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New York Evidentiary Foundations Randolph N digitalcommons.nyls.edu Faculty Scholarship Books 1993 New York Evidentiary Foundations Randolph N. Jonakait H. Baer E. S. Jones E. Imwinkelried Follow this and additional works at: http://digitalcommons.nyls.edu/fac_books Part of the Evidence Commons Recommended Citation Jonakait, Randolph N.; Baer, H.; Jones, E. S.; and Imwinkelried, E., "New York Evidentiary Foundations" (1993). Books. Book 4. http://digitalcommons.nyls.edu/fac_books/4 This Book is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Books by an authorized administrator of DigitalCommons@NYLS. New York .Evidentiary Foundations RANDOLPH N. JONAKAIT HAROLD BAER, JR. E. STEWART JONES, JR. EDWARD J. IMWINKELRIED THE MICHIE COMPANY Law Publishers CHARLOTIESVILLE, Vlli:GINIA CoPYRIGHT ~ 1H93 BY THE MICHIE COMI'ANY Library of Congress Catalog Card No. 93-77731 ISBN: 1-55834-058-0 All rights reserved. lllllllllllllllllllllllllm IIIII SUMMARY TABLE OF CONTENTS Page Table of Contents . v Chapter 1. Introduction . 1 Chapter 2. Related Procedures .. .. .. .. ... ... .. .. .. .. .. .. ..... 11 Chapter 3. The Competency ofWitnesses .......................... 25 Chapter 4. Authentication . 45 Chapter 5. Limitations on Credibility Evidence . 99 Chapter 6. Limitations on Evidence That Is Relevant to the Merits of the Case . 129 Chapter 7. Privileges and Similar Doctrines . 155 Chapter 8. The Best Evidence Rule . 199 Chapter 9. Opinion Evidence ......................................... 225 Chapter 10. The Hearsay Rule, Its Exemptions, and Its Excep- tions ......................................................... 241 Chapter 11. Substitutes for Evidence . .. .. .. .... .. .. .. .. ..... ... .. 315 Index ......................................................................... 329 iii TABLE OF CONTENTS Page Summary Table of Contents 111 Chapter 1. Introduction .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 1 · A. Introduction . 1 B. Laying a Foundation - In General . 2 1. Legal Rules .. ... .. .. ... .. .. ... ..... ... ... .. .. .. .. .. 2 2. Practical Rules . 2 C. Laying a Foundation on Direct Examination . 3 1. Legal Rules . 3 2. Practical Rules . 5 D. Laying a Foundation on Cross-Examination . 6 1. Legal Rules ........................................................ 6 2. Practical Rules . 7 Chapter 2. Related Procedures .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 11 A. Introduction . .. .. ... .. ... .. .. .. .. .. .. .. .. ... .. 11 B. Pretrial Motion In Limine by the Opponent . 11 1. The Doctrine .. ... ... ... ..... .. ... .. ... .. .. .. .. ... .. .. ... 11 2. Elements of a Motion In Limine . 13 3. Sample Motion In Limine . 14 C. Objections at the Trial by the Opponent .. ... .. .. .. .. .. 15 1. The Doctrine . ... .. .. ... .. ... .. ... .. .. .. .. .. 15 2. Elements of an Objection . 16 3. Sample Objections .. ... ... ... ...... ... .. .. .. ... .. .. 16 D. Motions to Strike at Trial by the Opponent . .. .. .. 17 1. The Doctrine .. .. .. .. .. .. 17 2. Elements of a Motion to Strike . 18 3. Sample Motion to Strike . 18 E. Request by the Opponent to Take a Witness on Voir Dire . 19 1. The Doctrine ......................................... ............. 19 2. Sample Request to Take a Witness on Voir Dire . 21 F. Offer ofProofby the Proponent ................ ............... ...... 22 1. The Doctrine ...................................... ....... ......... 22 2. Elements of an Offer of Proof .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 22 3. Sample Offer ofProof ................................. ........... 23 Chapter 3. The Competency ofWitnesses .. .......................... 25 A. Introduction . 25 B. The Voir Dire of a Child Who Understands the Nature of an Oath by the Witness' Proponent . 26 1. The Doctrine . 26 v vi TABLE OF CONTENTS Page 2. Elements of the Foundation . 26 3. Sample Foundation . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 27 C. The Voir Dire by the Witness' Proponent in a Criminal Case of a Child Who Does Not Understand the Nature of an Oath . 28 1. The Doctrine . .. 28 2. Elements of the Doctrine . .. 29 3. Sample Foundation . .. 29 D. The Questioning of a Lay Witness by the Proponent to Dem- onstrate Personal Knowledge . 30 1. The Doctrine . .. 30 2. Elements of the Foundation . .. 30 3. Sample Foundation . .. 31 E. The Opponent's Presentation of Psychiatric Testimony At- tacking a Prospective Witness' Com]petency . .. .. .. 31 1. The Doctrine . 31 2. Elements of the Foundation . 32 3. Sample Foundation . 32 F. Dead Man's Statute . 34 1. The Doctrine ..................... ................................. 34 2. Elements of the Foundation . 35 3. Sample Foundations . 36 G. The Opponent's Attack on the Competency of a Witness Whose Memory Has Been Hypnotically Enhanced .............. 37 1. The Doctrine . .. .. .. ... ... ... .. .. .. .. .. ... 37 2. Elements of the Foundation . 39 3. Sample Foundation . 39 H. Judges as Witnesses ................. ................................. 43 Chapter 4. Authentication . 45 A. Introduction . 45 B. The Authentication of Private Writings . 47 1. Testimony of a Witness Who Observed the Document's Execution . 4 7 2. Testimony of a Witness Familiar with the Author's Hand- writing Style . .. .. .. ...... .. .. .. .. .. .. .. .. ..... .. 48 3. The Reply Letter Doctrine ....... .. ...... ... .. .. .. ..... ..... .. 49 4. A Comparison by an Expert Document Examiner . 51 C. The Authentication of Business Writings .. .. .. ... ... .. .... 54 1. Conventional Business Writing:s . 54 2. Hospital Bills and Records . 55 3. Computer Records . 56 D. The Authentication of Official Writings . 59 1. The Doctrine ..................... ................................. 59 2. Elements of the Foundation . 59 TABLE OF CONTENTS vii Page 3. Sample Foundation . 59 E. The Authentication of Oral Statements . 61 1. Lay Opinion Testimony of a Witllless Familiar with the Speaker's Voice . .. .. .. .. .. ... ... .. .. .. .. 61 2. The Telephone Directory Doctrine . 62 ·a. Testimony by a Voiceprint or Sound Spectrography Ex- pert ............... ...................... ........... .................. 65 F. Tape Recordings . 70 1. The Doctrine . .. .. .. .. .. .. .. .. .. .. ... .. .. .. 70 2. Elements of the Foundation ...
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