NYBar-note-evidence

EVIDENCE (33 QS) Evidence (33 Qs) Issues identified in practice: Judicial notice: 司法认知 generally known in the jurisdiction or capable of ready and accurate determination; in civil case, conclusively established (mandatory) ; and, in criminal, may be taken by jury (discretionary) Impeachment by character for untruthfulness (reputation/opinion, bad act, prior conviction) rehabilitation In civil fraud case, prior fraud is permitted either for character evidence (??) or for proving intent Business records: judge may exclude business records if (i) source of information lacks truthfulness, (ii) no first-hand knowledge, (iii) purposed to prove what happened or not (for potential litigation) (note: this item (iii) is okay in NY) Dying declaration: in criminal case, victim must die because dying declaration is admissible only in homicide case (if victim is not dead, no homicide case). Watch for attempted murder Mini Review: Character evidence Criminal case: Prosecutor can’t introduce bad character for the purpose of proving action in conformity with character; D is allowed to introduce good character to prove he acted in conformity with good character; If D provided good character evidence, Prosecutor is allowed to show bad character evidence (reputation and opinion) and cross-examination of character witness by means of intrinsic evidence of “specific act” Evidence of other crimes are inadmissible for conformity purpose, but likely admissible for MIMIC purpose; If D takes the stand, P may impeach D with character evidence of untruthfulness. Civil case: You can’t introduce character evidence to show conformity; Character evidence may be introduced for other purposes, such as negligent hiring/entrustment, defamation, fraud, and MIMIC…; Watch for the difference between character evidence and habit evidence. Impeachment Prior inconsistent statement Extrinsic evidence allowed Impeached witness must be given opportunity to comment, before or after the offer of such extrinsic evidence Bias Extrinsic evidence allowed Witness must be cross-examined for the facts showing bias/interest prior to introduction of extrinsic evidence Prior crime conviction (10 years limitation for FRE) Involving dishonesty/false statement Other felonybalance test Extrinsic evidence by means of conviction record Prior bad act – only intrinsic evidence allowed, no asking about arrest Untruthfulness Reputation/opinion Specific evidence only by cross-examination, if denied, no extrinsic evidence Hearsay (note, party admission is nonhearsay under FRE) Method: hearsay? prior inconsistent statement, prior consistent statement, effect upon people, verbal actexception Prior identification (nonhearsay under FRE) Present sense impression Excited utterance Medical treatment statement Biz records Former testimony Dying declaration Party admission: vicarious admission (employee, partner, co-conspirator), adoptive admission Relevance相关性 Logical Relevance (Probativeness) Standard of admissibility – does the evidence have any tendency to make a material fact more or less probable than it would be without the evidence (relate to time / person / event)是不是和争议的人，事，或者时间有关 Exceptions where admissible – similar occurrences相似事件通常具有较小的相关性 Prior accidents or claims P’s prior accident history – inadmissible; EXCEPT Prove common plan & scheme of fraud; or原告以前提出过类似的欺诈性/错误的诉讼请求 When cause of P’s damages is in issue确定是否有因果关系 D’s prior conditions – ONLY involving the same instrumentality or condition, and occurring under substantially similar circumstances, to prove:由同样条件引起的相似事故或者伤害 Existence of a dangerous condition D had prior notice Causation Intent is issue – draw inference of intent from prior conduct e.g. gender discrimination意图或者思想状态 Similar sales to establish value价值 Habit Evidence – to infer a person acted on the occasion at issue特定性和经常性 Disposition evidence – NOT admissible Prior Act evidence (propensity) – NOT admissible Habit – Admissible (key words – always, invariably, automatically, instinctively) particularity; AND (b) frequency (judge’s discretion how often is enough) Industrial or Business Routine (business habit) – admissible工商业惯例 Industrial Custom as Standard of care (what do other similar companied do)行业惯例 Judicial Discretionary Exclusion法官行使自由裁量权排除的相关性证据 Probative value is substantially outweighed by danger of – (1) danger of unfair prejudice; (2) confusion of issues; (3) misleading the jury; (4) undue delay; (5) waste of time; (6) unduly cumulative NOT – unfair surprise这个不是！！ Public Policy Based Exclusion因为公共政策原因而被排除的证据 Liability Insurance Not admissible to show negligence // ability to pay EXCEPTIONS prove ownership or control (when disputed, get limiting instructions); OR证明所有权，控制权 impeachment – bias due to interest证明有无偏见或者利益关系--如保险理赔人员作为证人 Subsequent Remedial Measure Not admissible to show negligence / culpable conduct / product or design defect / need for warning EXCEPTIONS prove ownership of control (when disputed); OR rebut or impeach a claim that precautions were not feasible (when feasibility is disputed)采取预防措施的可行性 Subsequent remedial measures by 3rd parties – admissible 弹劾证人--声称产品不可能更好 NY Distinctions – Subsequent Remedial Measures (Strict Liability case) Manufacturing Defects – Admissible to establish defectiveness of product when made BUT, design defect ORharacter Evidence fer to pay medical expenses are Admissibleon.is disputed as to validity or amount failure to warn – NOT admissible (except for feasibility dispute) Settlements Civil Cases Not admissible – evidence of a settlement of offer to settle, to prove liability or weaken other party Not admissible – statements of fact made in course of settlement不能分离事实 Requirements (at the time of settlement discussion) There must be a claim – if someone admits before claim, it’s admissible; AND必须对方当事人有迹象已经提出了权利主张（并不需要很正式），否则就构成承认 There must be a dispute as to liability or amount 必须对责任或者数额有争议– if D admits to full liability, it’s admissible EXCEPT – for impeachment Criminal Cases已经撤回的有罪承认 Offer to plead guilty – Not admissible (all criminal & subsequent civil cases based on same facts) Withdrawn guilty plea – Not admissible (all criminal & subsequent civil cases based on same facts) Plea of nolo contendere (No contest)不反驳承认 Statements made during the course of negotiation NY Distinctions – Withdrawn guilty pleas Admissible in subsequent civil litigation based on same facts as party admission. Offer to pay Medical Expenses可以分离事实 Not admissible – to prove culpable conduct BUT, admissions of fact accompanying an offer to pay medical expenses are Admissible伴随的事实可作为证据 Prior Sexual Conduct of Victim In any civil or criminal proceeding involving sexual misconduct, the following is NOT admissible Opinion or reputation about the victim’s sexual propensity, or Evidence of specific sexual behavior of the victim Exceptions Specific sexual behavior to prove someone other that D was the source of semen or injury;用于证明是第三人而非被告是精液，伤害的来源 Victim’s sexual activity with D if the defense of consent is asserted; or Where exclusion would violate D’s right of due process (placed in controversy by victim) Character Evidence品格证据 Purpose of character evidence Direct evidence – person’s character is a material element in the civil case (character can never be an element in criminal case)性格本身就是案件争议的事实 Circumstantial evidence – infer conduct in conformity with character at time of litigated event证明性格与特定行为相一致 Impeach witness credibility弹劾证人的可信性 Method of proving character Specific acts Opinion testimony Reputation testimony Civil Cases除非性格本身就是案件争议点，一般不允许使用 Circumstantial evidence – NOT admissible to prove conduct in conformity (even civil case involving criminal conduct) Direct evidence – admissible where essential element of a claim or defense (e.g. defamation,child custody, negligent hiring or entrustment, deceit, assault/battery (for self defense purpose) ); methods – Specific acts, Opinion, or Reputation损害名誉权//有过失的委托//错误致死//决定监护权 Criminal Cases通常只能以名誉或意见证据的形式出现，不能用特定的行为//注意和质疑证人可信性区别 D proves character Evidence to prove conduct in conformity is NOT admissible during prosecution’s case-in-chief (D’s character trait is never an element) BUT, D may introduce evidence of a relevant character trait, which opens the door for rebuttal Methods – Opinion & Reputation不能以过去特定行为证明 Prosecution’s Rebuttal – when D opens door (only through character witness), prosecution may: Cross-examining character witness (specific acts) – inquiring D’s relevant specific acts (but can not prove them in trial) that reflect adversely on particular character trait introduced by D – to impeach character witness; and/or可以就被告特定行为质证，但不能引入外部证据 Calling its own character witness (opinion or reputation) – to contradict D’s witness Victim’s Character – SELF-Defense Case D may introduce victim’s BAD character (opinion or reputation不能就特定行为) – opens door for prosecution Prosecution may rebut by showing: Victim’s Good character; and/or D’s Bad character for the same trait (opinion or reputation) Separate rule of relevance – if D, at the time of alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show D’s state of mind – fear – to infer that D acted reasonably in responding as he did to victims’ aggression Specific Acts of Misconduct – for non-character purposes特定的不当行为作为证据；不作为品格或性情使用 Prior acts are admissible if they are relevant to some issue other than D’s character or disposition (not dependent on D’s introduction of character evidence because MIMIC is not character evidence) Motive动机：吸毒需要赌资是抢银行的动机 Intent主观意图 Mistake or accident, absence of错误不存在或者不是意外 Identity (modus operandi)身份：犯罪后留下的标志 Common Scheme or Plan犯罪准备；计划 Criminal case – on D’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence Requirements for admissibility对其使用的要求 Sufficient evidence to support a jury finding that D committed the prior act; AND Court must weigh probative value v. prejudice (must give limiting instruction) Prior acts of sexual assault or child molestation of D 性骚扰案件或者性骚扰儿童的案件---可以用于证明被告具有某种犯罪倾向 In sexual assault or child molestation case, evidence of D’s prior acts of such conduct is admissible for any relevant purpose, including defendant’s propensity for sex crimes ================================================================================ Writings & Documentary Evidence证 Authentication确认：首先确认书证是否是所声称的书面文件 Writing is not admissible until authenticated – proof must be sufficient to support jury finding of genuineness (jury makes the ultimate determination of fact, i.e., whether the evidence is authentic) Method确认书证的外在方法 Party Admission书证对其不利的一方当事人的承认 Witness personal knowledge Proof of handwriting如果是声音的话，可以是因为诉讼的目的而去熟悉 Lay Opinion – based on personal knowledge of handwriting (such knowledge must be acquired before the proceedings) (note: knowledge of voice/sound may be acquired after the proceedings commence.)不能仅因为诉讼目的去熟悉笔迹 Expert Opinion – compared with genuine samples (exemplar) Jury comparison – jury compares with genuine sample Ancient Document – presumption of authentication At least 20 years old; Facially free of suspicion; AND Found in place of natural custody Reply Letter Doctrine – document can be authenticated by evidence that it was received in response to a prior communication to the alleged author Self-Authenticating Documents – presumption of authentication自我确认的书证 Official publications公共文件 Certified copies of public records (e.g., car registration form) or business records Newspaper or periodical Trade inscriptions and labels [this can be offered as circumstantial evidence of ownership, manufacturer…no requirement of BER for such purpose] Acknowledged document – notarized document Commercial paper商业文件 Certified genuine foreign public documents Authentication of Photographs对照片的确认 Witness testifies on the basis of personal knowledge that “fair and accurate representation” of objects or people – need not be the photographer. Photograph in this sense is just like an illustrative drawing or map. Unattended camera – show properly installed, proper removal of film, show chain of custody. Videotape and tape are admissible like photograph, but their authentication should follow the requirements. Other mechanical records其他仪器测量结果 (similar to videotape) – (i) the process or system is accurate in its results; (ii) operated by qualified people and properly operated (if operation is necessary); (iii) no tampering 篡改in the chain of custody Best Evidence Rule (Original Document Rule)最佳证据规则 Definition a party seeking to prove the contents of a writing, must either produce the original writing or provide an acceptable excuse for its absence Only applies to writings – including sound recordings, X-ray, films包括录音，照片，X光 If excuse is acceptable – may introduce secondary evidence (e.g. oral testimony or a copy)一定情况下允许二手 When the Best Evidence Rule applies Writing is Legally Operative Document – writing itself creates rights and obligations (deed, mortgage) If not following in item a, where witness is testifying to facts learned solely from reading in a writing When NOT apply Fact to be proved exists independent of non-legally operative writing when a witness with personal knowledge testifies (e.g. birth date – no requirement of birth certificate) Writing is collateral to litigated issue涉及争议事实的附属事实 Certified copies of Public Record公共文件 Summaries of Voluminous Record – provided that original records would be admissible and available and the original/duplicates shall be made available for examination or copying.文件摘要 What qualifies as the “original writing” Writing itself Duplicates 文件副本与原本可以作为证据被同等程度的采纳– any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy) – duplicate is admissible to same extent as original (a print-out of saved data in a computer is treated as original) UNLESS a genuine question is raised as to authenticity of original, OR it would be unfair to admit the duplicate (e.g., blurry) Handwritten copy is NEITHER an original nor duplicate Excuses for non-production of original (persuaded by preponderance of evidence)可以不提供原始文件的几种例外情形 Lost or cannot be found with due diligence遗失且找不到 Original held by adversary who, after due notice, fails to produce the original Destroyed without bad faith Cannot be obtained with legal process Witness & Testimonial Evidence Competency of Witness Requirements Communicable personal knowledge Take oath or give an affirmation Dead Man’s Statute死者条例---针对民事案件 In civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent There is no federal dead man’s statute, this witness ordinarily not incompetent; BUT, must apply a state’s dead man’s statute where substantive law applies in diversity cases Requirements Civil Action; Witness must have a direct stake in the litigation; Witness must be testifying for his interest (not against it); Witness must be testifying against the decedent, or his representatives; Testimony concerns a personal transaction or communication with the decedent – the interested survivor isn’t barred from testifying against everything that’s relevant, but only as to manners which the decedent could contradict if he were alive (in other words, if he couldn’t contradict you when he was alive, you can testify about it when he’s dead) Unless waiver – which usually occurs when the testimony of the decedent somehow gets before the jury through a deposition of the decedent taken before he died Form of Examination of Witness质证 Kind of questions asked – largely matter of judicial discretion (e.g. narrative questions maybe allowed) Leading Questions诱导性问 Generally NOT allowed on direct examination; BUT allowed For preliminary introductory matters前提事实 Youthful or forgetful witness年幼或者易遗忘的证人 Hostile witness – witness is adverse party or someone under control of adverse party有敌意的有利益冲突的证人 Generally allowed on cross-examination Writings in Aid of Oral Testimony Refreshing Recollection 唤起记忆(Present recollection revived) Any writing (or any other tangible item) or item may be used to refresh a witness’ memory; then witness must testify from present recollection – Best Evidence Rule not applicable for refresher Witness can NOT read from the writing while testifying Safeguards against abuse – adversary has right to: Inspect the memory-refresher Use it on cross-examination Introduce into evidence 对方可以把提示物引入证据(as an exhibit) No hearsay problem Past Recollection Recorded 过去回忆的备忘录(Past recollection recorded) Only writing that meets foundational requirements may be used Witness fails to refresh memory even shown the writing Witness had personal knowledge at former time Writing was either made by witness, or adopted by witness Statement must have been made or adopted when event was fresh in witness’s memory Witness can vouch 保证for accuracy of writing when made or adopted Writing itself is read into evidence (writing itself cannot be introduced as evidence – unless by opposing party) 以朗读的方式，书面文件本身不能作为证据（除非是另一方当事人提出）[NY: it can be shown to the jury and introduced into evidence as exhibit by the offering party.] Hearsay Exception Opinion Testimony意见证据 Lay Witness 非专家证人通常不能给出意见证据Opinion – admissible if (e.g. emotions of others, handwriting, intoxication, speed of car): Rationally based on the witness’s perception (personal knowledge); Helpful to jury in deciding a fact in issue; AND Not based on scientific / technical / other specialized knowledge Expert Witness Opinion (must describe in general terms) – admissible if Qualifications – education or experience (need not be formal – e.g. skill witness); Proper Subject Matter – scientific / technical / other specialized knowledge helpful to jury; Proper Basis of Opinion – opinion based on “reasonable degree of probability or reasonable certainty” AND 3 permissible data sources Personal Knowledge Evidence in trial record, made known to expert by hypothetical question Facts outside record if a type reasonably relied upon by experts in the particular field Reliability – sufficiently reliable (TRAP factors) Testing of principles or methodology Rate of error Acceptance by other experts in same discipline Peer review and publication Opinion on Ultimate Issues案件争议的最基本问题--基本可以 Civil Case – opinion testimony permissible for ultimate issue Criminal Case – expert can NOT give direct opinion on the mental intent of D in issue如果被告人的精神状况是犯罪构成的要件时，专家证人不得宣布被告有没有精神病。 Learned Treatise权威著作 in Aid of Expert Testimony (Hearsay Exception) Relevant portions only read into evidence 只能以朗读的方式，不能展示给陪审团(and NOT introduced in as exhibit) in: Direct examination of party’s own expert – as substantive evidence Cross examination of opponent’s expert – both (a) as substantive evidence & (b) to impeach Reliable authority权威著作 must be established by Opponent’s expert admits; or Own expert testifies; or Court takes judicial notice Cross-Examination交叉质证 Party has right to cross-examine any opposing witness who testifies at trial Restrictions on Scope – subject to discretion of judgewaste of time, undue harassment, embarrassment Matters within the scope of direct examination (brought out in direct examination or by inference); and Matters that test witness’s credibility (perception, memory, honesty) Credibility – Impeachment弹劾证人//注意:被告也能成为证人！一旦被告作证，控方就可以弹劾其可信性：注意和品格证据区别 General Impeachment casting of an adverse reflection on the credibility of the witness, including his perception, memory and honesty Can impeach either by cross-examination of the target witness or by extrinsic evidence交叉质证或者使用外部证据 Bolstering Own Witness支持自己的证人 NOT allowed until after witness’s credibility has been attacked EXCEPTION – prior statement of identification (Hearsay Exception) Comes in as substantive evidence Prior statement of identification must be made by trial wi