美國紐約州律師資格考試復(fù)習(xí)筆記 證據(jù)法

1、Evidence (33 Qs)Issues identified in practice: ² Judicial notice: 司法認(rèn)知D generally known in the jurisdiction or capable of ready and accurate determination;D in civil case, conclusively established (mandatory) ; and, in criminal, may be taken by jury (discretionary)² Impeachment by characte

2、r for untruthfulness (reputation/opinion, bad act, prior conviction) àrehabilitation ² In civil fraud case, prior fraud is permitted either for character evidence (?) or for proving intent² Business records: judge may exclude business records if (i) source of information lacks truthfu

3、lness, (ii) no first-hand knowledge, (iii) purposed to prove what happened or not (for potential litigation) (note: this item (iii) is okay in NY)² Dying declaration: in criminal case, victim must die because dying declaration is admissible only in homicide case (if victim is not dead, no homic

4、ide case). Watch for attempted murderMini Review:1. Character evidence² Criminal case:(1) Prosecutor cant introduce bad character for the purpose of proving action in conformity with character;(2) D is allowed to introduce good character to prove he acted in conformity with good character;(3) I

5、f 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”(4) Evidence of other crimes are inadmissible for conformity purpose, but likely admissible f

6、or MIMIC purpose;(5) If D takes the stand, P may impeach D with character evidence of untruthfulness.² Civil case:(1) You cant introduce character evidence to show conformity;(2) Character evidence may be introduced for other purposes, such as negligent hiring/entrustment, defamation, fraud, an

7、d MIMIC;(3) Watch for the difference between character evidence and habit evidence.2. Impeachment² Prior inconsistent statementD Extrinsic evidence allowedD Impeached witness must be given opportunity to comment, before or after the offer of such extrinsic evidence² BiasD Extrinsic evidenc

8、e allowedD Witness must be cross-examined for the facts showing bias/interest prior to introduction of extrinsic evidence ² Prior crime conviction (10 years limitation for FRE)D Involving dishonesty/false statementD Other felonyàbalance testD Extrinsic evidence by means of conviction recor

9、d² Prior bad act only intrinsic evidence allowed, no asking about arrest² UntruthfulnessD Reputation/opinionD Specific evidence only by cross-examination, if denied, no extrinsic evidence3. Hearsay (note, party admission is nonhearsay under FRE)a) Method: hearsay? àprior inconsistent

10、statement, prior consistent statement, effect upon people, verbal actàexceptionb) Prior identification (nonhearsay under FRE)c) Present sense impressiond) Excited utterancee) Medical treatment statementf) Biz recordsg) Former testimonyh) Dying declarationi) Party admission: vicarious admission

11、(employee, partner, co-conspirator), adoptive admissionI. Relevance相關(guān)性A. Logical Relevance (Probativeness)1. 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)是不是和爭議的人，事，或

12、者時(shí)間有關(guān)2. Exceptions where admissible similar occurrences相似事件通常具有較小的相關(guān)性a. Prior accidents or claims(i) Ps prior accident history inadmissible; EXCEPT(a) Prove common plan & scheme of fraud; or原告以前提出過類似的欺詐性/錯(cuò)誤的訴訟請求(b) When cause of Ps damages is in issue確定是否有因果關(guān)系(ii) Ds prior conditions ONLY involv

13、ing the same instrumentality or condition, and occurring under substantially similar circumstances, to prove:由同樣條件引起的相似事故或者傷害(a) Existence of a dangerous condition(b) D had prior notice(c) Causationb. Intent is issue draw inference of intent from prior conduct e.g. gender discrimination意圖或者思想狀態(tài)c. Si

14、milar sales to establish value價(jià)值d. Habit Evidence to infer a person acted on the occasion at issue特定性和經(jīng)常性(i) Disposition evidence NOT admissible(ii) Prior Act evidence (propensity) NOT admissible(iii) Habit Admissible (key words always, invariably, automatically, instinctively)(a) particularity; AND

15、 (b) frequency (judges discretion how often is enough) * NY Distinctions Habit Evidence (more suspicious)1. Personal habit on issue of due care in negligent INADMISSIBLE2. Personal habit in use of product Admissible (in products liability case)e. Industrial or Business Routine (business habit) admis

16、sible工商業(yè)慣例f. Industrial Custom as Standard of care (what do other similar companied do)行業(yè)慣例B. Judicial Discretionary Exclusion法官行使自由裁量權(quán)排除的相關(guān)性證據(jù)1. Probative value is substantially outweighed by danger of (1) danger of unfair prejudice; (2) confusion of issues; (3) misleading the jury; (4) undue delay

17、; (5) waste of time; (6) unduly cumulative2. NOT unfair surprise這個(gè)不是！C. Public Policy Based Exclusion因?yàn)楣舱咴蚨慌懦淖C據(jù)1. Liability Insurancea. Not admissible to show negligence / ability to payb. EXCEPTIONS (i) prove ownership or control (when disputed, get limiting instructions); OR證明所有權(quán)，控制權(quán)(ii) impe

18、achment bias due to interest證明有無偏見或者利益關(guān)系-如保險(xiǎn)理賠人員作為證人2. Subsequent Remedial Measurea. Not admissible to show negligence / culpable conduct / product or design defect / need for warningb. EXCEPTIONS(i) prove ownership of control (when disputed); OR(ii) rebut or impeach a claim that precautions were no

19、t feasible (when feasibility is disputed)采取預(yù)防措施的可行性c. Subsequent remedial measures by 3rd parties admissible 彈劾證人-聲稱產(chǎn)品不可能更好* NY Distinctions Subsequent Remedial Measures (Strict Liability case)1. Manufacturing Defects Admissible to establish defectiveness of product when made2. BUT, design defect OR

20、haracter Evidencefer to pay medical expenses are Admissibleon.is disputed as to validity or amount failure to warn NOT admissible (except for feasibility dispute)3. Settlementsa. Civil Cases(i) Not admissible evidence of a settlement of offer to settle, to prove liability or weaken other party(ii) N

21、ot admissible statements of fact made in course of settlement不能分離事實(shí)(iii) Requirements (at the time of settlement discussion)(a) There must be a claim if someone admits before claim, its admissible; AND必須對方當(dāng)事人有跡象已經(jīng)提出了權(quán)利主張（并不需要很正式），否則就構(gòu)成承認(rèn)(b) There must be a dispute as to liability or amount 必須對責(zé)任或者數(shù)額

22、有爭議 if D admits to full liability, its admissible(iv) EXCEPT for impeachmentb. Criminal Cases已經(jīng)撤回的有罪承認(rèn)(i) Offer to plead guilty Not admissible (all criminal & subsequent civil cases based on same facts)(ii) Withdrawn guilty plea Not admissible (all criminal & subsequent civil cases based on

23、same facts)(iii) Plea of nolo contendere (No contest)不反駁承認(rèn)(iv) Statements made during the course of negotiationNY Distinctions Withdrawn guilty pleasAdmissible in subsequent civil litigation based on same facts as party admission.4. Offer to pay Medical Expenses可以分離事實(shí)a. Not admissible to prove culpa

24、ble conduct b. BUT, admissions of fact accompanying an offer to pay medical expenses are Admissible伴隨的事實(shí)可作為證據(jù)5. Prior Sexual Conduct of Victima. In any civil or criminal proceeding involving sexual misconduct, the following is NOT admissible(i) Opinion or reputation about the victims sexual propensi

25、ty, or(ii) Evidence of specific sexual behavior of the victimb. Exceptions(i) Specific sexual behavior to prove someone other that D was the source of semen or injury;用于證明是第三人而非被告是精液，傷害的來源(ii) Victims sexual activity with D if the defense of consent is asserted; or(iii) Where exclusion would violate

26、 Ds right of due process (placed in controversy by victim)* NY Distinctions Prior Sexual ConductConviction of prostitution within last 3 years allowedD. Character Evidence品格證據(jù)1. Purpose of character evidencea. Direct evidence persons character is a material element in the civil case (character can n

27、ever be an element in criminal case)性格本身就是案件爭議的事實(shí)b. Circumstantial evidence infer conduct in conformity with character at time of litigated event證明性格與特定行為相一致c. Impeach witness credibility彈劾證人的可信性2. Method of proving charactera. Specific actsb. Opinion testimonyc. Reputation testimony3. Civil Cases除非

28、性格本身就是案件爭議點(diǎn)，一般不允許使用a. Circumstantial evidence NOT admissible to prove conduct in conformity (even civil case involving criminal conduct)b. Direct evidence admissible where essential element of a claim or defense (e.g. defamation,child custody, negligent hiring or entrustment, deceit, assault/battery

29、 (for self defense purpose) ); methods Specific acts, Opinion, or Reputation損害名譽(yù)權(quán)/有過失的委托/錯(cuò)誤致死/決定監(jiān)護(hù)權(quán)4. Criminal Cases通常只能以名譽(yù)或意見證據(jù)的形式出現(xiàn)，不能用特定的行為/注意和質(zhì)疑證人可信性區(qū)別a. D proves character(i) Evidence to prove conduct in conformity is NOT admissible during prosecutions case-in-chief (Ds character trait is never

30、 an element)(ii) BUT, D may introduce evidence of a relevant character trait, which opens the door for rebuttal- Methods Opinion & Reputation不能以過去特定行為證明* NY Distinctions Character witness in criminal casesOnly REPUTATION as circumstantial evidence is allowed both for D & prosecutionb. Prosec

31、utions Rebuttal when D opens door (only through character witness), prosecution may:(i) Cross-examining character witness (specific acts) inquiring Ds relevant specific acts (but can not prove them in trial) that reflect adversely on particular character trait introduced by D to impeach character wi

32、tness; and/or可以就被告特定行為質(zhì)證，但不能引入外部證據(jù)(ii) Calling its own character witness (opinion or reputation) to contradict Ds witness* NY Distinctions Prosecution rebuttal against character witness1. Cross-examining can only begin to ask “ Have you heard”2. Calling own witness introduce (1) reputation evidence;

33、 and (2) introduction of prior convictions which reflect adversely on the character trait in issue.c. Victims Character SELF-Defense Case(i) D may introduce victims BAD character (opinion or reputation不能就特定行為) opens door for prosecution* NY Distinctions Victim in self-defense criminal caseCharacter

34、evidence of victim is NOT admissible to prove that victim was the first aggressor.(ii) Prosecution may rebut by showing:(a) Victims Good character; and/or(b) Ds Bad character for the same trait (opinion or reputation)(iii) Separate rule of relevance if D, at the time of alleged self-defense, was awa

35、re of the victims violent reputation or prior specific acts of violence, such awareness may be proven to show Ds state of mind fear to infer that D acted reasonably in responding as he did to victims aggression5. Specific Acts of Misconduct for non-character purposes特定的不當(dāng)行為作為證據(jù)；不作為品格或性情使用a. Prior ac

36、ts are admissible if they are relevant to some issue other than Ds character or disposition (not dependent on Ds introduction of character evidence because MIMIC is not character evidence)(i) Motive動(dòng)機(jī)：吸毒需要賭資是搶銀行的動(dòng)機(jī)(ii) Intent主觀意圖(iii) Mistake or accident, absence of錯(cuò)誤不存在或者不是意外(iv) Identity (modus op

37、erandi)身份：犯罪后留下的標(biāo)志(v) Common Scheme or Plan犯罪準(zhǔn)備；計(jì)劃b. Criminal case on Ds request, prosecution must give pretrial notice of intent to introduce MIMIC evidencec. Requirements for admissibility對其使用的要求(i) Sufficient evidence to support a jury finding that D committed the prior act; AND(ii) Court must we

38、igh probative value v. prejudice (must give limiting instruction)6. Prior acts of sexual assault or child molestation of D 性騷擾案件或者性騷擾兒童的案件-可以用于證明被告具有某種犯罪傾向- In sexual assault or child molestation case, evidence of Ds prior acts of such conduct is admissible for any relevant purpose, including defend

39、ants propensity for sex crimes* NY Distinctions sexual assault or child molestationDoes not allow prior acts of sexual assault or child molestation=II. Writings & Documentary Evidence書證A. Authentication確認(rèn)：首先確認(rèn)書證是否是所聲稱的書面文件1. Writing is not admissible until authenticated proof must be sufficient

40、to support jury finding of genuineness (jury makes the ultimate determination of fact, i.e., whether the evidence is authentic)2. Method確認(rèn)書證的外在方法a. Party Admission書證對其不利的一方當(dāng)事人的承認(rèn)b. Witness personal knowledgec. Proof of handwriting如果是聲音的話，可以是因?yàn)樵V訟的目的而去熟悉(i) Lay Opinion based on personal knowledge of h

41、andwriting (such knowledge must be acquired before the proceedings) (note: knowledge of voice/sound may be acquired after the proceedings commence.)不能僅因?yàn)樵V訟目的去熟悉筆跡(ii) Expert Opinion compared with genuine samples (exemplar) (iii) Jury comparison jury compares with genuine sampled. Ancient Document pr

42、esumption of authentication(i) At least 20 years old;* NY Distinctions Ancient DocumentRequires 30 years(ii) Facially free of suspicion; AND(iii) Found in place of natural custodye. Reply Letter Doctrine document can be authenticated by evidence that it was received in response to a prior communicat

43、ion to the alleged author3. Self-Authenticating Documents presumption of authentication自我確認(rèn)的書證a. Official publications公共文件b. Certified copies of public records (e.g., car registration form) or business recordsc. Newspaper or periodicald. Trade inscriptions and labels this can be offered as circumsta

44、ntial evidence of ownership, manufactureràno requirement of BER for such purposee. Acknowledged document notarized document f. Commercial paper商業(yè)文件g. Certified genuine foreign public documents4. Authentication of Photographs對照片的確認(rèn)a. Witness testifies on the basis of personal knowledge that “fai

45、r and accurate representation” of objects or people need not be the photographer. Photograph in this sense is just like an illustrative drawing or map.b. Unattended camera show properly installed, proper removal of film, show chain of custody. Videotape and tape are admissible like photograph, but t

46、heir authentication should follow the requirements. c. Other mechanical records其他儀器測量結(jié)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 B. Be

47、st Evidence Rule (Original Document Rule)最佳證據(jù)規(guī)則1. Definition Þ a party seeking to prove the contents of a writing, must either produce the original writing or provide an acceptable excuse for its absencea. Only applies to writings including sound recordings, X-ray, films包括錄音，照片，X光b. If excuse i

48、s acceptable may introduce secondary evidence (e.g. oral testimony or a copy)一定情況下允許二手資料2. When the Best Evidence Rule appliesa. Writing is Legally Operative Document writing itself creates rights and obligations (deed, mortgage)b. If not following in item a, where witness is testifying to facts lea

49、rned solely from reading in a writing3. When NOT applya. 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) b. Writing is collateral to litigated issue涉及爭議事實(shí)的附屬事實(shí)c. Certified cop

50、ies of Public Record公共文件d. 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4. What qualifies as the “original writing”a. Writing itselfb. Duplicates 文件副本與原本可以作為證據(jù)被同等程度的采

51、納 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) (i) UNLESS a genuine question is raised as to authenticity of

52、original, OR(ii) it would be unfair to admit the duplicate (e.g., blurry)* NY Distinctions DuplicatesOnly photographic copies, made, kept or recorded in ordinary course of business, not for litigation- Handwritten copy is NEITHER an original nor duplicate5. Excuses for non-production of original (pe

53、rsuaded by preponderance of evidence)可以不提供原始文件的幾種例外情形a. Lost or cannot be found with due diligence遺失且找不到b. Original held by adversary who, after due notice, fails to produce the originalc. Destroyed without bad faithd. Cannot be obtained with legal processIII. Witness & Testimonial EvidenceA. Co

54、mpetency of Witness1. Requirementsa. Communicable personal knowledgeb. Take oath or give an affirmation* NY Distinctions Oath Obligation1. Civil Case ALL testimony must be sworn (including children)2. Criminal Case a. Child under age of 9 and anyone with mental defect, who does not understand nature

55、 of oath may testifyb. BUT, this unsworn testimony needs corroboration for conviction2. Dead Mans Statute死者條例-針對民事案件a. 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

56、interested party and the decedent- There is no federal dead mans statute, this witness ordinarily not incompetent; BUT, must apply a states dead mans statute where substantive law applies in diversity casesb. Requirements(i) Civil Action;(ii) Witness must have a direct stake in the litigation;(iii)

57、Witness must be testifying for his interest (not against it);(iv) Witness must be testifying against the decedent, or his representatives; (v) Testimony concerns a personal transaction or communication with the decedent the interested survivor isnt barred from testifying against everything thats relevant, but only as to manners which the decedent could contradict if he were alive (in other words, if he couldnt contradict you when he was alive, you can testify abou