N.Y. Comp. Codes R. & Regs. tit. 9 § 517.4

Current through Register Vol. 46, No. 25, June 18, 2024

Section 517.4 - Relevancy and its limits

Definition of relevant evidence.

(a) Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

(b) Relevant evidence generally admissible; irrelevant evidence inadmissible. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or the State of New York as applied to members of the Armed Forces or State organized militia, the code, these rules, this Chapter, or any Act of Congress applicable to members of the Armed Forces. Evidence which is not relevant is not admissible.

(c) Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(d) Character evidence not admissible to prove conduct; exceptions; other crimes.

(1) Character evidence generally. Evidence of a person's character or a trait of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

(i) Character of the accused. Evidence of a pertinent trait of the character of the accused offered by an accused, or by the prosecution to rebut the same.

(ii) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide or assault case to rebut evidence that the victim was an aggressor.

(iii) Character of witness. Evidence of the character of a witness, as provided in Mil. R. Evid. 607, 608, and 609.

(2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(e) Methods of proving character.

(1) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(2) Specific instances of conduct. In cases in which character or a trait of character of a person is in essential element of an offense or defense, proof may also be made of specific instances of the person's conduct.

(3) Affidavits. The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused. If the defense introduces affidavits or other written statements under this paragraph, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules.

(4) Definitions. Reputation means the estimation in which a person generally is held in the community in which the person lives or pursues a business or profession. Community in the Armed Forces includes a post, camp, ship, station, or other military organization regardless of size.

(f) Habit; routine practice. Evidence of the habit of a person or of the routine practice of an organization; whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

(g) Subsequent remedial measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This subdivision does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measure if controverted, or impeachment.

(h) Compromise and offer to compromise. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This subdivision does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This subdivision also does not require exclusion when the evidence is offered for an other purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

(i) Payment of medical and similar expenses. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

(j) Inadmissibility of pleas, plea discussions, and related statements.

(1) In general. Except as otherwise provided in this subdivision, evidence of the following is not admissible in any court-martial proceeding against the accused who made the plea or was a participant in the plea discussions:

(i) a plea of guilty which was later withdrawn;

(ii) a plea of nolo contendere;

(iii) any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; or

(iv) any statement made in the course of plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (a) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (b) in a court-martial proceeding for perjury or false statement if the statement was made by the accused under oath, on the record and in the presence of counsel.

(2) Definitions. A statement made in the course of plea discussions includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; on the record includes the written statement submitted by the accused in furtherance of such request.

(k) Liability insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This subdivision does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

(l) Nonconsensual sexual offenses; relevance of victim's past behavior.

(1) Notwithstanding any other provision of these rules or this Chapter, in a case in which a person is accused of a nonconsensual sexual offense, reputation or opinion evidence of the past sexual behavior of an alleged victim of such nonconsensual sexual offense is not admissible.

(2) Notwithstanding any other provision of these rules or this Chapter, in a case in which a person is accused of a nonconsensual sexual offense, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is:

(i) admitted in accordance with subparagraphs (3)(i) and (3)(ii) and is constitutionally required to be admitted; or

(ii) admitted in accordance with paragraph (3) and is evidence of:

(a) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not with respect to the alleged victim, the source of semen or injury; or

(b) past sexual behavior with the accused is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which the nonconsensual sexual offense is alleged.

(3)

(i) If the person accused of committing a nonconsensual offense intends to offer under paragraph (2) of this subdivision evidence of specific instances of the alleged victim's past sexual behavior with respect to which the nonconsensual sexual offense is alleged.

(ii) The notice described in subparagraph (i) of this paragraph shall be accompanied by an offer of proof. If the military judge determines that the offer of proof contains evidence described in paragraph (2) of this subdivision, the military judge shall conduct a hearing, which may be closed, to determine if such evidence is admissible. At such hearings the parties may call witnesses, including the alleged victim, and offer relevant evidence. In a case before a court-martial composed of a military judge and members, the military judge shall conduct such hearings outside the presence of the members pursuant to Military Law, section 130.39(a).

(iii) If the military judge determines on the basis of the hearing described in subparagraph (ii) of this paragraph that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the military judge specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.

(4) For purposes of this subdivision, the term past sexual behavior means sexual behavior other than the sexual behavior with respect to which a nonconsensual sexual offense is alleged.

(5) A nonconsensual sexual offense is a sexual offense in which consent by the victim is an affirmative defense or in which the lack of consent is an element of the offense. This term includes rape, forcible sodomy, assault with intent to commit rape or forcible sodomy, indecent assault, and attempt to commit such offenses.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 517.4