Notice re: business records
The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it
Notice self-authenticating records
No notice necessary
Best evidence rule triggers . . .
when contents are at issue (includes photos)
NY Judicial notice
Discretion to the court
Except:
- common law, const, public laws = required
- private acts of legislature _ regs of agencies = required when requested + notice to other party
Character balancing tests
MBE - exclude if probative value substantially outweighed by risks of unfair prejudice, confusion, misleading, delay, cumulating evidence
NY - adds “unfair surprise”
Proof of character (criminal D exceptions)
- Impeachment
- PBIs for MIMIC
NOT NY –> 3. Prior sexual offenses in sex assault
How to prove character
MBE: opinion or reputation
NY: reputation only
Character Evidence against V in crim case
MBE: D allowed to intro re: pertinent trait of victim
NY: generally D may not offer V character evidence, except:
- rep for violence if D reasonably believed life in risk
- specific acts if D knew at time of incident
Dead man’s statute
Civil: party cannot testify as to communications w/ adverse party who is deceased or mentally ill
EXCEPT:
survivors of a car/plane/vessel accident where adverse party is incompetent due to accident
NY Voucher RUle
Cannot impeach own W, unless:
- contradict for non-collateral purpose other than impeachment
- opposing party statement
- PIS if made under oath/signed writing + material
- Remove the sting
- DP rights of accused
NY - PBIs
- relate to truthfulness
- immoral/vicious
- Reveal willingness to palce one’s own self-interest ahead of society (all criminal acts w/o conviction)
*Underlying facts OK but no extrinsic evidence
NY - Prior convictions for impeachment
Civil –> all admissible subject to court’s discretion
Criminal –> All admissible except for traffic violations
- Sandavol hearing required for criminal D. Does prejudice “far outweighs” probative value?
NY Prior conviction (extrinsic evidence)
Not allowed if criminal D admits
Otherwise OK if:
- W denies
- criminal D offers evidence of good character via a W if the conviction negates that train
- Element of the charged offense
Mbe juvenile delinquency as impeachment
The defendant in a criminal case who testifies on his own behalf may not be impeached by a juvenile adjudication to show that the defendant is untruthful
FRE & sentencing hearings
FRE generally don’t apply but privileges do
When can you exclude relevant evidence
Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice
Conviction to impeach against non-criminal D
. If the crime does not involve dishonesty or false statement, the conviction of a witness who is not a criminal defendant will be excluded only if the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect
Statements made during settlement negotiations
Statements made during settlement negotiations are inadmissible to prove or disprove the validity or amount of a disputed claim
- but ok for other purposes such as bias
