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167 Cards in this Set

  • Front
  • Back
Non-hearsay (vs. exclusions/exceptions)
Impeachment
Verbal acts (legally operative words)
Statements that show effects vs. turth (e.g. notice, reasonableness)
Circumstantial ev of speaker's mind
Hearsay Exceptions - Overview
Party Admission
Unavailability Exceptions
Spontaneous Exceptions
Hearsay - Unavailability Exceptions
Former testimony
Forfeiture by wrongdoing
Statement against interest
Dying declaration
What is unavailability for the purposes of the hearsay exceptions?
Privilege
Absence fom jurisdiction
Death/illness
Lack of memory (MBE only)
Stubborn refusal to testify (MBE only)
Hearsay - Spontaneous Exceptions
Excited utterance
Preseent-sense perception
Then-existing mental/physical/emotional state
Statements made for medical treatment/diagnosis
Business & public records
Hearsay Exceptions - NY specific rules
A present sense impression of physical condition require corroboration

A statement re: physical condition requires corroboration AND unavailability

Medical treatment/diagnosis statements not excepted if made solely for expert testimony at trial
Business & Public Records Hearsay Exception - Basic Elements
(1) Business records
(2) made in the regular course of business
(3) regularly kept by such business
(4) contemporaneously with the event
(5) incl statements of observations of employees OR information that falls into a hearsay exception
Business & Public Records Hearsay Exception - Public Records
ON THE MBE ONLY: If business records are public records, may also incl. conclusions by public employees but not a police report prepared for prosecutorial purposes
Business & Public Records Hearsay Exception - Laying the foundation
Live testimony as to the 5 elements OR written certification

NY: Written certification can only be used in CIVIL cases w/ docs of a NONPARTY
Hearsay & the 6th Am Confrontation Clause
Prosecutional may not offer TESTIMONIAL hearsay in violation of D's right to be confronted by witness

*Business records & staetments made to police to enable their response to an emergency are NOT TESTIMONIAL.
THE GENERAL RULE RE: ADMISSIBILITY
Relevant evidence is admissible
EVIDENCE IS RELEVANT IF
it has any tendency to make a material fact more/less probable
THE GENERAL EXCEPTION RE: ADMISSIBILITY
The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by 1 or more pragmatic considerations.
PRAGMATIC CONSIDERATIONS INCL
a)Danger of unfair prejudice

b)Confusion of issues/misleading jury

c)Waste of time/undue delay/unduly cumulative
Dual purpose evidence –
if one purpose is inadmissible & one admissible, the judge should give the jury a limiting instruction to consider it only for the permissible purpose.
THE PUBLIC POLICY EXCEPTIONS
Liability Insurance

Subsequent Remedial Measures

Settlement Discussions (Civil)

Offers to Pay Medical Bills

Withdrawn Pleas (Crim)
Liability Insurance
IS ADMISSIBLE TO SHOW
Ownership/control (if controverted)
Bias of witness
Liability Insurance
IS INADMISSIBLE TO SHOW
Fault
THE WITHDRAWNS PLEAS EXCEPTION APPLIES TO...
Applies to offers to plea, withdrawn pleas, please of no lo contendere & statements of fact made during plea bargaining
THE SETTLEMENT DISCUSSION EXCEPTION APPLIES TO...
Applies to any evidence of settlement, offers to settle, or statements of fact made during settlement discussion
Must be a disputed civil claim (not, e.g., before a claim arises “I’ll give you $100K if you don’t sue!”)
Subsequent Remedial Measures
INADMISSIBLE TO SHOW
Negligence

Culpable conduct

Failure to warn

Product defect
Subsequent Remedial Measures
ADMISSIBLE TO SHOW
Ownership/control (if controverted)

Feasibility of safer condition (if controverted – not, e.g. mere denial of negligence)

NY: manufacturing defect in strict products liability case
Settlement Discussions
INADMISSIBLE TO SHOW
Liability
Settlement Discussions
ADMISSIBLE TO SHOW
To show bias

“Enron Exception” (Statements of facts made during settlement discussions in civil litigation with a govt regulatory agency admissible in criminal cases)
Offers to Pay Medical Bills
INADMISSIBLE TO SHOW
Liability
Offers to Pay Medical Bills
ADMISSIBLE TO SHOW
NEVER ADMISSIBLE
Withdrawn Pleas
INADMISSIBLE TO SHOW
Guilt

Civil Liability
Withdrawn Pleas
ADMISSIBLE TO SHOW
Fed: No exceptions

NY: Civil cases (withdrawn pleas)

Note: guilty pleas not withdrawn are admissible!
CHARACTER EVIDENCE - THE GENERAL RULE
INADMISSIBLE TO SHOW PROPENSITY TO COMMIT ACTS
CHARACTER EVIDENCE - NON-PROPENSITY USES
i)Witness Veracity (i.e. impeachment purposes)

ii)MIMIC Uses (of prior bad acts)
a)Motive
b)Intent
c)Mistake/Accidence (absence of)
d)Identity (e.g. modus operandi, location of D)
e)Common Scheme
IF PROSECUTOR WANTS TO USE MIMIC EVIDENCE, MUST PROVE BY:
Fed: sufficient evidence for a reasonable jury

NY: Clear & convincing evidence
MIMIC EVIDENCE IS USED:

(a) To Impeach
(b) To Prove Substantive Facts
(c) Both
(d) Neither
(b) To Prove Substantive Facts
Propensity to commit acts is allowed as evidence in the following situations
1. Where criminal D offers evidence of D's good behavior or P's bad behavior

2. Prosecutor's Rebuttal to D's Evidence

3. Prosecutor's Case-in-Chief (very limited)

4. In Civil Cases, where character is an element of the offense
Character is an element of the offense in a civil case in, e.g.
a)Negligent Hiring
b)Defamation
Character is admissible in a Prosecutor's Case-in-Chief
sexual assault or child molestation only

*Does not apply in NY
A Criminal D may offer character evidence FOR SUBSTANCE in the form of
REPUTATION (NY & Fed)

or OPINION (Fed),

not specific acts (but OK in prosecutorial rebuttal).
Criminal D can only offer character evidence for substance IF
Trait is relevant to offense (e.g. peaceableness, not bravery, for murder)
In Sexual Assault cases, a Criminal D can only offer evidence of V's sexual character IF
evidence of sexual activity with the D (if consent is a defense)

evidence of sexual activity with others if
i) to prove someone else is the source of physical evidence
ii) required by D’s due process rights (e.g. love triangle situation)
In Self-Defense cases, may a Criminal D offer evidence of the victim’s violent character to demonstrate that V was the initial aggressor?
ONLY ON MBE

but (in both NY & MBE) may introduce evidence that D knew of V’s violent character to demonstrate reasonable need for use of self-defense (this is not propensity evidence, so any form of evidence may be used, even specific acts)
A Prosecutor may offer character evidence for REBUTTAL in the form of
Any Form!
Specific acts are OK.
If a Prosecutor offers character evidence for REBUTTAL, EVIDENCE IS USED:

(a) To Impeach
(b) To Prove Substantive Facts
(c) Both
(d) Neither
(a) To Impeach ONLY
If a Prosecutor cross-examines D's character witness for REBUTTAL, may ask the following Q's:
“Have you heard…?” (NY & Fed)

“Did you know…?” (Fed only)
EVIDENCE OF P'S PRIOR ACCIDENTS IS ADMISSIBLE TO SHOW
a)Fraudulent scheme

b)Causation of particular injury (i.e. it was the prior accident, not the one at issue)
Similar accidents caused by the same event or condition – ADMISSIBLE TO SHOW
a)Existence of a dangerous condition
b)Causation
c)Prior notice to D
OTHER AREAS WHERE "SIMILAR OCCURRENCES" ARE RELEVANT:
i)Experiments & tests – there must be substantial similarity between the experiment & the disputed fact
ii)Intent in issue (e.g. discrimination)
iii)Comparable sales to show FMV
iv)Industrial custom as standard of care
V)Habit Evidence or Business Routine
NY's Habit Evidence or Business Routine Rule
a)Only business, trade, or professional routine is admissible (not personal habit)

Exception: Personal habit in the use of a product is admissible if person had complete control of the circumstances
A COURT MAY TAKE JUDICIAL NOTICE OF
INDISPUTABLE FACTS

i)2 forms:
a)Common knowledge w/in ct’s jurisdiction (e.g. where is Times Square)

b)Matters capable of easy verification by resort to unquestionable sources (e.g. calendar)
JUDICIAL NOTICE OF LAW
A court will take notice of sister-state & federal law, but NOT foreign law (must be pleaded & proved)

If foreign law cannot be proved, apply NY law unless it would be unjust
JUDICIAL NOTICE - TIming
1.PROCEDURAL ASPECTS:
May be taken at any time, even on appeal
JUDICIAL NOTICE - Effect
Considered conclusive in civil, not criminal, cases
QUESTIONS OF ADMISSIBILITY: Burden of Proof
preponderance of the evidence

*Judge may consider any evidence at all
JURY DECIDES
QUESTIONS OF FACT, INCL: Questions of conditional relevance – i.e.

a)Whether a witness has personal knowledge

b)Whether an exhibit is authentic

c)Whether D committed a crime/bad act offered as MIMIC evidence
JUDGE DECIDES
QUESTIONS OF LAW, INCL:

i) Whether there is sufficient evidence to a reasonable jury to make its conclusions

ii)Questions of admissibility – i.e.
a)Whether testimony is hearsay or fits an exception
b)Whether a communication is privileged
c)Whether an expert is qualified
EVIDENCE MUST BE ___ BY PARTY OFFERING IT
AUTHENTICATED

Called “Laying a Foundation”
AUTHENTICATION - Burden of Proof
The party introducing the evidence must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be.
REAL EVIDENCE (i.e. physical evidence) authenticated by
i)Personal knowledge – if item is easily recognized by sight (e.g. custom gun handle)

ii)Chain of custody – need not be perfect, but substantially unbroken

*Must be in substantially the same condition as before trial
METHODS OF AUTHENTICATING A WRITING
i)Testimony by a witness with personal knowledge

ii)Proof of author’s handwriting

iii)Ancient document rule

iv)Solicited reply doctrine
AUTHENTICATING A WRITING: How to prove handwriting
a)Layperson opinion (allowed if witness is familiar with handwriting through the normal course of affairs, not in preparation for litigation)

b)Expert testimony (if expert is qualified, comparing document to actual sample)

c)Jury comparison
AUTHENTICATING A WRITING: Solicited reply doctrine
If a document was received in response to a prior communication to the alleged offer -> evidence of authentication
AUTHENTICATING A WRITING: Ancient document rule
Authenticity may be inferred if

a)Document is at least 20 yrs old (NY: 30),

b)is facially free of suspicion, and

c)Was found in a place it would be expected to be located
SELF-AUTHENTICATING DOCUMENTS
i)Official publications

ii)Certified copies of public/private documents on file in public office

iii)Newspapers or periodicals

iv)Trade inscriptions & labels (e.g. candy bar wrapper)

v)Acknowledged document (e.g. notarized document)

vi)Commercial paper

vii)Certified business records *NY: only allowed in civil cases for the business records of a non-party
AUTHENTICATING A WRITING: PHOTOGRAPHS & RECORDINGS
i)Photograph as demonstrative evidence – may be authenticated by witness testimony that it is an accurate representation of the people or objects portrayed

ii)Photograph as silent witness – may be authenticated by showing that:
a)The camera was properly functioning
b)The film was properly removed and developed or downloaded
c)The film was not tampered with, e.g. by establishing a chain of custody
BEST EVIDENCE RULE
If a party seeks to prove the contents of a writing, must submit an original

UNLESS:
- provides an acceptable excuse
- Voluminous records (can present summary/chart if originals would be admissible & are available for inspection)
- Certified copies of public records
- Collateral documents – in court’s discretion
BEST EVIDENCE RULE: Acceptable Excuses
a)the original:
Is lost or can’t be found with due diligence
Has been destroyed without bad faith
Cannot be obtained with legal process
b)Excuses must be proven by a preponderance of the evidence
BEST EVIDENCE RULE: When does a party seek to prove the contents of a writing?
i)The writing is a legally operative document (e.g. deeds, contracts)

ii)Witness is testifying to facts that she learned solely from reading them in a writing

iii)Writing includes film, recordings, etc.
BEST EVIDENCE RULE: What is an orignal?
i)includes the writing & any counterpart intended to have the same effect (e.g. 2 copies of leases, both signed) film negatives, any prints made from negatives

a)A “duplicate” (mechanical reproduction, e.g. photocopy) is admissible to the same extent unless
There is a genuine question about the authenticity
It would be unfair (e.g. blurry fax or photocopy)

b)A “copy” therefore is a handwritten version!

c)NY – duplicates only acceptable if they were made in the regular course of business, not for litigation
TO BE COMPETENT, A WITNESS MUST:
i)Have personal knowledge, and

ii)Take an oath or affirmation
CHILD WITNESSES MAY TESTIFY WHEN
NY ONLY
CIVIL CASES - s/he understands the obligation to tell the truth and promises to tell the truth

CRIM CASES: a child < 9 can give unsworn testimony if s/he does not understand the obligation as long as there is corroborating evidence
THE OATH DEMONSTRATES
understanding of the obligation to tell the truth & promise to tell the truth
DEAD MAN’S STATUTE - General Rule
i)In a civil suit

ii)An interested witness (i.e. a witness whose rights/obligations will be effected by the outcome of the case)

iii)May not testify

iv)Against a deceased party or the party’s representative

v)About communications with the deceased
DEAD MAN’S STATUTE - Exceptions
WAIVER by
a)Failure of representative to object
b)Testimony by decedent’s representative re: transaction
c)Decedent’s testimony is introduced

NY – in an accident case based on negligence, the surviving party may testify about the facts of the accident, but not conversations with the decedent
LEADING QUESTIONS ARE NOT ALLOWED UNLESS:
ON DIRECT EXAMINATION:
i)Preliminary introductory matters
ii)Youthful or forgetful witness (w/in the court’s discretion)
iii)Hostile witness
a)Presumed hostile if witness = adverse party or someone under the control of an adverse party

ON CROSS: Can always ask leading questions
PRESENT RECOLLECTION REFRESHED =
When forgetful witness is presented some sort of document to jog memory, not to be read aloud or to be admitted into evidence

(although opposing party may inspect, use during cross, and admit to ev)
PAST RECOLLECTION RECORDED - Applies if:
a)The witness once had personal knowledge

b)But now forgets & presentation does not jog memory

c)The writing was either made or adopted by the witness

d)The witness can attest that, when made, the writing was accurate
PAST RECOLLECTION RECORDED - Methods allowed:
Witness may read to jury, but only opposing party may show it to the jury by introducing it as evidence

*NY – either party may introduce as evidence
LAY WITNESS OPINION: Admissible if
i)Rationally based on witness’ personal knowledge/perception, and

ii)Will be helpful to the jury

iii)Examples:
a)Sobriety
b)Emotions
c)Speed
d)Handwriting
e)Smells
EXPERT OPINION: Admissible if
i)Witness is qualified by education/experience

ii)Testimony re: subject matter where scientific, technical, or specialized knowledge will be helpful to the jury

iii)Opinion has proper basis

iv) Opinion is reliable
EXPERT OPINION: Has proper basis if
a)It is based upon a reasonable degree of probability or reasonable certainty and

b)Source of opinion =
-Personal knowledge of expert
-Admitted evidence (made known to the expert through hypothetical questions)
-Facts from outside the record IF of a type reasonable relied upon by experts in the particular field
-But expert may not disclose the inadmissible facts to the jury (opponent may disclose such fact on cross-exam)
EXPERT OPINION: Is reliable if
a) Expert used reliable methods, looking to whether the methodology has been generally accepted?
*Fed: can also look to testing of method, known rates of error, peer review

b)Has reliably applied those methods to the particular facts
LEARNED TREATISE: General Rule
If a party can establish that a treatise is reliable authority, the treatise may be:
a)Used on direct or cross examination of an expert witness
b)Read to jury
LEARNED TREATISE: Establishing Authority
a)Expert testifies that the treatise is authoritative
b)Opponent’s expert testifies treatise is authoritative
c)Judge takes judicial notice that the treatise is authoritative
METHODS OF IMPEACHMENT:
i)Prior inconsistent statements

ii)Bias, interest, or motive to misrepresent

iii)Sensory deficiencies

iv)Bad character for truthfulness

v)Contradiction
PRIOR INCONSISTENT STATEMENTS EVIDENCE IS USED:

(a) To Impeach
(b) To Prove Substantive Facts
(c) Both
(d) Neither
C) To impeach + as substantive evidence (Fed only) if the prior statement was under oath & part of a formal hearing/proceedings/trial/deposition
PRIOR INCONSISTENT STATEMENTS: If a party would like to use this evidence, they must...
Must give witness a chance to explain or deny the prior statement

In NY, this must be while the witness is still on the stand

Exception: if witness is the opposing party, no opportunity to explain is required
BAD CHARACTER FOR TRUTHFULNESS CAN BE PROVEN BY
a)Reputation/opinion

b)Criminal convictions

c)Bad acts (w/o conviction)
BAD CHARACTER FOR TRUTHFULNESS: Reputation/opinion evidence incl...
A party may impeach a target witness by calling another witness to testify re: target’s bad character for veracity (the trait of being truthful)

If admissible, can only offer evidence about REPUTATION (NY & Fed) or OPINION (Fed), not specific acts
BAD CHARACTER FOR TRUTHFULNESS: Criminal convictions are admissible against a witness IF
Fed: Conviction must be w/in 10 yrs of trial and be either
1) A crime of dishonesty or false statement
2) A felony (never misdemeanors) IF the probative value > risk of unfair prejudice

NY: Any witness may be impeached for any crime, but when the witness is the criminal D, court must hold a “Sandoval” hearing to balance the probative value against the risk of prejudice.
BAD CHARACTER FOR TRUTHFULNESS: A witness may be asked about prior bad acts if
Fed: relates to truthfulness

NY: relates to moral turpitude
TO IMPEACH A WITNESS W/ EV OF PRIOR BAD ACTS, THE ONLY EV ADMISSIBLE IS:
Bad act may be proven by intrinsic evidence only (i.e. stuck with witness answer, unless offered for some other purpose, e.g. bias)
TO IMPEACH A WITNESS W/ EV OF PRIOR BAD ACTS, Cross-examiner must
Cross-examiner must have a good faith belief the bad act occurred
Balancing Probative Value vs Unfair Prejudice
More probative: serious crimes, relation to trust or deception

More prejudicial: inflammatory crimes (e.g. child molestation) & crimes similar to the one at issue
ARE YOU LIMITED TO THE WITNESS' ANSWER IF SEEKING TO PROVE CONTRADICTION?
a)If significant to the case -> extrinsic evidence allowed

b)If collateral -> limited to intrinsic evidence
NY’s “Voucher Rule”
A party vouches for the witness’ credibility when calling them to the stand,

UNLESS the witness made a prior inconsistent statement in a signed writing or under oath
a)In a criminal case, exception only applies if current testimony is affirmatively damaging to the party that called the witness, not merely a cloud of credibility (e.g. not if witness claims “I can’t remember who assaulted me”)
PRIOR CONSISTENT STATEMENTS ARE ADMISSIBLE
TO...
WHEN...
IF
1) The opposing party has suggested that the witness recently developed a motive to lie, and
2) The prior consistent statement was made before the motive arose
PRIOR CONSISTENT STATEMENTS EVIDENCE IS USED:

(a) To Rehabilitate
(b) To Prove Substantive Facts
(c) Both
(d) Neither
MBE: (c) BOTH Rehab & Substantive Evi

NY: (a) Rehab only
Methods of Rehabilitation
a)Good character for truthfulness

b)Prior consistent statement
CHARACTER FOR TRUTHFULNESS: If used to rehabilitate, what form can it be in?
REPUTATION (NY & Fed) or OPINION (Fed), not specific acts
ATTY-CLIENT PRIVILEGE: ELEMENTS
i)Any communication

ii)Between a client & atty (or their representatives)

iii)That is confidential

iv)For the purpose of obtaining legal (not business or social) advice
ATTY-CLIENT PRIVILEGE: What is NOT protected?
Not client’s knowledge of underlying facts,
pre-existing documents, or
physical evidence
ATTY-CLIENT PRIVILEGE: Atty =
member of the bar & someone the client reasonably believes is a member of the bar, and any representatives of the atty (e.g. a secretary)
ATTY-CLIENT PRIVILEGE: Client =
actual & prospective clients & their representatives
ATTY-CLIENT PRIVILEGE: Joint clients
privilege exists as to outsiders but not between them
ATTY-CLIENT PRIVILEGE: Waiver
a)Voluntary: Only client (or client’s estate) may waive

b)Subject Matter: Intentional partial disclosure will lose privilege as to all communications in the same subject matter is fairness requires that they be considered together

c)Involuntary: But an inadvertent disclosure of privilege information will not waive the privilege as long as the privilege-holder took reasonable steps to prevent the disclosure & to correct the error
ATTY-CLIENT PRIVILEGE: Other ways client may lose privilege
i)Future crimes/fraud – e.g. client asks atty “Help me disguise these bribes”

ii)Client puts legal advice in issue – e.g. client tells court “I relied on my atty’s advice in preparing my tax return”

iii)Attorney-client disputes – e.g. malpractice, unpaid fees
DOCTOR-PATIENT PRIVILEGE:
i)Any communication or information

ii)Acquired by a doctor from a patient

iii)That is confidential

iv)For the purposes of obtaining medial treatment or diagnosis

*Regular doctors (vs. Psychiatrists) - does not apply in fed courts unless based on diversity jurisdiction
EXCEPTIONS TO SPOUSAL IMMUNITY & COMMUNICATIONS
i)Communication or act in furtherance of crime/fraud
ii)Destructive of family unit (e.g. spousal or child abuse)
iii)Litigation between spouses

*Spousal Immunity does not apply in NY (but communications privilege does)
UNMARRIED CO-HABITANT AGREEMENTS
i)Common Law - unenforceable against public policy

ii)Current NY Law - an express agreement is enforceable for consideration (other than sexual relations)
a)But NY will NOT imply a contract. No "pal-imony."
PRE- OR ANTI-NUPTIAL AGREEMENTS - Valid if
i)In writing signed by both parties

ii)Does not contain an agreement to divorce or engage in conduct that will lead to divorce

iii)Couple actually marries

iv)Agreement is not the process of duress

v)And is not unconscionable - may provide that other spouse won't get anything, but watch out if s/he will be destitute or state's ward (discretionary court judgment)
HEART BALM ACTIONS - All abolished in NY (to bring a complaint alleging such action = felony)
i)Breach of promise to marry

ii)Seduction of an unmarried female (c/a accrues to father)

iii)Alienation of affections (against, e.g., suspected love interest or in-laws)

iv)Criminal conversion (civil action against someone sleeping with your spouse)

v)Jactitation of marriage (false claims of marriage to P)
Marriage Requirements
1.MARITAL CAPACITY (see termination for examples)

2.LICENSE (govt investigates capacity)

3.CEREMONY REQUIREMENTS
i)Officiant
ii)Witness
iii)Exchange of promises or "solemn declaration" (no magic words required)
COMMON LAW MARRAIGE?
NO (but if valid CL marriage obtained in another state, will be recognized in NY)
5 PROCEEDINGS TO TERMINATE A MARRIAGE
DECLARATION OF NULLITY

ANNULLMENT

SEPARATION

DIVORCE

DISSOLUTION
DECLARATION OF NULLITY - PROPER IF
a pre-existing capacity issue makes marriage void

*In other words, the parties are not married and may legally separate without any proceeding, but seek a declaration for clarification of the record & opportunity for judge to adjudicate collateral matters
DECLARATION OF NULLITY - GROUNDS
Lack of capacity -> Void marraiges:

i)Bigamy

ii)Incest - ancestors, descendents, siblings, and lineal relations up or down 1 generation (aunts/uncles, nieces/nephews)
*Cousins OK
ANNULLMENT - PROPER IF
a pre-existing capacity issue makes marriage voidable

i)In this case, proceeding required or parties stay married

ii)Grounds may be waived by remaining in marriage after lack of capacity removed
ANNULLMENT - GROUNDS
i)Non-age (< 18),

ii)Duress (the "shotgun" wedding, literally)

iii)Fraud

iv)Physical Incapacity (permanent inability to perform the sex act)

v)Mental Incapacity or "Want of Understanding"

vi)5 Years Incurable Insanity Arising After Marriage
MINORS MAY MARRY (and not have voidable marraiges) IF
at 16 or 17 w/ parent's consent

or 14-15 with parent & court's consent
FRAUD THAT RISES TO THE LEVEL TO LEVEL OF VOIDABLE MARRIAGE =
the concealment or misrepresentation re: a matter that goes to an essential aspect of the marriage.

Discretionary, but look for:
a)Religious belief/intensity of practice
b)Concealment of infertility or disease/defect that makes it risky to have kids
c)Misrepresentation that pregnant woman's baby is H's child
d)Sexual history (in a big way) or proclivities
e)But not social status, property, or money
ANNULLMENT - GROUNDS: "Want of Understanding" vs Incurable Mental Illness
a)Incl. mental illness or disability
1) Want of Understanding - Usually brought by a committee of the incapacitated, claims incapacity at the wedding

b) Incurable Mental Illness happens after marriage, Requires 3 court-appointed psychiatrists who agree
ANNULLMENT - PROCEDURAL NOTES:
i)Grounds must always be corroborated

ii)Jury trials in all but physical incapacitation

iii)General SOL = 6 yrs
SEPARATION - PROPER IF:
Spouses agree to live apart, but not terminate the marriage, and desire to adjudicate collateral rights
i)Why not end the relationship?
a)Pragmatic concerns - heath insurance, employee benefits, joint tax returns
b)Philosophical/religious beliefs
SEPARATION - GROUNDS
i)Cruel & Inhuman Treatment

ii)Abandonment

iii)Adultery

iv)3 Years Consecutive Imprisonment

v)Failure to Provide Economic Support
Cruel & Inhuman Treatment =
physical or mental abuse that endangers the well being of the plaintiff, rendering it unsafe or improper to continue cohabitation
a)Mental abuse may require a pattern
b)But standard is subjective, i.e. anything that P finds distressing
Abandonment - 4 requirements
4 requirements
a)Voluntary departure (need not be physical, e.g. could be refusal of sex for extended period)
b)W/o consent
c)W/o justification
d)With no intent to return
ADULTERY - Affirmative Defenses:
A) Condonation (waiver = forgiveness & resumption of the relationship)

B) Connivance (entrapment, i.e. P procured the adultery)

C) SOL: 5 yrs from discovery
ADULTERY - Spouses may only testify to
1) Prove marriage
2) Deny/disprove adultery
3) Deny/rebut defense
NOT to prove adultery
ADULTERY - To prove:
Circumstantial Evidence: Opportunity & Inclination
Testimony of 3rd Parties - But testimony of prostitute must be corroborated
SEPARATION - PROCEDURAL NOTES:
i)No jury trial

ii)Can be permanent or temporary

iii)No SOL for abandonment

iv)May be by court order (decree) or voluntary agreement between parties
DIVORCE - PROPER IF:
parties desire to terminate marriage that is not void or voidable
DIVORCE - GROUNDS
i)Cruel & Inhuman Treatment
ii)Abandonment
iii)Adultery
iv)3 Years Consecutive Imprisonment
v)Conversion Divorce
vi) Irretrievable Breakdown of Marriage
DIVORCE - Conversion Divorce
i)parties live apart for 1 yr during which they are are separated by a separation decree or separation agreement
a)If a separation agreement is used, subject to judicial scrutiny, looking to whether there was undue influence & whether the agreement was properly in a notarized writing filed with the court
b)In separation agreement situation only, divorce may be prevented by
Material breach of terms
Cohabitation w/intent to reconcile (1 yr period restarts)
DIVORCE - Irretrievable Breakdown of Marriage
i)(*new no fault divorce) - established by the testimony of 1 spouse under oath that the marriage has been irretrievable for at least 6 months

Not final until all collateral matters litigated
DISSOLUTION - PROPER IF
spouse has been missing "without tidings" for at least 5 yrs
DISSOLUTION - PROCEDURAL REQUIREMENTS
i)Diligent search
ii)Publish request that spouse return for 3 consecutive weeks in english newspaper (even if couple does not speak english)
iii)Residency - plaintiff lives in NY or NY was the matrimonial home at the other spouse's disappearance
iv)No collateral issues are adjudicated (other party is deemed dead).
TEMPORARY MAINTENANCE:
may be awarded to meet the needs of an economically dependent party and to preserve the status quo
POST-JUDGMENT MAINTENANCE:
i)New rebuttable presumption that the less-married spouse should receive counsel fees
ii)Factors - marital fault, health & age, earning capacity, length of marriage, children, property division, etc.
MAINTENANCE: Modification
i)Maintenance is modifiable if there is a substantial change in circumstances
a)Modifications are prescriptive only
b)If divorce is by conversion of separation agreement, must show extreme hardship

ii)Normally terminates upon death of a party or when recipient remarries
a)Can contract around death default rule
b)Marriage of recipient incl. cohabitation as married couple
MAINTENANCE: FAILURE TO PAY:
Remedies incl.
i)Seizure of assets
ii)Removal of licenses (professional, recreational, driver's)
iii)Attachment of wages
iv)Atty's fees will be awarded if recipient spouse must sue
SEPARATE (non-marital) PROPERTY INCL.
i)Anything owned before the wedding

ii)Bequests/gifts in 1 spouse's sole name

iii)Property parties agree will be separate

iv)Personal injury awards

v)Appreciation in value of separate property, unless due to active participation or effort - may incl. homemaking if frees other partner to contribute
MARITAL PROPERTY DIVIDED
EQUITABLY

i)May even incl. pension right, degree, professional license

ii)Factors - similar to maintenance, but do not take into account marital fault except in extreme circumstances that shock the conscience

iii)Distribution may be in kind or by distributive award
NON-MARITAL CHILD - DEFINED:
A child conceived by and born to parents who never marry.

Thus, if parents marry before or after child is born, child is a marital child
IDENTIFICATION OF THE FATHER
i)If mother is married -> husband is presumed the father

ii)If mother is not married -> paternity determined in a filitation proceeding in Family Court
FILIATION PROCEEDING MAY BE BOUGHT BY
Mother

Child (acting through guardian)

NY State

Putative father who wants to establish rights
FILIATION PROCEEDING - TIMING
must be filed by child's 21st birthday
FILIATION PROCEEDING: Standard of proof:
Clear & convincing evidence
FILIATION PROCEEDING: EVIDENCE
Mother's testimony re: sexual relations with father need not be corroborated

D's claim that other men had sex w/ mother must be corroborated

DNA is admissible (unless equitable estoppel applies)
If negative -> conclusive
If positive to 95% -> rebuttable presumption
FILIATION PROCEEDING: Equitable Estoppel:
If a non-biological father has held himself out as the child's father, paying support, etc. + child has relied on that information, such man can be estopped from denying paternity
ADOPTION: ELIGIBLE PARENTS INCL.
i)Married coupe, acting together

ii)Single individual

iii)Married minor (spouse's children only)

iv)Married, but separated, individual acting alone
ADOPTION: OBTAINING CONSENT OF NECESSARY PARTIES
i)If adoptee < 18 -> need consent of both biological parents

ii)If adoptee > 14 -> need consent of biological parents and child

*But note - parental rights may be terminated & consent will not be needed
TERMINATION OF PARENTAL RIGHTS
i)Surrender of child (to adoption agency, state)
ii)Abandonment of child (6 mo. w/o any contact)
iii)Neglect of child (1 yr w/ insubstantial contact)
iv)Mental incapacity of parent (or otherwise unable to care for child)
v)Abuse of child

Standard of proof = clear & convincing evidence
WHO HAS OBLIGATION TO SUPPORT CHILDREN ?
ALL PARENTS HAVE OBLIGATION TO SUPPORT CHILDREN < 21

i)Includes step-parents (if child would otherwise go on public assistance) and parents by equitable estoppel

ii)May continue past age 21 (to end of college) upon a showing of parent's financial ability & child's academic ability
FAILURE TO PAY CHILD SUPPORT: Remedies incl.
i)Seizure of assets

ii)Removal of licenses (professional, recreational, driver's)

iii)Attachment of wages

iv)Contempt of court

v)Imprisonment
CUSTODY DETERMINATIONS: General Standard
BEST INTERESTS OF THE CHILD STANDARD (BIC)

Factors incl. - parties wishes (incl child if 12+), mental/physical health, new companion's suitability, domestic violence history, ability to keep siblings together, cooperation & proximity of parents
CUSTODY DETERMINATIONS: Parent v. Non-Parent
a)Need statutory standing (Grandparents & Siblings)

b)Presumed in BIC to be with parents: must show extraodinary circ./parent is unfit
VISITATION RIGHTS
i)Almost never denied to parents (preferred: supervised visits)
a)If custodial parent blocks visit = contempt of court
b)Not denied for failure to pay child support

ii)Nonparents
a)Need statutory standing (Grandparents & Siblings)
VT Civil Union Case - b/c VT would treat lesbian moms as parents, NY will recognize both as parents under principles of comity
b)Must show special circumstances establishing a subtantial state interest in visitation to overrule parent's due process rights to raise kids as they see fit
CHOICE OF LAW: MARRIAGE:
If valid where entered, valid in NY

Exception - if it would (severely) violate a strong state policy
CHOICE OF LAW: DIVORCE DECREES (general rule)
Must have proper SMJ for NY to recognize, i.e. at least one spouse must be domiciled in the rendering state
CHOICE OF LAW: TO CHALLENGE AN OUT-OF-STATE DIVORCE,
a)Attacker bears burden of proof,

b)But can use any evidence even if it comes into existence after divorce decreed

c)Any interested person may attack the divorce unless estopped
CHOICE OF LAW: ESTOPPED FROM CHALLENGING DIVORCE IF
Divorce was bilateral/attacker was subject to PJ

Attacker played meaningful role in granting divorce

Attacker is in privity with party, incl. children

Spouse remarried in reliance on divorce
CHOICE OF LAW: Ex-parte divorce
one spouse domiciled in state -> Prima facie valid, must may be collaterally attacked by, e.g. showing that spouse who obtained the divorce was not a true domiciliary of that state
CHOICE OF LAW: Bi-lateral divorce
at least one spouse domiciled in state & both spouses subject to PJ in state -> where both spouses participate, honored in NY

Res Judicata applies to any issue which could have been raised at the earlier proceeding
CHOICE OF LAW: Consent divorce
no spouse domiciled in state -> INVALID
CHOICE OF LAW: Foreign Divorce
Comity if both spouses participate, otherwise INVALID
CHOICE OF LAW: SUPPORT AWARDS (alimony & child support)
must have PJ over the spouse whose property rights are in issue
CHOICE OF LAW: CHILD SUPPORT
if initial order is entered by the child's home state at the time of the suit, NY will honor it

Federal Law mandates for all states - Full Faith & Credit for Child Support Orders Act

NY - The Uniform Child-Custody Jurisdiction and Enforcement Act
CHOICE OF LAW: CHILD CUSTODY
If if initial order is entered by the child's home state at the time of the suit, and either the child or parent remains in the state, NY will honor it
DIVISIBLE DIVORCE DOCTRINE
if only part of judgment is valid, enforce those parts and not the others