NY BAR REVIEW evidence 2019

Question 1

every court MUST take judicial notice of these without a request being made:

Answer 1

common law.
constitution.
public statutes of U.S.
public statutes of state.
public statute of territory.
public statutes of jurisdiction. 
NY CODES, RULES, REGULATIONS.
local laws.
county acts.

Question 2

court MUST take judicial notice of certain laws if request is made by party. conditions MUST be satisfied. ct has discretion to take judicial notice, on its own motion, of what?

Answer 2

private acts and resolutions of U.S. CONGRESS and NYS LEGISLATURE, ordinances and regulations of agencies or govtl subdivisions and laws of foreign countries.

CPLR

Question 3

what is judicial notice of an adjudicative fact?

Answer 3

courts accept the adjudicative fact as true w/o offering of evidence by party asserting the fact

Question 4

judicial notice of adjudicative fact is limited to?

Answer 4

those incapable of dispute bc they are generally known w/in community where court sits.
capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Question 5

in criminal case, def may establish good character ONLY by showing what?

Answer 5

general reputation in community

Question 6

opinions of those who know def personally and have firsthand knowledge of his character are admissible or not?

Answer 6

INADMISSIBLE

Question 7

if def, through testimony of witness called by him offers evidence of his good character, prosecution MAY what?

Answer 7

independently prove any previous conviction of def tending to negate trait in issue

Question 8

in CIVIL case, evidence of good character MAY be admitted only after what?

Answer 8

a person’s good character has been directly calledinto question by evidence of bad character

Question 9

evidence of person’s character is NEVER admissible for purpose of proving what?

Answer 9

that person acted in conformity therewith or had propensity to do so

Question 10

in criminal case, evidence of def’s prior uncharged crimes is admissible or not to prove criminal propensities?

Answer 10

INADMISSIBLE

Question 11

evidence of def’s prior uncharged crimes MAY be admitted under certain circumstances where probative value of proof outweighs possible what?

Answer 11

prejudicial effect

Question 12

evidence of uncharged but similar acts is admissible to establish what?

Answer 12

Motive.
Intent.
absence of Mistake or accident.
Identity.
Common scheme or plan.

Question 13

admissibility of evidence of def’s uncharged crimes or prior bad acts - 2 part inquiry:

Answer 13

1. proponent MUST identify some material issue to which evidence is relevant.
2. ct MUST weigh probative worth of evidence ag potential for prejudice.

Question 14

evidence of habit or custom and practice MAY be admitted in civil action to establish person did what?

Answer 14

performed certain act

Question 15

party seeking to introduce habit/custom/practice evidence MUST establish that habit /custom/practice is what?

Answer 15

a deliberate and repetitive practice by a person in complete control of circumstances as opposed to conduct however frequent yet likely to vary from time to time depending upon surrounding circumstance

Question 16

one spouse is competent to give testimony ag whom?

Answer 16

other spouse

Question 17

witness spouse is NOT excused from giving testimony about what?

Answer 17

matters that might be damaging to party spouse

Question 18

spouses are entitled to invoke privilege for confidential communication when?

Answer 18

in ANY type of proceeding

Question 19

conviction of a crime does NOT render a witness what?

Answer 19

incompetent

Question 20

a witness’ convictions MAY be used on cross examination to do what?

Answer 20

impeach credibility

Question 21

impeachment is limited to what?

Answer 21

crimes - felonies, misdemeanors.

Question 22

if witness denies conviction, it can proven how?

Answer 22

by extrinsic evidence

Question 23

DEAD MAN STATUTE

Answer 23

any person interested in the event MAY NOT testify in his own behalf ag exectuor/administrator/survivor of a deceased person or committee of mentally ill person concerning transaction or communication w decedent or mentally ill person

Question 24

an interested person is NOT incompetent to testify as to what?

Answer 24

facts of accident in action involving claim of negligence in operation of a motor vehicle

Question 25

def may NOT be convicted upon testimony of accomplice w/o support of what?

Answer 25

corroborative evidence tending to connect def w commission of offense

CPLR

Question 26

corroborative evidence need NOT rest upon evidence that is independent of what?

Answer 26

accomplice testimony

Question 27

corroborative evidence MAY be found in evidence which so harmonizes w testimony of accomplice as to have a tendency to what?

Answer 27

furnish necessary connection bw def and crime

Question 28

rebuttable presumption that a child less than 9 yrs of age is incapable of what?

Answer 28

giving testimony under oath

FAMILY COURT ACT
CRIMINAL PROCEDURE LAW

Question 29

to overcome the under 9 yo rebuttable presumption of no testimony under oath, infant witness MUST what?

Answer 29

demonstrate sufficient intelligence and capacity to justify reception of his testimony and that he knows, understands, and appreciates nature of oath before trial ct MAY permit sworn testimony

Question 30

if witness cannot rebut presumption or is under mental defect, ct may nonetheless permit witness to give unsworn evidence if ct is satisfied that witness possesses what?

Answer 30

sufficient intelligence and capacity to justify receipt of evidence

Question 31

at trial of civil action, deposition of deponent party or non-party MAY be used by any party for purpose of what?

Answer 31

contradicting or impeaching deponent.

Question 32

prior trial testimony of witness MAY be used by any party to do what?

Answer 32

contradict or impeach that witness if he testifies in subsequent civil action involving same parties and subject matter, so far as admissible under rules of evidence

Question 33

any party MAY introduce proof that any witness has made prior statement inconsistent w his testimony if sttmt was made how?

Answer 33

in writing subscribed by him or was made under oath

CPLR

Question 34

impeachment allowed by party of that party’s witness via witness’ prior written sttmt or oral sttmt made under oath where prior sttmt does what?

Answer 34

contradict testimony upon material issue which tends to disprove position of the party

CRIMINAL PROCEDURE LAW

Question 35

in civil proceeding, use of prior conviction to impeach witness provides that:

Answer 35

person convicted of crime is competent witness, but conviction may be proved, for purpose of affecting weight of his testimony, either by cross upon which he shall be required to answer relevant questions or by record. party cross examining is not concluded by such person’s answer.

CPLR

Question 36

in criminal proceeding, prosecution authorized to independently provide def’s prior conviction if, when asked, the def does what?

Answer 36

denies it or equivocates

Question 37

criminal def who chooses to testify MAY be cross examined concerning what?

Answer 37

prior convictions or criminal, vicious, or immoral acts that bear logically on that individual’s credibility as a witness

Question 38

def MAY seek advance ruling on what prior criminal, vicious or immoral acts prosecution will be permitted to inquire about if def does what?

Answer 38

takes the stand

Question 39

trial judge MUST balance probative worth of evidence of prior specific criminal , vicious, or immoral acts on issue of def’s credibility with what?

Answer 39

risk of unfair prejudice to def

Question 40

evidence of prior criminal acts to prove intent should be precluded where what?

Answer 40

intent MAY be inferred from commission of act itself

Question 41

guilty knowledge of def MAY be proven by evidence of his complicity in similar offenses so as to what?

Answer 41

support the inference that the act charged was NOT innocently or inadvertently committed

Question 42

admission is warranted only where evidence of acts involved in crimes charged is equivocal so that intention is NOT easily inferred from what?

Answer 42

acts alone

Question 43

in such cases it is recorgnized that proof of intent is often unobtainable except by evidence of what ?

Answer 43

successive repetitions of the act

Question 44

a party who is cross examining a witness CANNOT introduce extrinsic doumentary evidence or call other witnesses to contradict witness’ answers concerning what?

Answer 44

collateral matters solely for purpose of impeaching witness’ credibility

Question 45

where cross examiner does NOT seek to contradict specific answers given by witness but attempts only to show that witness has a bad reputation in the community for truth and veracity, other witnesses may be called to what?

Answer 45

testify w respect to witness’ reputation for untruthfulness

Question 46

opinion testimony of expert is admissible wehre conclusions to be drawn from facts depends upon what?

Answer 46

professional or scientific knowledge or skill NOT within range of ordinary training or intelligence

Question 47

for testimony regarding both ultimate questions and those of lesser significance, admissibility turns on whether what?

Answer 47

given nature of subject, facts CANNOT be stated or described to jury in such manner as to enable them to form an accurate judgment thereo, and no better evidence than such opinions is attainable

Question 48

admissibility and bounds of expert testimony are in who’s discretion?

Answer 48

trial court’s

Question 49

unless court orders otherwise, questions calling for opinion of expert witness need not be hypothetical in form, and witness MAY state his opinion and reasons without first what?

Answer 49

specifying data upon which it is based

Question 50

upon cross examination, expert MAY be required to specify what?

Answer 50

data supporting his opinion

Question 51

introduction of new scientific evidence requires what?

Answer 51

determination of reliability

Question 52

determination of reliability test is what?

Answer 52

FRYE TEST

Question 53

what is the frye test?

Answer 53

whether the accepted techniques, when properly performed, generate results accepted as reliable within scientific community. while cts
will go a long way in admitting expert testimony deduced from well recognized scientific principle or discovery, thing from which deduction is made MUST be sufficiently established to have gained general acceptance in particular field in which it belongs

Question 54

NY has NOT adopted the more relaxed standard for admissibility of expert testimony, relevance and reliability in federal cts, as adopted by?

Answer 54

SUP CT IN DAUBERT V. MERRELL DOW PHARMS

Question 55

the frye inquiry is a separate and distinct question from admissibility question, whether there is a proper foundation to admit what?

Answer 55

evidence

Question 56

spouses are competent to testify for and against whom?

Answer 56

one another

Question 57

spouse shall NOT be required, or without consent of other spouse, be allowed to disclose a confidential communication made by 1 spouse to the other spouse when?

Answer 57

during marriage.

to qualify for privilege, communication bw spouses may be oral, written, tape recorded.

Question 58

confidential communications MUST be induced by what?

Answer 58

marital relatshp and made in confidence

Question 59

spousal privilege will NOT attach to communications made by spouses when?

Answer 59

in known presence of outsiders

Question 60

spousal privilege for confidential communications applies when?

Answer 60

in ALL civil and ALL criminal proceedings

Question 61

unless c waives privilege, where legal advice is sought from c’s lawyer, all communications relating to that purpose are made in confidence by c are protected by what?

Answer 61

atty / c privilege.

CANNOT be disclosed by lawyer

Question 62

presence of transmittal through employee of atty, such as secretary, law clerk, will NOT destroy what?

Answer 62

atty / c privilege

Question 63

for atty/c privilege to apply, communications MUST be made for purpose of providing what?

Answer 63

legal advice or services in course of profsl reltshp.

Question 64

atty c privilege extends to what?

Answer 64

atty’s own communications to c

Question 65

corporations MAY invoke atty c privilege for what?

Answer 65

confidential communications w attys relating to their legal matters

Question 66

for the privilege to apply when communications are made from c to atty, MUST be made for what purpose?

Answer 66

obtaining legal advice and directed to an atty who has been consulted for that purpose

Question 67

unless patient waives privilege, CPLR prohibits disclosure of any info acquired by whom?

Answer 67

physican.
registered nurse.
practical nurse.
dentist.
podiatrist.
chiropractor.
in attending patient in professional capacity and which was necessary to enable him to act in that capacity

Question 68

privilege applies to info communicated by patient and obtained from observation of patient, unless info would be what?

Answer 68

obvious to layman

Question 69

privilege applies to info contained in medical files and expert testimony thats what?

Answer 69

sought to be introduced at trial

Question 70

personal injury pl impliedly waives privilege as to medical conditions for which what?

Answer 70

damages are sought

Question 71

details about accident communicated by personal injury pl to medical professional that are unrelated to treatment or diagnosis are or not privileged?

Answer 71

NOT

Question 72

confidential communications bw psychologist and patient are placed on same basis as what?

Answer 72

under atty c privilege

Question 73

witness may NOT refuse to testify on ground that testimony might what?

Answer 73

expose witness to civil liability

Question 74

witness is entitled to avoid testifying to what?

Answer 74

self incriminating facts

Question 75

objection MAY be raised only to specific questions that witness believes would what?

Answer 75

require incriminating answers

Question 76

what is hearsay?

Answer 76

oral out of ct sttmt, written out of ct sttmt, offered for truth of matters they assert

Question 77

hearsay MAY be received into evidence ONLY if fall within what?

Answer 77

one of recognized exceptions to hearsay rule, and provided proponent demonstrates that evidence is reliable

Question 78

reliability determined how?

Answer 78

ct MUST decide whether declaration was spoken under circumstances which render it highly probable that it is truthful

Question 79

what is an admission?

Answer 79

act or declaration of party which constitutes evidence ag party at trial

Question 80

admissions by party of any fact material to issue are always what?

Answer 80

competent evidence ag him, wherever, whenever, or to whomsoever made

Question 81

hearsay sttmt of agent is admissible ag his employer under admissions exception to hearsay rule ONLY if what?

Answer 81

making the sttmt is an activity within scope of his authority

Question 82

admissions are admissible under exception to rule ag hearsay, but under FEDERAL RULES OF EVIDENCE, admissions are what?

Answer 82

non hearsay!

Question 83

present sense impression exception to hearsay rule is available when?

Answer 83

sttmt describes or explains event or condition and made while declarant was perceiving event or condition or immediately thereafter and content of sttmt is corroborated by independent proof.

Question 84

marginal time lag allowed bw what?

Answer 84

event and description by declarant

Question 85

corroboration offered to support admission of sttmts must serve to support sttmts’ what?

Answer 85

substance and content

Question 86

corroboration element CANNOT be established merely by showing that sttmts were what?

Answer 86

unprompted and made at or about the time of reported event

Question 87

sufficient corroboration is dependent on what?

Answer 87

circumstances of each case

Question 88

declarant’s descriptions need NOT be corroborated by witness at scene w equal opportunity to perceive event, but there MUST be what?

Answer 88

some evidence to assure ct the sttmt sought to be admitted was made spontaneously and contemporaneously w event described

Question 89

hospital records fall within business records exception to hearsay rule as long as the info relates to what?

Answer 89

diagnosis, prognosis, treatment, of patient or records are otherwise helpful to understanding of medical or surgical aspects of hospitalization.

Question 90

determination of admissibility of medical recrods, inquire whether what?

Answer 90

sttmts at issue were relevant to diagnosis and treatment of patient

Question 91

what is the business records hearsay exception?

Answer 91

business record may be admitted to prove truth of its contents

Question 92

requirements under business records hearsay exception are:

Answer 92

doc MUST be made in regular course of business.
at time of act or occurence recorded within reasonable time thereafter.
where it was regular course of such business to make that record.
person who made the record MUST have had actual knowledge of act or occurence or MUST have received his info from someone within business who had actual knowledge and was under business duty to report event. lack of personal knowledge by maker MAY affect its weight but not its admissibility.

Question 93

original records MUST be produced absent what?

Answer 93

proper foundation for introduction of secondary evidence.

Question 94

use of copies or reproductions of docs is permitted if what?

Answer 94

copies were also prepared in regular course of business

Question 95

STATE TECHNOLOGY ACT

Answer 95

electronic record shall have same force and effect as those records not produced by electronic means.
electronic record or electronic signature MAY be admitted into evidence.

Question 96

certification procedure when records sought by subpoena DUCES TECUM are business records

Answer 96

certification MUST be sworn in form of affidavit and signed by custodian or other person charged w responsibility for maintaining records.

Question 97

as of 2014, certification of nonparty’s business records, as substitute for in court testimony is permitted without need for what?

Answer 97

production pursuant to subpoena

Question 98

trial testimony of any witness at a prior trial involving same parties and arising from same subject matter MAY be used by any party to do what?

Answer 98

contradict or impeach that witness if he testifies in subsequent civil action

Question 99

party’s prior trial testimony is admissible as evidence in chief when?

Answer 99

it is offered by any party who is adversely interested when prior testimony is offered, including prior trial testimony of any person who, at time testimony was given, was an officer, director, member, employee, managing or authorized agent of party.
CPLR

Question 100

hearsay exception for testimony given at prior trial of same subject matter by witness, provided ct finds that what?

Answer 100

witness is NOT available bc of death, age, sickness, infirmity, imprisonment.
witness is more than 100 miles from place of trial or out of state, unless absence was procured by party offering testimony.
attendance cannot be procured despite diligent efforts of party offering testimony.
exceptional circumstances exist making its use desirable.

Question 101

prior testimony of physician MAY be used by any party w/o need to show what?

Answer 101

unavailability or special circumstances, provided admission of prior testimony is NOT prejudicial under circumstances

Question 102

CRIMINAL PROCEDURE LAW provides that testimony given by witness at related prior criminal trial or preliminary hearing MAY be received into evidence at subsequent proceeding or action when at time of such subsequent proceeding, witness what?

Answer 102

is unable to attend by reason of death, illness, incapacity.
cannot w due diligence be found.
is outside stte or in federal custody and CANNOT w due diligence be brought before the ct.

Question 103

subsequent proceedings at which such testimony MAY be admitted include any proceeding constitituing a part of criminal action based upon charges which were pending ag def when?

Answer 103

at time of witness’ testimony and to which such testimony related, and any post judgment proceeding challenging convictions based on that charge.