NYLE - New York Law NY Evidence Rules Questions and Answers — Questions and Answers
Question 1: In a personal injury action in New York, a plaintiff seeks to introduce an incident report created by a store employee immediately after the plaintiff slipped and fell. The report was created on a standard company form as part of the store's established procedure for documenting any customer accidents. Which of the following is the most critical foundational requirement for admitting this report under the business records exception to the hearsay rule (CPLR 4518)?
- The employee who wrote the report must testify and be subject to cross-examination.
- The report must have been created in anticipation of litigation.
- The report must have been made in the regular course of business, and it was the regular course of business to make such a report. (Correct answer)
- The report must contain a statement from a party-opponent to be admissible.
Correct answer: The report must have been made in the regular course of business, and it was the regular course of business to make such a report.
Under CPLR 4518(a), for a document to be admissible as a business record, it must be shown that it was made in the regular course of business and that it was the regular course of such business to make it at the time of the event or within a reasonable time thereafter. The person who made the record does not need to testify, and if the primary purpose of the report was for litigation, it may be inadmissible. The presence of a party-opponent's statement would be a separate basis for admissibility (admission), not a requirement for the business records exception.
Question 2: A defendant in a New York assault case claims self-defense, alleging the victim was the first aggressor. The defendant seeks to introduce testimony from a witness about the victim's prior specific acts of violence against third parties, which the defendant was unaware of at the time of the assault. For what purpose, if any, is this evidence admissible?
- To show the defendant's reasonable state of mind and fear of the victim.
- To impeach the victim's credibility on cross-examination.
- To prove the victim had a propensity for violence and likely was the first aggressor.
- It is inadmissible because the defendant was not aware of these prior violent acts. (Correct answer)
Correct answer: It is inadmissible because the defendant was not aware of these prior violent acts.
In New York, evidence of a victim's prior specific violent acts is admissible to prove the defendant's state of mind and reasonable fear, but only if the defendant knew of those acts at the time. If the defendant was unaware of the acts, they cannot be used to show the defendant's state of mind. New York law does not permit using specific acts to prove the victim's propensity to act as the first aggressor, although prior threats against the defendant (whether known or not) may be admissible for that purpose.
Question 3: In a civil proceeding concerning a decedent's estate, an interested party wishes to testify about a conversation she had with the decedent regarding a promise to bequeath a valuable painting. The estate's executor objects to this testimony. What is the primary effect of New York's Dead Man's Statute (CPLR 4519) on this proposed testimony?
- It allows the testimony but requires the judge to instruct the jury to view it with caution.
- It renders the interested witness incompetent to testify about personal transactions or communications with the decedent in her own interest. (Correct answer)
- It bars the testimony only if it can be contradicted by a written document signed by the decedent.
- It shifts the burden of proof to the interested party to prove the conversation occurred by clear and convincing evidence.
Correct answer: It renders the interested witness incompetent to testify about personal transactions or communications with the decedent in her own interest.
New York's Dead Man's Statute, CPLR 4519, is a rule of witness competency. It prevents a person who is interested in the outcome of a civil case from testifying in their own interest about a personal communication or transaction with a deceased person when that testimony is offered against the decedent's estate or successor in interest. The purpose is to protect the decedent's estate from fraudulent or unverified claims that the decedent cannot refute.
Question 4: Immediately after witnessing a car accident, a bystander calls 911 and states, 'A blue sedan just ran the red light and hit a cyclist!' In New York, for this statement to be admitted into evidence under the 'present sense impression' exception to the hearsay rule, what additional element is required that is not typically required for an 'excited utterance'?
- The declarant must be identified and available to testify.
- The statement must relate to a startling or upsetting event.
- There must be some independent evidence to corroborate the statement. (Correct answer)
- The statement must be made while the declarant is still under the stress of excitement.
Correct answer: There must be some independent evidence to corroborate the statement.
While both the present sense impression and excited utterance exceptions require spontaneity, New York courts have added a specific requirement for present sense impressions: there must be some independent corroborating evidence to support the accuracy and contemporaneity of the statement. This is a key distinction from the excited utterance exception, which relies on the startling nature of the event to ensure reliability without a corroboration requirement.
Question 5: Which of the following relationships generally does NOT give rise to a recognized evidentiary privilege under New York's CPLR, meaning a party in that relationship can typically be compelled to testify about confidential communications?
- Physician and Patient (CPLR 4504)
- Attorney and Client (CPLR 4503)
- Clergy and Penitent (CPLR 4505)
- Accountant and Client (Correct answer)
Correct answer: Accountant and Client
New York's Civil Practice Law and Rules (CPLR) codifies several evidentiary privileges, including those for attorneys (4503), physicians (4504), and clergy (4505). However, New York does not recognize a general accountant-client privilege. Communications with an accountant may only be privileged if the accountant was retained by an attorney to assist in providing legal advice (under the Kovel doctrine), thereby extending the attorney-client privilege.
Question 6: In a New York civil trial for breach of contract, a key witness for the plaintiff was convicted of a Class A misdemeanor for petit larceny seven years ago. The defense attorney wishes to impeach the witness's credibility on cross-examination using this conviction. Under CPLR 4513, what is the proper procedure?
- The attorney must first seek a pre-trial ruling from the judge before mentioning the conviction.
- The conviction is inadmissible because more than five years have passed.
- The attorney may ask the witness about the conviction and, if denied, may introduce a certified judgment of conviction. (Correct answer)
- The conviction is inadmissible because only felony convictions can be used for impeachment in a civil case.
Correct answer: The attorney may ask the witness about the conviction and, if denied, may introduce a certified judgment of conviction.
CPLR 4513 allows a witness in a civil proceeding to be impeached with a prior criminal conviction. This includes both misdemeanors and felonies. The cross-examining attorney can ask the witness about the conviction, and if the witness denies it or answers equivocally, the attorney may prove the conviction with extrinsic evidence, such as a certified copy of the judgment. Unlike the pre-trial 'Sandoval' hearing required for criminal defendants, no such advance ruling is required for a non-party witness in a civil case. There is no automatic 5- or 10-year time limit for admissibility in New York civil cases, though the court retains discretion.
