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13 Cards in this Set

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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
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.
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.
NY: Physician-Patient Privilege
Privilege recognized BUT the privilege is waived when the patient voluntarily puts his condition into issue in a lawsuit.
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.
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.
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.
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.
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
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.
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.
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
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.