美国纽约州律师资格考试复习笔记 证据法

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:
1.Character evidence
✧Criminal case:
(1)Prosecutor can’t 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)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”
(4)Evidence of other crimes are inadmissible for conformity purpose, but likely admissible for MIMIC
purpose;
(5)If D takes the stand, P may impeach D with character evidence of untruthfulness.
✧Civil case:
(1)You can’t introduce character evidence to show conformity;
(2)Character evidence may be introduced for other purposes, such as negligent hiring/entrustment,
defamation, fraud, and MIMIC…;
(3)Watch for the difference between character evidence and habit evidence.
2.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 felony→balance 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
3.Hearsay (note, party admission is nonhearsay under FRE)
a)Method: hearsay? →prior inconsistent statement, prior consistent statement, effect upon people, verbal
act→exception
b)Prior identification (nonhearsay under FRE)
c)Present sense impression
d)Excited utterance
e)Medical treatment statement
f)Biz records
g)Former testimony
h)Dying declaration
i)Party admission: vicarious admission (employee, partner, co-conspirator), adoptive admission
I.Relevance相关性
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)是不是和争议的人，事，或
者时间有关
2.Exceptions where admissible –similar occurrences相似事件通常具有较小的相关性
a.Prior accidents or claims
(i)P’s prior accident history– inadmissible; EXCEPT
(a)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
(b)When cause of P’s damages is in issue确定是否有因果关系
(ii)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
(a)Existence of a dangerous condition
(b) D had prior notice
(c)Causation
b.Intent is issue – draw inference of intent from prior conduct e.g. gender discrimination意图或者思想状
态
c.Similar sales to establish value价值
d.Habit Evidence –to infer a person acted on the occasion at issue特定性和经常性
(i)Disposition evidence – NOT admissible
(ii)Prior Act evidence (propensity) – NOT admissible
e.
f.
B.Judicial Discretionary Exclusion法官行使自由裁量权排除的相关性证据
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; (5) waste of time; (6) unduly cumulative
2.NOT – unfair surprise这个不是！！
C.Public Policy Based Exclusion因为公共政策原因而被排除的证据
1.Liability Insurance
a.Not admissible to show negligence // ability to pay
b.EXCEPTIONS
(i)prove ownership or control (when disputed, get limiting instructions); OR证明所有权，控制权
(ii)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
2.Subsequent Remedial Measure
ot admissible to show negligence / culpable conduct / product or design defect / need for warning
b.EXCEPTIONS
(i)prove ownership of control (when disputed); OR
(ii)rebut or impeach a claim that precautions were not feasible (when feasibility is disputed)采取预防措施的可行性
c.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)
1.Manufacturing Defects – Admissible to establish defectiveness of product when made
2.BUT, design defect OR failure to warn – NOT admissible (except for feasibility dispute)
3.Settlements
a.Civil Cases
(i)Not admissible – evidence of a settlement of offer to settle, to prove liability or weaken other party
(ii)Not admissible –statements of fact made in course of settlement不能分离事实
(iii)Requirements (at the time of settlement discussion)
(a)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
(b)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
(iv)EXCEPT – for impeachment
b.Criminal Cases已经撤回的有罪承认
(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 same facts)
(iii)Plea of nolo contendere (No contest)不反驳承认
(iv)Statements made during the course of negotiation
NY Distinctions – Withdrawn guilty pleas
Admissible in subsequent civil litigation based on same facts as party admission.
4.Offer to pay Medical Expenses可以分离事实
a.Not admissible – to prove culpable conduct
b.BUT, admissions of fact accompanying an offer to pay medical expenses are Admissible伴随的事实可
作为证据
5.Prior Sexual Conduct of Victim
a.In any civil or criminal proceeding involving sexual misconduct, the following is NOT admissible
(i)Opinion or reputation about the victim’s sexual propensity, or
(ii)
b.Exceptions
(i)Specific sexual behavior to prove someone other that D was the source of semen or injury;用于证明
D.Character Evidence品格证据
1.Purpose of character evidence
a.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
b.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
c.Impeach witness credibility弹劾证人的可信性
2. Method of proving character
a. Specific acts
b. Opinion testimony
c. Reputation testimony
3. Civil Cases 除非性格本身就是案件争议点，一般不允许使用
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 (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
4. 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
a. D proves character
(i) Evidence to prove conduct in conformity is NOT admissible during prosecution’s case -in-chief (D’s
character trait is never an element)
(ii) BUT, D may introduce evidence of a relevant character trait, which opens the door for rebuttal
b. Prosecution’s Rebuttal – when D opens door (only through character witness ), prosecution may:
(i) 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
c. Victim’s Character – SELF-Defense Case
(i) D may introduce victim’s BAD character (opinion or reputation 不能就特定行为) – opens door for
prosecution
(ii) Prosecution may rebut by showing:
(a) Victim’s Good character ; and/or
(b) D’s Bad character for the same trait (opinion or reputation )
(iii) 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
5. 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
(i) M otive 动机：吸毒需要赌资是抢银行的动机
(ii) I ntent 主观意图
(iii) M istake or accident, absence of 错误不存在或者不是意外
(iv) I dentity (modus operandi)身份：犯罪后留下的标志
(v) C ommon Scheme or Plan 犯罪准备；计划
b. Criminal case – on D’s request, prosecution must give pretrial notice of intent to introduce MIMIC
evidence
c. Requirements for admissibility 对其使用的要求 (i) Sufficient evidence to support a jury finding that D committed the prior act; AND
(ii) Court must weigh probative value v. prejudice (must give limiting instruction)
6. 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
II. Writings & Documentary Evidence 书证
A. Authentication 确认：首先确认书证是否是所声称的书面文件
1. 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)
2. Method 确认书证的外在方法
a. Party Admission 书证对其不利的一方当事人的承认
b. Witness personal knowledge
c. Proof of handwriting 如果是声音的话，可以是因为诉讼的目的而去熟悉
(i) 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
(ii) Expert Opinion – compared with genuine samples (exemplar)
(iii) Jury comparison – jury compares with genuine sample
d. Ancient Document – presumption of authentication
(i) At least 20 years old;
e.
3. Self-Authenticating Documents – presumption of authentication 自我确认的书证
a. Official publications 公共文件
b. Certified copies of public records (e.g., car registration form) or business records
c. Newspaper or periodical
d. Trade inscriptions and labels [this can be offered as circumstantial evidence of ownership,
manufacturer… no requirement of BER for such purpose]
e. Acknowledged document – notarized document
f. Commercial paper 商业文件
g.Certified genuine foreign public documents
4.Authentication of Photographs对照片的确认
a.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.
b.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.
c.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
B.Best Evidence Rule (Original Document Rule)最佳证据规则
1.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
a.Only applies to writings – including sound recordings, X-ray, films包括录音，照片，X光
b.If excuse is acceptable – may introduce secondary evidence (e.g. oral testimony or a copy)一定情况下允
许二手资料
2.When the Best Evidence Rule applies
a.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 learned solely from reading in a writing
3.When NOT apply
a.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涉及争议事实的附属事实
c.Certified copies 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 itself
b.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)
(i)UNLESS a genuine question is raised as to authenticity of original, OR
(ii)it would be unfair to admit the duplicate (e.g., blurry)
-
5.
种例外情形
a.Lost or cannot be found with due diligence遗失且找不到
b.Original held by adversary who, after due notice, fails to produce the original
c.Destroyed without bad faith
d.Cannot be obtained with legal process
III.Witness & Testimonial Evidence
A. Competency of Witness
1. Requirements
a. Communicable personal knowledge
b. Take oath or give an affirmation
2. Dead Man’s Statute ---
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 interested party and the decedent - There is no federal dead man’s s tatute, this witness ordinarily not incompetent; BUT, must apply a
state’s dead man’s statute where substantive law applies in diversity cases
b. Requirements
(i) Civil Action ;
(ii) Witness must have a direct stake in the litigation;
(iii) 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 isn’t barred from testifying against everything tha t’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 )
(vi) 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
B. Form of Examination of Witness 质证
1. Kind of questions asked – largely matter of judicial discretion (e.g. narrative questions maybe allowed)
2. Leading Questions 诱导性问题
a. Generally NOT allowed on direct examination ; BUT allowed
(i) For preliminary introductory matters 前提事实
(ii) Youthful or forgetful witness 年幼或者易遗忘的证人
(iii) 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
b. Generally allowed on cross-examination
3. Writings in Aid of Oral Testimony
a. Refreshing Recollection 唤起记忆(Present recollection revived)
(i) 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
(ii)Witness can NOT read from the writing while testifying
(iii)Safeguards against abuse – adversary has right to:
(a)Inspect the memory-refresher
(b)Use it on cross-examination
(c)Introduce into evidence 对方可以把提示物引入证据(as an exhibit)
(iv)No hearsay problem
b.Past Recollection Recorded 过去回忆的备忘录(Past recollection recorded)
(i)Only writing that meets foundational requirements may be used
(a)Witness fails to refresh memory even shown the writing
(b)Witness had personal knowledge at former time
(c)Writing was either made by witness, or adopted by witness
(d)Statement must have been made or adopted when event was fresh in witness’s memory
(e)Witness can vouch 保证for accuracy of writing when made or adopted
(ii)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.] (iii)Hearsay Exception
C.Opinion Testimony意见证据
y 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):
a.Rationally based on the witness’s perception (personal knowledge);
b.Helpful to jury in deciding a fact in issue; AND
c.Not based on scientific / technical / other specialized knowledge
2.Expert Witness Opinion (must describe in general terms) – admissible if
a.Qualifications – education or experience (need not be formal – e.g. skill witness);
b.Proper Subject Matter –scientific / technical / other specialized knowledge helpful to jury;
c.Proper Basis of Opinion –opinion based on “reasonable degree of probability or reasonable certainty”
AND 3 permissible data sources
(i)Personal Knowledge
(ii)Evidence in trial record, made known to expert by hypothetical question
(iii)Facts outside record if a type reasonably relied upon by experts in the particular field
d.Reliability –sufficiently reliable (TRAP factors)
(i)Testing of principles or methodology
(ii)Rate of error
(iii)Acceptance by other experts in same discipline
(iv)Peer review and publication
e.Opinion on Ultimate Issues案件争议的最基本问题--基本可以
(i)Civil Case – opinion testimony permissible for ultimate issue
(ii)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。

f.Learned Treatise权威著作in Aid of Expert Testimony (Hearsay Exception)
(i)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:
(a)Direct examination of party’s own expert –as substantive evidence
(b)Cross examination of opponent’s expert – both (a)as substantive evidence & (b) to impeach
(ii) Reliable authority 权威著作 must be established by
(a)
Opponent’s expert admits; or
(b)
Own expert testifies; or
(c) Court takes judicial notice
D. Cross-Examination 交叉质证
1. Party has right to cross-examine any opposing witness who testifies at trial
2. Restrictions on Scope – subject to discretion of judge waste of time, undue harassment, embarrassment
a. Matters within the scope of direct examination (brought out in direct examination or by inference); and
b. Matters that test witness’s credibility (perception, memory, honesty)
E. 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
1. General
a. 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
b. Bolstering Own Witness 支持自己的证人
(i) NOT allowed until after witness ’s credibility has been attacked
(ii) EXCEPTION – prior statement of identification (Hearsay Exception)
c.
2. Impeachment Methods
a. Prior Inconsistent Statements 之前的不符陈述
(i) Extrinsic evidence allowed
(ii) Foundation – witness must be given opportunity to explain or deny the inconsistent statement 必须给予否认或者解释的机会
(iii) Exceptions (Hearsay Exception) – can be used as substantive evidence 可以作为实体证据的例外情
形
(a) Prior inconsistent statement given under oath, AND as part of formal trial, hearing, proceeding,
deposition---legal proceeding
(b) Prior party admissions
b. Bias, Interest or Motive to Misrepresent 偏见，利益
(i) Extrinsic evidence permitted
(ii) Foundation – witness must be asked on cross-examination about facts showing bias or interest before
extrinsic evidence is allowed 在使用外在证据前，必须先质证
(iii) Method to overcome exclusionary rules – e.g. liability insurance, settlement conferences, arrests (trumps other exclusion)
c. Sensory Deficiencies 感官退化
(i) NO foundation requirement – Extrinsic evidence allowed, no need to get intrinsic evidence first d. Conviction of Crime 证人被定罪
(i) Types of conviction
(a) Any crime (felony or misdemeanor) involving dishonesty or false statement – can be used against any witness; OR 法官不能排除
(b) Felony not involving dishonesty or false statement – trial judge has discretion 法官有裁量权 Note: indictment is not sufficient
(ii) Conviction must be within 10 years of trial 从刑满释放的那天开始计算
(iii)
(iv)e.
(i) Specific acts (e.g. lying, deceit, NOT arrests ), which are probative of truthfulness can be used in
(ii) (iii) NO foundation requirement (not applicable)
(iv) Trial judge has discretion in deciding whether a witness can be impeached by a bad act. (v) On MBE at least, arrests are not bad acts.被逮捕不算不良品行
f. Bad Reputation or Opinion for Truthfulness 不良的关于诚实方面的意见和名声
(i) Extrinsic evidence allowed; Call character witness to testify (in NY reputation evidence only) (ii) NO foundation requirement
3. Rehabilitation – can show 恢复证人的可信性
a. Good Reputation for Truthfulness
(i) Can use when under direct attack on the witness – (d) (e) (f)
(ii) Other witnesses may be called to testify that impeached witness has good character
b. Prior Consistent Statement 一般不允许，只有下面这种特定情况
(i) Use to rebut a charge of recent fabrication or improper influence or motive – statement must be
- NOTE: difference between character evidence & impeachment evidence 注意两者区别！！
ethods of proving character when character is “in issue”– extrinsic evidence is Allowed
(2)Impeaching credibility of a witness by evidence of character– may NOT be proved by extrinsic evidence
F.Privilege免于作证的特权
1.General
a.Federal action based on federal law – apply common law for privilege
b.Federal diversity action applying state substantive law – apply
(i)State Privilege Law;
(ii)State Law on Competency;
(iii)Dead Man’s Statutes;
(iv)State Burdens of Proof Law
2.Attorney-Client Privilege律师客户特权⇒communication between an attorney and client, made during
professional consultation, are privileged from disclosure
a.Elements
(i)Confidential communications– not intended to be disclosed to third parties
(a)NO privilege to underlying information, pre-existing document, or physical evidence
-#Note: words and acts intending to convey message (exhibition of physical characteristic) are communications)
-#Note: pre-existing documents, especially those prepared voluntarily by or for the owner at an earlier time, are not self-incrimination need to consider the warrant issue.
-#Note: billing records are not protected because the privilege applies only to the client’s statements.
(b)Joint client rule – if 2 or more clients with common interest consult attorney
-Privilege against as to third parties
-BUT Privilege doe not apply as between them
(ii)Between Attorney (or his assistant) and Client (or representative of either); [Note: the attorney must be licensed or at least the client reasonably believes that the attorney is licensed. The same is to the
physician-patient privilege.]
(iii)Made during professional, legal consultation; AND
(iv)Unless privilege is waived by the client or an exception is applicable
-Client is the holder of privilege, and alone has power to waive
b.EXCEPTIONS
(i)Future crime or fraud用于将来的犯罪和欺诈
(ii)Client puts legal advice in issue –if D defends on ground that D relied on advice of attorney
(iii)Attorney-client dispute
3.Physician-Patient Privilege (including psychotherapists)医生患者特权
a.Elements
(i)Confidential communication or information acquired from patient in the course of treatment; and
(ii)For the purpose of diagnosis or treatment of medical condition以诊断和治疗为目的
b.EXCEPTION
(i)Patient expressly or impliedly puts his physical condition in issue– patient is suing for damages for
ersonal injuries, or defendant asserts insanity defense
(ii) Aid wrongdoing; physician-patient dispute
4. Husband-Wife Privilege 配偶特权
a. Spousal Immunity Privilege 配偶作证豁免特权– spouse cannot be compelled to testify against the
b. treated confidential.
c. EXCEPTIONS (to both)不适用于针对另一方配偶或者未成年子女的犯罪或者侵权行为
(i) Communications or acts in furtherance of future crime or fraud; or
(ii) Communications or acts destructive of family unit
IV. Hearsay Rule 传闻证据 ⇒ out of court statement, offered to prove the truth of the matter asserted
A. Definition
1. Out-of-court statement of person (oral or written); AND
2. Offered to prove the truth of the matter asserted Crime ends when asking is done
- Hearsay Rule – hearsay is inadmissible unless any exception or exclusion applies
#hearsay statements are made by human beings . Animals’ statements are inadmissible. Note: a dog’s behavior may be admissible. It is not hearsay though.
B. NON-Hearsay 非传闻证据
1. Not offered to prove the matter asserted 不是为了证明所宣称事实的真实性
a. Verbal Act or Legally Operative Fact – legal rights & obligations attach because words were spoken
- E.g. words of contract, making gift, bribe, perjury, misrepresentation, defamation
b. Statements offered to show effect on the hearer or reader – not offered for truth
- E.g. notice in negligent case, potential motive
c. Statements offered as circumstantial evidence of D’s relevant State of Mind – not offered for truth
- E.g. evidence of insanity or knowledge 显示被告的精神状态
2. EXCLUSION under FRE
a. Witness’s prior statement 证人之前的陈述
(i) Prior Inconsistent Statement – for substantive evidence, must be made under oath , made in formal
trial , hearing, proceeding, deposition 既可以用来弹劾，也可以作为实体证据; otherwise, only for
(ii)
b.
acknowledgment by one pf the parties of one of the relevant facts (e.g., bribery of witness, pleadings made
by a party in any case)
(i) Adoptive Admissions 被采纳的承认：采纳他人的承认作为自己的承认 – by expressly or impliedly
adopting or acquiescing (e.g. silence – can be deemed admission in which a reasonable person would
have responded)
(ii) Vicarious Admissions 替代承认– a statement made by an employee concerning a matter within the
scope of employment is admissible against the employer if made during the employment relationship,
also partners and other principal-agent relationships
(iii) co-conspirator made in furtherance of a crime 同案犯的承认
C. HEARSAY EXCEPTIONS 传闻证据的例外
1. Declarant Unavailable 陈述人不能作证；出示传闻证据的人负有证明陈述人不能作证的责任===三种
- Unavailability “PAILS”
(i) Death or Illness
(ii) Absent from jurisdiction
(iii) Privilege
(iv) Refusal to testify 拒绝作证
(v) Lack of memory a. opportunity to cross-examine or develop the testimony in the 1st trial 证词对其不利的当事人必须
是前一个程序中的当事人
(a) Grand jury testimony inadmissible because not cross-examined [grand jury testimony, however,
may be non-hearsay for impeachment (FRE and NY) and substantive evidence (FRE) if it is a
prior inconsistent statement.]
(b) BUT allowed against a party when “declarant unavailable by wrongdoing” of the party
- Burden of proof of wrongdoing (FRE): preponderance of evidence
- Burden of proof of wrongdoing (NY): clear & convincing evidence。