Evidence NY Distinctions

Question 1

What is NY’s standard for conditional relevance of evidence?

Answer 1

NY = Whether the fact could be found "rationally" by the jury
Federal = preponderance of the evidence

Question 2

What is NY’s standard for co-conspirator hearsay exception?

Answer 2

NY = prima facie evidence of a conspiracy, without relying on the statement offered.
Federal = preponderance of the evidence

Question 3

What is NY’s standard for finding that a prior bad act occurred before admitting them?

Answer 3

NY = clear and convincing evidence / "sufficient" evidence for documentary evidence
Federal = preponderance of the evidence

Question 4

What is NY’s standard for authentication of evidence?

Answer 4

NY = clear and convincing evidence
Federal = sufficient evidence

Question 5

What is NY’s standard for determining that wrongdoing occurred under the “forfeiture by wrongdoing” exception to hearsay?

Answer 5

NY = clear and convincing
Federal = preponderance of the evidence

Question 6

What is NY’s standard for allowing a handwriting comparison?

Answer 6

NY = document must be "genuine"
Federal = sufficient evidence that document was written by the purported author

Question 7

What two types of facts may a NY judge take judicial notice of?

Answer 7

(1) adjudicative facts = pertain to the facts in the case at hand
(2) legislative facts = pertain to the law and judicial process

Question 8

When must a NY judge generally take judicial notice?

Answer 8

Generally, NY judges have discretion to take judicial notice of adjudicative.

For legislative facts:
Mandatory = common law, constitutions, public statutes of the US and all states
Discretionary without request / Required with request = private acts of the legislature or US, ordinances, regulations of agencies, foreign laws.

Question 9

Can NY law provide for the shifting of the burden of persuasion?

Answer 9

Yes. Both burden of production and persuasion can be shifted.

Question 10

What additional ground does NY add to the list of 403 exclusions?

Answer 10

Unfair surprise

Question 11

May prosecutors introduce character evidence relating to prior sexual offenses of a ∆ in a sexual assault case?

Answer 11

No. NY does not recognize this exception to the bar against character evidence.
(Note that federal law does recognize it.)

Question 12

How may a criminal defendant prove a pertinent character trait in NY?

Answer 12

Only be community reputation, not opinion.

Question 13

When may a criminal defendant offer character evidence of a victim in NY?

Answer 13

Generally, a ∆ may NOT offer character evidence of a victim.
Exception: ∆ may offer evidence of reputation for violence to support self defense claim if ∆ reasonably believed her life was in danger. Can also use specific acts if:
(1) ∆ shows evidence of self defense, AND
(2) ∆ knew about acts the time of the incident.
Cannot use evidence for proof that ∆ was initial aggressor.
Note: π may rebut with evidence of a victim’s peacefulness.

Question 14

What is the NY standard for habit evidence?

Answer 14

NY = deliberate and repetitive course of conduct
Federal = requires only a routine

Question 15

In NY, what are the three cases when spouses cannot testify against each other?

Answer 15

(1) adultery cases, except to prove marriage, disprove adultery, or disprove a defense
(2) non-access during wedlock to prove illegitimacy of a child
(3) confidential marital communications

Question 16

When can a child testify in NY?

Answer 16

Children under 9yo = rebuttable presumption of incompetence

Question 17

Can a witness give unsworn testimony in NY?

Answer 17

A child or disabled witness unable to understand an oath can give unsworn testimony in a criminal case. But ∆ cannot be convicted solely on the basis of unsworn testimony.

Question 18

When are jurors competent to testify as witnesses in NY?

Answer 18

Jurors can only testify about their verdict or indictment if it relates to juror misconduct. Otherwise they cannot testify regarding their verdict or indictment.

Question 19

What is NY’s “Dead Man Statute”?

Answer 19

In a civil case, a party with a financial interest in the outcome cannot testify about communications with an adverse party who is deceased or mentally ill.
Exception: Survivors of a car, aircraft, or vessel accident can testify about negligence of the deceased party.

Question 20

What is NY’s “voucher rule”? What are its exceptions?

Answer 20

Parties cannot impeach witnesses they call. A party that calls a witness vouches for the testimony of that witness.
Exceptions: “OOPSA”
(1) Can contradict for reasons other than impeachment
(2) Opposing party’s statements
(3) Prior inconsistent statements made under oath OR in a signed writing
(4) Remove sting from cross-examination
(5) Due process rights of the excused

Question 21

Are prior bad acts admissible for impeachment purposes in NY?

Answer 21

Yes. They are admissible for impeachment if they:
(1) relate to truthfulness,
(2) are immoral or vicious, OR
(3) reveal willingness to place one’s own self interest ahead of society’s interests.
But party cannot offer extrinsic proof.

Question 22

When can prior convictions be used for impeachment purposes in NY?

Answer 22

Civil cases = all convictions are admissible at the court’s discretion (except traffic infractions)
Criminal cases = all prior convictions are admissible except traffic infractions BUT must have “Sandoval hearing” + court can exclude convictions with prejudicial effect that “far outweighs” probative value.

Question 23

When may extrinsic proof of a prior conviction be used in NY?

Answer 23

If the witness admits prior conviction, extrinsic proof is inadmissible.
Admissible if:
(1) witness denies or equivocates
(2) ∆ offers evidence of good character and conviction would negate that
(3) conviction is an element of the charged offense

Question 24

When are prior inconsistent statements admissible as substantive evidence in NY?

Answer 24

Admissible if prior statement is made (1) under oath OR (2) in a signed writing
Civil cases = admissible as substantive evidence regardless of who called the witness
Criminal = not admissible as substantive evidence. Only for impeachment (if not barred by voucher rule)

(Federal = a prior statement made under oath is admissible)

Question 25

What happens when eyewitness identification is used in NY court?

Answer 25

When a case turns on the accuracy of eyewitness testimony and there is no corroborating evidence, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications.

Question 26

Does NY allow false confession expert testimony?

Answer 26

Yes. It is admissible in NY.

Question 27

What standard does NY follow for the admission of scientific evidence?

Answer 27

The “Frye standard” = do a majority of scientists in the field endorse this method? (the “head-count” approach)

(Federal = Daubert standard)

Question 28

What standard does NY follow for experimental evidence?

Answer 28

Proponent must show a substantial similarity in conditions between the experiments and the original occurrence.

Question 29

What are the sources an expert may rely upon for his opinion in NY?

Answer 29

(1) personal observation
(2) facts and data made known to the expert at trial
(3) inadmissible evidence that is reliable and reasonably relied on in the field
(4) inadmissible facts derived from others that are subject to full cross-examination

Question 30

Can experts in NY opine on the ultimate issue?

Answer 30

Yes, but only if the opinion does not rely exclusively or principally on inadmissible evidence.

Question 31

How does NY view breaks in the chain of custody for purposes of authenticity?

Answer 31

Go to weight but not admissibility of evidence.

Question 32

What is an “ancient document” in NY?

Answer 32

30 years old
Exception: Maps, surveys, and real property if stored in office of a registrar for more than 10 years.

(Federal = 20 years)

Question 33

Can you challenge a newspaper or periodical in NY?

Answer 33

Yes. They are self-authenticating, but you can challenge via extrinsic evidence for either (1) admissibility or (2) weight.

Question 34

How must you authenticate a will in NY?

Answer 34

A witness is required to subscribe to the will’s authenticity.

Question 35

In NY, are duplicates of documents admissible in place of the original?

Answer 35

No. Duplicates are generally inadmissible. An original is required. (Note: a page from a multi-copy form is considered an original)
Two exceptions:
(1) accurately reproduced business records (photocopies or faxes
(2) protected copies (cannot be altered)

Question 36

Does sending a communication via electronic communication waive a privilege in NY?

Answer 36

No. Note: Non-private email will waive the privilege. (E.g., work email)

Question 37

Does exclosure of communications to obtain insurance benefits waive the privilege in NY?

Answer 37

No.

Question 38

What marital privileges does NY recognize?

Answer 38

Only recognizes confidential communication privilege.

Does not recognize the testimonial privilege.

Question 39

What are the three exceptions to the confidential marital communication privilege in NY?

Answer 39

(1) Communications for criminal activity
(2) divorce proceedings
(3) ordinary business matters

Question 40

What are the two exceptions to attorney-client privilege in NY?

Answer 40

(1) Validity or construction of a will, unless disclosure would disgrace the deceased.
(2) Remember: beneficiary of an estate is not a client of the administrator’s attorney

Question 41

What is the scope of NY’s physician-patient privilege?

Answer 41

Broad privilege protecting all communications made to medical officials for purpose of obtaining treatment. Officials include:

(1) physicians
(2) psychiatrists
(3) nurses
(4) dentists
(5) podiatrists
(6) chiropractors

Question 42

What are the four exceptions to NY’s physician-patient privilege?

Answer 42

Does not include:

(1) Dentists must disclose information to identify a patient
(2) Disclose patient under 16yo is victim of crime
(3) Disclose if patent intends to harm others
(4) Disclose information about deceased patient unless it would disgrace the patient’s memory or if waived by the patient’s survivors.

Question 43

What are the two exceptions to NY’s psychotherapist-patient privilege?

Answer 43

(1) must testify in criminal case in which ∆ argues defense of mental disease or defect
(2) patient waives privilege if he places mental well-being in issue

Question 44

What are the exceptions to NY’s social worker-client privilege?

Answer 44

(1) Client intends future harmful act or crime
(2) Client under 16yo has been victim of a crime
(3) Client brings charges against the social worker

Question 45

What is NY’s clergy-penitent privilege?

Answer 45

Protects communications made in confidence for the purpose of obtaining spiritual guidance.

Question 46

What is NY’s library records privilege?

Answer 46

NY forbids disclosure of library records except as necessary for (1) proper operation of the library, (2) consent of user, or (3) court subpoena or statute

Question 47

What is NY’s professional journalist privilege?

Answer 47

(1) absolute privilege for confidential information
(2) qualified privilege for non-confidential information; Must only disclose clear and specific information that is highly material and relevant, critical or necessary to a claim, defense, or proof and not obtainable from an alternative source.

Question 48

When can proof of subsequent remedial measures be used in NY court?

Answer 48

Can use in strict liability cases that claim a manufacturing defect.
But cannot use in products liability actions based on defective design or need to warn if measures taken AFTER date of manufacture. (Rather than date of accident.)

Question 49

How does NY differ from federal law on the admissibility of offers to pay medical expenses?

Answer 49

(1) offers to pay lost wages are also inadmissible

(2) statements or conduct during negotiations are inadmissible

Question 50

What is NY’s rule regarding withdrawn guilty pleas?

Answer 50

Withdrawn guilty pleas are admissible to prove negligence in a civil case.

Question 51

May a prosecutor admit statements made during plea negotiations?

Answer 51

Only if prosecutor bargained for their later use in the course of the plea bargaining.

Question 52

What are NY’s additional exceptions to the rape-shield statute?

Answer 52

(1) evidence of prior conviction for prostitution within the last 3 years is admissible
(2) ∆ may admit victim’s sexual history to rebut π’s evidence that victim is a virgin.

Question 53

What are NY’s two special rules regarding prior identifications and hearsay?

Answer 53

(1) if witness cannot identify person as the ∆, another witness who also attended the lineup can testify to show identity
(2) composite sketches are inadmissible generally, but may be admissible for prior consistent statements

Question 54

When can an agent’s statements be adopted by a party for purposes of the party-opponent exclusion from hearsay?

Answer 54

Agent must have been authorized by a supervisor to speak on the event OR made statement as event was occurring.

Question 55

In a CRIMINAL case, when may prior testimony qualify for a hearsay exception in NY?

Answer 55

(1) prior proceeding must be related to the present proceeding, AND
(2) must be a criminal trial, felony complaint hearing, or conditional examination of a witness

Question 56

When is a criminal ∆ or witness in a criminal case unavailable for purposes of the prior testimony hearsay exception in NY?

Answer 56

(1) death
(2) illness
(3) physical or mental incapacity (includes refusal to testify)
(4) presence outside the jurisdiction
(5) inability to be found after diligent search
Note: Does NOT include memory loss

Question 57

In a CIVIL case, when may prior testimony qualify for a hearsay exception in NY?

Answer 57

Admissible if…

(1) statement is used against the same party or a party who is a successor-in-interest to the declarant.
(2) the proceeding was about the same subject matter

Question 58

When is a civil declarant unavailable for purposes purposes of the prior testimony hearsay exception in NY?

Answer 58

(1) Death
(2) more than 100 miles away due to a party’s actions
(3) out of state
(4) cannot attend due to age, infirmity, or imprisonment
(5) Cannot be located after diligent search
(6) other exceptional circumstances

Question 59

What are the two kinds of declarations admissible in a civil case under the prior testimony hearsay exception regardless of the declarant’s admissiblity?

Answer 59

(1) agent, employee or other officer of a party

(2) physician’s testimony, as long as it is not prejudicial

Question 60

When does the “dying declaration” exception to hearsay apply in NY?

Answer 60

(1) declarant expects to die
(2) declarant actually does die
(3) case concerns the homicide of the declarant only (no civil cases)
Note: Opposing party has right to jury instruction to give the declaration lesser weight.

Question 61

When is a declarant unavailable for the “statement against interest” exception to hearsay in NY?

Answer 61

(1) death
(2) absence from jurisdiction
(3) invocation of 5th Amendment privilege

Question 62

What does NY require for the “statement against interest” exception to hearsay?

Answer 62

(1) declarant is AWARE at the time the statement is made that it is contrary to pecuniary, proprietary, or penal interest
(2) declarant has knowledge of underlying facts, AND
(3) there is corroborating evidence of the declaration

Question 63

When can you use the “pedigree exception” to hearsay in NY?

Answer 63

(1) declarant is dead or unavailable
(2) declarant is related by blood or affinity to the family at issue, shown by extrinsic evidence
(3) statement made prior to controversy
(4) pedigree is directly at issue

Question 64

When can you use the “present sense impression” exception to hearsay in NY?

Answer 64

Narrower than Federal law.

(1) Allows only marginal time lag between sense and declaration. (couple minutes)
(2) extrinsic evidence corroborates accuracy
(3) Court may balance witness’s availability (even though unavailability is immaterial)

Question 65

When can you use the “then-existing mental, physical condition” exception to hearsay in NY?

Answer 65

Same as federal, except: for physical condition…

(1) only admits spontaneous reactions to pain or declarations made to physician for medical treatment
(2) statements made to non-physicians only admissible if declarant is dead.

Question 66

When may “then-existing mental, physical condition” exception to hearsay in NY be used to show conduct of a third party?

Answer 66

(1) declarant is unavailable
(2) statement is unambiguous regarding future intention
(3) independent evidence supports trustworthiness
(4) independent evidence suggests future acts took place

Question 67

How does the “statement for medical diagnosis” exception to hearsay in NY differ from federal rule?

Answer 67

(1) Allows statements about the cause

(2) admits ONLY statements made to treating physicians

Question 68

How does the business record exception to hearsay in NY differ from federal rule?

Answer 68

(1) lack of trustworthiness goes to weight not admissibility
(2) accident reports qualify if they have use other than preparation for litigation

Question 69

What public records does NY admit as an exception to hearsay?

Answer 69

Narrower than federal rule.

(1) made by a public officer
(2) certificate or affidavit;
(3) if officer authorized by special provision of law to make the record
(4) record made in the course of the official duty;
(5) records facts that are ascertained or acts performed by the officer
(6) record on file in public office

Question 70

When can you use the “learned treatise” exception to hearsay in NY?

Answer 70

No exception in NY. Can only used to impeach.

Question 71

Does NY have a “catch-all” residual exception to hearsay?

Answer 71

No.

Question 72

When can a ∆ in NY present evidence that a victim was violent?

Answer 72

∆ can introduce victim’s reputation for violence only if ∆ reasonably believed his life was in danger. Can also use specific acts IF the ∆ can (1) provide evidence of self defense and (2) show he was aware of those acts before the confrontation occurred.

BUT NY does not allow character evidence to prove that the victim was the initial aggressor.

Question 73

Can a criminal ∆ introduce character evidence to show that the victim was an initial aggressor?

Answer 73

No.

Question 74

If prior bad acts are proved to show identity, what standard of proof is needed to show the ∆ actually committed those acts?

Answer 74

Clear and convincing evidence