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52 Cards in this Set
- Front
- Back
NY Distinction
Habit |
Habit: = p’s reg. response in certain circumstances. FRE 406 = relevant to prove conduct of person on a particular occasion in conformity w/ habit. → always, invariably, automatically
NY DISTINCTION: ≠ admis for proving same amount of care excercised on the occasion -→ = admis products liability case to show P used product in a particular way. |
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NY Distinction
SMR |
b. SMR: FRE 407: repairs, design changes, policy chances, after accident that court have prevented accident ≠ admiss to prove neg., culpable conduct, defect in product/ its design, or a need for a warning/instruction→ admiss 1) ownership + control (IF CONTROVERTED) 2) rebut claim precaution was NOT feasible (D needs to first say this, P responds) 3) prove opposing party destroyed E.
i. NY DISTINCTION: manufacturing defect + strict liability CoA= SMR admis to establish defectiveness of product when made. → NOT design defect/failure to warn→ they = admis ONLY to defect manufacturer claim that modifications ≠ feasible at time of manufacture. → if manufacture concedes feasibility ≠ E of modification = inadmis. |
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NY Distinction
Guilty pleas and plea discussions |
e. Pleas and Plea discussions in Crim. Case: FRE 410: offers to plead guilty, withdrawn guilty pleas, pleas of nolo contender, Stmts of fact concerning any of the above ≠ admis against D in a pending Criminal litigation OR subsequent Civil case
i. NY DISTINCTION: withdrawn guilty plea admiss in subsequent Civil case arising out of same facts. ii. Guilty plea that is NOT withdrawn: = admis in subsequent civil/criminal lit. on the same facts in FRE + NY 1. To not have it be used D should plead NO contest = nolo contender. |
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NY Distinction
how to prove character |
II. How to prove character: 1) E of past specific acts, 2) opinion testmy of W who knows Person 3)Reputation testmy
a. NY DISTINCTION: crim case = reputation ONLY ≠ opinion testmy + traits relevant to crime involved. i. * same rule applies to pros. Rebuttal W’s |
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NY Distinction
2 for proving D's character |
IV. D’s character: D introduces E of good character of relevant trait (prosecution cant introduce first)
a. D proves character BY: W for D testify to reputation/ opinion i. NY DISTINCTION: reputation ONLY b. Pros Rebuts D’s CHE By: i. Cross of D’s W to test knowledge w/ specific acts: prior bad acts + prior arrests, can be asked about → NO Extrinsic evidence → *can ask about D or W’s prior arrests. 1. NY DISTINCTION: Pros can also rebut D’s good character w/E of D’s crime conviction that reflect adversely on Character trait in issue. |
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NY Distinction
V’s character in Self-Defense case (D's knowledge) |
V’s character in Self-Defense case:
i. Rule: Criminal D can offer E of V’s character to prove V= first aggressor 1. NY DISTINCTION: D offer E for V’s general reputation for violence, vindictiveness, qualrreling to prove he acted upon a reasonable belief that his live was in danger ie justified→ E of specifc acts of violence = admis a. D must first offer E of self defense AND must have known V’s specific acts of violence BEFORE the confrontation. → (D’s knowledge to prove his reasonable belief for self defense) b. No first aggressor NOT ADMISS to prove V was first aggressor c. Form: Any from allowed reputation, opinion, specific acts |
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NY Distinction
rape victim's past behavior crim case |
c. Rape V’s pas behavior: FRE 412 Civil or Crim. Proceeding involving alleged sexual misconduct → NO E of V’s promiscuity OR past sexual acts → Low PV + Discourage V’s
i. CRIM CASES: D may introduce E of V’s sexual activity with D ONLY IF consent is defense OR E of sexual activity with others ONLY to prove someone other than D = source of physical E. 1. E required to be admitted by D’s due process rights 2. NY Distinction: E of V’s conviction for prostitution within THREE years to sex offense →* Rebuttal E of V’s failure to engage in sexual intercourse, devaiant sex, or sex contact during the given time. |
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NY Distinction
sexual assault/ child molester evidence |
b. Prior acts of Sexual assault or child molestation: FRE 413: in CRIMINAL OR CIVIL case, alleging sex assault/ child molestation Pros can offer E of D’s prior misconduct, for purpose of proving propensity
i. Once a rapist always a rapist = allowed ii. NY DISTINCTION: NY DOES NOT allow sexual assault/ child molester evidence. |
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NY Distinction
Exhibiton of child in paternity suits exhibition |
c. Exhibiton of child in paternity suits exhibition of Kid to prove she is of raceof putitive father. Maj. Don't permit this.
i. NY DISTINCTION: J ≠ consider physical resemblance on the issue of family relationships. Kid can be produced/exhibited to determine AGE. |
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NY Distinction
Jury view of the scene: |
Jury view of the scene: both civil + criminal, J can see, Parties there but not allowed to comment, judge not there, conducted by disinterested court attaché.
i. NY DISTINCTION: judge must be present! At a jury view in CRIM case. Parties are allowed as a matter of RIGHT to attend. 1. CRIM: Unauthorized visits to scene by jurors in CRIM = prejudice + requires reversal 2. CIVIL: Unauthorized vistis can get reversal |
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NY Distinction
Demonstrations |
f. Demonstrations: can permit experiments or demonstrations in court room NY DISTINCTION: trial judge has discretion to allow J to take an exhibit received in E, civil or crim
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NY Distinctions
scientific experiments |
iii. Scientific experiments: 1) conditions substantially similar 2) no waste of time/confusion
1. NY DISTINCTION: Neither polygrah + voice stress analyzer = reliable ≠ admiss. 2. NY DISTINCTION: blood grouping/ HLA testing: in dispute over paternity, results of blood test, = admiss where definite exclusion of the alleged father is established by test. → human leukocyte antigen (HLA) +D = admiss → WHEN test results 95% paternity = rebuttable presumption of paternity. |
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NY Distinctions
ancient documents |
iv. Ancient documents: 1) at least 20 years old, 2) facially free of suspicion 3) found in a place where such a writing, if authentic would likely be.
1. NY DISTINCTION: 30 yrs required |
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NY Distinctions
bus. records |
vii. Bus. Records. (someone in bus./knows how regularly made, that these docs made in regular way, at time of event recorded.)
1. NY DISTINCTION: self authentication is CIVIL actions ONLY, records of: 1) NONparty, 2) produced pursuant to subpoena during pretrial discovery |
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NY Distinctions
BER admissibility of duplicates |
ii. Admissibility of duplicates: duplicate= any counterpart produced by a mechanical means that accurately reproduced the original (carbon/photo copy, print out) → admissible to same extend as original 1) unless genuiness questions, 2) unfair to admit
1. NY DISTINCTION: NY only Duplications for photographic copies that are made, kept, or recorded in the ordinary course of business |
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NY Distinctions
appreciation of oath of obligation 1. who can/ cant testify 2. what about convictions and this testmy. |
civil case- unsworn testmy of kid is inadmis
crim case- kid under 9 or person who cannot understand nature of the oath due to mental defect may testify without being sworn, provided the child or mental incompetent has sufficient intelligence to justify reception of evidence **BUT a conviction cannot be had upon such unsworn testmy alone. |
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NY Distinctions
Dead man acts: what kinds of cases is it applicable to? who does it extend coverage to? |
NY applies general provisions of the dead man act and extends coverage to incompetents
applicable to civil cases only |
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NY Distinctions
automobile accident eception 1. what can I use it to prove 2. who does it apply to 3. what acts does it apply to 4. what kinds of things does it apply to |
a survivor is competetn to testify as to acts of negligence or contributory negligence involved in an accident that arose out of the operation or ownership of a motor vehicile, aircraft, or vessel. this is so eventhough one or more of the parties is a representative of a deceased or mentally ill person ( e.g. D in a wrongful death action may testify that decedent, not D, was driving at the time of the accident)
*applies to mentally ill * ownership too *boat, aircraft, vessel. |
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NY Distinctions
expert witness |
opinion must be supported by a proper factual basis
an expert witness may also base his opinion on matters not in evidence if the information comes from a witness subject to full cross. exam on the trial *the distinction here is that at the federal level the information doesnt have to come from a trial W subject to cross. it can come from anywhere e.g. prosecution expert was permitted to give opinoi that the D was criminally responsible for the crime charged even though the expert's opinion was based partially on a written out of court stmt made by another W at trial |
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NY Distinctions
authoritative texts and treatises |
scientific methodology: scientificmethodology underlying the opinion must be sufficiently established to have gained general acceptance in the particular filed
Scientific treatises: scientific treatises or writings are excluded as hearsay when offered as proof of facts asserted therein. However, on cross-exam, scientific tests (which the expert has referred to favorably on direct or conceded as authoratative on cosrs may be used to discredit the experts opinion |
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NY DISTINCTION
any party may impeach Civil and Criminal |
CIVIL/ CRIMINAL: prior trial testmy of any W may be sued by any party to contradict or impeach W if he testified in the subsequent civil action (NOTE under FRE prior trial testmy is considered admissible nonhearsay) NY does not have such an exception
CRIMINAL case- impeachment of one's own W is permitted only when the testmy of the W affirmatively damaged the case of the party calling him |
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NY DISTINCTION
conviction of crime 1. what kind of crime 2. hearing? |
conviction of any crime may be shown or inquired about even if the crime does not involve serious immorality
CRIM case: only Defendant (not a mere witness) is entitled to a pre trail hearing to determine the admissibility of such prior convictions (Sandoval hearing) |
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NY DISTINCTION
means of proof for convictions on cross. 1. what happens if W admits a conviction on cross |
admission by W on cross that he has been convicted does NOT preclude the cross examiner from questioning the witness further to ascertain the criminal act that was the basis of the conviction
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NY DISTINCTION
specific instances of misconduct |
NY adopts a broader standard and allows inquiry into immoral vicious or criminal acts that affect credibility.
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NY DISTINCTION
nonapplicability of the atty client priv: three things NY adds to the majority rule. |
(See NY Professional Responsiblity outline)
NY adds the following to the majority rule: 1. an atty is required to disclose information regarding the preparation, execution, and revocation of any will or relevant document in actions involving probate, validity, or construction of a will (NOTE an atty is NOT required to disclose communications that would disgrace the memory of the decedent) 2. an atty can be required to reveal the indentity of his client unless identity was intended--- for good cause--- to be confidential 3. in a custody battle, an atty must divuldge the whereabouts of a client who has absconded with the child. |
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NY DISTINCTION
waiver of atty client priv: a plea of innocence by reason of insanity |
NY adds the following to the majority rule:
a plea of innocence by reason of insanity constitutes a complete and effective waiver of any claim of privilege, including atty- client privilege. |
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NY DISTINCTION
nonapplicability of the physician patient privilege 1. medicaid 2. dentist 3. kid V |
NY Adds the following to the majroity rule
1. state and fed. recordkeeping and reporting requirements regarding medicaid patients supersede the priv. to the extent necessary to satisfy teh public interest in proper use of medicaid funds 2. a dentist is required to dislcose information necessary for identification of a patient 3. a physician, dentist, chiroractor, or nurse is required to disclose information indicating that a patient under the age of 16 has been the victim of a crime. |
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NY DISTINCTION
physician patient priv- crim. proceedings |
in NY the priv. is applicable in criminal cases.
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NY DISTINCTION
Doc/Patient Prive: if the patient is dead, the physician is required to disclose if (3) |
if the patient is dead, the physician is required to disclose if:
1. there is no objection 2. the priv has been waived by the personal representative surviving the spouse or next of kin. 3. in litigation, the interests of the personal representative are adverse to those of the decedent's estate and the privilege is waived by the executor named in the will, surviving spouse, or any heir at law, next kin, or interested party. |
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NY DISTINCTION
psychologist/ psychotherapsit/ social worker-client priv. |
a psychologist, psychoterapist social worker and their support staff may not revel communications with or advice given to , a client except where the client is under the age of 16 who has been the victim of a crime.
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NY DISTINCTION
rape crissi counselor priv. |
same as social worker rpiv. except taht there is no exception here where the client is under age of 16
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NY DISTINCTION
spousal immunity |
NY does NOT recognize spousal immunity
EXCEPTIONS 1. neither spouse is competent to testify against the other in an action founded upon adultrey except to prove the marriage, disprove the adultery, or disprove a defense after evidence tending to prove such defense has been introduced and 2. neither spouse is competent to testify to nonaccess during wedlock where the effect would be to show the illegitimacy of a child except in a filiation proceeding if the complainant mother is married, or in a proceeding to enforce support for a child. |
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NY DISTINCTION
Professional journalist priv |
NY affors absolute statutory protection for confidential news that is publshed or broadcast inlcuding the identity of a source of such news.
qualified protection exists for unpublished informaiton not obtained in confidence unless the party seeking the news has made a clear and specific showing the news is 1. highly material and relevant 2. critical or necessary to the maintinence of a party's claim or defense and 3) not obtainable from any alternative source. NOTE: priv. also applies to supervisor and an employer of the journalist. The priv is waived if anyone entitled to claim it voluntarily discloses the informaiton to someone who is not entitled to claim the priv. |
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NY DISTINCTION
sequestering witness |
sequestering a witness is not mandatory. it is alwasy trial courts discretion.
BUT both crim and civil D's have a constituional right to be present in the courtroom. |
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NY DISTINCTION
PIS |
PIS statements made in writing and signed or under oath are ADMISS in both civil and criminal cases to impeach.
PIS are NOT admiss as substantive evidence in criminal cases. limited authority suggests they might be admissible in civil cases as substantive evidnece in establishing a party's case in cheif. |
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NY DISTINCTION
admissions by a party opponent |
in NY admissions by a party-opponent are an exception to the hearsay rule. (nonhearsay in FRE)
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NY DISTINCTION
vicarious admissions: principal agent |
vicarious admisisons by an agent are hearsay. An employees statement may NOT be used agaisnt her employer unless the employee stands high enough i the heirarchy of the employers organization to have "speaking authority" (authorized spokes person)
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NY DISTINCTION
"unavialability" defined (3 things NY adds to fed rule) |
NY follows the FRE except NY does NOT recognize a W who:
1. refuses to testify despite a court order (stubborn refusal) 2. testifies to lack of memory of the subject matter. NOTE: there is authority in NY that defines unavailability as including the inability to testify because of the Dead Man Act |
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NY DISTINCTION
former testimy in civil proceedings |
NY generally follows FRE, except NY adds the following when defining "unavailablilty" with respect to former testmy.
1. the W is located 100 mils from the court house is out of state, 2. W is unable to attend due to age, sickless, infirmity, or imprisonment 3. "exceptional circumstances" exist. Furthermore, NY permits the prior testmy of a physician to be used by a party without the need to show unavailability or special circumstances |
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NY DISTINCTION
former tstmy use in criminal proceeedings |
the rules governing use of Former testmy in crimnal proceedings are substantially the same as rule governing civil cases except:
1. D and the charge in the former and present proceedings must be the SAME 2. if the trial judge fidns that a grand jury witness unavailability is due to the D's unlawful conduct, the trial jury may hear the witness's grand jury testmy provided that the prosecution first proves the D's "fault" by clear and convicnging evidence 3) if teh former testmy if from a conditional deposition or a hearing on a felony complaint |
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NY DISTINCTION
dying declarations |
dying declarations are admissible ONLY in homicide cases and ONLY if they related to declarant's death
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NY DISTINCTION
present sense impression |
corroboration is required
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NY DISTINCTION
declarations of PRESENT bodily condition |
stmts made to a lay person ARE NOT admiss unless the declarant is unavailable
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NY DISTINCTION
declarations of PAST bodily condition |
P's statements made to medical personnel solely for the purpose of giving expert testmy are NOT admiss
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NY DISTINCTION
bus. records--- records prepared for lit. |
accident reports prepared in the regular course of business operations OR practice are Admiss in NY even if made in anticipation of future litigation
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NY DISTINCTION
official records and other official writings |
by statute, NY also recognizes the following exceptions
1. ancient filed maps 3. records of out of state real estate 3. marriage certificates 4. presumption of death 5. weather reports 6 aggricultural inspection certificates and 7. certificates of population not exhuaustive list |
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NY DISTINCTION
learned treatis |
the use of learned treatise is confined to impeachment of expert witnesses. There is NO learned treatise exception to the hearsay rule in NY.
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NY DISTINCTION
residual exception General: |
NY does NOT recognize an express residual excpetion or catch all exception
however, courts will sometimes admit hearsay that is especially trustworthy even if the stmt does NOT fit within a sepcified exception |
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NY DISTINCTION
clear and convicing proof (7) |
proof by clear and convincing evidence is specifically required in:
1. to prove fraud 2. in actions to recover on a K to redner service to one now deceased 3. to prove mistake 4 to prove that a gift of property has been made to one now deceased 5. to establish grounds for reformation or rescission 6. to establish paternity 7. to establish a claim for adverse possession "AVerage People Go off and Play Much to Frequently Red Rover let Krystal com over. |
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NY DISTINCTION
presumption of death from absence |
absence need only be for three years, and a diligent search for the missing person is required
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NY DISTINCTION
judicial power to comment upon evidence |
the trial judge may NOT comment upon evidence
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NY DISTINCTION
confessions |
a confession alone is NOT sufficient to support a criminal conviction corroboration is required
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