Evidence Ny Distinctions:

Front 1

NY Distinction

Habit

Back 1

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.

Front 2

NY Distinction

SMR

Back 2

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.

Front 3

NY Distinction

Guilty pleas and plea discussions

Back 3

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 Case: FRE 410: offers to plead guilty, withdrawn guilty pleas, pleas of nolo contender, Stmts of fact concerning any of the above ≠ admis against D in a pending Criminal litigation OR subsequent Civil case

i.  NY DISTINCTION: withdrawn guilty plea admiss in subsequent Civil case arising out of same facts.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 Guilty plea that is NOT withdrawn: = admis in subsequent civil/criminal lit.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.

Front 4

NY Distinction

how to prove character

Back 4

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

Front 5

NY Distinction

2 for proving D's character

Back 5

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.

Front 6

NY Distinction

V’s character in Self-Defense case (D's knowledge)

Back 6

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

Front 7

NY Distinction

rape victim's past behavior crim case

Back 7

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.

Front 8

NY Distinction

sexual assault/ child molester evidence

Back 8

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.

Front 9

NY Distinction

Exhibiton of child in paternity suits exhibition

Back 9

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.

Front 10

NY Distinction

Jury view of the scene:

Back 10

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

Front 11

NY Distinction

Demonstrations

Back 11

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

Front 12

NY Distinctions

scientific experiments

Back 12

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.

Front 13

NY Distinctions

ancient documents

Back 13

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

Front 14

NY Distinctions

bus. records

Back 14

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

Front 15

NY Distinctions

BER admissibility of duplicates

Back 15

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

Front 16

NY Distinctions

appreciation of oath of obligation
1. who can/ cant testify
2. what about convictions and this testmy.

Back 16

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.

Front 17

NY Distinctions

Dead man acts: what kinds of cases is it applicable to? who does it extend coverage to?

Back 17

NY applies general provisions of the dead man act and extends coverage to incompetents

applicable to civil cases only

Front 18

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

Back 18

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.

Front 19

NY Distinctions

expert witness

Back 19

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

Front 20

NY Distinctions

authoritative texts and treatises

Back 20

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

Front 21

NY DISTINCTION

any party may impeach
Civil and Criminal

Back 21

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

Front 22

NY DISTINCTION

conviction of crime
1. what kind of crime
2. hearing?

Back 22

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)

Front 23

NY DISTINCTION

means of proof for convictions on cross.
1. what happens if W admits a conviction on cross

Back 23

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

Front 24

NY DISTINCTION

specific instances of misconduct

Back 24

NY adopts a broader standard and allows inquiry into immoral vicious or criminal acts that affect credibility.

Front 25

NY DISTINCTION

nonapplicability of the atty client priv: three things NY adds to the majority rule.

Back 25

(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.

Front 26

NY DISTINCTION

waiver of atty client priv: a plea of innocence by reason of insanity

Back 26

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.

Front 27

NY DISTINCTION

nonapplicability of the physician patient privilege
1. medicaid
2. dentist
3. kid V

Back 27

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.

Front 28

NY DISTINCTION

physician patient priv- crim. proceedings

Back 28

in NY the priv. is applicable in criminal cases.

Front 29

NY DISTINCTION

Doc/Patient Prive: if the patient is dead, the physician is required to disclose if (3)

Back 29

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.

Front 30

NY DISTINCTION

psychologist/ psychotherapsit/ social worker-client priv.

Back 30

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.

Front 31

NY DISTINCTION

rape crissi counselor priv.

Back 31

same as social worker rpiv. except taht there is no exception here where the client is under age of 16

Front 32

NY DISTINCTION

spousal immunity

Back 32

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.

Front 33

NY DISTINCTION

Professional journalist priv

Back 33

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.

Front 34

NY DISTINCTION

sequestering witness

Back 34

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.

Front 35

NY DISTINCTION

PIS

Back 35

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.

Front 36

NY DISTINCTION

admissions by a party opponent

Back 36

in NY admissions by a party-opponent are an exception to the hearsay rule. (nonhearsay in FRE)

Front 37

NY DISTINCTION

vicarious admissions: principal agent

Back 37

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)

Front 38

NY DISTINCTION

"unavialability" defined (3 things NY adds to fed rule)

Back 38

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

Front 39

NY DISTINCTION

former testimy in civil proceedings

Back 39

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

Front 40

NY DISTINCTION

former tstmy use in criminal proceeedings

Back 40

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

Front 41

NY DISTINCTION

dying declarations

Back 41

dying declarations are admissible ONLY in homicide cases and ONLY if they related to declarant's death

Front 42

NY DISTINCTION

present sense impression

Back 42

corroboration is required

Front 43

NY DISTINCTION

declarations of PRESENT bodily condition

Back 43

stmts made to a lay person ARE NOT admiss unless the declarant is unavailable

Front 44

NY DISTINCTION

declarations of PAST bodily condition

Back 44

P's statements made to medical personnel solely for the purpose of giving expert testmy are NOT admiss

Front 45

NY DISTINCTION

bus. records--- records prepared for lit.

Back 45

accident reports prepared in the regular course of business operations OR practice are Admiss in NY even if made in anticipation of future litigation

Front 46

NY DISTINCTION

official records and other official writings

Back 46

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

Front 47

NY DISTINCTION

learned treatis

Back 47

the use of learned treatise is confined to impeachment of expert witnesses. There is NO learned treatise exception to the hearsay rule in NY.

Front 48

NY DISTINCTION

residual exception
General:

Back 48

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

Front 49

NY DISTINCTION

clear and convicing proof (7)

Back 49

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.

Front 50

NY DISTINCTION

presumption of death from absence

Back 50

absence need only be for three years, and a diligent search for the missing person is required

Front 51

NY DISTINCTION

judicial power to comment upon evidence

Back 51

the trial judge may NOT comment upon evidence

Front 52

NY DISTINCTION

confessions

Back 52

a confession alone is NOT sufficient to support a criminal conviction corroboration is required