by Andy Chen | Mar 3, 2020 | Evidence, New York, Statutes... and stuff
In today’s post, I’m going to go over New York’s Social Worker evidence privilege under section 4508 of New York’s Civil Practice Law and Rules (CPLR). In past posts, I’ve gone over various other New York evidence privileges, such as the Rape Crisis Counselor privilege, the Library Records privilege, the Psychologist-Patient privilege, and the Clergy privilege. I’m guessing that most people have heard of the Attorney-Client privilege also. As with those posts, remember here that an evidence privilege is — in essence — the ability to refuse to disclose or forbid the use of information that would otherwise be evidence in a legal dispute of some kind. The rationale is that a higher purpose (e.g. allowing a person in need to quickly obtain frank and honest medical or legal advice) is served by allowing the person to speak freely without worrying that what they say could be used against them. Anyway, that said, New York’s Social Work privilege is in CPLR section 4508. The main part of that is 4508(a), which states: “A person licensed as a licensed master social worker or a licensed clinical social worker under the provisions of article one hundred fifty-four of the education law shall not be required to disclose a communication made by a client, or his or her advice given thereon, in the course of his or her professional employment, nor shall any clerk, stenographer or other person working for the same employer as such social worker or for such social worker be allowed to disclose any such communication or advice given thereon… “ The terms “licensed master social worker” and “licensed...
by Andy Chen | Feb 19, 2020 | Evidence, New York, Statutes... and stuff
In law, a privilege — broadly speaking — is the ability to not disclose information that one would ordinarily have to. For example, many people have heard of the Attorney-Client privilege which requires that an attorney not disclose certain information received from their client unless the client authorizes it. The goal of a privilege like the Attorney-Client privilege is to allow the client to speak candidly with their attorney in order to get the best possible advice without having to worry that what they say will be used against them later on in some way. In this post, I’m going to go over a slightly different privilege, namely Clergy Privilege under Section 4505 of New York’s Civil Practice Law and Rules (CPLR). Section 4505 recites the privilege as follows: Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion or duly accredited Christian Science practitioner , shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor. The idea here is that if a person is allowed to speak freely to their minister or other religious adviser about an issue they are conflicted on, the person is more likely to think through the problem, reach a good resolution, and ultimately whatever is morally and ethically right under the circumstances. The Clergy Privilege is not unique to New York. California has it also, except there is it called the “Clergy-Penitent Privilege”. See California Evidence Code sections 1030 to 1034. The major New York case that describes a lot about the Clergy Privilege is from...
by Andy Chen | Feb 17, 2020 | California, Criminal law, Statutes... and stuff
In court, there are a ton of rules about what evidence can be used and what evidence can’t be used. In past posts, I’ve described how only relevant evidence (in California; in New York and under Federal law) can be used in court. What occurred in the real world is often not what is dealt with in court. Many laypeople are shocked to know this when they get involved with their first court case. In California state court, the set of rules that govern what evidence can and can’t be used is the California Evidence Code. In federal court, there are the Federal Rules of Evidence. The specific name varies, but every jurisdiction in the United States generally has its own set of evidence rules. One major component of the evidence rules — regardless of jurisdiction usually — is hearsay. Hearsay is easy to define — I learned it in law school as (1) statement, (2) made by a person, (3) outside of court, and (4) an attempt is being made to admit that evidence for the truth asserted therein. See section 1200 and onward in the California Evidence Code. These criteria are, obviously, fairly basic. As an aside, in the real world, it’s rare that you would quickly be able to tell if these criteria are satisfied. You’d likely have to answer some more nuanced questions first, such as “What exactly is a ‘statement’?” Anyway, aside over. If these 4 basic/simplified criteria are met, then the statement can’t be used in court… unless an exception of some kind applies. As many law students in the US — and...
by Andy Chen | Feb 16, 2020 | Evidence, New York
A few posts ago, I went over what the definition of “relevance” was under California law and why it was important. Here’s that post, in case you missed it. In this post, I’m going to go over the analogous definition under New York law. In New York, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probably than it would be without the evidence.” This is from the 1977 NY Court of Appeals case of People v. Davis. 43 NY 2d 17. As a reminder, the highest court in a state is the final arbiter of what the law of that state means. In California, the highest court is the California Supreme Court. In New York, however, the highest court is the Court of Appeals. If you look at the California and New York definitions side-by-side, similarities do emerge. New York: 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” California: “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (California Evidence Code section 210) The thrust of both definitions is that relevant evidence is that which has the tendency to prove or disprove a fact which is material to the dispute at...
by Andy Chen | Feb 9, 2020 | New York, Torts
In this post, I’m continuing with my series on Statutes of Limitation in both California and New York. In a prior post, I described the statute of limitations that applies to a civil fraud lawsuit under California. This post will be the New York counterpart to that post. The New York answer is a bit more complicated. Instead of a flat figure (e.g. 3 years, 5 years, etc), New York’s statute of limitations for civil fraud is the greater of: six years starting from when the fraud is actually committed, or two years from the time when the fraud was actually discovered or when it could have been discovered with plaintiff’s reasonable diligence. All of this is in section 213(8) of New York’s Civil Practice Law and Rules (CPLR 213(8)). It’s quite important, I think, that CPLR 213(8) provides for the “greater of” as opposed to the “lesser of”. For instance, suppose that CPLR 213(8) said the statute of limitations was the lesser of six years from the fraud is committed or two years from the time the fraud was or could have been discovered. If the fraud is discovered soon after (say, a few months) of it being committed, then the plaintiff only has the two years from the date of discovery to file suit. If the fraud isn’t discovered right away (e.g. say it goes undiscovered for several years), then the defendant is in the clear as soon as they hit the six year mark. Because CPLR 213(8) instead says “greater of”, though, it goes in the plaintiff’s (i.e. fraud victim’s) favor. For a fraud that is...
