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13 Cards in this Set
- Front
- Back
MBE Rule: Character Evidence
In a criminal case, evidence of a pertinent trait of character of the alleged victim may be offered by the accused or by the prosecution to rebut |
NY Rule:
When D claims justification, evidence of the victim's reputation for violence is admissible ONLY IF D was aware of it when allegedly acting in self-defense. -Evidence is only admissible to show D's state of mind at time of homicide, and is not admissible to raise the inference at the deceased was the agressor. -However, evidence that the victim threatened D is admissible to raise the inference that the victim was the agressor, and evidence of the victim's specific acts of violence against third persons is admissible if D was aware of the acts at the time in issue and the evidence tends to show that D acted in fear |
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MBE Rule:
Spousal Privilege Under CL, the spouse of a D cannot be compelled to testify against the D spouse |
NY:
CL rule of spousal immunity has been abolished, but either spouse is incompetent to testify agains the other in an adultery action. |
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MBE Rule:
Marital Communications Privilege In any civil or criminal proceeding, either spouse has a privilege to refuse to disclose, and to prevent another from disclosing a confidential communication made between the spouses while husband and wife. |
NY Rule:
Follows MBE rule EXCEPT the marital privilege does not apply to a child abuse or neglect proceeding. *or like CL rule, doesn't extend to communications between spouses in which they are jointly advancing a criminal conspiracy. |
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NY: Physician-Patient Privilege
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Privilege recognized BUT the privilege is waived when the patient voluntarily puts his condition into issue in a lawsuit.
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MBE Rule: Impeachment
The credibility of a witness may be attacked by any party, including the party calling the witness |
NY Rule:
A party in a civil action may not impeach his own witness, except by a prior inconsistent statement in writing and subscribed or made under oath. |
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NY Rule:
Sandoval Hearing |
A witness in New York may be impeached by evidence of a conviction of any crime.
The court may grant a pretrial motion by a criminal D to prevent the prosecution from mentioning the convictions for prior crimes that do not significantly reflect upon D's character for truthfulness. |
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MBE Rule:
Nonverbal conduct not intended as an assertion is not considered hearsay |
NY Rule:
NY courts have held nonverbal conduct not intended as an assertion to be hearsay. |
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MBE Rule:
Prior inconsistent statements made under oath are the only kind of inconsistent statements that are not hearsay. Thus they are admissible substantively. |
NY Rule:
Has found a hearsay exception for the out-of-court oral statement of a declarant in a civil case who is present in court subject to cross-examination. |
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MBE Rule: Family Records
Statements of facts concerning personal or family history contained in family Bibles, genealogies, charts, etc..are admissible |
NY Rule:
Such statements must be made before the controversy giving rise to the instant litigation |
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MBE Rule: Ancient Documents
Statements included in a document in existence 20 years or more, the authenticity of which is established are admissible |
NY Rule:
To be considered ancient, a document must be at least 30 years old. |
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MBE Rule: Learned Treatises
To the extent called to the attention of an expert witness upon cross, or relied upon by the expert witness on direct, are admissible |
NY Rule:
Learned treatises are admissible for the limited purpose of impugning an expert's credibility on cross, and only then when the expert concedes that the treatise is authoritative. |
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New York Distinction:
Former testimony |
In a criminal case, the same defendant and charge must be involved in the prior action for the former testimony to be admissible
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MBE Rule: Dying declaration
In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances will not be excluded by the hearsay rule. |
NY Rule:
Declarant must be unavailable due to death. |