Part I: Opening Statement

Indulge me for a few minutes. Imagine you’re an Assistant District Attorney (“ADA”) in Brooklyn Criminal Court. You are conducting the direct examination of the complainant in a gang assault case. This is how the testimony goes during your questioning:

People Q: You mentioned you attended a party with a group of people, do you recall the names of any of those people from that party?

Complainant A: Yeah, so after a session of hypnosis with my therapist, I remember their names to be––

Defense counsel, some evidence wizard with the Legal Aid Society, stands up and makes her objection. The Judge orders both parties to approach for a sidebar.

Defense: Your Honor, pursuant People v. Hughes, a witness’s testimony as to events the witness recalls as a result of hypnosis is inadmissible.[1]

People: Your Honor, I had no idea that was a rule.

Judge: Neither did I. Sustained.

Rules of evidence are weird, arcane, confusing, and terrifying. Combine that previous list of adjectives with the additional fact that there are dozens of systems of evidence at play in the legal system, and you have a recipe for a very bad headache. Many lawyers and law students struggle with learning the rules of evidence. Here, in this article, we will focus on two of those systems of evidence: the primarily common law & statutory law-developed New York rules of evidence, and the legislature-created Federal Rules of Evidence (“FRE”). The goal of this article is to introduce some of the slight differences in the two systems that you will encounter repeatedly when learning these rules of evidence.

Part II: Case-in-Chief

To start, the New York Rules of Evidence are far more expansive and cover way more nuanced and outlandish subjects than the FRE. As you saw earlier in this blog, the common law evidence rules of New York cover incredibly absurd situations. Hypnosis of a witness is just one of very many weird rules of evidence that New York has.[2] But instead of going deeper into the strange evidence rules, I am going to shift to three important New York rules that are different from the FRE. These might not be the most frequently appearing evidence rules, but they are very important in beginning to understand the different approaches and theories of the two systems.

A: Impeachments

For starters, the rules regarding the impeachment of a non-adverse witness are very different. In New York, a party may not impeach its own witness except in situations of prior inconsistent statements. Under the FRE, any party may impeach any witness, including the party that called that witness.[3] There is a difference here because the New York Court of Appeals held that “[a] party should not be permitted, after having unsuccessfully taken a chance to secure favorable testimony, to attack his own witness and ask the jury to infer the contrary of what has been sworn to, because the falsity of the evidence is to be presumed from the general character of the witness.”[4] Meanwhile, the FRE sees this as too restrictive, and does not put this limitation on either party. The FRE theory is that you do not often choose your witnesses, and impeachment should always be on the table if their credibility is questionable.[5] New York’s theory is that a party should not have impeachment on the table for their own witness, because that witness can just be impeached whenever they turn out to be harmful to a case. Keep in mind, just because you can impeach your own witness under the FRE, doesn’t mean you should. Please do not ever impeach your own witness/teammate in a mock trial competition.

B: Prejudice

Whenever someone is first familiarizing themselves with the FRE, they eventually come across FRE 403. All FRE 403 says is “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”[6] The key word here under the FRE is “substantially.”[7] It is the most misunderstood rule for beginners. Every piece of evidence is prejudicial. That is the point of putting on a case and presenting evidence. The problem is when a piece of evidence is substantially unfair. This rule is different from its New York equivalent.

In New York, the standard for prejudice is:

A court may exclude relevant evidence if its probative value is outweighed by the danger that its admission would: (1) create undue prejudice to a party; (2) confuse the issues and mislead the jury; (3) prolong the proceeding to an unreasonable extent without any corresponding advantage to the offering party; or (4) unfairly surprise a party and no remedy other than exclusion could cure the prejudice caused by the surprise.[8]

There are a few differences here. First, the word “substantially” is completely absent. Second, instead of “unfair,” the Court of Appeals uses the word “undue.” Third, there is a protection against evidence by ambush. Functionally, however, they are the same. These two rules exist to block out dangerously prejudicial evidence. These two sets of rules just have different standards. A good way that I personally break this rule down is to imagine a scale. Every piece of evidence has a probative-to-prejudicial value. Under the FRE a fact would need to be 45-55 on the metaphorical probative-to-prejudicial scale to be considered “substantially” prejudicial. Whereas in New York, you might only need a 49-51 on the probative-to-prejudicial scale for a fact to be considered “undue” prejudice. Functionally, this means you are slightly more likely to win those very close prejudicial fact arguments during an objection sequence under the New York rule.

C: Opposing Party Statements

Last but not least, statements of an opposing party are also slightly different. Under FRE801(d)(2)(a), it is not hearsay whenever you use the statements of an opposing party. FRE FRE801(d)(2) in full reads:

The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.[9]

This rule often comes up in criminal cases where the government can bring in the statements of the defendant almost effortlessly under this rule.

On the other hand, New York requires a tad more to bring in the statement of an opposing party. New York’s rule is:

A statement of a party which is inconsistent with the party’s position in the proceeding is admissible against that party, if the statement is one of the following: (a) made by a party in an individual or representative capacity and offered against the party in that capacity, irrespective of the party’s lack of personal knowledge of the facts asserted by the party. (b) made by a person in a relationship of privity with the party and the statement concerns the party’s and the person’s joint interest.[10]

Note the difference in the language regarding the statement needing to be inconsistent with the party’s position in that proceeding. In New York, the statement needs to be against the interest of the declarant. It is a puny little one-inch hurdle, but a hurdle nevertheless. The FRE has no such hurdle regarding a party’s interest. Any statement of an opposing party may come in regardless of whether it is against a party’s position or not. Functionally, all this means is that in New York you must be prepared to argue to a judge during sidebar how a statement goes against a party’s position.

Part III: Summation

It is clear that in this article I will not be able to break down every single difference between the FRE and New York system. They are two gigantic evidence systems with hundreds of different exceptions, exclusions, and standards. I hope that these three key differences lead you, the reader (like it did myself), down an evidence rabbit-hole. In sum, pay attention to the fine details when going over your evidence. The overall system is similar, but the finer points, such as whether the word “substantially” is present or not, is where the real differences are.

[1] People v. Hughes, 59 N.Y.2d 523, 545 (1983).

[2] See e.g., N.Y. Crim. Proc. § 60.47.

[3] Fed. R. Evid. 607.

[4] Carlisle v. Norris, 215 N.Y. 400, 409 (1915).

[5] Fed. R. Evid. 702 advisory committee’s note. (“A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them.”)

[6] Fed. R. Evid. 403

[7] Id.

[8]  See People v. Davis, 43 N.Y.2d 17, 27 (1977).

[9] Fed. R. Evid. 801.

[10] Reed v. McCord, 160 N.Y. 330, 341 (1899).