04 Distinctions Evidence

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01 Habit Evidence

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In New York, evidence of habit is generally inadmissible to raise an inference that the same amount of care was exercised on the event in question. However, in a products liability case, habit may be used to show that a plaintiff used a product in a certain way.

(Under the FRE, habit evidence becomes relevant if it infers that the party behaved in a certain way during the event in question. 4 conditions for admission:

(1) must be specific
(2) must be recurring
(3) likely to occur over a relatively long period of time
(4) likely to occur without thought)

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02 Proof of Subsequent Remedial Measures

Back 2

In New York manufacturing defect cases, subsequent remedial measures are admissible to establish that the product was defective at the time the product was made.

(Under the FRE, proof of subsequent remedial measures is not admissible to prove negligence, guilt, a product defect, a defective product design, or the need for a warning or instructions; but allowed:

(1) to impeach or rebut the defense
(2) to prove ownership or control
(3) to prove the feasibility of precautionary measures)

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03 Character Witness

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In New York, a character witness can testify in a criminal case about the defendant's reputation in the community, but cannot give opinion evidence, and can only testify about those traits that are relevant to the crime involved.

(Under the FRE, character evidence is admissible if character is directly at issue or an essential element of the case. The rule applies to both civil and criminal cases and all three forms of character evidence are permitted)

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04 Character of Victim to Prove Self Defense

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In New York, the defense can offer evidence that the victim had a general reputation for violence to prove the state of mind of the defendant (that he acted upon a reasonable belief that self defense was necessary during the confrontation). Evidence of specific acts is admissible. The defense must first offer evidence of self-defense and he must have known of the victim's specific acts of violence before the confrontation.

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05 Character of Victim in Rape Cases

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In New York, the following evidence of a victim's past behavior is admissible if it is relevant to the defendant's guilt or innocence:

(1) victim was convicted of prostitution within 3 years prior to the offense
(2) rebuttal evidence of the victim's failure to engage in sexual activities during the relevant time period

(Under the rape shield laws, the only admissible evidence of the victim's character is:

(1) on the issue of consent - only that the victim had sex with D on prior occasions. The defense is prohibited from using opinion or reputation evidence to prove the victim's other past sexual behavior

(2) to prove that D was not the source of semen or injury - if the victim claims the semen or injury came from D)

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06 Ancient Document

Back 6

Ancient documents are authenticated if they are:

(1) more than 30 years old
(2) free from any suspicion concerning the authenticity
(3) were kept in a place where such writings would likely be found

(the FRE rule requires only 20 years)

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07 Self-Authentication of Business Records

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In New York, business records are self-authenticating only in a civil trial; the business records must be of a non-party and produced in response to a subpoena during pretrial discovery. New York follows the FRE requirements with respect to these specific business records.

(Under the FRE, a business record is self-authenticating if it is accompanied by a written declaration of its custodian or other qualified person, certifying that the record was:

(1) made at or near the time of the occurrence by a person with knowledge of the matters
(2) kept in the course of regularly conducted activity
(3) made by the regularly conducted activity as a regular practice)

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08 Best Evidence Rule; Admissibility of Duplicates

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New York limits the admissibility of duplicates to only photographic copies that are made, kept, or recorded in the ordinary course of business.

(Under the FRE, a duplicate is any counterpart produced by any mechanical means that accurately reproduces the original. They are admissible to the same extent as originals, UNLESS:

(1) there is a genuine question about the authenticity of the ORIGINAL, OR
(2) it would be unfair to admit the duplicate)

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09 Jury View of the Scene

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In New York, the judge must be present at a jury view. The prosecutor, defendant, and defendant's counsel have a right to attend.

An unauthorized jury view of the scene in a criminal case is inherently prejudicial and results in a reversal of a conviction. An unauthorized view of the scene may result in reversal in civil cases

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10 Unsworn Testimony of a Child

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In a New York civil case, unsworn testimony of a child is inadmissible.

In a New York criminal case, a child under the age of 9 or a person who cannot understand the nature of an oath may testify, provided that they have sufficient intelligence to justify the testimony. Note that a conviction may not be based on unsworn testimony alone.

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11 The Dead Man's Act

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In New York, the Dead Man's Act extends coverage to incompetents. There is also an Automobile Accident Exception to the Dead Man's Act. A survivor of an automobile accident is deemed competent to testify to facts of negligence or contributory negligence. This rule applies even if one of the parties is the representative of a deceased or mentally ill person.

(Under the Dead Man's Act, a witness is incompetent to testify about communications or personal transactions with a decedent,

when the testimony is offered against the representatives or successors of the interest at issue,

unless there is a waiver)

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12 Expert Opinion - Factual Basis

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In New York, expert witnesses may base their opinion on matters not in evidence IF the information comes from a witness subject to full-cross-examination at trial.

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13 Expert Opinion - Scientific Methodology and Scientific Treaties

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In New York, scientific methodology used in the opinion must be sufficiently established to have gained general acceptance in the particular field.

Scientific treaties are generally excluded as hearsay when offered as proof of the facts asserted. However, scientific treaties may be used on cross-examination to discredit the expert's opinion.

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14 Impeachment of a Witness

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In New York, the prior testimony of any witness may be used to impeach or contradict the witness in a subsequent civil action. In a criminal case, impeachment of one's own witness is permitted only when the testimony of the witness affirmatively damaged the party calling the witness.

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15 Impeachment of a Witness - Prior Convictions

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In New York, conviction of any crime may be shown or inquired about even if the crime does not involve serious immorality. In criminal cases, only the defendant is entitled to a pretrial hearing to determine if a prior conviction is admissible

In New York, admission by the witness on cross-examination that he has been convicted of a crime does not preclude the cross-examiner from questioning the witness about the conviction.

(The FRE allow to impeach a witness:

(1) by any CRIME, if based on an act of dishonesty or false statement
(2) by any FELONY, even if it does not involve dishonesty or false statement)

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16 Impeachment of a Witness - Non-Conviction Misconduct

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New York adopts a broader standard that permits inquiry into immoral, vicious, or criminal acts that affect credibility (allowed by intrinsic evidence, not extrinsic unlike the rule for more serious criminal convictions!).

(the FRE permits a witness to be questioned about any immoral, vicious, or criminal act in his life that may affect his character and show him to be unworthy of belief)

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17 Admissibility of Prior Inconsistent Statements

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In New York, prior inconsistent statements made in writing and signed or made under oath are admissible in both civil and criminal cases to impeach a witness.

Prior inconsistent statements are NOT admissible as substantive evidence in criminal cases.

(Under the FRE, prior inconsistent statements used to impeach a witness may be admitted as substantive evidence if:

(1) the declarant is subject to cross-examination at the current trial
(2) the prior statement is inconsistent with the declarant's current testimony
(3) the prior statement was given under oath
(4) the prior statement contained in a trial record)

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18 Hearsay - Admissibility of a Withdrawn Guilty Plea

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In New York, a withdrawn guilty plea can be admitted as an admission in a subsequent civil proceeding arising out of the same facts.

(a withdrawn guilty plea in a criminal case is not admissible against D in any civil or criminal proceeding)

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19 Admission by a Party-Opponent

Back 19

In New York, an admission by a party-opponent is an exception to the hearsay rule (rather than a nonhearsay exemption).

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20 Vicarious Admissions

Back 20

In New York, vicarious admissions by an agent are hearsay. An employee's statement cannot be used against the employer, unless the employee had "speaking authority" within the organization.

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21 Present Sense Impressions

Back 21

In New York, present sense impressions must be independently corroborated to show that the events occurred.

(Under the FRE, a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, is admissible as a present sense impression if:

(1) the statement explained or described an event or condition
(2) the declarant had first-hand knowledge about the event or condition
(3) the statement was made at the time the declarant was experiencing the event or condition or immediately thereafter)

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22 Present Bodily Condition (Statements of Mental, Emotional, and Physical State)

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In New York, the declarant must be unavailable for statements of present bodily condition made to a lay person to be admissible.

If a statement of future intent is offered to prove the conduct of a third person, NY requires corroboration of the connection between the declarant and third person and that the declarant is unavailable.

(Under the FRE, a statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) is admissible as a statement of mental, emotional, or physical condition)

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23 Statements for Purposes of Medical Diagnosis and Treatment

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In New York, statements made to medical personnel solely for the purpose of obtaining expert testimony are not admissible.

(Under the FRE, statements made for purposes of medical disagnosis or treatment and describing medical history (including present or past symptoms, pain, or sensations) as reasonably pertinent to diagnosis or treatment are admissible)

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24 Accident Reports Made in the Regular Course of Business (Business Records)

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In New York, accident reports made in the regular course of business are admissible even if made in anticipation of litigation. These reports must be limited to observations and cannot include conclusions.

(Police reports are admissible in a civil case. In a criminal case, police reports are generally not admissible)

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25 Hearsay Exceptions Under Public Records and Reports

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New York specifically recognizes the following hearsay exceptions (under public records and reports):

(1) records of out-of-state real estate
(2) marriage certificates
(3) weather reports
(4) presumption of death

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26 (No) Learned Treatise Exception

Back 26

The learned treatise exception to the hearsay rule is not recognized in New York. The use of learned treaties in New York is limited to impeachment of expert witnesses.

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27 Unavailable Witness

Back 27

New York follows the FRE definition of unavailability but New York does NOT recognize:

(1) the declarant refuses to testify despite a court order
(2) the declarant testifies that he has a lack of memory

(Under the FRE, a declarant is deemed unavailable when he:

(1) is exempted from testifying on grounds of privilege
(2) despite a court order, refuses to testify
(3) testifies that he has a lack of memory
(4) is deceased
(5) is unable to testify due to mental illness
(6) is absent and the statement's proponent has not been able to secure the declarant's attendance or testimony through reasonable means)

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28 Admissibility of Dying Declarations

Back 28

In New York, dying declarations are admissible only in homicide cases. The declaration must be related to the declarant's death.

(Under the FRE, a declaration made by an unavailable declarant, while believing his death was imminent,

that concerns the cause or circumstances of what he believed to be his impending death

is admissible in a prosecution for HOMICIDE OR in a civil action)

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29 Unavailability of the Declarant of a Former Testimony

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New York follows the FRE definition of "unavailable," but also adds the following with respect to former testimony:

(1) if the witness is located 100 miles from the courthouse or is out of state
(2) if the witness is unable to attend due to age, illness, or imprisonment
(3) if exceptional circumstances exist

New York allows the prior testimony of physicians to be used by any party without a showing of unavailability or exceptional circumstances.

(Under the FRE, evidence of former testimony is admissible if:

(1) the subject matter is the same between the two proceedings +
(2) the party against whom the testimony is offered (or a predecessor in civil proceedings) had an opportunity and similar motive to develop the declarant's testimony by direct, cross, or redirect examination +
(3) the witness is unavailable in the current proceeding)

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30 Exceptions to the Use of Former Testimony in Criminal Cases

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In a criminal case, the rules for the use of former testimony in criminal proceedings are similar to civil cases, with the following exceptions:
(1) D and the charge for the former and present case must be the same
(2) if the trial judge finds that a grand jury witness' unavailability is the result of defendant's unlawful conduct, the trial jury may hear the grand jury testimony

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31 (No) Residual Exception to the Hearsay Rule

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New York does not recognize the residual exception to the hearsay rule. However, New York courts may admit hearsay that is particularly trustworthy even if it does not fit perfectly within an exception.

(Under the FRE, consider:

(1) whether the statement is of a material fact
(2) whether the statement is more probative to the point for which it is offered than any other evidence that the proponent can secure
(3) the general purpose of the rules and whether the interests of justice will be best served by admission of the statement into evidence)

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32 No Spousal Immunity and Exceptions

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New York does NOT recognize spousal immunity.

There are two exceptions where neither spouse is competent to testify:

(1) the accusation is founded on adultery, except to prove the marriage, disprove the adultery, or disprove a defense after evidence in support of a defense has been offered
(2) the testimony is regarding non-access during wedlock where the effect would be to show the illegitimacy of a child, with the exception of filiation proceedings if the complainant mother is married or in a proceeding to enforce support for the child

(A married person whose spouse is D in a CRIMINAL case cannot be called by the prosecution as a witness and a married person cannot be compelled to testify against his spouse in any criminal proceeding)

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33 Exceptions to the Attorney-Client Privilege

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In New York, attorneys are required to disclose information regarding:

(1) the preparation, execution and revocation of any will in actions involving probate, validity, or construction of a will
(2) the identity of clients, unless the identity was intended to be confidential for good cause
(3) the locations of a child who has been absconded by one spouse in a custody battle

(the attorney-client privilege does not exist if:

(1) the client retains the attorney to engage in or assist a future crime or fraud
(2) the communication arises in a civil litigation between two former joint clients of the attorney
(3) the competency or intention of a client who disposes of property by will or gift during his lifetime is in question
(4) if a relevant issue of breach of duty arises by either the attorney or client out of the client-attorney relationship)

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34 Waiver of Privileges by a Plea of Innocence by Reason of Insanity

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In New York, a plea of innocence by reason of insanity works as a complete and effective waiver of any claim of privilege, including the attorney-client privilege.

(A privilege is waived:

(1) if the protected party fails to claim the privilege or fails to object to a privileged statement when the testimony is offered
(2) if the protected party voluntarily discloses the privileged information, unless the disclosure itself is also privileged
(3) if contractual provision waives the right to claim the privilege in advance)

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35 Physician / Psychotherapist - Patient Privilege

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In New York, a psychotherapist / psychologist / social worker and support staff may not reveal communications with a client except when the child is under the age of 16 and the victim of a crime. Rape counselors and support staff may not reveal communications with a client.

In New York, the following are added to the majority rule

(1) dentists are required to disclose necessary information for identification of a patient
(2) physicians, dentists, chiropractors or nurses are required to disclose information indicating that a patient under the age of 16 has been a victim of a crime
(3) recordkeeping and reporting at the state and federal level regarding Medicaid patients supersede the privilege to the extent necessary to determine proper use of Medicaid funds

The physician / psychotherapist - patient privilege applies to criminal cases.

(The SC has recognized a federal privilege for communications between a psychotherapist or social worker (but not a physician!) and a patient)