NY Evidence Rules 1 Flashcards

Under New York evidence law, which standard governs the admissibility of novel scientific expert testimony, as opposed to the federal standard?

Answer: The Frye standard, requiring that the scientific methodology be generally accepted in the relevant scientific community

New York follows the Frye standard (general acceptance in the relevant scientific community), not the federal Daubert standard adopted under FRE 702. Under Frye, the court does not independently assess reliability but asks whether the technique is accepted by the relevant scientific community. New York courts have explicitly declined to adopt Daubert.

Under New York law, the physician-patient privilege established by CPLR 4504 belongs to whom, and who may waive it?

Answer: The patient, who alone may waive it, although the waiver may also be effected by a personal representative after the patient's death

Under CPLR 4504, the physician-patient privilege belongs exclusively to the patient. Only the patient (or, after death, a personal representative in certain proceedings) may waive it. The physician has no independent right to disclose confidential communications and cannot unilaterally waive the privilege.

Under New York law, the attorney-client privilege does NOT apply when:

Answer: The client seeks the attorney's assistance in furtherance of a crime or fraud

The crime-fraud exception removes the attorney-client privilege when the client sought the attorney's assistance to further a crime or fraud. The privilege protects confidential communications about past conduct and extends to consultations even when no representation is formed, but it does not shield communications made for the purpose of committing a future crime or fraud.

Under New York's best evidence rule, when a party seeks to prove the contents of a writing, recording, or photograph, which of the following is correct?

Answer: The original must be produced unless its absence is satisfactorily explained by showing it was lost, destroyed without bad faith, or otherwise unavailable

New York's best evidence rule requires production of the original when a party seeks to prove the contents of a writing. However, the rule allows secondary evidence (such as copies or testimony) when the original's absence is satisfactorily explained — for example, it was lost, destroyed without bad faith, or is in the possession of an adverse party who refuses to produce it after notice.

Under New York law, how may a prior inconsistent statement by a testifying witness be used at trial?

Answer: Only to impeach the witness's credibility; it is not evidence in chief unless it independently satisfies a hearsay exception

Under CPL 60.35(2) (criminal) and CPLR 4514 (civil), a prior inconsistent statement may be used only to impeach credibility and is not evidence in chief. New York does not follow FRE 801(d)(1)(A); a sworn prior statement becomes substantive only if another rule applies (for example a party admission, or prior-identification rules in CPL 60.25 and 60.30). The impeaching statement must be in writing and subscribed or made under oath (CPLR 4514; CPL 60.35(1)).

Under New York law, which of the following correctly describes spousal privilege in a criminal proceeding?

Answer: A spouse may be compelled to testify against the other spouse, but confidential communications made in reliance on the marital relationship are privileged (CPLR 4502(b); CPL 60.10)

New York recognizes no adverse spousal testimonial privilege; a spouse is a competent and compellable witness against the other spouse. What is protected is a confidential communication made by one spouse to the other during marriage, which neither may be required to disclose or, without the other's consent, allowed to disclose (CPLR 4502(b), applied in criminal cases through CPL 60.10). The communication privilege does not cover non-confidential communications or acts, and does not protect communications in furtherance of a crime or where the crime is against a spouse or child.