NY distinctions in Evidence

• In general, subsequent remedial measures are inadmissible to prove negligence, culpable conduct, product defect, or need for a warning. However, in NY, subsequent remedial repairs are admissible in a products liability action based on liability for a manufacturing defect (as opposed to a design defect).
• Under the federal rules of evidence, a withdrawn guilty plea is inadmissible against a defendant in a pending criminal litigation or subsequent civil case. However, a withdrawn guilty plea is admissible in New York for subsequent civil actions.
• Under the federal rules, a defendant may introduce evidence of his own good character for a relevant trait. This can include reputation or opinion evidence. This "opens the door" for the prosecution to use character evidence to rebut the defendant's evidence with reputation or opinion evidence. Under New York rules, only reputation evidence is allowed. New York excludes both opinion and prior acts from character evidence.
• On cross-examination, the prosecution may question witnesses about their knowledge of specific acts in order to impeach a witness testifying to a relevant character trait. In New York, the prosecution can go one step further: they can rebut the defendant's good character evidence by proving that the defendant has been convicted of a crime that adversely reflects on the character trait in issue. This is completely contrary to the federal rules, which do not allow the prosecution to prove convictions as rebuttal; the purpose of specific acts under federal rules is to allow the prosecution to test the witness' knowledge.
• Under federal rules, a criminal defendant may offer evidence of the victim's violent character to prove that the victim was the first aggressor. This can be either reputation or opinion evidence. New York does not allow evidence of a victim's character to prove that the victim was the first aggressor.
• Although New York does not allow the defendant to introduce evidence of the victim's violent character to prove that the victim started the fight, a defendant can introduce evidence of his knowledge of the victim's character for violence. Note: this is not a propensity use; instead the evidence is being offered for the purpose of showing that the defendant reasonably believed in the need to use self defense.
• In cases involving sexual misconduct, the defendant may not introduce evidence of the victim's reputation for promiscuity or prior sexual conduct. There are two exceptions to this under the federal rules: to show that the victim consented to sexual activity with the defendant and prove that someone other than the defendant was the source of physical evidence. New York also allows evidence of a conviction for prostitution in sexual misconduct cases if the conviction was within the past three years.
• Under the federal rules, propensity evidence is not allowed to prove conduct on a particular occasion. However, the habits of a person or business are admissible to infer how the person or business acted on the occasion at issue in the litigation. New York refines habit evidence more than the federal rules: it allows habit evidence relating to a business but does not allow evidence relation to personal habits unless it is to show a personal habit in the use of a product.
• When using MIMIC evidence (offering evidence of defendant's other crimes for some other purpose than propensity) the federal burden of proof standard is that the prosecution must product sufficient evidence for a reasonable person to conclude that the defendant committed the prior act act by a preponderance of evidence. In New York, the standard is higher: the prosecution must offer clear and convincing evidence that the defendant committed the prior act.
• The federal rules allow the prosecution to offer evidence of prior sexual assaults to prove the defendant's propensity to commit sexual assault. Such is not the case in New York. New York does not subscribe to the idea of "once a rapist, always a rapist."
• When authenticating a document, the federal rules allow authenticity to be inferred if the document is at least 20 years old, is facially free of suspicion, and is found where it would be expected. In New York, the document must be at least 30 years old.
• Federally, duplicates are allowed in lieu of original documents unless there is a genuine question about the authenticity of the duplicate or it would be unfair to admit the duplicate. In New York, photocopies and other duplicates are only acceptable substitutes if the duplicates were made in the regular course of business.
• In New York, a child under the age of nine can give unsworn testimony, but a defendant cannot be convicted solely on this evidence. The testimony of an unsworn child witness must be corroborated.
• There is no dead man's statute under the federal rules. New York has a dead man's statute, which provides that an interested party may not testify against a dead party about communications or transactions with the dead party in a civil action. New York has an accident exception to this rule: an interested party may testify about the facts of an accident (the transaction, if you will). But, the New York dead man's statute still prevents testimony about conversations with the dead.
• As a hearsay exception, a past recollection recorded may be read to the jury if the witness once had personal knowledge and can attest that the recorded recollection was accurate and made at a time when it was fresh in the witness' memory. This standard also presumes that the witness either made or adopted the recollection. Under the New York rules, this recollection can be offered into evidence by the party using the recollection. This is contrary to the federal rules, which stop short of offering the recording into evidence. But, under the federal rules, the opposing party can offer the recording into evidence.
• For scientific evidence, the federal standard is the Daubert standard which allows what might be considered questionable evidence if it has been tested, with known rates of error, peer review, and general acceptance in the scientific community. New York adopts the more restrictive Frye standard, which only asks whether the methodology has been generally accepted by the relevant professional community.
• Under federal rules, an expert witness may not testify whether a defendant had the requisite mental state to commit a crime. In New York, an expert can testify as to the defendant's state of mind.
• Under federal rules, a learned treatise in aid of expert testimony is allowed to be read to the jury as substantive evidence (as a hearsay exception). Contrarily, in New York and learned treatise is only allowed for showing the basis of an expert's testimony or to impeach the opponent's expert (if the expert acknowledged the treatise as a reliable authority or used the treatise in forming their opinion).
• In New York, prior inconsistent statements, even those given under oath as part of a formal proceeding, are not admissible as substantive evidence. They can only be used to impeach. Under federal, sworn statements as part of proceedings can be used as substantive evidence.