NY Evidence, Criminal Procedure, Criminal Law 2009

Generally, relevant evidence is admissible.

1. Danger of unfair prejudice

2. Confusion over the issues

3. Misleading the jury

4. Undue Delay

5. Waste of time

6. Unduly Cumulative

1. Liability insurance

2. Subsequent Remedial Measures

3. Settlements in a civil case

4. Offers to pay hospital and medical bills

5. Pleas and plea discussions in criminal cases

1. Negligence

2. Culpable Conduct

3. Product Defect

4. Need for warning

Ownership,

Proof of control

feasibility of safer condition

False. They are admissible to for strict liability in manufacturing defect.

To impeach. Not to prove liability.

In a pending criminal case or future civil case.

Inadmissible in criminal cases but admissible in civil cases.

Evidence of a person's disposition or propensity to do or not to do something.

1. Veracity

2. Propensity

3. non-propensity purpose

4. Element of a claim

Inadmissible to prove propensity but admissible for veracity, non-propensity, and when element of a claim.

Defendant may offer evidence of his own good character for a relevant trait.

Federal -- reputation and opinion

NY -- reputation only

Specific act -- never allowed

1. Use their own witnesses

2. Cross examine D's character witnesses.

Federal -- reputation and opinion

NY - Reputation only

Prosecution may only test knowledge, not prove facts ...

Opinion -- did you know that ...?

Reputation --have you heard ...?

P must believe in GF that specific act took place.

Only by proving that the Defendant has been convicted of a crime that reflects poorly on his character.

1. Reputation for promiscuity

2. Prior sexual conduct

1. Sex with D (if consent is defense)

2. Sex with others (to prove person other than Dis source of DNA)

3. Due process requirements

4. NY ONLY - prostitution conviction within last 3 years.

Federal Rule -- Criminal D may show evidence of V violent character

NY -- V character is not admissible

1. V good character for trait

2. D's bad character for same trait

Inadmissible to prove propensity. Admissible when character is elements of the crime.

1. Negligent Hiring

2. Negligent Entrustment

3. Defamation

Repetitive response to a particular set of circumstances.

To infer how a person acted on an occasion at issue in the case

For the non-character purpose of showing something specific about the current crime.

1. Motive

2. Intent

3. Make of accident (lack of)

4. Identity

5. Common Scheme or plan

1. By conviction

2. Evidence proving the crime occured

Federal -- preponderance (sufficiency standard)

NY --Clear and convincing

Yes.

Party seeking to introduce exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it is. This is called laying a foundation.

Party offering must prove source of authorship to authenticate.

1. Lay witness opinion

2. Expert Opinion

3. Jury Comparison

Witness must testify that it is a "fair and accurate representation"

1. Camera was properly installed

2. Film was properly removed and developed

3. Film was not tampered with

Actual physical evidence that is displayed to the trier of fact

1. personal knowledge

2. chain of custody

1. Personal Knowledge

2. Take and oath

Generally, a child may testify as long as it understands and promises to tell the truth

In criminal cases, child under 9 who does not understand may testify but must be corroboration

All witnesses must take an oath no matter what.

States that in a civil action, an interested party may not testify against a dead party about communications or transactions with the dead party unless

1. Rep does not object

2. Rep testifies about transaction

In an accident case based on negligence, the surviving party may testify about the facts of the accident but NOT about a conversation with the decedent.

1. Opposing attorney may inspect

2. use it on cross,

3. Introduce it into evidence

1. Witness had personal knowledge

2. Witness now forgets and showing writing to witness fails to jog

3. Writing was either made or adopted by the W

4. Writing was made when the event was fresh in W's mind

5. Witness can attest that when W made writing it was accurate

False. But can under NY law.

Admissible if rationally based on witness perception and helpful to the jury.

1. Witness is qualified (ed or ex)

2. Testimony is about subject where scientific, technical will be helpful to jury

3. Opinion has proper bases

4. Opinion is reliable

1. Expert's personal knowledge

2. Evidence already in record

3. Facts outside record if those facts are the type reasonably relied on by experts in the field.

1. Method must be tested

2. Are there known rates of error?

3. Subject to peer review?

4. Method generally accepted?

Whether methodology has been generally accepted by the relevant professional community.

Physical Act

Mental State

Causation

Concurrence

When there is a special duty to act

1. Statute

2. Contract

3. Status relationships (parent/child and spouse/spouse)

4. Voluntary Assumption of care

5. Creation of the peril

Desire to do act AND desire to acheive a specific result

1. Assault
2. 1st degree premeditated murder
3. Larceny
4. Embezzlement
5. False pretenses
6. Robbery
7. Forgery
8. Burglary
9. Solicitation
10. Conspiracy
11. Attempt

Intentionally or with reckless disregard for an obvious risk.

1. Murder

2. Arson

General awareness of factors constituting crime - need not intend result.

1. Battery

2. False Imprisonment

3. Kidnapping

4. Forcible Rape (and all crimes against the person)

Yes. Any mistake of fact even an unreasonable one.

Yes so long as the mistake was reasonable.

No. It never is.

1. Intentionally

2. Knowingly

3. Recklessly

4. Negligently

5. Strict Liability

D's conscious object to achieve a particular result

D was aware of what he was doing.

D was aware of a substantial and unjustifiable risk and consciously disregarded it.

D should have known about a substantial and unjustifiable risk.

A mistake, even an unreasonable one, will be a defense.

Only a reasonable mistake will be a defense.

Never under the majority or NY rules.

1. Unlawful
2. Application of force to another
3. Resulting in either bodily injury or offensive touching

Mental State - General Intent

1. Attempted Battery

2. Intentional Creation of a reasonable apprehension of an imminent battery

Mental State - specific intent

1. Intentionally

2. Causing physical injury

3. To another person

Mental State - intentionally

1. first degree - dangerous weapon

2. 2nd degree - intentionally causing injury

3. 3rd degree - intentionally causing serious physical injury

- First degree (premeditation/deliberation)

- Felony Murder

- Second Degree -- all others

1. Intentional Killing

2. Committed in the heat of passion

3. After Adequate provocation (ordinary person standard)

Any killing caused during the commission of a felony.

Victim must have been killed ...

1. With criminal negligence

2. During commission of a non-felony crime.

If on felon kills, liability is imputed to all other co-felons.

Also applies where 3rd party actually killed as long as the felon was the proximate cause.

1. Intent to kill (mental state)

2. Defendant was at least 18

3. At least one aggravating factor

1. Intentionally Killed a peace officer

2. Witness intimidation

3. Murder for hire

4. Killed more than one person

5. Intentionally killed during a serious felony

1. Intent to kill

2. Extreme Recklessness

3. Felony murder

1. Burglary

2. Robbery

3. Arson

4. Kidnapping

5. Escape

6. Sexual Assault

Note -- no conviction necessary just evidence

Recklessness

- D was aware and consciously disregarded a substantial and unjustifiable risk

Defendant should have known about a substantial and unjustifiable risk of death

1. Unlawful

2. Confinement of a person

3. Without the person's consent

General Intent

1. False imprisonment

2. That involved either moving the victim of concealing them in a secret place.

General Intent

1. Purpose was to collect a ranson

2. Purpose is to commit robbery of rape

3. Victim is a child

Unlawful Imprisonment

1. Unlawfully

2. Retraining Someone

3. Without their consent

4. And with knowledge that the restriction is unlawful

1. Unlawfully

2. Retraining Someone

3. Without their consent

4. And with knowledge that the restriction is unlawful

5. Plus a risk of physical injury

1. Abducting Someone

2. For ransom OR

3. Restraint of V for more than 12 hours with intent to rape or injure OR

4. Cause death to the victim

1. Abducting someone

1. Sex

2. Without the victim's consent

3. Accomplished by force, threat of force, or the victim was unconscious

Mental state -- general intent

1. Sex (17 in NY)

2. With someone under the age of consent

Strict liability

Trespassory taking and carrying away of personal property of another with the intent to steal

Specific Intent

D converts personal property already in his lawful possession with the intent to defraud.

Specific Intent

Obtaining title to personal property by intentional false statement (past or present promise) with the intent to defraud.

Specific Intent

D obtains possession (not title) as a result of false statement.

Specific Intent

1. A larceny

2. From another person's person or presence

3. by force (sufficient to overcome resistance) or threat of immediate injury

Specific Intent to steal

1. Larceny

2. Embezzlement

3. False pretenses

4. Larceny by trick

No. It can be read from though as substantive evidence.

1. Statement was made rally under oath AND

2. Statement was made at a former proceeding.

Impeach.

Never. Not in NY.

Intrinsic and Extrinsic evidence.

Extrinsic evidence.

False. Extrinsic evidence including witnesses may be called.

Both. True under the majority rule and false under the NY rule.

False both under the majority and NY rule.

Yes, for any witness including the Defendant

Inquiry by judge to determine the probative value (veracity) versus the prejudicial effect of admitting D's prior convictions to impeach.

Conviction or release from prison must have been within 10 years from the trial unless the conviction was for a crime of dishonesty in which case they are always admissible.

Yes, but must relate to truthfulness

Yes, if they go W's moral turpitude , are proved by intrinsic evidence, and the questioning attorney has a GF belief that the act took place.

A witness may be impeached by showing that she made a mistake or lied on direct.

Yes if the contradiction goes to an issue significant to the case but not for collateral matters.

yes

Generally not, but may impeach using prior inconsistent statement that was made under oath and in a writing signed by witness.

Only after the W's credibility has been attacked.

Federal -- reputation and opinion

NY - reputation only

Both - no specific acts

1. Future crimes or fraud

2. Client puts legal advice into issue

3. Attorney-client dispute

1. took reasonable steps to prevent disclosure and

2. took reasonable steps to rectify disclosure.

1. Any communication or information

2. Acquired by a doctor from a patient

3.So long as its confidential AND

4. For the purposes of medical treatment

Putting their mental or physical condition in issue.

Communications between spouses if...

1. made during married persons

2. it was a communication

3. that was confidential

Only both spouses. (death of spouse waives the privilege)

The prosecution may not compel one spouse to testify against the other in a criminal case.

Yes. but not spousal communications privilege.

No.

1. Furtherance of future fraud or crime

2. Destructive of the family unit

3. Must be married

1. Impeachment purposes

2. Verbal Acts (legally operative words)

3. Show effect on person who heard the statement

4. Circumstantial evidence of a speaker's state of mind.

5. Certain prior statements of trial witnesses

Words that themselves have legal significance (ex, acceptance of a K)

1. Prior identifications

2. Prior inconsistent statement if made under oath at a prior proceeding

3. Prior consistent statements if offered to rebut allegation of motive to lie

1. Former Testimony

2. Forfeiture by wrongdoing

3. Statement against interest

4. Dying Declarations

1. Party admissions

2. Excited Utterance

3. Present sense impression

4. Statement of then existing physical, mental or emotional condition

5. Statement for the purpose of medical treatment

6. Business and pubic records

7.

If the agent had speaking authority.

When it was made in furtherance of the conspiracy.

1. Privilege

2. Lack of jurisdiction

3. Illness or death

4. Stubborn refusal to testify

5. Lack of memory

1. Privilege

2. Lack of jurisdiction

3. Illness or death

4. Stubborn refusal to testify

5. Lack of memory

6. 100 miles from court house

7. Declarant is a doctor

1. Declarant is unavailable

2. Prior statement was given in a prior proceeding (NY must be crim)

3. Party had opportunity to cross examine at prior proceeding

A party who intentionally and wrongfully made the defendant unavailable.

Criminal Cases.

Statement describes the event and s made when the event is still going on or soon thereafter (requires corroboration in NY)

Future plans/intent but not past condition.

Unavailable.

Forcible stealing plus

1. Brandishing weapon or

2. Serious physical injury

Forcible stealing plus

1. Aiding and abetting

2. Victim is injured or

3. Carjacking

Forcible Stealing

1. Making or altering a writing

2. So that its false

Specific intent to defraud

1. Offering as genuine

2. forged instrument

Specific Intent to defraud

Destroying or damaging someone elses' property with the intent to defraud

Criminal Mischief

Breaking and entering into the building of another with the intent to commit a felony

Specific Intent

1. defendant knew it was a home

2. another person was hurt

3. D carried a weapon

1. Building was a dwelling

2. Another person was hurt

3. D carried a weapon

Breaking and entering into the building of another with the intent to commit a felony

Malicious burning of a building.

Malice

D used an explosive device and knew or should have known that there was a person inside

D knew or should have knew there was a person inside.

D intentionally burned the building.

D burned the building recklessly.

Specific intent commit the crime and to aid (NY)

Aider is liable for all crimes he aided in as if he did them himself as well as ll other foreseeable crimes along the way.

Yes.

Presence and knowledge

Aider: neutralize assistance or stop crime

Encourager: discourage

Must make substantial effort to prevent the commission of the crime.

Harboring a fugitive

Specific intent that the crime be committed

Agreement between two or more people to commit a crime and an act in furtherance of it.

False. There must be at least two D's for a conspiracy. Only one is needed in NY.

No. But they are under the majority rule.

The test applied by the majority of states whereby a D is guilty of attempt if he took a substantial step toward the crime that is strongly corroboration of criminal purpose

The test applied by NY whereby D is guilty of attempt if he engages in conduct that is dangerously close to the commission of the crime.

Specific intent to commit the crime.

No, but can get rid of vicarious liability.

Complete renunciation not based on mere fear of being caught.

A lesser included offense (every element of the lesser offense is part of the greater offense) will merge into the greater one.

Larceny will merge into robbery.

Attempt -- merges

Conspiracy -- does not merge

Solicitation Majority - merges

Solicitation NY - doesn't merge

D was legally insane if

1. Didn't know his act was wrong

2. Did not understand the nature of his act.

Defendant was insane if he

1. Didn't know his act was wrong

2. Did not understand the nature of his act

3. Was unable to control his actions

4. Was unable to conform his conduct to law

Defendant was insane if he lacks substantial capacity to ...

1. understand he nature of his act

2. appreciate the wrongfulness of his act

If it prevents D from forming specific intent to commit a crime.

Not be prosecuted at all

Rebuttable Presumption

Prosecuted

May not be criminally prosecuted as adults.

2nd degree murder.

Serious crimes against property

be criminally prosecuted for any crime as adults

If it is reasonably necessary to protect against imminent unlawful force against himself

OK if facing imminent threat of death or bodily harm.

An aggressor may not use deadly force in self defense.

1. D withdraws from fight and communicates that to the other person OR

2. The victim suddenly escalates a non-deadly fight into a deadly one

NY - aggressor always must withdraw

No duty to retreat.

There is a duty to retreat unless

1. It can't be done safely OR

2. The defendant is in his home

Reasonable mistake is but unreasonable mistake is not.

Yes, if necessary.

May be used to prevent a crime that risks human life (MR)

May be used to prevent robbery, arson, burglary kidnapping, rape.

No, unless its a burglary when the victim is home.

It can be if the defendant reasonably believed his conduct was necessary to prevent a greater harm but never for homicide.

MR -- No

NY - Yes

1. Criminal design originated with the government

2. The D was not predisposed to commit the crime.

Preponderance