NY distinctions in Evidence (Part II)

• In New York, a witness must be allowed to address prior inconsistent statements while on the stand (intrinsically). Under the federal standard, the timing is flexible. Extrinsic evidence of a prior inconsistent statement may be introduced so long as the witness is alter given the opportunity to return to the sand and explain the statement.
• In New York, a witness' veracity may be impeached with a conviction for any crime. However, if the witness is the criminal defendant, there must be a Sandoval hearing, whereby a judge weighs the probative value of the conviction against the unfair prejudice.
  
  In the federal rules, a conviction used to impeach veracity must have been within ten years of the trial. These crimes must involve veracity or must not be misdemeanors and the probative value must outweigh the prejudice.
• When attacking a witness's character for truthfulness by prior bad acts that have not resulted in a criminal conviction, federal law permits asking about bad acts if they are related to truthfulness. In New York, the bads acts aren't limited to those related to truthfulness, but may include any that show a witness's moral turpitude. For impeaching truthfulness in this manner, only intrinsic evidence is allowed.
• Under the federal rules, any party may impeach any witness, even their own. New York subscribes to the "voucher rule," whereby a party vouches for the credibility of their own witness. The exception to the voucher rule, where impeachment of your own witness is allowed, is with prior inconsistent statements under oath or signed by the witness. In a criminal case, this exception can be used only if the current testimony is affirmatively damaging (rather than a mere "cloud on credibility") to the party who called the witness.
• Under the federal rules, a witness's prior statement of identification is admissible, even if the witness's credibility has not yet been attacked. In New York, the same rule is applied as a hearsay exception in criminal cases, but not in civil cases. In civil cases, the witness's credibility needs to be attacked in order for a prior statement of identification to be admitted.
• In New York, as with all character evidence, rehabilitation of a witness's truthfulness through character evidence can only be done with reputation evidence. Unlike federal, opinion evidence is not permitted.
• Under the federal rules, a prior consistent state can be used to rehabilitate a witness and as substantive evidence. In New York, this prior consistent statement can only be used to rehabilitate and cannot be used as substantive evidence.
• Federal law recognizes four testimonial privileges: attorney/client, husband/wife, clergy/penitent, therapist/patient. New York also recognizes the following three: doctor/patient, social worker/client, reporter/source.
• The Spousal Testimony Privilege: In a federal criminal case, the prosecution cannot compel the defendant's spouse to testify against the defendant. This applies only to criminal cases where the spouses are still currently married. It can be waived by the witness/spouse. New York does not recognize this immunity. Note: this is usually outside the scope of communications between spouses. Communications are covered in a separate spousal exception.
• In New York, a statement by an agent or employee can only be used as a vicarious admission if they had "speaking authority." The federal rules do not require this; instead they only require that the employee speak of matters within the scope of their employment during their agency or employment.
• Former Testimony is allowed as a hearsay exception when a witness is unavailable. Grounds for unavailability in New York include privilege, absence from jurisdiction, and illness or death. Federal grounds include the above list and lack of memory or a stubborn refusal to testify. In civil cases, New York recognizes two more exceptions: the witness is a doctor or lives more than 100 miles from the courthouse.
• In New York criminal cases, the former testimony by now-unavailable witnesses must have been given at a criminal trial, a hearing on a felony complaint, or at a conditional deposition. Defendant and charge must be the same in both the former and current case. Testimony given at a suppression hearing is not valid.
  
• When providing that evidence has disappeared by wrongdoing, the federal standard is is preponderance of the evidence. The New York standard is clear and convincing evidence.
• Dying declarations are allowed as a hearsay exception in any civil or criminal case in federal court. In New York, dying declarations are allowed in criminal homicide cases.
• In New York, a present sense impression hearsay exception requires corroboration. Under federal standards, it does not.
• A statement of then-existing mental, emotional, or physical condition is allowed as a hearsay exception under the federal rules if the statement is a contemporaneous statement concerning the declarant's then existing physical condition or state of mind. In New York, the declarant must be unavailable, and if offered to prove a third person's intent, corroboration is required.
• The hearsay exception for statements made for the purpose of medical treatment or diagnosis is refined in New York to exclude statements as to past symptoms and statements made solely to obtain expert testimony.
• In New York, the public records hearsay exception does not cover conclusions in the public record, only observations. The federal rule says that conclusions can be included.
• To lay the foundation for business records in New York, live testimony must be used for criminal cases. Written certification may be used only in civil cases and only for the business records of a non-party.