Distinctions - Evidence

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apgiering
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94318
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Distinctions - Evidence
Updated:
2011-07-17 16:17:18
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NY Bar Exam
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NY Bar Exam
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  1. Is habit evidence admissible for the purpose of raising an inference that the same amount of care was exercised on the occasion in queston?
    No. However, in products liability cases, habit evidence is admissible to estalbish that the plaintiff used a product in a particular way.
  2. Is habit evidence admissible in a products liability case to establish that the plaintiff used a product in a particular way?
    Yes.
  3. Are subsequent remedial measures admissible in a manufacturing defect case to establish defectiveness of the product when made?
    Yes.
  4. Are post-manufacture modifications admissible in a design defect or failure to warn case?
    Only to defeat the manufacturer's claim that at the time of manufacture, such modifications were not feasible. Even if the manufacturer concedes feasibility, the evidence of modification is inadmissible.
  5. Can withdrawn guilty pleas be used as an admission in a subsequent civil proceeding arising out of the same facts?
    Yes.
  6. Can a character witness testify in criminal cases about the defendant's reputation in the community?
    Yes, but he cannot give opinion testimony and can only testify to thsoe traits that a relevant to the crime involved.

    NOTE: The same rule applies to the prosecution's rebuttal witness.
  7. When does New York allow introduction of prior convictions?
    Only when they adversely affect the character trait in issue.
  8. Can the accused offer evidence that the victim had a general reputation for violence, vindictiveness, and quarreling to prove that the accused acted upon a reasonable belief that his life was in danger (justification)?
    Yes.

    However, the character evidence is not admissible to prove that the victim was the aggressor.
  9. Can the accused over evidence of specific acts of violence by the victim?
    Yes. The accused must first offer evidence of self-defense and must have known of the victim's specific acts of violence before the confrontation.

    However, the character evidence is not admissible to prove that the victim was the aggressor.
  10. What evidence relating to the victim's conduct is admissible if it has a proper bearing on the defendant's guilt or innocence?
    • The victim's conviction for prostitution within three years prior to the sex offense that is the subject of the prosecution; or
    • Rebuttal evidence of the victim's failure to engage in sexual intercourse, deviate sexual intercourse, or sexual contact during a given period of time.
  11. Does New York allow evidence of prior acts of sexual assault or child molestation?
    No.
  12. Can the jury consider physical resemblance on the issue of family relationships?
    No. However, the child may be produced and exhibited for purposes of determining age.
  13. For what purpose can the child be produced in a paternity suit?
    For determining age.
  14. Does the judge have to be present at a jury view of the scene in a criminal case?
    Yes.
  15. Who is entitled as of right to attend a jury's view of the scene?
    The prosecutor, defendant, and defendant's counsel.
  16. Do unauthorized visits to the scene by jurors in criminal cases require reversal?
    Yes, they are inherently pejudicial.
  17. Do unauthorized visits to the scene by jurors in civil cases require reversal?
    They may.
  18. Does the trial judge have discretion to allow the jury, upon retirement for delieration, to take with them any exhibit received in evidence?
    Yes.
  19. Are polygraph results admissible?
    No. The polygraph has not achieved sufficient reliability to warrant admission of the results of polygraph tests.
  20. Are voice stress analysis results admissible?
    No. The voice stress analyzer has not achieved sufficient reliability to warrant admission of the results of voice stress analysis tests.
  21. Can the results of a blood grouping test (blood genetic market test) be received into evidence in a dispute over paternity?
    Only where definite exclusion of hte alleged father is established by the test.
  22. Are the results of a human leukocyte antigen ("HLA") blood tissue test and a DNA genetic test admissible to aid in determining paternity?
    Yes, unless exclusion has already been established by another blood grouping test.
  23. When is there a rebuttable presumption of paternity?
    When test results indicate at least a 95% probability of paternity.
  24. What is the age requirement for the ancient document rule?
    Over 30 years old.
  25. Does New York allow self-authentication of business records?
    In civil actions only, and the records must be (i) of a non-party and (ii) produced pursuant to a subpoena during pretrial discovery.
  26. Are duplicates admissible in New York?
    Only photographic copies that are made, kept, or recorded in the ordinary course of business.
  27. Is unsworn testimony of a child admissible in a civil case?
    No.
  28. Is unsworn testimony of a child admissible in a criminal case?
    A child under age nine or a person who cannot understand the nature of the oath due to mental defect may testify without being sworn, provided that the child or mental incompetent has sufficient intelligence to justify reception of evidence.

    NOTE: Conviction cannot be had upon such unsworn testimony alone.
  29. Does New York apply provisions of the Dead Man Act?
    To civil cases only. New York also extends coverage to incompetents.
  30. Is a survivor competent to testify as to facts of negligence or contributory negligence involves in an accident that arose out of the operation or ownership of a motor vehicle, aircraft, or vessel?
    Yes, even though one or more of the parties is a representative of adeceased or mentally ill person (e.g., the defendant in a wrongful death action may testify that the decedent, not the defendant, was driving at the time of the accident).
  31. Can an expert witness base his opinions on matters not in evidence?
    If the information "comes from a witness subject to full cross-examination on the trial" (e.g., a prosecution expert was permitted to express the opinion that the defendant was criminally responsible for the crime charged even though the expert's opinion was based partially on a written out-of-court statement made by another witness at trial).
  32. What is the requirement for scientific methodology underlying an expert opinion?
    Must be sufficiently established to have gained general acceptance in the particular field.
  33. What is the requirement for scientific treatises underlying an expert opinion?
    Excluded as hearsay when offered as proof of facts asserted therein. However, on cross-examination, scientific texts (which the expert has referred to favorably on direct or conceded as authoritative on cross) may be used to discredit the expert's opinion.
  34. Can the prior trial testimony of any witness be used by any party to contradict or impeach that witness if he testifies in a subsequent civil action?
    Yes. (Note that under the FRE, prior trial testimony is considered admissible nonhearsay.)
  35. Is impeachemnt of one's own witness permitted in a criminal case?
    Only when the testimony of the wtiness affirmatively damaged the case of the party calling him.
  36. Can conviction of any crime be shown or inquired about?
    Yes, even if hte crime does not involve serious immorality.
  37. In a criminal case, who is entitled to a pretrial hearing to determine the admissibility of prior convictions?
    Only the defendant (not a mere witness).
  38. Does an admission by the witness on cross-examination that he has been convicted preclude the cross-examiner from questioning hte witness further to ascertain the criminal act that was the basis of the conviction?
    No.
  39. What specific instances of misconduct can be introduced?
    New York adopts a broader standard and allows inquiry into immoral, vicious, or criminal acts that affect credibility.
  40. When is the attorney-client privilege not applicable?
    • An attorney 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. (An attorney is not required to disclose communications that would disgrace the memory of the defendant.)
    • An attorney can be required to reveal the identity of his client unless identity was intended--for good cause--to be confidential.
    • In a custody battle, an attorney must dilvuge the whereabouts of a client who has absconded with the child.
  41. Does a plea of innocence by reason of insanity constitute a complete and effective waiver of any claim of privilege, including attorney-client privilege?
    Yes.
  42. When is the physician-patient privilege not applicable?
    • State and federal recordkeeping and reporting requirements regarding Medicaid patients supersede the privilege to the extent necessary to satisfy the public interest in proper use of Medicaid funds;
    • A dentist is required to disclose information necessary for identification of a patient; and
    • A physician, dentist, chiropractor, or nurse is required to disclose information indicating that a patient under the age of 16 has been the victim of a crime.
  43. Is the physician-patient privilege applicable in criminal cases?
    Yes.
  44. When is the physician required to disclose if the patient is dead?
    • There is no objection;
    • The privilege has been waived by the personal representative, surviving spouse, or next of kin;
    • In litigation, the interests of the personal representative are adverse to those of the decedent's estate and the privilege is waived by any interested party; or
    • Where the validity of the decedent's will is in question, the privilege is waived by the executor named in the will, surviving spouse, or any heir at law, next of kin, or interested party.
  45. Can a psychologist, psychotherapist, social worker, and their support staff reveal communications with, or advice given to, a client?
    No, except where the client is a child under age 16 who has been the victim of a crime.
  46. Can a rape crisis counselor reveal communcations with, or advice given to, a client?
    No, even if the client is under the age of 16.
  47. Does New York recognize spousal immunity?
    No.

    There are two exceptions: (i) Neither spouse is competent to testify against the other in an action founded upon adultery except to prove the marriage, disprove the adultery, or disprove a defense after evidence tending to prove such defense has been introduced; and (ii) 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.
  48. What are the two situations where a New York court would recognize spousal immunity?
    • Neither spouse is competent to testify against the other in an action founded upon adultery except to prove the marriage, disprove the adultery, or disprove a defense after evidence tending to prove such defense has been introduced; and
    • 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.
  49. Under the professional journalist privilege, does New York provide absolute statutory protection for confidential news that is published or broadcast?
    Yes, including the identity of the source of such news.

    NOTE: This privilege also applies to a supervisor and an employer of the journalist. The privilege is waived if anyone entitled to claim it voluntarily discloses the information to someone who is not entitled to claim the privilege.
  50. When does qualified protection exist under the professional journalist privilege?
    Qualified protection exists for unpublished information not obtained in confidence, unless the party seeking the news has made a clear and specific showing that the news is (i) highly material and relevant; (ii) critical or necessary to the maintenance of a party's claim or defense; and (iii) not obtainable from any alternative source.

    NOTE: This privilege also applies to a supervisor and an employer of the journalist. The privilege is waived if anyone entitled to claim it voluntarily discloses the information to someone who is not entitled to claim the privilege.
  51. Is the sequestration of witnesses mandatory?
    No. It has always been in the trial court's discretion. However, both criminal defendants and parties in civil actions have a constitutional right to be present in the courtroom.
  52. When are prior inconsistent statements admissible?
    Prior inconsistent statements made in writing and signed or under oath are admissible in both civil and criminal cases to impeach a witness's testimony.

    Prior inconsistent statements are not admissible as substantive evidence in crminal cases.

    Limited authority indicates that in civil cases, prior inconsistent statements are admissible as substantive evidence in establishing a party's case-in-chief.
  53. When are admissions by party-opponents admissible?
    In New York, admissions bya party-opponent are an exception to the hearsay rule. (Under the FRE, they are nohearsay.)
  54. When are vicarious admissions by an agent admissible?
    Vicarious admissions by an agent are hearsay. An employee's statement may not be used against her employer unless the employee stands high enough in the hierarchy of the employer's organization to have "speaking authority" (i.e., an authorized spokesperson).
  55. How does New York define "unavailability"?
    NY follows the FRE, except NY does not recognize a witness who: (i) Refuses to testify despite court order; or (ii) 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.
  56. What are the New York rules governing the use of former testimony in civil proceedings?
    NY generally follows the FRE, except NY adds the following when defining "unavailability" with respect to former testimony: (i) The witness is located 100 miles from the courthouse or is out of the state; (ii) The witness is unable to attend due to age, sickness, infirmity, or imprisonment; and (iii) "Exceptional circumstances" exist.

    Furthermore, NY permits the prior testimony of a physician to be used by any party, without the need to show unavailability or special circumstances.
  57. What are the New York rules governing the use of former testimony in criminal proceedings?
    Substantially the same as the rules governing civil cases exception: (i) The defendant and the charge in the former and the present proceedings must be the same; (ii) If the trial judge finds that a grand jury witness's unavailability is due to the defendant's unlawful conduct, the trial jury may hear the witness's grand jury testimony provided that the prosecution first proves the defendant's "fault" by clear and convincing evidence; and (iii) If the former testimony is from a conditional deposition or a hearing on a felony complaint.
  58. Are dying declarations admissible?
    Only in a homicide case and only if they relate to the declarant's death.
  59. Is corroboration required for present sense impression (hearsay exception)?
    Yes.
  60. Are statements made to a lay person admissible under the declaration of present bodily condition hearsay exception?
    Only if the declarant is unavailable.
  61. Are plaintiff's statements made to medical personnel solely for the purpose of giving expert testimony admissible?
    No, they do not fall under the declarations of past bodily condition hearsay exception.
  62. Are accident reports prepared in the regular course of business operations or practice admissible in New York, even if made in anticipatipon of future litigation?
    Yes.
  63. What additional hearsay exceptions does New York recognize for official recordings and other official writings?
    • Ancient filed maps;
    • Records of out-of-state real estate;
    • Marriage certificates;
    • Presumption of death;
    • Weather reports;
    • Agricultural inspection certificates; and
    • Certificates of populaton.
  64. Is there a learned treatise exception to the hearsay rule?
    No. The use of learned treatises is confined to impeachment of expert witnesses.
  65. Does New York recognize an express residual or catch-all exception ot the hearsay rule?
    No. However, courts will sometimes admit hearsay that is especially trustworthy even if the statement does not fit within a specialized exception.
  66. When is proof by clear and convincing evidence specifically required?
    • To prove fraud;
    • In actions to recover on a contract to render services to one now deceased;
    • To prove mistake;
    • To prove that a gift of property has been made by one now deceased;
    • To establish grounds for reformation or rescission;
    • To establish paternity; and
    • To establish a claim for adverse possession.
  67. When can a jury draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events?
    • The witness's knowledge must be material to the trial;
    • The witness must be expected to give noncumulative testimony favorable to the party and against whom the instruction is sought (the control element); and
    • The witness must be available to that party.
  68. How long does absence need to be in order for a court to make a presumption of death?
    Three years. A diligent search for the missing person is required.
  69. Does the trial judge have the judicial power to comment upon evidence?
    No.
  70. Is a confession alone sufficient to support a criminal conviction?
    No. Corroboration is required.

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