New York Evidence Distinctions

Question 1

When may habit evidence be admissible in a products liability case?

Answer 1

To show plaintiff used a product in a particular way

Question 2

Subsequent remedial measures and products liability

Answer 2

In manufacturing defect cases are admissible to establish defectiveness of a product when made

Question 3

Withdrawn guilty pleas can be used

Answer 3

As an admission in a subsequent civil proceeding arising out of the same facts

Question 4

What is unique in NY about prosecution rebuttal of defendant’s character evidence?

Answer 4

Can also introduce evidence or prior convictions when they adversely affect character trait in issue

Question 5

Evidence of victim’s violent nature in self-defense case (NY)

Answer 5

Reputation for violence or specific acts admissible if accused offers evidence of self-defense and knew of the specific acts

Question 6

Prior acts of sexual assault or child olestation

Answer 6

Not admissible

Question 7

Ancient document rule (NY)

Answer 7

Must be at least 30 years old

Question 8

Admissibility of duplicates

Answer 8

Photocopies only admitted if they were made in the ordinary course of business

Question 9

Rule for testimony by children

Answer 9

Child of any age may testify under oath if he appreciates the duty to tell the truth. In civil cases, a child must be able to testify under oath. In criminal cases, child under age 9 who cannot understand oath may still testify but D cannot be convicted without corroborating evidence

Question 10

Test NY uses for expert testimony

Answer 10

Frye standard- asks whether the methodology was sufficiently established to have gained general acceptance in the particular field

Question 11

Party may impeach own witness with PIS only if:

Answer 11

It was made in writing and signed OR made in testimony under oath

In criminal cases, must be affirmatively damaging

Question 12

Conviction of a crime for impeachment (NY)

Answer 12

Can use conviction of any crime as evidence. For criminal case, defendant is entitled to pre-trial fairness hearing

Question 13

Specific instances of misconduct impeachment

Answer 13

Allows inquiry into immoral, vicious, or criminal acts that affect credibility

Question 14

Unavailability does not include:

Answer 14

New York does not recognize grounds for unavailability where witness refuses to testify or testifies to lack of memory

Question 15

Former testimony in civil proceedings- unavailability adds

Answer 15

1) Declarant is located 100+ miles away from courthouse

2) Declarant is a doctor

Question 16

Dying declaration NY

Answer 16

Homicide only

Question 17

Present sense impression extra requirement

Answer 17

Corroborating evidence of the event occurring

Question 18

Declaration of intent extra requirements where offered to prove joint participation (2)

Answer 18

Corroborating evidence of relationship between declarant and other person

Declarant is unavailable

Question 19

Declarations of present bodily conditions extra requirement

Answer 19

Statements made to layperson require unavailability of declarant

Question 20

Business records prepared for litigation

Answer 20

Accident reports prpared in the regular course of business operations are admissible even if made in anticipation of future litigation

Question 21

Learned treatise in NY

Answer 21

No exception

Question 22

When is there vicarious admission through an employee?

Answer 22

Where employee has speaking authority

Question 23

Burden of proof for forfeiture exception

Answer 23

Clear and convincing evidence

Question 24

In NY, which impeachment forms require advance notice before introducing extrinsic evidence?

Answer 24

PIS

Question 25

What can treatise be used for?

Answer 25

On direct- may only be used to show general basis of expert testimony, not substantive evidence

On cross, may only be used to impeach and only if expert relied on it in developing opinion or acknowledged on cross that it is reliable

Question 26

Can past recollection recorded be shown to the jury?

Answer 26

Yes

Question 27

Which extra hearsay exceptions require unavailability in NY?

Answer 27

Declaratins of present bodily condition made to lay person

Declaration of future intent to prove joint participation (also requires corroboration)

Question 28

Which hearsay exceptions require corroborating evidence?

Answer 28

Declaration of future intent to prove joint participation

Present sense impression

Question 29

Missing witness charge

Answer 29

1) Witness knowledge must be material to the trial
2) Witness must be expected to give noncumulative evidence favorable to party (control)
3) Witness must be available to that party