v. Huntington Utilities
1. Driver had permission to drive his employer’s truck. Driver hit someone. Driver pleaded guilty to
reckless driving and was convicted. P wants driver’s admission to be admitted against the employer.
Driver was unavailable at the time of trial.
a. The court allowed the driver’s admission to be admitted under the declarations against
interest exception to the hearsay rule to go to employer’s liability.
iv. People v. Brown
1. This case allowed a statement against one’s own penal interest to be admissible as a declaration
2. D claimed self-defense when he was being tried for murder. There was no evidence that the victim
had a gun however. Seals told D and police that he had picked up the victim’s gun and used it in a
subsequent robbery. D called Seals to testify at trial, but Seals took the 5 .
a. The court held that if the declarant takes the 5 , it is the same as being unavailable and
therefore, declarant’s statements to D and police are admitted under declaration against
interest exception to the hearsay rule.
i. In subsequent cases, the Ct. of App. held that even if the declarant does testify at
trial and does not take the 5 , the declarant’s statements are still admissible as
declarations against his own penal interests if there is indicia that the statements
3. Can a piece of paper which contains a declaration against one’s own pecuniary interest be admitted
as a declaration against interest as well as other statements closely connected to the issue for their
a. In Civil Cases – YES
b. In criminal Cases – to exculpate the D, YES.
i. To inculpate a D – determined on a case-by-case basis
1. The court must find that the statements are reliable
v. People v. Thomas
1. D’s accomplice in a crime pleaded guilty to a lesser charge. Prosecutor wants to use accomplice’s
confession as a declaration against interest to go to the truth that more than one person participated
in the crime at the trial of the D.
a. Accomplice was called to testify at trial, but took the 5 .
b. Court held that both parts of the accomplice’s confession (fact accomplice did it and that
there was another involved in the crime) were admissible against the D.
i. The court also held that the fact that the accomplice took a plea bargain is still a
declaration against interest
1. Accomplice took the 5 , confession made under oath, still convicted of a
ii. The declaration inculpated the D.
vi. US v. Katsougrakis
1. Federal Case
2. Federal Rule- Same as NY except federal rule requires corroborating circumstances that clearly
indicate the trustworthiness of the declaration against interest.
3. Federal Court interpret federal Rule 804(b)(3) to inculpate a D.
4. If a person can only shake his head to indicate yes or no because they are physically incapable of
speaking, the shaking of the head is considered a declaration against interest
5. S.Ct. held that collateral facts are NEVER admissible as a declaration against interest.
a. Collateral facts in a confession are not admissible against another.
vii. Co-conspirator Cases
1. All conspirators are agents of each other until they are arrested
a. Until arrest, a conspirator can make admissions for the entire group of criminals
b. After one’s arrest, the conspirator can make declarations against his own penal interest
that are admissible against the entire group if the arrested conspirator is unavailable
i. If a statement is not against the arrested conspirator’s interest, the statement
is NOT admissible against other conspirators.
2. When dealing with co-conspirators, collateral facts are NEVER admissible at trial of other
a. If an arrested conspirator tells police in his confession the names of the other
conspirators, the names are NOT admissible at the other’s trials.
i. Naming others actually helps the arrested conspirator
c. BUT, if the confessor told a friend about the crime and named those who helped him, the
names of the other conspirators would be admissible in court against the conspirators
i. If arrested conspirator names others while in police custody, those names are
1. Except, if a cop confesses to another cop outside the line of duty
e. Dying Declaration Exception to the Hearsay Rule
i. General Info:
1. Federal Rule: a declarant’s statements made by him while believing that his death was imminent,
concerning the cause or circumstances of what he believed was an impending death are admissible
for their truth,
a. Dying declarations admissible in both civil and homicide criminal cases
b. Dying declarations admitted in cases when the victim is not the murder the D is being
2. NY Rule:
a. Declarant must have knowledge that he is dying
b. Declarant must actually be dying
c. Declarant must have abandoned all hope of recovery
i. All requirements can be inferred from the circumstances Victim does not
need to say all of the requirements
ii. Dying declarations only admissible in criminal homicide cases No civil cases.
iii. Victim making the dying declaration must be the murder that the D is charged
ii. People v. Nieves
1. Victim was shot, but wound was small and not bleeding that much. Victim began to stabilize at the
hospital and was alert. Dr.’s did not believe she was critical. Victim told Dr.’s and cops that D
shot her. Victim then died. Prosecution wants victim’s ID of D admitted under the dying
declaration exception to the hearsay rule.
a. Court refused to allow the admissibility of the statement under this exception
i. Victim did not know she was dying even though she was afraid of dying. Victim
also did not abandon all hope of recovery.
iii. People v. Taylor
1. Victim spelled D’s name out in his own spilled blood.
a. Court allowed this to be admitted as a dying declaration
i. All circumstantial evidence pointed to the fact that the victim knew he was dying
and had abandoned all hope of recovery.
f. Present Sense Impression Exception to the Hearsay Rule
i. General Info:
1. Statement must be made contemporaneously with the event or a few seconds afterwards
2. Can be used in both civil and criminal trials
ii. People v. Brown
1. Person calls 911 and told them that he was witnessing a burglary in progress across the street from
his apartment. Cops arrive and see 2 people fleeing the scene and capture one of them. Person
called 911 again and told them that the police missed the other burglar on the roof. Cops come back
and find the other burglar on the roof and arrest him. Person was unavailable at the time of trial.
a. Court allowed the admission of the 911 calls under the present sense exception to the
i. Added a corroboration requirement to the exception (need for independent
1. Federal Court does not require this additional requirement
ii. Unavailability of declarant is NOT a requirement
1. Even if declarant is available, the tapes would be admissible
g. Excited Utterance Exception to the Hearsay Rule
i. General Info:
1. Federal and NY Law are the Same
2. Someone observed an exciting event and then makes a statement while still excited to another
3. Declarant does NOT need to involved in the event and the statement can be made after the event as
long as the declarant is still excited.
4. Declarant does NOT have to be unavailable for the his statements to be admissible
ii. People v. Caviness
1. Bystander saw victim get shot and right away said that D shot the victim.
a. Court allows the bystanders statement to be admitted for its truth since:
i. Declarant was excited at the time she made the statement
ii. Statement related to an exciting event
2. Hypo: Victim shot and right after says “Bob shot me.” Victim survives the shooting and at trial,
the victim says “Steve shot me.”
a. Victim cannot be impeached for prior inconsistent statements by the prosecutor
b. Bystander who heard victim say “Bob shot me” can be called as a witness to testify about
what he heard victim say
i. What if victim claims in court that he yelled “Steve shot me” right after the
1. Witness and victim are judged by the jury on credibility
iii. People v. Edwards
1. Victim’s brother heard the victim screaming in her apartment. He couldn’t understand her so he
asked her questions as to what happened. Victim responded to the questions and told her brother
that D attacked her.
a. Ct. admitted victim’s statements under the excited utterance exception to the hearsay rule
i. Does not matter that the declarations were made in response to questioning
2. How much time can elapse and the statement can still be considered an excited utterance?
a. No bright line test As long as excitement is still present, that statement is an excited
i. Ex. If victim is knocked into a coma and when she wakes up right away she says
“D did this to me,” it is still an excited utterance
3. If victim does NOT remember the event at the time of trial, but made an excited utterance right
after the event, the excited utterance is still admissible as proof of the event
iv. Res Gestae
1. The events that form the litigated act. Statements made as part of the “res gestae” are admissible
in evidence under an exception to the hearsay rule, when the statement accompanies an event that is
otherwise admissible and explains the event.
a. Ex. A driver states, during a car accident, “my gas pedal is stuck.”
v. Statements of Present Pain
1. In NY, a declaration of present pain to a treating Dr. is admissible Dr. can testify about
patient’s present pain in court
a. In Federal Court, a declaration of present pain can be made to a treating or diagnosing
physician or ANYONE
2. If a person sees another moaning and groaning in pain, the witness can testify that the person was
a. BUT, if person tells another that they are in pain, the declaration of pain is NOT
h. State of Mind Exception to Hearsay Rule
i. General Info:
1. Anyone can testify that about delusional statements they heard a party make to go state of mind
2. Declarations can be used to show the listener’s state of mind
ii. People v. Ricco
1. D convicted of murder. On appeal, he offers the affirmative defense of insanity and therefore D
must prove insanity by the preponderance of the evidence. If D proves affirmative defense, he if
found NOT GUILTY. D offered his own testimony and his mother’s about D’s delusions
regarding aliens controlling humans minds by emitting microwaves from ships.
a. Court allowed the testimony to be admitted since it was not admitted for its truth
(obviously) but offered to show the state of D’s state of mind
i. NOT hearsay since it is not offered for the truth of its content
iii. Matter of Storar
1. Issue: Whether brother Storar expressed his wish to be taken off life support if he ever became a
a. Court found that he did express this wish
i. Storar told others on 2 occasions that he did NOT want to be kept on a
respirator if he ever found himself in this type of situation.
ii. In NY, evidence that a person would not want to be on life support must be by
Clear and Convincing evidence.
iv. Shepard v. US
1. D was convicted of murdering his wife by poisoning her. D offered evidence that victim was in a
“suicidal” state of mind at the time of her death. D offered witness testimony that his wife wanted
to die (circumstantial evidence of wife’s state of mind). Prosecutor then attempted to rebut D’s
evidence of victim’s state of mind by showing that she did not want to die.
a. Issue: Is statement “D poisoned me” admissible to go to victim’s state of mind?
1. This does not show that the victim wanted to live
2. Does not show the victim’s state of mind
3. Prejudicial to D
b. Even if statement was offered for its truth, it could not have been admitted since victim did
NOT have personal knowledge that D killed her.
2. Wife cut husband off financially in her will since he was cruel to her. Wife is then killed by a bus.
Husband sues bus for pecuniary loss for wrongful death. Bus argues that husband lost nothing
since he was cut out of the will. Husband argues that the will is hearsay and therefore not
admissible. Bus wants will admitted to go to victim’s state of mind.
a. Court allows will to be admitted to go to victim’s state of mind
i. Declaration of Intention Exception to the Hearsay Rule
i. General Info:
1. Statements a declarant made about what he has done are inadmissible as hearsay
a. BUT statements a declarant makes about what he is going to do in the future are
admissible to show declarant’s state of mind NOT to show declarant actually did what he
i. Intentions are circumstantial evidence that the declarant did the thing he had
intended to do
1. Intentions can be given different weight by the jury depending on
circumstances or reasons to do something
2. In NY, the witness must be unavailable. In fed. ct., the witness does not have to be unavailable
ii. Mutual Life Insurance v. Hillmon
1. Mrs. Hillmon trying to prove the dead body found was Mr. Hillmon so that she can collect on the
policy. Insurance co. suspects that the dead body is Mr. Walter and that Mr. Hillmon is still
alive and the Hillmon killed Walter. Insurance Co. has letter from Walter to his family that he
was leaving Wichita with Hillmon.
a. S.Ct. held that the letters were admissible to go to show Walter’s intention to go with
Hillmon NOT to show that he actually went.
i. FRE now codified this exception but requires that evidence of intention can only
go to the declarant and NOT to what another individual does
iii. U.S. v. Sterling
1. GET NOTES FROM ANIL
2. Problem: If informant tells cops he is meeting another person for a “narcotics conversation” and
the person who meets with informant is only meeting him for innocent reasons. The innocent person
is arrested and informant’s statement that he was meeting that person for a “narcotics conversation”
is admissible at trial NOT fair
iv. People v. Hodge
1. NY Case
2. Landlord told another that he was meeting D for the purpose of allowing D to clean out his
apartment. Landlord was found murdered in D’s apartment.
a. NY court allowed landlord’s statement to be admitted to show landlord’s intent
b. In Fed. Ct., the court would have required the prosecutor to show independent evidence
that the D actually showed up at the apartment.
v. People v. James
1. Person says to another “I am having the meeting at my apartment and D is coming to.”
a. Court held that this was admissible to go to D’s intentions since independent evidence
corroborated the statement.
j. Prompt Complaint Exception to the Hearsay Rule
i. General Info:
1. If someone does NOT make a prompt complaint of a crime, it casts doubt over the validity of
a. It is NOT a requirement to make a prompt complaint, but it goes to credibility.
ii. People v. Rice
1. Witnesses/cops are allowed to testify about the complaint given by the victim since it is an exception
to the hearsay rule.
2. If the complaint contains a description of the assailant, it is admissible at trial to bolster the victim’s
credibility (not under the prompt complaint exception however)
iii. People v. Huertas
1. Fact that actual appearance of D is different than the description victim gave right after crime can
be used by D to decrease the credibility of victim at trial. BUT, if appearance and description
match, prosecutor can use to bolster victim’s credibility.
a. Remember description of D given by victim is NOT offered for its truth, ONLY for
k. Former Testimony Exception to the Hearsay Rule
i. General Info:
1. NY Law
a. If witness is NOT available, his testimony taken at a former trial can be introduced into
evidence by either party at a trial for the same subject matter in the same or another
action between the same parties
i. Civil Cases Requirements:
1. Witness who testified at earlier trial is unavailable
a. Witness takes the 5 th
b. Physical Mental Illness
c. Beyond Jurisdiction
d. Can’t find the witness
e. Incompetent to testify
i. Dead Man’s Statute (if D dies after the 1 trial, P
is then incompetent to testify about his transactions
with D at 2 trial P can read in his previous
testimony from the 1 trial)
ii. Exception to unavailability requirement in NY:
Employee and Dr. previous testimony at trial is
admissible at subsequent trial even if they are
2. Issues must be similar
3. Party who testimony is offered against must have been a party at the
a. BUT remember that if testimony cannot be admitted under
this exception cause this requirement is not met, it might be
able to be admitted under another exception (ex. declaration
b. not necessary that both parties be identical
4. Transcript must include both direct and cross examinations
a. If transcript cannot be found, the testimony of a witness at the
former trial is admissible about what the unavailable party
ii. Criminal Cases Requirements
1. Prior Testimony can only be used when the subsequent trial is for the
same criminal action (same indictment)
a. When error occurred at 1 trialst
b. Testimony given at hearing on the felony complaint
c. Testimony given at a conditional examination of a witness.
i. This is when a witness is about to die before trial.
But, if witness lives, he must testify at trial, but his
previous statements may be used as previous
inconsistent statements (NOT for the truth of their
d. BUT, testimony given at an administrative hearing cannot be
admitted in a criminal trial.
2. Witness MUST be unavailable
a. If a witness is in federal custody and the party tries to get
witness from the fed’s using diligence, but the feds refuse, the
witness is unavailable
b. NY Exception: Employee and Dr. previous testimony at
trial is admissible at subsequent trial even if they are available
3. If transcript cannot be found, a witness to the 1 trial is not permitted
to testify about what a witness said at the trial.
4. If party does NOT cross at 1 trial, the lack of cross cannot prevent the
admission of previous testimony
a. As long as party had opportunity to cross, it is enough
b. Same in civil and criminal cases
iii. ***Whatever kind of case is bring tried presently (civil or criminal), those kind
of rules apply to the admission of previous testimony.***
ii. Fleury v. Edwards
1. Civil Case
2. Earlier testimony given at an agency hearing regarding the accident at issue in subsequent trial is
admissible under the previous testimony exception.
iii. When witnesses are murdered
1. Typically, if a prosecution’s star witness dies before a trial but gave testimony before a grand jury
before his death, the grand jury testimony is not admissible at trial because the D is NOT present
at his grand jury indictment and therefore he had no opportunity to cross.
a. BUT, if prosecutor has evidence that D ordered the murder of the witness for the sole
purpose of preventing the witness from testifying, it is the same as D forfeiting his right to
i. Prosecutor must prove D ordered the murder by Clear and Convincing Evidence
ii. In Fed. Ct., prosecutor must prove D ordered the murder by the Preponderance
of the evidence
2. If witness told police that D committed a crime and subsequently the witness changed his story and
the prosecutor can prove D is responsible for the change, the statement that the witness made to
police are admissible for the truth of their content at trial.
a. If D threatened witness and witness leaves the country, the testimony may enter
b. If witness takes the 5 and prosecutor can show D threatened witness to do so, the
testimony may enter
c. If D persuaded witness to lie at trial by threatening him, the prosecutor can have the
testimony admitted if she can show the lying was caused by the D threats
i. But remember, if the witness testifies and lies, he is still subject to cross, but the
prosecutor can still read witness’s previous testimony into the record
iv. What if witness exculpates D through his testimony at grand jury indictment?
1. BRADY MATERIAL (same in NY and Fed.)
a. If D asks prosecutor for the exculpatory material, the prosecutor must give the D the info.
b. If witness dies before trial, the D may read the exculpatory witness testimony into the
record because the prosecutor was there to cross the witness BUT the prosecutor must
have had “similar motives” in cross before the grand jury (very rare).
i. Ex. If the prosecutor does not cross the exculpatory witness, the testimony is
NOT admissible at trial
ii. Ex. If prosecutor tries to impeach the exculpatory witness before the grand jury,
courts view this as the “same motive” he would have had at time of trial
l. Admissions Exception to the Hearsay Rule
i. General Info:
1. Def: Admission of a relevant fact by a party that is against his stance at trial.
2. Federal Rules: Admissions are NOT hearsay
3. NY: Admission are hearsay but fall under this exception
4. Vicarious admission: Made by party’s agent but considered to be said by the party
a. NY LAW
i. Agent must be authorized to speak for the principle
1. This can be proven by circumstantial evidence or agent testimony
2. There are cases where an agent is authorized to speak when doing an
action, the agent’s statements are admissible against his employer
3. Generally, there is NO implied authority to speak for one’s principle
unless one is a high level official for the company
ii. If the only evidence of employer’s negligence is a non-authorized employee’s
statements, there is NOT enough evidence against the employer for respondeat
superior Employer is NOT liable
1. BUT, remember, if an employee testifies in court that their employer
had notice of a hazard that is enough evidence against the employer for
b. Federal Law: Low level employees have authority to make admissions about their
employment that are binding on their employer if the statements are made during the
course of employment
5. Federal Law: Adoptive Admission
a. Def: When a person makes admission about an event that he has NO personal knowledge
of at all
b. Ex. Employer asks employee what happened and employer tells cops what the employee
said. At trial, cop testifies as to what the employer said to him.
i. If employer says “My employee said he . . .”
1. NOT admissible as an adoptive admission
ii. If employer says “My employee went through the red light.”
1. Admissible as an adoptive admission
6. Remember: One can always explain to a jury their admissions
7. Silence as an Admission
a. Silence can constitute an admission in both NY and Fed, Ct. and both criminal and civil
cases (silence = consent)
b. Ex. Bystander to an accident says to driver “You went through the red light.” And the
driver says nothing. This is admissible as an admission by the driver since it would have
been natural to deny it if it was false.
c. But, if the police are the ones making he accusations or are present when a bystander
makes an accusation and the suspect says nothing, suspect’s silence does NOT constitute
an admission since it is NOT natural to deny accusations made by a cop (this is a
i. In NY, silence in the presence of cops cannot be used to impeach D’s credibility
or as evidence in chief
1. One exception: When cop is arrested for larceny and remains silent
and at trial he claims he was undercover and on the job at the time.
Court allows prosecutor to use silence to impeach D because D had a
DUTY to inform his superiors of his undercover work.
ii. In NY, if private individual makes an accusation and D remains silent, D’s
silence can be used to impeach and as evidence in chief.
iii. In Fed. Ct., if private individual makes an accusation and D remains silent. D’s
silence can be used to impeach and as evidence in chief
iv. In Fed. Ct., silence in the presence of cops cannot be used against a D to
impeach or as evidence in chief
1. One exception: When a suspect is NOT given his Miranda warnings
under questioning and remains silent and then at trial takes the stand,
silence can be used to impeach D but NEVER as evidence in chief.
ii. Kwiatkowski v. Lowery
1. Victim was injured in accident and stated over and over against that the accident was entirely his
own fault. Many bystanders heard victim say this. Victim then dies before trial and victim’s
family now want to recover damages for injuries and expenses sustained by victim during his
a. Issue: Is victim’s admission admissible against victim’s estate?
i. YES because estate and victim are one in the same
ii. Admissions also admissible against estate in wrongful death action brought by
iii. People v. Sanders
1. General Rule: Co-conspirators actions and statements are admissible against all of the conspirators
a. RULE: A foundation MUST be laid that a conspiracy between declarant and the D
existed without reference to the declarations/admissions urged to be admitted before
admissions can even be admitted against co-conspirator.
i. Must show conspiracy existed, declarant was a conspirator, D was a
conspirator without reliance on the out of court statements
ii. Bootstrapping: using the admission to establish the existence of conspiracy
1. NOT allowed in NY
iii. NY Requirements for co-conspirator cases(not required in federal court):
1. Declarant must be unavailable
a. Exception: Can use the out of court statement of declarant
even if he is available ONLY if he is present at trial
2. Independent Evidence of reliability
iv. Bourjaily v. U.S.
1. Court holds that the admission itself is evidence of the conspiracy when the judge is making the
preliminary decision of whether the conspiracy even existed.
a. Federal Court allows Bootstrapping but some other evidence of the conspiracy must be
presented as well
2. Since this case, FRE was amended so that the admission is able to be considered in part in
determining existence of conspiracy BUT other independent evidence is needed.
v. Remember: Once a conspirator has been arrested anything he says CANNOT be used against other
1. If police prevent a crime from being committed but the conspirators do NOT know of it, all
conspirators admissions are still able to be used against others. Also, others can still join the
conspiracy once police prevent crime from being committed.
vi. Cruz v. NY
1. This case holds that if the arrested conspirator makes a confession and confession is to be used
against a co-conspirator, all statements naming the co-conspirator must be taken out before read to
the jury. BUT, if the confessor takes the stand at co-conspirator’s trial, confessor’s confession can
be read including statements naming co-conspirator.
2. RULE: Even when co-conspirator confesses himself, the arrested conspirator’s confession which
names the co-conspirator may NOT be read to the jury.
m. Official Document Exception to the Hearsay Rule
i. General Info:
1. If a party makes unfavorable statements in pleadings, etc., they are conclusive on the party and the
jury must find that way.
a. If pleading is amended, the 1 pleading is still admissible but NOT conclusive.
2. RULE: Offer to settle is never admissible as an admission in a civil trial. Also, all statements
made at settlement meeting are inadmissible at trial in both NY and Fed. Ct.
3. RULE: In a criminal case, if D tells prosecutor he is willing to plead to a lesser crime, this is not
admissible at trial. BUT, if D makes statements about the case at plea meeting, these are
admissible as admissions at trial in NY. IN Fed. Ct., statements made at a plea meeting are
inadmissible at trial.
a. Attorneys state everything to be said is a “hypothetical” or without prejudice as a way
out of the admissions exception.
b. In Fed. Ct., a prosecutor can tell D he will only consider a plea if D waives the protection
of the Federal Rule that provides that any statements that D makes at meeting are
inadmissible at trial.
c. If D pleads guilty and then withdraws the plea, the prosecutor cannot then use the
withdrawn plea as an admission at trial.
i. Also cannot use statements made at the plea meeting as admissions at trial.
ii. Also cannot use the withdrawn plea or statements made in connection with it to
impeach D at trial.
iii. BUT, if P then sues D in a civil action, the P can then use the statements
made in connection with the withdrawn plea to impeach D but NEVER as
evidence in chief.
iv. In Fed. Ct., statements made in connection with a guilty plea in a foreign
country can be used in the US as an admission.
ii. Ando v. Woodberry
1. D pleaded guilty to traffic violations in Traffic Court Convicted on the public record. At civil
trial, P wants guilty plea to be received in evidence as an admission.
a. Court admitted guilty plea as an admission BUT if the D was convicted after a trial, the
conviction could NOT be used against the D in a subsequent civil action depending on the
offense (traffic violation is too small and meaningless)
iii. Gilberg v. Barbieri
1. D found guilty of criminal charge of harassment (violation/petty offense). P then sued D civiilly
for $250,000. P argues for summary judgment since D found guilty in criminal court for violation.
a. Court refuses summary judgment
i. The conviction for violation is NOT conclusive in subsequent civil trial
a. Petty offenses and traffic violations are NOT conclusive and
probably not even any evidence in subsequent cases
2. Collateral Estoppel (issues litigated and determined in a proceeding are
binding for those parties involved should those issues arise in any
subsequent proceeding) does not apply to petty violations.
a. Always applies in felonies
b. Probably applies in misdemeanors
iv. Beech Aircraft v. Rainey
1. Navy conducted an investigation of plane crash which it was required to by law. The report
contained both “facts” and “opinions.” Manufacturer wants report admitted since it is a public
a. S.Ct. held that there is NO need to make distinction between “facts” and “opinions” as
long as they are contained in the report UNLESS the court finds the report to be
untrustworthy. The admitted report is NOT conclusive but is some evidence.
i. Same rule in NY and Fed. Ct.
v. Administrative Hearings
1. Holding and related findings of an administrative hearing is admissible in a subsequent civil action
as CONCLUSIVE EVIDENCE.
2. If a party takes full responsibility at an administrative proceeding, this is also admissible in a
subsequent civil action as CONCLUSIVE EVIDENCE.
10. LAY OPINIONS
a. General Info:
i. Def: non-expert witnesses
ii. Usually can only testify as to facts that they have personal knowledge of
1. Can give opinions if they are based on their perception and the opinion is helpful to the jury in
understanding the testimony.
a. Opinions are inherent in giving facts
i. Opinion as to what color something was
b. People v. Russell
i. Prosecutor wants to call 4 acquaintances of D to ID the robber in the pictures taken during a bank robbery
as the D. D objects since that is opinion.
1. Court allows the 4 to testify as to the ID of the D in the pics
a. Witnesses are speaking from their personal knowledge Testifying to facts NOT to their
ii. Also, a lay person can testify as to the speed of a car if they have rode in a car before and viewed a car’s
speedometer, in NY and Fed. Ct.
1. A lay person can ID another’s voice if at another time the lay person spoke the other face to face
(once is enough). In NY and Fed. Ct.
a. What if one cannot prove that it was D on the phone by voice recognition alone?
i. In Fed, Ct., one can call the # that showed up on called ID and asked for D
and if the D says that it is him, then this proves D was the one that made the
ii. In NY, courts require addition evidence that D was familiar with the subject
matter discussed in the previous conversation.
2. Lay person can testify that another was drunk if they have any experience with drunkenness
a. Even a 7 yr. old can testify that another was drunk
c. People v. Lynch
i. Government did not have possession of the drugs the D is charged with selling. Therefore, the government
wants the buyers/users of the drugs to testify that the substance sold to them by D was pot or PCP.
1. Court allows since the witnesses were experts by experience
a. To have a lay person qualify as an expert by experience, the witness must have used the
drug a number of times (more than 2 or 3 isolated incidental uses). Up to the judges
d. Clapp v. Fullerton
i. General Rule: A lay witness testifying to the soundness of another’s mind may ONLY give his opinion
based on what the witness say and heard. The witness may say that the acts or statements made by another
impressed him as rational or irrational BUT may not say if the person himself was rational or irrational.
1. Exception: An attesting/subscribing witness to a will can give her general opinions about the
soundness of testator’s mind (whether the testator had a general idea of his property and natural
object of his bounty)
11. Expert Testimony
a. General Info:
i. Def: An expert had special knowledge in an area above the knowledge of an average juror so that he may
give information and opinions to aid the jury in its understanding.
ii. The party offering the witness must prove that the expert is qualified.
1. Does this by going over the expert’s CV while expert is on the stand so that the expert can affirm all
of the info. The jury is present during this so that it may decide how much weight to give to the
iii. 3 Ways to Become an Expert:
2. Observation of other experts work
3. His own practical knowledge/experience
iv. In NY, experts testifying to the general inaccuracy of eyewitness ID of D’s are allowed an opportunity to
convince the court of “general acceptance” of their scientific studies
1. BUT, remember, that even if a judge is convinced, he may keep the testimony out as being too
b. US v. Frey
i. Expert offered by D; expert in determining credibility by developing the lie detector; expert can interpret
graphs produced by machine; based on scientific knowledge/principles of hormone release under stress which
causes physical effects
1. Court held that if these are basic scientific principles that are generally accepted as accurate and
reliable by the scientific community of the particular field of science being testified to, then his
expert testimony is to be admitted (Still the rule in NY in dealing with scientific evidence but
NOT non-scientific evidence)
a. IN this case, the expert was rejected since there was no general recognition
c. People V. Barrett
i. Prosecutor called expert on rape trauma syndrome which has achieved general acceptance in the scientific
community. Prosecutor asked questions of the expert that related to a victim’s behavior before and during a
rape (not included in rape trauma syndrome)
1. Court demanded the case the be remanded for determination of general acceptance of the experts
testimony in relation to victim’s behavior before rape and during rape since it is not covered under
rape trauma syndrome
d. NY CPLR §4515 Form of Expert Opinion
i. An expert does not need to have personal knowledge of the facts of the case and can answer questions posed in
the form of hypotheticals but expert can also answer questions that are not in hypo form.
ii. If it part of the general professional practice in the expert’s field to interview those who know the party and
then bases his opinion on those interviews, the expert’s opinion is admissible.
1. It must be proven that it is in fact part of the professional practice to do this however
2. Hambsch v. NYCTA
a. Expert of P gives opinion based on his examination of P and his conversations with other
physician about an unidentified study
i. Court rejected expert testimony because it was not the practice of the profession of
physicians to rely on unknown studies
3. In NY: If it is part of the professional practice of psychiatry to rely on lie detector tests in
forming their opinions, the psychiatrists opinion is not admissible since the courts have found that lie
detectors are not generally accepted as accurate and reliable in the scientific field.
a. BUT, if expert can base his opinion on other grounds, his testimony is admissible
4. In NY: DNA evidence is generally accepted as reliable in the genetic field and therefore is
e. Daubert v. Merrel Dow Pharmaceuticals
i. Federal Case where the S.Ct. held that the Frye Test is overruled by FRE 702 No “general acceptance”
requirement in federal court.
1. Now, the judge must look to: 1)whether the theory can be tested; 2)theory subjected to peer review
and publication; 3)the known or potential rate of error; 4)whether the theory is “generally accepted”;
and, 5)whether the test was done objectively (as compared to it being done once hired by the party).
a. None of these factors is dispositive of admissibility
b. These same factors are used in dealing with scientific evidence and non-scientific evidence
c. Not only do that facts relied on by the expert have to be reasonable, but the expert’s opinion
must be reasonable based on the facts
f. People v. Hughes
i. Victim could not ID her rapist after attack; prosecutor hired hypnotist to aid victim in remembering; victim
then ID’d D as her rapist; D objects to the use of hypnotism in that it is too suggestive
1. Court rejects used of hypnotism
a. NY Rule: Prosecution cannot use any information or recollections gotten by the use of
i. Anything recalled before hypnosis may be used if prosecutor can prove by
CLEAR & CONVINCING evidence that the prehypnotic recollection has
not been made more certain by hypnotism
1. Very hard to do Prosecutor should never use hypnosis to refresh a
ii. BUT, D may testify about their own refreshed recollections gotten by use of
hypnosis if court finds that the hypnotism was property done and not unduly
1. hypnosis should be videotaped
b. Federal Rule: Federal Court uses totality of evidence in cases of both prosecution and D
witnesses to determine admissibility of refreshed recollection of the event
i. No rule totally barring use of hypnosis in cases of prosecution witnesses
ii. D may testify about their own refreshed recollections gotten by use of hypnosis if
the court find that they hypnotism was properly done and not unduly suggestive
1. hypnosis should be videotaped
g. Matter of Luz P.
i. Case of facilitated communication
ii. S.C.t has ruled that any taking of a child away from her parents based on facilitated testimony is
1. Facilitated Communication is not admissible in any case
h. Impeachment of Expert Witness
i. Ways to impeach expert witness:
1. Show jury that expert is being paid and how much he is being paid
2. Show jury that the expert has been used continuously by the attorney and gets paid each time
3. Prove expert once gave erroneous opinion
4. Call contrary experts
a. Best to use treatises, etc. to contradict an expert since the treatise can not usually be
i. BUT, in NY, an expert can only be impeached be a treaties if the expert
recognized the book as being authoritative in the field
1. As long as expert denies the authority as being authoritative , he
cannot be impeached
2. REMEMBER: The treatise can never be used as evidence in
chief….it can ONLY be used to impeach
ii. In Fed. Ct., As long as the book (or video) is recognized be the expert, other
experts or is judicially noticed as authoritative, the book can be used to impeach or
as evidence in chief
12. Competency of Witnesses
a. General Info:
i. Oath serves 2 purposes:
1. Reminds witness that it is their responsibility to tell the truth AND
2. informs witness that they are subject to punishment if they lie
ii. Any form of an oath will suffice (ex. If an atheist refuses to sear to god)
iii. In NY, people that can observe, remember and relate can be a witness in criminal cases even if they are not
under oath because they do not have the mental capacity to understand the oath (mentally disabled or
underage (less than 9 years old)). Corroboration is then required for D conviction.
1. Corroboration requirement is fulfilled if there is independent evidence that shows:
a. The commission of the crime
b. D committed the crime
2. NOT so in Federal Court. In Fed. Ct. all witnesses MUST be sworn in
b. Matter of Brown v. Ristich
i. In NY, in civil cases, all witnesses must be sworn in with one exception:
1. NY allows a mentally retarded witness to testify unsworn in a civil case as long as there is other
evidence to corroborate the retarded witness’s testimony
c. People v. Groff
i. Criminal case; witness was 4 years old; did not know the difference between telling a lie and telling the truth;
witness could observe, relate and remember events however
1. Allowed to testify unsworn
ii. Ex. D charged with murder and raises alibi defense; alibi witness is 8 year old; ct makes finding that 8 year
old can observe, remember and relate; child says he and D were at Great Adventure on the day of the
murder since it was the child’s birthday; no other evidence is offered by D in support of the alibi
1. Is corroboration necessary here?
a. NO. Corroboration only necessary when the child is a witness for the prosecution
i. When D uses underage unsworn testimony, there is no requirement of
iii. REMEMBER, if an underage prosecution witness understands the oath, they can testify under oath and
then no corroboration is necessary
d. Maryland v. Craig
i. Prosecution invokes MD statute that allows a child to testify in a separate room away from D if it is shown
that the child would suffer from emotional distress being in presence of D. A one way TV is then put in
court room so that the D can still see the witness but the witness cannot see the D; D objects on
Confrontation Clause grounds since it would deny him face to face confrontation with the witness
1. Court held that the MD statute was constitutional
a. No absolute right to confrontation; only a qualified right
e. People v. Tuck
i. NY Rule: When child witness would suffer from emotional distress from being in the same room as D, 2
way TV is used witness still sees D but only on TV
ii. In this case, witness was in the court room but sat with his back to D while giving unsworn testimony at trial
1. Court held that his was an error due to lack of confrontation
f. Child Protective Proceedings
i. These are civil proceedings used when child is abused by his caretakers and the people are seeking to remove
the child from the custody of the abusive caretakers
1. In these proceedings, child witness does NOT need to be sworn in at any age and there is no
corroboration required to affect a change in custody, but clear and convincing evidence is still
2. Child’s out of court statements that do not fall under any hearsay exception are admissible to
establish the truth of their content, but corroboration is required
g. White v. Illinois
i. IN this criminal trial, a child’s excited utterance to his babysitter right after the event was admissible under
the excited utterance exception to the hearsay rule even though the statement was made by a child because it
was shown that the child understood what had happened to him.
h. Dead Man’s Statute
i. This is a rule of competency
ii. Remember that the statute only applies in civil cases and NOT in criminal cases
iii. Deals with claims against estates of deceased persons
1. Person bringing claim cannot testify concerning a personal transaction or communication between
himself (an interested party) and the deceased UNLESS testimony of deceased concerning the
transaction or communication is given in evidence by either party
2. The interested party is not the only person prevented from testifying
a. Person from whom an interested party derives their interest from is also barred from
i. If person assigns their interest to another, the person who was assigned rights
is not interested and cannot testify but the person who assigned their interest is
also incompetent to testify
iv. Ex. 3 people (a, b, c); c asks a to lend a’s ring to c; a agrees only if a agrees to return it the next day; b
witnessed the agreement; c is killed that night; c’s husband takes the ring; a asks c’s husband for the ring back
and c’s husband refuses and tells a that a gave the right to c; a sues c for the ring
1. A cannot testify under the dead man’s statute but she can call b to testify since b is not interested
v. 2 actions that can remove the bar of the Dead Man’s statute:
1. If executor of deceased testifies in his own behalf
a. But if executor only calls witnesses, the bar is not removed
b. Other party cannot call executor as their own witness to remove the bar
2. If deceased gave testimony concerning the transaction and the testimony is given into evidence under
the former testimony exception to the hearsay rule
vi. 2 Protected Classes Under the Dead man’s Statute
1. Executor of the Estate
2. Persons who derive their rights from the deceased
a. Ex. While alive, decedent takes out life insurance policy that named X as the beneficiary;
Y files claim once decedent dies stating that for valuable consideration the decedent
promised to change the beneficiary to Y
i. Can Y testify at trial?
1. YES because he did NOT derive his rights from deceased since
decedent was NOT entitled to any of the benefits of the policy while he
b. Ex. Decedent had pension plan; decedent could get money from plan before he retired;
decedent names X as beneficiary of the plan; decedent dies before retirement; Y claims
that he is the beneficiary since he paid valuable consideration to decedent
i. Since decedent had right to funds while he was still alive, Y cannot testify
against X at trail because of the Dead Man’s Statute
vii. Duncan v. Clarke
1. 4 year old’s father died; before his death, the father made an agreement with child’s grandmother
that he would pay so much money a month until the girl was 21 if grandmother would take care of
the child; girl’s mother was present and witnessed the agreement; girl’s mother brought suit against
decedent’s estate to recover all money due
a. Ct, held that mother could testify since she had no DIRECT interest in the outcome of
the case. The grandmother was barred from testifying under the Dead Man’s statute
since she is the person from whom the child derives her interest from
viii. Ex. D hits P when D ran a light; D died in crash; P sues D’s estate
1. Dead Man’s Statute allows P to testify to the facts of an accident in an action for negligence or
2. BUT if D told P that the accidence was D’s fault before he died, D’s admissions to P would
NOT be admissible since it is not a fact of the accident
a. But if bystander heard D take responsibility, bystander can testify to the admission
13. Privileged Communications
a. General Info:
i. If diversity case is being tried in federal court, the FRE govern EXCEPT:
1. In cases of presumptions
2. Competency of Witnesses
ii. Privilege renders a witness incompetent to testify
iii. Federal Privileges
1. Not codified All found in federal common law
2. Vary from circuit to circuit (2 Cir. Has no doctor patient privilege)
a. S. Ct. can overrule a privilege or announce a new rule of privilege
iv. NY privileges are determined by the state legislature
1. reporter/newscaster – source privilege is found in NY Civil rights law and all others are found in
a. All privileges apply in both civil and criminal cases
b. Reporter/Newscaster – Source privilege
i. General Info:
1. Privilege belongs to newscaster and NOT to the source
a. Newscaster can waive the privilege and reveal ID of a source is they wish
2. NY: Sources are absolutely privileged if the info was given in confidence; non-confidential info
that is discovered by newscaster has only a qualified privilege (must be revealed if a party makes a
strong showing that the info is necessary and can’t be found out any where else)
a. in Fed Ct., there is no absolute privilege but it is hard to get
ii. Cohen v. Cowles Media
1. P gave info to news in confidence; newspaper promised not to reveal P’s ID; D broke promise and
revealed P’s ID; P fired and sues D: D argues privilege is theirs and therefore they can waive it if
they wish; P argues that there was a K and that K was breached by D; D then argues 1 st
Amendment right to free speech of the press
a. Ct. held that D violated the K and D was NOT protected by the 1 Amendment in this
i. D liable for damages
c. Certified Social Worker – Client Privilege
i. General Info:
1. All conversations between the social worker and client are absolutely privileges with a few
a. If victim is under the age of 16 and tells the social worker that she has been the victim of a
crime, the social worker may be required to testify fully in relation to that conversation
ii. People v. Tissons
1. Court suggested that if D argues that he requires confidential social worker/client info so that D
may meaningfully confront a witness (Constitutional right), then the D may be entitled to the info
d. Attorney – Client Privilege
i. General Info:
1. Same rule in civil and criminal cases
2. Privilege only protects confidential conversations
a. If legal advice is given in the presence of others, the convo is NOT confidential
b. If D testifies about a confidential convo with his attorney, the convo in no longer
c. If police bug the counsel room at a jail, the conversation between the prisoner and his
counsel is still confidential since D had no reason to know that anyone was listening
d. If police refuse to give a private area so that a prisoner and his counsel may talk, the
conversation is till confidential
e. Statute covers all of lawyer’s employees, so therefore, if attorney’s secretary is present
for a confidential conversation, the conversation is still confidential
f. All letters, phone conversations and e-mails between a client and attorney are
i. If cops bug client’s phone under authority of a court order, any confidential
conversations that the cops overhear and still confidential and the contents of the
conversations cannot be used against client
3. Privilege does not need to be paid for
4. In NY and federal court, privilege survives death
a. Exception: In wills, the attorney is required to disclose info as to preparation, execution or
revocation of a will, but the attorney cannot disclose any communication that would tend to
disgrace the memory of decedent
5. Remember, it is only a violation of the statute if the attorney testified as to the contents of privileged
a. If attorney tells his friends about privileged conversations, there is no violations of the
statute, BUT it is a serious violation of the code of ethics
b. If D tells his friend what he told his attorney, this is a waiver of the privilege
6. Executor of decedent’s estate can waive decedent’s attorney-client privilege if it would be helpful to
the estate in gaining assets (Only in the 2 Department is this allowed right now)
7. Beneficiaries cannot find out about privileged conversations between executor and executor’s lawyer
(See §4503(a)(2) of CPLR)
8. When accountants are licensed to represent clients in tax matters before federal courts, the
accountants have accountant-client privilege.
a. Also, if accountant is an employee of the attorney, accountant is covered under the
b. If D brings accountant to a meeting with D’s attorney, the accountant is considered to be
acting as an interpreter of the documents and therefore is covered under the privilege (But
the papers prepared by accountant are not privileged)
i. Interpreters of any sort are ALWAYS covered under the privilege
1. In one case, a NY court held that a D’s daughter was acting as an
interpreter for D when D could not speak unless her daughter was
there for emotional support
9. Spouses are NEVER covered under the privilege It is malpractice to allow a spouse to sit in on
10. Attorney can hire a PR firm to counter adverse publicity and the PR firm is covered under the
ii. People v. Lynch
1. D charged with murder; Toomer was accomplice to D; Toomer made deal with gov. for immunity if
he would testify against D; D wants to find about conversations between Toomer and Toomer’s
a. Is acceptance of immunity a waiver of attorney-client privilege?
i. NO, testifying to facts does NOT waive the attorney-client privilege even if you
tell attorney those facts in a privileged conversation
2. Rule: If government gives you immunity (regardless if you asked for it or not), you cannot take the
5 at trial (you MUST testify).
iii. Rossi v. BC/BS
1. In-house counsel case
a. The privilege applies to in-house counsel and the corporation that employs them
2. Court held that a memo written by in-house counsel for a corporate officer is covered under privilege
even if the memo contains facts that are not privileged
3. Keep in mind that a problem may arise in cases involving in-house counsel cause in some cases in-
house counsel has mixed duties (acts as legal counsel and as a businesswoman)
iv. Priest v. Hennessy
1. Pimp told prostitutes that he would hire counsel and pay for it if any of them got into trouble; many
prostitutes got arrested and the same lawyer represented all of them; prosecutor wanted to find out
who was hiring lawyer and paying his fees in all of these cases
a. Court held that who pays an attorney’s fees is not covered under privilege and is therefore
v. What about situations where D disappears?
1. Attorney is required to tell prosecutor where client is since D’s location is NOT covered under
vi. Spectrum v. Chemical Bank
1. Is P entitled to contents of an investigative report prepared by a firm hired by D?
a. NO. The report is privileged since it contains legal advice and conclusions even though it
contains relevant discoverable information
i. P not entitled to report even if sections that are privileged are blacked out
b. BUT, P can ask D’s lawyer about what P’s employees told D’ lawyer if P subpoenaed
2. Can a prosecutor ask corporation to waive their attorney-client privilege in exchange for a lesser
i. What if prosecutor then finds evidence supporting additional charges within
those privileged documents?
1. Prosecutor may use that evidence in bringing additional charges
ii. Because of this waiver possibility, corporate lawyers are ethically required to tell
employees that he speaks to that he is the lawyer for the corporation and not for
the employee If employee has info that incriminates himself, he should hire his
own attorney. (Same for government lawyers)
vii. US v. Zolan
1. Crime Fraud Exception to the attorney-client privilege: When client gets advice from a lawyer to be
used in the commission of a future crime.
2. In this case, S.Ct. held that a court may make an in camara review of evidence alleged to tend to
prove the attorney gave advice to be used in the commission of a future crime, BUT the party
seeking admission must make some threshold showing that such review is appropriate.
a. This threshold showing can be met by using any relevant evidence, lawfully obtained, that
is not privileged that supports a good faith belief by a reasonable person that the crime
fraud exception applies.
viii. Niesig v. Team I
1. Rule: If a party is represented by counsel, that party may not be interviewed by opposing counsel in
the absence of that party’s counsel. Ex Parte Communications are not permitted
2. Issue: Who can be interviewed ex parte by an attorney when those who the attorney wishes to
interview are employees of a represented corporation?
a. Those who may NOT be interviewed without their counsel present are those corporate
employees whose acts/omissions in the matter under inquiry are binding on the corporation
or imputed to the corporation for purposes of its liability, or employees implementing the
advice of counsel. All other employees may be interviewed informally (ex parte).
i. Low level employees who are merely witnesses can be interviewed ex parte.
ii. This rule includes employees who were involved and then left the corporation
before investigation began.
e. Clergyman-Penitent Privilege
i. In General:
1. Privilege belongs to the confessor, not the priest
a. Person spoken to is a minister of religion
b. Must be seeking spiritual advice
c. Confidentiality must be intended
3. Confessor and minister do not need to be of the same religion
4. No breach of privilege if a married couple go to get spiritual advice and the minister gives advice to
both at the same time.
5. There is no tort cause of action if a minister tells others what a confessor told him (except in a quasi-
a. Cannot sue minister if he tells one’s spouse that the other is having an affair
6. No religious privilege in AA meetings.
ii. Matter of Keenan v. Gigante
1. Prisoner spoke to minister and asked minister to help get him into a work-release program or a
lower security prison. At an investigative hearing, minister refused to answer questions on the basis
of the clergyman-penitent privilege.
a. Court held privilege does not apply since the prisoner knew that the minister would have to
tell others what the prisoner told him to get him into a work-release program.
iii. People v. Carmona
1. Can a person waive his privilege by telling others what he told a priest or can a person only waive by
telling others that he told the priest something?
a. Rule: Telling another that you told a priest something is a definite waiver of the privilege.
b. Not sure yet if telling another the same thing that you told a priest is a waiver of the
privilege in NY.
i. IN Federal Court, this is a waiver.
f. Physician-Patient Privilege
i. In General:
1. This privilege includes nurses, dentists, chiropractors, emergency medical technicians, employees of
physicians and doctor records
2. This privilege belongs to the patient
3. The privilege covers any info that is necessary or helpful for diagnosis and treatment
a. Remember the all doctors treat the entire patient (including mental states of patients)
4. If anyone can tell a patient had a particular ailment (ex. Limping), the only confidential info is the
info relating to the treatment of the ailment.
5. Exception to the privilege: Dentist MUST testify in order to aid in the ID of a corpse.
a. Exception: Doctor must disclose info indicating a patient under the age of 16 had been the
victim of a crime.
6. There is a broad waiver of the privilege after the patient dies. Almost any interested party can
waive the deceased’s privilege unless the info would tend to disgrace the memory of the deceased.
ii. In the Matter of Grand Jury Investigation of Onondaga County
1. Police found victim stabbed and evidence showed that the assailant was stabbed by the victim;
prosecutor wanted all records of people treated for stab wounds on a certain date; hospitals refused
claiming patient’s privilege in the patient’s interest
a. NY Rule: It is required that hospitals report any injury resulting from a gun or any
knife wounds that are likely to result in death to the police.
b. In this case, the prosecutor may not get the records because it requested info of ANY
knife wounds and not just those likely to result in death.
i. BUT, if prosecutor asks for any names of patients reporting with a knife wound
that anyone could have seen, this is permissible only if the hospital can tell from
their records if others could have seen the wound.