New York Courtroom Evidence

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NEW YORK
COURTROOM
EVIDENCE
2004
Reviewers Ed.
JOHN E. DURST, JR.
Lexis® Law Publishing

and
John E. Durst, Jr.
For information concerning

the hardcopy version of
this reviewers edition,
convenient for courtroom
use, call
John E. Durst, Jr.

1-888-NYNYLAW
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PREFACE
My co-author, Abraham Fuchsberg, passed away this year, at age 87. He was my friend and
mentor from my first day out of law school. We wrote our first book, Modern New York Discovery, together
in 1982. I owe him a lot, and I will miss him. Please see my website, www.durstlaw.com for more about him.
This fourth edition of the book is dedicated to his memory. He resolved thousands of cases,
earned lots of money, was the President of the New York State Trial Lawyers Association, a Governor of
ATLA, and won countless awards and accolades, but he use to tell me that before he was a lawyer, he taught
high school English, and took greatest satisfaction in his poetry, in the use of the English language. He was as
involved in editing articles and writing his Editorial for the New York State Trial Lawyers Quarterly as he was
running his large negligence practice. I served as his Managing Editor on the Trial Lawyers Quarterly for ten
years, and he taught me everything he could about writing, as we pored over articles to eliminate awkward
and wordy phrasing, redundancies, typos. And despite all his accomplishments, he said that the books we
wrote together made him proud, and made him feel like more than just a businessman, more than a legal
gladiator. He cared about the logic of the law, about the philosophy and spiritual aspirations underlying this
business we’re in.
It is a living tribute to his judge of character and his ability to impart his own scholarly
acumen to his associates that the alumni of his law firm are now running some of the most successful trial law
firms in the City.
John E. Durst, Jr.

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TABLE OF CONTENTS
TITLE PAGE I
CHAPTER 1 QUICK REFERENCE NOTES 1
1.1. Steps in evaluating the admissibility of evidence 1
1.2. Courtroom Procedure 1
1.2.1. Making the record 1
1.2.2. Objections 1
1.2.3. Rulings 2
1.3. Real Evidence 2
1.3.1. Viewing by the Jury 3
1.3.2. Foundation for Real Evidence 3
1.3.2.1. Tape Recording 3
1.3.2.2. Photograph 3
1.3.2.3. Scientific Test Results 3
1.4. Documentary Evidence 4
1.4.1. Business Records 4
1.4.2. Accident Reports 4
1.4.3. Motor vehicle accident reports (MV 104) 4
1.4.4. Police accident reports 5
1.4.5. Hospital records 5
1.4.6. Hospital bill 6
1.4.7. Doctor's office records 6
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1.4.8. X-ray 6
1.4.9. Public records 7
1.4.10. Records of a municipal corporation, the state, or a library 7
1.4.11. Articles 7
1.4.12. Parol evidence 7
1.4.13. Past recollection recorded 8
1.5. Demonstrative evidence 8
1.5.1. Courtroom Tests and Demonstrations 8
1.5.2. Illustrations, diagrams, charts and models: 8
1.5.3. Exhibiting physical condition or injuries to jury 9
1.6. Questioning witnesses 9
1.6.1. Direct examination 9
1.6.2. Cross-examination 10
1.6.3. Objections to form 10
1.7. Opinion testimony 10
1.7.1. Expert opinions 11
1.8. Impeachment 12
1.8.1. Extrinsic evidence 12
1.8.2. Collateral Matters 13
1.8.3. Prior inconsistent statements 14
1.8.4. Prior consistent statement 15
1.9. Hearsay 15
1.9.1. Admissions 15
1.9.2. Pleadings 16
1.9.3. Excited utterances 16
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1.9.4. Present sense impression 16
1.9.5. Present bodily condition 17
1.9.6. Declarations against interest 17
1.9.6.1. Declaration against penal interest 17
1.9.7. Dying declarations 17
1.9.8. Former testimony 18
1.9.9. Other Hearsay Exceptions 18
1.10. Judicial Notice 19
1.11. Privileges 20
1.12. Common Issues 21
1.12.1. Character Evidence 21
1.12.2. Similar Accidents 22
1.12.3. Custom and Practice 22
1.12.4. Subsequent remedial measures 22
1.13. Pretrial Hearings on Evidence 23
CHAPTER 1 RELEVANCY 24
1.14. Definition 24
1.15. Conditional relevancy 26
1.16. Inference on Inference 27
1.17. Dangers Outweighing Relevance 28
1.17.1. Unduly arousing emotions of prejudice, hostility, or sympathy 28
1.17.2. Creating a side issue that unduly distracts the jury from the main issue 29
1.17.3. Consuming an undue amount of time in the trial 29
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1.17.4. Unfair surprise to the opponent 29
1.17.5. Discretion of the Court 29
1.18. Limited Admissibility 29
1.18.1. Limiting Instructions 30
1.18.1.1. Insurance Coverage 30
1.18.1.2. Workers’ Compensation Coverage 30
1.18.1.3. Prior Statement 31
1.18.1.4. Statement or Report Used to Refresh Recollection 31
1.18.1.5. Conviction of Crime 32
CHAPTER 2 MAKING THE RECORD 32
2.1. Common Errors Lawyers and Witnesses Make 33
2.1.1. Overlapping 33
2.1.2. Gestures and Indications: 34
2.1.3. Names 34
2.1.4. Echoing 34
2.1.5. Exhibits 34
2.1.6. Going Off the Record 35
2.1.7. Side Bar Conferences 35
2.1.8. Reading Into the Record 35
2.2. Stipulations 35
2.3. Offer of Proof 36
2.4. Foundation 37
2.5. Objections 37
2.5.1. Timeliness 37
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2.5.2. Stating the Objection 38
2.5.3. Specificity 38
2.6. Rulings 39
2.6.1. Effect of Erroneous Ruling 39
2.6.2. Harmless Error and Constitutional Rights 40
2.6.3. Remedial Actions 40
2.6.4. Hearing of Jury 41
2.6.5. Plain Error 41
2.7. Viewing Exhibits 42
2.8. Verdict Sheets 43
2.9. Conduct of Counsel 44
CHAPTER 3 REAL EVIDENCE 46
3.1. Unique Objects 48
3.2. Tampering 49
3.3. Fungible Goods 50
3.4. View By Jury 53
3.5. Tape Recordings 53
3.6. Photographs 55
3.7. Motion Pictures and Video Pictures 56
3.7.1. Day In The Life Films 57
3.7.2. Similarity 57
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3.8. Tests In Courtroom 58
3.9. Observational Viewpoint Tests 58
3.10. Surveillance 59
3.11. Scientific Tests 59
3.11.1. Frye hearing 60
3.11.2. Blood Samples 61
3.11.3. Field Sobriety Tests 62
3.11.4. Breath Analyzers 62
3.11.5. Speed Radar 63
3.11.6. Voice Identification Tests 63
3.11.7. Voice Spectrographic Evidence 65
3.11.8. Lie Detectors 66
3.11.9. Hypnotic Recal 66
3.11.10. Hair Comparison 67
3.11.11. RIA Analysis of Human Hair 68
3.11.12. Bite Marks 68
3.11.13. DNA Evidence 68
3.11.13.1. Foundation for DNA Evidence 69
3.11.13.2. Evaluating Weight of DNA Evidence 70
CHAPTER 4 DOCUMENTARY EVIDENCE 70
4.1. Generally 70
4.2. Business Records 71
4.2.1. Illicit Enterprise 75
4.3. Best Evidence Rule 75
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4.3.1. Excuse for Failure to Produce Original 77
4.3.2. Copies Made in Regular Course of Business 77
4.3.3. Summaries of Voluminous Writings 79
4.3.4. Oral Testimony to Establish Contents of Writing 80
4.4. Accident Reports 80
4.4.1. Employee Accident Reports 80
4.4.2. Motor Vehicle Accident Reports 82
4.4.3. Police Accident Reports 83
4.4.3.1. Admission of Police Report 85
4.4.3.2. Diagram of Accident Scene 87
4.4.3.3. Absence of Statement in Police Report 88
4.4.3.4. Police Officer’s Memo Book 88
4.4.3.5. Conclusions in Police Report 88
4.4.3.6. Prior Consistent Statement 89
4.5. Hospital Records 90
4.5.1. History in Hospital Record 91
4.5.2. Hospital Records Concerning Unrelated Injuries 93
4.5.3. Hospital Records Concerning Prior Injuries 94
4.5.4. Hospital Bills 94
4.5.5. Proof of Intoxication in Hospital Records 95
4.5.6. Medical Records of Complaining Witness in Criminal Case 96
4.6. Other Medical Records 96
4.6.1. Doctor’s Office Records 96
4.6.2. Medical Examiner's Report 99
4.6.3. Autopsy Report 99
4.7. X-Rays 100
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4.8. Public Records or Documents 101
4.8.1. Definition 101
4.8.2. Common-Law Exception 102
4.8.3. Statutory Exception 102
4.8.3.1. Rationale for Exception 103
4.8.3.2. Testimony of Public Official Who Made Document 104
4.8.3.3. Personal Knowledge of Public Official 104
4.8.3.4. Entries by Private Individuals 104
4.9. Records of Municipal Corporation, the State or a Library , 104
4.10. Other Statutory Provisions 105
4.11. Miscellaneous Documents or Records 105
4.12. Lack of Record 106
4.13. Official Investigations 107
4.14. Ancient Documents 108
4.14.1. Rationale 109
4.14.2. Unavailability of Declarant 109
4.14.3. Real Estate Proceedings 109
4.14.4. Ancient Documents Statute 110
4.14.5. Other Uses 111
4.14.5.1. Proof of Boundaries 111
4.15. Public Opinion Polls 112
4.15.1. Proof of Reliability 112
4.16. Books And Articles 113
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4.17. Parol Evidence 113
4.18. Past Recollection Recorded 114
CHAPTER 5 DEMONSTRATIVE EVIDENCE 116
5.1. Illustrations, Diagrams, Charts 117
5.2. Models 118
5.3. Exhibiting Physical Condition or INjury 119
5.3.1. Criminal Cases 119
5.3.2. Civil Cases 120
CHAPTER 6 QUESTIONING OF WITNESSES 122
6.1. Direct Testimony 122
6.1.1. Narrative Testimony 122
6.1.2. Inadmissible Information During Narrative Answer 123
6.1.3. Narrative Testimony at Deposition 124
6.2. Leading Questions 124
6.2.1. Calling for Agreement 125
6.2.2. Assuming a Fact 126
6.2.3. “Did You or Did You Not?” 126
6.2.4. Rephrasing Question Objectionable as Leading 127
6.2.5. When Permissible on Direct 127
6.2.6. On Cross-Examination 127
6.2.7. On Direct of Adverse Party 128
6.2.8. Adverse Party at Deposition 129
6.2.9. On Direct of Hostile or Partisan Witness 130
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6.2.10. On Cross of Favorable Witness 130
6.2.11. Matters Not Covered on Direct 130
6.3. Form Objections 131
6.3.1. Compound 131
6.3.2. Overbroad 131
6.3.3. Confusing 132
6.3.4. Argumentative 132
6.3.5. Intimidation 132
6.3.6. Asked and Answered 133
6.4. Court’s Role 134
CHAPTER 7 OPINIONS BY LAY WITNESSES 135
7.1. Opinion In General 135
7.2. Exceptions to Rule Against Opinions 135
7.2.1. Senses 136
7.2.2. Emotional State 136
7.2.3. Speed 136
7.2.4. Intoxication 137
CHAPTER 8 OPINIONS BY EXPERT WITNESSES 138
8.1. Admissibility 138
8.2. Qualifications 140
8.3. Foundation for Expert Testimony 142
8.4. Basis For Opinion 142
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8.4.1. Testimony as to Basis of Opinion 143
8.4.2. Factual Basis for Opinion 144
8.4.3. Reliance on Extrajudicial Material 145
8.4.4. Reliance on Technical Material 145
8.4.5. Reliance on Scientific Tests or Syndromes 145
8.4.6. Witness Subject to Cross-Examination 146
8.4.7. Reasonably Relied on by Experts in the Field 146
8.4.8. Reliance on Hearsay 147
8.4.9. Facts Established by Judicial Notice 148
8.4.10. Nontreating Expert Physician 148
8.4.11. Hypothetical Question 148
8.5. Degree of Certainty Required 149
8.5.1. Speculation by Expert 151
8.6. Opinion On Ultimate Question 153
8.7. Custom and Practice 155
8.8. Impeaching Expert 156
8.8.1. Authoritative Texts 156
8.9. Economic Testimony 157
8.9.1. Present Value of Award for Loss of Future Earnings 157
8.9.2. Effect of Inflation on future damages 157
8.9.3. Value of Housewife’s Services 157
8.10. Requiring Defendant’s Opinion 158
8.11. Expert’s Failure to Testify 158
8.12. Required Pretrial Disclosure of Expert Information 158
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8.12.2. The Third Day Rule 159
8.13. Admissibility of Expert Testimony or Scientific Findings (Frye Hearing) ( 160
8.14. Daubert Analysis 161
8.14.1. General Principles 161
8.15. Criminal Cases 162
8.15.1. Notice of Intention to Offer Psychiatric Testimony in Criminal Case 162
8.15.2. Interests of Justice 164
CHAPTER 9 IMPEACHMENT 165
9.1. Impeachment 165
9.2. Scope of Cross-Examination 166
9.3. Impeaching Own Witness 167
9.4. New Matter on Cross-Examination 167
9.5. Impeaching Opposing Party Called On Direct 168
9.6. Impeaching Absent Witness 169
9.7. Extrinsic Evidence 169
9.8. Subjects of Cr0ss-Examination 170
9.8.1. Knowledge 170
9.8.2. Opportunity to Observe 170
9.8.3. Tests of Knowledge 171
9.8.4. Recollection 171
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9.8.5. Distances, Time 172
9.8.6. Narration 172
9.8.7. Influences on Perception, Recall, Testimony 173
9.9. Extrinsic Evidence 173
9.10. Errors By Witness 174
9.11. Collateral Issues 175
9.12. Mental COndition 178
9.13. Insanity Or Idiocy 179
9.14. Intoxication 179
9.15. Use of Drugs 181
9.16. Partiality 182
9.17. Interest 183
9.18. Permissible Proof 184
9.18.1. Extrinsic Evidence 185
9.18.2. Circumstances Showing Partiality 185
9.18.3. Conduct Showing Partiality 186
9.18.4. Prior or Pending Claim 186
9.19. Morality 188
9.20. Corruption 188
9.20.1. Receipt of Money for Testimony 189
9.20.2. Payment of Money to Witness 189
9.20.3. Tampering With Witness or Evidence 191
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9.21. Acts of Misconduct 191
9.21.1. Eliciting Fact From Witness 191
9.21.2. Excluding Extrinsic Evidence 192
9.22. Conviction of Crime 193
CHAPTER 10 PRIOR INCONSISTENT STATEMENTS 195
10.1. Prior Inconsistent Statements, generally 195
10.1.1. Inconsistency 196
10.1.2. Use of Prior Inconsistent Statement 198
10.1.3. Foundation 199
10.1.4. Admissibility 203
10.1.5. Use on Redirect 203
10.2. Prior Consistent Statements 204
10.3. Prompt Outcry of Sexual Assault 207
10.4. Negative Identification Testimony 207
CHAPTER 11 HEARSAY 210
11.1. Definition OF Hearsay 210
11.2. Rationale For Excluding Hearsay 210
11.3. Rationale For Hearsay Exceptions 211
CHAPTER 12 ADMISSIONS 212
12.1. Generally 212
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12.1.1. Distinguished From Declaration Against Interest 212
12.2. Requirements 213
12.2.1. Statement by a Party 213
12.2.2. Statement by Employee of Party 213
12.2.3. Use Only Against Party Who Made Statement 216
12.2.4. Statement May Be Based on Hearsay 217
12.2.5. Admission in Form of Opinion 217
12.2.6. Repeating What Was Heard 218
12.3. Examples 218
12.3.1. Admission in Hospital Record 218
12.3.2. Admission in Police Report 219
12.3.3. Statement to Insurance Company by Insured 219
12.3.4. Plea of Guilty 220
12.3.5. Statements in Pleadings 220
12.3.6. Workers’ Compensation Employer Report of Injury 221
12.3.7. Statement of Attorney 222
12.3.8. Translated Admissions 222
12.3.9. Statements Translated to Counsel 223
12.3.10. Consciousness of Guilt Evidence 224
CHAPTER 13 EXCITED UTTERANCES 226
13.1. Introduction 226
13.2. Excited Utterance 227
13.2.1. Time Interval 228
13.2.2. Response to Question 231
13.2.3. Focus on Condition of the Declarant 232
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13.2.4. Bystander’s Statement 233
13.2.5. Negligence Cases 233
13.3. Present Sense Impression 234
13.3.1. Time Interval 235
13.3.2. Corroboration Requirement 235
13.4. Present Bodily Condition 236
13.5. Exclamations of Pain 237
13.6. Declaration of Past Pain 237
13.7. Declarations of Insanity 238
CHAPTER 14 DECLARATIONS AGAINST INTEREST 240
14.1. Generally 240
14.2. Declarations Against Penal Interest 241
14.2.1. Plea Allocution 244
14.2.2. Grand Jury Testimony 246
CHAPTER 15 DYING DECLARATIONS 248
15.1. Rationale 248
15.2. Judicial Skepticism 248
15.3. Certainty of Impending Death 248
15.4. Impeachment of Victim 250
15.5. Form of Declaration 251
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15.6. Jury Instructions 251
CHAPTER 16 FORMER TESTIMONY 254
16.1. When Admissible 254
16.1.1. Statute 255
16.1.2. Type of Prior Proceeding 255
16.1.3. Grand Jury Testimony 256
16.1.4. Deposition Testimony 257
16.1.5. Right to Cross-Examine 257
16.1.6. Failure to Object at Prior Proceeding 258
16.2. Due Process Considerations 258
16.3. Unavailability of Witness 258
16.3.1. Definition 258
16.3.2. Establishing Unavailability 260
16.3.3. Witness Tampering 260
16.3.3.1. Sirois Hearing 261
16.4. Identity of Parties 262
16.4.1. Complete Identity Not Required 262
16.4.2. Statute 262
16.5. Laying the Foundation 262
16.6. Form of Earlier Evidence 263
16.7. Other Uses of Former Testimony 264
16.8. Criminal Cases 264
16.8.1. Wade Hearing 265
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16.8.2. Line-Up Identification 266
16.9. Civil Cases 267
CHAPTER 17 MISCELLANEOUS HEARSAY EXCEPTIONS 270
17.1. Right to Confront Witnesses 270
17.2. State of Mind and Statement of Intention 270
17.3. Age and Identity of Individual 271
17.4. Historical and Scientific Treatises 272
17.5. Affidavits of Service and Publication 272
17.6. Specific Documents 273
17.6.1. Itemized Bills or Invoice 273
17.6.2. Mortality Tables 274
17.6.3. Statistical Materials 275
17.6.4. Stock Market Reports and Quotations 275
17.6.5. Financial Reports 276
17.6.6. Marriage Licenses 276
17.6.7. Weather Observations 277
17.6.8. Birth and Death Certificates 277
17.6.9. Foreign Birth and Death Certificates 279
17.6.10. Census Records 280
17.6.11. Fingerprint Records 281
17.6.12. Wills 282
17.6.13. Corporate Books and Records 282
17.7. Privilege 282
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17.8. Pedigree 283
17.8.1. Rationale 283
17.8.2. Applicability 284
17.8.3. Availability of Other Evidence 284
17.8.4. Subjects of Pedigree Evidence 284
17.8.5. Declarant to Be Related 285
17.8.6. Unavailability of Declarant 286
17.8.7. Establishing Trustworthiness 286
17.8.8. Examples 286
17.8.9. Hearsay Upon Hearsay Sufficient 287
17.8.9.1. Rebutting Pedigree Evidence 287
CHAPTER 18 JUDICIAL NOTICE 289
18.1. Statute 289
18.2. Matters of Law 290
18.3. Matters of Fact 292
CHAPTER 19 PRESUMPTIONS 296
19.1. In Civil Actions and Proceedings 296
19.2. Permissive USe 297
19.3. Ownership of Automobile 298
19.4. Ownership of Property 299
19.5. Against Suicide 299
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19.6. Receipt of Mail 299
19.7. Intent 301
19.8. Innocence and Absence of Wrongdoing 301
19.9. Continuation of Conditions 301
19.10. Legitimacy 302
19.11. Marriage 302
19.12. Sanity 302
19.13. Miscellaneous 302
CHAPTER 20 PRIVILEGES 304
20.1. General Rule 304
20.2. Attorney-Client 304
20.3. Physician-Patient 308
20.4. Clergyman-Penitent 313
20.5. Psychologist-Patient 314
20.6. Husband-Wife 315
20.7. Parent-Child 316
20.8. Social Worker-Client 316
20.9. Journalists 318
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20.10. Governmental 320
CHAPTER 21 FAILURE TO PRODUCE EVIDENCE 321
21.1. Party’s Failure to Testify 321
21.2. Failure to Call Witness 321
21.3. Failure to Call Physician 322
21.4. Failure to Call Relative 323
21.5. Failure to Call Employee 324
21.6. Failure to Produce Documents 324
21.7. Destruction of Evidence 325
21.8. Prosecutors Duty 326
21.8.1. Duty to Disclose 326
21.8.2. Duty to Preserve 326
21.8.3. Defense Request 327
21.8.4. Lost Evidence 327
21.8.5. Sanction for Failure to Disclose or Preserve 328
CHAPTER 22 SPECIFIC SUBJECTS 330
22.1. Character Evidence 330
22.1.1. Criminal Cases—Good Character 330
22.1.1.1. Reputation or Opinion 330
22.1.2. Criminal Cases—Bad Character 333
22.1.2.1. Prior Bad Acts 333
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22.1.2.2. Intent 336
22.1.2.3. Common Scheme or Plan 339
22.1.2.4. Identity 341
22.1.2.5. Entrapment and Duress 342
22.1.2.6. Subsequent Acts or Subsequent Physical Conditions 344
22.1.2.7. Acting in Concert 344
22.1.2.8. Insanity 345
22.1.2.9. To Present Comprehensible Testimony 345
22.1.2.10. Use of Extrinsic Evidence 346
22.1.2.11. Use in Rebuttal 347
22.1.2.12. Evidence of Prior Abuse 348
22.1.2.13. Victim’s Prior Sexual Conduct 348
22.1.2.14. Victim's Use Of Drugs Or Alcohol 350
22.1.3. Civil Cases—Good Character 350
22.1.4. Civil Cases—Bad Character 351
22.1.4.1. Similar Acts of Carelessness 351
22.1.4.2. Prior Acts Admitted for Other Purposes 352
22.2. Habit 353
22.2.1. Routine Business or Professional Tasks 355
22.3. Similar Accidents 356
22.3.1. Similarity 357
22.3.2. Analysis of Similarity 359
22.3.3. Prior Complaints or Notice of Claim 360
22.3.4. Subsequent Accidents 362
22.3.5. Discovery Regarding Similarity 362
22.3.6. Absence of Other Accidents 363
22.3.7. Limiting Instruction 364
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22.3.8. Prior Accident by Plaintiff 364
22.4. Custom and Practice 364
22.4.1. ANSI Standards 366
22.4.2. Internal rules or manuals 366
22.5. Insurance 367
22.5.1. Collateral Source Evidence 369
22.6. Subsequent Remedial Measures 370
22.6.1. Ownership or Control 370
22.6.2. Impeachment 371
22.7. Subsequent Design Changes 371
22.7.1. Manufacturing Defect 373
22.7.2. Both Manufacturing and Design Defect 374
22.7.3. Control 375
22.7.4. Feasibility of Alternative Design 375
22.7.5. Concession of Feasibility 377
22.7.6. Impeach Credibility 378
22.7.7. Relevancy Outweighing Prejudice 379
22.7.8. Laying Foundation 379
22.7.9. To establish punitive damages 380
CHAPTER 23 MOTIONS IN LIMINE 382
23.1. Motions In Limine 382
23.1.1. Time and Form of Motion 383
23.1.2. Criminal Law 383
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23.2. Mapp Hearing (Search and Seizure) 386
23.3. Wade Hearing (Identification) 386
23.3.1. Line-Up Identification 386
23.3.2. Showup Identification 387
23.4. Huntley Hearing (Statements) 389
23.5. Sandoval Hearing (Impeachment By Prior Convictions or Bad Acts) 390
23.6. Ventimiglia Hearing (Uncharged Crimes Evidence) 391
23.7. Sirois Hearing (Witness Tampering) 391
23.8. Hinton Hearing (Close Courtroom) 392
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CHAPTER 1 QUICK REFERENCE NOTES
1.1. STEPS IN EVALUATING THE ADMISSIBILITY OF EVIDENCE
Does the evidence have a tendency to make the existence of a fact more or less probable.
If so, is that fact material to the case.
If so, is the probative value outweighed by the dangers of prejudicing or misleading the jury. 1 That is:
Does the evidence arouse passion or prejudice out of proportion to the probative value of the
evidence. 2 For example:
Does the evidence create an undue tendency for the jury to decide on an improper basis,
such as hostility or sympathy.
Is the evidence likely to confuse or mislead the jury.
3
Does the evidence create a collateral issue which requires a mini-trial in itself to prove.
If the evidence does arouse passion or prejudice, can the court give a limiting instruction to eliminate the
problem created by the evidence. 4
1.2. COURTROOM PROCEDURE
9 Once exhibits are admitted by the court, they may be reviewed by the jury, although the court may
postpone the viewing for a more convenient time in the trial. 5
6
9 Trial counsel cannot testify as to facts in a case, or placed his own credibility on the side of his client.
1.2.1. Making the record
9 The court reporter cannot accurately record overlapped argument, or gestures. Names must be spelled,
and evidence referred to by exhibit numbers.
9 Off the record, sidebar and chambers conferences will not be part of the record, so if a judicial decision is
going to be made, it must be on the record to be appealable.
9 Stipulations as the evidence should be put on the record.
1.2.2. Objections
9 Objections to questions calling for inadmissible information must be raised before the question is
1 Section 1.14
2 Section 1.17.1
3
Section 1.17.2
4
Section 1.18.1
5
Section 2.7.
6
Section 2.9
2
answered. If the question was proper, but the answer provided improper inadmissible information, a
motion to strike and instruction to disregard must be requested. 7
9 Evidence admitted without objection may be considered by the jury. 8
9 Objections must give the court sufficient information as to why the evidence is inadmissible. A general
objection can be error only if there is no grounds for the courts decision. A specific objection on the wrong
ground waives objections on other grounds.
9 Specific objections to a class of evidence do not need to be repeated. 9
9 Rulings on evidence in a jury case should be made when raised. Admissibility on condition that
subsequent facts are established may be made, 10 If the fact is not later shown, the objection must be
renewed or it is waived. 11.
9 An error by the judge is harmless unless there is a significant probability the jury would reach a different
result had the error not occurred. 12
9 Evidence admitted over objection may be rebutted. 13
9 The court may cure improperly admitted evidence by admitting other irrelevant evidence. 14 Improper
evidence elicited by the party harmed by it is invited error and not grounds for reversal. 15
1.2.3. Rulings
9 For a judge's evidentiary ruling to be appealable, there must be an offer of proof as to what the evidence
would be and why it would be relevant. Unless the court permits a summary of a witness’s testimony by
the attorney, the witness should be placed on the stand to constitute a proper offer of proof. Documentary
evidence should be marked for identification, even if the judge intends to exclude it.
9 Each ground for admission of the evidence must be articulated by the proponent. 16
9 Laying a foundation means providing the court with the factual basis to make a ruling on admissibility.
Leading questions can be used to establish foundation facts, since they are preliminary in nature. 17.
9 If the court foresees excluded or excludable evidence being heard by the jury, it may foreclose any
testimony along that line. 18
1.3. REAL EVIDENCE
9 Real evidence should not be seen by the jury until it is admitted. 19.
7
Section 2.5.1.
8
Section 2.5.2.
9
Section 2.5.3.
10
Section 2.6.
11
Section 2.6.3
12
Section 2.6.2.
13
Section 2.6.3.
14
Section 2.6.3.
15
Section 2.6.3.
16
Section 2.5.3.
17
Section 2.4.
18
Section 2.6.4.
19
Section 3.1
3
1.3.1. Viewing by the Jury
9 A jury may view a location if it would be helpful to determine a material factual issue. The jury must be
supervised by a court person, be kept together, and no discussion or argumentation by counsel is
permitted at the view. 20
1.3.2. Foundation for Real Evidence
It is identified as being connected with an issue in the case. 21 The condition must be substantially
unchanged.
If an object is unique, it can be identified by a witness familiar with it.
If an item is not unique, a chain of custody must be established by having all those who handled the item
identified it and testify it is unchanged. 22
A strict proof of chain of custody is required only when the article is fungible. 23
Reasonable limits are placed on the need to produce each link in a chain of custody of fungible items. 24
Reasonable assurances, based on the circumstances, that the item's identity and unchanged condition are
established, is sufficient.
1.3.2.1. Tape Recording
A participant testifies that it accurately and fairly reproduces the conversation. 25

26
Videotapes, illustrations, and other depictions are admitted with the same foundation. oun
1.3.2.2. Photograph
A person familiar with the subject of the photograph testifies that the photograph is a fair and accurate
depiction of the subject. 27 Videotapes, illustrations, and other depictions are admitted with the same
foundation. 28
1.3.2.3. Scientific Test Results
9 The results of scientific tests are admissible only if the procedure is generally accepted as reliable in the
scientific community. 29 The test is not whether the procedure or technique is unanimously accepted, but
whether it is generally accepted as reliable.
9 If the test is generally accepted as reliable, a foundation for the admission of the particular results of that
20
Section 3.2.
21
Section 3.1.
22
Section 3.1.
23
Section 3.1.
24
Section 3.1.
25
Section 3.3.
26
Section 3.4.
27
Section 3.4.
28
Section 3.5.
29
Section 3.11.
4
30
test must still be established.
1.4. DOCUMENTARY EVIDENCE
1.4.1. Business Records
A document is admissible as a business record if a witness testifies that:
the record was made in the regular course of business,

it is the regular course of business to make the record, and
the record was made at or about the time of the event being recorded.
31
the document offered is the original writing, or an accurate photocopy of the original.
9 Faxes and computer printouts may be admissible under the use of business record rule.
9 If a document is unavailable, it's absence must be explained, and then oral testimony may establish the
contents of the writing, as long as the witness can recite with reasonable accuracy the contents of the
document. 32
1.4.2. Accident Reports
An accident report prepared by an employee is admissible if:

33
it is established to be a business record.
9 There is a split in the Appellate Division's as to whether self-serving statements in an employee's accident
report are admissible as business records. 34
1.4.3. Motor vehicle accident reports (MV 104)
must be certified, and

35
can be admitted only by the opponent, not by the party who prepared it.
30
Section 3.11.1.
31
Section 4.3.2
32
Section 4.3.4.
33
Section 4.4.1.
34
Section 4.4.1.
35
Section 4.4.2.
5
1.4.4. Police accident reports
Admissible as business records to the extent of the police officers own physical observations, admissions
by any party, or prior inconsistent statements by a non-party witness. 36
For a statement in the police report to be admitted:
The source of the information in the report must be specifically stated, either in the report or by the police
officer on the stand. Vague identification of the source is not sufficient. Exculpatory statements by a party
are not admissible. 37
Diagrams in a police report are admissible if:
based on the officer's personal observations, as long as the observations were made prior to the movement
of items (vehicles) in the scene. 38
9 Conclusions or opinions of the police officer are not admissible. Evaluations of credibility by the police
officer are not admissible. Opinions as to how an accident occurred are not admissible, and opinions as to
contributing factors causing an accident are not admissible, unless based on the police officers personal
observations. 39
9 Opinions of the officer may be admissible if based on expert analysis of observable physical evidence. 40
1.4.5. Hospital records
A hospital record is admissible if:
It is subpoenaed
The original, or a certified copy
41
Sent to the medical records clerk of the court in a sealed envelope.
9 Statements in the record as to the cause of an injury are not admissible unless needed by the medical
provider to diagnosis or treat the patient. 42
9 A statement in the hospital record must be specifically attributed to a party, either in the record or by a
witness to the statement. 43
A blood test in a hospital record is admissible if:
36
Section 4.4.3.
37
Section 4.4.3.1.
38
Section 4.4.3.2
39
Section 4.4.3.5.
40
Section 4.4.3.5.
41
Section 4.5.
42
Section 4.5.1.
6
It is the original, or a certified copy

44
the blood test conducted was needed for the care and treatment of the patient.
1.4.6. Hospital bill
A hospital bill is admissible and prima facie evidence of the facts contained if:
it is certified by the hospital's billing department as correct, and

45
it states that each of the items was necessarily supplied, and the amount charged is reasonable.
1.4.7. Doctor's office records
A doctor's office records are admissible if:

46
It is established they are business records.
9 Medical opinions and conclusions in the office records are admissible if germane to diagnosis and
treatment of the patient. 47 Illegible or cryptic notations are not admissible, absent explanation by the
creator or his staff. For an admission in such medical records to be admissible, the source must be clearly
attributable to a party.
9 A Medical Examiner's report and an autopsy report are admissible if business records.
1.4.8. X-ray
An x-ray is admissible if:
Identifying information is inscribed on the x-ray,

The proponent serves a notice of intention to offer the x-ray at least ten days before trial, saying the x-ray
is available for examination at the office of the proponent, and
An affidavit of a doctor is provided:
identifying the x-ray and
attesting to the information inscribed, and
48
that he would so testify at trial to the same information if called as a witness.
Even without service of a notice of intention to offer an x-ray, an x-ray may be admitted upon the same
foundation as any other documentary evidence. 49
43
Section 4.5.1.
44
Section 4.5.5.
45
Section 4.5.4.
46
See supra.
47
Section 4.6.1.
48
Section 4.7.
49
Section 4.7.
7
1.4.9. Public records
A public record is admissible if:
The public official is required or authorized to make a certificate or affidavit to a fact ascertained or an act
performed by him.
The certificate or affidavit is prima facie evidence of the facts stated. 50
9 Such prima facie evidence must be rebutted for the jury to find otherwise.
If not a certificate or an affidavit, a public record is admissible under common law as long as:
made in the performance of a public duty, and

kept by an authorized public official.
51
9 Such a document is some evidence, but the jury is free to disbelieve it even though not rebutted.
9 The public officer must have had personal knowledge of the fact recited in the document. 52
9 The public officer or subordinate does not need to testify to admit the document. 53.
1.4.10. Records of a municipal corporation, the state, or a library
Such records are prima facie evidence if:

54
The records are certified or authenticated by the entity providing the record.
1.4.11. Articles
55
9 Articles from technical journals are inadmissible as proof of the facts contained, since they are hearsay.
1.4.12. Parol evidence
9 Oral testimony as to the content of a writing is inadmissible if the writing indicates it is the final
expression of the agreement. 56
50
Section 4.8.3.
51
Section 4.8.3.
52
Section 4.8.3.3.
53
Section 4.8.3.2
54
Section 4.9.
55
Section 4.16.
56
Section 4.17.
8
1.4.13. Past recollection recorded
A memorandum of a fact or observation by a witness is admissible if:
The witness lacks present recollection,

The witness observed the matter,
Recorded it when his recollection was fresh, and
The record correctly represents his knowledge and recollection when it was made.
9 Such a memorandum is not evidence of the facts contained, but supplements the testimony of the witness.
1.5. DEMONSTRATIVE EVIDENCE
1.5.1. Courtroom Tests and Demonstrations
The court has discretion to permit demonstrations and courtroom experiments as long as:
the conditions are sufficiently similar to the time of the incident to make the result relevant. 57
The value of the evidence outweighs the potential for misleading, confusing, diverting, or otherwise
prejudicing the jury. 58
1.5.2. Illustrations, diagrams, charts and models:
A foundation must be established by a witness stating:
It shows a relevant place or item;

The witness knows the place or item;
It is a fair and accurate depiction of the place or item;
It would be helpful to use it to explain the witness’s testimony;
It has been marked for appellate purposes.59
57
Section 5.1.
58
Section 5.1.
59
Section 5.2.
9
1.5.3. Exhibiting physical condition or injuries to jury
9 A criminal defendant may display a physical characteristic to the jury without taking the stand or
submitting to cross-examination.60
9 A plaintiff in a civil case may exhibit his injury to the jury.61
9 The trial judge has considerable latitude to determine whether such a display would assist the jury in
understanding the issues in the case.62
1.6. QUESTIONING WITNESSES
9 The court has discretion whether to require questions designed to elicit particular information, or to
permit a more open ended narration by the witness. The criteria is largely the danger of inadmissible
testimony coming out to the jury without warning to opposing counsel.63
1.6.1. Direct examination
9 Leading questions are those which suggest or hint at the answer desired. Leading questions are not
generally permitted on direct, although appellate courts leave the matter to the discretion of the trial
court.64
9 Questions calling for a "yes" or "no", questions in which the attorney states facts upon which no evidence
has been proven, or questions which require the witness to assume that a fact is true, are leading
questions.65
The court may permit leading questions concerning
introductory matter, such as directing a witness to a topic, a time, place, or occasion; or
to assist the witnesses recollection of facts such as dates and names; or
to help children and other witnesses with special problems testifying. 66
9 Leading questions may be used on cross-examination. Questions calling for a "yes" or a "no", such as
questions starting with "Isn't it a fact that", or "isn't it true that", are permissible on cross-examination.67
60
Section 5.3.1.
61
Section 5.3.2.
62
Section 5.3.2
63
Section 6.1.2.
64
Section 6.2
65
Section 6.2.
66
Section 6.2.5.
67
Section 6.2.6.
10
9 The questioner on cross-examination may interrupt a witness giving an unresponsive answer. The judge
may be requested to admonish any witness who refuses to provide a responsive answer to a "yes" or "no"
question.68
9 A witness with any reason for bias, hostility, or favoritism against the questioner, such as an adverse party
called on direct, may be questioned as if on cross-examination.69
1.6.2. Cross-examination
9 Cross-examination is limited to matters brought out on direct and the implications flowing from those
matters.70
9 Cross-examination may cover matters affecting credibility.
9 New matter brought out on cross must be treated as if on direct, making leading questions objectionable.71
1.6.3. Objections to form
Compound question: requires separate answers to separate parts of the question.72

Overbroad: calls for not only relevant information, but also irrelevant information.73
Confusing: Indefinite information is called for.
Argumentative: the question cannot state why the questioner disputes the witness’s testimony; argument
is reserved for summation. A degree of argumentativeness is permissible.74
Intimidation: expressions of reproach are objectionable.75
Asked and answered: questions fully answered without an appearance of evasion cannot be repeated in the
hope the witness will get confused or intimidated. The court may permit repeating a question in a
different form to probe a tentative, evasive, or incomplete answer.76
9 The court has wide discretion to determine whether an answer to a question is likely to help or mislead the
jury.77
1.7. OPINION TESTIMONY
9 A witness may state what he perceived. 78
68
Section 6.2.7
69
Section 6.2.7.
70
Section 6.2.11.
71
Section 6.2.11.
72
Section 6.3.1.
73
Section 6.3.2
74
Section 6.3.4.
75
Section 6.3.5.
76
Section 6.3.6.
77
Section 6.4.
11
9 Only when it is impossible to describe what was perceived without stating an opinion or impression may a
lay witness state an opinion.79 Analogies ("it smelled like…"), emotional states ("he was angry"), the speed
of an automobile ("very fast", "slowly"), and intoxication are common examples.
1.7.1. Expert opinions
9 Expert testimony is only admissible when a jury needs information on a subject which is beyond the
everyday experience of the average juror.80
9 An expert witness may clarify an area of which the jury has general awareness.81
9 Expert testimony may be admitted to dispel misconception that jurors might possess.82
9 The court may question the jurors to determine whether expert testimony will be useful.83
The foundation for expert testimony:
A lay juror would need special knowledge, skill, or training beyond ordinary experience to reach an
opinion or conclusion.
The witness has special knowledge or skills on the subject.
The witness has a reasonable degree of certainty regarding his opinion or conclusion.84
Permissible sources of information for an expert on are:
Facts personally observed.

Facts communicated by another expert that are reasonably relied on by experts in the field.
Evidence admitted in the trial which is either overheard by the witness or conveyed to him in a
hypothetical question.85
9 If the expert relies on facts personally known but not contained in the record, he must testify to
those facts before rendering an opinion.86
9 If the expert relies on an out of court interview, the testimony may be conditioned on the hearsay
declarant testifying at trial.87
9 The expert may not read portions of a book since the book is hearsay. 88
9 An expert must first admit the authoritativeness of a book or treatise before being questioned
with information in the book.89
78
Section 7.1.
79
Section 7.2.
80
Section 8.2.
81
Section 8.1.
82
Section 8.1.
83
Section 8.2.
84
Section 8.3.
85
Section 8.4.
86
Section 8.4.2.
87
Section 8.4.6.
88
Section 8.4.8.
89
Section 8.8.1.
12
9 "A reasonable degree of certainty" expresses the level of certainty required by the expert, but it is
not necessary to use those words. "Could have" or "might have" language in expressing an opinion may be
acceptable if the totality of the opinion conveyed gives equivalent assurances of reasonable certainty.90
9 An independent, disinterested witness may not be required to give an expert opinion. A
defendant though must respond to all questions concerning relevant information he possesses, including
his expert knowledge.91
9 Adequate pretrial disclosure of expert witness information in civil cases may be excused for good
cause.92
9 In a criminal case, the court may permit a defendant to offer expert testimony in the interests of
justice.93
1.8. IMPEACHMENT
9 Cross-examination is limited to matters covered on direct, and inferences drawn therefrom.94

9 The credibility of a witness may also be covered on cross.
9 The court has discretion in the method and duration of cross-examination.95
9 Once a factual error is shown, a reason for the error, such as lack of knowledge, inability to observe or
recall, partiality, corruption or dishonesty, may be considered.96
The witness may be cross-examined to show he
Lacks the skills he claims or needs

o E.g., the witness’s abilities to judge time may be tested.97
Lacks the experience he claims or needs
Lacks the knowledge he claims or needs. 98
o Tests of the witness’s knowledge may be performed.99
o Tests of the witness’s recollection may be performed.100
1.8.1. Extrinsic evidence
Extrinsic evidence, such as an admissible document or the testimony of another witness, may be
admitted to rebut a witness’s testimony on:
90
Section 8.5.
91
Section 8.10.
92
Section 8.12.1
93
Section 8.15.2.
94
Section 9.2.
95
Section 9.2.
96
Section 9.9.
97
Section 9.8.5.
98
Section 9.8.1.
99
Section 9.8.3.
13
Any testimony concerning a material issue to the case; 101 or

To show the witness suffers from some mental defect or impairment which would effect observation,
recall, or narration, such as intoxication at some relevant time.102
To show partiality, bias, interest or motive, 103 i.e., that he favors or disfavors one side over another; or that
he has an interest or will benefit in some manner from a particular outcome of the case.104
o The witness should first be asked about a particular fact tending to show partiality, bias or
interest. If the witness admits the fact, extrinsic evidence cannot be used to prove it. If he denies
the fact, any witness or other extrinsic evidence may be called to establish the fact.105
Any relationship, such as family, sexual, friendship, employment, or other compensation
are the common circumstances from which partiality can be inferred.106
Conduct inferring partiality may be established, such as speaking with one party's attorney but not
another.107
Payment or receipt of money from a party may be inquired into.108
Tampering with a witness or evidence may be proven by extrinsic evidence.109
Conviction of a crime may be proven either by cross-examination or a record of the conviction.110
1.8.2. Collateral Matters
If a fact could not have been admissible in evidence to prove an issue in the case, it is a collateral
issue.
Extrinsic evidence cannot be admitted to contradict a witness's testimony concerning a collateral
matter.111
Where the question seeks solely to impeach the witness’s credibility, the questioning is collateral,
and the witness’s denial of the act cannot be rebutted by extrinsic evidence.112
A witness may be cross-examined concerning any specific immoral, vicious, or criminal acts
bearing on his credibility.
In civil cases, evidence of the moral character of a party is generally not allowed.113
100
Section 9.8.4.
101
Section 9.7.
102
Section 9.11.
103
Section 9.7.
104
Section 9.17.
105
Section 9.18.1.
106
Section 9.18.2
107
Section 9.18.3.
108
Section 9.20.1.
109
Section 9.20.3.
110
Section 9.22.
111
Section 9.11.
112
Section 9.11.
113
Section 9.21.
14
Specific acts of misconduct cannot be proven by extrinsic evidence. If the witness denies the act,
evidence cannot be introduced solely to contradict him.114
1.8.3. Prior inconsistent statements
Two statements are inconsistent if they create different impressions.115 Evasive answers, lack of
recall, or silence, may make a statement inconsistent.
If the witness does not recall a fact, a prior statement where he did recall the fact is not
inconsistent.116
Prior inconsistent statements can be used in three ways:
To refresh the recollection of the witness.

A written prior inconsistent statements, once authenticated, can be offered as extrinsic evidence that the
statement was made.
A witness can be called to testify that a prior inconsistent oral statement was made.117
Foundation for prior inconsistent statement:
If oral, the witness must be asked whether he made a statement at a particular time and place, and to a
particular person.
If written, the witness must be shown or read the statements, and it must be marked in identification. If
signed by the witness, the signature must be shown to him.118
If the witness admits signing the statement, inconsistent portions may be admitted in evidence on the
issue of credibility. If he denies signing the statement, the genuineness of the signature may be proven.119
9 Failure to raise a specific objection to lack of foundation for use of the prior inconsistent
statements waives the objection.120
9 A prior inconsistent statement by a party is admissible as an admission.
9 All other inconsistent statements are admitted to impeach the credibility of the witness, not for
the truth of the assertion in the prior statement.121
On redirect, any portion of a prior inconsistent statement that explains the inconsistency may be read.122
114
Section 9.21.
115
Section 10.1.1
116
Section 10.1.1.
117
Section 10.1.2.
118
Section 10.1.3.
119
Section 10.1.3.
120
Section 10.1.3.
121
Section 10.1.4.
15
1.8.4. Prior consistent statement
9 A prior consistent statement cannot be used to bolster a witness is testimony.
A prior consistent statement is only admissible if the testimony is a attacked as a "recent fabrication",
meaning that the questioner suggests that the witness changed his story to meet the needs of the case.123
1.9. HEARSAY
9 Any statement made by someone or something who is not on the stand is hearsay, if offered to prove the
truth of the matter stated.124
1.9.1. Admissions
9 Any act or declaration of a party is an admission and is admissible against him at trial.125
9 An admission is admissible even though it was based on hearsay information.126 It is not necessary that the
person making the admission have first-hand knowledge of what he is admitting.127
9 An employee’s statements are admissible as admissions only if it was within the scope of authority for the
employee to make statements for his employer.128
9 Statements in a business record are not admissions unless the employees who prepared the record has an
identity of interest with the employer.129
9 The Second Circuit takes the more straightforward approach that if the employees statements are adverse
to his own interest, as well as his employer's, there is adequate reliability to bind the employer. 130
9 Admissions contained in documents such as hospital records and police reports are admissible if
specifically attributable to a party.131
122
Section 10.1.5.
123
Section 10.2.
124
Section 11.1.
125
Section 12.1.
126
Section 12.2.1.
127
Section 12.2.4.
128
Section 12.2.2.
129
Section 12.2.2.
130
Section 12.2.2.
131
Section 12.3.1.
16
1.9.2. Pleadings
Pleadings are formal judicial admissions which can be read to the jury without having been
formally introduced in evidence. Pleadings in a different case are informal judicial admissions and admissible if
signed by the party or his counsel.132
Admissions by counsel are admissible against a party, even if made during settlement
negotiations.133
Acts indicating consciousness of guilt, such as full statements or alibis, tampering with witnesses
or evidence, may be admissible as an admission by conduct.134
1.9.3. Excited utterances
Foundation for admission of an excited utterance:
An impulsive and unreflecting response to an event;

Made at or near the time of the event.135
9 A bystander's statement may be admitted as an excited utterance.136
1.9.4. Present sense impression

137
A statement is admissible as a present sense impression if it is:
A description of events ;
Made contemporaneously with the observation; and
Is sufficiently corroborated by other evidence,
9 The time period between what is seen and what is described must be sufficiently close that there is no
time for reflection.138
132
Section 12.3.5.
133
Section 12.3.7.
134
Section 12.3.10.
135
Section 13.1.
136
Section 13.2.4.
137
Section 13.3.
17
1.9.5. Present bodily condition
Statements concerning existing pain, suffering or physical condition are not admissible in New
York unless they are:
Made to a physician
For the purpose of obtaining medical treatment or advice.139
9 Manifestations of pain, such as screams, groans, or other involuntary expressions are admissible. 140
1.9.6. Declarations against interest
Foundation for a declaration against interest:
The declarant is unavailable.

If the declaration was against the pecuniary, proprietary or penal interest of the declarant.
The declarant had competent knowledge of the facts.
There was no probable motive to misrepresent the facts.141
1.9.6.1. Declaration against penal interest
The foundation for a declaration against penal interest is:
The declarant is unavailable.

The declarant was aware at the time he made the statement that it was contrary to his penal interest.
The declarant had competent knowledge of the facts.
There is sufficient evidence independent of the declaration to assure its trustworthiness and reliability.142
1.9.7. Dying declarations
138
Section 13.3.1.
139
Section 13.4.
140
Section 13.5.
141
Section 14.1.
142
Section 14.2.
18
The court must conclude that at the time of the statement, there was clear proof showing:
The certainty of speedy death; and

That the declarant had no hope of recovery.143
9 The declarant's suspicions, opinions or conjecture are inadmissible.144
1.9.8. Former testimony
Testimony given under oath and subject to cross-examination in another proceeding or trial is
admissible if :
The witness is unavailable;

Was a party to the prior proceeding or trial; and
The subject matter of the two proceedings was substantially the same.145
9 Evidence must be presented as to the efforts made to obtain the witness' presence
at trial.
9 Former testimony may be admissible under other hearsay exceptions, such as an

admission or declaration against interest.
1.9.9. Other Hearsay Exceptions
9 Treatises may be admissible to prove the reputation of historical facts of a general and public nature. 146
147
9 Affidavits of service.
148
9 Itemized Bill of Invoice: The bill must be:
Certified by the person or entity rendering the services or repairs
State that "no part of the payment will be refunded to the debtor."
State that "the amounts itemized are the usual and customary rates charged for such services or repairs;
and
Be served upon each party at least ten days before trial, together with a Notice of Intention to Introduce
143
Section 15.3.
144
Section 15.5.
145
Section 16.1.
146
Section 17.4.
147
Section 17.5.
148
Section 17.6.1.
19
the Bill.
9 Only one bill can be introduced from the same entity.
9 Life expectancy tables. 149

150
9 Stock market reports and quotations.
9 Financial reports not prepared for litigation. 151

152
9 Original certificate of marriage.
9 US weather bureau record of observations of the weather. 153

154
9 Certified copies of birth and death records.
155
9 Certificate of population.
156
9 Certificate of the custodian of fingerprints that records show previous convictions.
157
9 Certified copy of a will previously proved.
158
9 Financial books and records of corporation, when used against the corporation.
9 Evidence of family relationship. 0
1.10. JUDICIAL NOTICE
The Court is required to take notice of: 159
Laws and statutes of New York State

Official compilations of codes, rules and regulations, and local laws, of New York State.
Laws of other states.
Laws of foreign countries, if notice of intention to request it has been served.
Administrative Code of the City of New York.
149
Section 17.6.2.
150
Section 17.6.4.
151
Section 17.6.5.
152
Section 17.6.6.
153
Section 17.6.7.
154
Section 17.6.8.
155
Section 17.6.10.
156
Section 17.6.11.
157
Section 17.6.12.
158
Section 17.6.13.
159
Section 18.2.
20
Regulations of the U.S. Occupational Safety and Health Administration, the Consumer
Products Safety Commission, the National Highway Traffice Safety Administration, on
request and receipt of adequate information.
Court may take judicial notice of:
Laws of foreign countries.

Court files or official records of the Court.
Facts within the judge's personal knowledge.
U.S. patents.
Public records.
Facts of common knowledge in the community. 160
Facts ascertained by the Court from an indisputable source.
1.11. PRIVILEGES
Attorney-client privilege. 161

The statutory requirements are:
There must have been communication between a client and his attorney or the client
and an employee of the attorney;
The communication must have been made while the attorney was employed in that
capacity by the client; and
The communication must have been confidential in character
Physician-patient. 162
The four requirements for the physician-patient privilege
are:
The medical professional must have been licensed to practice his profession;
The medical professional must have attended to the patient in his professional capacity;
The patient must have communicated the information to the medical professional
during the course of being attended; and
It must have been necessary for the patient to communicate the information to the
medical provider.
160
Section 18.2.
161
Section 20.2.
21
Psychologist-patient. 163
Husband-wife. 164
Parent-child. 165
Social worker-client. 166
Journalists. 167
Governmental. 168
1.12. COMMON ISSUES
1.12.1. Character Evidence
General rule for civil and criminal cases: It is improper to prove that a person did
an act on a particular occasion by showing that he did a similar act on a different, unrelated
occasion. 169
Exceptions, such as habit, are few. 170
Evidence of a collateral criminal act is admissible where it is relevant to establish:

171
motive;
intent; 172
the absence of mistake or accident; 173
a common scheme or plan embracing the commission of two or more crimes, so related to
each other that proof of the one tends to establish the other; 174or
162
Section 20.3.
163
Section 20.5.
164
Section 20.6.
165
Section 20.7.
166
Section 20.8.
167
Section 20.9.
168
Section 20.10.
169
Section 22.1.2.1.
170
See section 22.2.
171
Section 22.1.2.1.
172
Section 22.1.2.3.
173
Section 22.1.2.2.
22
the identity of the perpetrator of the crime charged. 175
1.12.2. Similar Accidents
Prior similar accidents and prior complaints are admissible to prove 176
The existence of a defect or dangerous condition

Notice
9 The foundation includes testimony by the prior injured person or complainant to

establish that the essential circumstances or conditions of the two accidents
were, although not necessarily precise in every detail, similar. 177
9 Subsequent similar accidents and complaints are admissible to prove the
existence of a dedfect or dangerous condition, upon the same foundation. 178
1.12.3. Custom and Practice
9 A fairly well defined custom in the same trade or business as the defendant may be
admissible, through testimony of an expert familiar with it, or as reflected in ANSI
standards or other industry standards. 179
1.12.4. Subsequent remedial measures
Subsequent repairs or remedial actions are not admissible, except to prove: 180
9 Ownership or control, if that is an issue

9 For impeachment of a witness's testimony on a fact
174
Section 22.1.2.3.
175
Section 22.1.2.4.
176
Section 22.3.
177
Section 22.3.1.
178
Section 22.3.4.
179
Section 22.4.1.
180
Section 22.6.
23
Subsequent design changes are not admissible, except to prove: 181
9 A manufacturing defect
9 The feasibility of an alternative design, where that is at issue.
9 To impeach a witnesses testimony on a fact.
1.13. PRETRIAL HEARINGS ON EVIDENCE
Pretrial hearings are frequently necessary in criminal trials:
9 To suppress improperly obtained evidence. 182

9 To suppress line-up or show-up identification evidence. 183
9 To suppress statements made by a defendant. 184
9 To preclude use of prior convictions and misconduct on cross-examination. 185
9 To have evidence of uncharged crimes admitted. 186

9 To show that a defendant has tampered with a witness. 187
9 To close the courtroom to the public. 188
181
Section 22.7.
182
Section 23.2.
183
Section 23.3.
184
Section 23.4.
185
Section 23.5.
186
Section 23.6.
187
Section 23.7.
188
Section 23.8.
24
CHAPTER 1 RELEVANCY
1.14. DEFINITION
With "direct” evidence, the trier of fact hears the statement by a witness, sees an object, or
reads a document, and from that may draw an inference as to the truth of the asserted fact. With
“circumstantial” evidence, an additional inference must be drawn from the statement, viewing, or reading to
reach the fact.
Usually items of evidence are offered one at a time, and no individual item furnishes
conclusive proof of the fact to be inferred. Most cases are established by an accumulation of bits of proof
which would not be enough if taken alone.
Thus, there is a difference between what is relevant and what is sufficient. The trial judge
decides what is relevant, the jury decides whether the evidence is sufficient. The judge must decide whether
189
each bit of evidence has enough rational connection with an issue to contribute to the answer.
Evidence is relevant if it has any tendency in reason to make the existence of any material fact
more probable or less probable than it would be without the evidence. 190
Other courts say that the most acceptable “test of relevancy is whether a reasonable man
might believe the probability of the truth of the consequential fact to be different if he knew of the proferred
evidence.” 191
The judge must ask whether a reasonable juror would believe that the evidence makes the
truth of the fact to be inferred more probable; if the answer is yes, the evidence is relevant. 192
189
United States v. Pugliese, 153 F.2d 497, 1945 U.S. App. LEXIS 2379 (2d Cir. 1945).
190
People v. Wilder, 93 N.Y.2d 352, 712 N.E.2d 652, 1999 N.Y. LEXIS 819, 690 N.Y.S.2d 483 (1999);
People v. Scarola, 71 N.Y.2d 769, 777–778, 525 N.E.2d 728, 530 N.Y.S.2d 83 (1988); People v. Lewis,
69 N.Y.2d 321, 325, 506 N.E.2d 915, 514 N.Y.S. 205 (1987); Burgel v. Burgel, 141 A.D.2d 215, 224–225,
33 N.Y.S.2d 735, 1988 N.Y. App. Div. LEXIS 14916 (2d Dep't 1988); Proposed Code of Evidence for
State of New York, § 401 [noting that its definition would “codify” existing law].
191
1 Weinstein, Evidence ¶ 1401 [07],401–427; see also Thayer, A Preliminary Treatise on Evidence at
Common Law, pp. 264–265 (1898); McCormick, Evidence, § 185, p. 437 (2d ed. 1972).
192
McCormick, Evidence, § 185, p. 438 (2d ed. 1972).
25
Evidence is “material” if it is offered to prove a proposition which is at issue. The pleadings
and the substantive law determine what is “at issue,” although other issues beyond those in the pleadings may
be at issue, such as the credibility of witnesses.
Evidence is logically relevant if it has a tendency to establish the proposition which it is
offered to prove. 193
Evidence may be “irrelevant” either because it does not tend to establish the proposition
which it is offered to prove, or because the proposition which it is offered to prove is not one which is
properly provable in the case.
If an item of evidence tends to prove or disprove any proposition which is provable in the
case, or if it forms a further link in a chain of proof, which is provable in the case, then the item of evidence has
194
probative value.
However, some facts which are not really in dispute are admissible, Evidence of events may
be admissible as background to explain a material fact or to provide a complete picture of the events. 195
Determinations of relevancy rest largely in the discretion of the trial court. 196 Such
determinations, and conduct of the trial, are left to the discretion of the trial court so as to avoid undue
emphasis on matters not really in issue. 197
In New York, the general rule is that all relevant evidence is admissible unless its admission
violates some exclusionary rule. 198
Not all relevant evidence is admissible as of right, however. Even where technically relevant
evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative
193
McCormick, Evidence, § 185, p. 435 (2d ed. 1972); People v. Yazum, 13 N.Y.2d 302, 196 N.E.2d 263,
246 N.Y.S.2d 626 (1963) (“evidence is relevant if it tends to convince that the fact sought to be
established is so. That the evidence is equivocal or that it is consistent with other suppositions does not
render it inadmissible”).
194
James, Relevancy, Probability and Law, 29 Calif. L. Rev. 689 (1941).
195
People v. O'Grady, 1999 N.Y. App. Div. LEXIS 7851 (3d Dep't 1999).
196
Price v. New York City Housing Authority, 92 N.Y.2d 553; 706 N.E.2d 1167; 1998 N.Y. LEXIS 4046;
684 N.Y.S.2d 143 (1998).
197
Radosh v. Shipstad, 20 N.Y.2d 504, 231 N.E.2d 759, 285 N.Y.S.2d 60 (1967).
198
People v. Wilder, 93 N.Y.2d 352, 712 N.E.2d 652, 1999 N.Y. LEXIS 819, 690 N.Y.S.2d 483 (1999);
People v. Scarola, 71 N.Y.2d 769,777–778, 525 N.E.2d 728, 530 N.Y.S.2d 83 (1988); People v. Alvino,
25
26
value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the
jury. 199
The court must determine whether the relevancy of the evidence is outweighed by the
likelihood that the introduction of such evidence would confuse or mislead the jury. 200
For example, where a plaintiff in a medical malpractice case alleged her psychotherapist
engaged in improper sexual relations with her, plaintiff sought permission to call four of defendant's former
patients, who also claimed to have been sexually involved with defendant, in an attempt to establish that
defendant repeatedly formed sexual liaisons with his patients and that each relationship followed the same
pattern. It was held that the trial court properly denied this motion based on the rule that evidence of prior,
similar acts is inadmissible to prove that defendant perpetrated the same act on a later, unrelated occasion. 201
The testimony was too collateral to the issue at trial, and highly prejudicial.
1.15. CONDITIONAL RELEVANCY
An item of information is conditionally relevant, as distinguished from logically relevant, if its
relevancy depends upon the existence of a preliminary fact.
The court has control over the order of proof; therefore, the judge may insist that the
condition be established first, or he or she may admit the evidence and allow the condition to be established
subsequently. 202
71 N.Y.2d 233, 242, 519 N.E.2d 808, 525 N.Y.S. 7 (1987); Ando v. Woodberry, 8 N.Y.2d 165, 168 N.E.2d
520, 203 N.Y.S.2d 74 (1960).
199
Coopersmith v. Gold, 89 N.Y.2d 957; 678 N.E.2d 469; 1997 N.Y. LEXIS 90; 655 N.Y.S.2d 857 (1997);
People v. Scarola, 71 N.Y.2d 769, 777–778, 525 N.E.2d 728, 530 N.Y.S.2d 83 (1988); People v. Alvino,
71 N.Y.2d 233, 242, 519 N.E.2d 808, 525 N.Y.S. 7 (1987); People v. Acevedo, 40 N.Y.2d 701, 704, 358
N.E.2d 495, 389 N.Y.S. 811 (1976).
200
201
see § 22.1.4.1
202
See Fed. R. Evid., § 104(b).
26
27
As long as the court believes that the proponent has or will establish the condition to the
satisfaction of a reasonable juror, the evidence may be submitted to the jury. The jury is instructed to
disregard the evidence if they find against the existence of the conditional fact.
If there is insufficient evidence for the jury to find that a fact was established, the judge may
withdraw the matter from the jury’s consideration. If the judge makes a preliminary determination that the
foundation evidence is sufficient to support a finding that the condition was fulfilled, the evidence is
admissible. However, he jury may conclude in their deliberations that the condition was not established and
disregard the evidence.
1.16. INFERENCE ON INFERENCE
It is often said that an inference cannot be based on another inference. 203
More properly, the rule means that an inference cannot be drawn if it is based on a
conjecture. A reliable chain of inferences must be created before the circumstantial evidence is admissible. 204
In the end, it is a question whether common human experience would lead a reasonable man,
putting his mind to it, to reject or accept the inferences asserted for the established facts. 205
To convict a person of a crime based on circumstantial evidence, the circumstances must be
satisfactorily established and must be of a kind which excludes to a moral certainty every other hypothesis
except that of the guilt of the accused. 206
When the state of an object at a particular time is an issue, evidence of its condition before
and after that time is relevant. 207
203
People v. Kennedy, 32 N.Y. 141, 146 (1865).
204
Richardson, Evidence, § 148; Wigmore, Evidence, § 41; People v. Razezicz, 206 N.Y. 249, 99 N.E.
557 (1912).
205
People v. Wachowicz, 22 N.Y.2d 369, 372, 239 N.E.2d 620, 622, 292 N.Y.S.2d 867 (1968).
206
People v. Weiss, 290 N.Y. 160, 163, 48 N.E.2d 306, 307–308 (1943); People v. Woltering, 275 N.Y.
51, 61, 9 N.E.2d 774, 777–778 (1937).
207
Keohane v. N.Y. Cent. R. Co., 418 F.2d 478 (2d Cir. 1969) (witnesses’ testimony concerning defective
elevator’s continuing condition).
27
28
1.17. DANGERS OUTWEIGHING RELEVANCE
All facts having rational probative value are admissible unless there is some specific rule
forbidding their use. 208

209
Relevant evidence may nevertheless be excluded if it is outweighed by other factors.
Countervailing factors which may cause the court to exclude relevant evidence have been categorized by
commentators:
1, The danger that the evidence may unduly arouse the jury's emotions of
prejudice, hostility, or sympathy;
2. The evidence may prompt rebuttal evidence which creates a side issue
that unduly distracts the jury from the main issue;
3. The likelihood that the evidence and its rebutting evidence will consume
an undue amount of time in the trial; and
4. The danger of unfair surprise to an opponent who had no reason to

anticipate the proof and was unprepared to meet it.
1.17.1. Unduly arousing emotions of prejudice, hostility, or sympathy
Passion or prejudice out of proportion to the probative value of the evidence may not be
aroused.
Of course, the fact that evidence damages an opponent’s case does not mean that it is unduly
prejudicial. Good evidence always damages the opposing party’s case. “Prejudice” means an undue tendency to
cause the jury to decide on an improper basis, usually an emotional one.
In reaching a decision whether to exclude evidence because of unfair prejudice, the
effectiveness or lack of effectiveness of a limiting instruction should be considered. The availability of other
proof may also be an appropriate factor to weigh.
208
Ando v. Woodberry, 8 N.Y.2d 165, 167, 168 N.E.2d 520, 203 N.Y.S.2d 74 (1960).
209
People v. Harris, 209 N.Y. 70, 82, 102 N.E.2d 546 (1913); People v. Nitzberg, 287 N.Y. 183, 189, 38
N.E.2d 490 (1941); People v. Feldman, 296 N.Y. 127, 137, 71 N.E.2d 433 (1947).
28
29
1.17.2. Creating a side issue that unduly distracts the jury from the main issue
The court must determine whether the relevancy of the evidence is outweighed by the
likelihood that the introduction of such evidence would confuse or mislead the jury. 210
In determining the danger of confusion of issues, the court may consider whether a limiting
instruction as to the proper use of the evidence will correct the problem.
1.17.3. Consuming an undue amount of time in the trial
The objection that the evidence creates collateral issues is a practical one; it is “a concession
to the shortness of life.” 211
1.17.4. Unfair surprise to the opponent
This factor is largely cured by modern use of discovery. Where unfair surprise exists alone,
without any other danger, a continuance may be an appropriate remedy, rather than exclusion of the evidence.
1.17.5. Discretion of the Court
Thus, the judge is required to balance intangibles, such as the probative value and the
probative dangers. Because there is such a potential for differing values between judges, judges are given
considerable leeway in making the determination.
The determination of relevancy and the conduct of the trial are matters resting largely in the
discretion of the trial court. 212
1.18. LIMITED ADMISSIBILITY
Evidence may be incompetent for one purpose but proper and admissible for another. The
court must determine if the risk of confusion or prejudice outweighs the advantage in receiving it.
Evidence may be admitted for a limited purpose. The court may, upon request, give an
instruction to the jury that they may consider the evidence on one issue, and not on another issue. 213
210
211
Reeve v. Dennett, 145 Mass. 23, 11 N.E. 938, 943 (1887).
29
30
The party against whom the evidence is offered must request a limiting instruction. 214
215
The instruction should be given when the evidence is first introduced.
1.18.1. Limiting Instructions
Failure to request a limiting instruction waives the issue of failure to give a limiting
instruction on appeal. 216
1.18.1.1. Insurance Coverage
Evidence that a party is insured may be admissible to show ownership of a vehicle,
permissive use of a vehicle, control of premises, existence of an employment relationship, or bias in favor of an
217
insurance company. If insurance is inadvertently mentioned, the jury may be polled by asking, “Did the
fact that insurance was mentioned have any effect or influence on your determination in this case?” 218
1.18.1.2. Workers’ Compensation Coverage
The fact that a plaintiff made a prior inconsistent statement in an application for workers’
compensation benefits may necessitate revealing to the jury that the plaintiff did receive those benefits. In that
212
213
For a general instruction limiting evidence solely to a particular issue, see New York Pattern Jury
Instructions (hereinafter PJI)1:65; Antonse v. Bay Ridge Savings Bank, 292 N.Y. 143, 54 N.E.2d 388
(1944) (defendant made subsequent repairs, to show control); Bennetti v. New York City Transit
Authority, 22 N.Y.2d 742, 239 N.E.2d 215, 292 N.Y.S.2d 122 (1968) (bifurcated trial, evidence of injuries
admissible during liability phase on the issue of speed of vehicles); Van Campen v. Cram, 30 A.D.2d 541,
291 N.Y.S.2d 22 (2d Dep’t 1968) (admission by one party cannot be considered against another party).
214
C.K.S. Inc. v. Helen Borgenicht Sportswear, Inc., 25 A.D.2d 218, 268 N.Y.S.2d 409 (1st Dep’t 1966).
215
People v. Marshall, 306 N.Y. 223, 117 N.E.2d 265 (1954).
216
People v. Williams, 81 N.Y.2d 303; 614 N.E.2d 730; 1993 N.Y. LEXIS 1176; 598 N.Y.S.2d 167 (1993).
217
Ferris v. Sterling, 214 N.Y. 249, 109 N.E. 406 (1915) (ownership); Leotta v. Plessinger, 8 N.Y.2d 449,
171 N.E.2d 454, 209 N.Y.S.2d 304 (1960) (permissive use of vehicle); Levatino v. Rochester Sav. Bank,
38 N.Y.S.2d 182, 1942 N.Y. Misc. LEXIS 2163 (N.Y. Sup. Ct. 1942) (control of premises); Lisanti v.
Kenny Co., 225 A.D. 129, 232 N.Y.S. 103, aff’d, 250 N.Y. 621, 166 N.E. 347 (2d Dep’t 1928)
(employment relationship); Young v. Sonking, 275 A.D. 871, 88 N.Y.S.2d 392 (3d Dep’t 1949)
(investigator or physician may be cross-examined to show bias toward insurance company with whom he
is employed).
218
Weisgerber v. Ancona, 284 N.Y. 665, 30 N.E.2d 608 (1940).
30
31
event, the court should charge that the entire amount received from workers’ compensation will have to be
refunded to the carrier if the plaintiff is successful. 219
Where a party makes statements in an application or report to workers’ compensation, the
court should charge the jury as follows:
"The fact that the plaintiff has (received, applied for) workers’ compensation benefits has no
bearing on any other issue in the case than the weight you will give to (plaintiff’s, the witness’s) testimony.
Compensation benefits (are payable, were paid) (to, for) plaintiff because he was an employee of CD at the
time of the accident. These payments are made without determining fault with respect to the happening of the
accident. If, but only if, plaintiff is successful in this action, the payments made by CD will have to be refunded
by plaintiff to CD."
1.18.1.3. Prior Statement
A written statement may be introduced to impeach the credibility of a witness. Such a
statement is not evidence, but is admitted for the limited purpose of impairing the credibility of the witness.
The court, upon request, may give an instruction to the jury that if it finds the statement is inconsistent with
the testimony given by the witness, it may consider that fact in determining whether it will accept all, part, or
none of the testimony given by the witness during this trial, as well as the weight given to that testimony. The
statement may not be considered for any other purpose. 220
If the statement was made by a party, it is admissible as primary evidence as an admission. 221
1.18.1.4. Statement or Report Used to Refresh Recollection
A statement or report that is used by a witness to refresh his recollection is admissible on the
limited issue of the witness’s credibility. 222
219
PJI 1:65; Bradley v. John Donovan Construction Corp., 26 A.D.2d 734, 271 N.Y.S.2d 901 (3d Dep’t
1966); Nappi v. Falcon Truck Renting Corp., 1 N.Y.2d 750, 135 N.E.2d 51, 152 N.Y.S.2d 297 (1956).
220
PJI 1:66; Matter of Roge v. Valentine, 280 N.Y. 268, 20 N.E.2d 751 (1939).
221
Mindlin v. Dorfman, 197 A.D. 770, 189 N.Y.S. 265 (1st Dep’t 1921).
222
Caupain v. Johnson, 20 A.D.2d 712, 247 N.Y.S.2d 345 (2d Dep’t 1964).
31
32
A witness’s own statement is admissible for the preliminary purpose of refreshing his
recollection, even if it does not accomplish this task. 223
The document should be redacted before being read or being given to the jury, so that only
the competent parts are admissible. 224
The judge must instruct the jury that the statement itself has no probative value, for example,
as to how the accident happened, but that it is received only to impeach the witness’s credibility. A statement
that “I am taking it for the purposes of credibility” is an inadequate instruction. 225
1.18.1.5. Conviction of Crime
When evidence that a witness has been convicted of a crime is admitted, the jury
should be instructed that it may consider the conviction for the limited purpose of determining
the witness’s credibility and the weight to be given his testimony. 226
CHAPTER 2 MAKING THE RECORD
223
Dugan v. Dieber, 32 A.D.2d 815, 302 N.Y.S.2d 423 (2d Dep’t 1969).
224
Brown v. Western Union Telegraph Co., 26 A.D.2d 316, 274 N.Y.S.2d 52 (4th Dep’t 1966)
Lee v. Mount Ivy Industrial Developers, 31 A.D.2d 958, 298 N.Y.S.2d 813 (1969).
225
Dugan v. Dieber, 32 A.D.2d 815, 302 N.Y.S.2d 423 (2d Dep’t 1969).
226
People v. Miller, 91 N.Y.2d 372; 694 N.E.2d 61; 1998 N.Y. LEXIS 601; 670 N.Y.S.2d 978 (1998) (
appropriate limiting instructions to the jury that defendant's prior conviction was only to be considered for
evaluating credibility and not as proof that he committed any of the crimes with which he was charged);
Sims v. Sims, 75 N.Y. 466 (1878).
32
33
An appellate court can only consider the actions taken by the judge which are reflected in the
formal record. 227 The appellate courts will not engage in appellate speculation to recreate what the record
does not reflect or suggest. "Appellate ruminations cannot change the fact that there is no officially marked
Court Exhibit 1 or dispel the possibility that Exhibits 4 and 5 were marked simultaneously." 228
The record consists of three basic parts: (1) the pleadings and other paperwork exchanged
prior to trial; (2) the transcript of hearings, conferences, and trial testimony; and (3) the exhibits offered into
evidence. 229
The lawyers and judge should consider that they are dictating a nonfiction book or
documentary to an especially capable secretary. The court reporter will take down not only the testimony of
the witnesses but also any evidentiary objections and arguments, the comments, rulings, and instructions
before the court. The reporter will mark exhibits, at counsel’s request, and will take care of the exhibits when
they are not in use during the trial.
Since it is through the joint efforts of the attorney, the judge, and the court reporter that a
complete record is kept at the trial, it is necessary to be conscious of the court reporter’s part in making the
record.
2.1. COMMON ERRORS LAWYERS AND WITNESSES MAKE
The court reporter must be able to hear and understand everything that is said during the
trial or hearing. A number of errors are commonly made by counsel that may create problems for court
reporters:
2.1.1. Overlapping
: It is difficult for a court reporter to keep an accurate record when more than one person is
talking at the same time. Avoid interrupting the witness, except to prevent him from giving objectionable
testimony. Garbled transcripts and fragmented sentences make unreliable transcripts.
227
People v. Damiano, 87 N.Y.2d 477; 663 N.E.2d 607; 1996 N.Y. LEXIS 9; 640 N.Y.S.2d 451 (1996).
228
33
34
2.1.2. Gestures and Indications:
Hand signals and nonverbal communication cannot be recorded by the stenographer. When
a witness says “this long,” points to something, or otherwise draws a picture with his hand, the witness must
either be asked to give an oral response, or counsel or the court may interpret and clarify the statement for the
record. Do not rely on the reporter to put a statement in the transcript describing what the witness did. If
opposing counsel agrees that examining counsel’s interpretation of the gesture is satisfactory, the
interpretation becomes a stipulation between counsel as to what the witness testified. Whenever the witness
is asked to make a nonverbal statement, such as pointing to something, counsel must state, “Let the record
show that the witness pointed to the machine in exhibit A.”
2.1.3. Names
If the reporter does not know how to spell a name, he will usually not interrupt to ask, but
will write it phonetically. Where there is potential for confusion, spell out the name for the reporter.
2.1.4. Echoing
It is not necessary to repeat the witness’s testimony in the next question. Repeating the
previous answer as a component of a new question is a wasteful and costly practice.
2.1.5. Exhibits
When referring to an exhibit, use the exhibit number, rather than “this X-ray” or “this
photograph.” Exhibits are marked for identification until they are admitted into evidence. Exhibits marked for
identification at a deposition get new numbers when offered for identification at trial.
229
Newton v. Livingston County Trust Co., 231 A.D. 355, 247 N.Y.S. 121 (1931) (pleadings are always
before the court and may be used by counsel even though not formally offered in evidence).
34
35
2.1.6. Going Off the Record
Generally, both counsel must agree before the court reporter should go off the record. Ask
opposing counsel or the court if you can go off the record, so that the reporter knows when to stop. Be sure to
tell him or her when you are going back on the record, so that the reporter knows when to begin again.
2.1.7. Side Bar Conferences
Arguments by counsel at the side bar, if not recorded by the stenographer, will not constitute
a part of the record. When a ruling or a stipulation is anticipated, the reporter should be included in the
conference.
2.1.8. Reading Into the Record
Give a copy of what you read to the reporter, so that he or she can be sure to record it
accurately. Read slowly enough and clearly enough to ensure that the transcript is clear.
When stipulations occur at pretrial conferences or in a judge’s chambers, a court reporter
should be available to put it on the record.
2.2. STIPULATIONS
If opposing counsel accepts a statement, the agreement becomes a stipulation. Opposing
counsel may affirmatively refer to the statement, or, by failing to object to the statement, implicitly accept the
statement.
An evidentiary stipulation admits or concedes a fact, and thereby relieves the party of the
burden of proving the fact. It is a formal judicial admission, and unless vacated, precludes evidence to dispute
the fact. It is equivalent to an admission in a pleading.
There is no requirement that counsel accept a stipulation from opposing counsel. For
example, opposing counsel will often agree to stipulate that an expert witness is qualified as an expert, to
prevent the jury from hearing his or her qualifications. Counsel is not required to accept such a stipulation,
and he or she will usually elect to introduce proof of the expert’s training and experience, to give the jury a
basis to determine what weight to give the expert’s testimony.
35
36
2.3. OFFER OF PROOF
"Offer of proof" is not a term of art but its generally accepted meaning is to summarize the
substance or content of the evidence. 230
An offer of proof may consist of counsel's description of the proposed evidence, with a
statement to the court why it is believed to be relevant. 231
The trial judge has broad discretion in determining the form of the record of the offer of
proof.
While the court may permit a less formal offer, an offer of proof of oral testimony is typically
made by placing a witness on the stand. An offer of proof of documentary evidence or real evidence is made by
marking the document or thing for identification, having it identified by a witness, and then allowing
opposing counsel to examine it. It is then presented to the judge by stating, “I offer plaintiff’s exhibit 1 for
identification in evidence as Plaintiff’s Exhibit 1.”
If the offered evidence seems irrelevant or immaterial, counsel must state the purpose of the
evidence. The specific fact that the evidence proves should be stated, rather than just the general conclusion
that flows from the fact.
Counsel should be prepared to explain any substantive points necessary to show that the
proffered evidence is admissible as proof.
The proponent must articulate every ground on which the evidence is admissible. If the
proponent fails in this duty, the court should not have to repeat the trial because the judge has excluded
evidence due to a failure to comprehend the proponent’s purpose for offering it.
A failure to make an offer of proof may be excused when the substance of the excluded
evidence is apparent from the context within which the questions were asked.
Nor need an offer of proof be made where it would be futile.
Historically, the requirement of an offer of proof is relaxed on cross-examination since
counsel is assumed not to have had the opportunity to learn how the witness will respond.
230
People v. Williams, 81 N.Y.2d 303; 614 N.E.2d 730; 1993 N.Y. LEXIS 1176; 598 N.Y.S.2d 167 (1993).
36
37
2.4. FOUNDATION
Laying a foundation means providing the court with the factual basis for an evidentiary
ruling. Before the court can determine that a particular item of evidence is admissible, certain facts must be
established. If the evidentiary rule requires a certain fact or event be established before the evidence can be
admitted, that fact must be proven as part of the foundation for admission of the evidence.
The court may admit the evidence subject to establishing a foundation later, but frequently it
232
is reluctant to do so unless it is quite confident that the fact will be established.
If lack of foundation is a ground for excluding the evidence, the trial court should state that
fact so that counsel can attempt to provide the foundation. 233
Foundation facts are considered to be preliminary in nature, so that the technical rules, such
as the prohibition against leading questions on direct, are relaxed. Hearsay may be considered, such as
testimony by the investigator that a third party said that a person was out of the state, for purposes of
establishing unavailability.
2.5. OBJECTIONS
2.5.1. Timeliness
Objections must be timely. Some objections, such as search and seizure and line-up
identification, should be made before trial. 234
As soon as it appears that the evidence is improper, an objection may be raised. If the
question was objectionable, it is too late to object after the question has been answered. 235
231
People v. Williams, supra.
232
See § 1.14.
233
Rainbow v. Albert Elia Bldg. Co., 79 A.D.2d 287, 436 N.Y.S.2d 480, 1981 N.Y. App. Div. LEXIS
9707, Prod. Liab. Rep. (CCH) P 8949 (4th Dep't 1981) (dissent) (post-accident studies
inadmissible because attorney failed to show that the studies were within the state of the art at the time
the product was sold).
234
See Crim. Proc. Law., § 710.20 et seq.; see § 23.1.
235
Rubio v. Reilly, 44 A.D.2d 592, 353 N.Y.S.2d 781 (2d Dep’t 1974).
37
38
If the question was not improper, but the answer was, a motion to strike should be made,
and the jury instructed to disregard the answer. 236
A motion to strike is timely if made as soon as possible after the error. However, the court has
discretion to strike inadmissible evidence at any time, absent prejudice. 237
2.5.2. Stating the Objection
The party opposing admission of the evidence must object to its introduction, or any error in
admitting it is not preserved for appellate review. 238
Once the evidence is admitted without objection, the jury is entitled to consider it, even
though its admission was erroneous. 239
2.5.3. Specificity
Objections to evidence must provide the court and the proponent of the evidence with
enough information as to why the evidence is inadmissible to enable the court to rule on the issue and to
enable the proponent to cure the defect. The objection must state accurately and specifically the basis for the
claimed inadmissibility. 240
A general objection which is overruled cannot be the grounds for error, unless it appears that
there was no reason whatsoever to admit the evidence. 241
A specific objection made on the wrong grounds waives objections which might have been
raised on proper grounds. Only the grounds raised in the objection will be considered upon appeal. 242
236
Raisler v. Benjamin, 133 A.D. 721, 118 N.Y.S. 223 (1909).
237
Miller v. Montgomery, 78 N.Y. 282, 2 A.L.R.2d 349 (1879).
238
CPLR § 5501(3) (“An appeal . . . brings up for review: . . . any ruling to which the appellant objected or
had no opportunity to object or which was a refusal or failure to act as requested by the appellant. . . .”);
People v. Bowen, 50 N.Y.2d 915, 409 N.E.2d 924, 431 N.Y.S.2d 449 (1980); Mashley v. Kerr, 47 N.Y.2d
892, 393 N.E.2d 471, 419 N.Y.S.2d 476 (1979).
239
In re Jamaica Bay, City of New York, 250 A.D. 124, 293 N.Y.S. 854 (1937), aff’d, 275 N.Y. 458, 11
N.E.2d 296 (1937).
240
People v. Tarsia, 50 N.Y.2d 1, 405 N.E.2d 188, 427 N.Y.S.2d 944 (1980).
241
People v. Vidal, 26 N.Y.2d 249, 257 N.E.2d 886, 309 N.Y.S.2d 336 (1970); Wightman v. Campbell,
217 N.Y. 479, 112 N.E. 184 (1916).
38
39
An objection that evidence is immaterial and irrelevant does not raise the objection that the
evidence is incompetent. The grounds for the incompetency must be articulated. 243
Once a specific objection is raised to a particular class of evidence, the objection need not be
repeated with regard to each question dealing with that same evidence. 244
If the court sustains a general objection, the ruling will not be grounds for error unless there
was no ground for excluding the evidence. 245
2.6. RULINGS
In a jury case, the court must rule on the objection at the time it is raised.
If the objection is to relevancy or lack of foundation, the court may admit the evidence on the
condition that the proponent later establish the relevancy or foundation. 246
If the court fails to rule on the evidence later, the objection or motion to strike is deemed
overruled. 247
If the judge reserves decision on a ruling, counsel should raise the objection again at the close
of all evidence. Failure to reassert the objection may waive the objection on appeal.
2.6.1. Effect of Erroneous Ruling
Once evidence is admitted over objection, it may be rebutted. 248
242
People v. Qualls, 55 N.Y.2d 733, 431 N.E.2d 634, 447 N.Y.S.2d 149 (1981) (objection of improper
bolstering did not preserve hearsay objection); In re Will of Budziejko, 277 A.D.2d 829, 97 N.Y.S.2d 307
(4th Dep’t 1950).
243
People v. Cummins, 209 N.Y. 283, 103 N.E. 169 (1913) (objection on grounds of relevancy and
materiality did not raise ground of privilege against self-incrimination); Arkins v. Elwell, 45 N.Y. 753 (1871)
(objection as incompetent and immaterial does not raise best evidence objection).
244
In re Ivory, 259 A.D. 1046, 21 N.Y.S.2d 6 (2d Dep’t 1940).
245
Tooley v. Bacon, 70 N.Y. 34, 1877 N.Y. LEXIS 582 (1877); Matter of Estate of Fiumara, 47 N.Y.2d
845, 392 N.E.2d 565, 418 N.Y.S.2d 579 (1979).
246
See § 1.14; Ruegg v. Fairfield Securities Corp., 284 A.D. 703, 134 N.Y.S.2d 562 (1st Dep’t 1954),
aff’d, 308 N.Y. 313, 125 N.E.2d 585 (1955).
247
Brenan v. Moore-McCormack Lines, Inc., 3 A.D.2d 1006, 163 N.Y.S.2d 889 (1st Dep’t 1957).
248
Continental Diamond Mines, Inc. v. Kopp, 28 A.D.2d 518, 279 N.Y.S.2d 752 (1st Dep’t 1967)
((objection to evidence not waived by cross- examining witness as to the improperly admitted evidence).
39
40
Erroneous rulings will not warrant reversal unless (1) a substantial right is affected, and (2)
the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action
and enable opposing counsel to take proper corrective measures.
An error is harmless unless there was a significant probability that the jury could reasonably
have reached a different result had the error not occurred. 249
A trial court’s error in specifying the grounds for exclusion of evidence is harmless where
evidence is excludable on another ground. 250
2.6.2. Harmless Error and Constitutional Rights
The standard of review for unconstitutional harmless error is the same in civil as in criminal
cases. 251
An error that adversely affects a party’s constitutional rights does not automatically lead to
reversal. 252
The appellate court will examine the entire record and consider the implications in the
setting of the case. 253
Where evaluation of the impact of the improper matter is necessarily predicated on

254
speculation about the thought processes of the jurors, a harmless error analysis is inappropriate.
An error denying the accused the right to confrontation must be harmless beyond a
reasonable doubt. 255
2.6.3. Remedial Actions
Errors may be cured by remedial action even after the case is closed. 256
249
People v. Schaefer, 56 N.Y.2d 448, 438 N.E.2d 94, 452 N.Y.S.2d 561 (1982).
250
Bloodgood v. Lynch, 293 N.Y. 308, 56 N.E.2d 718 (1944).
251
McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985).
252
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967) (must be harmless beyond
a reasonable doubt).
253
Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969) (codefendant’s
statement).
254
40
41
The doctrine of curative admissibility allows admission of irrelevant evidence on cross-
examination as a “cure” for irrelevant evidence improperly admitted on direct examination. 257
Also under common law, an “invited error,” that is, improper evidence elicited by the party
claiming to be harmed by it, should not be grounds for reversal. 258
2.6.4. Hearing of Jury
A ruling that excludes evidence in a jury case is likely to be a pointless procedure if the
excluded evidence nevertheless comes to the attention of the jury. 259
The judge has the power to foreclose any particular line of testimony to prevent such a result.
2.6.5. Plain Error
In a civil case, even without objection, the appellate division may reverse and grant a new
trial in the interests of justice, if the error is fundamental.
In a criminal case, the Appellate Division may reverse or modify as a matter of discretion, in
the interests of justice, even without objection at trial. 260
Plain error is error so fundamental that the judge and prosecutor are derelict in
countenancing it. A plain error significantly influences the jury or affects substantial rights. 261
Substantial right is a term of art that is applied on a case-by-case basis. Mechanical and
technical rules are rejected in finding a violation of a substantial right. 262
The application of the plain error rule will be more likely with respect to the admission of
evidence than to exclusion of evidence, because proponents of evidence often fail to produce a record which
discloses the error of the court.
255
Bruton v. U.S., 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968) (limiting instruction insufficient to
overcome improper admission of confession).
256
U.S. v. Burket, 480 F.2d 568 (2d Cir. 1973) (judge’s instructions on evidence).
257
Howard v. Gonzalez, 658 F.2d 352 (5th Cir. 1981) (objection to admission of grand jury testimony).
258
U.S. v. Lerma, 657 F.2d 786 (5th Cir. 1981) (no reversible error that government witness referred to
violation of state law when defense counsel elicited the answer during cross-examination).
259
Bruton v. U.S., 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968).
260
See Crim. Proc. Law, § 470.15(3)(c).
261
U.S. v. Bohr, 581 F.2d 1294, 1102 S. Ct. 1584, 71 L.Ed.2d 816 (1982).
41
42
The exclusion of evidence in a criminal trial that would raise a reasonable doubt as to the
defendant’s guilt is plain error. 263
In situations where the credibility of the witness is crucial, exclusion of impeachment
evidence may not be mere harmless error. 264
Under the plain error doctrine, reversal is permitted despite a lack of objection if there has
been a “miscarriage of justice.” 265
In a criminal case the prosecutor has a duty to reveal evidence to a defendant, and the failure
to do so may be reversible error. 266
Failure to make an objection to a constitutional violation at a trial may not be plain error. 267
The question of subject matter jurisdiction comes within the plain error doctrine. 268
In determining whether appellate review is appropriate, a court may consider the number of
times improper evidence was elicited without objection. 269
2.7. VIEWING EXHIBITS
The formal reception of evidentiary exhibits occurs when they are tendered by counsel and
determined to be legally admissible by the court. At that point, the exhibits are technically available for
review and inspection by the jury.
Depending on their size and nature, the exhibits may not actually be examined by the jurors
at the time they are formally admitted in evidence.. Instead, they may be passed around for close viewing
262
Kotteakos v. U.S., 328 U.S. 750, 66 S. Ct. 1239, 90 L.Ed. 1557 (1946) (conspiracy).
263
U.S. v. Robinson, 544 F.2d 110 (2d Cir. 1976) (reversible error to exclude testimony which would have
indicated that person shown on bank surveillance film was person other than the defendant).
264
Charter v. Chleborad, 551 F.2d 246 (8th Cir. 1977) (plaintiff’s malpractice case rested on the credibility
of his expert witness; defendant attempted to impeach witness with testimony as to his poor reputation for
truth and veracity).
265
Morreale v. Downing, 630 F.2d 286 (5th Cir. 1980).
266
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) (extrajudicial confession of
codefendant withheld; nonreversible error under circumstances).
267
U.S. v. Purin, 486 F.2d 1363 (2d Cir. 1973) (Miranda issue).
268
American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L.Ed. 702 (1951) (wrongful
removal from State to Federal district court).
269
U.S. v. Martin, 757 F.2d 770 (6th Cir. 1985).
42
43
immediately after the formalities of admission are completed, or the viewing may be postponed for some later,
more convenient time in the trial.
CPL 310.20 (1) provides that upon retiring to deliberate, jurors may take with them "[a]ny
exhibits received in evidence at the trial which the court, after according the parties an opportunity to be
heard upon the matter, in its discretion permits them to take."
It is common to advise the jury that all exhibits, other than those received for limited
purposes, are available for inspection in the jury deliberation room, but that the exhibits will not
automatically be sent into the jury room but upon request will immediately be provided. 270
2.8. VERDICT SHEETS
In criminal cases, the court may only furnish an expanded or supplemental verdict sheet
271
"with the consent of the parties,"
Without the parties' consent, explanatory parentheticals which refer to elements of the
crimes charged are improper. 272
The submission, over counsel's objection, of selected portions of statutory text or the text
itself constitutes error. 273
When counsel approve of the labels or textual references on the verdict sheet, the Court of
Appeals has stated that "the jurors, the parties and the court are well served." 274 The court must permit
counsel to review the annotated verdict sheet and obtain counsel's consent prior to submitting it to the jury.
The Court of Appeals stated that "we commend the practice of counsels' initialing the verdict
275
sheet after the trial court presents it for their review."
270
See People v. Damiano, 87 N.Y.2d 477; 663 N.E.2d 607; 1996 N.Y. LEXIS 9; 640 N.Y.S.2d 451
(1996) (52-pound boulder).
271
CPL 310.30; People v. Damiano, 87 N.Y.2d 477; 663 N.E.2d 607; 1996 N.Y. LEXIS 9; 640 N.Y.S.2d
451 (1996) (reversible error to submit a list of charges stating the first count as "murder in the second
degree" and on the succeeding line adding, in parenthesis, "depraved mind murder", and "if not guilty,
manslaughter in the second degree," followed by the parenthetical reference "reckless manslaughter" on
the subsequent line).
272
273
People v. Damiano, 87 N.Y.2d 477, 663 N.E.2d 607, 1996 N.Y. LEXIS 9, 640 N.Y.S.2d 451 (1996).
274
43
44
2.9. CONDUCT OF COUNSEL
Counsel's trial tactics cannot include conduct calculated to influence the jury by
considerations which were not legitimately before them, 276
It is improper for trial counsel to act as an unsworn witness. 277 A trial counsel improperly
acts as an unsworn witness when he interjects "unsworn statements of personal knowledge of the facts of the
278
case".
Counsel becomes an unsworn witness by placing her own credibility on the side of her client. 279
275
276
Clarke v. New York City Transit Authority, 174 A.D.2d 268; 580 N.Y.S.2d 221; 1992 N.Y. App. Div.
LEXIS (1st Dep't 1992).
277
LEXIS (1st Dep't 1992); Caraballo v. City of New York, 86 A.D.2d 580 (1st Dept. 1982); Weinberger v. City
of New York, 97 A.D.2d 819 (2d Dept. 1983).
278
Code of Professional Responsibility, DR 7-106 [C] [3].
279
Sanchez v. MABSTOA, 170 A.D.2d 402; 566 N.Y.S.2d 287; 1991 N.Y. App. Div. LEXIS (1st Dep't
1991) (Counsel identified herself as a co-employee of a clerk testifying on behalf of defendant. Both in her
direct examination of this witness and in summation she referred to MABSTOA as "we" and "us" and in
summation referred to the defendant's case as "my side of the story." In summation counsel
characterized plaintiffs' case as a "bunch of crock", "bunch of bunk" and "hogwash", Counsel suggested
that plaintiff's "story" suddenly became "set" once he got in touch with and was "prepped" by his attorney.
)
44
45
It is improper for trial counsel to bolster his case on summation by repeated accusations that
280
the witnesses for the other side are liars
It is error for trial counsel to accuse medical experts, without supporting evidence, of being
willing to testify falsely for a fee. 281
280
LEXIS (1st Dep't 1992). (
281
LEXIS (1st Dep't 1992) ("[witness] is nothing but a paid expert who will say anything whatsoever without
regard to what is right, without regard to what is truthful"); Sanchez v. MABSTOA, 170 A.D.2d 402; 566
N.Y.S.2d 287; 1991 N.Y. App. Div. LEXIS (1st Dep't 1991) (defense counsel referred to plaintiffs' medical
expert as "Here comes Howie" and misstated that the expert had had his privileges at New York Hospital
revoked.)
45
46
CHAPTER 3 REAL EVIDENCE
Real and demonstrative evidence allows judges and juries to form perceptions through the
direct use of their own senses. 282
Both courts and commentators have noted, with respect to real and demonstrative evidence,
that, when validly and carefully used, there is no class of evidence so convincing and satisfactory to a court or
a jury. 283
To be admissible, any piece of real evidence must be shown to portray accurately a relevant
and material element of the case. 284
Real evidence is admissible when it is “sufficiently connected with the defendants to be
relevant to the issue in the case.” 285
In determining whether a proper foundation has been laid for the introduction of real
evidence, the accuracy of the object itself is the focus of inquiry. This must be demonstrated by clear and
convincing evidence. 286
The foundation necessary to admit real evidence differs according to the nature of the
evidence sought to be admitted.
If the object was taken from the defendant or found at the scene of the crime, the foundation
is laid once it is shown that the thing offered is the one recovered and that its condition is substantially
unchanged. 287 For instance, where police officers observed a defendant throw a plastic bag from a fleeing car,
and then, after arresting the defendant, returned to the area where the bag had been thrown and found a white
282
4 Wigmore, Evidence, §§ 1150–1160 (3d ed.).
283
Jones, Evidence, § 653 (3d ed.); See United States v. Skinner, 425 F.2d 552, 138 U.S. App. D.C. 121,
1970 U.S. App. LEXIS 10775 (1970);. Cf. Clark v. Brooklyn Hgts. R. R. Co., 177 N.Y. 359, 69 N.E. 647
(1904); Note, Real Evidence: Use and Abuse, 14 Brooklyn L. Rev. 261.
284
People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977).
285
People v. Mirenda, 23 N.Y.2d 439, 453, 245 N.E.2d 194, 201, 297 N.Y.S.2d 532, 542 (1969); People
v. Kinney, 202 N.Y. 389, 95 N.E. 756 (1911).
286
People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979); See United States v.
Fuentes, 563 F.2d 527, 532 (2d Cir. 1977) cert. denied sub nom. Sansone v. United States, 434 U.S.
959, 98 S. Ct. 491, 54 L.Ed.2d 320 (1977).
287
People v. Flanigan, 174 N.Y. 356, 66 N.E. 988 (1903).
47
bag with powder, as well as a dollar bill containing white powder, both items were admissible, even though
the officers had not observed the defendant throw the dollar bill out of the car. 288
Mere identification by one familiar with the object is sufficient “when the object possesses
unique characteristics or markings” and any material alteration would be readily apparent. 289
The fact that it might have passed through several hands in the interim is of little significance
when the object possesses unique characteristics or markings and is not subject to material alteration which
is not readily apparent. In these cases, simple identification should suffice. 290
Accuracy or authenticity is established by proof that the offered evidence is genuine and that
there has been no tampering with it. 291
When the evidence itself is not patently identifiable or is capable of being replaced or altered,
admissibility generally requires that all those who have handled the item “identify it and testify to its custody
and unchanged condition.” 292
In a criminal case, the test for admissibility is an evaluation of how close is the connection
between the object and the defendant. If it is not so tenuous as to be improbable, it is admissible as is any
other evidence which is relevant to an issue in the prosecution. The admission is not dependent--as is a
conviction based solely on circumstantial evidence--upon a showing that the evidence adduced permits only
one inference. 293
288
People v. Mason, 186 A.D.2d 590; 588 N.Y.S.2d 387; 1992 N.Y. App. Div. LEXIS 11111 (2nd Dep't
1992).
289
People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979); See People v. Flanigan,
174 N.Y. 356, 66 N.E. 988 (1903).
290
People v. Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974); People v. Flanigan,
174 N.Y. 356, 66 N.E. 988 (1903).
291
People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979); People v. Rutter, 202
A.D.2d 123; 1994 N.Y. App. Div. LEXIS 8992 (1st Dep't 1994) (bloodstained carpet).
292
People v. Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974); People v. McGee, 49
N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979); People v. Connelly, 35 N.Y.2d 171, 174, 316 N.E.
706, 707, 359 N.Y.S.2d 266, 268 (1974) (drugs); People v. Rutter, 202 A.D.2d 123; 1994 N.Y. App. Div.
LEXIS 8992 (1st Dep't 1994) (bloodstained carpet).
293
People v. Mason, 186 A.D.2d 590; 588 N.Y.S.2d 387; 1992 N.Y. App. Div. LEXIS 11111 (2nd Dep't
1992)..
47
48
3.1. UNIQUE OBJECTS
When real evidence is purported to be the actual object associated with a crime or incident,
the proof of accuracy has two elements. The offering party must establish, first, that the evidence is identical
to that involved in the crime; and, second, that no one has tampered with it. 294
When an “object possesses unique characteristics or markings and is not subject to material
alteration which is not readily apparent,” a simple identification is sufficient to warrant admission. 295
The jury should not see the real evidence until it has been admitted in evidence. 296
Where a knife was distinctive in that it had a wooden handle and a blade that was bent or
twisted, the victim, the arresting officer, and an eyewitness to the stabbing all identified the knife and testified
as to its distinctive appearance, and the knife was removed by an eyewitness from the defendant’s back pocket
at the scene where the attack had just occurred, there was a sufficient nexus between the knife and the
defendant such that no error was committed in permitting its introduction at trial as real evidence. 297
Unlike narcotics, blood, or other such items, a tire is composed of a substance which is
relatively impervious to change and possesses identifiable characteristics so that it is admissible “merely on
the basis of testimony that the item is the one in question and is in a substantially unchanged condition.” 298
Defendant’s contention, supported by a police officer’s testimony, that the tire was inflated
subsequent to the accident, did not render the tire inadmissible. The weight to be given to plaintiff’s evidence
on the question is a matter for the trier of fact to consider. 299
A sufficient nexus was established between a knife and the defendant where the knife was
not a common knife, but high-quality cutlery used in the restaurant business and defendant was the chef at
294
295
People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977); People v. Connelly, 35
N.Y.2d 171, 174, 316 N.E.2d 706, 707, 359 N.Y.S.2d 266, 268 (1974); In People v. Flanigan, 174 N.Y.
356, 368, 66 N.E. 988 (1903), the court held that an iron bar was admissible because “[a]ll the witnesses
who spoke upon the subject testified that it was the same bar and in substantially the same condition.”
296
Harris v. Village of East Hills, 41 N.Y.2d 446, 362 N.E.2d 243, 95 A.L.R.3d 772, 393 N.Y.S.2d 691
(1977) (tree limb not admitted for lack of identifying mark; motion for mistrial denied in discretion of court).
297
People v. Moore, 122 A.D.2d 232, 504 N.Y.S.2d 764 (2d Dep’t 1986) (knife used to stab the victim).
298
Johnson v. Michelin Tire Corp., 110 A.D.2d 824, 488 N.Y.S.2d 77 (2d Dep’t 1985) (adequate
foundation laid by testimony of plaintiff and mother that they observed the vehicle before it was towed
away, and that at the time the right rear tire was totally deflated and ripped apart).
48
49
the restaurant in the hotel where the incident took place. Moreover, the knife was found within hours of the
attack in a location where it was conceivable that defendant might have disposed of it. 300
Although there was a gap in the chain of custody for admitting the gun found near defendant
at the time of his arrest, the gun was uniquely marked with a police officer’s initials, making it readily
identifiable. Thus, a police officer’s testimony that the gun presented at trial was the same exact gun that he
found on the day of the arrest was sufficient to admit the gun into evidence, since there existed reasonable
assurances of identity and unchanged condition. 301
The fact that there were deficiencies in the chain of custody goes to the weight of the real
evidence, not to its admissibility. 302
Strict proof of chain of custody may be required only when the stolen articles are fungible
items. Where suits were specifically identifiable from their labels and were identified at trial, they were
properly admitted into evidence without further proof on chain of custody. 303
3.2. TAMPERING
When real evidence is purported to be the actual object associated with a crime, the party
offering it must show that the evidence is identical to that involved in the crime; and, second, that there has
been no tampering. 304
The trial court must have sufficient evidence to justify a factual conclusion that no tampering
has occurred. 305
A foundation that real evidence is identical to that involved in the crime and that there has
been no tampering is established by having someone familiar with the objects identify them. 306
299
Johnson v. Michelin Tire Corp., 110 A.D.2d 824, 488 N.Y.S.2d 77 (2d Dep’t 1985).
300
People v. Flammer, 106 A.D.2d 398, 482 N.Y.S.2d 315 (2d Dep’t 1984).
301
People v. Capers, 105 A.D.2d 842, 482 N.Y.S.2d 37 (2d Dep’t 1984).
302
People v. Capers, 105 A.D.2d 842, 482 N.Y.S.2d 37 (2d Dep’t 1984).
303
People v. Washington, 96 A.D.2d 996, 467 N.Y.S.2d 87 (3d Dep’t 1983) (any infirmity as to the suits
being locked at the store and not retained by the police goes to the weight of the evidence and not to its
admissibility).
304
People v. Julian, 41 N.Y.2d 340, 342–343, 360 N.E.2d 1310, 1312, 392 N.Y.S.2d 610, 612 (1977).
305
49
50
The cumulative proof of the police department’s property custodian, who participated with
defendant in the illegal purchases of the subject merchandise, and of an employee of the victim store, who was
able to match the numbers on the credit card receipts with tickets attached to the property taken from the
store, provided satisfactory assurance of identity and unchanged condition of the tagged clothing items. 307
3.3. FUNGIBLE GOODS
The uniformity of fungible goods makes identification difficult and, generally, justifies a
requirement of tracing a fungible item through each hand with which it comes in contact. 308
While a fungible item, such as a package of white powder, presents special difficulties in
proving the necessary authenticity, the offering party is required to establish only the same two elements,
namely, that it is the identical evidence and that no one has tampered with it. 309
Proof of a complete chain of custody is one accepted technique for showing the authenticity
of a fungible item of real evidence. A chain of custody is employed when “the evidence itself is not patently
identifiable or is capable of being replaced or altered.” 310
The Court of Appeals identified this chain of custody technique as the method of general, but
not exclusive, acceptability. 311
In theory at least, under the chain of custody approach, it is necessary to establish a complete
chain of evidence, tracing the possession of the exhibit to the final custodian, and if one link in the chain is
entirely missing, the exhibit cannot be introduced or made the basis for the testimony or report of an expert or
officer. 312
306
People v. Washington, 96 A.D.2d 996, 467 N.Y.S.2d 87 (3d Dep’t 1983) (officer testified that suits
were the same ones seized from defendant and his friend; that they had not been altered or changed;
and that they had been kept in a locked container since their seizure).
307
People v. Mathis, 147 A.D.2d 851, 538 N.Y.S.2d 336 (3d Dep’t 1989).
308
People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979).
309
310
People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979); People v. Connelly, 35
N.Y.2d 171, 174, 316 N.E.2d 706, 707, 359 N.Y.S.2d 266, 268 (1974) (drugs).
311
People v. Connelly, 35 N.Y.2d 171, 174, 316 N.E.2d 706, 707, 359 N.Y.S.2d 266, 268 (1974) (drugs).
312
People v. Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974).
50
51
The admissibility of a fungible item “generally requires that all those who have handled the
item identify it and testify to its custody and unchanged condition.” 313
In practice, the chain has been kept within reasonable limits by, for instance, rejecting the
notion that when an exhibit has been mailed for analysis, each postal employee who handled the item should
be considered a necessary link. 314
A typical chain of custody: The undercover police officer makes a purchase of drugs, marks
the evidence, and brings it to the police station, where he places it in the evidence locker. The following day he
turns it over to an investigator who mails it to the State Police Laboratory in Albany for analysis. The packet is
returned by mail together with a certified laboratory report indicating that the substance contained cocaine.
The undercover police officer at trial identifies the packet and the report, and they are received in evidence. 315
Even though the evidence is adequately identified as the items initially seized, a further
question is whether, during the gap in the chain of custody, some unknown party could have caused a material
and prejudicial change in the condition or nature of the evidence. 316
With drugs, a chain of custody must be adequately established from the time of seizure to
the time of the first chemical analysis. 317
As a general rule, inconsistent notations on the wrappers used to transmit evidence should
be considered irregularities bearing only on the weight of the evidence, if the defendants’ names or some other
indicator invariably appears throughout. 318
The fact that the item was or might have been accessible to other persons not called as
witnesses casts suspicion on the integrity of the evidence, often rendering it inadmissible, especially when it
appears that the evidence was available to unknown persons over an extended period. 319
313
People v. Connelly, 35 N.Y.2d 171, 174, 316 N.E.2d 706, 707, 359 N.Y.S.2d 266, 268 (1974) (drugs).
314
People v. Jamison, 29 A.D.2d 973, 289 N.Y.S.2d 299 (2d Dep’t 1968).
315
E.g., People v. Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974).
316
317
318
319
51
52
For grand jury proof, it suffices if the officers’ testimony is prima facie evidence of the identity
and unchanged condition of the evidence. 320
Nor is it required for the People to “establish the precise day-by-day location of the narcotics
within the laboratory.” 321
The Court of Appeals has stated that a chain of custody should be tested not by the
satisfaction of a technical series of steps, but by whether the proof satisfies the rationale for requiring an
evidentiary foundation. 322
Deficiencies in the chain of custody may be used to discredit the weight of the real evidence.
Such deficiencies may be sufficient to render that evidence inadmissible. 323
The chain of custody requirement should not be extended to unreasonable limits. 324
Failure to establish a chain of custody may be excused “where the circumstances provide
reasonable assurances of the identity and unchanged condition” of the evidence. 325
Where there was testimony and documentary evidence establishing that the condition of
cocaine had changed considerably as it passed along the chain of custody, and the first chemist who analyzed
the substance did not testify at trial nor put his initials on the plastic bag that contained the drugs, there was
a failure to establish the two requirements of identity and unchanged condition. The evidence should not have
been admitted, because there was a failure to establish the chain of custody of the evidence. 326
There was an adequate foundation for the introduction of the currency into evidence where
the police officer had vouchered the cash immediately upon apprehending the suspect, and the People
320
People v. Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974); People v. Oakley, 28
N.Y.2d 309, 270 N.E.2d 318, 321 N.Y.S.2d 596 (1971).
321
People v. Newman, 129 A.D.2d 742, 514 N.Y.S.2d 501 (2d Dep’t 1987), lv denied, 70 N.Y.2d 652, 512
N.E.2d 571, 518 N.Y.S.2d 1045 (1987).
322
323
324
E.g., People v. Jamison, 29 A.D.2d 973, 289 N.Y.S.2d 299 (2d Dep’t 1968) (postal handlers need not
testify).
325
People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977); Amaro v. City of New
York, 40 N.Y.2d 30, 35, 351 N.E.2d 665, 668, 386 N.Y.S.2d 19, 22 (1976); People v. Porter, 46 A.D.2d
307, 362 N.Y.S.2d 249 (3d Dep’t 1974).
326
People v. Steinger, 148 A.D.2d 980, 539 N.Y.S.2d 217 (4th Dep’t 1989).
52
53
established an unbroken chain of custody from the time of the defendant’s arrest until its introduction into
evidence at trial. 327
3.4. VIEW BY JURY
New York Civil Practice Law and Rules 4110(c). Trial jury; viewing of
premises.
1. When during the course of a trial the court is of the opinion that a viewing
or observation by the jury of the premises or place where alleged injuries to
person or property were sustained in an accident or occurrence claimed to
have been the cause thereof or of any other premises or place involved in the
case will be helpful to the jury in determining any material factual issue, it
may in its discretion, at any time before the commencement of the
summations, order that the jury be conducted to such premises or place for
such purpose in accordance with the provisions of this section.
2. In such case, the jury must be kept together throughout under the
supervision of an appropriate public servant or servants appointed by the
court, and the court itself must be present throughout. The parties to the
action and counsel for them may as a matter of right be present throughout,
but such right may be waived.
3. The purpose of such an inspection is solely to permit visual observation

by the jury of the premises or place in question and neither the court, the
parties, counsel nor the jurors may engage in discussion or argumentation
concerning the significance or implications of anything under observation or
concerning any issue in the case.
3.5. TAPE RECORDINGS
Tape recordings made by a participant to a conversation do not fall within the category
reserved for fungible evidence, such as drugs. 328
The inherent difficulty with fungible goods is not present when evidence of a conversation is
sought to be introduced, for the conversation itself is unique and the participants are available to attest to its
accuracy.
A chain of custody is not required for the introduction of tape recordings. 329
327
People v. Wyman, 136 A.D.2d 755, 524 N.Y.S.2d 90 (2d Dep’t 1988) (victim cab driver had counted
his cash immediately before robbery, and defendant found with exact amount on person).
328
329
53
54
A foundation may be established by a participant to the conversation who testifies that the
conversation has been accurately and fairly reproduced. 330
Where one party to a conversation consents to being tape-recorded, “the constitutional
privacy rights of other participants are not implicated . . . [hence], it is unnecessary to superimpose the
admissibility requirements of article 700 on consensual recordings.” Thus, tapes of a defendant’s conversations
may be admissible, even though they were not sealed pursuant to Criminal Procedure Law article 700, and the
People failed to establish a chain of custody of the tapes. 331
The standard to be applied in determining the admissibility of such tapes is that which is
applicable to any real evidence. It must be established by clear and convincing proof that the evidence offered
is genuine and that there has been no tampering with it. Where the participant is available to testify that the
conversation was fairly and accurately reproduced on the tape and that it has not been altered, a foundation is
established and chain of custody evidence is not necessary. 332
Proof that the evidence has not been altered may be established in a similar fashion.
The fact that a tape recording has been partially erased does not automatically bar admission
333
of the tape recording in evidence.
Infirmities concerning chain of custody or inaudibility properly go to the weight of the
evidence, not its admissibility. 334
330
People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 177, 424 N.Y.S.2d 157 (1979); United States v.
Steinberg, 551 F.2d 510 (S.D.N.Y. 2d Cir. 1977); United States v. Knohl, 379 F.2d 427 (S.D.N.Y. 2d Cir.
1967), cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L.Ed.2d 465 (1967); Monroe v. United Suites, 234
F.2d 49, 98 U.S. App. D.C. 228 (D.C. Cir. 1956), cert. denied, 352 U.S. 873, 77 S. Ct. 94, 1 L.Ed.2d 76
(1956).
331
People v. McGee, 49 N.Y.2d 48, 59, 399 N.E.2d 1177, 1182, 424 N.Y.S.2d 157, 163 (1979); People v.
Tayeh, 96 A.D.2d 1045, 466 N.Y.S.2d 458 (2d Dep’t 1983).
332
People v. Tayeh, 96 A.D.2d 1045, 466 N.Y.S.2d 458 (2d Dep’t 1983) (adequate proof of accuracy and
authenticity where undercover participants testified that the tape recordings of the conversations in which
they participated, accurately and fairly represented those conversations).
333
See People v. James, 1999 N.Y. LEXIS 1433 (1999) (tape recording partially erased by owner
admitted in evidence).
334
54
55
3.6. PHOTOGRAPHS
Photographs are admissible if they tend to prove or disprove a disputed or material issue, to
illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to
335
be offered.
It is not necessary that the person who took the photographs testify. Any person who is
familiar with the subject of the photograph may lay the foundation. The witness must testify that he
recognizes the photographs as being a fair and accurate depiction of the subject.
Photographic evidence should be excluded only if its sole purpose is to arouse the emotions
of the jury and to prejudice the defendant. 336
When relevance is demonstrated, the question as to whether on balance the jury should be
permitted to view such photographs is addressed to the sound discretion of the trial court. 337
A photograph was properly received into evidence that showed the victim while he was still
alive and smiling, since the victim had suffered charring burns over 90 percent of his body, and the photograph
338
was used to corroborate the identification testimony of the victim's uncle.
The Court of Appeals has stated that photographs that are relevant to an issue should not be
339
excluded merely because they are gruesome.
In Wood, the defendant claimed he killed the victim under extreme emotional distress. The
Court held that 44 photographs depicting the victim's injuries were admissible, in the sound discretion of the
court, to rebut the defense, since they depict the severity and calculated nature of the victim's wounds. The
Court noted that admission of the 44 photographs, many of which were similar, raised a legitimate question
335
People v. Wood, 79 N.Y.2d 958; 591 N.E.2d 1178; 1992 N.Y. LEXIS 928, 582 N.Y.S.2d 992 (1992);
Williamson v. Board of Educ., 40 N.Y.2d 979, 359 N.E.2d 432, 390 N.Y.S.2d 924 (1976); Smith v. Lehigh
Val. R. R. Co., 177 N.Y. 379, 384, 69 N.E. 729, 730 (1904).
336
People v. Steinberg, 170 A.D.2d 50; 573 N.Y.S.2d 965; 1991 N.Y. App. Div. LEXIS 10834 (1st Dep't
1991).
337
People v. Randolph, 250 A.D.2d 713; 673 N.Y.S.2d 174; 1998 N.Y. App. Div. LEXIS 5545 (2nd Dep't
1998).
338
People v. Chen, 253 A.D.2d 898; 680 N.Y.S.2d 98; 1998 N.Y. App. Div. LEXIS (2d Dep't 1998).
339
People v. Wood, 79 N.Y.2d 958; 591 N.E.2d 1178; 1992 N.Y. LEXIS 928, 582 N.Y.S.2d 992 (1992).
55
56
for the trial court as to whether the District Attorney offered the photographs solely to arouse the emotions of
the jury or to prove his or her case.
If the photographs assist the jury in understanding the medical evidence, the relevancy may
outweigh their prejudicial effect. 340
The inferences drawn from such evidence are left for the jury. 341
3.7. MOTION PICTURES AND VIDEO PICTURES
The court of appeals has emphasized that videotapes and technologically generated
documentation are admissible under standard evidentiary rules requiring authentication and foundation. 342
Once the relevancy of the videotape is established, the question of whether the jury should be
permitted to view it is addressed to the trial court's sound discretion. 343
The decision to admit or exclude videotape evidence generally rests within a trial court's
founded discretion. 344 The court of appeals will reverse only when no legal foundation has been proffered or
when an abuse of discretion as a matter of law is demonstrated, and the appellate division in the additional
circumstance when it exercises its exclusive and plenary interest of justice power. 345
A videotape may be authenticated by the testimony of a witness to the recorded events or of
an operator or installer or maintainer of the equipment that the videotape accurately represents the subject
matter depicted. 346
Testimony, expert or otherwise, may also establish that a videotape "truly and accurately
represents what was before the camera". 347
340
Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981) (color
photographs of the plaintiff with tongs attached to his scalp).
341
Peters v. Gersch, 32 A.D.2d 122, 300 N.Y.S.2d 156 (3d Dep’t 1969)(photos of an automobile accident
scene showing gouge marks, gasoline markings, skid marks, glass, and debris).
342
People v. Patterson, 93 N.Y.2d 80; 710 N.E.2d 665; 1999 N.Y. LEXIS 222; 688 N.Y.S.2d 101 (1999).
343
1991).
344
345
346
People v. Patterson, 93 N.Y.2d 80; 710 N.E.2d 665; 1999 N.Y. LEXIS 222; 688 N.Y.S.2d 101 (1999);
People v Byrnes, 33 N.Y.2d 343, 347-349, 352 N.Y.S.2d 913, 308 N.E.2d 435).
56
57
Evidence establishing the chain of custody of the videotape may additionally buttress its
authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from
348
tampering.
Such methods of authentication are not exclusive. 349
3.7.1. Day In The Life Films
“Day in the life” films, which depict the daily routine of a plaintiff in a personal-injury action,
may be admissible, even though unpleasant, if their probative value outweighs their prejudicial effect. Even if
there is ample uncontradicted medical testimony of the plaintiff’s injuries, a motion picture illustrating in an
informative and noninflammatory manner the impact of the accident on the plaintiff’s life may be admissible,
in the discretion of the court. 350
3.7.2. Similarity
The introduction of a photograph depicting student stunt driving was highly prejudicial,
where there was a different vehicle, driver, manner of operation, location, and time. 351
There must be a connection between the photographically related activity and the accident
that injured plaintiff. In Williamson, the only similarity was that both the photograph and the accident
involved a motorcycle. Although there was proof that the defendants performed stunts on motorcycles prior
to the accident, there was no proof that the stunts performed prior to the accident in any way contributed to
or even were related to the accident. 352
In Williamson, the plaintiff attempted to salvage the admissibility of the photograph by
claiming that it tended to prove notice on the part of the faculty of the defendant school that students
347
People v. Patterson, 93 N.Y.2d 80; 710 N.E.2d 665; 1999 N.Y. LEXIS 222; 688 N.Y.S.2d 101 (1999);
People v Byrnes, 33 N.Y.2d 343, 347-349, 352 N.Y.S.2d 913, 308 N.E.2d 435).
348
349
350
Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981) (ten-
minute-long film showing plaintiff, a quadriplegic, narrated by the plaintiff’s brother demonstrating the
impact of the injury on the plaintiff’s life).
351
Williamson v. Board of Educ., 40 N.Y.2d 979, 359 N.E.2d 432, 390 N.Y.S.2d 924 (1976).
352
Williamson v. Board of Educ., 40 N.Y.2d 979, 359 N.E.2d 432, 390 N.Y.S.2d 924 (1976).
57
58
performed the dangerous stunt depicted. The court held that there was no teacher in the photograph
observing the stunt, nor any proof that a faculty member saw the particular stunt being depicted in the
photograph. Thus, the photograph did not prove anything and was inadmissible.
3.8. TESTS IN COURTROOM
While tests and demonstrations in the courtroom should not be rejected lightly, courts must
be alert to the danger that when ill-designed or not properly relevant to the point at issue, tests and
demonstrations also may serve to mislead, confuse, divert, or otherwise prejudice the purposes of the trial. 353
When there is such a threat, the trial court itself must decide in the exercise of sound
discretion based on the nature of the proffered proof and the context in which it is offered whether the value
of the evidence outweighs its potential for prejudice. 354
3.9. OBSERVATIONAL VIEWPOINT TESTS
Results of a test to show that a party or witness could not have seen what he claims to have
seen are admissible, if the conditions under which the experiment was conducted, duplicated the conditions
at the time of the incident. 355
When circumstances at the time of the experiment vary from those existing at the time of the
occurrence, it affects the weight of the testimony, but it is not a basis for exclusion of the evidence. 356
It is proper to admit results of experiments as to the distances in which a similar train under
similar conditions to those prevailing at the time of the accident could be stopped. As long as the test
353
People v. Acevedo, 40 N.Y.2d 701, 358 N.E.2d 495, 389 N.Y.S.2d 811 (1976); See People v. Fiori,
123 A.D. 174, 22 N.Y. Crim. 77, 108 N.Y.S. 416 (4th Dep’t 1908); Kratche v. New York Cent. R.R. Co.,
228 A.D. 820, 240 N.Y.S. 443 (2d Dep’t 1930).
354
People v. Acevedo, 40 N.Y.2d 701, 358 N.E.2d 495, 389 N.Y.S.2d 811 (1976); See USS v. Town of
Oyster Bay, 37 N.Y.2d 639, 641, 339 N.E.2d 147, 149, 376 N.Y.S.2d 449, 450 (1975); People v.
Buchanan, 145 N.Y. 1, 39 N.E. 846 (1895); McMahon v. Brooklyn & N.Y. Ferry Co., 10 A.D. 376, 75 N.Y.
St. Rep. 1394, 41 N.Y.S. 1026 (2d Dep’t 1896).
355
Thomas v. Central Greyhound Lines Inc, 6 A.D.2d 649, 180 N.Y.S.2d 461, 1958 N.Y. App. Div. LEXIS
3923 (1958) (experiment to show plaintiff passenger on bus could not see center line of highway 6 to 12
inches left; experiment conducted in garage with same bus, on similar surface, and angle of vision tested
from eight different points through the window alongside which plaintiff was seated).
356
Thomas v. Central Greyhound Lines Inc, 6 A.D.2d 649, 180 N.Y.S.2d 461, 1958 N.Y. App. Div. LEXIS
3923 (1958).
58
59
conditions are similar, the evidence is admissible. A variation in circumstances affects the weight of the
testimony but is not a basis for its exclusion. 357
A hearing officer properly tested observational ability by viewing an exchange of glassine
envelope-sized slips of paper at a distance of 40 feet through the officer’s binoculars. 358
3.10. SURVEILLANCE
Testimony from a private investigator who observed the activities of the plaintiff over a four-
day period was admissible to contradict the plaintiff’s testimony that he drove “minimally” for only a mile or
so at a time, that he could not lift “anything of any weight,” and, specifically, that he could not lift or carry a
suitcase. The investigator observed the plaintiff driving his vehicle at least 12 miles and carrying a valise
measuring 2 feet by 3 feet. 359
3.11. SCIENTIFIC TESTS
Although perfection in test results is not a prerequisite to the admissibility of evidence
obtainable by the use of scientific instruments, the rule has been to grant judicial recognition only after the
instrument has been sufficiently established to have gained general acceptance in the particular field to which
it belongs. 360
Scientific evidence will only be admitted at trial if the procedure and results are generally
accepted as reliable in the scientific community. 361
In evaluating whether novel scientific testimony is admissible, the balancing considerations
are relevance, reliability, and helpfulness of the evidence on the one hand and likelihood of waste of time,
confusion, and prejudice on the other. 362
357
Washington v. Long Island Rail Road Company, 13 A.D.2d 710, 214 N.Y.S.2d 115 (2d Dep’t 1961).
358
People v. Mariner, 147 A.D.2d 659, 538 N.Y.S.2d 61, 1989 N.Y. App. Div. LEXIS 2022 (2d Dep't 1989)
359
Dittrich et al. v. New York City, 144 A.D.2d 335, 533 N.Y.S.2d 929, 1988 N.Y. App. Div. LEXIS 11163
(1988).
360
People v. Schreinder, 77 N.Y.2d 733, 570 N.Y.S.2d 464 (1991); Wigmore, Evidence, § 990 (3d ed.).
See § 3.11.1,
361
Frye v. United States, 293 F. 1013 (1923) (e.g., reproductions by photography, X-rays,
electroencephalograms, electrocardiograms, speedometer readings, time by watches and clocks, identity
by fingerprinting, and ballistic evidence).
59
60
The question is not whether the opinion of the expert itself is accepted in the relevant
community, but instead whether the scientific technique is accepted. 363
The test is not whether a particular procedure is unanimously endorsed by the scientific
community, but whether it is generally acceptable as reliable. 364
At trial in a criminal case, the accuracy and intrinsic reliability of a scientific test to identify a
controlled substance must be established beyond a reasonable doubt. 365
At a preliminary stage of a proceeding, such as to establish legally sufficient evidence for an

366
indictment or juvenile delinquency petition, it is not necessary to satisfy the Frye test and establish the
367
test's general acceptance within the scientific community.
It is not necessary to conduct a Frye hearing when such a hearing is not specifically
368
requested.
369
Novel scientific evidence may be admitted without any hearing at all by the trial court.
3.11.1. Frye hearing
Expert testimony based on scientific principles or procedures is admissible only after a

370
principle or procedure has "gained general acceptance" in its specified field.
362
In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223 (1985), aff’d, 818 F.2d 187, cert.
denied, Lombardi v. Dow Chemical Co., 487 U.S. 1234, 108 S. Ct. 2898, 101 L.Ed.2d 932 (E.D.N.Y.
1985).
363
1985).
364
People v. Smith, 63 N.Y.2d 41, 468 N.E.2d 879, 479 N.Y.S.2d 706 (1984).
365
Matter of Angel A., 92 N.Y.2d 430; 704 N.E.2d 554; 1998 N.Y. LEXIS 3219; 681 N.Y.S.2d 787 (1998).
366
See 3.11.1, 3.11.13.1
367
Matter of Angel A., 92 N.Y.2d 430; 704 N.E.2d 554; 1998 N.Y. LEXIS 3219; 681 N.Y.S.2d 787
(1998)(NIK field test to support juvenile delinquency petition); People v. Swamp, 84 N.Y.2d 725, 622
N.Y.S.2d 472, 646 N.E.2d 774 (NIK test to support indictment for cocaine).
368
People v. Angelo, 88 N.Y.2d 217; 666 N.E.2d 1333; 1996 N.Y. LEXIS 308; 644 N.Y.S.2d 460 (1996).
369
People v. Wesley, 83 N.Y.2d 417; 633 N.E.2d 451; 1994 N.Y. LEXIS 319; 611
N.Y.S.2d 97 (1994), citing Lahey v. Kelly, 71 N.Y.2d 135, 518 N.E.2d 924, 1987 N.Y. LEXIS
19999, 524 N.Y.S.2d 30 (1987); People v. Middleton, 54 N.Y.2d 42, 429 N.E.2d 100, 1981 N.Y.
LEXIS 3066, 444 N.Y.S.2d 581 (1981) .
370
People v. Wesley, 83 N.Y.2d 417; 633 N.E.2d 451; 1994 N.Y. LEXIS 319; 611 N.Y.S.2d 97 (1994).
60
61
The Frye hearing poses the elemental question of whether the accepted techniques, when
properly performed, generate results accepted as reliable within the scientific community generally.
The particular procedure need not be "unanimously indorsed" by the scientific community. 371
The issues of a proper foundation and of the adequacy of laboratory procedures are not
372
addressed in a Frye hearing.
After the Frye hearing had been held and the trial court had found the evidence to be reliable,
373
a foundation for the admission of the particular evidence must be established.
3.11.2. Blood Samples
The chain of custody of any blood sample must be established. 374
The failure to do so may be excused only where the circumstances provide reasonable
assurances of the identity and unchanged condition of the sample. 375
A doctor drew a sample and gave it to a fire department chauffeur, whose name he could not
recall and who was not produced at trial. The chauffeur did not deliver it for more than thirty-six hours. There
was no testimony to indicate who received the sample at the laboratory, its condition on receipt, the size of
the vial containing the specimen, whether it was refrigerated during the long weekend, how the vial was
labeled or identified, or the quantity or condition of its contents upon arrival. Under these conditions, there
can be no reasonable assurance of the unchanged condition of the blood sample. 376
371
372
373
See § 3.11.13.1.
374
Amaro v. City of New York, 40 N.Y.2d 30, 351 N.E.2d 665, 386 N.Y.S.2d 19 (1976).
375
Amaro v. City of New York, 40 N.Y.2d 30, 351 N.E.2d 665, 386 N.Y.S.2d 19 (1976); People v. Porter,
46 A.D.2d 307, 362 N.Y.S.2d 249 (3d Dep’t 1974).
376
Amaro v. City of New York, 40 N.Y.2d 30, 351 N.E.2d 665, 386 N.Y.S.2d 19 (1976) (chauffeur should
have been produced and examined regarding his care and custody of the sample over the weekend); See
Durham v. Melly, 14 A.D.2d 389, 221 N.Y.S.2d 366 (3d Dep’t 1961); Compare People v. Malone, 14
N.Y.2d 8, 247 N.Y.S.2d 641, 197 N.E.2d 189 (1964) (specifically found that a nonalcoholic preparation
was used to sterilize the arm and “that the specimen was not accessible to persons not called as
witnesses”); People v. Porter, 46 A.D.2d 307, 362 N.Y.S.2d 249 (3d Dep’t 1974) (there was “no question
of the identity or condition of the sample received” by the laboratory, and the only period unaccounted for
was “the brief interlude between delivery of the sample to the chemist and his analysis of it”); People v.
Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974) (no missing link in the chain of
custody; objections were raised only as to how custody was maintained, a matter involving questions of
degree “best resolved during a full voir due at trial”).
61
62
3.11.3. Field Sobriety Tests
In order to determine whether a driver is intoxicated, police officers frequently supplement
their observational skills with field sobriety tests such as the "walk and turn", "one-leg stand," reciting the
alphabet or counting, as well as chemical analysis tests of the driver's blood or breath.
Miranda warnings are not required to allow the results of field sobriety tests into evidence.
377
Miranda warnings are not required in order to admit the results of chemical analysis tests, or
a defendant's refusal to take such tests. 378
Miranda warnings are not required in order to admit evidence of a defendant's refusal to
submit to field sobriety tests. 379
3.11.4. Breath Analyzers
The accuracy of breathalyzers for measuring blood alcohol content is generally recognized,
and such tests are admissible, if certain criteria are met. State regulations require that a blood alcohol test
reading be accurate within 0.01 grams per 100 milliliters. 380
Before breathalyzer results are admissible in evidence, the People must establish that the
machine is accurate, that it was working properly when the test was performed, and that the test was
properly administered. 381
377
People v. Hager, 123 A.D.2d 329, 506 N.Y.S.2d 223, 1986 N.Y. App. Div. LEXIS 60104 (2d Dep't
1986); People v. Jacquin, 71 N.Y.2d 825, 527 N.Y.S.2d 728, 522 N.E.2d 1026, 1988 N.Y.
LEXIS 180 (1988).
378
People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584, 1978 N.Y. LEXIS 2383 (1978),
appeal dismissed, Thomas v. New York, 444 U.S. 891, 62 L. Ed. 2d 127, 1979 U.S. LEXIS 3251, 100 S.
Ct. 197 (1979).
379
People v. Berg, 92 N.Y.2d 701; 708 N.E.2d 979; 1999 N.Y. LEXIS 44; 685 N.Y.S.2d 906 (1999).
380
Chemical Analysis of Blood, Urine, Breath or Saliva for Alcoholic Content, 10 N.Y.C.R.R. 59.2 [b] [2];
People v. Campbell, 73 N.Y.2d 481 (1989) (technologist testified that the acceptable range set by the
manufacturers for the DuPont Automatic Clinical Analyzer was outside 0.01 standard; no proof that
DuPont ACA is capable of accurately discerning the critical distinction between a legally permissible
blood alcohol content and that which is statutorily proscribed).
381
People v. Campbell, 73 N.Y.2d 481 (1989); People v. Mertz, 68 N.Y.2d 136, 506 N.Y.S.2d 290 (1986).
62
63
A technologist cannot offer an opinion to the accuracy of the DuPont ACA machine or the
accuracy of the results. A technologist cannot be equated with a chemist or toxicologist who can render an
opinion of blood alcohol content based on firsthand knowledge and experience. 382
The technologist, even though granted a permit by the state, does not qualify as an expert on
the internal workings of the machine, and his or her testimony does not satisfy the distinct foundational
requirement that the machine test blood alcohol content accurately within required specifications.
3.11.5. Speed Radar
The general reliability of stationary traffic radar as an instrument for measuring the speed of a
moving vehicle is recognized, and such radar evidence is held admissible without the need for expert
testimony. 383
Evidence from a radar device that was in motion at the time of recording is admissible
without the need for expert testimony explaining the scientific principles on which it is founded. 384
Since the potential for error with the use of moving radar is greater, the prosecution will bear
a greater burden of proof in demonstrating the accuracy of the particular radar unit involved.
Thus, in addition to establishing that the moving radar was in proper working condition and
that it was operated correctly by one who was qualified and experienced in the operation of traffic radar, the
evidence should show that the police officer independently verified the speed of the patrol vehicle (e.g., by
comparing the speed registered by the radar unit with the speed indicated by the patrol vehicle speedometer),
and that the radar was used in an area posing a minimal risk of misidentification or distortion (e.g., from heavy
traffic, large trucks, or large roadside objects such as billboards). 385
3.11.6. Voice Identification Tests
Voice exemplar evidence by its very nature is different from other common types of exemplar
evidence.
382
People v. Leis, 13 A.D.2d 22, 213 N.Y.S.2d 138 (4th Dep’t 1961).
383
People v. Magri, 3 N.Y.2d 562, 170 N.Y.S.2d 335 (1958).
384
People v. Magri, 3 N.Y.2d 562, 566, 170 N.Y.S.2d 335 (1958).
63
64
Because it is difficult to test the authenticity of any speech impediment displayed by a
defendant’s voice exemplars, the trial court has the discretion to reject such voice exemplars. 386
The trial court has discretion to admit voice exemplar evidence without permitting
substantive cross-examination. 387
Voice exemplar evidence is relatively easy to feign. 388
The foundation for the admission of the evidence must rule out the possibility that
defendants could feign the existence of the characteristic speech defect. A speech therapist may be called as an
expert witness to testify whether the speech characteristic could be “camouflaged” during the exemplar. 389
If it is difficult to feign the voice exemplar, it may be reliable. For instance, the Court of
Appeals cited with approval State v. Tillett, 390 in which the complaining witness identified defendant, in
part, because he had a Spanish accent. The defendant’s request to take the stand to read a passage for purposes
of demonstrating to the jury that he did not have an accent was denied by the trial court, but the Louisiana
Supreme Court reversed. The defendant had been identified by his accent, and the court believed a voice
exemplar reliable because it is more difficult for a person to feign the absence of an accent if he nominally
speaks with one.
If the defendant was not identified by the victims by means of his speech, and the defendant
could feign the alleged speech impediment or nasal quality to his voice, any attempt by defendants at trial to
demonstrate the existence of a speech impediment or nasal quality in their voices would not prove that they
had such a problem because of the ease in feigning the defect before a lay jury. 391
385
People v. Magri, 3 N.Y.2d 562, 566, 170 N.Y.S.2d 335 (1958).
386
People v. Scarola, 71 N.Y.2d 769, 777–778, 530 N.Y.S.2d 83, 525 N.E.2d 728 (1988).
387
People v. Scarola, 71 N.Y.2d 769, 777–778, 530 N.Y.S.2d 83, 525 N.E.2d 728 (1988) (1988); See
United States v. Pastore, 537 F.2d 675, 1976 U.S. App. LEXIS 8428, 76-2 U.S. Tax Cas. (CCH) P 9513,
38 A.F.T.R.2d (RIA) 5290, 35 A.L.R. Fed. 616 (2d Cir. 1976) (admissibility of exemplar evidence should
be left to the trial court’s discretion).
388
People v. Scarola, 71 N.Y.2d 769. 777–778, 530 N.Y.S.2d 83, 525 N.E.2d 728 (1988); See also
People v. Harding, 163 Mich. App. 298, 413 N.W.2d 777, 790 (1987), vacated on other grounds, 430
Mich. 859, 420 N.W.2d 826 (1988).
389
390
351 So.2d 1153 (La.).
391
64
65
Voice identification tests must duplicate the circumstances which surrounded the victim’s
voice identification of the defendant. 392
Where the victim testified that the perpetrator had a speech defect when saying the word
“security,” the defendant was permitted to stand up and repeat the words, “You need security,” so the jury
could decide for itself whether he displayed the speech defect. 393
3.11.7. Voice Spectrographic Evidence
The Court of Appeals has held that, without first holding a Frye hearing, 394it was error to
admit testimony of a voice analysis expert who compared spectrographs of two statements and the voice
sample, and rendered an opinion that it was defendant's voice in both of the taped statements. 395
The Court noted that there is marked conflict in the judicial and legal authorities as to the
396
reliability of the procedure. Some jurisdictions have held that voice spectrography evidence is sufficiently
397
reliable to be admissible, while others have held it is not. 398 The legal scholarship on the admissibility of
399
voice spectrography is likewise conflicting
392
People v. Acevedo, 40 N.Y.2d 701, 389 N.Y.S.2d 811, 358 N.E.2d 495, 1976 N.Y. LEXIS 3095 (1976)
(identification to be tested was of brother of defendant, rather than defendant, with whose voice she was
familiar; test would be taking place two years after hearing voice, rather than while immediately familiar
with it; victim much more familiar with defendant’s voice than with his brother’s; identification was based
on twenty to twenty-five minutes of conversation, while defense counsel proposed a test based on
hearing two sentences; test was to be conducted with victim blindfolded, where original identification had
been made with her eyes open and able to observe an individual whose build, height, bushy sideburns,
manner, and mannerisms came through to her despite his mask and coincided with those of a person
whose voice she recognized).
393
People v. Acevedo, 40 N.Y.2d 701, 389 N.Y.S.2d 811, 358 N.E.2d 495, 1976 N.Y. LEXIS 3095 (1976).
394
See 3.11.1; 3.11.13.1.
395
People v. Jeter, 80 N.Y.2d 818; 600 N.E.2d 214; 1992 N.Y. LEXIS 1543; 587 N.Y.S.2d 583 (1992).
396
People v. Bein, 114 Misc. 2d 1021, 453 N.Y.S.2d 343, 1982 N.Y. Misc. LEXIS 3605 (N.Y. Sup. Ct.
1982) (admissible); People v. Collins, 94 Misc. 2d 704, 405 N.Y.S.2d 365, 1978 N.Y. Misc. LEXIS
2350 (1978) (not admissible); People v. Rogers, 86 Misc. 2d 868, 385 N.Y.S.2d 228, 1976 N.Y.
Misc. LEXIS 2536 (1976) (admissible).
397
See, e.g., United States v. Williams, 583 F2d 1194 (2d Cir. ]; Commonwealth v. Lykus, 367 Mass
191, 327 N.E.2d 671; State v Williams, 388 A2d 500 [Me]; State ex rel. Trimble v Hedman, 291 Minn 442,
192 NW2d 432),
398
See, e.g., Windmere, Inc. v International Ins. Co., 105 NJ 373, 522 A2d 405 [1987 decision surveying
judicial writings on voice spectrography]; State v Gortarez, 141 Ariz 254, 686 P2d 1224; People v Kelly,
17 Cal 3d 24, 549 P2d 1240, 130 Cal Rptr 144; Commonwealth v Topa, 471 Pa 223, 369 A2d 1277).
399
See, e.g., Decker and Handler, Voiceprint Identification Evidence--Out of the Frye Pan and Into
Admissibility, 26 Am U L Rev 314 [1977] [ admissible]; Note, Voice Spectrography--Reliability of
65
66
Therefore, it is error to admit voice spectrographic evidence without first holding a Frye
hearing to determine whether voice spectrography is generally accepted as reliable based on the case law and
400
existing literature on the subject.
3.11.8. Lie Detectors
When presented with scientific evidence purporting to gauge the credibility of participants
or witnesses to a criminal incident, the courts have required a very high level of reliability, tantamount to
certainty, as a predicate for its admissibility. 401
Although ordinary scientific proof need not meet such a demanding standard, the increased
amount of certainty has been found appropriate when the fallibility of the scientific procedure might directly
affect the fact finder’s assessment of eyewitness credibility. 402
Thus, the Frye rule has been applied in New York to exclude lie detector evidence. 403
3.11.9. Hypnotic Recal
Hypnotically induced recall is not admissible because hypnosis has not gained general
acceptance in the scientific community as a reliable means of restoring recollections. 404
It has been scientifically demonstrated that hypnosis produces recollections which may
contain a mixture of accurate recall, fantasy, or pure fabrication in unknown quantities. 405
Hypnotically refreshed recollections are thus deemed unreliable because (1) the subject may
be susceptible to suggestions given intentionally or unintentionally by the hypnotist or others present during
Voiceprints Not Established, Therefore Inadmissible, 18 Seton Hall L Rev 405 [1988]; Greene, Voiceprint
Identification: The Case In Favor of Admissibility, 13 Am Crim L Rev 171 [1975]; Jones, Danger--
Voiceprints Ahead, 11 Am Crim L Rev 549 [1973] [inadmissible]).
400
People v. Jeter, 80 N.Y.2d 818; 600 N.E.2d 214; 1992 N.Y. LEXIS 1543; 587 N.Y.S.2d 583 (1992).
401
People v. Hughes, 59 N.Y.2d 523, 542–543, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983); People v.
Leone, 25 N.Y.2d 511, 307 N.Y.S.2d 430 (1969).
402
People v. Allweiss, 48 N.Y.2d 40, 50, 396 N.E.2d 735, 421 N.Y.S. 341 (1979).
403
People v. Leone, 25 N.Y.2d 511, 307 N.Y.S.2d 430 (1969).
404
See 3.11.1; 8.13; People v. Hults, 76 N.Y.2d 190, 557 N.Y.S.2d 270 (1990); People v. Hughes, 59
N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983).
405
People v. Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983).
66
67
the session; (2) the subject may confabulate or intentionally fabricate events in order to fill in memory gaps;
and (3) a witness who has been hypnotized may experience an enhanced confidence in his or her memory of
406
an incident, thereby unfairly impairing a defendant's ability to cross-examine the witness about the event.
If the witness was subjected to pretrial hypnosis, his courtroom testimony could be the
result of suggestion. Detailed proof should be introduced as to the precise procedures that were followed in
the particular instance, including measures taken to reduce the risk of impermissible suggestiveness. 407
The witness may only testify to events recalled prior to being hypnotized. 408
It must be demonstrated by clear and convincing proof that the testimony of the witness was
based on prehypnotic recollection. 409
In People v. Hults, 410 the Court of Appeals extended the Hughes rule to bar the defendant's
use of statements made under hypnosis for cross-examination purposes because the probative value of the
hypnotic statement is directly related to its reliability and the dangers inherent therein relate to all hypnotic
statements.
An admission by a defendant which is the result of hypnotic therapy and posthypnotic
suggestion is not admissible, even if the defendant was not under hypnosis at the time he made the statement.
411
The Court of Appeals has ruled that such recollections are inherently unreliable.
3.11.10. Hair Comparison
Hair comparisons have been admitted in evidence. 412
406
People v. Schreiner, 77 N.Y.2d 733; 573 N.E.2d 552; 1991 N.Y. LEXIS 646; 570 N.Y.S.2d 464 (1991).
407
408
409
410
76 N.Y.2d 190, 557 N.Y.S.2d 270 (1990).
411
People v. Schreiner, 77 N.Y.2d 733; 573 N.E.2d 552; 1991 N.Y. LEXIS 646; 570 N.Y.S.2d 464 (1991).
412
People v. Allweiss, 48 N.Y.2d 40, 50, 396 N.E.2d 735, 421 N.Y.S. 341 (1979).
67
68
3.11.11. RIA Analysis of Human Hair
The RIA analysis of human hair may be used as a “calendar” to provide a chronology of the
plaintiff’s cocaine ingestion. 413
3.11.12. Bite Marks
The Court of Appeals has recognized that identification of the perpetrator of a crime through
bite mark evidence had gained general acceptance in the scientific community. 414
community, but whether it is generally acceptable as reliable. The techniques employed in Middleton
(photography, freezing of tissue specimens, taking of dental molds, visual observation) were approved by the
majority of experts in the field as well as by appellate courts and, therefore, were accepted as generally reliable
without a hearing concerning the scientific principles involved.
The technique of identification of bite marks by a photo-to-photo comparison has been
shown to have requisite scientific acceptability to be admissible in evidence, as has identification by
comparing the marks with models of defendant’s teeth. 415
3.11.13. DNA Evidence
DNA evidence has been found by the Court of Appeals to be generally accepted as reliable by
416
the relevant scientific community. When a proper foundation is made for the evidence at trial, 417 DNA
profiling evidence is admissible. 418
PCR DNA testing has been found to be generally accepted as reliable within the relevant
419
scientific community.
413
People v. Knight, 72 N.Y.2d 481, 534 N.Y.S.2d 353, 530 N.E.2d 1273, 1988 N.Y. LEXIS 2714 (1988)
414
People v. Middleton, 54 N.Y.2d 42, 444 N.Y.S.2d 581 (1981).
415
People v. Smith, 63 N.Y.2d 41, 468 N.E.2d 879, 479 N.Y.S.2d 706 (1984) (reliable because of
similarity in both the substance on which the bite marks were imprinted and the circumstances
surrounding infliction of the marks); People v. Bethune, 105 A.D.2d 262, 484 N.Y.S.2d 577 (2d Dep’t
1984) (bite mark was not rendered inadmissible by reason of the age of the scar).
416
417
See § 3.11.13.1.
418
68
69
3.11.13.1. Foundation for DNA Evidence
Once Frye has been satisfied, the question is whether the accepted techniques were
employed by the experts in the particular case. The focus moves from the general reliability concerns of Frye
to the specific reliability of the procedures followed to generate the evidence proffered and whether they
establish a foundation for the reception of the evidence at trial.
The trial court determines, as a preliminary matter of law, whether an adequate foundation
for the admissibility of this particular evidence has been established. 420 This distinct voir dire foundation is
presented at the trial and is the same as that applied to all evidence, not just to scientific evidence. 421
This second phase considers elements such as how the sample was acquired, whether the
chain of custody was preserved and how the tests were made. Testimony should be introduced that the
appropriate steps were taken in analyzing the DNA evidence, and giving an analysis and explanation of the
422
assumptions underlying the probability calculations.
The foundation does not and should not include a determination of the court that such
evidence is true. That function should be left to the jury. 423
Statistical probability studies are admitted as part of the DNA proof in a case. There must be
testimony as to the reliability of the statistical population studies. 424
Challenges to the population studies relied on by an expert to estimate the probability of a
coincidental match go not to admissibility, but to the weight of the evidence, which should be left to the trier
425
of fact.
419
People v. Hamilton, 681 N.Y.S.2d 117; 1998 N.Y. App. Div. LEXIS 11925 (3d Dep't 1998).
420
421
422
423
424
425
69
70
3.11.13.2. Evaluating Weight of DNA Evidence
Once the Frye reliability and the trial foundation have been established, the evidence is
admissible. At this third stage, the jury is left to hear the testimony and consider the weight of the evidence--
i.e., "possible infirmities in the collection and analysis of data". 426
CHAPTER 4 DOCUMENTARY EVIDENCE
4.1. GENERALLY
426
70
71
A document may be admissible because it is evidence itself or because it relates to the
testimony of a witness. Documents may contain admissions by a party or prior inconsistent statements by a
witness. 427
4.2. BUSINESS RECORDS
Civil Practice Law and Rules 4518. Business records.
(a) Generally. Any writing or record, whether in the form of an entry in a

book or otherwise, made as a memorandum or record of any act, transaction,
occurrence or event, shall be admissible in evidence in proof of that act,
transaction, occurrence or event, if the judge finds that it was made in the
regular course of any business and that it was the regular course of such
business to make it, at the time of the act, transaction, occurrence or event,
or within a reasonable time thereafter. All other circumstances of the
making of the memorandum or record, including lack of personal
knowledge by the maker, may be proved to affect its weight, but they shall
not affect its admissibility. The term business includes a business,
profession, occupation and calling of every kind.
(b) [Hospital Bills, see § 4.5.4 et seq.]
(c) Other records. All records, writings and other things referred to in
sections 2306, 2307 and any record and report relating to the administering
and analysis of a blood genetic marker test administered pursuant to
sections four hundred eighteen and five hundred thirty-two of the family
court act are admissible in evidence under this rule and are prima facie
evidence of the facts contained, provided they bear a certification or
authentication by the head of the hospital, laboratory, library, department
or bureau of a municipal corporation or of the state, or by an employee
delegated for that purpose or by a qualified physician.
The requirements of New York Civil Practice Law and Rules 4518(a) are:
(1) that the record is made in the regular course of business—essentially, that it reflect a
routine, regularly conducted business activity, and that it is needed and relied upon in the performance of
functions of the business;
427
Lubow Machine Co. Inc. v. Simplex Industrial Corp., 35 A.D.2d 932, 316 N.Y.S.2d 413 (1st Dep’t
1970) (document signed by corporate witness relating to product, in a products liability case, admissible
71
72
(2) that it is the regular course of business to make the record (a double requirement of
regularity)—essentially, that the record be made pursuant to established procedures for the routine, habitual,
systematic making of such a record; and
(3) that the record is made at or about the time of the event being recorded—essentially, that
the recollection be fairly accurate and the habit or routine of making the entries assured. 428
New York Civil Practice Law and Rules 4518(a) is made applicable to criminal prosecutions
by Criminal Procedure Law 60.10.
The threshold determination that a document is a business record satisfying the
requirements of the statute is one of law.
Other circumstances of the making of the records may go to weight once the threshold
requirements for admissibility are met. 429
Precursors to New York Civil Practice Law and Rules 4518 are the common-law “shop book”
rule, which permitted merchants to authenticate their books of account as evidence of debts owing to them,
and the common-law regular entries rule, admitting entries made in the regular course of business by a clerk
since deceased.
The purpose of New York Civil Practice Law and Rules 4518 is to permit such records to be
received in evidence without the need to call as witnesses all the individuals who made them. 430
The use of the business records statute has widened considerably, as business and record-
keeping have become increasingly complex and sophisticated.
because it contains statements inconsistent with witness’s testimony).

428
People v. Kennedy, 68 N.Y.2d 569 (1986).
429
CPLR 4518(a). People v. Kennedy, 68 N.Y.2d 569 (1986).
430
For the history of the statute, see Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930); Murray v.
Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 (2d Dep’t 1980); Richardson, Evidence, §§ 294–296 [Prince
10th ed]; Fisch, New York Evidence, § 831 [2d ed]; see generally 5 Wigmore, Evidence, §§ 1517, 1561a
[Chadbourn rev. 1974]; 4 Weinstein, Evidence ¶ 803 [6] [01].
72
73
The business records exception has consistently been expanded by the Legislature and is
liberally applied by the Court of Appeals. 431
The term “business” includes a “business, profession, occupation and calling of every kind.”
The Legislature’s broad definition of “business” embraces a wide range of enterprises, entities, and groups
where records are regularly kept, and there is a dependence on the accuracy of those records. 432
The fact that business records are those of a sole proprietor or that their intended purpose
may be for internal use rather than display to third parties or filing with government agencies is not
disqualifying. 433
As long as the writings do not record purely personal acts or events, but ones made in the
course of some “business” in accordance with statutory requirements, there is no basis for excluding the
private records of a one-man business from the ambit of New York Civil Practice Law and Rules 4518(a).
The concept of “business” has ventured far beyond the mercantile origins of this hearsay
exception, and records and forms previously unimagined are now routinely received in evidence pursuant to
New York Civil Practice Law and Rules 4518. 434
Not every record made in business falls within the exception. Courts must be sensitive to
innovation and not seize on petty irregularities to exclude otherwise trustworthy evidence, but there is also
the countervailing interest of fairness to the party against whom the records are admitted. This is especially
true in a criminal case, where the accused has a constitutional right of confrontation. 435
431
Kelly v. Wasserman, 5 N.Y.2d 425, 185 N.Y.S.2d 538 (1958).
432
People v. Kennedy, 68 N.Y.2d 569 (1986) (two miniature pocket diaries, identified by the People’s
retained expert as the master records of a loan shark).
433
434
See, e.g., Guth Realty v. Gingold, 34 N.Y.2d 440 (1974) (computer printouts; compiling and feeding
data into a computer would seem to be as routine a function as could be imagined and should be
included under CPLR 4518).
435
73
74
The effect of documents which are not subject to cross-examination yet may be taken into
the jury room cannot be ignored. However flexibly or liberally they may be viewed, the purpose and
requirements of the statute remain the touchstone.
The federal business records rule requires that a foundation be “shown by the testimony of
the custodian or other qualified witness.” 436
New York Civil Practice Law and Rules 4518(a) is silent as to who, if anyone, must introduce
a business record, and the issue is without controlling precedent in New York case law.
Business records are customarily offered through a custodian or employee.
The element of unusual reliability is supplied by systematic checking, by regularity and
continuity that produce habits of precision, by actual experience of business in relying upon them, or by a
duty to make an accurate record as part of a continuing job or occupation.
The essence of the business records exception to the hearsay rule is that records
systematically made for the conduct of a business as a business are inherently highly trustworthy because they
are routine reflections of day-to-day operations, and because the entrant’s obligation is for them to be truthful
and accurate for purposes of conducting the enterprise. 437
It must be shown that the entries were made at the time of the acts recorded in them or
within a reasonable time thereafter.438
A certificate made under New York Civil Practice Law and Rules 4518(c) that does not set
forth that the entries in the certified record were made at the time of the events they record or within a
reasonable time thereafter is not admissible under that subdivision. 439
436
Fed. R. Evid., § 803 (6).
437
See Williams v. Alexander, 309 N.Y. 283, 286, 129 N.E.2d 417 (1955).
438
People v. Mertz, 68 N.Y.2d 136 (1986) (breathalyzer logs); People v. Kennedy. 68 N.Y.2d 569 (1986)
(with respect to the time that the entries were recorded in the loan shark’s diaries, the expert’s testimony
failed to establish a regular, methodical, systematic practice).
74
75
A business record is admissible, although the person who prepared the record is available to
testify. 440
4.2.1. Illicit Enterprise
As the federal courts have recognized, “[t]he principles of efficient accounting apply just as
readily to an illicit enterprise as they do to a licit business.”
Records of a criminal enterprise may be a business record within New York Civil Practice
441
Law and Rules 4518.
4.3. BEST EVIDENCE RULE
The best evidence rule requires the production of the original writing or a satisfactory
explanation for its absence. 442
The rule was primarily designed to guard against mistakes in copying or transcribing the
original writing. In modern day practice the rule serves mainly to protect against fraud, perjury and
inaccuracies which derive from faulty memory. 443
439
People v. Mertz, 68 N.Y.2d 136 (1986) (must be either proper foundation testimony under CPLR
4518 (a) or a proper CPLR 4518(c) certificate to establish that the particular instrument used to test a
defendant’s B.A.C. and the ampoules used with it had been tested within a reasonable period in relation
to defendant’s test and found to be properly calibrated and in working order).
440
441
People v. Kennedy, 68 N.Y.2D 569 (1986).
442
Anzalone v. State Farm, 92 A.D.2d 238 (2d Dep’t 1983) (proof that plaintiff was in default in the
payment of any premium installment deficient; the bank’s computer automatically generates a
cancellation notice when there is a default in payment, but no record of plaintiff’s payment history was
produced; computer printouts of the payment history would have been admissible as business records,
but they were not offered in evidence).
443
Schozer v. William Penn Life Ins. Co. of New York, 84 N.Y.2d 639; 644 N.E.2d 1353; 1994 N.Y. LEXIS
4118; 620 N.Y.S.2d 797 (1994).
75
76
Where the contents of a writing are in issue, the original document, unless otherwise
excused, must be produced. 444 For example, on an issue as to whether a lease had been transferred or
assigned, the actual written transfer or assignment is the best evidence. 445
Testimony that is based upon records that are not produced, without a bona fide reason, is
inadmissible. 446
The best evidence objection is inapplicable when the document is not introduced to prove
447
the contents of another original written document.
An expanded definition of "writings" is employed in recognition of the fact that evidentiary
rules concerning the admissibility of originals should be fashioned with a breadth sufficient to encompass
modern techniques for storing and retrieving data. 448
Thus, for instance, an Xray is a "writing" to which the best evidence rule applies. 449
The more important the document to the resolution of the ultimate issue in the case, the
stricter becomes the requirement of the evidentiary foundation establishing loss for the admission of
secondary evidence. The court should give careful consideration to the possible motivation for the
450
nonproduction of the original in determining whether the foundational proof of loss was sufficient.
The proponent of secondary evidence has the heavy burden of establishing, preliminarily to
the court's satisfaction, that it is a reliable and accurate portrayal of the original. As a threshold matter, the
444
Mastan Company, Inc. v. Weil, 84 A.D.2d 657 (3d Dep’t 1981) (mortgage documents and records).
445
Curran v. Newport Associates, Inc., 57 A.D.2D 882 (2d Dep’t 1977).
446
Curran v. Newport Associates, Inc., 57 A.D.2d 882 (2d Dep’t 1977).
447
448
4118; 620 N.Y.S.2d 797 (1994).
449
See § 4.7.
450
4118; 620 N.Y.S.2d 797 (1994).
76
77
trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the
original before ruling on its admissibility. 451
4.3.1. Excuse for Failure to Produce Original
Secondary evidence of the contents of an unproduced original may be admitted upon
threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the
unavailability of the primary evidence and has not procured its loss or destruction in bad faith. 452
Loss may be established upon a showing of a diligent search in the location where the
document was last known to have been kept, and through the testimony of the person who last had custody of
the original. 453
When the original is not produced because it has been lost or destroyed, there should be a
454
finding as to whether the loss or destruction was in bad faith. Whether documents are lost or destroyed in
455
bad faith may require a hearing.
4.3.2. Copies Made in Regular Course of Business
New York Civil Practice Law and Rules 4539. Reproductions of original.
If any business, institution, or member of a profession or calling in the

regular course of business or activity has made, kept or recorded any
writing, entry, print or representation and in the regular course of business
has recorded, copied, or reproduced it by any process which accurately
reproduces or forms a durable medium for reproducing the original, such
451
4118; 620 N.Y.S.2d 797 (1994).
452
4118; 620 N.Y.S.2d 797 (1994).
453
4118; 620 N.Y.S.2d 797 (1994).
454
NW Liquidating Corp. v. Helmsley-Spear, Inc., 248 A.D.2d 304; 670 N.Y.S.2d 488; 1998 N.Y. App. Div.
LEXIS 349 (1st Dep't 1998).
455
NW Liquidating Corp. v. Helmsley-Spear, Inc., 248 A.D.2d 304; 670 N.Y.S.2d 488; 1998 N.Y. App. Div.
LEXIS 349 (1st Dep't 1998) (court improperly relied upon the mere discarding of the carbon copies without
any finding as to whether the loss or destruction was the result of bad faith).
77
78
reproduction, when satisfactorily identified, is as admissible in evidence as

the original, whether the original is in existence or not, and an enlargement
or facsimile of such reproduction is admissible in evidence if the original
reproduction is in existence and available for inspection under direction of
the court. The introduction of a reproduction does not preclude admission
of the original. (Emphasis added).
New York Civil Practice Law and Rules 4539 carves out an exception to the best evidence
rule for business records which are copied or reproduced, on the rationale that today’s commercial world
relies on the accuracy of such copies without question. 456
The rule recognizes the fact that the modern business practice is to make photographic
reproductions in the regular course of business, and photographic reproductions are sufficiently trustworthy
to be treated as originals for the purpose of the best evidence rule. 457
It is not necessary to establish that the exhibit was compared to the original and found to be
an accurate copy. It is enough that the document is identified as a photocopy of the original, or the product of
some similarly accurate copying process. 458
A fax transmission is admissible under this rule. 459
Computer printouts of a payment record are admissible in evidence as business records, if a
proper foundation has been laid. 460
456
People v. May, 162 A.D.2d 977 (4th Dep’t 1990).
457
People v. May, 162 A.D.2d 977 (4th Dep’t 1990); People v. Flores, 138 A.D.2d 512 (2d Dep’t 1988)
(photocopies of the laboratory submission forms which accompanied packets of cocaine through the
series of laboratory tests, admissible).
458
459
460
People v. Potter, 682 N.Y.S.2d 238; 1998 N.Y. App. Div. LEXIS 12488 (3d Dep't 1998).; Guth Realty v.
Gingold, 34 N.Y.2d 440, 451 (1974).
78
79
4.3.3. Summaries of Voluminous Writings
The “voluminous writings” exception to the best evidence rule permits the admission of
summaries of voluminous records or entries where, if requested, the party against whom it is offered can have
access to the original data. 461
Summaries or balances of accounts may be produced to prove aggregate profits or receipts
without the need to produce those documents which set forth the underlying data. 462
A 350 page computer printout containing the entries that were summarized was admissible.
463
The best evidence rule does not require that the original bills from which the summaries
were prepared be produced. 464
Business summaries have been deemed to be independent from the writings or documents
upon which they are drawn. 465
Where an accountant prepared résumés of gross receipts on a month-to-month basis, tallying
the amounts owed to plaintiff from his own records and those of the defendant, and would then draw up bills
and a summary based upon the gross receipts, the résumés have an independent business function and are
separate and distinct from the corresponding bills. As such, the résumés are independently admissible. 466
461
Guth Realty v. Gingold, 34 N.Y.2d 440 (1974).
462
R & I Electronics, Inc. v. Neuman, 81 A.D.2D 832 (2d Dep’t 1981); 4 Wigmore, Evidence, § 1244
(Chadbourne rev.), pp. 578–579.
463
People v. Potter, 682 N.Y.S.2d 238; 1998 N.Y. App. Div. LEXIS 12488 (3d Dep't 1998).
464
R & I Electronics, Inc. v. Neuman, 81 A.D.2d 832 (2d Dep’t 1981).
465
466
79
80
4.3.4. Oral Testimony to Establish Contents of Writing
When oral testimony is received to establish the contents of an unavailable writing, the
proponent of that proof must establish that the witness is able to recount or recite, from personal knowledge,
substantially and with reasonable accuracy all of its contents 467
Once a sufficient foundation for admission is presented, the secondary evidence is subject to
an attack by the opposing party not as to admissibility but to the weight to be given the evidence, with the
final determination left to the trier of fact. 468
While admission of oral testimony as to the contents of a writing reduces or prevents
effective cross-examination, the Court of Appeals has noted that the proponent of secondary evidence will be
discouraged from introducing less convincing secondary evidence because an opponent may cause the jury to
draw an unfavorable inference from such a strategy. 469
4.4. ACCIDENT REPORTS
4.4.1. Employee Accident Reports
Employees are usually required to prepare reports after an accident. For example, operators
of public transportation are required to file written reports about the accident. 470
Hospital employees are required to prepare “Incident Reports” to their supervisors. 471
467
4118; 620 N.Y.S.2d 797 (1994).
468
4118; 620 N.Y.S.2d 797 (1994).
469
4118; 620 N.Y.S.2d 797 (1994).
470
E.g., De Vito v. New York C.R. Co., 32 Misc.2d 494, 146 N.Y.S.2d 545 (Sup. Ct. 1955) (railroad
employees); Bloom v. New York City Transit Authority, 20 A.D.2d 687, 246 N.Y.S.2d 414 (1st Dep’t 1964)
(engineer and conductor of subway train); Green v. Carey Transportation, Inc., 38 A.D.2d 711, 329
N.Y.S.2d 331 (2d Dep’t 1972) (bus driver).
80
81
If an accident report is prepared exclusively for litigation, it is not admissible under New
York Civil Practice Law and Rules 4518(a) as a record prepared in the ordinary course of business. 472
If the report was not prepared exclusively for litigation, it is discoverable by an opponent
under New York Civil Practice Law and Rules 3101(g), and it is admissible in evidence when offered by the
opponent as a business record, as well as for any admissions or prior inconsistent statements in the report. 473
If the accident report is prepared exclusively for litigation, it is not discoverable. Such a claim
is often made in pretrial discovery, in opposition to disclosure of the accident report.
Such a pretrial claim must result in exclusion of the accident report when offered as a
business record at the trial. 474
The employee’s accident report is made at a time when there is a motive to falsify. Thus,
courts have held that a report prepared by an employee of a party to the action is not admissible when it is
offered by that employer party or when the employee providing the information has reason to be biased or to
give a false report. 475
Self-serving statements in an employee’s accident report are generally inadmissible. 476
Other courts have held that even self-serving statements in the report of an employee of a
party are admissible, where the document was prepared in the regular course of business. 477
471
E.g., Moon v. MacKay, 64 A.D.2d 1022, 409 N.Y.S.2d 305 (4th Dep’t 1978); Soifer v. Mt. Sinai
Hospital, 63 A.D.2d 713, 405 N.Y.S.2d 116 (2d Dep’t 1978).
472
Beltrone v. New York City Transit Authority, 33 A.D.2d 908 (2d Dep’t 1970).
473
People v. Foster, 27 N.Y.2d 47, 261 N.E.2d 389, 313 N.Y.S.2d 384 (1970); Toll v. State, 32 A.D.2d 47,
299 N.Y.S.2d 589 (3d Dep’t 1969); Bromberg v. City of New York, 25 A.D.2d 885, 270 N.Y.S.2d 425 (2d
Dep’t 1966).
474
Beltrone v. New York City Transit Authority, 33 A.D.2d 908 (2d Dep’t 1970).
475
Needle v. The New York RYS. Corp., 227 A.D. 276, 237 N.Y.S. 547 (1st Dep’t 1929) (information
obtained from defendant motorman).
476
Weber v. City of New York, 87 A.D.2d 768, 449 N.Y.S.2d 225 (1st Dep’t 1982); Galanek v. New York
City Transit Authority, 53 A.D.2d 586, 385 N.Y.S.2d 62 (1st Dep’t 1976) (report of motorman).
477
Toll v. State, 32 A.D.2d 47, 299 N.Y.S.2d 589 (3d Dep’t 1969); Bishin v. New York Central R.R., 20
A.D.2d 921, 249 N.Y.S.2d 778 (3d Dep’t 1964); Bromberg v. City of New York, 25 A.D.2d 885, 270
N.Y.S.2d 425 (2d Dep’t 1966).
81
82
Such courts hold that self-serving statements in the accident report affect the weight of the
statements, but not the admissibility of the document.
New York Civil Practice Law and Rules 4518(a) states that “[all] other circumstances of the
making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to
effect its weight, but they shall not effect its admissibility.”
The proposed code of evidence for New York, section 803(6), would permit an exception to
the admissibility of business records where “the source of the information or the method or circumstances of
preparation indicate lack of trust.”
While a report prepared exclusively for litigation is conditionally immune from disclosure, 478
if the opponent nevertheless obtains the report, admissions and prior inconsistent statements in the report are
admissible.
4.4.2. Motor Vehicle Accident Reports
The New York Motor Vehicle and Traffic Law requires that a person involved in an
automobile accident involving injuries file an accident report with the Department of Motor Vehicles. 479
Failure to make the report within ten days after the accident results in the suspension of the
operator’s license.
The accident report requires a statement as to how the accident happened, and it is
frequently made without the assistance of counsel. For that reason, such reports are sources of inconsistent
statements and admissions in automobile accident cases.
Motor vehicle accident reports are known as MV 104 forms, are public documents, and may
be obtained by filling out an MV 104 request form and submitting it to the Department of Motor Vehicles
with the appropriate fee. 480
478
CPLR 3 101(d)(2),
82
83
In order for an MV 104 form to be admissible, the record must be certified by the Department
of Motor Vehicles. This requires an additional fee and a specific request. The MV 104 Accident Report cannot
be admitted in evidence by the party who prepared it, since it is hearsay and self-serving. 481
When offered by an opponent a statement by a party in an accident report is admissible as an
admission or as a prior inconsistent statement. 482
If the party understands and concedes the same information contained in the MV 104, the
MV 104 is cumulative and may be excluded from evidence. 483
Thus, generally, only the portion of the MV 104 form that contains inconsistent statements is
admissible. 484
To be inconsistent, the statement does not have to be a “direct and positive contradiction.” It
is enough that the statement “tends to prove different facts” or “material inconsistencies.” 485
The party who made the inconsistent MV 104 Accident Report cannot have the entire MV
104 report admitted; only the inconsistent statements in the report are admissible. 486
4.4.3. Police Accident Reports
An accident report prepared by the police is usually based on statements made by the
operators and witnesses, as well as observations by the officer. Additional data is usually recorded in the
officer’s “memo book.”
479
N.Y. Veh. & Traf. Law § 605 (injury or property damage exceeding $600.00).
480
Blandford v. McClellan, 173 Misc. 15, 16 N.Y.S.2d 919 (Sup. Ct. Erie Co. 1940).
481
Green v. Downs, 27 N.Y.2D 205, 265 N.E.2d 68, 316 N.Y.S.2d 221 (1970).
482
Gangi v. Fradus, 227 N.Y. 452, 125 N.E. 677 (1920); Grassie v. Brown, 36 A.D.2d 720, 318 N.Y.S.2d
812 (2d Dep’t 1971) (admission and inconsistent statement by the defendant driver that plaintiff’s vehicle
was stationary); Yeargans v. Yeargans, 24 A.D.2d 280, 265 N.Y.S.2d 562 (1st Dep’t 1965).
483
See generally Dempsey v. National Car Rental, 87 A.D.2d 835, 449 N.Y.S.2d 270 (2d Dep’t 1982);
Heiney v. Pattillo, 76 A.D.2d 855, 428 N.Y.S.2d 513 (2d Dep’t 1980).
484
Schiffer v. Korman, 40 A.D.2d 681, 336 N.Y.S.2d 169 (2d Dep’t 1972).
485
Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 269, 98 N.E. 465 (1912) (“tends to prove different
facts”); Conway v. Riveria, 21 A.D.2d 655, 249 N.Y.S.2d 681 (1st Dep’t 1964) (“material inconsistencies”).
83
84
The police accident report form has a section calling for a description of the accident, which
is usually prepared based on statements by the operators and the witnesses. There is also a portion of the form
entitled “Contributing Factors” which lists a number of causes of the accident, such as mechanical failure,
alcohol involvement, inattention, or following too closely.
In most automobile accident cases, one party wants to get the police officer’s evaluation of
“Contributing Factors” before the jury. Language used by an operator and quoted by the policeman in his
description of the accident is also often sought as an admission. Any statement made by a nonparty witness
may be a prior inconsistent statement.
The police report is admissible as a record made in the regular course of business. 487
A business record is admissible only to the extent to which the person making the record
could testify if he were on the stand. A police officer may testify as to his own physical observations, made
upon arrival at an accident scene. 488
The portion of the police accident report which records the police officer’s own observations
while carrying out his police duties is admissible in evidence. 489 The police report must be redacted to include
only those portions that contain facts personally observed by the officer.
The police officer may also testify as to what the plaintiff or the defendant told him. 490
Where the source of the information is identified as a party to the action, statements made to
the police officer and recorded by him in the police report are admissible as admissions.
The source of the statement must be identified by the officer’s testimony at trial or in the
police report.
486
487
CPLR 4518
488
Zaulich v. Thompkins Square Holding Co., 10 A.D.2d 492, 200 N.Y.S.2d 550 (1st Dep’t 1960).
489
Mooneyh v. Osowiecky, 235 A.D.2d 603; 651 N.Y.S.2d 713; 1997 N.Y. App. Div. LEXIS (3rd Dep't
1997); Trbovich v. Burke, 234 A.D. 384, 255 N.Y.S. 100 (4th Dep’t 1932).
490
Trbovich v. Burke, 234 A.D. 384, 255 N.Y.S. 100 (4th Dep’t 1932).
84
85
If the source of the information is not a party, the source must be under a business duty to
report the information to the police officer. If not, the particular information contained in the police report is
inadmissible. 491
New York Civil Procedure Law and Rules 4518(a) permits admission of a police report if:
1. The entrant of the facts stated in the police report was the witness, or
2. The person giving the entrant the information was under a business duty to relate the facts
to the entrant.
If neither of these two requisites is satisfied, the record may be admitted to prove:
1. That the statement recorded in the report was made by an outsider, even though the main
facts set forth in the business record are hearsay and excludable.
2. The facts recited in this statement may be proven by the business record if the statement
qualifies as a hearsay exception, e.g., an admission. 492
4.4.3.1. Admission of Police Report
The police officer must be asked:
1. The source of the information in the report; and
2. If the police officer himself was not the source of the information, he must identify the
source.
The report is admissible if the source is either:
1. A party, so that the statement constitutes an admission; or
2. A person who is under a duty to impart the information to the police officer. 493
491
Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 (2d Dep’t 1980); Hayes v. State of New York, 50
A.D.2d 693, 376 N.Y.S.2d 647 (3d Dep’t 1975), aff’d, 40 N.Y.2d 1044, 360 N.E.2d 959, 392 N.Y.S.2d 282
(1976); Prado v. Onor Oscar, Inc., 44 A.D.2D 604, 353 N.Y.S.2d 789 (2d Dep’t 1974).
492
Kelly v. Wasserman, 5 N.Y.2d 425, 185 N.Y.S.2d 538 (1958).
85
86
The source of the information must have had personal knowledge of the act or event or
conditions stated, and the source must be under a business duty to report the information to the person
preparing a report. 494
A police accident report, which is based upon information given to the investigating officer
by a participant in the accident, is not admissible as a business record since the participant declarant is under
495
no duty to render the information contained.
If the testimony of the police officer as to source of the information upon which his entries
were based is vague, and it fails to identify any person under a business duty to relate the facts to him, the
police report or “Aided and Accident Report” is inadmissible, even though based on interviews in the
emergency room with persons involved in the accident. 496
Where a police officer interviews witnesses and writes that the cause of accident was the
excessive speed of the defendant’s vehicle, there must be testimony as to who made the statement of the
excessive speed and that the person who made the statement was under a business duty to make the
statement. 497
If the police report attributes a statement to three witnesses, and one of those witnesses
makes an inconsistent statement at the time of trial, the police report cannot be used to impeach that one
witness, unless the police report is clear as to the fact that that particular witness made the statement. 498
493
Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930); See generally Yeargans v. Yeargans, 24 A.D.2d
280, 265 N.Y.S.2d 562 (1st Dep’t 1965).
494
Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 (2d Dep’t 1980).
495
1997); Hatton v. Gassler, 219 A.D.2d 697; 631 N.Y.S.2d 757; 1995 N.Y. App. Div. LEXIS (2nd Dep't
1995).
496
Right v. McCoy, 41 A.D.2d 873, 343 N.Y.S.2d 143 (3d Dep’t 1973).
497
Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 (2d Dep’t 1980).
498
Kaczmarskij v. Mattil, 23 A.D.2d 804, 258 N.Y.S.2d 205 (4th Dep’t 1965) (accident report objectionable
as improperly bolstering the testimony of the other two witnesses).
86
87
The police officer must testify that the particular witness made the inconsistent statement, if
the police report is not clear. 499
A statement by a driver is not admissible, unless the proper evidentiary foundation is laid
that the statement was either an admission, a declaration against interest, a spontaneous declaration, or some
other applicable hearsay exception.
While backing up, a driver accelerated and crushed the plaintiff against the wall; his
statement to the police officer that the accelerator was stuck was held to be inadmissible. 500
Where the statement by the driver is exculpatory, rather than inculpatory, it is not a
declaration against interest. It cannot be said that the driver had no motive to falsify. 501
Nor could the statement in Cover be a spontaneous declaration or excited utterance. The
record did not sufficiently establish the time interval between the event and the statement, the driver’s
condition at the time of the utterance, or whether the statement was made in a response to an inquiry.
Without this information in the record, the statement was inadmissible as a spontaneous declaration. 502
4.4.3.2. Diagram of Accident Scene
Police accident scene diagrams may be admitted into evidence if they are based on the
officer's personal observations, as long as they have been made immediately after the accident and prior to the
movement of the involved vehicles. 503
Where a vehicle has been moved from the point of impact to the shoulder of the road before
the officer arrived, the diagram could not have been made upon the officer's first-hand observations.
Admission of the officer's diagram under such circumstances was held to be reversible error. 504
499
Kaczmarskij v. Mattil, 23 A.D.2d 804, 258 N.Y.S.2d 205 (4th Dep’t 1965).
500
Cover v. Cohen, 61 N.Y.2D 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984) (driver died before trial).
501
Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984) (driver died before trial).
502
Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984) (driver died before trial).
87
88
4.4.3.3. Absence of Statement in Police Report
A police report is inadmissible to prove that no statement was made. Thus, where a witness
testifies that a defendant driver made certain admissions about an accident at the scene of an accident, the
defendant cannot introduce the police report to show that no such admissions are contained in the police
report. 505
4.4.3.4. Police Officer’s Memo Book
Police department riles require police officers to carry a memorandum book. The
memorandum book may be called for on cross-examination, and the police officer may be examined
concerning it, even though he did not refer to it on direct. 506
The police officer may offer an explanation for any inconsistencies between his reports and
his trial testimony, such as errors by the recorders in reducing his statements to writing. 507
4.4.3.5. Conclusions in Police Report
The accident report is not admissible to the extent that it contains opinions or conclusions
508
drawn from the facts. Thus, the opinion of a police officer that one story is credible and another is not is
inadmissible. 509
503
1997).
504
1997).
505
Guido v. Kuster, 36 A.D.2d 727, 320 N.Y.S.2d 261 (2d Dep’t 1971).
506
Echtermacht v. Cohen, 24 A.D.2d 968, 265 N.Y.S.2d 422 (1st Dep’t 1965).
507
Keane v. City of New York, 57 A.D.2d 789, 394 N.Y.S.2d 681 (1st Dep’t 1977).
508
Hatton v. Gassler, 219 A.D.2d 697; 631 N.Y.S.2d 757; 1995 N.Y. App. Div. LEXIS (2nd Dep't 1995);
Szymanski v. Robinson, 234 A.D.2d 992; 651 N.Y.S.2d 826; 1996 N.Y. App. Div. LEXIS (4th Dep't 1996),
509
Brereton v. McEvoy, 44 A.D.2d 594, 353 N.Y.S.2d 512 (2d Dep’t 1974).
88
89
Neither the police report nor the police officer’s memo book is admissible to show the
officer’s conclusion as to how the accident happened. A police officer’s opinion testimony as to how an
accident occurred is inadmissible. 510
A police officer can express conclusions regarding the point of impact of colliding vehicles
without being qualified as an expert in accident reconstruction. Testimony regarding observations at the
scene and conclusions regarding point of impact based on those observations do not require any particular
expertise. 511
Conclusions might be admissible if based on post-incident expert analysis of observable

512
physical evidence. There must be a showing that the Trooper is an expert in accident reconstruction.
A police officer may be qualified to give an opinion as to the cause of an accident, if a
foundation is laid that the officer is an accident reconstruction expert.
If the police officer is outside the jurisdiction or otherwise unavailable for trial, his certified
police report is still inadmissible, without limitation as to its use. 513
4.4.3.6. Prior Consistent Statement
A police officer cannot testify as to a defendant's statements at the scene concerning how the
514
accident occurred, if offered to bolster consistent statements made at trial. Such prior consistent
510
Hatton v. Gassler, 219 A.D.2d 697; 631 N.Y.S.2d 757; 1995 N.Y. App. Div. LEXIS (2nd Dep't 1995).;
Neill v. Jodum Cab Corporation, 38 A.D.2d 562, 328 N.Y.S.2d 540 (2d Dep’t 1971).
511
Kapinos by Kapinos v. Alvarado, 143 A.D.2d 332, 532 N.Y.S.2d 416 (2d Dep’t 1988).
512
Szymanski v. Robinson, 234 A.D.2d 992; 651 N.Y.S.2d 826; 1996 N.Y. App. Div. LEXIS (4th Dep't
1996).
513
Yeargans v. Yeargans, 24 A.D.2d 280, 265 N.Y.S.2d 562 (1st Dep’t 1965)
514
1997); Hatton v. Gassler, 219 A.D.2d 697; 631 N.Y.S.2d 757; 1995 N.Y. App. Div. LEXIS (2nd Dep't
1995).
89
90
statements may only be introduced when plaintiff attacked defendant's trial testimony as a recent fabrication.
515
A police report may be admissible to show a prior consistent statement, if the testimony at
trial is attacked as a recent fabrication. 516
If the cross-examination supports an inference that the person’s testimony is being attacked
as a recent fabrication, the officer’s memo book, containing consistent statements, is also admissible to rebut
that inference. 517
4.5. HOSPITAL RECORDS
At common law, for hospital records to be admissible, a foundation was required to be laid by
someone with knowledge of the hospital’s record-keeping procedures. The witness would testify that the
record was made in the regular course of the hospital business, that it was a regular business of the hospital to
make such record, and that the record was made at or soon after the information was obtained. 518
New York Civil Practice Law and Rules 4518(c) eliminates the common-law requirement by
permitting the admission in evidence of the certified hospital record as a business record.
New York Civil Practice Law and Rules 2306. Hospital records; medical
records of department or bureau of a municipal corporation or of the state.
(a) Transcript or reproduction. Where a subpoena duces tecum is served

upon a hospital, or upon a department or bureau of a municipal corporation
or of the state, or an officer thereof, requiring the production of records
relating to the condition or treatment of a patient, a transcript or a full sized
legible reproduction certified as correct by the superintendent or head of
the hospital, department or bureau or his assistant, or the officer, may be
produced unless otherwise ordered by a court. Such a subpoena shall be
served at least three days before the time fixed for the production of the
records unless otherwise ordered by a court.
515
1997).
516
Yeargans v. Yeargans, 24 A.D.2d 280, 265 N.Y.S.2d 562 (1st Dep’t 1965).
517
Flatow v. International Terminal Operating Co., Inc., 29 A.D.2d 952, 289 N.Y.S.2d 257 (2d Dep’t
1968).
518
Blair v. Martin’s, 78 A.D.2D 895, 433 N.Y.S.2d 221 (2d Dep’t 1980).
90
91
(b) Delivery to clerk. Where a court has designated a clerk to receive

records described in subdivision (a), delivery may be made to him at or
before the time fixed for their production. The clerk shall give a receipt for
the records and notify the person subpoenaed when they are no longer
required. The records shall be delivered in a sealed envelope indicating the
title of the action, the date fixed for production and the name and address of
the attorney appearing on the subpoena. They shall be available for
inspection pursuant to the rules or order of the court. (emphasis added)
For a hospital record to be admissible in court, a subpoena duces tecum must be served on
the hospital at least three days in advance. 519
The hospital will send a certified copy of the records to the Medical Records clerk of the
court, in a sealed envelope indicating the title of the action, the date for production, and the name of the
attorney appearing on the subpoena. The hospital record may be inspected by the attorneys, as permitted by
the court.
The author of the information in the hospital record may be a psychologist or other staff
member of the hospital. It is not necessary that the entry be made by a physician. 520
4.5.1. History in Hospital Record
The plaintiff, relatives, or coworkers may have made statements to an ambulance attendant, a
nurse, or other medical provider as to how a particular accident happened, which the medical provider wrote
down in the history portion of the hospital record. Statements in a hospital record are not admissible unless
they are made in the regular course of the “business” of the hospital, for the purpose of assisting it in carrying
on that “business.” The business of a hospital is to diagnose and treat its patients’ ailments.
Consequently, only statements relating to diagnosis, prognosis, or treatment, or that are
otherwise helpful to understanding the medical or surgical aspects of hospitalization, are admissible as
business records. 521
519
CPLR 2306(a).
520
People v. Davis, 225 A.D.2d 449; 639 N.Y.S.2d 350; 1996 N.Y. App. Div. LEXIS (1st Dep't 1996).
91
92
A statement that relates to the cause of an injury is not admissible unless the statement
contained information that was germane to diagnosis or treatment. 522 Usually, entries in a hospital record
which give particulars as to how an accident occurred serve no medical purpose in the treatment of a patient.
There are, therefore, no guarantees that the statements were taken down accurately by the medical person. 523
It is improper to admit an entire hospital record, where statements in the hospital record are
not germane to diagnosis or treatment, or otherwise admissible as an admission. 524
If the statement as to how the injury occurred is essential to diagnosis and treatment, it is
admissible. 525
The statements in the record must be connected properly with the person to whom they are
attributed. Where the patient specifically denies making statements, evidence must be presented as to who
provided the information to the person recording it. 526
Statements contained in the history portion of the hospital record are inadmissible as an
admission, where the person who took down the statement was, at the time of trial, unable to say that the
information was based on statements made by the plaintiff. 527
521
Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417 (1955).
522
Passino v. De Rosa, 199 A.D.2d 1017; 606 N.Y.S.2d 107; 1993 N.Y. App. Div. LEXIS (4th Dep't 1993).
523
Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417 (1955).
524
Swanston v. Blattberg, 61 A.D.2d 864, 402 N.Y.S.2d 234 (3d Dep’t 1978); Matter of Allstate Ins. Co. v.
Spadaccini, 52 A.D.2d 813, 383 N.Y.S.2d 605 (1st Dep’t 1976).
525
Schanberg v. State, 30 A.D.2D 712, 291 N.Y.S.2d 35 (3d Dep’t 1968); Riley v. R.M. Hollingshead
Corp., 29 A.D.2d 848, 287 N.Y.S.2d 928 (1st Dep’t 1968) (statements in hospital records as to ventilation
at the time the plaintiff inhaled fumes from a can of fabric cleaner provided information of importance to
the diagnosis of the plaintiff’s condition, and, therefore, the statements were admissible).
526
Castro v. Alden Leeds, Inc., 144 A.D.2d 613, 535 N.Y.S.2d 73 (2d Dep’t 1988); Gunn v. The City of
New York, 104 A.D.2d 848, 480 N.Y.S.2d 365 (2d Dep’t 1984); Swanston v. Blattberg, 61 A.D.2d 864,
402 N.Y.S.2d 234 (3d Dep’t 1978); Matter of Allstate Ins. Co. v. Spadaccini, 52 A.D.2d 813, 383 N.Y.S.2d
605 (1st Dep’t 1976); Mikel v. Flatbush General Hospital, 49 A.D.2d 581, 370 N.Y.S.2d 162 (2d Dep’t
1975); Dougherty v. City of New York, 267 A.D. 828, 45 N.Y.S.2d 808 (2d Dep’t 1944), aff’d, 295 N.Y.
786, 66 N.E.2d 299 (1945).
527
Passino v. De Rosa, 199 A.D.2d 1017; 606 N.Y.S.2d 107; 1993 N.Y. App. Div. LEXIS (4th Dep't 1993);
Castro v. Alden Leeds, Inc., 144 A.D.2d 613, 535 N.Y.S.2d 73 (2d Dep’t 1988); Gunn v. The City of New
York, 104 A.D.2d 848, 480 N.Y.S.2d 365 (2d Dep’t 1984) (physician’s assistant testified that he wrote the
statement but had no independent recollection of taking the history from the plaintiff and did not
92
93
Where the source of the information on the hospital or doctor's record is unknown, the
record is inadmissible. 528
Where the plaintiff specifically denies making the statement contained in the record,
evidence must be presented to connect the statement with the person to whom it was attributed. 529
A statement in the history portion of the hospital record does not qualify as an admission
unless:
1. The party admits having made the statement; or
2. The physician or other medical personnel who recorded the statement testifies that it was
the patient’s statement. 530
4.5.2. Hospital Records Concerning Unrelated Injuries
When the plaintiff receives a physical examination for a medical condition which is not
related to the injury claimed in the complaint, the statement concerning the injury alleged in the complaint
may be irrelevant.
It may be, for example, that the plaintiff is examined by an obstetrician for a gynecological
problem or pregnancy, during the pendency of a personal injury action alleging a neck injury. The obstetrician
will not necessarily record any complaints about the plaintiff’s back. The physician may not have a motive to
conduct a careful inquiry about the plaintiff’s back since he is treating the plaintiff for an unrelated condition,
such as pregnancy.
Nevertheless, courts have admitted such records in appropriate circumstances. 531
remember whether anyone else other than the plaintiff had given him the information; statement held to
be inadmissible as an admission).
528
Ginsberg v. North Shore Hospital, 213 A.D.2d 592; 624 N.Y.S.2d 257; 1995 N.Y. App. Div. LEXIS (2nd
Dep't 1995).
529
Matter of Allstate Ins. Co. v. Spadaccini, 52 A.D.2d 813, 383 N.Y.S.2d 605 (1st Dep’t 1976) (plaintiff
claimed he was hit by a car; history portion of hospital record stated, “Chief complaint. I fell from a bike”;
history inadmissible, because statement not connected to plaintiff).
93
94
4.5.3. Hospital Records Concerning Prior Injuries
Hospital records that predate the injury alleged in the complaint may contain statements by
the plaintiff or the results of the examinations by a doctor as to the physical condition of the plaintiff. If the
plaintiff testifies, for example, that she had no prior back complaints, a hospital record predating the accident
in question that contains statements to the effect that the plaintiff does suffer from back pain is admissible as
a prior inconsistent statement. 532
4.5.4. Hospital Bills
New York Civil Practice Law and Rules 4518(b) states:
(b) Hospital bills. A hospital bill is admissible in evidence under this rule
and is prima fade evidence of the facts contained, provided it hears a
certification by the head of the hospital or by a responsible employee in the
controller’s or accounting office that the bill is correct, that each of the
items was necessarily supplied and that the amount charged is reasonable.
This subdivision shall not apply to any proceeding in a surrogate’s court nor
in any action instituted by or on behalf of a hospital to recover payment for
accommodations or supplies furnished or for services rendered by or in such
hospital, except that in a proceeding pursuant to section one hundred
eighty-nine of the lien law to determine the validity and extent of the lien of
a hospital, such certified hospital bills are prima facie evidence of the fact of
services and of the reasonableness of any charges which do not exceed the
comparable charges made by the hospital in the care of workmen’s
compensation patients.
A hospital bill is admissible and prima facie evidence of the charge, as long as it contains a
certification by the hospital that “the bill is correct, that each of the items was necessarily supplied and that
the amount charged was reasonable.”
530
Mikel v. Flatbush General Hospital, 49 A.D.2d 581, 370 N.Y.S.2d 162 (2d Dep’t 1975).
531
Fafard v. Ajamain, 60 A.D.2d 853, 400 N.Y.S.2d 856 (2d Dep’t 1978) (entries in the injured plaintiff’s
hospital record which referred to the results of an examination of her extremities held to be admissible,
and doctor who testified for the defendant permitted to give his opinion as to the meaning of the entry by
the obstetrician in the hospital record).
532
Fafard v. Ajamain, 60 A.D.2d 853, 400 N.Y.S.2d 856 (2d Dep’t 1978) (entries in the injured plaintiff’s
hospital record which referred to the results of an examination of her extremities held to be admissible,
94
95
4.5.5. Proof of Intoxication in Hospital Records
Intoxication may be proven by a certified copy of a hospital record containing the results of
blood tests, where it is directly relevant to issues in the case, and the blood test was needed for care and
treatment. 533
If a toxicology report containing blood test results was not germane to the plaintiff's
diagnosis or treatment, it is not admissible as a business record. 534
A defendant’s hospital record is not discoverable nor admissible to prove that the defendant
was intoxicated at the time of the accident, absent a waiver of the physician-patient privilege by the
defendant. 535
In Dillenbeck, plaintiffs sought the defendant’s hospital records, which contained
information concerning her blood alcohol content following the accident. The defendant had been drinking
heavily over a seven-hour period leading up to the accident, and there was a possibility that she had been
“shut off” by a bartender because of her intoxicated condition. The defendant was convicted of criminally
negligent homicide based on the events surrounding the accident. Thus, the defendant’s physical condition at
the time of the accident was clearly “in controversy.”
Nevertheless, the hospital record was not discoverable. The court held that although the
defendant’s hospital records were relevant, they were privileged, and the defendant did not waive the privilege
by denying the allegations in the complaint or by testifying that she could not remember any details of the
and doctor who testified for the defendant permitted to give his opinion as to the meaning of the entry by
the obstetrician in the hospital record).
533
Maxcy v. County of Putnam, 178 A.D.2d 729; 576 N.Y.S.2d 959; 1991 N.Y. App. Div. LEXIS (3rd Dep't
1991)( plaintiff's blood sample was taken to assess plaintiff's tolerance for the general anesthesia needed
in conjunction with the surgery to repair her facial injuries.; LaDuke v. State Farm Ins. Co., 158 A.D.2d
137 (4th Dep’t 1990) (refusal to provide no-fault coverage on the grounds that plaintiff had been
intoxicated and that his intoxication was a contributing cause of the accident; defendant offered
unrebutted testimony that the blood test was needed for care and treatment).
534
Hatton v. Gassler, 219 A.D.2d 697; 631 N.Y.S.2d 757; 1995 N.Y. App. Div. LEXIS (2nd Dep't 1995).
535
Dillenbeck v. Hess, 73 N.Y.2d 278 (1989).
95
96
incident. Nor had she waived the privilege by asserting the defenses of comparative negligence and the failure
of plaintiffs to wear seat belts.
By showing that the defendant’s physical condition was “in controversy,” plaintiffs could not
effect a waiver of the privilege. Only the patient or an authorized representative may waive the privilege and
permit disclosure. 536
4.5.6. Medical Records of Complaining Witness in Criminal Case
Medical records of a complaining witness may be admissible under some circumstances to
impair the witness's credibility. 537 For instance, it was reversible error to exclude a hospital record
containing a diagnosis that the complaining witness had "confabulatory tendencies". 538
4.6. OTHER MEDICAL RECORDS
4.6.1. Doctor’s Office Records
It must be shown:
1. The physician’s records were made in a regular course of the physician’s business;
2. It was a regular course of his business to make the record; and
3. The record was made at or within a reasonable time after the act, transaction, occurrence,
or event.
As out-of-court declarations offered for their truth, doctor’s office records are hearsay
documents and inadmissible unless they qualify under the business records exception to the hearsay rule. 539
536
Dillenbeck v. Hess, 73 N.Y.2d 278 (1989).
537
538
539
Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d Dep’t 1987).
96
97
There is a distinction between different types of medical records, such as hospital records,
physician’s office records, and physician’s medical reports. Each is treated separately as to admissibility.
Hospital records, which have been specifically addressed by the Legislature 540 and are
routinely admissible by certification under those statutes, must be distinguished from physician’s office
records.
A further distinction must be drawn between physician’s office records and physician’s
reports. Doctor’s reports are often prepared at the request of counsel on behalf of the parties. Such reports are
generally material prepared for litigation and are not the systematic, routine, day-by-day type of records
envisioned by the business records exception.
Therefore, physician’s reports prepared for litigation are generally inadmissible in evidence
under the business records exception to the hearsay rule. 541
Prior to the second department decision in Bodian, some courts had held office records to be
admissible. 542
In admitting the records, the court in Jezowski reasoned that a doctor’s medical records,
made in the regular course of the doctor’s practice in his own handwriting, dated and factual, should be
admissible even though they contain his medical opinion. Such a record was made as an essential part of a
doctor’s professional practice in caring for his patient and as the basis upon which he treated his patients.
540
(see CPLR 2306, 4518(c))
541
Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d Dep’t 1987); See Sabatino v. Turf House, 76
A.D.2d 945, 428 N.Y.S.2d 752 (3d Dep’t 1980); Bilotti v. Rosen, 33 A.D.2d 790, 307 N.Y.S.2d 120 (2d
Dep’t 1969); Pickering v. Freedman, 32 A.D.2d 649, 300 N.Y.S.2d 742 (2d Dep’t 1969).
542
Jezowski v. Beach, 59 Misc.2d 224, 298 N.Y.S.2d 360 (Sup. Ct. 1968) (admissibility of handwritten
“office cards” of a deceased doctor in a negligence case; the doctor’s widow identified the office cards,
which were written in the doctor’s handwriting each time he saw the patient); Hessek v. Roman Catholic
Church, 80 Misc.2d 410, 412, 363 N.Y.S.2d 297 (Civ. Ct. 1975) (records of a doctor who was available to
testify but whose fee to testify was “outrageous” were held to be admissible as business records except
for the medical opinions).
97
98
Other cases held physician’s office records to be inadmissible, because they contain medical
opinions. In fact, the courts have exhibited marked reluctance to allow such medical opinions into evidence.
543
The second department in Bodian reversed its prior precedents and held that a physician’s
office records, supported by the statutory foundations set forth in New York Civil Practice Law and Rules
4518(a), are admissible in evidence as business records. 544
A doctor’s office records may be received as evidence despite the fact that a physician is
available to testify as to the substance and contents of the records. 545
Entries in the office records germane to diagnosis and treatment are admissible, including
medical opinions and conclusions. 546
Generally, business records need not take any particular form to be admissible and can
consist of marks, figures, or symbols. 547
Doctor’s notes frequently consist of short notations and sketches and are often illegible. The
court in Bodian held that where records are illegible or comprehensible only to the creator, the probative value
is minimal or nonexistent.
Thus, a notation in a physician’s office record which is illegible is not admissible. 548
543
Goodkin v. Brooklyn & Queens Tr. Corp., 241 A.D. 737 (2d Dep’t), aff’d, 265 N.Y. 638 (records of
deceased physician inadmissible); Rodriguez v. Zampella, 42 A.D.2d 805 (3d Dep’t) (at the time of the
trial, plaintiff’s attending physician was totally disabled and could not testify; his nurse appeared with the
doctor’s records containing the history, injury, diagnosis, and care and treatment rendered to plaintiff for
this accident; the records were marked for identification, offered, and, over objection, received in
evidence as records kept by the doctor in the ordinary course of his business (CPLR 4518(a)); since the
doctor’s opinion and diagnosis were woven into his notations on these records, constituting his medical
report, the evidence offered consisted of expert proof and should not have been admitted as evidence in
chief).
544
545
Napolitano v. Branks, 141 A.D.2d 705, 529 N.Y.S.2d 824 (2d Dep’t 1988).
546
547
See, e.g., Matzell v. Distaola, 105 A.D.2d 500, lv. denied, 64 N.Y.2d 608 (map properly admitted as
business record).
548
98
99
Unlike hospital records, which contain generally accepted and standard medical
abbreviations, a physician’s office records may contain purely personal abbreviations known only to the
physician. In order to admit a medical abbreviation or symbol written by a doctor in his office record, in the
absence of the physician author, there must be a foundation laid that such an abbreviation has a well-known
and accepted meaning in the medical profession. An abbreviation that is not interpretable as having a definite
and accepted meaning is not admissible. 549
Alleged admissions in the doctor’s medical records are inadmissible unless the person who
recorded the alleged admission is able to say that the information was based on statements made by the
plaintiff. 550
4.6.2. Medical Examiner's Report
551
Upon a proper foundation, a medical examiner's report is admissible.
4.6.3. Autopsy Report
An autopsy report is admissible upon laying a proper foundation. 552
549
550
Castro v. Alden Leeds, Inc., 144 A.D.2d 613, 535 N.Y.S.2d 73 (2d Dep’t 1988); Gunn v. The City of
New York, 104 A.D.2d 848, 480 N.Y.S.2d 365 (2d Dep’t 1984) (physician’s assistant testified that he
wrote the statement but had no independent recollection of taking the history from the plaintiff); Matter of
Allstate Ins. Co. v. Spadaccini, 52 A.D.2d 813, 383 N.Y.S.2d 605 (1st Dep’t 1976) (plaintiff claimed he
was hit by a car; history portion of hospital record stated, “Chief complaint. I fell from a bike”; history
inadmissible, because statement not connected to plaintiff); Mikel v. Flatbush General Hospital, 49 A.D.2d
581, 370 N.Y.S.2d 162 (2d Dep’t 1975); Dougherty v. City of New York, 267 A.D. 828, 45 N.Y.S.2d 808
(2d Dep’t 1944), aff’d, 295 N.Y. 786, 66 N.E.2d 299 (1945).
551
People v. Miller, 91 N.Y.2d 372; 694 N.E.2d 61; 1998 N.Y. LEXIS 601; 670
N.Y.S.2d 978 (1998), citing People v. Nisonoff, 293 N.Y. 597, 293 N.Y. (N.Y.S.) 597, 59 N.E.2d 420,
1944 N.Y. LEXIS 1268 (1944).
552
N.Y.S.2d 978 (1998), citing People v. Hampton, 38 A.D.2d 772, 327 N.Y.S.2d 961, 1972 N.Y. App.
Div. LEXIS 5562 (N.Y. App. Div. 3d Dep't 1972).
99
100
4.7. X-RAYS
X-rays have long been held admissible when explained by a competent expert witness. 553 A
treating physician may authenticate and interpret the X-rays. 554
New York Civil Practice Law and Rules 4532(a) provides additional means for
authenticating X-rays offered in evidence in personal injury actions.
N.Y. Civ. Prac. L. & R. 4532(a). X-rays in personal injury actions.
In an action in which a claim for personal injuries is asserted, an X-ray of

any party thereto is admissible in evidence provided:
(1) that there is photographically inscribed on such X-ray the name of the
injured party, the date when taken, the identifying number thereof, and the
name and address of the physician under whose supervision the same was
taken;
(2) that at least ten days before the date of trial of the action, the attorney
for the party intending to offer such X-ray, serve upon the attorney or
attorneys for the party or parties against whom said X-ray is to be offered, a
notice of his intention to offer such X-ray in evidence during the trial and
that the same is available for inspection at his office, provided that such X-
ray has not been previously so examined; and
(3) that the notice aforesaid is accompanied by an affidavit of such physician

identifying the X-ray and attesting to the information inscribed thereon,
and further attesting that, if called as a witness in the action, he would so
testify.
Nothing contained in this section, however, shall prohibit the admissibility

of an X-ray in evidence in a personal injury action where otherwise
admissible.
An Xray is a "writing", and the best evidence rule applies to it. The original X-ray film must
generally be produced to prove its contents. 555The best evidence rule applies in the event the Xray is lost. 556
553
See Marion v. B. G. Coon Const. Co., 216 N.Y. 178, 110 N.E. 444, 1915 N.Y. LEXIS 788 (1915).
554
Vander Wel v. Palazzo, 155 A.D.2d 387, 548 N.Y.S.2d 14, 1989 N.Y. App. Div. LEXIS 15081 (1989)
(refusal to admit X-rays intended to show improper healing required reversal).
555
Fed. Rules Evi. Rule 1002; see also, 5 Weinstein, Evidence P 1001 [2] [01]).
556
4118; 620 N.Y.S.2d 797 (1994).
100
101
As in the case of any other lost original, once the absence of an X-ray film is excused, all competent secondary
557
evidence is generally admissible to prove its contents, provided that its admission does not offend any
other exclusionary rule or policy. 558
The proponent of such proof has the heavy burden of establishing, preliminarily to the
court's satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the
trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the
original before ruling on its admissibility. 559
Once a sufficient foundation for admission is presented, the secondary evidence is subject to
an attack by the opposing party not as to admissibility but to the weight to be given the evidence, with the
final determination left to the trier of fact. 560
4.8. PUBLIC RECORDS OR DOCUMENTS
4.8.1. Definition
As set forth in Black’s Law Dictionary (5th Ed. Rev. 1979), public records “are those records
which a governmental unit is required by law to keep or which it is necessary to keep in discharge of duties
imposed by law.”
557
4118; 620 N.Y.S.2d 797 (1994), citing American Natl. Ins. Co. v Points, 81 SW2d 762, 767 (Tex Civ App)
(expert testimony of contents of X ray rendered unavailable because located outside State was
admissible as secondary evidence of its contents),
558
See 5 Weinstein, Evidence P 1001 [2] [01]).
559
4118; 620 N.Y.S.2d 797 (1994).
560
4118; 620 N.Y.S.2d 797 (1994).
101
102
4.8.2. Common-Law Exception
To be admissible under the common-law public records exception, the document must have
been kept and prepared by a public official or his subordinates, pursuant to a statutory mandate or in the
performance of a public duty. 561
Documents prepared by a public official that are neither required nor authorized are not
admissible under the hearsay exception. 562
The records must have been in the possession of the authorized public official. 563
The document need not be open to public inspection to fall within the hearsay exception. 564
If a public document or record contains an entry relating to a fact that the declarant is not
authorized or required to report or record, the entry is inadmissible. 565
4.8.3. Statutory Exception
New York has adopted a more restrictive statutory exception to the public records hearsay
exception. New York Civil Practice Law and Rules 4520 provides:
Where a public official is required or authorized, by special provision of law, to make a
certificate or an affidavit to a fact ascertained or an act performed by him in the course of his official duty, and
to file or deposit it in a public office of the state, the certificate or affidavit so filed or deposited is prima facie
evidence of the facts stated.
The statute, by its terms, pertains only to a “certificate or an affidavit” and not to any writing
or report prepared by a public officer.
561
Richards v. Robin, 178 A.D. 535, 165 N.Y.S. 780, 784 (1st Dep’t 1917).
562
Jackson v. Collins, 62 Hun. 618, 41 N.Y. St. Rep. 590, 16 N.Y.S. 651 (S. Ct. 1891).
563
Porter v. State, 5 Misc.2d 28, 159 N.Y.S.2d 549 (Ct. Cl. 1957).
564
People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420 (1944) cert. denied, 326 U.S. 745, 66 S. Ct. 22
(1945) (autopsy report of medical examiner, filed in accordance with law, admissible even though,
pursuant to statute, it may not be inspected by general public).
102
103
However, the broader common-law hearsay exception has not been superseded by the
statutory provision. Therefore, although a record may not fall within the ambit of New York Civil Practice
Law and Rules 4520, courts have admitted them under the common-law exception. 566
Documents falling within the New York Civil Practice Law and Rules 4520 exception
constitute “prima facie” evidence of the presumptive facts contained therein, and the opponent of such
evidence must provide evidence to the contrary before the trier of fact is permitted to find that the facts set
forth in the record are not true. 567
Under the common-law exception, the document is “merely some evidence which the trier of
facts is free to disbelieve even though the adverse party offers no evidence on the point.” 568
4.8.3.1. Rationale for Exception
Documents or records prepared by a public officer in the performance of his public duty are
admissible under this hearsay exception because they are deemed trustworthy. Since the documents are made
in the discharge of public duty, as opposed to in the official’s private interest, it is reasoned that there is a lack
of “motive to suppress or distort the truth or to manufacture evidence.” 569
565
Kelly v. Diesel Const. Div. of Carl A. Morse. Inc., 35 N.Y.2d 1, 315 N.E.2d 751, 358 N.Y.S.2d 685
(1974); Saranac Land & Timber Co. v. Roberts, 208 N.Y. 288, 101 N.E. 898 (1913).
566
People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420 (1944), cert. denied, 326 U.S. 745, 66 S. Ct. 22
(1945) (autopsy report); Hayes v. City of New York, 23 A.D.2d 832, 259 N.Y.S.2d 278 (1st Dep’t 1965)
(autopsy report admissible in wrongful death action); Consol. Midland Corp. v. Columbia Pharm. Corp., 42
A.D.2d 601, 345 N.Y.S.2d 105 (2d Dep’t 1973).
567
Gioia v. State, 22 A.D.2d 181, 254 N.Y.S.2d 384 (4th Dep’t 1964); Mace v. Cardone, 35 Misc.2d 163,
232 N.Y.S.2d 279 (S. Ct. 1962).
568
Consol. Midland Corp. v. Columbia Pharm. Corp., 42 A.D.2d 601, 345 N.Y.S.2d 105 (2d Dep’t 1973).
569
Chesapeake & Del. Canal Co. v. United States, 153 C.C.A. 589, 240 F. 903, 907 (3d Cir. C.C.A. Del.,
1917), aff’d, 250 U.S. 123, 39 S. Ct. 407, 63 L.Ed. 889 (U.S. Del., 1919); Price v. Price, 194 A.D. 158,
185 N.Y.S. 570 (2d Dep’t 1920).
103
104
4.8.3.2. Testimony of Public Official Who Made Document
For convenience and expediency, the testimony of the public officers or their subordinates
who made the document is unnecessary in order to have the record admitted into evidence. A requirement of
such testimony would be unduly burdensome, costly, and detrimental to efficient public administration.
4.8.3.3. Personal Knowledge of Public Official
As a general rule, in the absence of a statute, the public officer must have had personal
knowledge of the act or fact recited in the document. 570
Personal knowledge of the public official’s subordinate is sufficient to fulfill this requirement.
571
4.8.3.4. Entries by Private Individuals
Under limited circumstances, a private individual who is required by statute to record or
certify an event or occurrence may be deemed a public official. 572
4.9. RECORDS OF MUNICIPAL CORPORATION, THE STATE OR A LIBRARY ,
New York Civil Practice Law and Rules 4518(c), conjoined with New York Civil Practice
Law and Rules 2307, permits the admission of records of a department or bureau of a municipal corporation,
of the state, and of a library, as prima facie evidence of the facts contained, provided the records bear a
certification or authentication by the entity providing the record.
570
Bothner v. Keegan, 275 A.D. 470, 89 N.Y.S.2d 288 (1st Dep’t 1949).
571
Village of Evanston v. Gunn, 9 Otto 660, 99 U.S. 660, 25 L.Ed. 306 (Ill., 1878).
572
Dom. Rel. Law § 13-b (clergy required to record on “marriage license the date of the marriage”)
Pub. Health Law §§ 4130, 4141, 4161 (physicians obligated to file birth and death certificates).
104
105
4.10. OTHER STATUTORY PROVISIONS
Pursuant to New York Civil Practice Law and Rules 4527, certain official reports of
presumed death are admissible. Said reports are to be made by individuals authorized to do so under the
Federal Missing Persons Act or other appropriate agency. The purpose of the provision is to permit the
distribution of the estate of a person who is presumed dead earlier than after the seven-year waiting period
generally applicable. 573
Official written records indicating “a person is missing, missing in action, interned in a
neutral country, or beleaguered, besieged or captured by an enemy, or is dead, or is alive” are prima facie
evidence of such facts, so long as made by a federal official authorized to do so under federal law. 574
Inspection certificates which are issued by the United States Department of Agriculture
constitute prima facie evidence of the facts set forth therein. 575
Documents, proceeding papers, and records not of a confidential nature, which are deposited
or filed with the department of agriculture and markets, and relate to matters within said department’s
jurisdiction and powers, constitute public records. Copies of said documents, certified in accordance with
law, are admissible in evidence as if they were the originals. 576
4.11. MISCELLANEOUS DOCUMENTS OR RECORDS
There are numerous other documents and records which may be admitted under common
law or under New York Civil Practice Law and Rules 4520.
573
In re Jacobsen’s Estate, 208 Misc. 443, 143 N.Y.S.2d 432 (Surr. Ct. 1955) (presumption applicable
even if individual is not in military service); In re Mount Vernon Trust Co., In re Cuthell’s Trust, 193 Misc.
226, 83 N.Y.S.2d 902 (Sup.Ct. Westchester Co. 1948).
574
CPLR 4527(6).
575
CPLR 4529
576
Agric. & Mkts., §§ 23, 96 (certificates of registry and transfer of domestic animals).
105
106
Prima facie evidence as to the number of votes cast in an election exists in either the returns
made by election inspectors or the certificates of city canvassers based upon the inspectors’ returns. This
evidence may be impeached. 577
The registrar of voters has been held admissible for the facts in the records. 578
579
School records of a pupil’s age constitute evidence of the facts required to be recorded.
Autopsy and coroner reports are admissible under the public documents exception, except as
to opinions regarding the cause of death. 580
The report of a toxicologist found in an autopsy report pertaining to the amount of alcohol in
decedent’s brain is admissible. 581
Reports of county treasurers and the state department of audit and control are admissible. 582
Admissible under both the business records and public documents exceptions are certified
reports of inspectors of housing and buildings which were made in the regular course of business. Since these
records were admissible under New York Civil Practice Law and Rules 4520, the reports constitute prima
facie evidence. 583
4.12. LACK OF RECORD
New York Civil Practice Law and Rules 4521 provides:
577
People ex rel. Stemmler v. McGuire, 2 Hun. 269 (1874), aff’d, 60 N.Y. 640 (1875); People ex rel.
Judson v. Thacher, 55 N.Y. 525 (1874); People ex rel. Stopne v. Minik, 21 N.Y. 539 (1860).
578
Sparling v. Patterson, 201 Misc. 737, 105 N.Y.S.2d 421 (Sup. Ct. Nass. Co. 1951).
579
Price v. Price, 194 A.D. 158, 185 N.Y.S. 570 (2d Dep’t 1920).
580
People v. Nisonoff, 267 A.D. 356, 45 N.Y.S.2d 854 (1st Dep’t 1944), aff’d, 293 N.Y. 597, 59 N.E.2d
420 (1944); People v. Hampton, 38 A.D.2d 772, 327 N.Y.S.2d 961 (3d Dep’t 1972) (if opinion were
admissible, criminal defendant would be deprived of constitutional right to cross-examination and
confrontation of witness against him); People v. Morris, 42 A.D.2d 968, 347 N.Y.S.2d 975 (2d Dep’t
1973).
581
Iovino v. Green Bus Lines, 277 A.D. 1002, 100 N.Y.S.2d 148 (2d Dep’t 1950).
582
Loughran v. Markle, 242 A.D. 331, 275 N.Y.S. 721 (3d Dep’t 1934), aff’d, 266 N.Y. 601, 195 N.E. 219
(1935).
106
107
Lack of Record
A statement signed by an officer or a deputy of an officer having legal

custody of specified official records of the United States or of any state,
territory or jurisdiction of the United States, or of any court thereof, or kept
in any public office thereof, that he has made diligent search of the records
and has found no record or entry of a specified nature, is prima facie
evidence that the records contain no such record or entry, provided that the
statement is accompanied by a certificate that legal custody of the specified
official records belongs to such person, which certificate shall be made by a
person described in rule 4540.
While the certificate should provide a diligent search for the record has been made, the
omission will not necessarily result in rejection of the certificate as it can be readily corrected. 584
An appropriate certificate that no divorce decree with regards to a first marriage existed was
held sufficient to rebut the strong presumption of the legitimacy of a second marriage. 585
The certificate, to be admitted over objection, must be properly authenticated in accordance
with the provisions of New York Civil Practice Law and Rules 4540.
4.13. OFFICIAL INVESTIGATIONS
One of the duties of a public official may be to conduct investigations, to ascertain and to
report facts and information, which are often supplied to him by other persons.
Whether such reports are admissible may be established in the statute authorizing the
investigation.
583
Milchman v. Rivera, 39 Misc.2d 347, 240 N.Y.S.2d 859 (Civ. Ct. Bronx Co. 1963), app. dism’d, 13
N.Y.2d 1123, 196 N.E.2d 555, 247 N.Y.S. 122 (1964).
584
Briggs v. Waldion, 83 N.Y. 582 (1881); The presumption established under the statute is rebuttable,
but evidence must be presented.; Deshong v. New York, 176 N.Y. 475, 68 N.E. 880 (1903); Bromley v.
Mollnar, 179 Misc. 713, 39 N.Y.S.2d 424 (Co. Ct. 1942) (testimony that official document had been filed).
585
Matter of Brown, 40 N.Y.2d 938, 358 N.E.2d 883, 390 N.Y.S.2d 59 (Ct. App. 1976); Brill v. Brill, 10
N.Y.2d 308, 178 N.E.2d 720, 222 N.Y.S.2d 321 (1961); Mace v. Cardone, 35 Misc.2d 163, 232 N.Y.S.2d
279 (S. Ct. 1962).
107
108
Insurance Law Section 30 (report of examination by superintendent of insurance, if available
for public inspection, constitutes presumptive evidence of facts stated therein in a preceding “in the name of
the people against the insurer or other person examined, or any officer or agent thereof”)
Public Health Law Section 10 (2) (inspectors’ reports concerning alleged sanitary code or
local health regulation “violations, investigations, proceedings, actions, authority and orders” are “presumptive
evidence of the facts so stated therein.”)
Even though the enabling statute for the investigation does not indicate whether the report
of such investigation is admissible, courts have still allowed the admission of such reports. 586
4.14. ANCIENT DOCUMENTS
An ancient document is a writing that is more than thirty years old. If proved to be genuine,
it may be received to prove the truth of the facts it recites. 587
The proponent of the document must show proper custody and the absence of suspicion of
fraud or invalidity. 588
The recital within the document is to be based upon the personal knowledge of the writer
and must not be based upon hearsay. 589
586
Scott v. Empire State Degree of Honor, 204 A.D. 530, 198 N.Y.S. 535 (4th Dep’t 1923) (coroner’s
certificate was “presumptive evidence” of insured’s death by suicide); People ex rel. Bingham Operating
Corp. v. Eyrich, 186 Misc. 434, 61 N.Y.S.2d 683 (Sup. Ct. Broome Co. 1945), aff’d, 270 A.D. 1063, 62
N.Y.S.2d 923 (3d Dep’t 1946) (report of State Board of Supervisors concerning investigation of real estate
assessed value for purpose of determining equalization rate for tax assessments; admissible in evidence
issue of inequality); Kibiuk v. Windsor Residences, 183 Misc. 499, 52 N.Y.S.2d 326 (City Ct. N.Y. Co.
1944), mod. 184 Misc. 186, 54 N.Y.S.2d 117 (Sup. Ct. App. T. 1945) (portion of report of New York City
Fire Department’s Bureau of Investigation concerning of tire admissible in subsequent proceeding by
tenant against landlord for personal injuries and damages sustained during fire).
587
Young v. Shulenberg, 165 N.Y. 385, 59 N.E. 135 (1901) (recital in ancient deed); Dodge v. Gallatin,
130 N.Y. 117, 29 N.E. 107 (1891); Coleman v. Bruch, 132 A.D. 716, 117 N.Y.S. 582 (1st Dep’t 1909).
588
Dodge v. Gallatin, 130 N.Y. 117, 29 N.E. 107 (1891) (document in care of persons with whom it is
natural and reasonable to expect it might be found).
589
In re Barney’s Will, 185 A.D. 782, 174 N.Y.S. 242 (1st Dep’t 1919); Jacobson v. Chestnut Hill
Properties, 106 Misc.2d 918, 436 N.Y.S.2d 806 (S. Ct. 1981); Tillman v. Lincoln Warehouse Corp., 72
108
109
The writing is subject to the opinion rule restrictions. 590
4.14.1. Rationale
The reason for the ancient document exception is to provide a practical solution to a difficult
problem: finding witnesses who may testify as to the preparation of a document. It is presumed that after
thirty years, witnesses to the preparation or execution of a document are dead. Without this exception, it is
presumed to be virtually impossible to provide the usual evidence of authenticity. 591
4.14.2. Unavailability of Declarant
In order to have an ancient document admitted into evidence for the truth of the statements
set forth therein as against strangers, the proponent of the document should be prepared to establish the
death, incompetency, or unavailability of the preparer of the document or declarant. 592
Some courts, however, will presume the death thirty years after the preparation of the
declaration.
4.14.3. Real Estate Proceedings
The ancient document exception to the hearsay rule is often used in proceedings involving
disputes regarding real estate. Ancient documents have been used in actions involving disputes as to
boundaries, chain of title, and heirship. 593
A.D.2d 40, 423 N.Y.S.2d 151 (1st Dep’t 1979); Kroth v. Congregation Chebra Ukadioha, 105 Misc.2d
904, 430 N.Y.S.2d 786 (S. Ct. 1980).
590
In re Barney’s Will, 185 A.D. 782, 174 N.Y.S. 242 (1st Dep’t 1919) (opinion evidence as to testator’s
progress and diagnosis while patient in insane asylum inadmissible in probate proceeding involving
competency of declarant).
591
Wilson v. Betes, 4 Den. 201 (1834).
592
Young v. Shulenberg, 165 N.Y. 385, 59 N.E. 135 (1901).
593
Harrison v. New York R. Co., 255 A.D. 183, 6 N.Y.S.2d 978 (4th Dep’t 1938), aff’d, 281 N.Y. 653, 22
N.E.2d 483 (1939) (old railroad records and letters admissible in boundary dispute)
Coleman v. Bruch, 132 A.D. 716, 117 N.Y.S. 582 (1st Dep’t 1909) (in proceeding concerning chain of title,
deed cured following admission of old affidavits); Layton v. Kraft, 111 A.D. 842, 18 N.Y. Ann. Cas. 228,
109
110
4.14.4. Ancient Documents Statute
Statutory enactments have codified certain aspects of the ancient documents exception as it
relates to real property. Pursuant to Real Property Actions and Proceedings Law section 341, any instrument
more than fifteen years old, executed to transfer title or interest in land located in New York State, which
provides that grantors or grantees “are the heirs at law of a prior owner of the title or interest described in
such instruments, or a survivor of a tenancy by the entirety or joint tenancy, shall be presumptive evidence of
said heirship,” provided the document is executed and recorded in accordance with the statute. Said
document must be duly acknowledged or witnessed.
Section 331 of the Real Property Actions and Proceedings Code sets forth another
modification of the ancient document exception, pertaining to proof of lost execution or writ after a sheriff’s
sale. The statute, in relevant part, provides:
Whenever . . . it shall appear that at least ten years . . . therefore real

property has been sold by a sheriff for enforcement of the valid lien thereon
of a duly docketed judgment, and that a certificate of the sale has been duly
made by the sheriff and filed, and that a conveyance in completion of the
purchase has been executed and recorded, but that the execution or writ by
virtue of which the sale has been made cannot be found in the office of the
clerk with whom the same should have been filed, then and in such case the
recital of or reference to such execution or writ contained in the said
certificate, or in the said conveyance, or in the record thereof, shall be prima
facie evidence of the said execution or writ and of the issuance of the same
as against any party whose claim of title is not shown to have been
accompanied or supported by peaceable possession of the premises in
controversy for at least three years immediately preceding the
commencement of the action.
New York Civil Practice Law and Rules 4522 provides that a map, survey, or official record
affecting real property on file with the county clerk in the county in which the land is located, or any court of
record or department of New York City, for more than ten years constitutes prima facie evidence of its
98 N.Y.S. 72 (1st Dep’t 1906) (in heirship dispute, church records concerning birth, baptism, and
marriages admissible).
110
111
contents. 594 This statutory presumption may be rebutted by other competent evidence, such as the
testimony of a surveyor. 595
4.14.5. Other Uses
The ancient document exception is, of course, not limited to proceedings involving real
estate. For example, it has been used in proceedings involving the assignment of interests in royalties 596 and
property damage. 597
4.14.5.1. Proof of Boundaries
With regard to establishing boundaries to property, there are two additional hearsay
exceptions.
Ancient reputation as to the boundaries of public or private lands is admissible. 598
Declarations of an owner of real property, since deceased, as to his land’s boundaries, made
while he was on the land, are exceptions to the hearsay rule. 599
594
City of New York v. Wilson & Co., 278 N.Y. 86, 15 N.E.2d 408 (1938) (maps admitted into evidence);
Hering v. Town of Canandaigua, 52 Misc.2d 98, 275 N.Y.S.2d 56 (Sup. Ct. Ontario Co. 1966) (certificate
of commissioner of highway)
Beisheim v. People, 26 Misc.2d 684, 39 N.Y.S.2d 333 (Sup. Ct. 1942) (state highway surveys and maps
fall within statute);
595
Manchik v. Pinelawn Cemetery, 33 N.Y.S.2d 714 (Sup. Ct. 1941) aff’d, 263 A.D. 961, 32 N.Y.S.2d 976
(2d Dep’t 1942), aff’d, 291 N.Y. 816, 53 N.E.2d 576 (1944).
596
Wolcott v. Merchant’s Gargling Oil Co., 45 A.D. 379, 60 N.Y.S. 862 (4th Dep’t 1899).
597
Tillman v. Lincoln Warehouse Corp., 72 A.D.2d 40, 423 N.Y.S.2d 151 (1st Dep’t 1979) (inventory of art
collection).
598
Village of Oxford v. Willoughby, 181 N.Y. 155, 73 N.E. 677 (1905) (map setting forth lines of roads and
properties based upon accepted belief of community admissible); McKinnon v. Bliss, 21 N.Y. 206 (1860)
(information coming from individuals with a reasonable basis to have knowledge on the subject); Gardner
v. Town of Claverack, 259 A.D. 1111, 22 N.Y.S.2d 200 (3d Dep’t 1940).
599
Hannah v. Baylon Holding Corp., 28 N.Y.2d 89, 268 N.E.2d 775, 320 N.Y.S.2d 35 (1971) (while
walking down the road, declarant advised granddaughter that he owned the property adjoining the road).
111
112
The physical means by which the declarant indicates the boundary is not decisive. It is
sufficient that declarant, on the scene and in possession of the real property, advises the witness where the
boundary is. 600
4.15. PUBLIC OPINION POLLS
In New York, public opinion polls generally qualify as competent evidence, admitted under
the exception for a present public state of mind. 601
The rationale for the exception is that it would be impractical to call as witnesses the vast
number of individuals required to establish a public state of mind.
4.15.1. Proof of Reliability
Although admissible, a public opinion poll requires proof of its reliability to have any weight.
602
To establish the reliability of opinion polls, the following proof has been required: witnesses
who were planners and supervisors of and workers on the poll must be able to give (1) “a complete exposition
of the poll and results”; and (2) “work sheets, reports, surveys and all documents used in or prepared during
the poll taking and those showing its results.” 603
600
Hannah v. Baylon Holding Corp., 28 N.Y.2d 89, 268 N.E.2d 775, 320 N.Y.S.2d 35 (1971).
601
People v. Franklin Nat. Bank, 200 Misc. 557, 105 N.Y.S.2d 81 (S. Ct. 1951), rev’d on other grounds,
281 A.D. 757, 118 N.Y.S.2d 210 (2d Dep’t 1953), mod. 305 N.Y. 453, 113 N.E.2d 796 (1953), rev’d on
other grounds, 347 U.S. 373, 74 S. Ct. 550, 98 L.Ed. 767 (1954).
602
Smith v. State, 49 Misc.2d 985, 268 N.Y.S.2d 873 (N.Y. Ct. Cl. 1966), aff’d, 29 A.D.2d 1050, 290
N.Y.S.2d 720 (4th Dep’t 1968); Oneida Ltd. v. National Silver Co., 25 N.Y.S.2d 271 (Sup. Ct. Madison Co.
1940).
603
People v. Franklin Nat. Bank, 200 Misc. 557, 105 N.Y.S.2d 81(S. Ct. 1951), rev’d on other grounds,
281 A.D. 757, 118 N.Y.S.2d 210 (2d Dep’t 1953), mod. 305 N.Y. 453, 113 N.E.2d 796 (1953), rev’d on
other grounds, 347 US 373, 74 S. Ct. 550, 98 L.Ed. 767 (1954); Smith v. State, 49 Misc.2d 985, 990–991,
268 N.Y.S.2d 873 (N.Y. Ct. Cl. 1966), aff’d, 29 A.D.2d 1050, 290 N.Y.S.2d 720 (4th Dep’t 1968).
112
113
4.16. BOOKS AND ARTICLES
Articles from technical journals are inadmissible as proof of the facts contained therein, since
they are hearsay. 604
4.17. PAROL EVIDENCE
U.C.C. Section 2-202 provides:
Terms with respect to which the confirmatory memoranda of the parties

agree or which are otherwise set forth in a writing intended by the parties
as a final expression of their agreement with respect to such terms as are
included therein may not be contradicted by evidence of any prior
agreement or of a contemporaneous oral agreement [***8] but may be
explained or supplemented
(a) by course of dealing or usage of trade (Section 1-205) or by course of

performance (Section 2-208); and
(b) by evidence of consistent additional terms unless the court finds the
writing to have been intended also as a complete and exclusive statement of
the terms of the agreement."
Where the form and content of the writing indicate clearly that it was intended to be the
final expression of the parties' agreement as to the stated terms and there is no evidence in the record to
605
suggest otherwise, UCC 2-202 bars parol evidence to contradict those terms.
If the parol evidence is being used to contradict a term of the contract, not to show that there
606
was no contract, UCC 2-202 applies.
604
Cummings v. Fondak, 122 Misc.2d 913, 474 N.Y.S.2d 356 (1st Dep’t 1983) (five articles from medical
journals).
605
Intershoe, Inc. v. Bankers Trust Company, 77 N.Y.2d 517; 571 N.E.2d 641; 1991 N.Y. LEXIS 358; 569
N.Y.S.2d 333; 144 U.C.C. Rep. Serv. 2d (Callaghan) (1991).
606
113
114
UCC 2-202 does not require that there be some express indication in the writing itself or
607
some other evidence that the parties intended it to be the final expression of their agreement.
4.18. PAST RECOLLECTION RECORDED
A memorandum made of a fact known or an event observed in the past of which the witness
lacks sufficient present recollection may be received in evidence as a supplement to the witness's oral
608
testimony.
The foundation for admission of a memorandum of a past recollection are: 609
(1) the witness observed the matter recorded,
(2) the recollection was fairly fresh when recorded or adopted,
(3) the witness can presently testify that the record correctly represented his knowledge and
recollection when made, and
(4) the witness lacks sufficient present recollection of the recorded information.
The rationale for the doctrine is that the recorded information is essential to further the
truth-seeking function of the trial proceeding and that when the conditions for admission have been met,
there is sufficient assurance of the accuracy of the recordation and its trustworthiness. 610
When such a memorandum is admitted, it is not independent evidence of the facts contained
therein, but is supplementary to the testimony of the witness. The witness' testimony and the writing's
contents are to be taken together and treated in combination as if the witness had testified to the contents of
the writing based on present knowledge. 611
607
608
People v. Taylor, 80 N.Y.2d 1; 598 N.E.2d 693; 1992 N.Y. LEXIS 1618; 586 N.Y.S.2d 545 (1992).
609
610
611
114
115
Memoranda have also been admitted based on the observations of one person which were
transcribed by another where from their combined testimony the court could be satisfied that what was
written was an accurate transcription of what was observed or then known. 612
Without some verification by the observer-sender that what was recorded accurately
reflected her observations when made, the record of those observations are inadmissible. 613
Admission of the memorandum is a matter for the exercise of the court's discretion in
determining whether the proponent has made a sufficient showing of the accuracy of the recording and its
reliability. 614
612
613
614
115
116
CHAPTER 5 DEMONSTRATIVE EVIDENCE
Demonstrative evidence is admissible, at the trial court’s discretion, as long as the
conditions thereof are sufficiently similar to those existing at the time in question to make the result
achieved by the test relevant to the issue. 615
The admission or exclusion of real or demonstrative evidence rests largely within the
sound discretion of the trial court.
A demonstration under conditions virtually identical to those present at the time of
the incident may be highly relevant in determining how the incident occurred. 616
Nominal differences in conditions or items should not render an experiment
inadmissible, as long as the conditions or items are the same in all significant respects. 617
A variation in circumstances affects the weight of the evidence but is not a basis for
its exclusion. 618
Relevant facts derived from experiments are admissible. 619
Though tests and demonstrations in the courtroom are not to be rejected lightly
when they would play a positive and helpful role in the ascertainment of truth, courts must be alert to
615
People v. Estrada, 109 A.D.2d 977, 486 N.Y.S.2d 794, 1985 N.Y. App. Div. LEXIS 47481 (3d
Dep't 1985); see People v. Acevedo, 40 N.Y.2d 701, 704, 358 N.E.2d 495, 389 N.Y.S. 811
(1976); People v. Mariner, 147 A.D.2d 659, 538 N.Y.S.2d 61, 1989 N.Y. App. Div. LEXIS 2022
(2d Dep't 1989).
616
People v. Estrada, 109 A.D.2d 977, 486 N.Y.S.2d 794, 1985 N.Y. App. Div. LEXIS 47481 (3d
Dep’t 1985) (demonstration where man sat in driver’s seat of 1979 Thunderbird and pointed
shotgun at passenger’s side of the vehicle, demonstrating the physical impossibility of firing the
gun from the driver’s side at someone sitting in the passenger’s seat, since the interior of the car
is only 10 inches wider than the gun is long; the car was the same year and model, though not
the same vehicle, and the man was the same height and weight, as in incident)
617
Bolm v. Triumph Corp., 71 A.D.2d 429, 422 N.Y.S.2d 969, 1979 N.Y. App. Div. LEXIS 13496
(4th Dep't 1979) (impact experiments admissible, though motorcycle in question was 1966 model,
and gas tank tested was from a 1963 model; there was credible evidence that the two tanks were
the same in all significant respects)
618
Bolm v. Triumph Corp., 71 A.D.2d 429, 422 N.Y.S.2d 969, 1979 N.Y. App. Div. LEXIS 13496
(4th Dep't 1979). See Washington v. Long Island R.R. Co., 13 A.D.2d 710, 214 N.Y.S.2d 115 (2d
Dep’t 1961).
619
People v. Buchanan, 145 N.Y. 1, 26, 39 N.E. 846 (1895); Saladow v. Keystone Transp. Co.,
241 A.D. 161, 271 N.Y.S. 293 (1st Dep’t 1934); Day v. Johnson, 265 A.D. 383, 39 N.Y.S.2d 203
(4th Dep’t 1943).
116
117
the danger that when they are ill-designed or not properly relevant to the point at issue, instead of
being helpful they may serve to mislead, confuse, divert, or otherwise prejudice the purposes of the
trial. 620
When there is such a threat, the trial court itself must decide in the exercise of a
sound discretion based on the nature of the proffered proof and the context in which it is offered,
whether the value of the evidence outweighs its potential for prejudice. 621
5.1. ILLUSTRATIONS, DIAGRAMS, CHARTS
622
The use of visual aids to assist the jury is permitted.
Inherent difficulty in understanding specialized terminology and deciphering
complex records, and the relative ease of comprehending a model transaction with a simplified chart,
militates towards using a chart. 623
A diagram may be admitted in evidence to explain or illustrate an expert’s testimony
if it is a fairly and accurately depicts that which it purports to represent. 624 The diagram does not
have to be exact, as long as it aids the jury in comprehending a disputed issue and is a fair
representation. 625
620
People v. Acevedo, 40 N.Y.2d 701, 358 N.E.2d 495, 389 N.Y.S. 811 (1976); See People v.
Fiori, 123 A.D. 174, 108 N.Y.S. 416 (4th Dep’t 1908); Kratche v. New York Cent. R.R. Co., 228
A.D. 820, 240 N.Y.S. 443 (2d Dep’t 1930).
621
People v. Acevedo, 40 N.Y.2d 701, 358 N.E.2d 495, 389 N.Y.S. 811 (1976); see USS v. Town
of Oyster Bay, 37 N.Y.2d 639, 641, 339 N.E.2d 147, 376 N.Y.S.2d 811 (1975); People v.
Buchanan, 145 N.Y. 1, 39 N.E. 846 (1985). N.Y. LEXIS 783 (1895)
622
People v. Potter, 682 N.Y.S.2d 238; 1998 N.Y. App. Div. LEXIS 12488 (3d Dep't 1998) (chart
prepared to illustrate, using a hypothetical transaction, how negative computer entries could be
used to conceal the removal of cash without creating a discrepancy between the total posted
revenue and the actual total).
623
People v. Potter, 682 N.Y.S.2d 238; 1998 N.Y. App. Div. LEXIS 12488 (3d Dep't 1998).
624
Morrissey v. City of New York, 221 A.D.2d 607; 634 N.Y.S.2d 185; 1995 N.Y. App. Div. LEXIS
(2nd Dep't 1995) (diagram inadmissible where plaintiff failed to demonstrate that the accident
reconstructionist's diagram fairly and accurately depicted the scene at the time the accident
occurred).
625
Flah’s Inc. v. Richard Rosette Electric, Inc., 155 A.D.2d 772, 547 N.Y.S.2d 935 (3d Dep’t
1989) (diagram of electrical system which differed from the actual electrical layout because it
depicted one electrical line while the actual system had three lines held admissible, since the
difference was discussed, the jury was informed of the fact., and there was no prejudice to the
defendant).
117
118
As a for the use of a illustration, diagram or chart, the witness must state:
1. The illustration shows a relevant place or item;
2. The witness knows the place or item;
3. The illustration is a fair and accurate depiction of the place or item;
4. The witness believes that it would be helpful to use a illustration to explain his
testimony; and
5. The illustration has been marked, for appellate purposes.
A marker should be available for the witness to use, and the witness should be
instructed on the record how to mark the item, if at all. After the witness marks the exhibit, the
attorney should state on the record that the exhibit has been marked.
Some judges prefer that the exhibit be completely marked before it is offered into
evidence. Ask the judge in conference his preference.
The jury should be appropriately instructed as to the use of the illustration.
5.2. MODELS
Models are used to explain medical testimony, to illustrate a product, etc. (For
example, to explain a fracture, a physician may wish to use a skeleton model; an engineer may wish to
use a model of a large product to point to during his testimony.)
The for the use of a model is:
1. The model depicts a place or item involved in the case;
2. The witness knows the place or item;
3. The model is a fair and accurate model of the place or item; and
4. The witness needs to use the model to explain his testimony;
The jury should have a model or a photograph available to refer to whenever they
may become confused during a course of the trial. The model may be left in view of the jury, after it
has been admitted as demonstrative evidence.
118
119
5.3. EXHIBITING PHYSICAL CONDITION OR INJURY
5.3.1. Criminal Cases
A party may display a physical characteristic to the jury. In a criminal trial, the
defendant may display a physical characteristic to the jury without taking the stand and submitting
to cross-examination by the prosecutor. 626
The physical characteristic may play an important role in identifying a defendant. In
Allen, the chipped tooth was an unusual, distinguishing feature observed by the complainant. The
Marine Corps dental records made prior to the incident, together with expert testimony that the
defendant’s upper right tooth had not been altered since those records were made, sufficed to
establish the relevance of the display. 627
If a defendant can demonstrate that a tattoo predated the crime, and that the crime
victim would have had reason to notice the tattoo during the incident, it would be proper to permit
the defendant to exhibit the tattoos to the jury without being subject to substantive cross-
examination. 628
626
People v. Allen, 140 A.D.2d 229, 528 N.Y.S.2d 380 (1st Dep’t 1989) (teeth displayed to jury to
show that the defendant did not have a chipped tooth, where rape victim said rapist did).
627
People v. Allen, 140 A.D.2d 229, 528 N.Y.S.2d 380 (1st Dep’t 1989); People v. Shields, 81
A.D.2d 870, 438 N.Y.S.2d 885 (2d Dep’t 1981) (criminal defendant permitted to display a 14- to-
16-inch scar on his abdominal region that the complaining witness, a rape victim, did not mention,
since hospital records showed that the scar had antedated the crime, and there was no possibility
of the scar’s lack of authenticity); see also People v. Rodriguez. 64 N.Y.2d 738, 741, 475 N.E.2d
443, 445, 485 N.Y.S.2d 976, 978 (1984).
628
People v. Scarola, 71 N.Y.2d 769, 777–778, 530 N.Y.S.2d 83, 525 N.E.2d 728 (1988);
compare People v. Rodriguez, 64 N.Y.2d 738, 741 (1984) (no abuse of discretion to refuse to
allow defendant to display his tattooed hands inasmuch as there was no independent evidence
that the tattoos were present on the date of the crime) with United States v. Bay, 762 F.2d 1314
(1984) (with a foundation that the tattoos were present on the date of the crime, defendant should
be allowed to show bands to the jury without being subjected to substantive cross-examination).
119
120
The display of the accused’s physical characteristics has long been held not to
implicate the Fifth Amendment privilege against self-incrimination because such evidence is
nontestimonial in nature. 629
Thus, it is not required that the defendant take the stand and undergo cross-
examination in order to present to the jury the best evidence, which was nontestimonial, in support
of his defense of mistaken identity. 630
5.3.2. Civil Cases
A subject, the condition of whom is relevant to the issue, may be presented in open
court, to afford the trier of fact an opportunity to evaluate the alleged condition by the direct use of
their senses. 631
Accordingly, in a personal injury case, the plaintiff may show his injured arm to the
jury so that they may decide the extent and nature of the injury. 632
This technique frequently represents a valuable and reliable method of proof. 633
The plaintiff’s appearance and testimony is in essence an exhibit to help the jury in
making its determination. 634
Even though such demonstrative evidence may have the effect at times of “inflaming
the passions of the jury” or inciting extreme sympathy, that itself does not serve as a basis for
exclusion. 635
629
Holt v. United States, 218 U.S. 245, 252–253, 31 S. Ct. 2, 6, 54 L.Ed. 1021, 20 Am. Ann. Cas.
1138 (W.D. Wash. 1910); United States v. Dionisio, 410 U.S. 1, 5–6, 93 S. Ct. 764, 767, 35
L.Ed.2d 67 (Ill. 1972).
630
People v. Allen, 140 A.D.2d 229, 528 N.Y.S.2d 380 (1st Dep’t 1989); see generally
Stadtmauer, Exhibit A: the Human Body, 60 N.Y. St. B.J. 38.
631
Harvey v. Mazal Am. Partners, 165 A.D.2d 242, 566 N.Y.S.2d 242, 1991 N.Y. App. Div. LEXIS
2075 (1st Dep't 1991).
632
Mulhado v. Brooklyn City R.R. Co., 30 N.Y. 370 (1865).
633
Harvey v. Mazal American Partners,165 A.D.2d 242, 566 N.Y.S.2d 242, 1991 N.Y. App. Div.
LEXIS 2075 (1st Dep't 1991); 4 Wigmore, Evidence [Chadbourn rev.], § 1150.
634
LEXIS 2075 (1st Dep't 1991)
635
LEXIS 2075 (1st Dep't 1991)
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121
In Harvey, testimony proceeded for two days, during which time plaintiff was not in
court. The judge then permitted the plaintiff to be exhibited in his wheelchair before the jury, and
then his lawyer questioned him. The court ruled that plaintiff could appear, even though not under
oath, and answer questions put to him by his lawyer for the purported purpose of showing the nature
and extent of his brain damage. 636
A foundation was laid by the testimony of plaintiff’s neurologist and other
witnesses, all subjected to the oath and the crucible of cross-examination. Defendants were offered an
opportunity to question plaintiff, but they chose not to do so. 637
However, the determination as to whether this tactic is appropriate rests in the
sound discretion of the court, and considerable latitude has been afforded the trial judge. 638
The relevancy and value of such evidence in assisting the jury in understanding the
issues of the case are the criteria for its admission or rejection. 639
In Riddle, the plaintiff was an amateur violinist who injured her forearm and fingers.
To demonstrate the injury’s effect on her playing ability, the conductor of the Albany Symphony
Orchestra was permitted to demonstrate before the jury the difficulties that he observed the plaintiff
experiencing as she played. He explained how it was impossible to execute certain technical
636
LEXIS 2075 (1st Dep't 1991) (incompetent plaintiff allowed to answer questions designed to show
his mental condition as a result of his injuries).
637
LEXIS 2075 (1st Dep't 1991) (plaintiff gave barely audible, repetitious, and inconsistent answers
to questions relating to recognition of wife, son, children, and grandchildren, their names,
hobbies, and the number of days in a week and a year; e.g., when asked how many children he
had, he answered, “[S]even”, “nine boys” [and] “two girls,” then “[O]ne girl,” when actually he had
five sons and one daughter; and he answered that there were seven days, and later nine days, in
a year).
638
Clark v. Brooklyn Hgts. R.R. Co., 177 N.Y. 359, 69 N.E. 647 (1904) (plaintiff allowed to stand
assisted and to exhibit himself to the jury in the act of writing his name and taking a drink of
water, to illustrate that as a result of the accident he was affected by a tremor or muscular
twitching; court said that exhibit was on the border line, since it was in the sole control of the
witness himself, but affirmed, since the matter was discretionary with the trial court); Wesler v.
Kassl, 109 A.D.2d 740, 485 N.Y.S.2d 844, 1985 N.Y. App. Div. LEXIS 47221 (2d Dep't 1985)
(exclusion from evidence of certain articles of clothing and gear worn by plaintiff on day of
incident within the discretion of the trial court); Riddle v. Memorial Hospital, 43 A.D.2d 750, 349
N.Y.S.2d 855, 1973 N.Y. App. Div. LEXIS 2962 (3d Dep't 1973).
121
122
movements without full use of the left arm. The court instructed the jury that the witness was
permitted to demonstrate what he had observed about the plaintiff.
The demonstration must not be sensational or calculated to disrupt the “calm
judicial atmosphere of a court of justice.” 640
CHAPTER 6 QUESTIONING OF WITNESSES
6.1. DIRECT TESTIMONY
Evidence can exist in three forms: spoken words, written words, and nonverbal displays. The
use of written words, such as documents, and nonverbal evidence, such as real evidence, demonstrations,
reenactments, photographs, videotapes, models, and diagrams is discussed elsewhere. This chapter will cover
the mode of eliciting oral testimony from a live witness, either on the stand or at a deposition.
Oral testimony is critical to success in litigation. The witness must be prepared to tell his
story in an effective manner. The attorney must plan the most effective way for the witness to do so.
6.1.1. Narrative Testimony
639
Riddle v. Memorial Hospital, 43 A.D.2d 750, 349 N.Y.S.2d 855, 1973 N.Y. App. Div. LEXIS
2962 (3d Dep't 1973).
640
Clark v. Brooklyn Hgts. R.R. Co., 177 N.Y. 359, 362, 69 N.E. 647 (1904).
122
123
The questioner may simply ask the witness what he knows about a particular fact or event,
and let him turn to the jury and tell his story. In the alternative, the witness may be asked specific questions
calculated to elicit testimony on a particular fact. Either form of testimony is permissible. 641
In everyday conversation, people talk in narrative fashion. A person tells a story following a
natural train of thought. Since this form of testimony is more natural, the witness is likely to tell the story in
the most natural and persuasive manner.
Thus, the principle is that on direct, a questioner should be an observer, interrupting to ask
only those questions that are necessary to clarify the story for the jury.
The witness may intentionally or inadvertently fail to testify concerning some relevant fact or
circumstance. Therefore, cross-examination is available for the opponent to probe for any missing facts, false
assumptions, or inconsistencies in the story.
Most people tell a story in chronological order. It is easier to picture events in the order in
which they occurred. The more questions require isolated reentry into an otherwise chronological stream of
events, the more likely it is that the witness will become confused.
6.1.2. Inadmissible Information During Narrative Answer
The problem with narrative answers is that the witness may tell the jury something
irrelevant or inadmissible. The opposing attorney does not know what the witness might say next. When
specific questions are posed, the opponent knows what information is being elicited, and he or she can object
before the witness conveys the information.
Thus, to avoid disclosing inadmissible information to the jury, the general practice is to ask
questions designed to elicit particular information. The opposing attorney then has an opportunity to object
to that testimonial evidence being heard by the jury.
The narrative answer is still the most natural and effective way for a witness to testify. The
danger is that the witness may interject harmful inadmissible evidence into the narrative testimony. Thus, the
court has the discretion to determine where to draw the line and require specific questions. 642
641
Richardson, Evidence, § 478
123
124
The attorney should instruct the witness not to relate anything he was told, but only what he
or she observed or knows. The witness can be directed to a particular time and place and asked to describe
from the beginning what happened.
If, during the narrative, the witness says something that is inadmissible, opposing counsel
has the right and duty to object, stop the witness, and move to strike the testimony from the record. 643
If there is a danger that seriously prejudicial information will be improperly revealed to the
jury, the court may elect either to warn counsel and the witness not to mention the information or to direct
the use of specific questions. 644
Naturally, court and counsel must restrain the witness from merely “yapping” or digressing.
On direct, the attorney must keep the witness’s testimony on track, without causing him to lose his train of
thought. If counsel does not do so, the rules adequately enable the court to exercise its discretion to do so.
6.1.3. Narrative Testimony at Deposition
In New York, questioning during depositions is governed by the same rules as if the
testimony was taking place at court.
Since a deposition of an adverse party is equivalent to cross-examination, narrative questions
are not as effective. The witness has too much control over what is being included and omitted from the story.
Many questioners like to first obtain a narrative answer, setting forth the whole story, and
then go back and bore in on details. This is the most effective method when the questioner is not familiar with
the general story before starting the questioning. Many attorneys object to this method at a deposition,
though, since it requires the witness to make the same assertions twice.
6.2. LEADING QUESTIONS
A witness called on direct examination frequently favors the party who calls him. He is
susceptible to being “led.” Therefore, a question that suggests the answer desired, or even hints at the answer
642
Wigmore, Evidence, §§ 767, 769
643
644
Wigmore, Evidence. § 769; See Fed. R. Evid., § 611(a)
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125
desired, however subtly, is considered improper, because it tends to result in an answer which does not
accurately reflect the independent testimony of the witness and, in some cases, leads to conscious
misrepresentation of the facts.
The danger is not merely that the witness will intentionally agree with the questioner to
deceive the jury. Even a disinterested witness has a tendency to go along with the attorney who called him to
the stand. The witness consciously or subconsciously wants to provide the information requested. 645
A question is “leading” if it suggests the specific answer desired. Questions can suggest the
topic, or direct the witness’s attention to a particular area or subject, but they cannot suggest the answer.
There is no particular test for determining what question is leading or suggestive of the
answer. The form of the question is not what counts, but the substance.
The court must take into consideration the issues in the case, prior testimony, the witness,
the tone of the question, etc. Because there are so many factors, some of which do not appear in the appellate
record, appellate courts leave the matter to the discretion of the trial court. 646
Many courts have stated that objections to questions as leading are frequently frivolous and
are intended to defeat justice. 647
Juries do not understand the danger of a leading question, and, therefore, it may seem to them
that the objecting attorney is attempting to prevent them from hearing “the truth.” On the other hand, if
objections are frequently sustained, the questioner appears unfamiliar with the rules of the court and loses
credibility. In addition, the flow of the testimony is interrupted.
6.2.1. Calling for Agreement
A question that can simply be answered “yes” or “no” is usually leading, although it
ultimately depends on the situation, the tone of voice of the questioner, and the wording. If the question
suggests the answer desired, and merely calls for agreement of the witness, it is improperly leading. Wide
discretion has to be given to the trial court.
645
Wigmore, Evidence, § 769
646
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126
6.2.2. Assuming a Fact
A question that assumes a fact in controversy requires the witness to answer, based on the
assumption the fact is true. The assumption is not made explicit, so the jury does not know that the testimony
is based on the assumption that the fact is true.
The witness may call attention to a disputed fact or merely answer the portion of the
question addressed to him or her, either out of deference or politeness to the questioner or because the
witness does not think it is important enough to mention.
Thus, the general rule is that an attorney cannot state facts upon which no evidence has been
proven. 648
If the fact is not in dispute, or the assumed fact is incidental and incapable of being
misleading as to the main question, the question may be permitted.
If the fact is admitted, or the judge recognizes that the fact is established as a matter of law,
the question is not improper for incorporating the fact. If the witness testifies to a fact, the fact can then be
used in subsequent questioning of the witness.
6.2.3. “Did You or Did You Not?”
Questions such as “Did he or did he not say it was your fault after the accident?” permit the
witness to answer merely, “He did,” and thereby testify to details suggested to him by the questioner. Thus,
questions which call for the witness to choose among one or more suggested alternatives may be objectionably
leading.
The sensitivity of the trial court must be relied upon; if the question is merely directing the
witness’s attention to the topic of the question, it is permissible, but if the question is suggesting the answer,
it is improper.
647
See Wigmore, Evidence, § 770, fn. 1
648
126
127
6.2.4. Rephrasing Question Objectionable as Leading
An attorney may ask a leading question, which is successfully objected to, and then rephrase
the question in proper form. The witness is thereby alerted as to the desired answer.
In egregious cases, the court has the discretion to bar the witness from providing the
suggested information.
6.2.5. When Permissible on Direct
Leading questions may be used in certain situations, in the discretion of the court
1. Introductory matter that is not in dispute, but is used to call the witness’s attention to the
subject of the testimony, such as time, place, person, occasions. 649
2. When the witness’s memory has been exhausted, facts such as dates, names, etc., may be
suggested to assist recollection. 650
3. Witnesses who need special help to testify, such as children, illiterates, or those unable to
speak without assistance. 651
6.2.6. On Cross-Examination
On cross-examination, ordinarily no question is improper on the grounds that it is leading.

652
The cross-examiner must be able to lead, in order to elicit particular information from the
witness.
On cross-examination, leading questions should primarily be used. Every important question
on cross-examination should begin with “Isn’t it a fact that,” or “Isn’t it true that,” or “Didn’t you,” etc. This
will ensure that the question is leading, and the witness will be limited in his answer to a “yes” or a “no.”
649
650
Rodriguez v. Manhattan and Bronx Surface Transit Operating Authority, 117 A.D.2d 541, 498 N.Y.S.2d
826, 1986 N.Y. App. Div. LEXIS 52819 (1986); Hunter v. Szabo, 117 A.D.2d 778, 499 N.Y.S.2d 426,
1986 N.Y. App. Div. LEXIS 53054 (1986); Griffen v. Griswold, 114 A.D.2d 596, 494 N.Y.S.2d 441, 1985
N.Y. App. Div. LEXIS 53294 (3d Dep't 1985).
651
652
127
128
The witness should not be permitted to give an explanation of his affirmation or denial. The
witness either agrees or disagrees with the assertion of the questioner. His agreement or disagreement with
the existence of the fact is testimonial evidence.
The questioner may limit the witness to giving a responsive answer. If an unresponsive
answer is started, the attorney may interrupt the witness, ask that the court strike any unresponsive portion
of the answer, and request only a responsive answer. Thus, in commencing a cross-examination, the
questioner should inform the witness that he will be able to answer most of the questions with a “yes” or a
“no” only. The judge must be requested to admonish a witness who refuses to provide a responsive answer to a
“yes” or “no” question.
6.2.7. On Direct of Adverse Party
The rule against using leading questions prohibits giving suggestive answers to a witness
who is predisposed to assist the questioner. A witness called by a party is assumed to be friendly to the party
calling him. If, in fact, the witness is hostile to the questioner, the prohibition against leading questions ceases.
653
When a party calls an adverse party as a witness in his direct case, he may question the
adverse party as if on cross-examination. 654
It is improper to limit the right of a plaintiff to use leading questions when examining a
defendant, even though the defendant is called to testify as part of the plaintiff’s direct case. 655
If a nonparty witness is for any reason adverse to the party calling him, or identified with the
opposing party, he may be asked leading questions. 656
653
654
Segreti v. Putnam Community Hospital, 88 A.D.2d 590, 449 N.Y.S.2d 785, 1982 N.Y. App. Div. LEXIS
16765 (2d Dep't 1982); Wigmore, Evidence, § 774. The adverse party is by definition an adverse witness.
See N.Y. Proposed Code of Evidence, § 611.
655
Becker v. Koch, 104 N.Y. 394, 12 Civ. Proc. R. 75, 58 Am. Rep. 515, 10 N.E. 701, 5 N.Y. St. 688,
1887 N.Y. LEXIS 603, 104 N.Y. (N.Y.S.) 394 (1887); Arlene W. v. Robert D., 36 A.D.2d 455, 324
N.Y.S.2d 333, 1971 N.Y. App. Div. LEXIS 3986 (1971); Cornwell v. Cleveland, 44 A.D.2d 891, 355
656
Becker v. Koch, 104 N.Y. 394, 12 Civ. Proc. R. 75, 58 Am. Rep. 515, 10 N.E. 701, 5 N.Y. St. 688,
1887 N.Y. LEXIS 603, 104 N.Y. (N.Y.S.) 394 (1887).
128
129
Thus, if the witness has any reason for bias, hostility, interest, or favoritism against the
questioner, the questioner is entitled to use leading questions.
The bias of a witness may be presumed from his situation as to interest or relationship, before
it is disclosed in his testimony. Thus, an employee of a defendant may be called on the plaintiff’s direct case
and examined using leading questions, even though the witness does not appear “hostile.”
6.2.8. Adverse Party at Deposition
A deposition is intended to proceed just as if the witness were testifying on the stand.
Frequently, attorneys will argue that cross-examination is something reserved for trial, not depositions. The
objection is groundless.
CPLR 3113(c) provides: “(c) Examination and cross-examination. Examination and cross-
examination of deponents shall proceed as permitted in the trial of actions in open court. . . .” The Court of
Appeals has stated that “[i]f there is any possibility that the information is sought in good faith for possible
use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered [discoverable].” 657
Thus, questions which are proper at trial are also proper at a deposition.
At trial, an adverse party may be called by his opponent and questioned as if it were a cross-
examination. Therefore, at a deposition, an adverse party may be noticed for the deposition by his opponent
and still questioned as if it were cross-examination.
It is essential to a deposition that the questioner on direct be permitted to cross-examine
fully an adverse witness. Otherwise, if the deponent dies or becomes unavailable for some other reason, his
deposition testimony will be admissible, but he will not have been subjected to a full cross-examination. 658
657
Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430, 1968 N.Y.
LEXIS 1598 (1968).
658
CPLR 3117(a)(3)
129
130
6.2.9. On Direct of Hostile or Partisan Witness
The witness does not have to be identified with the adverse party. Even if there is no reason
for bias or partisanship, if the witness is unwilling to testify in a full and frank manner, whatever the reason,
leading questions may be used. 659
Thus, it has been held that leading questions were proper where the witness was not willing
to testify, was reticent, or was reluctant. Certainly, leading questions can be used if the witness is unfriendly
or deceptive. 660
6.2.10. On Cross of Favorable Witness
If the witness is more subject to the suggestion of the cross-examiner than the direct
examiner, leading questions may be used on direct, but not on cross. Thus, if the defendant is called to the
stand by the plaintiff, the defendant’s counsel on cross-examination may not lead his own client. 661
The prohibition depends entirely upon the mental condition of the witness.
This often happens when an opponent calls an employee or relative of the defendant as an
adverse witness on his direct. In such a situation, leading questions may be used by the favored party on
direct, but not on cross-examination. Nor can a defense counsel use leading questions on cross-examination of
a separate defendant, in order to establish a common defense. The same would apply to cross-examination by
a co-plaintiff’s counsel.
6.2.11. Matters Not Covered on Direct
In New York, cross-examination may cover matters brought out on direct and the
implications flowing from those matters and matters affecting credibility. If the questioner goes beyond these
areas into new matter, he may do so only at the risk of making the witness his own witness. 662
659
Richardson, Evidence, § 483; Wigmore, Evidence, § 774
660
Fed. R. Civ. P. 43(b) permits the use of leading questions to interrogate “any unwilling or hostile
witness.” The N.Y. Proposed Code of Evidence, § 611(c), would permit leading questions when a party
“calls a hostile witness, an adverse party, or a witness identified with an adverse party.”
661
662
Wigmore, Evidence, § 914; Richardson, Evidence, §§ 485, 516
130
131
If the witness becomes the cross-examiner’s, leading questions are prohibited, absent a
justification for using them on direct as set forth supra. 663
Professor Wigmore notes that the rule against leading questions has nothing to do with who
is doing the questioning, but instead relates to the presumed emotional attitude of the witness to the party in
general. The witness will not be biased toward one party during one direct, then biased toward the other
party during cross on the new matter. Wigmore argues that if the emotional attitude of the witness to the
party on direct was favorable, leading questions should be usable during the entire cross, even where the
cross-examiner makes the witness his own by questioning on new matters. The rule in New York, though,
prohibits use of leading questions on matters not covered on the direct examination. 664
6.3. FORM OBJECTIONS
On direct examination, the most common objection is to the leading form of a question. On
cross-examination, the form objections are more varied. The following are the common form objections.
6.3.1. Compound
A question that requires separate answers to separate parts is improper as being compound.
The question must be broken down into individual questions.
6.3.2. Overbroad
A question is overbroad if it calls for not only relevant information but also irrelevant
information. Thus, if the question is not limited to a relevant time period, it may be improper.
The question must be focused enough for the court and witness to know what is intended to
be proven. 665
The court must be able to determine that the information sought is relevant to the issues in
the case.
663
Wigmore, Evidence, § 915; People v. Court of Oyer and Terminer, 101 N.Y. 245, 4 N.E. 259 (1886).
See § 6.2.10.
664
Richardson, Evidence, §§ 485, 516.
131
132
The court has discretion to permit a question which lacks a full statement of parameters
(time, place, etc.), where the question is limited by the context of the inquiry.
It is often possible to limit the inquiry at the beginning of the questioning to a particular time
and place. For example, a preliminary statement may be made to the witness that “I’m going to limit all my
questions to the day of April 2, 1987, at the intersection of St. Claire and Skunk Streets, unless I tell you to the
contrary. Do you understand?”
Similarly, when the question is technically improper in form if taken literally, but it is clear to
the court what is meant by the question, the court may permit the question.
6.3.3. Confusing
A question that is indefinite, confusing, or unintelligible is improper. If the indefinite nature
of the question can be cured readily, the court may choose to ask the attorney to add whatever is needed. The
court instead may require that the question be reframed, to make it more precise.
6.3.4. Argumentative
Generally, it is improper for the questioning attorney to state the reason he disputes the
witness’s testimony, and then ask the witness to respond to the attorney’s statement. Such arguments are
usually reserved for the summation.
On cross-examination, a degree of argumentativeness may be permitted by the court. The
court must take into consideration the degree of adversity or hostility exhibited by the witness and the
circumstances of the case and the questioning. If the answer to the question may help the jury, the question
should be permitted. The court has wide on whether a question is too argumentative.
6.3.5. Intimidation
Questions may be deemed “browbeating,” “badgering,” or intimidating by either the manner
of the questioner or the substance of the question.
665
McGinley v. United States Life Ins. Co., 77 N.Y. 495, 1879 N.Y. LEXIS 809 (1879).
132
133
Attorneys should keep in mind that the art of cross-examination is not to examine crossly. It
has been said that every expression of reproach of a witness, however expressed—by language, gesture, facial
expression, tone of voice—should be avoided by the questioner. 666
By his demeanor, an attorney can cause an honest witness to become confused and cause
disturbance of memory and expression. Thus, remarks such as “You are lying, and you know it” are improper.
It has been said that browbeating is the kind of offense that can only be committed by an
advocate who has the judge for an accomplice. 667
Not only is an intimidating manner legally objectionable but it is also strategically
objectionable. In many instances, it arouses compassion for the witness. Certainly, it is a tactical error for an
attorney to adopt a tone of disdain until it is clear that the witness has been disingenuous, deceitful,
mendacious, or devious, considerably more than inadvertently inaccurate.
6.3.6. Asked and Answered
If an objection to a question is sustained by the court because the information it seeks is
inadmissible, it is improper to pose the question again. If the objection is sustained because the question was
in an improper form, the form may be corrected, and the question renewed. 668
The fact that the witness has answered the question on direct does not preclude asking for
the same information on cross, to test the witness’s recollection of his “story.” 669
This is subject to the discretion of the court; once the witness has fully answered the
question, without any appearance of evasion, the court should sustain the objection.
Once the witness gives a complete answer to a question on cross, such as “I don’t know,” it is
objectionable to repeat the question in the hope that the witness will change his testimony, get confused or
intimidated, or otherwise contradict his prior testimony. 670
666
J. Bentham, Rationale of Judicial Evidence, b. 3, co. 5 (Bowring’s ed., vol. 6, p. 406),
667
J. Bentham, Rationale of Judicial Evidence, b. 2, c. 9 (Bowring’s ed., vol. 6, p. 338).
668
Wigmore, Evidence, § 782,
669
People v. Lustig, 206 N.Y. 162, 99 N.E. 183, 1912 N.Y. LEXIS 963 (1912).
670
See People v. Barberi, 149 N.Y. 256, 43 N.E. 635, 1896 N.Y. LEXIS 703 (1896).
133
134
Yet history is replete with examples of witnesses who, after being asked the same question
several times, give a more complete answer. 671
Thus, where the answer was tentative, evasive, incomplete, unexpected, or lacked conviction,
the court has the discretion to permit the question to be repeated in a different form.
Where it is clear that the witness has no intention of changing his testimony, and the
question is repeated to attempt to embarrass or confuse the witness, it is unfair and a waste of time to permit
reiterating the question.
The line is thin between cross-examination which seeks greater certainty and clarity in the
answer and that which attempts to embarrass the witness. The area is peculiarly within the discretion of the
court.
6.4. COURT’S ROLE
Much is left to the discretion of the court in ruling on objections to the form of a question.
The primary consideration of the court is whether the answer to the question as framed will be likely to aid or
to mislead the jury.
The court may on its own motion exclude a question, but it is not required to do so, absent
an objection.
Care must be taken that the judge’s questioning of a witness does not appear either to
discredit or to support the testimony. 672
671
See Wigmore, Evidence, § 781.
672
People v. Mendes, 3 N.Y.2d 120, 164 N.Y.S.2d 401, 143 N.E.2d 806, 1957 N.Y. LEXIS 866 (1957).
134
135
CHAPTER 7 OPINIONS BY LAY WITNESSES
7.1. OPINION IN GENERAL
Every assertion by a witness is, in a way, a statement of an opinion. There are impulsive
opinions, deliberate opinions, commonplace opinions, and expert opinions.
A nonexpert witness may not give an opinion as to matters requiring expertise, nor may any
witness give a deliberate opinion as to commonplace matters which can be analyzed or broken down into
rudimentary factors. 673
The judge or the jury must be permitted to draw for themselves all the conclusions, while the
witness may state his perceptions, from which the conclusions may be derived. The witness states what he
perceived as a fact, and the judge or jury assesses the credibility of the witness’s perception, makes findings of
fact, and then draws the inferences from those facts.
A lay witness is generally restricted to describing material facts about which he has firsthand
knowledge. He cannot ordinarily give his opinion or conclusions drawn from his firsthand observation,
because either he lacks the skill, training, or experience to do so, or, if such skill is commonplace, the jurors are
just as capable of drawing their own conclusion from the facts recited by the witness. If the jury is just as able
to reach a conclusion based on the facts, it is their province to do so, not the witness’s. 674
7.2. EXCEPTIONS TO RULE AGAINST OPINIONS
Lay persons are permitted to give opinion evidence only when the subject matter of the
testimony is such that it would be impossible to describe the facts accurately without stating an opinion or
impression. The New York Proposed Code of Evidence section 701 permits a lay individual to provide
673
Maguire, Evidence: Common Sense and Common Law, p. 23 (1947).
135
136
testimony in the form of an opinion or inference when it is “rationally based on the perception of the witness;
and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” 675
7.2.1. Senses
Thus, there are numerous exceptions to the rule prohibiting opinions by lay witnesses. Often
it is virtually impossible to testify any other way. For instance, when describing a smell or a taste, a witness
must use analogies, such as “It smelled like gasoline.”
7.2.2. Emotional State
When describing someone’s emotions, it is often necessary to use conclusions, such as “He
was angry.”
7.2.3. Speed
When describing the speed of a vehicle, it may be necessary to say “very fast” or “slowly,” etc.
Such opinions are permissible where it is impossible, by description, to convey adequately an image from
which the jury can reach the conclusion of the witness.
A witness will ordinarily be allowed to testify as to the estimated speed of an automobile. 676
The rule is premised upon the prevalence of automobiles in our society, and the frequency
with which most people have to view them at various speeds.
674
Waltz, Criminal Evidence, p. 298 (1975).
675
Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d Dep’t
1985).
676
Larsen v. Vigliarolo Brothers, Inc., 77 A.D.2d 562, 429 N.Y.S.2d 273 (2d Dep’t 1980); Marcucci v. Bird,
275 A.D. 127, 88 N.Y.S.2d 333, 1949 N.Y. App. Div. LEXIS 3723 (3d Dep’t 1949); Swoboda v. We Try
Harder, Inc., 128 A.D.2d 862, 513 N.Y.S.2d 781 (2d Dep’t 1987).
136
137
The same reasons for allowing a witness to estimate the speed of an automobile do not exist
for motorcycles. Thus, it has been held to be proper to refuse to permit a witness to testify concerning the
speed of a motorcycle prior to an accident. 677
However, in Larsen, the witness was properly permitted to testify that he saw the plaintiff’s
motorcycle for a second or less, and that during that time, it traveled a distance of 70 feet. The trial court then
permitted the defendant’s expert to give his opinion, in answer to a hypothetical question based on the
witness’s testimony, that plaintiff’s motorcycle was traveling 47 3/4 m.p.h., three to four seconds prior to the
accident.
Testimony as to the speed of a motorcycle, based on the sound of the engine, was properly
excluded. 678
The plaintiff, who was injured while occupying a bus, should have been permitted to testify
that the bus was traveling “very fast” or at a “terrific speed.” 679
7.2.4. Intoxication
Testimony by witnesses in a Dram Shop Act action against a tavern owner that the motorist
was intoxicated was improperly excluded. A lay witness is competent to express his opinion as to whether he
or another person was intoxicated. 680
677
Larsen v. Vigliarolo Brothers, Inc., 77 A.D.2d 562, 429 N.Y.S.2d 273 (2d Dep’t 1980).
678
Grant v. New York Telephone Co., 114 A.D.2d 350, 493 N.Y.S.2d 871 (2d Dep’t 1985).
137
138
Testimony by one driver that another driver “seemed intoxicated” was inadmissible, in that
its probative value was outweighed by its prejudicial impact. 681
CHAPTER 8 OPINIONS BY EXPERT WITNESSES
CHAPTER 8 TABLE OF CONTENTS
8.1. ADMISSIBILITY
Opinion by experts is an exception to the general rule against opinion testimony.
679
LoFaso v. Jamaica Buses, Inc., 63 A.D.2d 998, 406 N.Y.S.2d 131 (2d Dep’t 1978).
680
Allan v. Keystone Nineties, Inc., 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dep’t 1980).
681
Lipp v. Saks, 129 A.D.2d 681, 514 N.Y.S.2d 443 (2d Dep’t 1987).
138
139
Expert testimony is admissible where the conclusions to be drawn from the facts “depend
upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence.” 682
The guiding principle is that expert opinion is proper when it would help to clarify an issue
that calls for professional or technical knowledge possessed by the expert and beyond the ken of the typical
juror. 683
The admissibility and bounds of expert testimony are addressed primarily to the sound
discretion of the trial court. 684
It is for the trial court in the first instance to determine when jurors are able to draw
conclusions from the evidence based on their day-to-day experience, their common observation, and their
knowledge, and when they would be benefited by the specialized knowledge of an expert witness. 685
Even if the proposed testimony is not beyond the jury’s ken, the Court of Appeals has
repeatedly upheld the admission of expert testimony for the purpose of clarifying an area of which the jurors
have a general awareness. 686
Admission of general psychological evidence about “rape trauma syndrome” was proper,
where the testimony was introduced “to dispel misconceptions that jurors might possess.” 687 Expert opinion
688
of rape trauma syndrome is inadmissible, though, if it bears solely on proving that a rape had occurred.
682
Dougherty v. Milliken, 163 N.Y. 527, 533, 57 N.E. 757 (1900); De Long v. County of Erie, 60 N.Y.2d
296, 457 N.E.2d 717, 469 N.Y.S. 611 (1983).
683
De Long v. County of Erie, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983) (jurors had a
general awareness of the services performed by a housewife, but the expert was allowed to testify as to
the value of the services, not only to evaluate the monetary value of such services, but also to dispel the
notion that what is provided without financial reward may be considered of little or no financial value in the
marketplace); Matott v. Ward, 48 N.Y.2d 455, 399 N.E.2d 532, 423 N.Y.S.2d 645 (1979).
684
People v. Miller, 91 N.Y.2d 372; 694 N.E.2d 61; 1998 N.Y. LEXIS 601; 670 N.Y.S.2d 978 (1998) (the
admission of expert testimony lies within the sound discretion of the trial court and review beyond the
intermediate appellate level is generally unwarranted in the absence of an abuse of discretion); People v.
Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351, 1983 N.Y. LEXIS 3503(1983) Selkowitz v.
County of Nassau, 45 N.Y.2d 97, 408 N.Y.S.2d 10 (1978); People v. Mooney, 76 N.Y.2d 827, 560
N.Y.S.2d 115, 559 N.E.2d 1274, 1990 N.Y.LEXIS 1988 (1990) (within discretion of court to exclude expert
witness from testifying concerning factors that may influence a witness’s perception and memory and
affect the reliability of identification testimony).
685
People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351, 1983 N.Y. LEXIS 3503 (1983)
(failure to exercise such discretion required reversal).
686
See Selkowitz v. County of Nassau, 45 N.Y.2d 97, 101–102 (1978); De Long v. County of Erie, 60
N.Y.2d 296, 307–308, 457 N.E.2d 717, 469 N.Y.S. 611 (1983).
139
140
While jurors might be familiar with the effects of alcohol on one’s mental state, the combined
impact of a case of beer, several marijuana cigarettes, and five to ten Valium tablets on a person’s ability to act
purposefully cannot be said as a matter of law to be within the ken of the typical juror. 689
8.2. QUALIFICATIONS
The term “expert” includes any person who has special skills or knowledge not within the
ordinary training or intelligence of the juror. A professional degree is not required; a garage mechanic is an
expert in his field, as is a brick mason, a sheet metal worker, a plumber, an electrician, and other nondegreed
690
specialists. Expertise may be acquired from practical experience.
The expert should be possessed of the requisite skill, training, education, knowledge, or
experience from which it can be assumed that the information imparted or the opinion related is reliable. 691
A doctor, in this case a general surgeon, is qualified to give an opinion in the specialty of
obstetrics or gynecology. A doctor need not be a specialist in a particular field to be considered a medical
expert. 692
Mechanical engineers can testify and distinguish types of injuries caused by different
mechanical environments. In Sumowicz, a “safety professional” who worked as an insurance industry
consultant and loss prevention consultant, had an undergraduate degree in geology and a master’s in
occupational safety and health, only took one undergraduate course in anatomy, and never studied the
687
People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131, 1990 N.Y. LEXIS 302 (1990)
(admission of expert testimony of rape trauma syndrome to explain the reaction of a rape victim in the
hours following the attack--behavior that was otherwise not within the common understanding of the
average juror).
688
People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131, 1990 N.Y. LEXIS 302 (1990).
689
People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351, 1983 N.Y. LEXIS 3503 (1983)
690
684 N.Y.S.2d 143 (1998) (admission of expert testimony that the minimal security afforded by a lock and
intercom would not have deterred plaintiff's attacker, based on the criminal's conduct, verbal behavior,
and use of a knife during his attacks on plaintiff and several other victims, held within discretion of trial
court, despite fact that expert had no academic degree in the behavioral sciences; expert's skill, training,
knowledge and experience were adequate to support an assumption that the opinion he rendered was
reliable).
691
Matott v. Ward, 48 N.Y.2d 455, 399 N.E.2d 532, 423 N.Y.S.2d 645 (1979)
140
141
anatomy of the human cornea was permitted to testify as to whether a glass without a beveled edge would
cause an abrasion or laceration to an eye. The expert had professional experience in the study of body
mechanics, as well as the impact of nonhuman objects on human bodies. 693
An engineer and experienced skier often involved in investigating and reconstructing skiing
accidents, who was writing a book on the safe design and use of recreational equipment, including ski
bindings, was permitted to testify as to a defect in ski bindings. 694
As a general rule, the admissibility of expert testimony on a particular point is addressed to
the discretion of the trial court. 695
Doubts as to whether evidence would be helpful to the trier of fact should be resolved in
favor of the admissibility of expert testimony. 696
Such discretion is not unlimited. For example, a Manhattan and Bronx Surface Transit
Operating Authority (MABSTOA) employee should not have been permitted to testify that, in her experience,
when accidents are not reported by MABSTOA bus drivers, it is because the accident never occurred. 697
The witness must testify as to his qualifications before expressing his opinion. After the
witness states his qualifications and before he gives his opinion, opposing counsel may interrupt and cross-
examine the witness as to expertise and challenge it.
Opposing counsel may offer to stipulate that the witness is qualified to testify as an expert.
There is no obligation to accept such stipulation, and most counsel do not do so, since it is important to bring
out the details of the expert’s training and experience to enable the jury to decide what weight to give to his
testimony.
692
Humphrey v. Jewish Hospital and Medical Center of Brooklyn, 172 A.D.2d 494, 567 N.Y.S.2d 737 (2d
Dep’t 1991).
693
Sumowicz v. Gimbel Brothers. Inc., 161 A.D.2d 314, 555 N.Y.S.2d 306 (1st Dep’t 1990).
694
Tarlowe v. Metropolitan Ski Slopes. Inc., 28 N.Y.2d 410, 414, 271 N.E.2d 515, 322 N.Y.S.2d 665
(1971).
695
684 N.Y.S.2d 143 (1998); De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717
(1983); Clinton v. Johnson, 167 A.D.2d 772, 563 N.Y.S.2d 328 (3d Dep’t 1990).
696
In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223, aff’d, 818 F.2d 187, cert. Denied;
Lombardi v. Dow Chemical Co., 487 U.S. 1234, 108 S. Ct. 2898, 101 L.Ed.2d 932 (E.D.N.Y. 1985).
697
Sanchez v. Manhattan and Bronx Surface Transit Operating Authority, 170 A.D.2d 402, 566 N.Y.S.2d
287 (1st Dep’t 1991).
141
142
8.3. FOUNDATION FOR EXPERT TESTIMONY
The foundation for expert testimony is:
1. To reach the opinion or conclusion, a lay juror would need to have special knowledge, skill,
or training which is beyond his ordinary experience;
2. The witness is an expert in a particular field;
3. The witness has a reasonable degree of certainty regarding his or her opinion or conclusion;
and
4. The witness describes the data on which his opinion or conclusion is based, or, in the
alternative, answers a hypothetical question setting forth the underlying data upon which his opinion is
based. 698
8.4. BASIS FOR OPINION
The expert witness can use four sources of information to reach an opinion:
1. Facts personally observed by him.
2. Facts communicated to him by another expert, which are reasonably relied on by experts
in the field, such as a radiologist’s report.
3. Evidence admitted in the courtroom, which he has overheard. This includes deposition
testimony and documents admitted into evidence, as well as courtroom testimony.
4. Information communicated to him in a hypothetical question which is drawn from
evidence admitted in the trial.
Expert opinion testimony is used in partial substitution for the jury’s otherwise exclusive
province, which is to draw “conclusions from the facts.” 699
It is a kind of authorized encroachment on the jury in that respect. To ensure that the jury is
not doubly displaced, it must at least have the facts upon which the expert bases his opinion in order to
evaluate the worth of that opinion.700
698
Waltz, Criminal Evidence, p.300 (1975).
142
143
Thus, it is traditionally stated that opinion evidence must be based on facts in the record or
personally known to the witness. 701
An expert need not personally view the items on which he bases his opinion, but he may not
speculate or guess. His opinion must be supported either by facts disclosed by the evidence or by facts known
to him personally. 702
Expert testimony may be based on facts which are “fairly inferable” from the evidence. 703
It is important that the expert witness distinguish between what part of his investigation he
relied upon in forming his opinion and what part he did not rely upon. 704
An expert cannot assume facts unsupported by the record unless he has personal knowledge.
On the other hand, an expert is not required to accept a description of an injury set forth in
an emergency room record, and disregard the plaintiff's description. 705 When an emergency room stated a
plaintiff's ankle was moderately swollen, but the plaintiff stated her ankle had massive swelling, the expert
could permissibly base his opinion on plaintiff's description of the ankle. 706
8.4.1. Testimony as to Basis of Opinion
New York Civil Practice Law and Rules 4515 states:
Unless the court orders otherwise, questions calling for the opinion of an
expert witness need not be hypothetical in form, and the witness may state
699
People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351, 1983 N.Y. LEXIS 3503 (1983).
700
People v. Jones, 73 N.Y.2d 427, 541 N.Y.S.2d 340, 539 N.E.2d 96, 1989 N.Y. LEXIS 480 (1989)
People v. Samuels, 302 N.Y. 163, 172, 96 N.E.2d 757 (1951).
701
Cassano v. Hagstrom, 5 N.Y.2d 643, 159 N.E.2d 348, 187 N.Y.S.2d 1 (1959); Marx v. Ontario Beach
Hotel and Amusement Co., 211 N.Y. 33, 39, 105 N.E. 97 (1914); People v. Samuels, 302 N.Y. 163, 171,
172, 96 N.E.2d 757 (1951); People v. Keough, 276 N.Y. 141, 145–146, 11 N.E.2d 570 (1937).
702
People v. Miller, 91 N.Y.2d 372; 694 N.E.2d 61; 1998 N.Y. LEXIS 601; 670 N.Y.S.2d 978 (1998)
(forensic pathologist may rest opinion as to time of death based upon evidence she had reviewed, such
as autopsy reports and photographs, other laboratory reports and the statement of a paramedic at the
scene where the victim was found); Aetna Casualty & Surety Company v. Barile, 86 A.D.2D 362, 450
N.Y.S.2d 10 (1st Dep’t 1982) (expert’s testimony that deceased driver was forced off road by phantom hit-
and-run driver held to be wholly speculative).
703
Aetna Casualty & Surety Company v. Barile, 86 A.D.2d 362, 450 N.Y.S.2d 10 (1st Dep’t 1982)
Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410, 414, 271 N.E.2d 515, 322 N.Y.S.2d 665 (1971).
704
People v. Sugden, 35 N.Y.2d 453, 363 N.Y.S.2d 923 (1974).
705
Leonard v. Kinney Systems, Inc., 199 A.D.2d 470; 605 N.Y.S.2d 762; 1993 N.Y. App. Div. LEXIS (2nd
Dep't 1993).
706
Leonard v. Kinney Systems, Inc., 199 A.D.2d 470; 605 N.Y.S.2d 762; 1993 N.Y. App. Div. LEXIS (2nd
Dep't 1993).
143
144
his opinion and reasons without first specifying the data upon which it is
based. Upon cross-examination, he may be required to specify the data and
other criteria supporting the opinion.
Thus, the expert is not required to state all the facts relied upon in giving his opinion. To the
extent the opposing party considers the factual basis to be inaccurate or incomplete, he may develop the issue
on cross-examination. 707
On the other hand, in opposing a motion for summary judgment "[w]here the expert states
his conclusion unencumbered by any trace of facts or data, his testimony should be given no probative force
whatsoever - indeed, no reason is apparent why his testimony should not simply be stricken." 708
8.4.2. Factual Basis for Opinion
An expert’s opinion is only as sound as the facts upon which it is based. 709
Consequently, an expert who relies on necessary facts within personal knowledge which are
not contained on the record is required to testify to those facts prior to rendering the opinion. 710
If the expert bases his opinion on facts which are not established by the evidence, the opinion
should not be considered by the jury. 711 "Where the expert states his conclusion unencumbered by any trace
of facts or data, his testimony should be given no probative force whatsoever - indeed, no reason is apparent
712
why his testimony should not simply be stricken."
Expert opinions of the kind needing material evidentiary support for which there is none
otherwise in the direct evidence or in some equivalently admissible evidentiary form have been excluded. 713
707
Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410 (1971).
708
Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525; 571 N.E.2d 645; 1991 N.Y. LEXIS 372; 569
N.Y.S.2d 337; CCH Prod. Liab. Rep. P12, 807 (1991).
709
710
People v. Jones, 73 N.Y.2d 427, 541 N.Y.S.2d 340, 539 N.E.2d 96, 1989 N.Y. LEXIS 480 (1989).
711
Sawyer v. Dreis & Krump Mfg., 67 N.Y.2d 328 (1986) (expert testified that press machine was properly
set up but that the metal slipped, and plaintiff reached for it reflexively, stepping on the pedal accidentally
when he did so; there was no basis in the record for such facts).
712
Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525; 571 N.E.2d 645; 1991 N.Y. LEXIS 372; 569
N.Y.S.2d 337; CCH Prod. Liab. Rep. P12, 807 (1991).
713
See People v. Patrick, 182 N.Y. 131, 172, 74 N.E. 843 (1905); Shore Haven Apts. No. 6 v.
Commissioner of Fin., 93 A.D.2d 233, 236, 461 N.Y.S.2d 885 (2d Dep’t 1983).
144
145
8.4.3. Reliance on Extrajudicial Material
If the expert relies on extrajudicial material, the jury must be put in a position to judge the
reliability of the material. 714
Authorized use of facts from outside the evidentiary record does not alter “the basic principle
that an expert’s opinion not based on facts is worthless.” 715
8.4.4. Reliance on Technical Material
An expert need not give technical reasons or bases for his opinion on direct examination.
The matter may be left for development on cross-examination. The extent to which an expert
elaborates or fails to elaborate on the technical basis supporting the opinion affects only the weight of the
expert testimony. 716
To the extent the defendant considers the expert testimony incomplete, he may develop the
issue on cross-examination. 717
8.4.5. Reliance on Scientific Tests or Syndromes
Before an expert can testify to findings or a scientific test or psychological syndrome, the
718
principle, procedure, test or syndrome must satisfy the Frye test, that is, the principle or procedure must
719
have gained general acceptance in its specified field.
A Frye hearing may be necessary to determine whether the expert's opinion has the requisite
720
scientific foundation.
714
See Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195 (1984).
715
Caton v. Doug Urban Constr. Co., 65 N.Y.2d 909, 911, 493 N.Y.S.2d 453 (1985).
716
Tarlowe v. Metropolitan Ski Slopes, Inc.,28 N.Y.2d 410, 322 N.Y.S.2d 665,271 N.E.2d 515,1971
N.Y.LEXIS 1249(1971)Schlansky v. Augustus V. Riegel. Inc., 9 N.Y.2d 493, 497, 215 N.Y.S.2d 52 (1961);
People v. Crossland, 9 N.Y.2d 464, 467, 214 N.Y.S.2d 728 (1961).
717
Tarlowe v. Metropolitan Ski Slopes, Inc.,28 N.Y.2d 410, 322 N.Y.S.2d 665,271 N.E.2d 515, 1971 N.Y.
LEXIS 1249 (1971)
718
See § § 3.11.1; 3.11.13.1.
719
People v. Bennett, 79 N.Y.2d 464; 593 N.E.2d 279; 1992 N.Y. LEXIS 1307; 583 N.Y.S.2d 825 (1992).
720
145
146
8.4.6. Witness Subject to Cross-Examination
An expert may form a professional opinion based on information coming from a witness who
had been subjected to a full cross-examination at the trial or prior to trial. 721
Allowing an expert to base, in part, his opinion on otherwise legally incompetent hearsay of a
person he has not interviewed, is conditioned on the hearsay declarant testifying at the trial. The quality and
content of the statement are exposed to cross-examination at trial, and all of the evils of hearsay are obviated.
This is especially so if the statement was available to defense counsel during cross-examination of the expert,
or if the hearsay declarant testifies directly or on recall after the expert’s cross-examination. 722
An expert witness may base his opinion on an out-of-court written statement of a witness
who testified at the trial. 723
8.4.7. Reasonably Relied on by Experts in the Field
Expert opinion can be based on material not in evidence provided that “it is of a kind
accepted in the profession as reliable in forming a professional opinion.” 724
A psychiatrist may rely on material, albeit of out-of-court origin, if it is of a kind accepted in
the profession as reliable in forming a professional opinion. 725
An expert witness may not rely on nonrecord evidence which is of a kind which is not
726
accepted in the profession as reliable in forming a professional opinion.
721
People v. Angelo, 88 N.Y.2d 217; 666 N.E.2d 1333; 1996 N.Y. LEXIS 308; 644 N.Y.S.2d 460 (1996);
Natale v. Niagara Mohawk Power Corp. & N.Y. Telephone Co., 135 A.D.2d 955, 522 N.Y.S.2d 364 (3d
Dep’t 1987) (medical opinion that contact with live wire caused decedent’s coronary thrombosis); People
v. Sugden, 35 N.Y.2d 453, 460, 461 (1974); See Hambsch v. New York City Transit Authority,63 N.Y.2d
723, 480 N.Y.S.2d 195,469 N.E.2d 516,1984 N.Y. LEXIS 4581(1984)People v. Stone, 35 N.Y.2d 69, 74–
76, 358 N.Y.S.2d 737 (1974).
722
People v. Sugden,35 N.Y.2d 453, 363 N.Y.S.2d 923, 323 N.E.2d 169, 1974 N.Y. LEXIS 1052 (1974)
723
Flamio v. State, 132 A.D.2d 594, 517 N.Y.S.2d 756 (2d Dep’t 1987).
724
People v. Angelo, 88 N.Y.2d 217; 666 N.E.2d 1333; 1996 N.Y. LEXIS 308; 644 N.Y.S.2d 460 (1996).
725
People v. Sugden,35 N.Y.2d 453, 363 N.Y.S.2d 923, 323 N.E.2d 169, 1974 N.Y. LEXIS 1052 (1974)
726
People v. Angelo, 88 N.Y.2d 217; 666 N.E.2d 1333; 1996 N.Y. LEXIS 308; 644 N.Y.S.2d 460
(1996)(expert cannot testify to polygraph results supporting his opinion).
146
147
The expert can be required on cross-examination to delineate the reports, physical and
mental examinations, medical records, and testimony relied upon in forming the opinion, so that the
testimony was admissible and subject to whatever weight the jury confers upon it. 727
Medical experts may testify as to the cause of death of the decedent based on the emergency
room sheet, discussions with doctors and nurses at the hospital, and a review of testimony. The fact that the
expert never actually examined the decedent or performed an autopsy goes to the weight of the evidence, not
to its sufficiency.
A physician may not testify with respect to a written litigation report prepared by a second
physician, if the second physician did not testify at the trial. 728
A physician may receive oral findings of a radiologist who conducted CAT scans, and then
testify at trial concerning the CAT scans, even though the radiologist did not testify, because the physician is
independently able to arrive at an opinion based on his reading of the CAT scans.
8.4.8. Reliance on Hearsay
An expert opinion based on inadmissible information, such as a statement in a hospital
record as to the cause of injury, is inadmissible. 729
A police officer’s opinion as to the cause of an accident is inadmissible, when the officer did
not witness the accident and could not identify with any specificity the sources of hearsay information. 730
An expert may not read portions of a book, such as the Physician’s Desk Reference, to the
jury on direct testimony, because the book is hearsay. 731
727
People v. Fitzgibbon,166 A.D.2d 745, 563 N.Y.S.2d 518, 1990 N.Y. App. Div. LEXIS 12025 (3d Dep't
1990)
728
Flamio v. State, 132 A.D.2d 594, 517 N.Y.S.2d 756 (2d Dep’t 1987).
729
Sanchez v. Manhattan and Bronx Surface Transit Operating Authority, 170 A.D.2d 402, 566 N.Y.S.2d
287 (lst Dep’t 1991).
730
Aetna Casualty & Surety Company v. Stone, 170 A.D.2d 599, 566 N.Y.S.2d 374 (2d Dep’t 1991).
731
Nicolla v. Fasulo, 161 A.D.2D 966, 557 N.Y.S.2d 539 (3d Dep’t 1990).
147
148
8.4.9. Facts Established by Judicial Notice
An expert’s opinion may be founded upon facts deemed proven by judicial notice where the
opportunity for challenge and cross-examination of the expert’s opinion testimony is adequately and timely
provided. However, a defendant’s protections in this regard cannot be dispensed with by a trial court which,
in an effort to salvage a People’s expert’s “proof,” takes judicial notice of necessary ingredients from a hearsay
source or from unidentifiable or nonindisputable sources outside the record or at a time subsequent to the
close of testimony. 732
8.4.10. Nontreating Expert Physician
It is a well-settled principle of law in New York that a nontreating physician, hired only to
testify as an expert witness, may not state the history of an accident as related to him by the plaintiff or testify
as to plaintiff’s medical complaints. 733
To do so permits the plaintiff to buttress unfairly his claim for physical injuries with the
added weight of an expert witness’s testimony.
Based on an examination of the injured party and a review of the medical records with regard
to both accidents, a medical expert would be permitted to render an opinion that the injured party sustained a
concussion in one accident and, as a result of that brain injury, suffered a blackout three days later. 734
8.4.11. Hypothetical Question
If the facts in the hypothetical question are fairly inferable from the evidence, the expert may
735
state his opinion without further foundation.
732
People v. Jones, 73 N.Y.2d 427, 541 N.Y.S.2d 340, 539 N.E.2d 96, 1989 N.Y. LEXIS 480 (1989).
733
De Luca v. Kameros,130 A.D.2d 705,515 N.Y.S.2d 819,1987 N.Y.App.Div.LEXIS 46725 (2d Dep't
1987) (elicitation of the plaintiff’s complaints to a medical expert who examined her solely in anticipation
of trial was improper); Nissan v. Rubin, 121 A.D.2d 320 (1st Dep’t 1986) (highly prejudicial for the trial
court to have permitted plaintiff’s two expert witnesses and non-treating physicians to testify concerning
the history of the accident and plaintiff’s physical complaints as related to them by the plaintiff).
734
Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989).
735
Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410 (1971) (reasons for technical opinion that plaintiff’s
fall on skis exerted 325 foot-pounds of pressure on the toe binding need not be stated on direct).
148
149
8.5. DEGREE OF CERTAINTY REQUIRED
An expert cannot express an opinion as to consequences which are “contingent, speculative,
or merely possible.” 736
While the witness cannot guess or surmise, a measure of flexibility is permitted, especially
given the reluctance of scientists to quantify their judgments as to cause and effect.
Evidence that injuries “could have resulted from a fall” was admissible. An opinion “as to
whether [plaintiff’s present] condition might have been caused by or be the result of a previous injury” was
admissible. 737
The court in Matott limited Strohm’s strict “reasonable certainty” formula to opinions as to
the likelihood of the future outbreak of latent or new conditions not manifested at the time of trial. The court
in Matott did not have occasion to reappraise that limitation.
In Matott, the plaintiff was in a car accident, and an osteopathic physician gave him therapy
for several months, then intermittently for the next four years until the time of trial. About two years after the
accident, the plaintiff first complained to the doctor of new injuries to parts of his body affected by the
original accident. Shortly before trial, the doctor examined the plaintiff to evaluate the residual condition.
The doctor could not say “with certainty” that the condition he found following the later
examinations was related “solely” to the original accident. He did say with “a degree of medical certainty” that
the condition was causally related. The issue was whether his opinion was admissible, without expressing his
opinion with a “reasonable degree of medical certainty.”
The Court of Appeals unanimously held that the expert must exhibit a degree of confidence
in his conclusions sufficient to satisfy accepted standards of reliability. “A reasonable degree of medical
certainty” is one such standard and is, therefore, commonly employed. But it is not the only way to reach the
level of certainty required by the rule.
736
Romano v. Stanley, 90 N.Y.2d 444; 684 N.E.2d 19; 1997 N.Y. LEXIS 1387; 661 N.Y.S.2d 589 (1997);
Strohm v. New York, Lake Erie & Western R.R. Co., 96 N.Y. 305, 306 (1884).
737
Turner v. City of Newburgh, 109 N.Y. 301, 308, 16 N.E. 344, 346 (1888), cited with approval in Matott.
149
150
The court should look to the substance, rather than the form. In many instances, the cause-
and-effect relationship is one that cannot be established with scientific certainty. The totality of the opinion,
if it cannot be expressed using the terms “reasonable degree of medical certainty,” must convey equivalent
assurance that it was not based on either supposition or speculation. The question is whether it is “reasonably
apparent” that “the doctor intends to signify a probability supported by some rational basis” that governs
whether the opinion is admissible. 738
The court should look to the context out of which the testimony arises. If, considering the
totality of the testimony, the opinion conveys the equivalent assurance that it is not based on either
supposition or speculation, the words “reasonable degree of medical certainty” are not necessary. There must
only be a substantive indication of reasonable reliability. 739
The Court of Appeals in Matott held that the rule which has evolved is whether it is
“reasonably apparent” that “the doctor intends to signify a probability supported by some rational basis.” 740
738
Matock v. Ward, supra, quoting Matter of Miller v. National Cabinet Co., 8 N.Y.2d 277, 282, 168
N.E.2d 811, 813, 204 N.Y.S.2d 129, 133 (1960); Matter of Ernest v. Boggs Lake Estates, 12 N.Y.2d 414,
416, 190 N.E.2d 528, 529, 240 N.Y.S.2d 153, 154 (1963) (“it may be assumed with all reasonable
likelihood” that the accident trauma “could possibly have influenced adversely” claimant’s tuberculosis).
739
Matott v. Ward, 48 N.Y.2d 460, 399 N.E.2d 532, 423 N.Y.S.2d 645 (1979), citing with approval the
following decisions: Griswold v. New York Cent. & Hudson R.R. Co., 115 N.Y. 61, 64, 21 N.E. 726 (1889)
(“probability” held proper formulation for inquiry as to likelihood of recovery) Cross v. City of Syracuse,
200 N.Y. 393, 396–397, 94 N.E. 184, 185 (1911) (doctor could “hardly answer” question as to prognosis
“with reasonable certainty,” but subsequent opinions admitted); Knoll v. Third Ave. R. R. Co., 46 A.D. 527,
62 N.Y.S. 16 (1st Dep’t 1900) (extent of injuries “likely” to increase in future held admissible); Drollette v.
Kelly, 286 A.D. 641, 146 N.Y.S.2d 55 (1955) (“could” have caused present condition sufficient); Green v.
Mower, 3 A.D.2d 771, 160 N.Y.S.2d 428 (3d Dep’t 1957) (testimony that accident “could” have caused
condition upheld)[ McGrath v. Irving, 24 A.D.2d 236, 238, 265 N.Y.S.2d 376, 377 (3d Dep’t 1965)
(allowing “opinion” of what “was” cause of disease); Matter of Brown v. Highways Displays. Inc., 30
A.D.2d 892, 291 N.Y.S.2d 856 (3d Dep’t 1968) (finding “could be,” “possibly was,” and “probably was”
adequate to establish condition as work-related); Matter of Scherbner v. Masmil Corp., 34 A.D.2d 1072,
312 N.Y.S.2d 114 (3d Dep’t 1970) (“possible cause” and “could have a toxic effect” are permissible);
Peligri v. CAT Serv. Corp., 36 Misc.2d 257, 232 N.Y.S.2d 177 (City Ct. of N.Y. Bronx Co. 1961) (“could
be” a cause and “could be” and “it seems to be” permanent are acceptable).
740
Citing Matter of Miller v. National Cabinet Co., 8 N.Y.2d 277, 282, 168 N.E.2d 811, 813, 204 N.Y.S.2d
129, 133 (1960); See also Matter of Ernest v. Boggs Lake Estate, 12 N.Y.2d 414, 416, 190 N.E.2d 528,
529, 240 N.Y.S.2d 153, 154 (1963) (“it may be assumed with all reasonable likelihood” that the accident
trauma “could possibly have influenced adversely” claimant’s tuberculosis), citing Sentilles v. Inter-
Caribbean Corp., 361 U.S. 107, 109, 80 S. Ct. 173, 4 L.Ed.2d 142 (Fla. 1959) (“probably,” “the most
likely” cause).
150
151
In Tremmel v. Wallman, plaintiff’s expert chiropractor and neurologist both testified that the
defendant chiropractor’s delay in diagnosing plaintiff’s nerve condition and progressive neurological deficits
deprived the plaintiff of a substantial opportunity to avoid permanent nerve damage.
The failure of the chiropractor to so treat the plaintiff “more probably than not resulted in
certain injuries which might otherwise have been prevented.” The court held that it is not necessary for the
plaintiff to eliminate entirely all possibility that a defendant’s conduct was not a cause of the injury. It is
enough that the plaintiff offer sufficient evidence from which reasonable men might conclude that it is more
probable than not that the injury was caused by the defendant. 741
The requirement of a reasonable probability assessment in expert testimony on causation is
particularly important in establishing causation in a products liability case. 742
8.5.1. Speculation by Expert
An expert cannot express an opinion as to consequences that are “contingent, speculative, or
merely possible.” 743
For an expert’s opinion to make a prima facie case, it must contain foundational facts to
support the opinion. Without a foundation based upon facts in the record or personal knowledge, the opinion
is purely speculative and lacks sufficient probative force to constitute prima facie evidence of negligence. 744
Thus, a forensic pathologist's opinion in an affidavit that a person would necessarily exhibit
gaze nystagmus, glassy eyes, motor impairment and difficulties controlling speech and voice levels, based on a
toxicology report showing a blood alcohol level of 0.26% and a 0.33% level in her urine at the time of death,
745
was ruled insufficient to defeat a motion for summary judgment in a Dram Shop Act case. The expert's
opinion was considered speculative and conclusory, because it failed to articulate the facts and data
supporting the expert's opinion as to the appearance of a person. A pathologist, noted the Court of Appeals, is
741
Tremmel v. Wallman, 166 A.D.2d 582, 560 N.Y.S.2d 868 (2d Dep’t 1990).
742
In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223, aff’d, 818 F.2d 187, cert. Denied;
Lombardi v. Dow Chemical Co., 487 U.S. 1234, 108 S. Ct. 2898, 101 L.Ed.2d 932 (E.D.N.Y. 1985).
743
Strohm v. New York, Lake Erie & Western R.R. Co., 96 N.Y. 305, 306 (1884).
744
Morrison v. Flintosh, 163 A.D.2d 646, 558 N.Y.S.2d 690 (3d Dep’t 1990).
745
Romano v. Stanley, 90 N.Y.2d 444; 684 N.E.2d 19; 1997 N.Y. LEXIS 1387; 661 N.Y.S.2d 589 (1997).
151
152
not normally called upon to relate back a persons behavior while alive, to findings in a toxicology report. No
reference was made either to the expert's own personal knowledge acquired through his practice or to studies
or to other literature that might have provided the technical support for the opinion he expressed.
Questioning of a witness that requires the witness to engage in speculation is improper. 746
The expert witness may be required, on cross-examination, to specify the data, sources, and
other criteria for his opinion. 747
Plaintiff’s architectural expert’s opinion that installing air conditioners on the roof without
proper supports caused the roof to leak was held to be speculative, since the expert did not know the weight
of the air conditioners, and nothing was admitted showing that the defendant had failed to comply with
industry standards requiring additional supports. Thus, the expert’s opinion was not based on facts contained
in the record or within his personal knowledge. He could not assume material facts not supported by the
evidence, nor guess or speculate, in drawing a conclusion. 748
Expert testimony in a medical malpractice case established multiple possible causes for a
fistula that developed after surgery, even in the absence of negligence; therefore, the testimony did not provide
a rational basis for the jury to conclude that the fistula developed by reason of defendant’s negligence. 749
In Collins v. McGinley, 750 a rheumatologist established that the plaintiff’s car accident
precipitated a previously quiescent case of systemic lupus erythematosus, a disease involving an abnormality
of the immune system. Defendant’s medical expert did not dispute that plaintiff was suffering from lupus. but
only that the accident caused the dormant state to activate. The dissent argued that the lupus could have been
activated by a number of other precipitating causes, and to pin it on the accident was an exercise in
speculation. The plaintiff’s verdict was nevertheless upheld. 751
746
Waters v. Silverock Baking Corporation, 172 A.D.2D 984, 568 N.Y.S.2d 668 (3d Dep’t 1991).
747
Nickerson v. Winkle, 161 A.D.2d 1123, 556 N.Y.S.2d 414 (4th Dep’t 1990).
748
Interstate Cigar Co., Inc. v. Dynaire Corp., 176 A.D.2d 699, 574 N.Y.S.2d 789, 1991 N.Y. App. Div.
LEXIS 12644 (2d Dep't 1991)
749
Storniolo v. Bauer, 176 A.D.2d 550, 574 N.Y.S.2d 731 (1st Dep’t 1991).
750
158 A.D.2d 151, 558 N.Y.S.2d 979 (3d Dep’t 1990).
751
Collins v. McGinley, 158 A.D.2d 151, 558 N.Y.S.2d 979 (3d Dep’t 1990).
152
153
Testimony by two neurosurgeons and a chiropractor established that the defendant
chiropractor had caused or contributed to plaintiff’s cauda equina syndrome by failing to refer her for medical
attention and by placing rotary stress on her damaged disc. 752
Plaintiff’s traffic and safety engineer testified that, in his opinion, the combination of the
speed of a subway train coming into a station and the delay by the motorman in releasing the emergency stop
handle caused the plaintiff, who had fallen on the tracks, to get struck. The expert used the statements of the
motorman to determine the amount of time available to him to stop. Such a basis was not speculation or
conjecture, since the statements of the motorman were in evidence. The expert said the motorman had an
additional four to seven seconds to react before the plaintiff fell onto the tracks, because the motorman
admitted that he saw the plaintiff on the station, staggering, before he fell. The dissent said this was
speculation on the expert’s part, but the majority held that it was based on a statement given by the
motorman immediately after the accident. The fact that the motorman did not repeat such statements at trial
or deposition did not mean the expert could not rely on the statement in reaching his opinion. 753
An accident reconstruction expert could be permitted to testify on the issue of whether an
automobile collision could have caused plaintiff’s injury. 754
Plaintiff’s medical expert was permitted to testify that the incident was a proximate cause of
the exacerbation of the plaintiff’s “dry eye” condition. 755
8.6. OPINION ON ULTIMATE QUESTION
For testimony regarding ultimate questions, admissibility turns on whether, given the nature
of the subject, “the facts cannot be stated or described to the jury in such a manner as to enable them to form
an accurate judgment thereon, and no better evidence than such opinions is attainable.” 756
752
Kwasny v. Feinberg, 157 A.D.2d 396, 557 N.Y.S.2d 381 (2d Dep’t 1990).
753
Rivera v. New York City Transit Authority, 161 A.D.2d 132, 555 N.Y.S.2d 254 (1st Dep’t 1990).
754
Bravo v. Victor’s Cafe, Inc., 172 A.D.2d 297, 568 N.Y.S.2d 606 (1st Dep’t 1991).
755
Aguglia v. Hills Department Stores, Inc., 167 A.D.2d 934, 561 N.Y.S.2d 1002 (4th Dep’t 1990).
756
People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351, 1983 N.Y. LEXIS 3503
(1983).Van Wycklen v. City of Brooklyn, 118 N.Y. 424, 429, 24 N.E. 179 (1890); Noah v. Bowery Sav.
Bank, 225 N.Y. 284, 292, 122 N.E. 235 (1919)
Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d Dep’t 1985).
153
154
A plaintiff’s medical expert may render an opinion as to whether the plaintiff sustained a
serious injury, within the meaning of Insurance Law section 5102(d). The expert testified using the language
of the no-fault law that plaintiff’s permanent chronic cervical strain was a “permanent loss of use of a body
function or system” and a “significant limitation of use of a body function or system.” The plaintiff, who had
missed two weeks of work, received a verdict of $25,000 for pre-verdict damages and $150,000 for future
damages.
The defendant and dissent argued that the medical expert should not be asked two questions
in the identical language to the two questions that would be submitted to the jury, i.e., “Did the plaintiff
sustain a permanent loss of use of a body function or system?” and “Did the plaintiff sustain a significant
limitation of a body function or system?”
The majority, nevertheless, allowed the expert to give his opinion on this ultimate issue of
fact, since it was based on an adequate factual basis. 757
While jurors might be familiar with the effects of alcohol on one’s mental state, the combined
impact of a case of beer, several marijuana cigarettes and five to ten Valium tablets on a person’s ability to act
purposefully cannot be said as a matter of law to be within the knowledge of the typical juror. 758
If the jury is able to assess photographs based on their own experiences, understanding, and
observation, expert testimony concerning the appearance and condition shown in the photographs invades
the province of the jury. 759
A professional engineer testified for the plaintiff that it was the custom and practice in New
York City for stores to completely remove snow within one hour, and no accumulation should be permitted to
exist on the public walk area.
The court held that removal of snow and ice is not a subject calling for professional or
technical knowledge possessed by the expert and beyond the ken of the typical juror. Unless the jurors could
757
Robillard v. Robbins, 168 A.D.2d 803, 563 N.Y.S.2d 940 (3d Dep’t 1990).
758
154
155
not comprehend the issues and evaluate the evidence, an expert’s opinion intrudes on the province of the jury
and is unnecessary and improper. 760
It was error to permit the expert to testify that the sidewalk was not properly maintained
and created an unsafe condition, because doing so permitted the expert to determine the ultimate issue in the
case, usurping the function of the jury.
Where the issue of causal connection between a building code violation and an accident is a
factual issue within the ken of the jury, it should be left to jury determination. The facts can be stated by the
expert, but the conclusions are left for the jury. 761
A Coast Guard investigative report which found “no evidence of actionable misconduct,
inattention to duty, negligence, or willful violation of law or regulation” on the part of the defendant was held
inadmissible, because it stated legal conclusions, not factual findings. 762
While expert testimony is admissible to explain a rape victim's behavior after a rape, 763 such
testimony is not admissible to establish that the victim's symptoms show there was a rape. 764
8.7. CUSTOM AND PRACTICE
An expert may testify as to the generally accepted custom, practice, and usage within a
particular trade or industry to establish a standard of care. 765 (engineer should have been permitted to testify
regarding whether certain design features of a railing had been implemented at the subway station where the
accident occurred or at other elevated subway stations within the city)
759
Corelli v. City of New York, 88 A.D.2d 810, 450 N.Y.S.2d 823 (1st Dep’t 1982) (expert’s testimony
concerning the appearance and condition of flagstone shown in photographs, which he did not see
personally, held impermissible).
760
Nevins v. Great Atlantic and Pacific Tea Company, 164 A.D.2d 807, 559 N.Y.S.2d 539 (1st Dep’t
1990).
761
Clinton v. Johnson, 167 A.D.2d 772, 563 N.Y.S.2d 328 (3d Dep’t 1990).
762
Haggerty v. Moran Towing & Transportation Co., Inc., 162 A.D.2d 189, 556 N.Y.S.2d 314 (1st Dep’t
1990).
763
People v. Bennett, 79 N.Y.2d 464; 593 N.E.2d 279; 1992 N.Y. LEXIS 1307; 583 N.Y.S.2d 825 (1992);
764
765
Cruz v. New York Transit Authority, 136 A.D.2d 196, 526 N.Y.S.2d 827 (2d Dep’t 1988).
155
156
An expert witness should have been permitted to testify that it was the custom and practice
to have a chimney inspected prior to hookup of a heating system, to prove that a fire was caused by an
omission on the part of the defendants in not having the chimney inspected after hookup of a heating system.
The expert could testify to establish the standard of care in installing the heating system. Such testimony was
not speculative or hindsight. 766
A safety engineer whose only experience directly relevant to the “customary standards of
safety” for department stores was that he had “analyzed many accident scenes where people had slipped and
fallen on floors, etc., including floors in department stores,” did not establish a foundation for his opinion that
the failure of the defendant to place a mat or carpet down the main aisle of the store was a departure from
customary standards of safety in a department store. Such testimony did not even establish a prima facie case
of negligence on the part of the store. 767
8.8. IMPEACHING EXPERT
It was severely prejudicial to permit plaintiff’s counsel to impeach the defendant’s
engineering expert by showing that he had testified as defendant’s expert in a similar case, in which the jury
returned a verdict for the plaintiff of $6 million. 768
An expert witness cannot be asked whether he knew if other experts had reviewed the file.
769
8.8.1. Authoritative Texts
It is well settled that an expert may be questioned through the use of a scientific work or
treatise. However, in order to lay a foundation for the use of such material, he must first admit to its
authoritativeness. 770
766
French v. Ehrenfeld, 180 A.D.2d 895, 579 N.Y.S.2d 480, 1992 N.Y. App. Div. LEXIS 1595 (3d Dep't
1992)
767
Paciocco v. Montgomery Ward, 163 A.D.2d 655, 557 N.Y.S.2d 997 (3d Dep’t 1990).
768
Feaster v. New York City Transit Authority, 172 A.D.2d 284, 568 N.Y.S.2d 380 (1st Dep’t 1991).
769
Forrester v. Port Authority of New York and New Jersey, 166 A.D.2d 181, 564 N.Y.S.2d 85 (1st Dep’t
1990).
156
157
In a medical malpractice action, the defendant doctor need not answer broad questions at a
deposition concerning books he considers authoritative. 771
The physician may be confronted with a specific work or treatise and asked whether he
considers it authoritative.
8.9. ECONOMIC TESTIMONY
8.9.1. Present Value of Award for Loss of Future Earnings
An expert may give an opinion as to the present value of an award for loss of future earnings,
provided a proper foundation is laid.
Unsupported estimates of 1978 and 1979 income were inadmissible to establish plaintiff’s loss
of earnings, where there was a great discrepancy between his estimates and his tax returns.
8.9.2. Effect of Inflation on future damages
It is proper to admit expert testimony as to inflation, to assist the jury in calculating the
amount of future damages in a personal injury action. 772
8.9.3. Value of Housewife’s Services
In a wrongful death action, an economist may offer an opinion as to the market value of the
type of services performed by the average housewife in the decedent’s circumstances. 773
770
People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913 (1949); Mark v. Colgate Univ., 53 A.D.2d 884, 385
N.Y.S.2d 621 (2d Dep’t 1976); Hastings v. Chrysler Corp., 273 A. D. 292, 77 N.Y.S.2D 524 (1st Dep’t
1948).
771
Ithier v. Solomon,59 A.D.2d 935, 399 N.Y.S.2d 450, 1977 N.Y. App. Div.LEXIS 14168(2d Dep't 1977)
(asked by plaintiff’s counsel, inter alia (1) whether he recognized any books, authorities, or works as
authoritative or standard in the field of tuberculosis; (2) what books he considered authoritative in the field
of tuberculosis; and (3) what books he studied in medical school or subsequent thereto dealing with
tuberculosis) He cannot be asked a general question as to what books he considers authoritative and
what books he read in medical school. The second department held that such questions were too broad.
Ithier v. Solomon,59 A.D.2d 935, 399 N.Y.S.2d 450, 1977 N.Y. App. Div.LEXIS 14168 (2d Dep't 1977)
772
Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 N.Y.2d 311, 660 N.Y.S.2d 685, 683 N.E.2d
307, 1997 N.Y. LEXIS 1364 (1997).
773
De Long v. County of Erie, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983) (no abusive
discretion in permitting qualified expert to evaluate the value of the housewife’s services).
157
158
8.10. REQUIRING DEFENDANT’S OPINION
An independent, disinterested witness, may not be required to testify as an expert. 774
The defendant in a civil suit has no inherent right to remain silent or, once on the stand, to
answer only those inquiries which will have no adverse effect on his case. Rather, he must, if called as a
witness, respond to virtually all questions aimed at eliciting information he may possess relevant to the issues,
even though his testimony on such matters might further the plaintiff’s case. 775
A plaintiff in a malpractice action is entitled to call the defendant doctor to the stand and
question him both as to his factual knowledge of the case (that is, as to his examination, diagnosis, treatment,
and the like) and, if he be so qualified, as an expert for the purpose of establishing the generally accepted
medical practice in the community. 776
This would apply equally to other experts, such as engineers in product liability cases.
A member of the defendant medical partnership cannot be required to give an expert opinion,
unless the witness was named individually as a defendant. 777
8.11. EXPERT’S FAILURE TO TESTIFY
Where the plaintiff was examined by a physician and psychiatrist on behalf of the defendant,
but they did not testify at trial, the court properly gave a missing witness instruction with respect to the two
defense doctors. 778
8.12. REQUIRED PRETRIAL DISCLOSURE OF EXPERT INFORMATION
8.12.1. Civil Cases
New York Civil Practice Law and Rules 3101(d)(l)(i) provides:
774
People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223, 72 N.E.2d 165 (1947).
775
McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20, 203 N.E.2d 469, 255 N.Y.S.2d 65
(1964).
776
McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20, 203 N.E.2d 469, 255 N.Y.S.2d 65
(1964).
777
Cuccia v. Brooklyn Medical Group, 171 A.D.2d 836, 567 N.Y.S.2d 772, (2d Dep’t 1991).
778
Pallotta v. West Bend Co., 166 A.D.2d 637, 561 N.Y.S.2d 66 (2d Dep’t 1990).
158
159
3101. Scope of disclosure. . . .
(d) Trial preparation.
1. Experts. (i) Upon request, each party shall identify each person whom the
party expects to call as an expert witness at trial and shall disclose in
reasonable detail the subject matter on which each expert is expected to
testify . . . the qualifications of each expert witness and a summary of the
grounds for each expert’s opinion. However, where a party for good cause
shown retains an expert an insufficient period of time before the
commencement of trial to give appropriate notice thereof, the party shall
not thereupon be precluded from introducing the expert’s testimony at the
trial solely on the grounds of noncompliance with this paragraph. In that
instance, upon motion of any party, made before or at trial, or on its own
initiative, the court may make whatever order may he just.
Where the expert witness was first retained by the defense during the trial based on “good
cause,” i.e., the “surprise” testimony adduced during the police officer’s cross-examination, the failure to give
“appropriate notice” of this expert’s testimony was not, standing alone, a sufficient ground to preclude the
defendants from introducing it into evidence. 779
8.12.2. The Third Day Rule
Pursuant to local court rules, a treating or examining physician cannot testify to any
conditions or injuries not contained in a medical report that was disclosed to the opposing parties at least
thirty days before trial. 780
This rule applies only to treating or examining physicians. If the physician has not treated or
examined the plaintiff, he may testify as an expert, even though his medical report was not disclosed. 781
Counsel cannot avoid the rule by asking the physician hypothetical questions rather than
factual findings. 782
779
Simpson v. Bellew, 161 A.D.2d 693, 555 N.Y.S.2d 829, 1990 N.Y. App. Div. LEXIS 6480 (2d Dep't
1990).
780
Ciriello v. Virgues, 156 A.D.2d 417, 548 N.Y.S.2d 538 (2d Dep’t 1989); Manoni v. Giordano, 102
A.D.2d 846, 476 N.Y.S.2d 617 (2d Dep’t 1984); Knight v. Long Island College Hospital, 106 A.D.2d 371,
482 N.Y.S.2d 503 (2d Dep’t 1984); See 22 N.Y.C.R.R. § 202.17(h); See generally Durst, Fuchsberg,
Kleiner, Modern New York Discovery, §§ 12:28, 12:29 (1992 Supp.).
781
Wonsch v. Snyder, 53 A.D.2d 1031, 386 N.Y.S.2d 588 (4th Dep’t 1976); Byczek v. New York Dept. of
Parks, 81 A.D.2d 823, 438 N.Y.S.2d 596 (2d Dep’t 1981).
782
Kastner v. Rodriguez, 91 A.D.2d 950, 458 N.Y.S.2d 566 (1st Dep’t 1983).
159
160
The trial court may, upon a showing of good cause, permit the testimony of a physician
whose report was not disclosed before trial. 783
The physician may testify based on hospital records alone, in lieu of a physician’s report, as
long as an appropriate certification to that effect is made and authorizations were exchanged. 784
8.13. ADMISSIBILITY OF EXPERT TESTIMONY OR SCIENTIFIC FINDINGS (FRYE HEARING)
(785
Scientific evidence will only be admitted at trial if the procedure and results are generally
accepted as reliable in the scientific community. 786
In evaluating whether novel scientific testimony is admissible, the balancing considerations
are relevance, reliability, and helpfulness of the evidence on the one hand and likelihood of waste of time,
confusion, and prejudice on the other. 787
The question is not whether the opinion of the expert itself is accepted in the relevant
community, but instead whether the scientific technique is accepted. 788
community, but whether it is generally acceptable as reliable. 789
Where a psychiatrist or psychologist attempts to establish a "pattern," "profile," "theory" or
"syndrome," he is essentially attempting to portray a pattern of behavior. To be admissible expert opinion,
783
Kellner v. De Bushey Coach, Ltd., 138 A.D.2d 460, 526 N.Y.S.2d 115 (2d Dep’t 1988).
784
Wonsch v. Snyder, 53 A.D.2d 1031, 386 N.Y.S.2d 588 (4th Dep’t 1976); See 22 N.Y.C.R.R.
§ 202.17(e) (parties relying on hospital records may certify that they are doing so in lieu of serving
physician’s reports).
785
For discussion, see 3.11.1, 3.11.13.1.
786
Frye v. United States, 293 F. 1013 (1923) (e.g., reproductions by photography, X-rays,
electroencephalograms, electrocardiograms, speedometer readings, time by watches and clocks, identity
by fingerprinting, and ballistic evidence).
787
1985).
788
1985).
789
People v. Smith, 63 N.Y.2d 41, 468 N.E.2d 879, 479 N.Y.S.2d 706 (1984).
160
161
there must be a threshold evidentiary foundation establishing that the pattern of behavior is generally
790
recognized in the relevant medical context and community.
8.14. DAUBERT ANALYSIS
The New York courts have relied on the Frye principles, rather than Daubert, in determining
the admissibility of expert testimony. The Daubert analysis will be discussed for reference purposes.
8.14.1. General Principles
Of central significance in Daubert v. Merrell Dow Pharmaceuticals, Inc. 791 is the Courts
recognition both of the Federal Rules "liberal thrust" with regard to the admissibility of expert testimony and
the trial judge's "gatekeeping" role vis à vis expert proof on scientific issues.
Although stressing that in the usual case the evaluation of expert testimony must be left to
the jury, the majority acknowledged the trial judge's responsibility pursuant to Rule 104(a) of the Federal
Rules of Evidence to screen scientific evidence in order to keep unreliable evidence out of the courtroom.
Professor Margaret Berger, in Evidentiary Framework, Reference Manual on Scientific
Evidence, states that, concerning Daubert, four broad concerns permeate judicial opinions:
1. Is the expert qualified?
2. Is the expert’s opinion supported by scientific reasoning or methodology?
3. Is the expert's opinion based on reliable data?
4. Is the expert's opinion so confusing or prejudicial that it should be ex-

cluded pursuant to Rule 403?
The court must determine at the outset "whether the reasoning or methodology underlying
the testimony is scientifically valid," and Daubert discussed a number of non-definitive factors that bear on the
inquiry: (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique
790
People v. Wernick, 89 N.Y.2d 111; 674 N.E.2d 322; 1996 N.Y. LEXIS 3578; 651 N.Y.S.2d 392 (1996).
791
113 S. Ct. 2786 (1993).
161
162
has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) the
"general acceptance" of the theory. 792
The Daubert case is applied in federal courts to scientific theories which have not been the
subject of constant use and practice by engineers, such as the teratogenic effect of drugs, or carcinogenicity of
chemical exposure. To testify that a certain drug causes birth defects, or chemical is cancerous, requires a
scientific study performed in accordance with accepted scientific methodologies.
Where an expert relies on his experience and training and not a particular methodology to
reach his conclusions, application of the Daubert analysis is unwarranted. 793
8.15. CRIMINAL CASES
8.15.1. Notice of Intention to Offer Psychiatric Testimony in Criminal Case
Psychiatric evidence is not admissible by the defense at trial "unless the defendant serves
794
upon the people and files with the court a written notice of his intention to present psychiatric evidence."
The statute covers any evidence regarding a mental disease or defect offered in relation to the
defense of extreme emotional disturbance or any other defense. 795 This includes the psychological
impairment that results from a traumatic experience--such as impaired memory or a trauma syndrome--when
such testimony is offered to support the affirmative defense of extreme emotional disturbance, 796
The statute applies, whether the expert witness actually examined the defendant or not. 797
Such notice "must be served and filed before trial and not more than thirty days after entry of
798
the plea of not guilty to the indictment".
792
Daubert v. Merrell Dow Pharmaceuticals, Inc. ,113 S.Ct. at 2796-97.
793
Freeman v. Case Corp., 4th Cir. (July 1997); Compton v. Suburu of America, Inc., 82 F.3d 1513, 1518
(10th Cir.), cert. denied, 117 S. Ct. 611 (1996); see also United States v. Jones, 107 F.3d 1147, 1158 (6th
Cir. 1997) (holding Daubert inapplicable to testimony based on experience or training); United States v.
14.38 Acres of Land, More or Less Situated in LeFlore County, 80 F.3d 1074, 1078- 79 (5th Cir. 1996)
(same); Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (same).
794
CPL 250.10 (2),
795
People v. Berk, 88 N.Y.2d 257; 667 N.E.2d 308; 1996 N.Y. LEXIS 672; 644 N.Y.S.2d 658 (1996).
796
797
798
CPL 250.10 (2).
162
163
The trial court may allow late notice to be filed prior to the close of the evidence, where it is
in the "interest of justice and for good cause shown". 799
The People, upon receiving notice of defense intent to present psychiatric evidence, may seek
an order directing the defendant to submit to examination by a psychiatrist or psychologist designated by the
People. 800
The court may, in its , preclude the testimony of a psychiatric expert for the defense, if the
requisite notice of intent to offer his testimony at trial is not offered in sufficient time for the prosecution to
prepare to counter the evidence.801
CPL 250.10 requires that the defense furnish timely notice of the CPL 250.10 (1) category or
categories on which it intends to offer the psychiatric expert's testimony. 802
The notice must contain enough information to enable the prosecution and the court to
discern the general nature of the alleged psychiatric malady and its relationship to a particular, proffered
803
defense.
A continuance to permit the prosecution to examine the defendant may be disruptive in

804
many ways, warranting preclusion from testifying rather than a continuance.
The Trial Court is granted broad discretion in making evidentiary rulings in connection with
the preclusion or admission of testimony and such rulings should not be disturbed absent an abuse of
discretion. 805
799
CPL 250.10 (2).
800
CPL 250.10 (3)
801
People v. Almonor, 1999 N.Y. LEXIS 1420 (N.Y. Ct. App. 1999).
802
People v. Almonor, 1999 N.Y. LEXIS 1420 (N.Y. Ct. App. 1999)(must state whether expert's testimony
is offered to support insanity affirmative defense, to negate the element of intent, such as to establish
extreme emotional distress, or in support of some other defense).
803
People v. Almonor, 1999 N.Y. LEXIS 1420 (N.Y. Ct. App. 1999) (stating that psychiatrist will testify as
to his diagnosis of 'acute distress disorder' insufficient notice, warranting preclusion).
804
People v. Almonor, 1999 N.Y. LEXIS 1420 (N.Y. Ct. App. 1999)(first naming expert midway through
trial).
805
People v. Almonor, 1999 N.Y. LEXIS 1420 (N.Y. Ct. App. 1999).
163
164
8.15.2. Interests of Justice
The decision whether to allow a defendant, "[i]n the interest of justice and for good cause
shown," to serve and file late notice of intent to introduce psychiatric evidence is a discretionary
806
determination to be made by the trial court
The trial court's discretion is not absolute. Exclusion of relevant and probative testimony as
a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's
807
constitutional right to present witnesses in his own defense.
In making its determination, the trial court must therefore weigh this right against the
808
resultant prejudice to the People from the belated notice.
The explanation for the delay in giving notice should be considered. 809
806
People v. Almonor, 1999 N.Y. LEXIS 1420 (N.Y. Ct. App. 1999); People v. Berk, 88 N.Y.2d 257; 667
N.E.2d 308; 1996 N.Y. LEXIS 672; 644 N.Y.S.2d 658 (1996).
807
808
809
People v. Berk, 88 N.Y.2d 257; 667 N.E.2d 308; 1996 N.Y. LEXIS 672; 644 N.Y.S.2d 658 (1996) (no
explanation other than indecision offered for waiting until near the end of trial).
164
165
CHAPTER 9 IMPEACHMENT
9.1. IMPEACHMENT
When a witness testifies to X, he is not offering direct evidence that X exists. He is asking
the finder of fact to infer that X exists, based on the fact that the witness is willing to swear that X exists. The
purpose of cross-examination is to show the jury other reasons explaining the witness’s willingness to assert
that X is a fact.
Thus, the key to cross-examination is to explain the witness’s assertion so the jury will
understand why the witness made the statement, even though the statement is not accurate. This process of
explaining away the witness’s testimony is referred to as impeachment. (Some attorneys limit the term
impeachment to discrediting the character of the witness, but it should not be so limited.)
Testimony can be impeached in two general ways: by using external conditions to explain
away the testimony or by using internal conditions of the witness, or by using some combination thereof.
External conditions refer to factors that affect the witness’s perception, memory, and
narration. For example, the position of the witness, the distance between the witness and the event, the
lighting at the time of the event, the duration of the event, and the complexity of the event all affect the
witness’s ability to accurately perceive the event.
Internal conditions include the emotional state of the witness at the time of the event, the
mental acuity and concentration level of the witness at the time of the event, the predisposition of the witness
to perceive the event in a manner that furthers his own interests or the interests of those he favors, the past
experiences of the witness, the ability to recall the event, interactions with the parties or their representatives
subsequent to the event, and considerations of morality and personal belief.
165
166
The jury must use their common sense and evaluate the reliability of the witness’s assertion.
There may be an overriding discrediting factor, such as relationship to or employment by a
party. There is a clear explanation for why the witness claims that the fact exists: His relationship to the party
has biased his perception, memory, or narration.
It may be necessary to establish several facts or “minor premises” which, taken together,
explain the assertion. For instance, if the witness knows one attorney or party, it first would have to be
established that the knowledge has left the witness favorably disposed toward the person. If this minor
premise is established, it is a general truth that people tend to favor those whom they like. The linking of these
two minor premises leads to a major premise that explains away the witness’s testimony.
Although any item of data that tends to prove a defective quality in the external or internal
conditions is relevant to discredit the witness’s testimony, there are many policies which prevent even
relevant data from being used at trial. These policies must be well known, for both offensive and defensive use.
For example, a witness’s prior inconsistent statement is relevant to demonstrate the witness’s faulty memory.
Yet, the policy against collateral issues requires excluding even this relevant data, if the statement concerned a
collateral matter.
9.2. SCOPE OF CROSS-EXAMINATION
Cross-examination in New York is limited to matters covered on direct, inferences drawn
therefrom, and the credibility of the witness. 810
The cross-examiner has a right to cross-examine a witness on testimony concerning relevant
facts. When the purpose of the questioning is to impeach the witness’s credibility though, the method and
810
Hall v. Allemannia Fire Ins. Co., 175 A.D. 289, 292, 161 N.Y.S. 1091, 1093 (4th Dep’t 1916)
See § 10.400 for the effect of going beyond the scope of the direct.
166
167
duration of the questioning is subject to the discretion of the trial court. The decision is not reviewable absent
abuse. 811
9.3. IMPEACHING OWN WITNESS
The common law forbids impeaching a party’s own witness, either by inconsistent
statements or by an attack on character. 812
However, witnesses sometimes forget or harbor surprises. They can contradict a prior
statement given to the party calling them.
Therefore, the New York rule is that a party cannot call a witness and then impeach his
reputation for truth or veracity or the witness’s bad moral character. 813
This is true even if the witness is an adverse party or hostile or adverse witness. 814
9.4. NEW MATTER ON CROSS-EXAMINATION
In New York, if the questioner goes beyond the direct and seeks to obtain facts from the
witness to prove his own case, he may do so only at the risk of making the witness his own witness. 815
The consequences of a witness being “one’s own” are discussed in § 10.300. The cross-
examiner is then prohibited from impeaching the witness on the new matters. Leading questions may be
prohibited. 816
811
Langley v. Wadsworth, 99 N.Y. 61, 63, 1 N.E. 106, 107 (1885); La Beau v. People, 34 N.Y. 223, 230
(1866).
812
Wigmore, Evidence, § 896.
813
Becker v. Koch, 104 N.Y. 394, 401, 10 N.E. 701, 703 (1887); Richardson, Evidence, §§ 508, 509;
Wigmore, Evidence, §§ 899, 900.
814
Tryon v. Willbank, 234 A.D. 335, 255 N.Y.S. 27 (4th Dep’t 1932); Cross v. Cross, 108 N.Y. 628, 15
N.E. 333 (1888).
815
Wigmore, Evidence, § 914; Richardson, Evidence, § 485.
816
See §4.200 et seq.
167
168
9.5. IMPEACHING OPPOSING PARTY CALLED ON DIRECT
The subject of the use of leading questions when the adverse party is called to testify on
direct is discussed supra, § 4.200 et seq. This section discusses whether it is proper to impeach the credibility
of an adverse party who has been called to testify in the opponent’s direct case.
The New York rule is that a party cannot call a witness and then impeach his reputation for
817
truth or veracity or the witness’s bad moral character, even if the witness is an adverse party or hostile or
adverse witness. 818
Wigmore argues that there is no reason that the rule prohibiting impeachment of one’s own
witness should apply when the witness is an adverse party. 819
Thus, if the plaintiff’s attorney calls the defendant to the stand on his direct case, he may not
introduce proof that the defendant had been convicted of a crime to impeach the defendant’s credibility. 820
If the defendant is then called by the defendant on its direct case, the plaintiff is still
precluded from using the prior conviction because the witness has become the plaintiff’s own. 821
Federal Rules of Civil Procedure 43(b) states that a party may call an adverse party or such
adverse party’s corporate officer, director, or managing agent and impeach and contradict him in all respects,
as if he had been called by the adverse party. Note that this rule does not mention impeachment of an
employee of the party.
A coparty may be impeached by the other coparty.
817
Tryon v. Willbank, 234 A.D. 335, 255 N.Y.S. 27 (4th Dep’t 1932); Cross v. Cross, 108 N.Y. 628, 15
N.E. 333 (1888).
818
See generally Becker v. Koch, 104 N.Y. 394, 401, 10 N.E. 701, 703 (1887); Richardson, Evidence,
§§ 508, 509; Wigmore, Evidence. §§ 899, 900.
819
820
See Benjamin v. Green, 144 N.Y.S. 311 (S.Ct. 1913).
821
(See § 10.300.); Wigmore, Evidence, §§ 909, 913; Hanrahan v. New York Edison Co., 238 N.Y. 194,
144 N.E. 499 (1924); Coulter v. American Merchants’ Union Express Co., 56 N.Y. 585 (1874).
168
169
9.6. IMPEACHING ABSENT WITNESS
If the witness was deposed, his deposition can be used at trial in the event the witness is
unavailable to testify. The admissible portions of the deposition are read into evidence.
The witness’s deposition is equivalent to his in-court testimony. His deposition testimony
may then be impeached by extrinsic evidence of prior inconsistent statements, for example. 822
9.7. EXTRINSIC EVIDENCE
A witness may be impeached either while he is on the stand, through his own testimony,
through documents, or through other witnesses. Extrinsic evidence requires the jury to focus on a separate
issue beyond the larger issue central to the trial. Thus, the law permits use of extrinsic evidence to impeach a
witness only when the type of discrediting facts sought are not the type that the witness will testify to. 823
The rule, whose purpose is to avoid undue confusion and unfair surprise on matters of
minimal probative worth, has no application where the issue to which the evidence relates is material in the
sense that it is relevant to the very issues that the jury must decide. 824
New York law permits impeachment with extrinsic evidence to show bias, interest, or
motive, without first laying a foundation by calling attention to the impeaching facts. 825
The hostility of the witness may be shown by cross-examination or by other witnesses’
testimony. 826
822
Wiegand v. Lincoln Traction Co., 244 N.Y. 298 (1932) (former testimony of absent witness could be
impeached by proof of a criminal conviction); Yeargans v. Yeargans, 24 A.D.2d 280, 265 N.Y.S.2d 562
(1st Dep’t 1965).
823
824
People v. Knight, 80 N.Y.2d 845; 600 N.E.2d 219; 1992 N.Y. LEXIS 1617; 587 N.Y.S.2d 588 (1992).
825
Richardson, Evidence, § 505.
826
People v. Brooks, 131 N.Y. 321, 30 N.E. 189 (1892).
169
170
9.8. SUBJECTS OF CR0SS-EXAMINATION
Matters such as experience, observation, recollection, and narration are fundamental
qualities the witness must possess in order to testify. The degree to which the witness possesses these
abilities is always a major area of cross-examination.
Any defect in these qualities may be established by direct admission of the witness or
through circumstantial evidence of some fact from which a defect may be inferred. For example, the witness
may agree that the light was dim, but he may still claim he observed the scene accurately. Extrinsic evidence
can be used to establish the external conditions, such as dim light, by a police report that establishes the time
of the accident and the lighting conditions at that time, for example.
9.8.1. Knowledge
Questions that tend to show that the witness does not have the experience, knowledge, or
skill he claims is fundamental in cross-examination. Such questioning is most common in the cross-
examination of expert witnesses, although it is equally applicable in examining lay witnesses, when the
witness relies upon his experience, knowledge, or skill while testifying.
9.8.2. Opportunity to Observe
Anything that detracts from the opportunity of the witness to have observed the event is a
proper subject of cross-examination.
Extrinsic evidence may be used to establish these circumstances. For instance, if the witness
says he saw the accident at night by the light of the moon, a weather report or almanac can be introduced to
show that the moon had set by that time. President Lincoln is said to have successfully used the same
technique to prove an eyewitness could not have seen the crime. 827
827
170
171
9.8.3. Tests of Knowledge
Tests of the witness’s knowledge or capabilities may be performed, subject to the discretion
of the court. 828
A rudimentary example of a test to examine a witness’s ability is: A witness claims to have
read a license plate on a vehicle 50 feet away, after looking at it for a period of 3 seconds. One test of his visual
ability would be to hold up a license plate 50 feet away for 3 seconds and then ask him to state the license
plate number.
Where the accuracy of a witness’s analysis is a central issue in the case, not a collateral issue,
the witness may be tested to determine how accurately he in fact can perform an analysis. 829
A witness who claims that a person is a particular age may have his ability to assess a
person’s age tested. The witness is asked to state his opinion as to the age of a person exhibited to him in the
courtroom. The witness gives his opinion, then X’s age is revealed. 830
A person who claims to be able to identify a person’s signature can be tested by being asked
to determine genuine from false signature samples. 831
9.8.4. Recollection
The memory of the witness should be a subject for cross-examination, since many witnesses
reconstruct rather than recall events which occurred years before. The most common method is to test the
witness’s recollection of details, inferring that his recollection is so selective as to be the result of
reconstruction for the purpose of trial.
828
829
830
Louisville N.A. & C. Ry. v. Falvey, 104 Ind. 409, 3 N.E. 389 (1885).
831
Cf. Hoag v. Wright, 174 N.Y. 36, 46, 66 N.E. 579, 582 (1903) (handwriting expert; but applicable to any
witness with special knowledge).
171
172
Extrinsic evidence, such as a teacher’s testimony concerning the ability of the witness to
recall, is not permissible.
9.8.5. Distances, Time
A witness may be cross-examined as to an estimate of distance by showing he has poor
judgment in that area. For example, if the witness testifies that he first saw a train 200 feet away, he may be
asked to estimate the distance from the witness stand to a row of seats in the courtroom. The witness may
estimate the distance to be 150 feet.
Since the judge normally knows the measurements of his courtroom, he can take judicial
notice of the actual distance. If the actual distance is, for example, 40 feet, the witness’s testimony is
successfully destroyed on that issue. 832
The same test may be performed for time measurements.
9.8.6. Narration
The demeanor of the witness is the primary method for evaluating his ability to narrate the
information. The jury can observe whether the testimony is given with conviction, nervousness, tentativeness,
equivocation, anger, vindictiveness, etc.
If the testimony is given by reading a deposition transcript, the fact finder has no opportunity
to observe the demeanor of the witness or the conduct of the proceedings. Extrinsic evidence that establishes
circumstances that diminish the value of the testimony may be admissible in an appropriate situation. 833
Thus, it may be helpful to make observations at the deposition, on the record, as to important
nonverbal signals, such as a witness going to the bathroom at a particular point of crucial testimony or
832
See, e.g., Millington v. New York City Transit Authority, 54 A.D.2d 649, 387 N.Y.S.2d 865 (1st Dep’t
1976).
833
172
173
conferring with counsel before answering a question. Such statements as, “Note the witness has been
reviewing the document for five minutes,” may be read to the jury, at the discretion of the trial court. This is
especially true when no objection to the conduct of counsel was made at the deposition. Objections to the
conduct of counsel at the deposition are waived, if they are not raised at that time. 834
9.8.7. Influences on Perception, Recall, Testimony
The circumstances, such as emotion or distraction, that influence a witness’s observation,
recall, and testimony may be a subject of inquiry.
Wigmore and others suggest the use of experts to discuss the many influences on perception
and recall. 835
Experts are not being used at this time in civil cases to impeach eyewitness testimony.
Therefore, the influences must be identified and their impact appraised during the cross-examination and the
summation.
9.9. EXTRINSIC EVIDENCE
Witnesses cannot be introduced to testify about errors made by other witnesses for
impeachment purposes. If that were permitted, a separate issue would be created as to whether the other
error was in fact an error, and a mini-trial would have to be conducted on that issue. To avoid confusing the
issues and unfair surprise, such evidence is prohibited.
Nor may extrinsic evidence be admitted to show that a witness does not have the ability to
observe.
834
CPLR 3115(b).
835
Wigmore, Science of Judicial Proof, §§ 310–317 (3d ed. 1937).
173
174
9.10. ERRORS BY WITNESS
There are four ways that an error on a particular fact can be shown to the jury:
1. The jury may perceive the witness is in error, from their own senses; e.g., the witness says
the scars on her body are very visible; however, upon exhibition to the jury, they are barely visible; he or she
says the car was not dented, but photographs show the car to be dented;
2. An admissible document which establishes the error; e.g., a weather report to show there
had been no snow on a particular day or the weather was clear;
3. Testimony from other witnesses or from documents which directly contradicts the
witness; or
4. Testimony from other witnesses that establishes some circumstantial fact from which it
can be inferred the witness is incorrect.
By establishing that the witness made an error as to one fact, it is suggested that the witness
made errors on other points. It also suggests that there is some reason for the specific error, such as
diminished testimonial incapacity (lack of knowledge, observation, recall), partiality, corruption, or
dishonesty that not only resulted in the specific error but caused the rest of the testimony to be erroneous to
suit the convenience of the witness.
The more errors the witness commits, the more likely it is that even uncontradicted
testimony may be erroneous. At some point, the witness’s entire testimony lacks credibility.
174
175
9.11. COLLATERAL ISSUES
The general rule is that a cross-examiner cannot contradict a witness’s answers concerning
collateral matters by producing extrinsic evidence for the sole purpose of impeaching credibility. 836
However, an exception to this rule exists where the evidence sought to be introduced is
relevant to some issue in the case other than credibility or if it is independently admissible to impeach the
witness. 837
The reason for this exception to the collateral evidence rule is evident from the policy
considerations underlying the general rule. The collateral evidence rule is based on the policy considerations
of preventing undue confusion of issues and unfair surprise by extrinsic testimony. 838
Also, testimonial errors concerning distant and unconnected points are of limited probative
value.
Wigmore states the test of collateralness as: “Could the fact, as to which the prior self-
contradiction is predicated, have been shown in evidence for any purpose independently of the self-
contradiction?” 839
While the rules are fairly definite in language, their application is often not accomplished
with the precision or accuracy of a tested mathematical formula.
The policy objections to the contradiction of a witness’s answers are inapplicable if the
evidence presented would be admissible for any purpose independent of the contradiction. It follows that a
836
People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950); People v. McCormick, 303 N.Y. 403, 103
N.E.2d 529, LEXIS 811 (1952); People v. Duncan, 13 N.Y.2d 37, 241 N.Y.S.2d 825 (1963); People v.
Perry, 277 N.Y. 460, 14 N.E.2d 793 (1938); People v. Malkin, 250 N.Y. 185, 164 N.E. 900 (1928).
837
Wigmore, Evidence (3d ed.), §§ 1003, 1004, 1021; CPLR 4513; Attorney-General v. Hitchcock, 1
Exch. 91, 99; Comment, Use of Bad Character and Prior Convictions to Impeach a Defendant-Witness,
34 Fordham L. Rev. 107, 111–112 (1965); United States v. Herr, 338 F.2d 607, 611 (7th Cir., 1964), cert.
denied 382 U.S. 999.
838
Wigmore, Evidence, §§ 979, 1002.
839
Wigmore, Evidence (3d ed.), § 1020.
175
176
fact is not a collateral matter if it could be shown in evidence for any purpose independent of the
contradiction. 840
Thus, when a witness testifies concerning a fact material to the case, he may be contradicted
either by cross-examination or by introduction of other evidence. 841
It is the general rule that a witness may be cross-examined with respect to specific immoral,
vicious, or criminal acts that have a bearing on the witness’s credibility. 842
While the nature and extent of such cross-examination is discretionary with the trial court,
the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue. 843
In Badr v. Hogan, the plaintiff’s alleged prior misconduct had no direct bearing on any issue
in the case other than credibility. If proven, it would show only that plaintiff had acted deceitfully on a prior,
unrelated occasion. The matter was, therefore, collateral and, under the settled rule, could not be pursued by
the cross-examiner with extrinsic evidence to refute plaintiff’s denial. 844
When a defendant in a criminal trial elects to testify in his own behalf, his conduct as a
witness must be measured by the same standards as other witnesses. 845
840
People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969); Wigmore,
Evidence, §§ 1003, 1004, 1021.
841
Wells v. Kelsey, 37 N.Y. 143 (1867) (value of property); Hynes v. McDermott, 82 N.Y. 42, 52 (1880)
(handwriting); Becker v. Koch, 104 N.Y. 394, 10 N.E. 701 (1887); Carlisle v. Norris, 215 N.Y. 400, 410,
109 N.E. 564 (1915).
842
Badr v. Hogan, 75 N.Y.2d 629 (1990); see People v. Schwartzman, 24 N.Y.2d 241, 244, 247 N.E.2d
642, 299 N.Y.S.2d 817 (1969).
843
Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249, 554 N.E.2d 890, 1990 N.Y. LEXIS 965 (1990)
(confession of judgment entered into with Department of Social Services was collateral and could not be
introduced to contradict plaintiff’s denial that she had received money to which she wasn’t entitled);
Langley v. Wadsworth. 99 N.Y. 61, 63–64 (1885).
844
Badr v. Hogan,75 N.Y.2d 629, 555 N.Y.S.2d 249, 554 N.E.2d 890, 1990 N.Y. LEXIS 965 (1990);Citing
People v. Pavao, 59 N.Y.2d 282, 288, 451 N.E.2d 216 (1983).
845
People v. Reger, 13 A.D.2d 63, 213 N.Y.S.2d 298 (1st Dep’t 1961) (tape recordings); People v.
Connolly, 253 N.Y. 330, 341, 171 N.E. 393 (1930).
176
177
The rule is well-settled that a defendant who takes the witness stand may, like any other
witness, be cross-examined concerning any previous vicious, illegal, or immoral act he committed which
846
affects his character and tends to show that he is not worthy of credit.
Though the examination is regarding collateral matters, the evidence sought must be
pertinent to the issue; it must discredit opposing evidence or bear an incidental relation to a material fact to be
proved. In other words, questions should not be asked merely for the purpose of obtaining contradictory
answers. 847
This differs from the rules regarding proof of other crimes permitted by statute or regarding
848
the exceptions referred to in People v. Molineux.
Where the question seeks merely to impeach credibility, and neither tends to discredit the
opponent’s evidence nor bears on a material fact to be proved, the questioning is collateral. 849
The manner and extent of cross-examination on collateral issues is largely within the
discretion of the trial judge. 850
When evidence on collateral matters is elicited on cross-examination, it is the duty and
obligation of the court to state clearly the limitation of the scope and application. 851
Cross-examination as to vicious, criminal, or immoral occurrences, must relate to specific
acts or matters honestly intended to test the witness’s credibility. 852
When the credibility of the party is attacked on a collateral matter, the questioner is hound
by the answers. 853
846
People v. Reger, 13 A.D.2d 63, 213 N.Y.S.2d 298 (1st Dep’t 1961).
847
People v. Tice, 131 N.Y. 651 (1892); People v. Webster, 139 N.Y. 73, 34 N.E. 730 (1893); People v.
Reger, 13 A.D.2d 63, 213 N.Y.S.2d 298 (1st Dep’t 1961).
848
168 N.Y. 264. See § 2.121, infra.
849
People v. Malkin, 250 N.Y. 185, 197, 164 N.E. 900 (1928).
850
People v. Malkin, 250 N.Y. 185, 197, 164 N.E. 900 (1928).
851
People v. Webster, 139 N.Y. 73 (1893).
177
178
This does not mean when the defendant witness is questioned as to a vicious, criminal, or
immoral act, a mere negative answer precludes further probing as to that specific act, if the questions have
some basis in fact and the questioner acts in good faith “in the hope of inducing the witness to abandon his
854
negative answers.”
A negative response does not preclude further interrogation of the witness, for, if it were
permitted, the witness would have it within his power to render futile most cross-examination. 855
The cross-examiner, on the chance that the witness might retract the initial denial, may press
the questioning about the denied fact by asking questions of the witness based on the contradictory
information. 856
People v. Sorge removed a barrier to further questioning of the defendant regarding specific
acts. It did not hold that evidence impeaching a witness’s credibility may be proved by extrinsic evidence.
9.12. MENTAL CONDITION
Any mental defect or impairment that significantly impairs the witness’s ability to observe,
recall, or narrate the facts of an event may be proven to impeach the credibility of the witness. Extrinsic
evidence that the witness was mentally ill, intoxicated, drugged, or otherwise impaired at the time of the
occurrence or at the time of trial may be introduced. 857
852
People v. De Garmo, 179 N.Y. 130 (1905); People v. Conroy, 153 N.Y. 174 (1897).
853
People v. De Garmo, 179 N.Y. 130, 135 (1905).
854
People v. Sorge, 301 N.Y. 198, 200, 93 N.E.2d 637 (1950), N.Y. LEXIS 797 (1950)
855
Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249, 554 N.E.2d 890, 1990 N.Y. LEXIS 965 (1990).
856
Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249, 554 N.E.2d 890, 1990 N.Y. LEXIS 965 (1990).
857
People v. Webster, 139 N.Y. 73, 87, 34 N.E. 730, 734 (1893); Richardson, Evidence, § 507.
178
179
9.13. INSANITY OR IDIOCY
Insane or mentally incompetent witnesses may not be qualified to testify at trial in the first
place. An insane person may testify, if he understands the oath and can accurately observe, recall, and narrate
facts in issue. 858
Cross-examination may point out the mental deficiencies to weaken the testimony.
The condition must have affected the witness at a relevant time: (1) at the time of the event,
so as to affect his power of observation; (2) at the time of the testimony, so as to affect his power of recall or
narration; or (3) in between those times, to affect his powers of recollection.
9.14. INTOXICATION
The degree to which the use of alcohol can be used to impeach a witness is a recurring issue
in personal injury actions. The rule is that a general habit of intemperance is not relevant to the witness’s
testimonial capacity at the time of the occurrence or at the time of testimony. The fact, for instance, that the
plaintiff in a personal injury case was a member of Alcoholics Anonymous or was a reformed alcoholic is
inadmissible. 859
Evidence of intoxication or intemperance on another occasion is not admissible to show that
such was the condition at the time in issue. 860
There must be evidence that the intoxication was the cause of the accident. In Barry v.
Manglass, the defendant, General Motors, claimed that the driver’s intoxication and speeding were the cause
of an automobile accident, rather than the defective motor mounts of the vehicle. They introduced an
emergency room record which indicated that the driver’s father had stated his son had “had a few beers.” The
statement was made in response to medical personnel’s inquiries into why the injured driver was incoherent.
858
Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958 (1911).
859
Davis v. Blum, 70 A.D.2d 583, 416 N.Y.S.2d 57 (2d Dep’t 1979).
179
180
The court held that since there was no evidence the alleged beer drinking contributed to the accident, the
reference to beer in the record should have been excluded, because it would confuse the jury into thinking
that the drinking was an issue.
Similarly, in David v. Granger, 861 a blood test showing a blood alcohol level of 0.11 percent
was excluded from evidence because there was no evidence the intoxication was the cause of the motor
vehicle accident. There was no testimony at trial as to the manner of operation of the decedent’s car; the only
testimony was that the decedent’s car was in the middle of the road when it came upon the appellant’s vehicle.
The court held that the admission of the blood test would not by itself establish the decedent’s liability, but
would, at most, permit an inference that he was driving while his ability was impaired. It would remain to be
proven that the impairment was a proximate cause of the accident. Proof of such a causal connection cannot
be supplied by an inference which itself rests upon another inference. Such inference building is speculation
and surmise, which the jury is not permitted to do.
In Amaro v. City of New York, 862 the New York Court of Appeals held that a plaintiff’s
admission that he had a glass of wine with lunch was not an issue in the case. This was true even though the
plaintiff, a fireman, had fallen in the hole for the fire pole upon hearing a fire alarm, a Fire Department
physician detected an odor of alcohol on the plaintiff’s breath, and a blood test, analyzed three days after it
was taken, found 0.09 percent alcohol. The speculative force of the physician’s testimony and the admission
balanced against its potentially prejudicial impact made it proper to exclude the evidence. 863
860
Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (2d Dep’t 1976).
861
35 A.D.2d 636, 312 N.Y.S.2d 963 (3d Dep’t 1970).
862
40 N.Y.2d 30, 351 N.E.2d 665, 386 N.Y.S.2d 19 (1976).
863
See also McQuage v. City of New York, 285 A.D. 249, 136 N.Y.S.2d 111 (1st Dep’t 1954) (cross-
examination of plaintiff in personal injury action as to prior conviction for intoxication held to be
improper).
180
181
9.15. USE OF DRUGS
Any defect that impairs a witness’s capacity to observe, recall, or narrate a fact accurately
may be shown on cross-examination or by extrinsic evidence. Thus, it may be shown that at the time of the
occurrence or at the time of trial, the witness was on drugs. 864
There is no uniform approach toward admission of evidence that a witness was either
addicted to a drug or under the influence of the drug at some time other than the time of the trial or the event.
There are two issues regarding relevancy. The first is that drug users are less worthy of belief
simply because of that fact. 865
However, while drug users may be dishonest concerning their use of drugs, there is no reason
to believe that they are, as a general rule, more dishonest about matters other than their drug use. Most
modern courts hold this view. 866
In People v. Williams, 867 the defense in a criminal case was permitted to show that a
prosecution witness had been a narcotic addict for five years, even though the witness had not taken an
injection the day of the occurrence nor for four months before the trial. The history of the addiction was
admissible to affect the witness’s credibility.
The second issue is that the use of drugs has affected the observation and memory powers of
the witness. Most cases limit the admission of such evidence, absent evidence that the witness was under the
influence of drugs when he testified or when he witnessed the event to which he testified. 868
It is permitted to ask the witness if he was under the influence of the drug at the time of the
event. 869
864
Richardson, Evidence, § 507.
865
See People v. Williams, 6 N.Y.2d 18, 159 N.E.2d 549, 187 N.Y.S.2d 750 (1959), cert. denied, 361 U.S.
920, 80 S.Ct. 266, 4 L.Ed.2d 188 (1959) (expert testimony that drug addicts are less worthy of belief held
inadmissible).
866
See Kelly v. Maryland Casualty Co., 45 F.2d 782 (W.D. Va. 1929).
867
6 N.Y.2d 18 (1959).
181
182
In People v. Rocha, 870 the court stated that before the witness could be impeached by
showing that he had smoked a marijuana cigarette just before the occurrence, expert evidence on the effect of
marijuana would be required because its effect was not well enough known.
Courts dealing with narcotic addiction, primarily heroin, have varied in their rulings on the
admissibility of addiction to impeach credibility. Some courts have stated that the fact the witness was a
heroin addict was a matter of credibility for the jury to evaluate. 871
Other courts have held that the evidence would have to show that the heroin use was recent
enough to affect the witness. 872
Still other courts have excluded the evidence of heroin addiction to impeach credibility. 873
9.16. PARTIALITY
Partiality is an emotional quality which can explain a witness’s inaccurate assertion of a fact.
Partiality means that for some reason, the witness favors or disfavors one side over another. The testimony
will therefore either intentionally or subconsciously tend to be slanted to assist that side.
The emotions that result in partiality are generally denominated in the case law as bias,
prejudice, interest, and corruption. Bias and interest are closely related. Bias refers to a personal emotion in
favor of a party. Prejudice refers to a personal emotion against a party. Interest refers to a personal emotion for
868
Valerio v. State, 542 P.2d 875 (Wyo. 1975) (cocaine use).
869
State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977) (use of marijuana at time he heard the defendant
confess the crime).
870
7 Cal.App.3d 909, 86 Cal.Rptr. 837 (1970).
871
People v. Williams, 6 N.Y.2d 18, 159 N.E.2d 549, 187 N.Y.S.2d 750 (1959), cert. denied, 361 U.S.
920, 80 S.Ct. 266, 4 L.Ed.2d 188 (1959); United States v. Harris, 542 F.2d 1283 (7th Cir. Ind., 1976), cert.
denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977).
872
Edwards v. State, 49 Wis.2d 105, 181 N.W.2d 383 (1970).
873
People v. Ortega, 2 Cal.App.3d 884, 83 Cal.Rptr. 260 (1969); State v. Renneberg, 83 Wash.2d 735,
522 P.2d 835 (1974); See Note, 13 Vand. L. Rev. 565 (1960); 60 Colum. L. Rev. 562 (1960); Annot., Use
of Drugs as Affecting Competency or Credibility of Witness, 52 A.L.R.2d 848 (1957).
182
183
or against the cause itself. Corruption refers to a conscious choice to give false evidence, usually resulting from
some improper influence on the witness.
Bias, interest, prejudice, or corruption are factors that, if shown, affect a witness’s credibility.
All facts that bear on the probable partiality of the witness are relevant to the impeachment of the witness. 874
The scope of the inquiry into the partiality of a witness is broad. The range of evidence that
can be used to discredit a witness is very liberal. 875
The nature and extent of cross-examination on the question of partiality is a matter left to
the sound discretion of the trial court. 876
Emotional partiality may be proven by eliciting facts from the witness on cross-examination
or by extrinsic evidence. Cross-examination is, therefore, not the sole method of proving partiality.
9.17. INTEREST
Traditionally, a witness who was interested in the outcome of a case was disqualified from
testifying. 877
While interested witnesses are now allowed to testify, the facts indicating the interest may
be used to impeach the witness.
Thus, the fact that the witness will benefit in some manner from a decision in the instant
case can be shown. For example, if the witness also has a case against the defendant growing out of the same
incident, a decision against the defendant would have an effect on the witness’s case. If an employer is self-
insured, the interest of the employees in the outcome of the case may be proven. 878
874
E.g., Schultz v. Third Avenue R.R. Co., 89 N.Y. 242 (1882) (hostility).
875
876
Martin v. Alabama 84 Truck Rental, Inc., 47 N.Y.2d 721, 390 N.E.2d 774, 417 N.Y.S.2d 56 (1979).
877
878
Christensen v. Pittston Stevedoring Corp., 283 A.D. 1088, 131 N.Y.S.2d 546 (2d Dep’t 1954).
183
184
Every circumstance may be established that tends to show that a witness is interested in the
outcome of the case. Extrinsic evidence can be used to establish the fact from which interest can be inferred.
9.18. PERMISSIBLE PROOF
There are two general methods of proving emotional partisanship: the circumstances and the
conduct of the witness. The circumstances under which the witness testifies may make it likely that he is
partial to one side or the other. The witness may act in some way, either in court or out of court, which
indicates that he is partial to one side or the other.
There are many ways in which a witness may be questioned to show he is biased in favor of
or hostile toward a party. 879
The most direct method of establishing partiality is to put the question bluntly to the
witness: “You would like to see the plaintiff, your brother, win this lawsuit, wouldn’t you?” or “You don’t want
to admit you were speeding, because your employer would then be liable, and you’d be fired, right?” The
witness will usually deny his partiality, so be prepared to move on, leaving the truth for the jury.
In most cases, partiality is inferred from some circumstance, such as employment by,
friendship with, relationship to, hostility toward, or receipt of money from a party. 880
The fact that a witness had a quarrel with the party may be shown. 881
Interest may be demonstrated by showing that a witness is receiving payment from a party
for his time in court. 882
An investigator on the stand may be shown to be working on behalf of one of the parties. 883
879
Thompson v. Korn, 48 A.D.2d 1007, 368 N.Y.S.2d 923 (4th Dep’t 1975).
880
Wigmore, Evidence, §§ 949, 950; Richardson, Evidence, § 503.
881
Brink v. Stratton, 176 N.Y. 150, 68 N.E. 148 (1903).
882
Zimmer v. Third Avenue R.R. Co., 36 A.D. 273, 55 N.Y.S. 314 (2d Dep’t 1899).
883
Young v. Sonking, 275 A.D. 871, 88 N.Y.S.2d 392 (3d Dep’t 1949); Hopper v. Comfort Coal-Lumber
Company, Inc., 276 A.D. 1014, 95 N.Y.S.2d 318 (2d Dep’t 1950).
184
185
9.18.1. Extrinsic Evidence
Extrinsic evidence may be used to prove partiality, unless the witness admits his bias. 884
Thus, the witness is first asked about any particular fact that tends to show bias, interest, or
corruption. Unless he admits the fact, any witness may be called to establish the fact. 885
Bias, interest, and corruption are not considered to be collateral matters. 886
If the witness admits the fact, but in a manner that diminishes its import, the fact may be
proven by extrinsic evidence.
9.18.2. Circumstances Showing Partiality
The most common circumstances from which partiality can be inferred are:
1. Family relationship to one of the parties or other partial persons;
2. Sexual relationship (paramour, mistress) with one of the parties or partial persons;
3. Friendship (neighbor, schoolmate, coworker, group membership);
4. Employment (employee, former employee, agent, consultant, independent contractor, fired
employee, etc.) with a party or other partial person.
A party receiving compensation for testifying is an interested witness. 887
An investigator on the stand may be shown to be working on behalf of one of the parties. 888
Interest is not confined to financial interest alone. A nonparty to the action may of course
still be an interested witness. A person who has a motive to shield himself from blame, such as a former
employee who was a driver in an accident, would be an interested witness. 889
884
Potter v. Browne, 197 N.Y. 288, 90 N.E. 812 (1910); Schultz v. Third Avenue R.R. Co., 89 N.Y. 242
(1882).
885
886
Potter v. Browne, 197 N.Y. 288, 90 N.E. 812 (1910).
887
888
Young v. Sonking, 275 A.D. 871, 88 N.Y.S.2d 392 (3d Dep’t 1949); Hopper v. Comfort Coal-Lumber
Company, Inc., 276 A.D. 1014, 95 N.Y.S.2d 318 (2d Dep’t 1950).
185
186
9.18.3. Conduct Showing Partiality
Any action or language expressing a sympathy toward one party, or hostility toward another,
is admissible to infer bias or prejudice. For example, the witness by his conduct may indicate a willingness to
cooperate with one party but not another. Thus, when a witness refuses to speak with the attorney for one
party, but not another, or refuses to give a statement to one party, but does give one to another, the jury may
infer that he is partial. 890
The witness may even have coached other witnesses as to what to say or gathered evidence
for a party. Such conduct may be shown to establish partiality. 891
Evidence that the witness has been threatened or assaulted to testify for a party may be
shown.
In New York, a statement indicating partiality may be used without first laying a foundation
by first allowing the witness to deny or explain away the statement. 892
9.18.4. Prior or Pending Claim
The settlement of litigation prior to testifying may indicate partisanship either against the
party who was sued by the witness or for the party who paid the witness settlement funds.
An inference of bias or interest may be drawn when it is shown that a witness is now
testifying for someone whom the witness previously sued. Thus, the fact that the witness sued the party
calling him, and the party calling him settled the claim, may be shown. 893
889
Coleman v. New York City Transit Authority, 37 N.Y.2d 137, 332 N.E.2d 850, 371 N.Y.S.2d 663
(1975).
890
People v. Hannon, 19 Cal.3d 588, 138 Cal.Rptr. 885, 564 P.2d 1203 (1977); Daggett v. Tallman, 8
Conn. 168 (1830).
891
People v. Michalow, 229 N.Y. 325, 128 N.E. 228 (1920).
892
People v. Michalow, 229 N.Y. 325, 128 N.E. 228 (1920); People v. Brooks, 131 N.Y. 321, 30 N.E. 189
(1892); See Wigmore, Evidence, § 953.
893
Keet v. Murrin, 260 N.Y. 586, 184 N.E. 104 (1932); Hayes v. Coleman, 338 Mich. 371, 61 N.W.2d 634
(1953); Dornberg v. St. Paul City Railway Co., 253 Minn. 52, 91 N.W.2d 178 (1958).
186
187
The general rule is that it cannot be shown that the witness settled a claim against a party
who did not call him. 894
If a plaintiff calls a witness, the fact that the witness had settled a claim against the
defendant cannot be developed by the plaintiff or the court.
Usually, a passenger in vehicle 1 sues both driver 1 and driver 2. The passenger settles against
both driver 1 (the plaintiff) and driver 2 (the defendant) before trial. At the trial for the two drivers, the
passenger takes the stand for driver 1. If the plaintiff calls the passenger, the defendant may show that the
witness did sue the plaintiff (driver 1), and settled her claim. However, the plaintiff (driver 1) can then show
that the passenger-witness also settled her claim against the defendant (driver 2). 895
If the defendant, driver 2, does not show that the passenger-witness sued plaintiff driver 1,
then plaintiff, driver 1, cannot show that the passenger sued driver 2.
Similarly, if the passenger signed a Bill of Particulars or Answers to Interrogatories in which
he claimed that driver 1 was negligent in certain specifics, the defendant, driver 2, may question the witness as
to such statements. 896
It also may be shown that the witness herself sued only the vehicle that rear ended the cab
and not the taxi for its short stop. 897
Such inconsistent conduct affects a witness’s credibility.
Naturally, on redirect, the party for whom the witness was sworn may produce evidence in
denial or explanation of impeaching statements. 898
Thus, the plaintiff may ask the witness to explain the statements used during cross-
examination. 899
894
Geddes v. Red Star Express Lines, Inc., 30 A.D.2d 761, 291 N.Y.S.2d 885 (4th Dep’t 1968).
895
Ryan v. Dwyer, 33 A.D.2d 878, 307 N.Y.S.2d 565 (4th Dep’t 1969).
896
897
Blakney v. Gleam Cab Corporation, 43 A.D.2d 520, 349 N.Y.S.2d 77 (1st Dep’t 1973).
187
188
9.19. MORALITY
With limited exceptions for subordination of perjury, payment of money to witnesses, and
tampering with witnesses, evidence to prove the moral character of a party is not allowed in civil cases. The
fact that the plaintiff or defendant is a thief may be relevant, but the law has decided that to prevent
protracting the trial of civil cases and to prevent confusing the issues such evidence is prohibited. 900
9.20. CORRUPTION
A witness who fabricates testimony demonstrates bias and interest, not to mention bad
character. There are a number of acts which show that the witness is willing to give false testimony. He may
say he will testify falsely or offer to do so for some reward. He may attempt to bribe a witness or request a
bribe for his testimony.
For example, a witness may be asked if he said that he would swear to anything to help his
brother. 901
He may be asked if he threatened to lie if the parties did not settle their case. 902
A witness may be asked if he said that he would not believe a man who would say that he
would not swear a lie—that he would, if the occasion arose. 903
The fact that the witness expressed a willingness to violate the oath is admissible. 904
Similarly, it can be shown that the witness offered to give false testimony or offered to leave
the state to avoid testifying for an amount of money. 905
898
Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 98 N.E. 465 (1912).
899
900
People v. Hinksman, 192 N.Y. 421, 85 N.E. 676 (1908); Wigmore, Evidence, § 920.
901
State v. Caron, 118 La. 349, 42 So. 960 (1907).
902
Caffery v. Philadelphia & Reading Railway Co., 261 Pa. 251, 256, 104 A. 569, 570 (1918).
903
Anonymous, 19 S.C.L. (1 Hill) 251, 252 (1833).
904
Sweet v. Gilmore, 52 S.C. 530, 30 S.E. 395 (1898).
905
Hathaway v. Goslant, 77 Vt. 199, 59 A. 835 (1905).
188
189
9.20.1. Receipt of Money for Testimony
A lawyer may advance, guarantee, or acquiesce in the payment of the expenses reasonably
incurred by a witness in attending or testifying in court. He may also provide reasonable compensation to a
witness for his loss of time in attending or testifying in court. 906
A lawyer cannot pay or offer to pay, or acquiesce in the payment of, compensation to a
witness contingent upon the content of his testimony or the outcome of the case. Id.
The fact that a witness received money in exchange for his agreeing to testify carries a
potential inference that the witness would not have given the testimony absent the payment. From that
inference can be drawn a second inference, that the witness would be willing to testify falsely in exchange for
the payment.
In addition, the fact that the witness is receiving payment carries the potential inference that
the witness is receiving an economic benefit from the litigation, and, therefore is a financially interested
witness. From that, it can be inferred that the witness would be willing to testify falsely to advance his
financial interests. The more logical inference is that the witness would tend to be biased in favor of a party
who is compensating him for his time and expenses.
The fact that the witness is receiving payment for attending and testifying, however
reasonable the amount, may be brought out on cross-examination. 907
9.20.2. Payment of Money to Witness
Witnesses frequently receive compensation for the time and expense of coming to court.
Ethics rules permit a lawyer to advance, guarantee, or acquiesce in the payment of (1) expenses reasonably
906
ABA Model Code of Professional Responsibility, DR 7-109.
907
189
190
incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time
in attending or testifying; and (3) a reasonable fee for the professional services of an expert witness. 908
The payment cannot be contingent upon the content of the witness’s testimony or the
outcome of the case. 909
In Szabo v. Super Operating Corp., 910 the truck defendant called an eyewitness, who testified
that he had been approached by both the plaintiff’s representative and the taxi defendant’s representative, and
that they had asked him to give a statement. He demanded $1,000 to give the statements to the opponents, but
they had each paid him $200 for them. He further testified he was told the taxi did not have enough insurance,
and, therefore, they needed to show the truck was at fault, in order to compensate the severely injured
plaintiff. The witness testified at trial that the truck defendant was not paying him anything to testify.
Of course, proof of an attempt to bribe a witness may be admissible as conduct indicative of a
weak case. However, in this case, the court held that the payment of the $200 was not indicative of a bribe.
Therefore, the requests for payments and the receipt of payments could not be received on direct examination.
Nor was the fact that the truck defendant was not paying the witness anything properly receivable.
In Abrams v. Gerold, 911 the issue was whether the plaintiff had the green light. On cross-
examination of the plaintiff’s witness, she admitted that she had spoken with an assistant for plaintiff’s
counsel, who told her which vehicle ran the red light. She also admitted that the assistant indicated he would
see to it that she would be compensated for expenses and lost earnings of about $400.
On the basis of this cross-examination, the statement of the witness, given on the day of the
accident, was admissible in evidence to overcome the charge of recent fabrication.
908
ABA Model Code of Professional Responsibility, DR 7-109(C).
909
ABA Model Code of Professional Responsibility, DR 7-109(C).
910
51 A.D.2d 466, 382 N.Y.S.2d 63 (1st Dep’t 1976).
911
37 A.D.2d 391, 326 N.Y.S.2d 1 (1st Dep’t 1971).
190
191
9.20.3. Tampering With Witness or Evidence
A party may, through cross-examination or direct evidence, show that a party had persuaded
an eyewitness to stay away from a trial. 912
In Millington, the defendant offered evidence that in the first trial of the case, the plaintiff’s
representatives had persuaded an eyewitness to stay away from the trial, and that on the retrial, the plaintiff’s
representative had paid the witness money and bought him an airline ticket with the request that he not
appear.
While such evidence is collateral, it is competent for the jury to consider in weighing a
party’s case.
Testimony that a defendant has threatened a witness is admissible on the ground that it "has
some tendency to prove a consciousness of guilt". 913
9.21. ACTS OF MISCONDUCT
9.21.1. Eliciting Fact From Witness
A witness may be questioned about any immoral, vicious, or criminal act which has a
tendency to show moral turpitude. 914
For complete discussion of use of prior bad acts, see § 2.100 et seq.
There must be a good-faith basis in fact for the questioning. 915
912
Millington v. New York City Transit Authority, 54 A.D.2d 649, 387 N.Y.S.2d 865 (1st Dep’t 1976). For
witness tampering in criminal cases, see infra 16.3.3.
913
People v. King, 175 A.D.2d 266; 572 N.Y.S.2d 723; 1991 N.Y. App. Div. LEXIS 10393 (2nd Dep't
1991).
914
People v. Montlake, 184 A.D. 578, 583, 37 N.Y. Crim. 132, 172 N.Y.S. 102, 106 (2d Dep’t 1918);
915
People v. Kass, 25 N.Y.2d 123, 250 N.E.2d 219, 302 N.Y.S.2d 807 (1969).
191
192
Federal Rules of Evidence 608(b) limits the inquiry to acts probative of a character for
untruthfulness.
In personal-injury cases, the fact that a person acted in some manner in the past is usually
irrelevant to prove that he acted the same way at the time in issue, absent proof of a “habit.” See § 2.200 et seq.
Thus, acts of misconduct such as prior intoxication, operating a car over the speed limit, or disobeying a safety
rule, are not admissible, since they are not relevant to prove the conduct of the person at the time at issue, and
they do not reflect moral turpitude.
9.21.2. Excluding Extrinsic Evidence
916
For policy reasons, specific acts of misconduct cannot be proven by extrinsic evidence. If
the witness denies having committed the act, the questioner cannot introduce evidence tending to contradict
the witness. 917
The rule prohibiting extrinsic evidence to contradict a denial is designed to prevent the jury
from being distracted from the central issue in the case, and also in fairness to the witness. 918
The denial does not have to preclude all further inquiry, though; the questioner may
continue, in an effort to cause the witness to change his answer, subject to the discretion of the court. 919
The rule cannot be circumvented by attempting to introduce the extrinsic evidence under
some other pretext of relevancy. For example, an employer whose bias is impeached cannot state the reasons
that he fired the plaintiff, on the pretext of explaining away his bias. 920
916
For further discussion, see § 1.17.1.
917
People v. McCormick, 303 N.Y. 403, 103 N.E.2d 529 (1952); Fed. R. Evid., § 608(b); Wigmore,
Evidence, § 981.
918
919
People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950).
920
Potter v. Browne, 197 N.Y. 288, 90 N.E. 812 (1910).
192
193
There is an exception for proof of a criminal conviction. See § 2.120 et seq. There is no danger
of confusing the issues or unfairly surprising the witness with proof of a conviction, because the conviction is
conclusive on the issue. No witnesses can testify to refute it or to prove it.
9.22. CONVICTION OF CRIME
New York Civil Practice Law and Rules 4513. Competency of person
convicted of crime.
A person who has been convicted of a crime is a competent witness; but the
conviction may be proved, for the purpose of affecting the weight of his
testimony, either by cross-examination, upon which he shall be required to
answer any relevant question, or by the record. The party cross-examining is
not concluded by such person’s answer.
A witness may be cross-examined concerning his conviction for a crime. 921
The witness may either admit the conviction, or the record of the conviction may be
admitted. The written conviction may be introduced, even though the witness admits the conviction in
response to oral questioning. 922
The crime underlying the conviction may be established, and the witness may be examined
with respect to the acts underlying the conviction. 923
Arrests or indictments, may not be a subject of inquiry, for reasons both of policy and of
relevancy. 924
Absent a conviction, the fact that a witness was arrested or charged with a crime is not
relevant to establish that the person committed the misconduct.
921
See also Fed. R. Evid., § 609(a) (felony; probative value outweighs prejudicial effect or involved
dishonesty or false statement).
922
Moore v. Levanthal, 303 N.Y. 534, 104 N.E.2d 892 (1952).
923
Del Cerro v. City of New York, 46 A.D.2d 898, 361 N.Y.S.2d 707 (2d Dep’t 1974); People v. Sorge,
301 N.Y. 198, 93 N.E.2d 637 (1950).
924
People v. Morrison, 194 N.Y. 175, 86 N.E. 1120 (1909); Wigmore, Evidence, § 980.
193
194
The witness may explain the facts and circumstances of the conviction and even dispute the
charge despite the conviction. 925
There is no requirement that a foundation be laid for use of the record of conviction. A
certified copy of the judgment of conviction may be introduced.
A defendant in a criminal case may be properly cross-examined for impeachment purposes

926
about a previous conviction regardless of the fact that it arose from an Alford plea.
925
Sims v. Sims, 75 N.Y. 466 (1878); But see People v. Michaels, 168 A.D. 258, 33 N.Y. Crim. 231, 153
N.Y.S. 796 (2d Dep’t 1915).
926
N.Y.S.2d 978 (1998).
194
195
CHAPTER 10 PRIOR INCONSISTENT STATEMENTS
CHAPTER 10 TABLE OF CONTENTS
10.1. PRIOR INCONSISTENT STATEMENTS, GENERALLY
New York Civil Practice Law and Rules 4514. Impeachment of witness by
prior inconsistent statement.
In addition to impeachment in the manner permitted by common law, any

party may introduce proof that any witness has made a prior statement
inconsistent with his testimony if the statement was made in a writing
subscribed by him or was made under oath.
It may be shown that a witness made prior statements that are inconsistent with his
testimony. 927
Proof that a witness made an inconsistent statement shows that, at the very least, the
witness has made an error in one of the statements. The jury then may infer some reason for the error. They
may conclude that the error was due to some quality which pervades all his testimony—either inadequate
observation, a propensity to speculate, poor memory, partisanship, corruption, false suggestion, intimidation,
or appeal to sympathy.
The inconsistent statement may be in any form, written, signed, unsigned but testified to by
a witness, or oral and testified to by a witness; it may be contained in a pleading, deposition, discovery
response, affidavit, former testimony, foreign commission, plea of guilty, videotape, etc. 928
The form of the inconsistent statement is irrelevant in determining admissibility. It may be a
joint statement, signed by a number of witnesses. 929
927
928
929
195
196
Proof of prior inconsistent conduct is also admissible. Thus, if the witness states that he is
unable to lift a hammer because of the condition of his arm, testimony or films proving that the witness was
lifting a hammer can be introduced. 930
10.1.1. Inconsistency
Before asking the witness about the prior inconsistent statement, the trial court should have
an opportunity to rule on whether there is an inconsistency between the two statements. Not even the
foundation questions will be permitted if the objection to the inconsistency of the statements is sustained.
The fact that the words used in the two statements are the same is irrelevant. The impression
given from the words determines whether the statements are inconsistent. As long as the two statements tend
to prove differing facts, they are inconsistent. 931
The prior statement does not have to directly, completely, or entirely contradict the
testimony; all that is required is that the implication from one statement is different than the implication from
the other. It is only necessary that the prior statement tends to explain, counteract, or disprove the courtroom
statement. 932
If the statement, taken as a whole, considering both what the statement says and what it
omits, creates the impression that the fact was different from the testimony, the statement is sufficiently
inconsistent. 933
A statement may be inconsistent because of evasive answers, inability to recall, silence, or
changes in position. 934
930
Westinghouse Elec. Corp. v. Dolly Madison Leasing & Furniture Corp., 42 Ohio St. 2d 122, 326 N.E.2d
651, 71 Ohio Op. 2d 85 (1975).
931
People v. Stavris, 75 A.D.2d 507, 426 N.Y.S.2d 741 (1st Dep’t 1980).
932
Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 269, 98 N.E. 465 (1912).
933
934
United States v. Dennis, 625 F.2d 782, 6 Fed. R. Evid. Serv. 454 (8th Cir. Mo., 1980).
196
197
Many times, the statement sought to be introduced is inconsistent not because of its content
but because of an omission. The general proposition is that if it would have been natural to state the fact and
that fact was omitted, it is equivalent to an assertion that the fact does not exist. If the witness then testifies
that the fact does exist, the prior statement is inconsistent.
If the fact finder might reasonably find that a witness testifying sincerely would be unlikely
to have made a prior statement containing such an omission, the prior statement is inconsistent. Thus, a
witness who totally and definitely recalls an event may be impeached by showing that at another occasion, he
only partially or vaguely recalled the event. 935
If the witness testifies that he does not recall a fact, a prior statement which states the fact is
not inconsistent. The prior statement cannot be used to impeach a statement by a witness who does not recall
at trial. 936
Thus, where an automobile passenger testifies that she does not know whether the lights
were on, but made a prior statement in which she said they were on, the courtroom testimony is not
inconsistent with the prior statement. 937
Similarly, where a witness states he remembers making a statement but does not remember
what he said, the prior statement is not admissible. 938
Wigmore argues that admission of the prior statement in such a situation should be a matter
for the discretion of the trial court.
A prior statement that is a general comment or opinion on the merits of the case, such as “It
was Joe’s fault,” is admissible if the general statement contains an implied statement of fact inconsistent with
the witness’s testimony at trial. 939
935
United States v. Distler, 671 F.2d 954 (6th Cir. Ky., 1981).
936
937
Varela v. Previti, 64 A.D.2d 560, 406 N.Y.S.2d 830 (1st Dep’t 1978).
938
State v. Wayne, 16 W.Va. 41, 245 S.E.2d 838 (W. Va. 1978).
197
198
Thus, a witness who testifies that he was driving carefully may be impeached with a prior
statement that the accident was all his fault. 940
10.1.2. Use of Prior Inconsistent Statement
The questioner has three ways to use the prior inconsistent statement:
1. He may use the written or oral statement to refresh the recollection of the witness;
2. If written, he may authenticate the document, and then offer it as extrinsic evidence that
the statement was made; or
3. If oral, he may call another witness to testify that the statement was made.
The statement cannot be read to the jury until it is in evidence. 941
By statute in New York, a witness may be called and then impeached by a prior inconsistent
statement, as long as the statement is in writing and signed by the witness. 942
Federal Rules of Evidence § 607 permits any party, including the party calling the witness, to
attack the credibility of the witness. In New York, on the other hand, extrinsic evidence cannot be introduced
to establish the prior inconsistent statement. A party may show a prior inconsistent statement to his own
witness to discredit him only if the statement is in writing and signed, so as to comply with New York Civil
Practice Law and Rules 4514. If the statement does not comply with the statute, the prior inconsistent
statement cannot be used to discredit the witness, even if the witness is hostile or reluctant.943
939
940
Wolfe v. Madison Avenue Coach Co., Inc., 171 Misc. 707, 13 N.Y.S.2d 741 (App. Term, 1st Dep’t
1939).
941
942
CPLR 4514; Caplan v. City of New York, 34 A.D.2d 549, 309 N.Y.S.2d 859 (2d Dep’t 1970)
See also Letendere v. Hartford Accident & Indemnity Co., 21 N.Y.2d 518, 236 N.E.2d 467, 289 N.Y.S.2d
183 (1968).
943
Bernstein v. Empire Bridge Co., 146 A.D. 529, 131 N.Y.S. 129 (2d Dep’t 1911), aff’d, 205 N.Y. 603, 98
N.E. 1098 (1912).
198
199
The statement can be used to probe the witness’s recollection. He can be asked whether he
made the particular statement, and, if so, asked to explain the inconsistency. 944
The ostensible purpose is to refresh the witness’s recollection, but such questioning also
tends to impeach one’s own witness.
Once a witness has been called by a party, the witness remains that party’s witness, even if
excused and recalled by the opponent. 945
If the witness is an adverse party, the rule against impeachment by prior inconsistent
statements does not apply. Even oral statements may be used to impeach, since they are admissible as
admissions. 946
The facts to which the adverse party testified may be disputed or controverted, but the
party’s character for truth or veracity cannot be impeached. 947
10.1.3. Foundation
A foundation must be laid before a prior inconsistent statement may be used. 948
Before telegraphing the existence of the prior inconsistent statement, the witness should be
questioned so that he becomes unequivocally committed to the inconsistent testimony.
To lay a foundation for the introduction of extrinsic evidence of the prior inconsistent
statement:
944
Bullard v. Pearsall, 53 N.Y. 230, 231 (1873); Richardson, Evidence, § 510.
945
Wigmore, Evidence, §§ 909, 913; Hanrahan v. New York Edison Co., 238 N.Y. 194, 144 N.E. 499
(1924).
946
Hanrahan v. New York Edison Co., 238 N.Y. 194 (1924).
947
Cross v. Cross, 108 N.Y. 628, 15 N.E. 333 (1888); Tryon v. Willbank, 234 A.D. 335, 255 N.Y.S. 27 (4th
Dep’t 1932).
948
Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 98 N.E. 465 (1912); Sloan v. New York Central R.R.
Co., 45 N.Y. 125, 18 N.Y.S. 797 (1871); Loughlin v. Brassil, 187 N.Y. 128, 79 N.E. 854 (1907);
Hanselman v. Broad, 113 A.D. 447, 99 N.Y.S. 404 (2d Dep’t 1906).
199
200
1. Ask the witness whether he made the statement, giving the time of the statement, the place
it was made, the person to whom it was made, or persons in whose presence it was made.
This gives the witness the opportunity either to deny the statement or to give his explanation
for the statement.
In the case of written statements, such as a business record, the questioner may not know
where the statement was made, and the courts can dispense with that requirement.
2. If the statement is written, it must be shown or read to the witness and marked for
identification. If it is subscribed, the signature must be shown to him; upon request, the paper must be shown
to him. 949
The witness is usually read the exact statement if it is in writing, although the exact words
do not have to be used, as long as the substance sufficiently puts the witness on notice of what was said.
The witness must be adequately warned as to which statement the attorney is referring to. It
is not sufficient to ask the witness whether he “ever said” so-and-so. Enough details must be provided so that
the witness should understand the statement to which the attorney is alluding.
The time of the statement, the place it was made, and the person to whom or persons in
whose presence it was made are generally considered enough details to satisfy the foundation. 950
If the witness admits having signed the statement, inconsistent portions of it may be
admitted in evidence on the issue of credibility. 951
949
950
Sloan v. New York Central R.R. Co., 45 N.Y. 125, 18 N.Y.S. 797 (1871) (to lay the foundation for
contradiction, it is necessary to ask the witness specifically whether he has made such statements; the
usual and most accurate mode of examining the contradicting witness is to ask the precise question put
to the principal witness; otherwise, hearsay evidence which is not strictly contradictory might be
introduced to the injury of the parties and in violation of legal rules; the use of prior inconsistent
statements must be, to some extent, under the control and discretion of the court; it is important that the
jury should understand that such evidence is collateral, not evidence in chief; the witness sought thus to
be impeached should have an opportunity of making an explanation, in order to see whether there is a
200
201
If the witness denies having signed the statement, the genuineness of the signature may be
proven.
The cross-examiner can probe the circumstances of the prior statement, ask which statement
was true, etc.
In New York, even if the witness admits making the statement, the written statement may
still be placed in evidence. 952
The trial court, in its , may exclude the statement, when its contents were fully disclosed to
the jury orally. 953
The rule in New York is that the same foundation is required to use the prior inconsistent
statement, even if the witness is now dead or beyond the jurisdiction. 954
If the witness testifies and is cross-examined, and then the opponent discovers the prior
inconsistent statement, absent recalling the witness to lay the foundation for the statement, extrinsic evidence
cannot be introduced to establish the statement. 955
Federal Rules of Evidence § 613 incorporates an “interests of justice” provision:
(a) In examining a witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on
request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless
the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an
serious conflict or only a misunderstanding or misapprehension; for the purpose of eliciting the real truth,
the court may vary the strict course of examination).
951
Blackwood v. Chemical Corn Exchange Bank, 4 A.D.2d 656, 168 N.Y.S.2d 335 (1st Dep’t 1957).
952
People v. Schainuck, 286 N.Y. 161, 165, 36 N.E.2d 94, 96 (1941); Sloan v. New York Central R.R.
Co., 45 N.Y. 125 (1871).
953
People v. Piazza, 48 N.Y.2d 151, 397 N.E.2d 700, 422 N.Y.S.2d 9 (1979); Hanlon v. Ehrich, 178 N.Y.
474, 480, 71 N.E. 12, 14 (1904).
954
Harding v. Conlon, 159 A.D. 441, 144 N.Y.S. 663 (1st Dep’t 1913).
201
202
opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision
does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
If the witness gave the inconsistent testimony in a deposition and then becomes unavailable
for trial, the questioner at the deposition will frequently not have discovered the prior inconsistent testimony
until after the deposition. He will not have laid the necessary foundation for use of the prior statement in the
deposition.
However, it has been held that the foundation questions must have been laid in the
deposition in order to impeach the deposition. 956
If a party attempts to impeach a witness by use of a prior inconsistent statement without
laying a proper foundation, a specific objection must be raised on that ground. Failure to make the specific
objection waives it. Furthermore, a general objection is inadequate to preserve the issue on appeal, since the
error could have been corrected if specifically called to the attention of the court. 957
955
Montour v. Uris Builders, Inc., 42 A.D.2d 788, 346 N.Y.S.2d 342 (2d Dep’t 1973).
956
Stacy v. Graham, 14 N.Y. 492, 5 N.Y.S. 620 (1856) (inconsistent statements made after deposition are
inadmissible. “If the party against whom the witness is examined knows of the inconsistent statements
which he expects to prove at the trial, he can attend and propose such interrogatories as the rule requires
in order to lay the proper foundation for the intended impeachment. If he does not know at the time, but
the statements come to his knowledge afterward and before the trial, he can apply for a commission or
move postponement until the evidence can be procured, if he thinks it material to his case. . . . Suppose
the evidence, instead of being taken in the form of a deposition, is delivered at the trial, and the witness
left the court before the other party is aware that he has made inconsistent declarations which may tend
to discredit him; every lawyer knows that this is of frequent occurrent at the Circuit, but the rule in
question has never yielded to this exigency. . . . The principle on which the practice essentially rests is
that both the party and the witness are entitled of right to any explanation which the latter can give of the
statements imputed to him. When the witness is present he can be recalled by the same party for the
purpose of explanation, after the impeachment has been attempted, but if he happens to be absent then
the right is obviously lost.”).
957
Montour v. Uris Builders, Inc., 42 A.D.2d 788, 346 N.Y.S.2d 342 (2d Dep’t 1973) (in this case, the
general objection was held to have preserved the issue for appellate review because the witness whose
testimony was being impeached by the prior inconsistent statement had left the jurisdiction, so the error
could not have been cured even if the specific objection was raised by recalling the witness and laying the
proper foundation).
202
203
Until the witness testifies, hearsay statements of the witness are inadmissible. In other
words, a plaintiff cannot take the stand, anticipate a witness’s testimony, and then proceed to impeach the
anticipated testimony by testifying to prior inconsistent statements made by the witness. 958
10.1.4. Admissibility
In New York, the inconsistent statement is admitted to impeach the credibility of the
witness, not for the truth of the assertion. 959
However, if the prior inconsistent statement was made by a party, it is admissible as an
admission. 960
10.1.5. Use on Redirect
If an inconsistent statement is read from a document, any portion of that document that is
related to and explains the inconsistency may be read. 961
For example, an accident report may contain three lines inconsistent with a party’s
testimony, which may be read during cross-examination. The opponent is then entitled to offer any portions
of the report that place these three lines in context. 962
However, questioning that refers to two or three answers in a prior unsigned statement of a
police officer does not open the door to admission of the entire eighteen-page statement. 963
If the rest of the report does not place the first lines in context, but is offered merely as a prior
consistent statement, it is not admissible unless the witness’s testimony was attacked as a recent fabrication.
964
958
Millington v. New York City Transit Authority, 54 A.D.2d 649, 387 N.Y.S.2d 865 (1st Dep’t 1976).
959
Fitzgibbons Boiler Co. v. National City Bank of N.Y., 287 N.Y. 326, 39 N.E.2d 897 (1942); Robinson v.
New York City Transit Auth., 105 A.D.2d 614, 481 N.Y.S.2d 85 (1st Dep’t 1984).
960
Blossom v. Barrett, 37 N.Y. 434, 14 N.Y.S. (1868).
961
962
Millington v. New York City Transit Authority, 54 A.D.2d 649, 387 N.Y.S.2d 865 (1st Dep’t 1976).
963
Cornwell v. Cleveland, 44 A.D.2d 891, 355 N.Y.S.2d 679 (2d Dep’t 1974)
203
204
10.2. PRIOR CONSISTENT STATEMENTS
965
A witness' trial testimony ordinarily may not be bolstered with pretrial statements. A
prior consistent statement is admissible only if the testimony is attacked as a recent fabrication. 966
The word “recent” in the term “recent fabrication” means that the witness is charged not
with mistake or confusion, but with making up a false story well after the event, i.e., making up a story to
meet the exigencies of the case.
Not all inconsistencies developed on cross-examination imply that a witness' testimony is
fabricated. Attacking the testimony by showing the witness made a prior inconsistent statement is not
tantamount to attacking the testimony as a recent fabrication. 967
Questions designed to demonstrate that the testimony is the product of confusion or mistake
do not charge fabrication. 968
The implication that the testimony was recently fabricated arises only if it appears that the
cross-examiner believes and wants the jury to believe that the witness is testifying falsely to "meet the
exigencies of the case" . 969
When the witness' testimony has been attacked for that purpose, the witness may be
permitted to show that he or she made similar statements at some earlier time when free from the alleged bias.
The prior consistent statements antedating the motive to fabricate are not introduced to prove or disprove the
964
Mendez v. Manhattan & Bronx Surface Transit Operating Authority, 57 A.D.2d 823, 395 N.Y.S.2d 28
(1st Dep’t 1977); Crawford v. Nilan, 289 N.Y. 444, 46 N.E.2d 512 (1943).
965
People v. McDaniel, 81 N.Y.2d 10; 611 N.E.2d 265; 1993 N.Y. LEXIS 93; 595 N.Y.S.2d 364 (1993).
966
People v. Seit, 86 N.Y.2d 92; 653 N.E.2d 1168; 1995 N.Y. LEXIS 2239; 629 N.Y.S.2d 998 (1995).
People v. Seit, 86 N.Y.2d 92; 653 N.E.2d 1168; 1995 N.Y. LEXIS 2239; 629 N.Y.S.2d 998 (1995);
Crawford v. Nilan, 289 N.Y. 444, 46 N.E.2d 512 (1943); Koch v. Melton Realty Corporation, 52 A.D.2d
773, 382 N.Y.S.2d 791 (1st Dep’t 1976).
967
37 A.D.2d 391, 326 N.Y.S.2d 1 (1st Dep’t 1971),
968
969
204
205
facts in issue, but to rehabilitate the credibility of the witness (not all inconsistencies developed on cross-
examination imply that a witness' testimony is fabricated.
Thus, to introduce a prior consistent statement, a proper foundation must be laid that the
witness’s testimony has been attacked as a recent fabrication.
Any claim that the witness is changing the story to meet the needs of the case establishes the
inference of recent fabrication. The most direct illustration of this is when an opponent infers that a witness is
changing his testimony because he is getting paid by a party, an attorney suggested it, etc. Where the
opponent infers a changed story, proof that the witness made consistent declarations at a time before a motive
to falsify existed are admissible. 970
Thus, in Abrams v. Gerold 971 the issue was whether the plaintiff had the green light. On
cross-examination of the plaintiff’s witness, she admitted that she had spoken with an assistant for plaintiff’s
counsel, who told her which vehicle ran the red light. She also admitted that the assistant indicated he would
see to it that she would be compensated for expenses and lost earnings of about $400. On the basis of this
cross-examination, the statement of the witness given on the day of the accident was admissible in evidence to
overcome the charge of recent fabrication.
The court must be satisfied that the consistent declarations were made in good faith without
motive to falsify. For example, where a plaintiff claimed to have been struck by a revolving door, a police
officer testified that she told him, immediately after the accident, that she had been struck by a man coming
out of a building. At the hospital, the plaintiff told the doctor she had been struck by a revolving door, and the
history was recorded in the hospital record. The plaintiff should have been permitted to introduce the hospital
record in evidence, to rebut the inference that her trial testimony was fabricated to make a case. 972
970
Lichtrule v. City Savings Bank of Brooklyn, 29 A.D.2d 565, 286 N.Y.S.2d 307 (2d Dep’t 1967).
971
37 A.D.2d 391, 326 N.Y.S.2d 1 (1st Dep’t 1971).
972
Lichtrule v. City Savings Bank of Brooklyn, 29 A.D.2d 565, 286 N.Y.S.2d 307 (2d Dep't 1967).
See also Romanchuk v. County of Westchester, 40 A.D.2d 877, 337 N.Y.S.2d 926 (2d Dep’t 1972).
205
206
In Romanchuk, the infant plaintiff claimed to have been hit by a truck, while the defense
witnesses claimed the child’s sled merely overturned, without contacting the truck. The history portion of the
hospital record indicated that the plaintiff had been struck by a moving vehicle. This portion of the hospital
record should have been admitted, since the defense implied that the plaintiff’s father’s version of the accident
was a recent fabrication.
However, if the court is not satisfied that the prior consistent statements were made in good
faith when there was no motive to falsify, the prior consistent statements should be excluded, even to rebut
the inference of recent fabrication. 973
Thus, statements made to an insurance broker twenty-four hours after an accident, and
statements made to a police officer two hours after an accident, have been excluded, since the courts were not
satisfied there was no motive to falsify at the time the statements were made. 974
Even if there is a question as to whether the consistent statement was given at a time when
there was a motive to falsify, the statement may be admissible, if the opposing counsel chooses to examine the
witness on that very point. 975
As a result, the party-witness acquires the right to introduce the evidence to bolster the
witness’s testimony.
A prior consistent statement by a police officer in a police report may be admissible, if his
testimony at trial is attacked as a recent fabrication. 976
If the cross-examination supports an inference that the police officer’s testimony is being
attacked as a possible recent fabrication, the officer’s memorandum book, containing consistent statements, is
admissible to rebut that inference. 977
973
Melendez v. Lang, 54 A.D.2d 864, 388 N.Y.S.2d 600 (1st Dep’t 1976).
974
Giordano v. Eastern Utilities, Inc., 9 A.D.2d 947, 195 N.Y.S.2d 753 (2d Dep’t 1959).
975
Romanchuk v. County of Westchester, 40 A.D.2d 877, 337 N.Y.S.2d 926 (2d Dep’t 1972).
976
Yeargans v. Yeargans, 24 A.D.2d 280, 265 N.Y.S.2d 562 (1st Dep’t 1965).
206
207
Similarly, a police officer’s memorandum book may contain prior consistent statements,
which are admissible to rebut an inference of recent fabrication. 978
10.3. PROMPT OUTCRY OF SEXUAL ASSAULT
Evidence that a victim of sexual assault promptly complained about the incident is
979
admissible to corroborate the allegation that an assault took place.
The complaint must have been made promptly after the crime, and only the fact of a
complaint, not its accompanying details, may be elicited. 980
The law expects and requires that it should be prompt, but there is and can be no particular
time specified." A complaint is timely for purposes of the prompt outcry exception if made "at the first
suitable opportunity". 981
10.4. NEGATIVE IDENTIFICATION TESTIMONY
Negative identification evidence may be admissible when the reliability of an eyewitness

982
identification is at issue. Negative identification evidence can tend to prove that the eyewitness possessed
the ability to distinguish the particular features of the perpetrator.
The People must demonstrate some similarity between the features of the individuals the
eyewitness declined to identify and the features of the defendant. 983
977
Flatow v. International Terminal Operating Co., Inc., 29 A.D.2d 952, 289 N.Y.S.2d 257 (2d Dep’t
1968).
978
Hayes v. City of New York, 23 A.D.2d 832, 259 N.Y.S.2d 278 (1st Dep’t 1965).
979
People v. McDaniel, 81 N.Y.2d 10; 611 N.E.2d 265; 1993 N.Y. LEXIS 93; 595 N.Y.S.2d 364 (1993)..
980
People v. McDaniel, 81 N.Y.2d 10; 611 N.E.2d 265; 1993 N.Y. LEXIS 93; 595 N.Y.S.2d 364 (1993)..
981
People v. McDaniel, 81 N.Y.2d 10; 611 N.E.2d 265; 1993 N.Y. LEXIS 93; 595 N.Y.S.2d 364 (1993)
(child's reports to the mother that she was sexually assault in her room during the night, on the mornings
following each incident, unquestionably satisfy the first-suitable-opportunity requirement.).
982
People v. Wilder, 93 N.Y.2d 352, 690 N.Y.S.2d 483, 712 N.E.2d 652, 1999 N.Y. LEXIS 819 (1999).
207
208
It was appropriate to admit negative identification evidence, for instance, where the
eyewitness demonstrated that he was able to distinguish the actual perpetrator from another suspect who
was dressed in nearly identical clothing and shared common racial and gender characteristics with the
984
perpetrator.
983
People v. Bolden, 58 N.Y.2d 741, 459 N.Y.S.2d 22, 445 N.E.2d 198, 1982 N.Y. LEXIS 3942 (1982).
984
People v. Wilder, 93 N.Y.2d 352, 690 N.Y.S.2d 483, 712 N.E.2d 652, 1999 N.Y. LEXIS 819 (1999).
208
209
209
210
CHAPTER 11 HEARSAY
TABLE OF CONTENTS
11.1. DEFINITION OF HEARSAY
Hearsay has been subjected to a variety of definitions. Rule 63 of the Uniform Rules of
Evidence, approved by the American Law Institute and American Bar Association, defines hearsay evidence as
“[e]vidence of a statement which is made other than by a witness while testifying at the hearing offered to
prove the truth of the matter stated.” “Statement . . . means not only an oral or written expression but also
non-verbal conduct of a person intended by him as a substitute for words in expressing the matter stated.” 985
Wigmore defines hearsay as an extrajudicial statement, which is offered to prove the truth of
the matter stated. 986
11.2. RATIONALE FOR EXCLUDING HEARSAY
The hearsay rule insures that the potential testimonial infirmities of faulty memory, faulty
perception, insincerity and ambiguity are subject to the test of cross-examination. 987
985
Comment, Uniform Rules of Evidence, rule 63; People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695,
342 N.E.2d 496, 1975 N.Y. LEXIS 2346 (1975).
986
Wigmore, Evidence (3d ed.), § 1361; see also Richardson, Evidence (10th ed.), § 200; McCormick,
Evidence (2d ed.), § 245, p.584; People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496,
1975 N.Y. LEXIS 2346 (1975).
987
People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999), citing Williamson v. United States, 512
U.S. 594, 598-599, 129 L. Ed. 2d 476, 114 S. Ct. 24 (1994);
210
211
11.3. RATIONALE FOR HEARSAY EXCEPTIONS
When there is independent evidence of reliability obviating the four testimonial infirmities of
faulty memory, faulty perception, insincerity and ambiguity, an exception to the hearsay rule is generally
justified. 988
988
People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999), citing with approval Tribe, Triangulating
Hearsay, 87 Harv L Rev 957 (1974).
211
212
CHAPTER 12 ADMISSIONS
12.1. GENERALLY
An admission is an act or declaration of a party, and it constitutes evidence in chief against
the party at trial. 989
An admission by a party of a material fact contrary to the position that he maintains at trial is
always receivable against him. 990
It is not necessary that the statement be against the party’s interest at the time it was made.
In fact, it may be wholly exculpatory. 991
An admission may be a statement by the party, whether it is made orally and a witness
testifies to that fact, or it is incorporated into a deposition, MV 104 form, or business record, such as a police
report. 992
The party is not “bound” by an admission, even if made during his own testimony; the
testimony may be contradicted by other evidence. 993
12.1.1. Distinguished From Declaration Against Interest
Admissions differ from declarations against interest in the following ways:
1. Declarations against interest must be against the interest of the person making the
statement at the time they are made; admissions need not;
989
Richardson, Evidence, § 209 (10th ed.).
990
Reed v. McCord, 160 N.Y. 330, 341, 54 N.E. 737 (1899).
991
People v. Ross, 21 N.Y. 2d 258, 262, 234 N.E.2d 427, 287 N.Y.S.2d 376 (1967).
992
E.g., Rosario v. New York City Transit Authority, 73 A.D.2d 912, 423 N.Y.S.2d 254,1980 N.Y. App.
Div. LEXIS 9825 (2d Dep't 1980 (police report); Glazer v. Alison Homes Corp., 36 A.D.2d 720, 320
N.Y.S.2d 715, 1971 N.Y. App. Div. LEXIS 4596 (2d Dep't 1971) (MV 104 report).
993
McRorie v. Monroe, 203 N.Y. 426, 96 N.E. 724 (1911).
212
213
2. Only a party to the lawsuit may make an admission; declarations against interest are made
by third persons;
3. A declaration against interest is admissible only if the declarant is unavailable as a witness;
admissions do not require unavailability; and
4. An admission is not admissible against a coparty; declarations against interest are
admissible for such purposes.
12.2. REQUIREMENTS
12.2.1. Statement by a Party
Where a party makes a statement against his interest, it is admissible as an admission, even
though the statement was based on hearsay. 994
For a hearsay statement to be admissible as an admission, the declarant must be a party to
the action. 995
12.2.2. Statement by Employee of Party
An employee may have no interest in the outcome of the litigation, and, thus, no incentive to
check carefully the correctness of the statements he makes. 996
Thus, the rule in New York is that an oral or written statement made by an agent may be
received in evidence against his principal under the admission exception to the hearsay rule only if it was
spoken or written within the scope of authority of the agent to speak or write for his employer. 997
994
Reed v. McCord, 160 N.Y. 330, 54 N.E. 737, 1899 N.Y. LEXIS 1161 (1899)(defendant, who conceded
that he was not present when the accident occurred, stated that at the time of the injury, the dog of the
machine that caused the accident was not in position; admissible).
995
Cox v. State, 3 N.Y.2d 693, 171 N.Y.S.2d 818, 148 N.E.2d 879, 1958 N.Y. LEXIS 1189 (1958) (an
entry in a hospital record to establish the happening, which was based upon hearsay and not upon
personal knowledge, is inadmissible unless made by a party to the action).
213
214
The current New York rule is derived from agency rather than evidentiary principles.
Admissibility depends “upon the authority to be attributed to the agent in the specific case,” which in turn
depends “on the nature of the business with reference to the degree of responsibility and authority
attributable to the particular person.” 998
An employee must be authorized to make statements on behalf of his employer before those
statements will be received against the employer as admissions. 999
Hearsay entries in a business record of a defendant employer are not admissible as
admissions, unless there was an identity of interest between the employee who prepared the record and the
defendant employer. 1000
Collaborative efforts of several employees in a firm, submitted as the firm’s reports, are
admissible as admissions by the firm, if it is a party. 1001
996
Cox v. State, 3 N.Y.2d 693, 171 N.Y.S.2d 818, 148 N.E.2d 879, 1958 N.Y. LEXIS 1189 (1958).
997
Loschiavo v. Port Authority of New York & New Jersey, 86 A.D.2d 624, 446 N.Y.S.2d 358, 1982 N.Y.
App. Div. LEXIS 15166 (2d Dep't 1982) Kelly v. Diesel Constr. Div. of Carl A. Morse, 35 N.Y.2d 1, 315
N.E.2d 751, 358 N.Y.S.2d 685 (1974); Brusca v. El Al Israel Airlines, 75 A.D.2d 798, 427 N.Y.S.2d 505,
1980 N.Y. App. Div. LEXIS 11387 (2d Dep't 1980) Board of Education v. Herb's Dodge Sales & Service,
Inc., 79 A.D.2d 1049, 435 N.Y.S.2d 179, 1981 N.Y. App. Div. LEXIS 9974 (3d Dep't 1981) (admission as
to how fire started by an employee of defendant, whose duties included sweeping and cleaning the
buses, running service calls, and sometimes gassing up the buses, was not admissible).
998
App. Div. LEXIS 15166 (2d Dep't 1982).
999
App. Div. LEXIS 15166 (2d Dep't 1982) (airline ramp service agent at accident scene told plaintiff and
others that plaintiff was not the first to have fallen at the same divider; statement by gate agent of airline
that other persons had tripped and fallen at the place where plaintiff fell was inadmissible; duties as a
gate agent involved meeting flights, assisting passengers in embarking and debarking from aircraft, and
reporting accidents and dangerous conditions to superiors; it was not his job to discuss prior accidents
with passengers or the general public).
1000
Cox v. State, 3 N.Y.2d 693, 171 N.Y.S.2d 818, 148 N.E.2d 879, 1958 N.Y. LEXIS 1189 (1958).
1001
Sanchez v. Manhattan & Bronx Surface Transit Operating Auth., 170 A.D.2d 402, 566 N.Y.S.2d 287,
1991 N.Y. App. Div. LEXIS 2466 (1st Dep't 1991) (since all the reports were submitted by the “firm” as
reports of the “firm,” testimony in support of the reports could be presented only through the testimony of
its employees, and the firm’s credibility could be impeached only through cross-examination of those
witnesses).
214
215
The declarations of an alleged agent may not be shown for the purpose of proving the fact of
agency. 1002
If the employee has authority to speak for the party, the statement is an admission even
though it was not made from personal knowledge. 1003
It is cogently argued that the “speaking agent” rule is outmoded and that an agent’s
statement should be admissible in evidence if it concerns matters lying within the scope of the agency. 1004
The only escape from the harshness of the speaking agent’s exception lies in the claim that
the statements were part of the res gestae. 1005
Under this theory, the agent’s declarations were offered not for their truth, but as operative
facts accompanying and elucidating the agent’s activities on behalf of the principal. Such declarations were
admissible as “original evidence . . . the representation or statement of the agent in such cases being the
ultimate fact to be proved, and not an admission of some other fact.” 1006.
The rule breeds inconsistencies; e.g., the contemporaneous declarations of a store manager
and a construction foreman were admitted against the principals even though they were not part of the res
gestae. 1007
1002
Moore v. Leaseway Transp. Corp., 65 A.D.2d 697, 409 N.Y.S.2d 746, 1978 N.Y.
App. Div. LEXIS 13462 (1st Dep't 1978).
1003
See Davison v. Long Island Home, Limited, 243 A.D. 791, 278 N.Y.S. 167 (2d Dep’t 1935).
1004
Loschiavo v. Port Authority of New York & New Jersey, 86 A.D.2d 624, 446
N.Y.S.2d 358, 1982 N.Y. App. Div. LEXIS 15166 (2d Dep't 1982) (the ramp agent had general authority to
supervise the jetway area where the accident occurred, to assist disembarking passengers, and to report
accidents—whether injuries occurred or not—and potential hazards to his principal, defendant National
Airlines; his admissions should be permitted in evidence because they concerned matters within the
scope of his employment and were made during the course of that employment).
1005
Fairlie v. Hastings, 10 Vesey 123 (where a party was bound by the act of his agent, the declarations
of the agent which qualified or affected that act could be used against the principal—not as admissions,
but as part of the res gestae, which in this context means the “act authorized to be done”).
1006
Fairlie v. Hastings, 10 Vesey 123
1007
Bransfield v. Grand Union Co., 17 N.Y.2d 474, 214 N.E.2d 161, 266 N.Y.S.2d 981 (1965); Brusca v.
El Al Israel Airlines, 75 A.D.2d 798, 427 N.Y.S.2d 505, 1980 N.Y. App. Div. LEXIS 11387 (2d Dep't 1980)
215
216
The second circuit has held that admissions made by an agent concerning the subject matter
of his employment are binding on the principal even if made without authority. 1008
The second circuit disregarded the fiction of implied authority and determined admissibility
not on the basis of agency, but on evidentiary grounds: specifically, that there was an adequate indicium of
reliability to admit the statement as a hearsay exception, noting, inter alia, that the employee’s statements
were adverse to his own interests, as well as to his principal, in that it entailed the possible loss of his present
employment and impairment of future employment. 1009
The Federal Rules of Evidence now provide for the admission of an agent’s statement
concerning a matter within the scope of the declarant’s agency or employment made during the existence of
the relationship. 1010
The Proposed Code of Evidence for the State of New York would adopt the federal rule. 1011
The rationale for the federal rule is that “[t]he agent is well informed about acts in the course
of the business, his statements offered against the employer are normally against the employer’s interest, and
while the employment continues, the employee is not likely to make the statements unless they are true.
Moreover, if the admissibility of an admission is viewed as arising from the adversary system, responsibility
for statements of one’s employee is a consistent aspect.” 1012
12.2.3. Use Only Against Party Who Made Statement
An admission must be offered against the party who made the admission. 1013
1008
Grayson v. Williams, 256 F.2d 61 (10th Cir. Wyo., 1958) (characterizing results from the traditional
rule as “absurd”).
1009
Koninklijke Luchtvaart Maatschappij N. V. v. Taller, 292 F.2d 775, 783 (D.C. Cir. 1961) cert. denied,
368 U.S. 921, 82 S. Ct. 243, 7 L.Ed.2d 136 (1961).
1010
Fed. R. Evid. § 801(d)(2)(D).
1011
See Proposed Code, § 801(d)(2)(D).
1012
McCormick, Evidence, § 267, p. 641 (2d ed.); See also Advisory Committee Note to Federal Rules of
Evidence, § 801(d)(2).
1013
Reed v. McCord, 160 N.Y. 330, 54 N.E. 737 (1899).
216
217
A defendant cannot offer a self-serving statement in a police report made by a codefendant,
where the report serves to bolster codefendant’s version of the accident vis-á-vis the plaintiff’s version. 1014
A plaintiff cannot introduce a self-serving statement by one defendant as evidence against a
codefendant. 1015
12.2.4. Statement May Be Based on Hearsay
The rule that admissions against interest of a party, although based on hearsay, are
admissible is based on the reasoning that it is highly improbable a party will admit or state anything against
himself or against his own interest unless the party is satisfied that the admitted facts are true.
It is not necessary that the party making the admission have firsthand knowledge of what he
is admitting. Thus, a statement by a defendant-employer as to how an accident happened is admissible, even
though the person making the admission did not witness the accident. 1016
12.2.5. Admission in Form of Opinion
The admission may be in the form of an opinion, such as a statement that a party was at fault
for an accident or that the other person was not at fault. 1017
The statement must be more than surmise or suspicion. 1018
1014
Heiney v. Pattillo,76 A.D.2d 855, 428 N.Y.S.2d 513, 1980 N.Y. App. Div. LEXIS 11911 (2d Dep't
1980).
1015
Garmon v. Mordente, 32 A.D.2d 532, 299 N.Y.S.2d 689, 1969 N.Y. App. Div. LEXIS 4270 (2d Dep't
1969).
1016
Reed v. McCord, 160 N.Y. 330, 341, 54 N.E. 737 (1899).
1017
McCormick, Evidence, § 264 (2d ed. 1972); Jackson v. Dickman, 256 A.D. 925, 9 N.Y.S.2d 688 (2d
Dep’t 1939) (error to exclude evidence that plaintiff stated the accident was not due to the fault of the
defendant).
1018
Aschenbach v. Keene, 46 Misc. 600, 92 N.Y.S. 764 (Manhattan Co. 1905) (statement that “one of the
girls must have left the faucet open” not an admission).
217
218
12.2.6. Repeating What Was Heard
There is a distinction between what a party says caused the accident and what was said to
him by others as to the cause. In the one situation, he testifies from his personal knowledge concerning the
disputed facts, while in the other he merely attests to what someone else said. 1019
The declarant’s statement must admit the fact, not just state that he heard that the accident
occurred in the manner stated. Mere repetition of what the party heard, without adoption or indorsement, is
inadmissible. 1020
12.3. EXAMPLES
12.3.1. Admission in Hospital Record
An admission by a party reported in a hospital record is admissible, where the treating
physician testifies that a statement as to how the injury occurred was essential to diagnosis and treatment. 1021
Nurse’s notes in hospital records, which contain admissions by the plaintiff that he was drug
dependent at the time of the accident, should have been admitted in support of defendant’s theory that the
plaintiff caused the accident by falling asleep. 1022
1019
Cox v. State, 3 N.Y.2d 693, 148 N.E.2d 879, 171 N.Y.S.2d 818 (1958) (entry by staff attendant in
state hospital record that “Pt. LANTZ pushed pt. M. McGRATH to the floor striking right side. Placed in
bed, notified Dr. SCHWARTZ and seen by Dr. SCHWARTZ and Dr. BOSTIKA [sic] B.L.D.” inadmissible in
case against State as an admission against interest, because entry was based on hearsay (what staff
attendant was told) and made by employee of State).
1020
Reed v. McCord, 160 N.Y. 330, 54 N.E. 737 (1899), citing Stephens v. Vroman, 16 N.Y. 381 (1857).
1021
Schanberg v. State, 30 A.D.2d 712, 291 N.Y.S.2d 35, 1968 N.Y. App. Div. LEXIS 3751 (3d Dep't
1968) (in action for broken porcelain handle, hospital entry characterizing the claimant’s action as
“forcing” the handle was admissible).
1022
Cotter v. Mercedes-Benz, 108 A.D.2d 173, 488 N.Y.S.2d 390 (1st Dept. 1985) (references to
symptoms of the plaintiff undergoing drug withdrawal while in the hospital should also have been
admitted; if the nurse’s notes had been admitted, the defendant’s expert medical witness was prepared to
testify that in his medical opinion the symptoms of drug withdrawal were evidence that the plaintiff was
under the influence of drugs at the time of the accident).
218
219
12.3.2. Admission in Police Report
An admission contained in a police report is admissible, even though the party declarant is
unavailable to testify at trial. 1023
An admission contained in a police report that “I must have fallen asleep and struck LILCO
pole #44” established defendant’s negligence as a matter of law, and summary judgment should have been
granted for the plaintiff. 1024
A police report is a business record, and admissions contained in it by a party are admissible,
even though the officer who prepared the police report does not testify. 1025
12.3.3. Statement to Insurance Company by Insured
Conversations between an insured and his insurance representative are privileged; however,
under some circumstances, they may be admitted into evidence to establish admissions or prior inconsistent
statements. 1026
1023
Laban v. Cardenas, 45 A.D.2d 879, 357 N.Y.S.2d 881, 1974 N.Y. App. Div. LEXIS 4361 (2d Dep't
1974) (translation of police report given by non-English-speaking defendant was admissible; the jury
should have been instructed that it was an admission and if they believed that the statement was made
and the contents were true, it could be considered as evidence against the defendant).
1024
Ferrara v. Poranski, 88 A.D.2d 904, 450 N.Y.S.2d 596, 1982 N.Y. App. Div. LEXIS 17232 (2d Dep't
1982) (coupled with the fact that the defendant had suffered a concussion earlier and had elected to drive
her vehicle instead of seeking alternate transportation home).
1025
Penn v. Kirsh, 40 A.D.2d 814, 338 N.Y.S.2d 161, 1972 N.Y. App. Div. LEXIS 3282 (1st Dep't 1972)
(police report summarized the driver’s statement: “when he observed stopped traffic he attempted to stop
but his brakes would not hold and he collided with the right rear fender of car (#1). [sic] Impact of same
caused him to be tossed forward of handlebars and into an open water connection trench”; the officer was
unable to testify because he was suffering from terminal cancer and had retired from the department; the
entry is not hearsay; it is an admission or declaration against interest and thus admissible into evidence).
1026
Cotter v. Mercedes-Benz Manhattan, Div. of Daimler-Benz, Inc., 108 A.D.2d
173, 488 N.Y.S.2d 390, 1985 N.Y. App. Div. LEXIS 42950 (1st Dep't 1985) (two conversations between
the plaintiff and a field claim representative of State Farm, the plaintiff’s insurer, should have been
sadmitted, since tape recording was made in regular course of business of insurance company, and
plaintiff was identified as the declarant).
219
220
12.3.4. Plea of Guilty
A plea of guilty in a criminal action may be used as an admission in a subsequent civil action.
1027
A conviction of a party’s employee who pleads guilty to reckless driving is admissible against
the employer as a declaration against penal interest. 1028
A plea of guilty, in a criminal case, if allowed to be withdrawn by court’s permission, may not
be used as an admission. 1029
Spitaleri has been expressly limited by the Court of Appeals to criminal cases. A plea of guilty
to a traffic offense, which is allowed to be withdrawn, is admissible in a subsequent civil action. 1030
12.3.5. Statements in Pleadings
Formal judicial admissions are conclusive of the facts stated, unless they are permitted to be
withdrawn or amended. 1031
Pleadings, admissions under New York Civil Practice Law and Rules 3123 (Notices to
Admit), formal admissions in open court, and stipulations of fact are formal judicial admissions.
The pleading may be read to the jury without having been formally introduced in evidence.
Since causes of action or defenses may be stated alternatively or hypothetically in a pleading

1032
, and the pleading is designed primarily to give notice, a statement in a pleading may lack the character of
an admission and, therefore, be denied status as a judicial or evidentiary admission.
A pleading in a prior trial of the same action may be binding in the second trial. 1033
1027
Ando v. Woodberry, 8 N.Y.2d 165, 168 N.E.2d 520, 203 N.Y.S.2d 74 (1960) (plea of guilty to a traffic
infraction admissible to show carelessness in subsequent civil action arising from same facts).
1028
Augustine v. Interlaken, 68 A.D.2d 705, 418 N.Y.S.2d 683 (4th Dep’t 1979).
1029
People v. Spitaleri, 9 N.Y.2d 168, 173 N.E.2d 35, 212 N.Y.S.2d 53, 86 A.L.R.2d 322 (1961).
1030
Cohens v. Hess, 92 N.Y.2d 511; 705 N.E.2d 1202; 1998 N.Y. LEXIS 4044; 683 N.Y.S.2d 161 (1998)
1031
Clason v. Baldwin, 152 N.Y. 204, 46 N.E. 322 (1897); Coffin v. President of Grand Rapids Hydraulic
Co., 136 N.Y. 655, 32 N.E. 1076 (1893).
1032
CPLR 3014,
220
221
A pleading in one case may be used as an evidentiary, or informal, judicial admission in
another action, unless it is excluded because of its alternative or hypothetical nature.
It must be shown that the party signed the prior pleading or that the facts were inserted in
the prior pleading with his knowledge and consent. 1034
A pleading, if signed by counsel, is prima facie evidence that it was authorized by the party,
although the party may attempt to reduce the weight of the admission by showing that the statement in the
pleading was made without his actual knowledge.
If the pleading is amended, the original version may be used as an evidentiary admission. 1035
Where a party makes a statement in a verified bill of particulars which is contrary to his
proof at trial, it may be utilized as evidence. 1036
A contradictory statement in a verified bill of particulars could be read on summation. 1037
When a plaintiff responds to a bill of particulars regarding injuries by attaching hospital and
medical records to the bill, unless the portions read from the medical records are independently in evidence,
they cannot be read to the jury. 1038
12.3.6. Workers’ Compensation Employer Report of Injury
An admission written in an employer’s report of injury is admissible against the employer. 1039
1033
Stemmler v. Mayor of City of New York, 179 N.Y. 473, 72 N.E. 581 (1904).
1034
Cook v. Barr, 44 N.Y. 156, 158, 63 A.L.R.2d 412 (1870).
1035
Vermeule v. City of Corning, 186 A.D. 206, 174 N.Y.S. 220 (4th Dep’t 1919), aff’d, 230 N.Y. 585, 130
N.E. 903 (1920).
1036
O'Hearn v. O'Hearn, 55 A.D.2d 766, 389 N.Y.S.2d 651, 1976 N.Y. App. Div. LEXIS
15552 (3d Dep't 1976).
1037
Owen A. Mandeville, Inc. v. Zah, 38 A.D.2d 730, 731, 329 N.Y.S.2d 552 (2d Dep’t 1972), aff’d, 35
N.Y.2d 769, 320 N.E.2d 865, 362 N.Y.S.2d 149 (1974) (dictum).
1038
O'Hearn v. O'Hearn, 55 A.D.2d 766, 389 N.Y.S.2d 651, 1976 N.Y. App. Div. LEXIS
15552 (3d Dep't 1976) (statements in hospital and medical reports attached to bill of particulars could not
be read, since not made by the plaintiff).
1039
In re Mackenzie v. Glens Falls Country Club, Inc., 32 A.D.2d 586, 299 N.Y.S.2d 466,
221
222
12.3.7. Statement of Attorney
Admissions by counsel, as by any other agent, are admissible against a party provided that
the statements were made by the attorney while acting in his authorized capacity. 1040
An admission by counsel made in a letter sent in an attempt to settle the dispute prior to trial
is admissible, for while an offer of settlement is inadmissible, admissions made in the course of such
negotiations are not. 1041
12.3.8. Translated Admissions
Where there is no motive to mislead and no reason to believe the translation is inaccurate, an
agency relationship may properly be found to exist so as to permit receipt of the interpreter’s translations into
evidence as party admissions. 1042
A paid informant, whose remuneration depends on the “prosecutability” of the case against
defendant, is not acting in the capacity of a go-between and interpreter as an agent for defendant’s benefit. 1043
In People v. Romero, 1044 hearsay testimony of an undercover police officer as to what a paid
bilingual informant, who participated in setting up the drug transactions and acted as the interpreter for both
defendant and the undercover officer, told the officer in English that the informant and defendant had said to
each other in Spanish, was not admissible.
1969 N.Y. App. Div. LEXIS 4210 (3d Dep't 1969) (workers’ compensation claim, where employer’s
report of injury stated in response to the question, “What was employee doing when accident occurred?”
The response was “Repairing fairway damage and broken mail box.”).
1040
Bellino v. Bellino Constr. Co.,75 A.D.2d 630, 427 N.Y.S.2d 303, 1980 N.Y. App. Div. LEXIS 11095 (2d
Dep't 1980) (letter by plaintiff’s attorney to defendant’s attorney).
1041
Bellino v. Bellino Constr. Co.,75 A.D.2d 630, 427 N.Y.S.2d 303, 1980 N.Y. App. Div. LEXIS 11095 (2d
Dep't 1980).
1042
People v. Romero, 78 N.Y.2d 355; 581 N.E.2d 1048; 1991 N.Y. LEXIS 4214; 575 N.Y.S.2d 802
(1991).
1043
(1991).
1044
(1991).
222
223
12.3.9. Statements Translated to Counsel
A fellow inmate who translates a conversation between the defendant and his attorney may
testify to statements made by the defendant, absent a showing that the attorney-client privilege applies. 1045
Whether the attorney-client privilege protects the statements depends on whether the client
had a reasonable expectation of confidentiality under the circumstances. 1046
Similarly, statements made through a police officer interpreting a conversation between a
client and an attorney would not be privileged because the conflicting interests of the parties would negate
any reasonable expectation of confidentiality, notwithstanding the third party’s role as an interpreter.
Under the general rule, a defendant does not enjoy a confidential privilege when
communicating with counsel in the presence of another codefendant. 1047
If the codefendants are mounting a common defense, their statements are privileged, but,
unless the exchange is for that purpose, the presence of a codefendant or his counsel will destroy any
expectation of confidentiality between a defendant and his attorney. 1048
Where a defendant states to a translator during an arraignment proceeding that he killed the
victim and was guilty, the statement is admissible against the defendant, if he waived his right to counsel in
1045
People v. Osorio, 75 N.Y.2d 80, 549 N.E.2d 1183, 550 N.Y.S.2d 612 (1989).
1046
People v. Mitchell, 58 N.Y.2d 368, 448 N.E.2d 121, 461 N.Y.S.2d 267 (1983) (statement made to the
attorney’s secretary in the common area of a shared office where the secretaries of other attorneys were
present was not privileged).
1047
People v. Osorio, 75 N.Y.2d 80, 549 N.E.2d 1183, 550 N.Y.S.2d 612 (1989); United States v.
Simpson, 475 F.2d 934 (D.C. Cir. 1973), cert. denied, 414 U.S. 873, 94 S. Ct. 140, 38 L.Ed.2d 91 (1975);
United States v. Melvin, 650 F.2d 641, 646 (5th Cir. Fla., 1981).
1048
People v. Osorio, 75 N.Y.2d 80, 549 N.E.2d 1183, 550 N.Y.S.2d 612 (1989); United States v.
McPartlin, 595 F.2d 1321 (7th Cir., 1979); Hunydee v. United States, 355 F.2d 183 (9th Cir., 1965);
United States v. Lopez, 777 F.2d 543 (10th Cir., 1985) (the presence of defendant in a meeting between
his codefendant and codefendant’s counsel destroyed any claim of privilege because he was not
attending the meeting to build a joint defense or to join his codefendant’s defense team).
223
224
the presence of counsel 1049 or the statement was spontaneously volunteered and not the result of
“inducement, provocation, encouragement or acquiescence.” 1050
In People v. Gonzales, the defendant initiated the exchange with the court-appointed
translator, and the translator’s response, based on the reasonable belief that defendant merely wanted
clarification of what she had just said, was neither intended nor objectively likely to elicit an inculpatory
statement from defendant. 1051
12.3.10. Consciousness of Guilt Evidence
Certain postcrime conduct is indicative of a consciousness of guilt, and hence of guilt itself.
1052
Such evidence may betray an awareness of guilt. 1053 Other conduct that has been recognized as revealing
1054 1055
a guilty mind includes false statements or alibis, coercion or harassment of witnesses, and
1056
abandonment or concealment of evidence.
1049
People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344, 1980 N.Y. LEXIS 2034
(1980).
1050
People v. Gonzales, 75 N.Y.2d 938, 555 N.Y.S.2d 681, 554 N.E.2d 1269, 1990 N.Y. LEXIS 750
(1990).
1051
See also People v. Lynes, 49 N.Y.2d 286, 401 N.E.2d 405, 425 N.Y.S.2d 295 (1980) (following
arraignment, defendant asked police officer if he could speak to him; admissions during conversation
spontaneous and admissible).
1052
1053
People v. Reddy, 261 N.Y. 479, 261 N.Y. (N.Y.S.) 479, 185 N.E. 705, 1933 N.Y.
LEXIS 1310, 87 A.L.R. 763 (1933); People v. Yazum, 13 N.Y.2d 302, 196 N.E.2d 263, 1963
N.Y. LEXIS 813, 246 N.Y.S.2d 626 (1963); People v. Fiorentino, 197 N.Y. 560, 197 N.Y. (N.Y.S.)
560, 91 N.E. 195, 1910 N.Y. LEXIS 1139 (1910).
1054
People v. Moses, 63 N.Y.2d 299, 308, 472 N.E.2d 4, 1984 N.Y. LEXIS 4633, 482 N.Y.S.2d 228
(1984); People v. Leyra, 1 N.Y.2d 199, 208, 134 N.E.2d 475, 1956 N.Y. LEXIS 921, 151 N.Y.S.2d 658
(1956).
1055
People v. Shilitano, 218 N.Y. 161, 179, 218 N.Y. (N.Y.S.) 161, 112 N.E. 733, 1916 N.Y. LEXIS
1056, 34 N.Y. Cr. 358, L.R.A. (n.s.) 1916F1044 (1916); People v. Plummer, 36 N.Y.2d 161, 325 N.E.2d
161, 1975 N.Y. LEXIS 1725, 365 N.Y.S.2d 842 (1975).
1056
People v. Alexander, 37 N.Y.2d 202, 204, 333 N.E.2d 157, 1975 N.Y. LEXIS 1949, 371 N.Y.S.2d
876 (1975); People v. Butterly, 25 N.Y.2d 159, 162-163, 250 N.E.2d 340, 1969 N.Y. LEXIS 1107, 303
N.Y.S.2d 57 (1969).
224
225
Consciousness of guilt evidence has consistently been viewed as weak because the
1057
connection between the conduct and a guilty mind often is tenuous. Even innocent persons, fearing
1058
wrongful conviction, may flee or lie to extricate themselves from situations that look damning
Even equivocal consciousness-of-guilt evidence may be admissible so long as it is relevant,
meaning that it has a tendency to establish the fact sought to be proved--that defendant was aware of guilt.
1059
If the conduct does not tend to establish an awareness of guilt, it fails to meet the threshold
for admissibility. 1060
1057
see, People v Yazum, 13 NY2d, at 304, supra; People v Leyra, 1 NY2d, at 209, supra
1058
1059
1060
People v. Bennett, 79 N.Y.2d 464; 593 N.E.2d 279; 1992 N.Y. LEXIS 1307; 583 N.Y.S.2d 825 (1992)
(defendant's impersonation of a State Trooper to obtain complainant's DMV records was not admissibility,
since it is a common part of the defense process to investigate the background of adverse witnesses for
potential impeachment material. Such efforts alone would generally not constitute a consciousness of
guilt.)
225
226
CHAPTER 13 EXCITED UTTERANCES
13.1. INTRODUCTION
Res gestae refers to verbal acts, forming part of the transaction itself.
Generally, today the term “res gestae” is considered to encompass the following different
conceptual exceptions to the hearsay rule: (1) excited utterances; (2) present sense impressions; (3)
declarations of present bodily condition, and (4) declarations of present mental state and emotions. 1061
The Court of Appeals favors the terms “excited utterance,” to focus on the subjective
condition of the declarant rather than the time interval from the event, and "present sense impression", to
focus on the spontaneous description of unfolding events. 1062
"Excited utterances" are the product of the declarant's exposure to a startling or upsetting
event that is sufficiently powerful to render the observer's normal reflective processes inoperative. 1063
"Present sense impression" declarations, in contrast, are descriptions of events made by a
person who is perceiving the event as it is unfolding. They are deemed reliable not because of the declarant's
excited mental state but rather because the contemporaneity of the communication minimizes the
1064
opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory. The Court
1065
of Appeals has added a requirement of corroboration to bolster these assurances of reliability.
1061
See McCormick, Evidence (2d ed.), § 288.
1062
People v. Vasquez, 88 N.Y.2d 561; 670 N.E.2d 1328; 1996 N.Y. LEXIS 1516; 647 N.Y.S.2d 697
(1996); see People v. Brown, 70 N.Y.2d 513, 522 N.Y.S.2d 837, 517 N.E.2d 515, 1987 N.Y. LEXIS 18962
(1987).
1063
(1996).
1064
(1996).
1065
(1996).
226
227
While the key components of "excited utterances" are their spontaneity and the declarant's
excited mental state, the key components of "present sense impressions" are contemporaneity and
1066
corroboration.
13.2. EXCITED UTTERANCE
The basis of this exception to the hearsay rule is that the spontaneity of declarations gives
more assurance of veracity than is true of the usual hearsay declaration. 1067
“This general principle is based on the experience that, under certain circumstances of
physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and
removes their control . . . Since this utterance is made under the immediate and uncontrolled domination of
the senses, and during the brief period when considerations of self-interest could not have been brought fully
to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking
the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the
facts just observed by him; and may therefore be received as testimony to those facts. The ordinary situation
presenting these conditions is an affray or a railroad accident. But the principle itself is a broad one.” 1068
What the law distrusts is not after speech, but afterthought. It is indispensable that the
declarations appear to be spontaneous, and it is for this reason alone that the courts have stressed the time
interval between the declaration and the event. 1069
The present rule permitting the admission of excited utterances has evolved from earlier
cases which stressed that the statements were made at the same time as or nearly contemporaneously with
the event. 1070
1066
(1996).
1067
People v. Marks, 6 N.Y.2d 67, 188 N.Y.S.2d 465, 160 N.E.2d 26, 1959 N.Y. LEXIS 1344 (1959).
1068
6 Wigmore, Evidence (3d ed.), § 1747, subd. [I].
1069
People v. Marks, 6 N.Y.2d 67, 160 N.E.2d 26, 188 N.Y.S.2d 465 (1959).
227
228
The Court of Appeals has avoided this analysis in favor of admitting such declarations
because as impulsive and unreflecting responses to the injury or other startling event, they possess a high
degree of trustworthiness. 1071
Thus, in People v. Caviness the court abandoned the rule that an excited utterance of a
nonparticipant in the event had to be excluded because it was not a part of the event itself.
13.2.1. Time Interval
The court has continued to refuse to adopt an arbitrary limitation on the permissible period
between the event and the excited utterance. 1072
The time for reflection is not measured in minutes or seconds, it is measured by facts. The
time must not be long enough to make a choice, as the result of thought and reflection, and to act upon the
choice. It is obviously impossible to quantify this period by the ordinary method of time measurement. 1073
Being struck by a bus, for instance, has been held to be a startling event which rendered a
statement shortly thereafter admissible under the excited utterance exception. 1074
1070
People v. Brown, 70 N.Y.2d 513, 522 N.Y.S.2d 837, 517 N.E.2d 515, 1987 N.Y. LEXIS 18962
(1987); Waldele v. New York Cent. & Hudson River R.R. Co., 95 N.Y. 274, 286 (1884) (sign language
communications by a deaf mute made thirty minutes after being struck and fatally injured by a railroad
train were excluded because “declarations made after the accident had happened, after the train had
passed from sight, and the whole transaction had terminated were no part of that res gestae, had no
connection with it, and were purely narrative”); People v. Sostre, 51 N.Y.2d 958, 435 N.Y.S.2d 702 (1980)
(five minutes gave defendant adequate opportunity to reflect upon his situation).
1071
(1996); People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496, 1975 N.Y. LEXIS 2346
(1975).
1072
People v. Cotto, 92 N.Y.2d 68; 699 N.E.2d 394; 1998 N.Y. LEXIS 1838; 677 N.Y.S.2d 35 (1998);
People v. Brooks, 71 N.Y.2d 877, 527 N.Y.S.2d 753, 522 N.E.2d 1051, 1988 N.Y. LEXIS 204 (1988) (two-
to-two and one half-hour lapse); People v. Brown, 70 N.Y.2d 513, 518 N.Y.S.2d 837, 517 N.E.2d 515,
1987 N.Y. LEXIS 18962 (1987); (thirty minutes).
1073
People v. Marks, 6 N.Y.2d 67, 160 N.E.2d 26, 188 N.Y.S.2d 465 (1959), citing People v. Gilbert, 199 N.Y.
10, 24, 92 N.E. 85 (1910) (concerning what constitutes premeditation and deliberation).
228
229
It is established that statements made by a participant while he is under the stress of nervous
excitement resulting from an injury or other startling event, while his reflective powers are stilled, and during
the brief period when considerations of self-interest could not have been brought fully to bear by reasoned
reflection and deliberation are admissible as excited utterances. 1075
They are admitted because, as the impulsive and unreflecting responses of the declarant to
the injury or other startling event, they possess a high degree of trustworthiness. 1076
Whether a declaration conforms to the spontaneity requirements of the rule is a preliminary
question to be determined by the trial judge, not the jury. 1077
There is no definite or fixed limit of time within which the declaration must have been made.
Each case depends upon its own circumstances. 1078
The test is whether the utterance was made before there has been time to contrive and
misrepresent, i.e., while the nervous excitement still dominates and the reflective powers are still in abeyance.
1079
The admissibility of an excited utterance is entrusted in the first instance to the trial court.
In making that determination, the court must ascertain whether, at the time the utterance
was made, the declarant was under the stress of excitement caused by an external event sufficient to still his
1074
Flynn v. Manhattan & Bronx Surface Transit Operating Authority, 61 N.Y.2d 769, 473 N.Y.S.2d 154,
461 N.E.2d 291, 1984 N.Y. LEXIS 4055 (1984) (statement by plaintiff that “the bus, it hit me. I think I
broke my arm”).
1075
People v. Fratello, 92 N.Y.2d 565; 706 N.E.2d 1173; 1998 N.Y. LEXIS 4048; 684 N.Y.S.2d 149
(1998); People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496, 1975 N.Y. LEXIS 2346
(1975); People v. Marks, 6 N.Y.2d 67, 188 N.Y.S.2d 465, 160 N.E.2d 26, 1959 N.Y. LEXIS 1344 (1959);
People v. Del Vermo, 192 N.Y. 470, 483, 85 N.E. 690 (1908); Schner v. Simpson, 286 A.D. 716, 719, 146
N.Y.S.2d 369 (1st Dep’t 1955).
1076
People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496, 1975 N.Y. LEXIS 2346
(1975).
1077
(1975).
1078
People v. Brown, 70 N.Y.2d 513, 522 N.Y.S.2d 837, 517 N.E.2d 515, 1987 N.Y. LEXIS 18962 (1987).
1079
229
230
reflective faculties, thereby preventing opportunity for deliberation that might lead the declarant to be
untruthful.
The court must assess not only the nature of the startling event and the amount of time that
has elapsed between the occurrence and the statement but also the activities of the declarant in the interim, to
ascertain if there was significant opportunity to deviate from the truth.
Above all, the decisive factor is whether the surrounding circumstances reasonably justify the
conclusion that the remarks were not made under the impetus of studied reflection. 1080
Where thirty minutes passed before the victim was interviewed by a police officer, there is
nothing in the record suggesting that the victim was any less under the influence of the stress and excitement
of being shot three times and fatally wounded than he was immediately after the shooting. The pain was
unabating, and his condition was steadily deteriorating. He was, according to his mother, “moaning” and
speaking in a very low voice while en route to the hospital. He said to his mother, “Ma, I’m getting weak,” and
he appeared to her to be dying. Upon his arrival at the hospital, the victim was comatose and determined to be
suffering from hemorrhagic shock. He was resuscitated immediately prior to the brief period of questioning,
which was interrupted by the physician to rush the victim into surgery. Under these circumstances, there is
no basis for disturbing the trial court’s conclusion that “the remarks were not made under the impetus of
studied reflection,” other than some arbitrary limitation on the permissible period between the event and the
excited utterance. 1081
The psychological and emotional effect of the sudden event may persist and continue to
operate with undiminished force for a period of time thereafter. How long such effect may persist depends on
1080
People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45 (1979).
1081
230
231
many factors, including the nature of the initial trauma or shock and the subsequent activities of the
declarant. 1082
The time interval is a significant factor in determining whether the effect of the event has
continued or dissipated. The lapse of thirty minutes is not, as a matter of law, too long. 1083
In People v. Vasquez, 1084 the Court held that defendant's statements to a 911 operator were
inadmissible, although the time between the incident and the making of the disputed statements was brief.
The defendant had had time to run to his mother, give her the gun and then exchange the scene of the incident
for the familiar surroundings of his own home before making the 911 call. This gave the defendant opportunity
to reflect which, joined with his powerful motive to exculpate himself when he reported the shooting to
police, rendered the statements unreliable.
The bias of an excited utterance declarant functions as a basis for impeachment of the
declaration, thus pertinent to the weight, rather than admissibility of the declaration. 1085
13.2.2. Response to Question
The fact that an utterance is in response to an inquiry is “merely one factor bearing on
spontaneity” within the meaning of the excited utterance rule. 1086
The nature, extent, and purpose of the questions and the identity, position, and manner of
the questioner are additional factors to be considered in determining whether the statements were made
under the continuing influence of the stress and excitement generated by the initial event. 1087
1082
1083
1084
(1996).
1085
People v. Fratello, 92 N.Y.2d 565; 706 N.E.2d 1173; 1998 N.Y. LEXIS 4048; 684 N.Y.S.2d 149
(1998).
1086
1087
231
232
Unless the questioning causes some interruption of or moderation in declarant’s continued
stress and excitement from the shocking event, it does not, standing alone, any more than do other specific
circumstances, defeat the admissibility of the responses as excited utterances. 1088
Where the defendant made the phone call to 911 and the initial statement that "somebody's
been shot" without prompting, but the subsequent critical statements were made after defendant had
accurately and coherently answered a series of identifying questions about himself and the victim, the Court
considered the questioning did interrupt the shock of the event, and joined with the powerful motive of the
defendant to exculpate himself, rendered the statements to the 911 operator inadmissible. 1089
13.2.3. Focus on Condition of the Declarant
The focus of the inquiry remains the same: the physical, psychological, and emotional
condition of the declarant, and whether it can reasonably be concluded “that the remarks were not made
under the impetus of studied reflection.” 1090
The test is whether the declarant was so influenced by the excitement and shock of the event
that it is probable that he or she spoke impulsively and without reflection, rather than reflectively and with
deliberation. 1091
The court must ascertain whether, at the time the utterance was made, the declarant was
under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby
preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must
assess not only the nature of the startling event and the amount of time that has elapsed between the
1088
1089
(1996).
1090
1091
(1975).
232
233
occurrence and the statement but also the activities of the declarant in the interim, to ascertain if there was
significant opportunity to deviate from the truth.
Above all, the decisive factor is whether the surrounding circumstances reasonably justify the
conclusion that the remarks were not made under the impetus of studied reflection. 1092
13.2.4. Bystander’s Statement
The unexpected exciting event may just as effectively produce a natural and spontaneous
declaration by a bystander as by a participant. A statement by a bystander may be admitted as a excited
utterance. 1093
13.2.5. Negligence Cases
In older negligence cases, declarations were often excluded. 1094 The same principles of
course apply.
For the statement of an agent to be admissible against a principal as part of the res gestae, the
declarations of the agent must be contemporaneous with the event in issue, made in and as a part of the
business entrusted to the agent, and calculated to unfold its nature and characterize its action so that the acts
and the declarations combine to form one transaction. 1095
1092
1093
(1975) (considering declarant’s proximity to the occurrence, opportunity to observe, professed shock, and
immediacy of the utterance following the event).
1094
Greener v. General Elec. Co., 209 N.Y. 135, 102 N.E. 527 (1913); Martin v. New York, N.H. & H.R.
Co., 103 N.Y. 626, 9 N.E. 505 (1886); Waldele v. New York Cent. & Hudson River R.R. Co., 95 N.Y. 274
(1884); Schoenfeld v. Long Is. R.R. Co., 277 A.D. 780, 97 N.Y.S.2d 271 (1950); Handel v. New York R.T.
Corp., 252 A.D. 142, 297 N.Y.S. 216 (2d Dep’t 1937), aff’d, 277 N.Y. 548, 13 N.E. 2d 468 (1938); But see
Swensson v. New York, Albany Despatch Co., 309 N.Y. 497, 131 N.E.2d 902, 1956 N.Y. LEXIS 1066
(1956) (spontaneous declaration admitted).
1095
Loschiavo v. Port Authority of New York & New Jersey, 86 A.D.2d 624, 446
N.Y.S.2d 358, 1982 N.Y. App. Div. LEXIS 15166 (2d Dep't 1982) Luby v. Hudson River R. Co., 17 N.Y.
131 (1858); Golden v. Horn & Hardart Co., 244 A.D. 92, 278 N.Y.S. 385 (1st Dep’t 1935), aff’d, 270 N.Y.
233
234
When an employee of an airline stated to a passenger after the passenger tripped over raised
carpet that other people had done that too, the statement was inadmissible against the employer as either an
admission or as part of the res gestae. 1096
13.3. PRESENT SENSE IMPRESSION
Spontaneous descriptions of events made substantially contemporaneously with the

1097
observations are admissible if the descriptions are sufficiently corroborated by other evidence.
Such statements may be admitted even though the declarant is not a participant in the events
and is an unidentified bystander. 1098
The theory of the exception is that a statement describing an event when or immediately
after it occurs is reliable because the contemporaneity of the event observed and the hearsay statement
describing it leaves no time for reflection. Thus, the likelihood of deliberate misrepresentation or faulty
1099
recollection is eliminated. Moreover, such statements are often made under circumstances where some
witness has an opportunity to observe and verify all or part of the event described
544, 200 N.E. 309 (1936); Vadney v. United Traction Co., 188 A.D. 365, 177 N.Y.S. 114 (3d Dep’t 1919);
Molino v. City of New York, 195 A.D. 496, 186 N.Y.S. 742 (1st Dep’t 1921).
1096
Loschiavo v. Port Auth., 86 A.D.2d 624, 446 N.Y.S.2d 358, 1982 N.Y. App. Div. LEXIS 15166 (1982).
1097
People v. Brown 80 N.Y.2d 729; 610 N.E.2d 369; 1993 N.Y. LEXIS 91; 594 N.Y.S.2d 696 (1993);
People v. Hutchinson, 681 N.Y.S.2d 42; 1998 N.Y. App. Div. LEXIS 11769 (2d Dep't 1998) (911
audiotape).
1098
People v. Brown 80 N.Y.2d 729; 610 N.E.2d 369; 1993 N.Y. LEXIS 91; 594 N.Y.S.2d 696 (1993)
(recordings of two 911 transmissions describing the events in progress were received in evidence, even
though the caller was not identified, and did not testify).
1099
People v. Brown, 80 N.Y.2d 729; 610 N.E.2d 369; 1993 N.Y. LEXIS 91; 594 N.Y.S.2d 696 (1993); 4
Weinstein and Berger, Weinstein's Evidence, P 803 [1] [01]).
234
235
13.3.1. Time Interval
The description and the event need not be precisely simultaneous, since it is virtually
impossible to describe a rapidly unfolding series of events without some delay between the occurrence and the
1100
observer's utterance.
The basic need though is that the communication reflects a present sense impression rather
than a recalled or recast description of events that were observed in the recent past. Without satisfaction of
this requirement, the essential assurance of reliability--the absence of time for reflection and the reduced
likelihood of faulty recollection--is negated and there is then nothing to distinguish the declaration from any
other postevent out-of-court statement that is offered for the truth of its contents. 1101
There must be evidence that the statements sought to be admitted were made spontaneously
1102
and contemporaneously with the events described.
Statements to the 911 operator made after an event is over, and after leaving the scene, are not
recitations of an observer's present sense impressions. 1103
13.3.2. Corroboration Requirement
There must be some independent verification of the declarant's descriptions of the unfolding
1104
events. The corroboration element cannot be established merely by showing that the declarant's
1105
statements were unprompted and were made at or about the time of the reported event.
1100
(1996).
1101
(1996).
1102
(1996) (statement by defendant in call to 911, after he had run from the crime scene and the event was
over, were not made contemporaneously or even substantially contemporaneously); People v. Brown, 70
N.Y.2d 513, 518 (1987).
1103
(1996).
235
236
What corroboration is sufficient will depend on the particular circumstances of each case
and must be left largely to the sound discretion of the trial court. 1106 But before present sense impression
testimony is received there must be some evidence in addition to the statements themselves to assure the
court that the statements sought to be admitted were made spontaneously and contemporaneously with the
events described.
The extent to which the content of the declaration must be corroborated by extrinsic proof is
1107
dependent on the particular circumstances of the individual case. In all cases the critical inquiry is
whether the corroboration offered to support admission of the statement truly serves to support its substance
1108
and content.
13.4. PRESENT BODILY CONDITION
At common law, any hearsay statement concerning presently existing pain, suffering, and
physical condition was admissible. 1109
In New York, the scope of the exception, in those cases where the declarant is alive at the
time of trial, is limited to statements made to a physician for the purpose of obtaining advice or treatment. 1110
1104
(1996).
1105
(1996).
1106
People v. Brown 80 N.Y.2d 729; 610 N.E.2d 369; 1993 N.Y. LEXIS 91; 594 N.Y.S.2d 696 (1993) (the
testimony of the police officers who arrived at the restaurant shortly after the first call and who
apprehended two suspects fitting the description given by the 911 caller "Henry" was sufficient
corroboration. The police observed what the 911 caller had described only moments before. )
1107
(1996) (witnesses description of events in 911 call did not sufficiently coincide with corroborating
witnesses description of events, so uncorroborated and inadmissible).
1108
(1996).
1109
Werely v. Persons, 28 N.Y. 344 (1863).
1110
Jones v. Nat. Biscuit Co., 29 A.D.2d 1033, 289 N.Y.S.2d 588 (3d Dep’t 1968); Orlando v. Syracuse
Rapid Transit Ry. Co., 109 A.D. 356, 95 N.Y.S. 898 (4th Dep’t 1905); People v. Nino, 149 N.Y. 317, 43
N.E. 853 (1896); Reed v. N.Y. Central R. Co., 45 N.Y. 578 (1871).
236
237
Statements made to a physician conducting a medical examination as an expert witness for
one of the parties are not admissible. 1111
If medical aid has not been sought from the person to whom the declaration is made, the
declarant must be dead or otherwise unavailable to testify for the exception to apply. 1112
Testimony by a plaintiff that he experienced pain when weather was humid or it was raining
was admissible, since the plaintiff could testify as to his own past or present condition. 1113
Testimony by a plaintiff that he experienced pain when weather was humid or it was raining
was not sufficient to establish either permanency of injury or possibility of future pain. 1114
13.5. EXCLAMATIONS OF PAIN
Screams, groaning, grimaces, flinching, and other involuntary expressions, exclamations, and
manifestations of pain and suffering are not inadmissible as hearsay as they constitute circumstantial
evidence. 1115
Said circumstantial evidence need not occur at the time or shortly after the injury and need
not have been made during a doctor’s examination. 1116
13.6. DECLARATION OF PAST PAIN
As a general rule, because of the lack of spontaneity, declarations of past pain or past physical
condition are inadmissible for the purpose of proving the truth of the assertions therein. 1117
1111
Lessin v. Direct Del Service, 10 A.D.2d 624, 196 N.Y.S.2d 751 (1st Dep’t 1960); Kienninger v.
Interusban St. Ry. Co., 113 N.Y.S. 96 (Sup. Ct. 1908); People v. Hawkins, 109 N.Y. 408, 17 N.E. 371
(1888).
1112
Tromblee v. N.A. Accident Ins. Co., 173 A.D. 174, 158 N.Y.S. 1014 (3d Dep’t 1916), aff’d, 226 N.Y.
615 (1919).
1113
Zegman v. State, 99 Misc.2d 473, 416 N.Y.S.2d 505 (Ct. Cl. 1979).
1114
Zegman v. State. 99 Misc.2d 473, 416 N.Y.S.2d 505 (Ct. Cl. 1979).
1115
Link v. Sheldon, 18 N.Y.S. 815 (Sup. Ct. 1892), aff’d, 136 N.Y. 1, 32 N.E. 696 (1892).
237
238
Recent case law has held, however, that a physician may testify to the patient’s medical
history that he had obtained from the patient before treatment. 1118
13.7. DECLARATIONS OF INSANITY
In criminal proceedings where an insanity defense is an issue, consideration must be given as
to whether defendant contends he was insane at the time of trial or from some period of time before the crime
until the time of trial.
With regard to an insanity defense, as a general rule, declarations of a defendant to a medical
expert concerning past transactions and events are inadmissible as said evidence is not competent to
determine the declarant’s mental condition at some time prior to the examination. 1119
1116
Jones v. Niagara Junction Ry. Co., 63 A.D. 607, 71 N.Y.S. 647 (4th Dep’t 1901); West v. Manhattan
Ry. Co., 11 N.Y.S. 519 (1888), aff’d, 121 N.Y. 654, 24 N.E. 1092 (1888).
1117
Davidson v. Cornell, 132 N.Y. 228, 30 N.E. 573 (1892); Lessin v. Direct Del. Serv., 10 A.D.2d 624,
196 N.Y.S.2d 751 (1st Dep’t 1960).
1118
Kruly v. Eastman Kodak Co., 77 A.D.2d 806, 430 N.Y.S.2d 756 (4th Dep’t Erie Co. 1980).
1119
People v. Hawkins, 109 N.Y. 408, 17 N.E. 371 (1888); People v. Strait, 148 N.Y. 566, 42 N.E. 1045
(1896).
238
239
Statements to an expert by a defendant who purportedly was insane for a period of time
before the crime until the time of trial are admissible and competent evidence by which said expert could give,
during trial, an opinion as to declarant’s sanity or insanity at the time of the crime. 1120
1120
People v. Nino, 149 N.Y. 317, 43 N.E. 853 (1896) (defense asserted that defendant began to suffer
insane delusions about his victim-wife four months before her murder).
239
240
CHAPTER 14 DECLARATIONS AGAINST INTEREST
14.1. GENERALLY
A declaration that is against the speaker’s interest furnishes a circumstantial probability of
trustworthiness, since it is believed a person would not knowingly make a declaration contrary to his own
pecuniary, proprietary, or penal interest unless the declaration were true. 1121
It is an assurance that the speaker is “in a truth-telling frame of mind 1122 or in a “trustworthy
condition of mind” .1123
A declaration against interest is admissible if four conditions are satisfied:
(1) The declarant is unavailable;
(2) The declaration when made was against the pecuniary, proprietary, or penal interest of
the declarant;
(3) The declarant had competent knowledge of the facts; and
(4) There was no probable motive to misrepresent the facts. 1124It must be established that
when the declarant made the statement he knew it was against his interest. 1125
There must be no motive to falsify. 1126
1121
Richardson, Evidence (10th ed.), § 256; 5 Wigmore, Evidence [Chadbourn revision, 1974], § 1467
(“The basis of the exception is the principle of experience that a statement asserting a fact distinctly
against one’s interest is unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently
sanctioned, though oath and cross-examination are wanting”).
1122
People v. Maerling, 46 N.Y.2d 289, 297, 385 N.E.2d 1245, 413 N.Y.S.2d 316 (1978).
1123
(5 Wigmore, Evidence [Chadbourn revision, 1974], § 1465); People v. Schmotzer, 87 A.D.2d 792, 449
N.Y.S.2d 717,1982 N.Y. App. Div.LEXIS 16240 (1st Dep't 1982) (Silverman, J., concurring).
1124
People v. Maerling, 46 N.Y.2d 289, 297, 385 N.E.2d 1245, 413 N.Y.S.2d 316 (1978); Secor v. Kohl,
67 A.D.2d 358, 415 N.Y.S.2d 434, 1979 N.Y. App. Div. LEXIS 10119 (2d Dep't 1979).
1125
People v. Maerling, 46 N.Y.2d 289, 297, 385 N.E.2d 1245, 413 N.Y.S.2d 316 (1978) Cover v. Cohen,
61 N.Y.S.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984) (declaration by defendant to police officer
after accident that “his accelerator stuck on him” was inadmissible as a declaration against interest, since
it was exculpatory rather than inculpatory).
1126
Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984).
240
241
Unlike an admission, which may be used only against the party who made it or against his
privities in interest, a declaration against interest may be introduced in evidence by or against anyone. 1127
14.2. DECLARATIONS AGAINST PENAL INTEREST
The hearsay exception for declaration against penal interest was first accepted in New York
in 1970, when the Court of Appeals held that a declaration against penal interest, without any concomitant
risk of pecuniary or proprietary loss, was admissible. 1128
Since that time, the court has enumerated several criteria which must be demonstrated by
the party offering the declaration before it may be introduced.
The four requirements for admission of hearsay evidence as a declaration against penal
interest are:
(1) The declarant must be unavailable to give testimony, by reason of absence from the
jurisdiction, refusal to testify on constitutional grounds, or death;
(2) The declarant must have been aware at the time of its making that the statement was
contrary to his penal interest;
(3) The declarant must have competent knowledge of the underlying facts; and
(4) There must be sufficient competent evidence independent of the declaration to assure its
trustworthiness and reliability. 1129
Such declarations may be either exculpatory or inculpatory. Inculpatory declarations of
witnesses unavailable for cross-examination are subject to even more exacting scrutiny than others. 1130
1127
Secor v. Kohl, 67 A.D.2d 358, 415 N.Y.S.2d 434, 1979 N.Y. App. Div. LEXIS 10119 (2d Dep't 1979).
1128
People v. Brown, 26 N.Y.2d 88, 257 N.E.2d 16, 308 N.Y.S.2d 825, 43 A.L.R.3d 1407 (1970).
1129
People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999); People v Thomas, 68 N.Y.2d 194, 507
N.Y.S.2d 973, 500 N.E.2d 293, cert denied 480 U.S. 948, 94 L. Ed. 2d 794, 1987 U.S. LEXIS 1450, 107
S. Ct. 1609 (1987); People v. Shortridge, 65 N.Y.2d 309, 480 N.E.2d 1080, 491 N.Y.S.2d 298 (1985);
People v. Settles, 46 N.Y.2d 154, 385 N.E.2d 612, 412 N.Y.S.2d 874 (1978).
1130
People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986).
241
242
In applying the exacting scrutiny necessary when hearsay statements are used against a
defendant, procedures must mitigate any prejudice to the defendant. 1131
The interest compromised must be of sufficient magnitude or consequence to the declarant
essentially to rule out any motive to falsify. 1132 The crucial inquiry focuses on the intrinsic trustworthiness of
the statement as confirmed by competent evidence independent of the declaration itself. 1133
“Supportive evidence is sufficient if it establishes a reasonable possibility that the statement
might be true.” 1134
While the admissibility of declarations against penal interest is predicated upon the theory
that their reliability can generally be presumed because a person does not ordinarily reveal facts that
jeopardize his interests, that generalization must be tempered with a recognition of the limitations upon its
validity under particular circumstances. Indeed, certain considerations may be fatal to the reliability of a
declaration and thereby render the out-of-court statement inadmissible. 1135
These considerations include the declarant’s motivation, e.g., whether the statement was
designed to exculpate a loved one or inculpate an enemy. Important also is the declarant’s personality, e.g.,
whether he suffers psychological or emotional instability or whether he is a chronic or pathological liar.
1131
People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986) (conditions surrounding
statements were fully disclosed to the jury; only a portion of the plea allocution was read; the portion itself
was redacted and defendant’s name eliminated; the jury was twice instructed that the testimony was not
to be considered as evidence of defendant’s identification
1132
1133
People v. Settles, 46 N.Y.2d 154, 385 N.E.2d 612, 412 N.Y.S.2d 874 (1978); People v. Osorio, 75
N.Y.2d 80, 549 N.E.2d 1183, 550 N.Y.S.2d 612 (1989) (statement that a gun belonged to declarant’s
girlfriend, that he had obtained it from her, and that he had put it in the car, tended to shift criminal liability
from defendant to himself; he was aware at the time he made the statement in the presence of a
codefendant that any additional evidence connecting him to the weapon would be adverse to his penal
interest. the record contains independent evidence tending to suggest the trustworthiness of his
statement).
1134
People v. Settles, 46 N.Y.2d 154, 385 N.E.2d 612, 412 N.Y.S.2d 874 (1978).
1135
People v. Shortridge, 65 N.Y.2d 309, 480 N.E.2d 1080, 491 N.Y.S.2d 298 (1985) (nine months after
murder, father wrote letters and had conversations claiming responsibility for murder for which his son
was charged, and then he committed suicide; held inadmissible).
242
243
Additionally, the declarant’s spontaneity or hesitancy, promptness or tardiness in making the statement may
shed light on its authenticity. Likewise, the internal consistency and coherence of the declaration, or its lack
thereof, may reflect on its genuineness.
Most critical in some cases is the availability of supporting evidence—some proof,
independent of the declaration itself, which tends to confirm the truth of the facts asserted therein. 1136
Regardless of how self-incriminatory a particular declaration against penal interest might be,
all or any of the foregoing may affect its reliability. 1137
While these and other relevant considerations should all be weighed by the trial court in the
exercise of its sound , the presence of a strong motivation to fabricate or the absence of supporting evidence
can be sufficient to render a declaration inadmissible as a matter of law. 1138
Defendant should be allowed to prove, if possible, that compliance with the criteria for
admissibility was illusory. 1139
Within practical limitations, only the portion of the statement opposed to declarant’s
interest should be admitted. 1140
The Court of Appeals has expressly declined to adopt a per se rule requiring invariable
redaction of the name of a co-perpetrator in any declaration against penal interest. 1141
1136
People v. James, 1999 N.Y. LEXIS 1433 (1999).
1137
People v. Shortridge, 65 N.Y.2d 309, 480 N.E.2d 1080, 491 N.Y.S.2d 298 (1985).
1138
People v. Shortridge, 65 N.Y.2d 309, 480 N.E.2d 1080, 491 N.Y.S.2d 298 (1985) (father had strong
ulterior motive to exculpate his son; such an incentive, even where independent supporting evidence was
adduced, has been deemed by the Court of Appeals, without more, to be a bar to the admission of a
declaration against penal interest).
1139
1140
1141
People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999).
243
244
14.2.1. Plea Allocution
Statements contained in a plea allocution of a codefendant may be received in evidence, in
limited circumstances, as a declaration against penal interest to establish an element of the crime charged
against defendant. 1142
The linchpin of the statement against penal interest hearsay exception is whether there is a
possibility that the co-defendant was 'using' the system, rather than unburdening his conscience, in the plea
allocution.
While a plea allocution that "fingers" a co-defendant is not presumptively unrealiable, the
Court must consider carefully the context of the statement, and appreciate the policy preference for live
1143
testimony subject to cross-examination.
The People must demonstrate that in the plea allocution the declarant was aware that his
statements were contrary to his penal interest, and that there was sufficient independent evidence of the
1144
statement’s reliability.
Not all plea allocations or statements contained therein meet these criteria for admission as
declarations against penal interest. As a category, therefore, statements in plea allocutions are neither
admissible nor inadmissible as declarations against penal interest. 1145
If there is any motive to falsify the statement in the plea allocution, it cannot be used against
1146
a co-defendant.
1142
People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986) (in codefendant’s plea
allocution, he described how crimes were accomplished, including the fact that he had held the victims
while defendant snatched their chains; at trial of defendant. codefendant asserted Fifth Amendment and
refused to testify; his statements during plea allocution were admissible against defendant).
1143
People v. Blades, 93 N.Y.2d 166; 711 N.E.2d 187; 1999 N.Y. LEXIS 221 (1999).
1144
People v. Thomas, 68 N.Y.2d 194, 198–199, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986).
1145
People v. Thomas, 68 N.Y.2d 194, 198–199, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986).
1146
244
245
If a statement in the plea allocution is made with any motive to curry favor with the
prosecution for the self-interest of the defendant, the statement is not against the interest of the defendant
and is not admissible. 1147
The particular statements in plea allocations claimed to be admissible as declarations against
penal interest must be examined in the context of each case. 1148
The fourth prerequisite has been said to be the most important inquiry: whether
circumstances independent of the hearsay declaration itself are present which tend to support the assertions
made and thereby assure their trustworthiness and reliability. 1149
The following additional considerations are relevant in determining whether the plea
allocution is admissible as an admission against penal interest:
(1) The nature of the statements;
(2) Whether facts indicate a lack of reliability of those statements in the circumstances;
(3) Whether there was evidence independent of the statements that pointed to their truth;
(4) Whether the procedures followed mitigated any prejudice to defendant;
(5) Whether the testimony at the plea allocution is disserving of the declarant and directly
contrary to his penal interest;
(6) Whether the declarant sought to minimize his culpability by maximizing defendant’s or
by shifting blame to defendant;
(7) Whether there is indication from the statements or other evidence that the declarant
exaggerated his own participation for the purpose of increasing defendant’s criminal liability or had any
motive to do so; and
1147
1148
1149
People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986); People v. Settles, 46
N.Y.2d 154, 385 N.E.2d 612, 412 N.Y.S.2d 874 (1978).
245
246
(8) Whether there is any appearance of a willingness or prearrangement to assist the People
in convicting defendant. 1150
The record of conviction for a misdemeanor of reckless driving, based upon the employee’s
plea of guilty, was admissible in a negligence case as a declaration against penal interest 1151
The jury should receive a limiting instruction as to its use of the evidence. 1152
14.2.2. Grand Jury Testimony
Grand jury testimony significantly differs from a plea allocution. The circumstances
surrounding such grand jury testimony may not lend the technical and policy assurances of adversity to penal
interest and of reliability that were present in Thomas.
In People v. Morgan, 1153 the declarant before the grand jury did not face immediate or certain
conviction and sentence after testifying, but instead had entered into a cooperation agreement with the People
which referred to “potential charges” against him, and his grand jury testimony represented only the first step
in a continuing, open-ended relationship. The conditional nature of the criminal charges against him,
1150
See People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986).
1151
Secor v. Kohl, 67 A.D.2d 358, 415 N.Y.S.2d 434, 1979 N.Y. App. Div. LEXIS 10119 (2d Dep't 1979).
1152
The co-defendant's allocution was admitted in the Thomas trial with limiting instructions indicating that
the information was admitted only to establish whether more than one person was involved in the crime.
Additionally, a stipulation as to reliability issues was read to the jury about the circumstances of the co-
defendant's plea bargain -- that by pleading guilty he lost rights and incurred future risks but avoided the
substantial mandatory prison sentence that he would be subject to if convicted. In People v. Blades, 93
N.Y.2d 166; 711 N.E.2d 187; 1999 N.Y. LEXIS 221 (1999), the trial court in its jury instructions expressly
limited the use of the allocution to the issue of whether Blades acted in concert with another
1153
People v. Morgan, 76 N.Y.2d 493, 561 N.Y.S.2d 408, 562 N.E.2d 485, 1990 N.Y.LEXIS 3334 (1990)
246
247
combined with his waiver of immunity, provided maneuvering room and a motive to minimize his role in the
drug sale transactions, perhaps at the expense of others. Thus, upon his assertion of Fifth Amendment rights,
his grand jury testimony was not admissible.
The court in Morgan did not decide the question of whether grand jury testimony can ever
qualify as a declaration against penal interest.
247
248
CHAPTER 15 DYING DECLARATIONS
15.1. RATIONALE
Dying declarations have long been treated as an exception to the general rule excluding
hearsay evidence. The notion that deathbed statements have some particular trustworthiness existed long
before the hearsay rule itself gained general acceptance in the early eighteenth century. 1154
Support for the exception is now generally based on the alleged psychological effect that
awareness of impending death has on the declarant. Such knowledge is presumed to remove from the mind all
motivation and inclination to lie. 1155
15.2. JUDICIAL SKEPTICISM
The Court of Appeals regards dying declarations with a degree of skepticism. 1156
Dying declarations are dangerous because they are made with no fear of prosecution for
perjury and without the test of cross-examination, which is the best method known to bring out the full and
exact truth. 1157
Courts restrict their use to homicide prosecutions. 1158
15.3. CERTAINTY OF IMPENDING DEATH
A statement’s qualification as a dying declaration does not hinge upon the declarant actually
expressing a certainty of impending death. There is no standardized ritual spoken by all dying persons. 1159
1154
People v. Nieves, 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986).
1155
1156
1157
People v. Bartelini, 285 N.Y. 433, 440, 35 N.E.2d 29 (1941).
1158
People v. Nieves, 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986); See, e.g.. People v. Becker, 215 N.Y. 126,
145, 109 N.E. 127 (1915).
248
249
There is also no steadfast requirement that the declarant has been told by a doctor that an
imminent death was certain. 1160
Death need not occur immediately after the statements are made. 1161
All conditions must be established as having existed at the time the statement was made. 1162
If the victim thought he had even a slight hope of recovery, the statement is not admissible
under this exception. 1163
Whether the declarations were made in apprehension of death and after the declarant had
lost all hope of recovery is to be determined by the judge. 1164
The expert opinion of a physician is insufficient and inadmissible to show whether the
declarant was aware he was dying. 1165
The trial judge must determine not only from the conversation of the declarant but also from
the surrounding circumstances that there is clear proof showing the certainty of speedy death and that the
declarant had no hope of recovery. 1166
The requisite state of mind of declarant may be found from all of the circumstances
surrounding the statement sought to be admitted:
(1) Statements made by the declarant as to his condition or his expectations;
(2) Statements made by medical personnel to the declarant as to the severity of his injury;
1159
People v. Bartelini, 285 N.Y. 433, 440, 35 N.E.2d 29 (1941).
1160
People v. Falletto, 202 N.Y. 494, 96 N.E. 355 (1911).
1161
People v. Falletto, 202 N.Y. 494, 96 N.E. 355 (1911); People v. Coniglio, 79 Misc. 2d 808, 361
N.Y.S.2d 524, 1974 N.Y. Misc. LEXIS 1757 (1974)
1162
People v. Bartelini, 285 N.Y. 433, 35 N.E.2d 29 (1941).
1163
People v. Ricken, 242 A.D. 106, 273 N.Y.S. 470 (3d Dep’t 1934); People v. Arnold, 41 A.D.2d 573,
339 N.Y.S.2d 583 (3d Dep’t 1973) rev’d on other grounds, 34 N.Y.2d 548, 309 N.E.2d 875, 354 N.Y.S.2d
106 (1974).
1164
People v. Krafi, 91 Hun 474, 475, aff’d, 148 N.Y. 631 (1895).
1165
People v. Hall, 260 A.D. 421, 22 N.Y.S.2d 973 (3d Dep’t 1940); People v. Smith, 245 A.D. 69, 281
N.Y.S. 294 (3d Dep’t 1935).
249
250
(3) The nature and severity of the wound, as apparent to the declarant;
(4) Whether the person’s condition appeared to be improving or declining when the
declaration was made; and
(5) Whether any actions normally associated with an expectation of imminent death, such as
asking for last rites, disposing of property, or attempting to make arrangements for the care of family
members, were taken. 1167
15.4. IMPEACHMENT OF VICTIM
Generally, the deceased may be discredited and impeached as any other victim might be. 1168
It must be shown that the declarant, if living, would have been competent to testify as to the
statement’s contents. 1169
Inconsistent statements of declarant, however, may not be used to impeach the decedent. 1170
1166
People v. Ludkowitz, 266 N.Y. 233, 239, 194 N.E. 688 (1935); People v. Smith, 245 A.D. 69, 71, 281
N.Y.S. 294 (3d Dep’t 1935).
1167
People v. Nieves, 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986) (victim’s statements—complaining of chest
pains and stating that she did not want to die—were equivocal, disclosing more a fear of death than an
expectation of it; medical personnel never told her that she was dying, or even informed her that death
was possible; the wound was not of such nature that its severity would have been obvious to the victim;
doctor testified that at the time the victim identified the defendant, he did not think that she would die, and
the record is clear that when she spoke, her condition was improving or, at least, stabilizing; finally, she
took no steps which would reveal an expectation of death, despite having had ample opportunity to do so;
consequently, the statements were not admissible as dying declarations); Compare People v. Falletto,
202 N.Y. 494, 96 N.E. 355 (1911) (declarant bleeding and choking from knife wound to throat); People v.
Liccione, 63 A.D.2d 305, 407 N.Y.S.2d 753 (4th Dept 1978), aff’d, 50 N.Y.2d 850, 407 N.E.2d 1333, 430
N.Y.S.2d 36 (1980) (declarant bleeding profusely from multiple stab wounds and under belief that she
had also been shot).
1168
People v. Ricken, 242 A.D. 106, 273 N.Y.S. 470 (3d Dep’t 1934).
1169
People v. Liccione, 63 A.D.2d 305, 407 N.Y.S.2d 753 (4th Dep’t 1978), aff’d, 50 N.Y.2d 850, 407
N.E.2d 1333, 430 N.Y.S.2d 36 (1980).
1170
Maine v. People, 9 Hun. 113 (1876).
250
251
15.5. FORM OF DECLARATION
A dying declaration need not be words. An act such as nodding or pointing may constitute a
declaration. 1171
The statement need not be oral; it may be written. The declaration may be sworn or taken as
a deposition. 1172
Printed forms are disfavored with the courts. 1173
A dying declaration based upon words must consist of known facts. The declarant’s
suspicions, opinions, or conjecture is inadmissible. 1174
The declaration, whether by words or by acts, is limited to the identity of the perpetrator of
the homicide and circumstances pertaining to the alleged crime. 1175
15.6. JURY INSTRUCTIONS
It has long been the rule in this state that dying declarations are not of equal weight to in-
court testimony. 1176
Upon request, the jury must be so charged. 1177
1171
People v. Madas, 201 N.Y. 349, 94 N.E. 857 (1911).
1172
People v. Weiss, 147 Misc. 595, 261 N.Y.S. 646 (N.Y. Mag. Ct. 1932).
1173
People v. Kane, 213 N.Y. 260, 107 N.E. 655 (1915); People v. Sarzano, 212 N.Y. 231, 106 N.E. 87
(1914).
1174
People v. Shaw, 63 N.Y. 36 (1875); People v. Haber, 221 A.D. 150, 223 N.Y.S. 133 (4th Dep’t 1927).
1175
Brotherton v. People, 75 N.Y. 159 (1878); People v. Smith, 172 N.Y. 210, 64 N.E. 814 (1902);
People v. Coniglio, 79 Misc. 2d 808, 361 N.Y.S.2d 524, 1974 N.Y. Misc. LEXIS 1757 (1974)
1176
People v. Kraft, 148 N.Y. 631, 634 (1895).
251
252
1177
People v. Mleczko, 298 N.Y. 153, 161, 81 N.E.2d 65 (1948); People v. Bartelini, 285 N.Y. 433, 442,
35 N.E.2d 29 (1941).
252
253
254
CHAPTER 16 FORMER TESTIMONY
16.1. WHEN ADMISSIBLE
Testimony given during a former proceeding or trial is admissible in a subsequent trial if
certain conditions are met.
The testimony must have been given under oath and subject to cross-examination during the
earlier proceeding. 1178
The former testimony is to be from a witness unavailable during the subsequent proceeding
or trial. 1179
An important element to be established is that the party against whom the prior testimony is
proffered or a person in privity with him was a party to the prior proceeding or trial. 1180
Said testimony may be used in the later trial or proceeding either for or against the party for
whom the witness first testified. 1181
The former trial or proceeding need not have ended in judgment or verdict. 1182
The statements may have been made in any prior trial where the witness gave testimony. The
proceeding need not have been immediately before the one in which the testimony of the unavailable witness
is sought to be admitted. 1183
The subject matter of the two proceedings must be substantially the same, so as to make it
probable that the party against whom the testimony is offered, during the subsequent proceeding, had an
opportunity for cross-examination as to the facts during the earlier hearing. 1184
1178
People v. Corley, 77 A.D.2d 835, 431 N.Y.S.2d 21 (1st Dep’t Bronx Co. 1980).
1179
1180
Healy v. Rennert, 9 N.Y.2d 202, 173 N.E.2d 777, 213 N.Y.S.2d 44 (1961).
1181
1182
People v. Hines, 284 N.Y. 93, 29 N.E.2d 483 (1940); Taft v. Litte, 178 N.Y. 127, 70 N.E. 211 (1904).
254
255
It is not necessary, however, that there be identical causes of action in the two proceedings.
1185
Evidence from a criminal trial may be admissible in a later civil proceeding. 1186
Testimony from a lunacy proceeding may be admitted in subsequent probate proceeding. 1187
The earlier testimony is admissible in both criminal and civil proceedings pursuant to statute.
16.1.1. Statute
New York Civil Practice Law and Rules 4517. Prior testimony by unavailable
witness.
In a civil action, if a witness’ testimony is not available because of privilege,

death, physical or mental illness, absence beyond the jurisdiction of the
court to compel appearance by its process or absence because the proponent
of his statement does not know and with diligence has been unable to
ascertain his whereabouts, or because he is incompetent to testify by virtue
of section 4519, his testimony, taken or introduced in evidence at a former
trial, together with all exhibits and documents introduced in connection
with it, may be introduced in evidence by any party upon any trial of the
same subject-matter in the same or another action between the same parties
or their representatives, subject to any objection to admissibility other than
hearsay. Such testimony may not be used if the witness’ unavailability was
procured by, or through the culpable neglect or wrongdoing of, the
proponent of his statement. The original stenographic notes of testimony
taken by a stenographer who has since died or become incompetent may be
read in evidence by any person whose competency to read them accurately
is established to the satisfaction of the court.
16.1.2. Type of Prior Proceeding
The key to the admissibility of former testimony during a subsequent civil proceeding or trial
as an exception to the hearsay rule is that said testimony was given under oath and subject to cross-
examination. 1188
1183
Koehler v. Schneider, 10 N.Y.S. 101 (1890).
1184
Profitos v. Comera, 94 Misc. 334, 158 N.Y.S. 369 (S. Ct. 1916).
1185
In re Haney’s Will, 14 A.D.2d 121, 217 N.Y.S.2d 324 (4th Dep’t 1961); Profitos v. Comera, 94 Misc.
334, 158 N.Y.S. 369 (2d Dep’t 1916).
255
256
Testimony, transcribed and taken under oath before a city comptroller, may be admissible in
a civil proceeding, provided it was subject to cross-examination. 1189
Testimony before an administrative tribunal, such as the Motor Vehicle Bureau, may be
admitted in a later civil action based upon the same event, occurrence, or action. 1190
The use of former testimony in criminal proceedings is limited to that taken only in criminal
judicial proceedings specified by statute. 1191
Testimony of an unavailable witness given during a preliminary hearing may be admissible if
the other prerequisites are met. 1192
It has been held that because a preliminary hearing on a felony complaint is limited in scope,
depriving defendant of the opportunity to conduct a full and complete cross-examination, this type of former
testimony is inadmissible. 1193
16.1.3. Grand Jury Testimony
An unavailable witness’s grand jury testimony generally is inadmissible because of the lack of
opportunity for cross-examination. 1194
If, in a Sirois hearing, the People prove by clear and convincing evidence that the defendant's
misconduct procured that witness's unavailability, the grand jury testimony may be admitted. 1195
1186
Healy v. Rennert, 9 N.Y.2d 202, 173 N.E.2d 777, 213 N.Y.S.2d 44 (1961).
1187
In re White’s Will, 2 N.Y.2d 309, 141 N.E.2d 416, 70 A.L.R.2d 484, 160 N.Y.S.2d 841 (1957).
1188
Deering v. Schreyer, 88 A.D. 457, 85 N.Y.S. 275 (1st Dep’t 1903).
1189
Fleury v. Edwards, 14 N.Y.2d 334, 200 N.E.2d 550, 251 N.Y.S.2d 647 (1964); Rothman v. City of
New York, 273 A.D. 780, 75 N.Y.S.2d 151 (2d Dep’t 1947).
1190
Fleury v. Edwards, 14 N.Y.2d 334, 200 N.E.2d 550, 251 N.Y.S.2d 647 (1964).
1191
N.Y. Crim. Proc. § 670.10;People v. Harding, 37 N.Y.2d 130, 332 N.E.2d 354, 371 N.Y.S.2d 493
(1975).
1192
People v. Arroyo, 54 N.Y.2d 567, 431 N.E.2d 271, 446 N.Y.S.2d 910 (1982), cert. denied, 456 U.S.
979, 102 S. Ct. 2248, 72 L.Ed.2d 855 (1982); People v. Corley, 77 A.D.2d 835, 431 N.Y.S.2d 21 (1st
Dep’t 1980).
1193
People v. Reed, 98 Misc.2d 488, 414 N.Y.S.2d 89 (S. Ct. 1979).
1194
People v. Johnson, 93 N.Y.2d 254; 711 N.E.2d 967; 1999 N.Y. LEXIS 813; 689 N.Y.S.2d 689 (1999).
256
257
16.1.4. Deposition Testimony
Deposition testimony may be evidence admissible under this hearsay exception, even if given
in connection with another proceeding. 1196
Other statutory provisions, however, generally control the admissibility of deposition
testimony in a trial or proceeding. 1197
16.1.5. Right to Cross-Examine
The opportunity or right to cross-examine the witness during the former proceeding is an
indispensable prerequisite to the admissibility of the earlier testimony in a subsequent trial. 1198
The right to cross-examine pertains to the opportunity for such examination by the party or
his counsel. The fact that a party is not represented by counsel is not a violation of the right of cross-
examination. 1199
If the party was deprived of the opportunity to obtain counsel, however, there has also been a
denial of the opportunity to cross-examine. 1200
The motive or incentive for cross-examination by the party against whom the former
testimony is proffered need not be the same on the two proceedings. 1201
Failure to exercise one’s right or opportunity to cross-examine will not bar the admission of
former testimony. 1202
1195
See Witness Tampering, infra.
1196
Boschi v. City of New York, 187 Misc. 875, 65 N.Y.S.2d 425 (1946); Overseas Nat. Airways, Inc. v.
General Elec. Co., 119 Misc.2d 72, 462 N.Y.S.2d 984 (Queens Co. 1983); Rothman v. City of New York,
273 A.D. 780, 75 N.Y.S.2d 151 (2d Dep’t 1947).
1197
CPLR 3117
1198
People v. Summons, 36 N.Y.2d 126, 325 N.E.2d 139, 365 N.Y.S.2d 812 (1975); Guber v. State, 31
A.D.2d 555, 294 N.Y.S.2d 468 (3d Dep’t 1968).f
1199
People v. Gilhooley, 108 A.D. 234, 95 N.Y.S. 36 (1st Dep’t 1905), aff’d, 187 N.Y. 551, 80 N.E. 1116
(1907).
1200
People v. Sperduto, 221 A.D. 577, 224 N.Y.S. 529 (1st Dep’t 1927).
1201
In re White’s Will, 2 N.Y.2d 309, 141 N.E.2d 416, 160 N.Y.S.2d 841, 70 A.L.R.2d 484 (1957).
257
258
16.1.6. Failure to Object at Prior Proceeding
Although no objection was raised to the testimony during the first proceeding, the failure to
object is not binding or conclusive with regard to the later trial or proceeding. 1203
The reason is that the former testimony is considered to have been given by the witness for
the first time during the subsequent proceeding. 1204
16.2. DUE PROCESS CONSIDERATIONS
In criminal trials, concerns over due process and protection of the right of the accused to
confront witnesses against him are met provided the defendant had this opportunity at some stage of the
proceeding. The charge or allegations must be the same, and the opportunity of cross-examination had to be
provided to defendant or his attorney. 1205
16.3. UNAVAILABILITY OF WITNESS
16.3.1. Definition
New York Civil Practice Law and Rules 4517 defines when a witness is unavailable so as to
justify the admission of former testimony in civil trials. It provides:
In a civil action, if a witness’ testimony is not available because of privilege,

death, physical or mental illness, absence beyond the jurisdiction of the
court to compel appearance by its process or absence because the proponent
of his statement does not know and with diligence has been unable to
ascertain his whereabouts, or because he is incompetent to testify by virtue
of section 4519, his testimony, taken or introduced in evidence at a former
trial, together with all exhibits and documents introduced in connection
with it, may be introduced in evidence. . . .
1202
In re White’s Will, 2 N.Y.2d 309, 141 N.E.2d 416, 160 N.Y.S.2d 841, 70 A.L.R.2d 484 (1957)
Bradley v. Mirick, 91 N.Y. 293 (1883).
1203
Pratt, Hurst & Co. v. Tailer, 135 A.D. 1, 119 N.Y.S. 803 (1st Dep’t 1909).
1204
Murphy v. McMahon, 179 A.D. 837, 167 N.Y.S. 270 (1st Dep’t 1917).
1205
People v. Elliott, 172 N.Y. 146, 64 N.E. 837 (1902); People v. Gilhooley, 108 A.D. 234, 95 N.Y.S. 6
(1st Dep’t 1905), aff’d, 187 N.Y. 551, 80 N.E. 1116 (1907).
258
259
The due diligence required under New York Civil Practice Law and Rules 4517 is applicable
where the proponent of the former testimony does not know and has been unable, after exercising diligence,
to determine the whereabouts of a witness. If the witness is absent beyond the court’s jurisdiction, due
diligence is not required. 1206
If testifying would endanger a witness’s health, he may be deemed unavailable. 1207
Unavailability of a witness in criminal proceedings is set forth in Criminal Procedure section
670.10, which provides in relevant part:
"[T]he witness is unable to attend the same by reason of death, illness or

incapacity, or cannot with due diligence be found, or is outside the state or
in federal custody and cannot with due diligence be brought before the
court."
It has been held that a defendant’s right to confrontation has been violated if no attempt has
been made to compel the attendance of a witness located outside the court’s jurisdiction. 1208
Due diligence efforts to find a missing witness are required. 1209
Reliance upon the Uniform Attendance of Witnesses Act may enable counsel to obtain the
presence of a witness located outside the state, provided the state was a signatory to such act. 1210
For an ill witness to be deemed unavailable under Criminal Procedure section 670.10, the
illness must be serious. 1211
1206
City of Buffalo v. J.C. Clement Co. Inc., 45 A.D.2d 620, 360 N.Y.S.2d 362 (4th Dep’t 1974).
1207
People v. Lombardi, 39 A.D.2d 700, 332 N.Y.S.2d 749 (1st Dep’t 1972), aff’d, 33 N.Y.2d 658, 303
N.E.2d 705, 348 N.Y.S.2d 980 (1973), cert. denied, 416 U.S. 906, 94 S. Ct. 1611, 40 L.Ed.2d 111 (1974).
1208 Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L.Ed.2d 255 (Okla. 1968); Mancusi v. Stubbs, 408
U.S. 204, 92 S. Ct. 2308, 33 L.Ed.2d 293 (N.Y. 1972); People v. McDowell, 88 A.D.2d 522, 449 N.Y.S.2d
981 (1982).
1209
People v. Arroyo, 54 N.Y.2d 567, 431 N.E.2d 271, 446 N.Y.S.2d 910 (1982), cert. denied, 456 U.S.
979, 102 S. Ct. 2248, 72 L.Ed.2d 855 (1982).
1210
People v. Graham, 43 A.D.2d 182, 350 N.Y.S.2d 458 (3d Dep’t 1973), aff’d, 36 N.Y.2d 633, 331
N.E.2d 673, 370 N.Y.S.2d 888 (1975).
1211
People v. Del Mastro, 72 Misc.2d 809, 339 N.Y.S.2d 389 (N.Y. Co. Ct. 1973).
259
260
A witness asserting his Fifth Amendment privilege against self-incrimination has been held
to be unavailable to testify because of incapacity. 1212
If a witness is unavailable because of the proponent’s culpable neglect or wrongdoing, the
former testimony may not be used at trial. 1213
Where, however, the witness is unavailable to testify because of the opponent’s culpable
conduct or negligence, the former testimony may be admissible. 1214
16.3.2. Establishing Unavailability
To establish the unavailability of a witness, evidence demonstrating the efforts undertaken to
obtain the witness’s presence at trial is necessary. 1215
Hearsay declarations of the offering party’s attorney alone are insufficient to prove
unavailability. 1216
16.3.3. Witness Tampering
An exception as to the inadmissibility of hearsay statements exists where there is
misconduct on the part of the defendant, such as inducing the witness to refuse or otherwise be unavailable to
testify. In such cases, any objections as to the admissibility of such evidence are deemed waived. 1217
The People must prove by clear and convincing evidence that the defendant's misconduct
1218
procured that witness's unavailability.
1212
Matter of Barry M., 93 Misc.2d 882, 403 N.Y.S.2d 979 (N.Y. City Fam. Ct. 1978).
1213
CPLR 4517
1214
People v. Corley, 77 A.D.2d 835, 431 N.Y.S.2d 21 (1st Dep’t 1980).
1215
People v. Fish, 125 N.Y. 136, 26 N.E. 319 (1891); Longacre v. Yonkers R. Co., 191 A.D. 770, 182
N.Y.S. 373 (2d Dep’t 1920)
1216
N.Y. County Nat. Bank v. Herman, 173 A.D. 814, 160 N.Y.S. 422 (1st Dep’t 1916).
1217
Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591 (2d Dep’t 1983).
1218
People v Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 (1995).
260
261
16.3.3.1. Sirois Hearing
1219
A Sirois hearing is appropriate when the People allege specific facts which demonstrate a
distinct possibility that a criminal defendant has engaged in witness tampering. 1220
At a Sirois hearing, the People must demonstrate by clear and convincing evidence that the
defendant, by violence, threats or chicanery, caused a witness's unavailability. 1221
If the People meet that burden, the defendant is precluded from asserting either the
constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to
prevent the admission of the witness's out-of-court declarations. 1222
It is reversible error to admit hearsay testimony without first holding the Sirois hearing and
determining by clear and substantial evidence that there was a causal relationship between the defendant's
1223
actions and the witness's unavailability.
The defendant may waive a Sirois hearing by agreeing to forego a hearing or acquiescing in
proceeding without further inquiry. 1224
The Court must first determine that the People have submitted sufficient evidence that there
is a distinct possibility of witness tampering. Submitting that issue to the Court without a hearing does not
1225
waive the hearing. If the Court finds sufficient evidence of a distinct possibility of tampering, the Sirois
hearing must then be held.
1219
See 23.7.
1220
People v Cotto, 92 N.Y.2d 68, 72, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998).
1221
People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 ( 1995).
1222
1223
People v. Johnson, 93 N.Y.2d 254; 711 N.E.2d 967; 1999 N.Y. LEXIS 813; 689 N.Y.S.2d 689 (1999)
(tape recording of the defendant, a priest, asking a 12 year old girl to lie to prevent defendant from going
to jail held insufficient to obviate the need for a Sirois hearing).
1224
People v. Johnson, 93 N.Y.2d 254; 711 N.E.2d 967; 1999 N.Y. LEXIS 813; 689 N.Y.S.2d 689 (1999).
1225
People v. Johnson, 93 N.Y.2d 254, 1 N.E.2d 967, 1999 N.Y. LEXIS 813; 689 N.Y.S.2d 689 (1999).
261
262
Statements made by the recanting witness may then be testified to by those who heard the
statements. 1226
16.4. IDENTITY OF PARTIES
16.4.1. Complete Identity Not Required
New York does not follow the principle of reciprocity or mutuality with regard to former
testimony. The statements may be admitted against one of the parties to the later trial or proceeding, even if
they could not have been admitted against the other.
Former testimony is admissible even if there are additional parties added to the subsequent
proceeding or a division of litigants from the earlier proceeding exists.
16.4.2. Statute
New York Civil Practice Law and Rules 4517 allows admission of former evidence only in a
proceeding between the same parties or their representatives.
Case law has established, however, that former testimony may be admitted in a proceeding
between parties or those in privity by blood, estate, or law. 1227
16.5. LAYING THE FOUNDATION
Before former evidence may be admitted, the party offering the statements must establish all
statutory requirements have been met. The proof should be part of the record so as to provide the basis for
appellate review in the event an appeal is necessary. 1228
1226
People v Cotto, 92 N.Y.2d 68, 72, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998)
1227 Shook v. Fox, 126 A.D. 565, 110 N.Y.S. 951 (3d Dep’t 1908); Show v. N.Y. Elevated R. Co., 187
N.Y. 186, 79 N.E. 984 (1907).
1228
N.Y. County Nat. Bank v. Herman, 173 A.D. 814, 160 N.Y.S. 422 (1st Dep’t 1916).
262
263
16.6. FORM OF EARLIER EVIDENCE
The precise words used by the unavailable witness during the prior proceeding are not
required to be proven. It is sufficient that the entire substance of the testimony be reported, including direct
and cross-examination. 1229
An oral report by any person who heard the testimony given or read in evidence at the earlier
proceeding may prove the former evidence. 1230
The witness giving the oral report may utilize notes or other materials to refresh his
recollection or as past recollection recorded. 1231
The notes, minutes, or stenographic transcript of a court reporter, or other person who heard
the testimony, also may be utilized to establish former testimony if a proper foundation is established. 1232
Before the notes, minutes, or transcripts may be entered into evidence, the individual who
prepared them must be sworn as a witness and prove to have correctly taken and transcribed the written
documents. 1233
Pursuant to New York Civil Practice Law and Rules 4517, foundation is unnecessary where
the stenographer, between the two proceedings, died or became incompetent. His original notes then may be
read into evidence by a competent person.
Workers’ Compensation Law section 122 provides:
A copy of the testimony, evidence and procedure of any investigation, or a

particular part thereof, transcribed by a stenographer in the employ of the
1229
Trimmer v. Trimmer, 90 N.Y. 675 (1882); Odell v. Solomon, 16 N.Y. St. Rep. 577, 55 N.Y. Super. Ct
410, 4 N.Y.S. 440 (N.Y. Super. 1888).
1230
McIntyre v. New York Central R.R. Co., 37 N.Y. 287 (1867); Clark v. Vorce, 15 Wend. 193 (N.Y.
1836).
1231
McIntyre v. New York Central R.R. Co., 37 N.Y. 287 (1867); Clark v. Vorce, 15 Wend. 193 (N.Y.
1836).
1232
People v. Scharaga, 45 N.Y.S.2d 343 (N.Y. Co. Ct. 1943).
1233
Shields v. Martin, 21 Misc.2d 1023, 196 N.Y.S.2d 373 (S. Ct 1960), aff’d, 13 A.D.2d 697, 215
N.Y.S.2d 1018 (1961); Trimmer v. Trimmer, 90 N.Y. 675 (1882); People v. Scharaga, 45 N.Y.S.2d 343
(N.Y. Co. Ct. 1943).
263
264
board and certified by such stenographer to be true and correct may be

received in evidence with the same effect as if such stenographer was
present and testifying to the facts so certified.
Stenographic minutes are not considered the best evidence of the testimony and will not
preclude a witness’s oral testimony. 1234
Section 670.10 of Criminal Procedure Law allows that former “testimony may be read and any
videotape or photographic recording thereof played. Where any recording is received into evidence, the
stenographic transcript of that examination shall also be received.”
16.7. OTHER USES OF FORMER TESTIMONY
The use of former testimony, of course, is not necessarily for the purpose of establishing the
truth of facts set forth. Declarations may be used for impeachment purposes as proof of prior inconsistent
statements by a witness. 1235
Statements may also be admissible to show motive. 1236
Former testimony may also be admissible under other hearsay exceptions such as an
admission or a declaration against interest.
16.8. CRIMINAL CASES
To be admissible in a criminal case, the prior testimony must satisfy Criminal Procedure Law
section 670.10. 1237
1234
People v. Woodward, 71 Misc. 607, 130 N.Y.S. 854 (N.Y. Gen. Sess. 1911); Weinhandler v. Eastern
Brewing Co., 46 Misc. 584, 92 N.Y.S. 792 (S. Ct. 1905); Harmon v. Matthews, 27 N.Y.S.2d 656 (S. Ct.
1941).
1235
People v. Colon, 281 A.D. 354, 119 N.Y.S.2d 503 (1st Dep’t 1953); People v. Ferraro, 293 N.Y. 51,
55 N.E.2d 861 (1944).
1236
People v. Moshell, 287 N.Y. 9, 38 N.E.2d 108 (1941).
1237
People v. Ayala, 75 N.Y.2d 422, 554 N.Y.S.2d 412 (1990); See People v. Harding, 37 N.Y.2d 130,
133–134, 332 N.E.2d 354, 371 N.Y.S. 493 (1975); People v. Gonzalez, 54 N.Y.2d 729, 426 N.E.2d 474,
442 N.Y.S.2d 980 (1981).
264
265
Criminal Procedure Law, section 670.10 states:
1. Under circumstances prescribed in this article, testimony given by a

witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a
felony complaint conducted pursuant to section 180.60 or upon a
misdemeanor charge pursuant to section 170.75, or (c) an examination of
such witness conditionally, conducted pursuant to article six hundred sixty,
may, where otherwise admissible, be received and read into evidence at a
subsequent proceeding in or relating to the action involved when at the time
of such subsequent proceeding the witness is unable to attend the same by
reason of death, illness or incapacity, or cannot with due diligence be found,
or is outside the state or in federal custody and cannot with due diligence be
brought before the court.
2. The subsequent proceedings at which such testimony may be received in

evidence consist of: (a) Any proceeding constituting a part of a criminal
action based upon the charge or charges which were pending against the
defendant at the time of the witness’s testimony and to which such
testimony related.
This statute permits the use of testimony previously taken in certain, specified criminal
judicial proceedings. It does not demonstrate, or even suggest, a general intention to carry over the rules
applicable in civil trials.
Thus, proof taken judicially by bodies other than courts may not be admitted. 1238
The criminal statute does not authorize the use of testimony previously recorded at civil
administrative hearings. 1239
16.8.1. Wade Hearing
The “subsequent proceedings” referred to in Criminal Procedure Law section 670.10 at which
such testimony may be admitted include “[a]ny proceeding constituting a part of a criminal action based upon
the charge or charges which were pending against the defendant at the time of the witness’s testimony and to
which such testimony related.”
1238
People v. Harding, 37 N.Y.2d 130, 133–134 (1975).
1239
People v. Harding, 37 N.Y.2d 130, 133–134 (1975) (testimony at police department hearing could not
be read in evidence, even though witness died before trial).
265
266
A Wade hearing, although conducted in close temporal proximity to the commencement of
the trial, is not part of the “trial” itself, which begins only after the jury is sworn. 1240
A Wade hearing is not within any of the three categories of prior proceedings delineated in
the statute, i.e., felony hearings, Article 660 conditional examinations, and trials of accusatory instruments.
Testimony in a Wade hearing is not admissible if the declarant becomes unavailable. 1241
16.8.2. Line-Up Identification
While a line-up identification is not "former testimony", it may be admissible under certain
circumstances, despite its hearsay nature. CPL 60.25 permits, in particular instances, evidence that the
defendant was identified at a line-up, despite the inability of the witness to identify the defendant at the trial.
The statute sets forth preconditions which must be satisfied. The witness who made the
pretrial identification must have testified to: (1) observing the defendant "either at the time and place of the
commission of the offense or upon some other occasion relevant to the case;" (2) observing, under
constitutionally permissible circumstances, "a person whom he recognized as the same person whom he had
observed on the first or incriminating occasion;" and (3) being "unable at the proceeding to state, on the basis
1242
of present recollection, whether or not the defendant is the person in question".
There must be testimony at trial from the identifying witness that establishes, along with the
1243
other enumerated requirements, a lack of present recollection of the defendant as the perpetrator.
The testimony of the third party, who witnessed the previous identification but not the
1244
crime, is then admissible as evidence-in-chief to identify the defendant that was identified at the line-up.
1240
People v. Ayala, 75 N.Y.2d 422 (1990).
1241
People v. Ayala, 75 N.Y.2d 422 (1990).
1242
CPL 60.25[1][a].
1243
1244
266
267
If the victim who identified the defendant at the line-up does not testify, evidence as to who
was identified at the line-up is inadmissible. 1245
16.9. CIVIL CASES
New York Civil Practice Law and Rules 4517, which permits the use of prior testimony in
civil cases, “is not intended to state the precise and only circumstance under which such use is permissible.”
1246
Judicial proof by bodies other than courts may be admitted. 1247
In Fleury, both the plaintiff and the defendant, represented by counsel, testified and were
cross-examined under oath. After Fleury died, his testimony at the hearing could be put into evidence by his
administrator at the trial of his personal injury suit.
Former testimony of a now-deceased witness should be allowed when it was given under
oath, referred to the same subject matter, and was heard in a tribunal where the other side was represented
and allowed to cross-examine. Such prior testimony is trustworthy, since the original statement was made in
court, under oath and subject to cross-examination by a party who had the same motive to expose falsehood
and inaccuracy as does the opponent in the current trial.
This is equally true when the prior hearing was before an administrative tribunal exercising
judicial or quasi-judicial functions. 1248
1245
People v. Patterson, 93 N.Y.2d 80; 710 N.E.2d 665; 1999 N.Y. LEXIS 222; 688 N.Y.S.2d 101 (1999)
(victim died after identifying defendant but before trial).
1246
Fleury v. Edwards, 14 N.Y.2d 334, 200 N.E.2d 550, 251 N.Y.S.2d 647 (1964),
1247
Fleury v. Edwards, 14 N.Y.2d 334 (1964) (testimony at a hearing held by the State Motor Vehicle
Bureau, pursuant to Veh. and Traf. § 510, to determine whether driving licenses or car registrations
should be revoked or canceled).
267
268
1248
Fleury v. Edwards, 14 N.Y.2d 334, 339, 200 N.E.2d 550, 251 N.Y.S.2d 647 (1964).
268
269
270
CHAPTER 17 MISCELLANEOUS HEARSAY EXCEPTIONS
17.1. RIGHT TO CONFRONT WITNESSES
The admissibility of a document or record falling within the hearsay exception does not
violate the constitutional or statutory right of a criminal defendant to confront witnesses who testify against
him or her. 1249
17.2. STATE OF MIND AND STATEMENT OF INTENTION
A category of hearsay which may be admitted when accompanied by appropriate
circumstantial indicia of trustworthiness is a hearsay statement of intention to perform an act in the future.
A statement in a letter that A was going to go with B to some location may be admissible in a
trial involving B. The statement proves A's state of mind, that is, his intention to go with B. This tends to
1250
prove that B did go with A.
A tape recording in which A told C that that B was going to come to A's house for a meeting
was admissible under the state of mind exception as tending to prove that B did come to A's house for the
meeting. 1251
There must be a circumstantial probability of trustworthiness, and a necessity for the
evidence because of the unavailability of the declarant. 1252 Trustworthiness arises from circumstances
1253
precluding a suspicion of misrepresentation.
1249
People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420 (1944); People v. Reese, 258 N.Y. 89, 179 N.E. 305,
79 A.L.R. 1329 (1932).
1250
Mutual Life Ins. Co. v Hillmon, 145 U.S. 285, 36 L. Ed. 706, 12 S. Ct. 909 (1892); see People v.
James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999)
1251
1252
1253
270
271
In James, the audio tape was recorded without either A or C's knowledge, and the declarant,
A, was unavailable because he invoked the privilege against self-incrimination when called to the stand.
The statement may be offered to prove not only that the declarant performed the acts, but
that a co-participant also performed the acts. 1254
Before a statement of intent to engage in joint or cooperative activity is admissible against the
named nondeclarant, it must be shown that (1) the declarant is unavailable; (2) the statement of the
declarant's intent unambiguously contemplates some future action by the declarant, either jointly with the
nondeclarant defendant or which requires the defendant's cooperation for its accomplishment; (3) to the
extent that the declaration expressly or impliedly refers to a prior understanding or arrangement with the
nondeclarant defendant, it must be inferable under the circumstances that the understanding or arrangement
occurred in the recent past and that the declarant was a party to it or had competent knowledge of it; and (4)
there is independent evidence of reliability, i.e., a showing of circumstances which all but rule out a motive to
1255
falsify and evidence that the intended future acts were at least likely to have actually taken place.
17.3. AGE AND IDENTITY OF INDIVIDUAL
An individual’s knowledge of his name and age are based upon hearsay. A person cannot
remember the date on which he was born or his naming at that time. Thus, a person’s knowledge of his
identity and age are based upon information given to him by members of his family.
An exception to the hearsay rule, therefore, is that a person may testify to his age. 1256
This hearsay exception has been limited to information obtained from family members only.
1257
1254
1255
1256
Koester v. Rochester Candy Works, 194 N.Y. 92, 87 N.E. 77 (1909); 36 West Main v. N.Y. State
Liquor Authority, 285 A.D. 756, 141 N.Y.S.2d 46 (4th Dep’t 1955).
1257
36 West Main v. N.Y. State Liquor Authority, 285 A.D. 756, 141 N.Y.S.2d 46 (4th Dep’t 1955)
(illegitimate child who never resided with natural parents is incompetent to testify as to his age).
271
272
17.4. HISTORICAL AND SCIENTIFIC TREATISES
As a general rule, there is no hearsay exception allowing the contents of historical and
scientific treatises to be admitted into evidence. 1258
The treatises may, however, be used in connection with a hearsay exception which
authorizes the admission of reputation of historical facts of a general and public nature. The rationale behind
the exception is that a respected historical work of known character and accuracy is evidence of the
reputation. 1259
Another exception to the general rule is books of exact science containing declarations of
ascertained facts, as opposed to opinions, or those which, by long utilization in life’s practical affairs, have
become accepted as standard, established authority. 1260
Examples of such books or sources are almanacs and calendars. 1261
Such treatises also may be referenced by a judge concerning judicial notice of a fact (see
§ 18.100 et seq.) or to discredit an expert witness’s testimony where such witness has recognized it as
authoritative.
17.5. AFFIDAVITS OF SERVICE AND PUBLICATION
An affidavit by a person who served, posted, or used alternative service of process or notice
showing said service is prima facie evidence of service, where the affiant is deceased or otherwise unavailable
for trial. 1262
1258
Rossario v. N.Y.C. Health and Hospitals Corp., 87 A.D.2d 211, 450 N.Y.S.2d 805 (1st Dep’t 1982)
(Physician’s Desk Reference entries are inadmissible to establish the purposes for which drugs are to be
used).
1259
McKinnon v. Bliss, 21 N.Y. 206 (1860).
1260
Foggett v. Fischer, 23 A.D. 2207, 48 N.Y.S. 741 (2d Dep’t 1897).
1261
Lendle v. Robinson, 53 A.D. 140, 65 N.Y.S. 894 (1st Dep’t 1900).
1262
CPLR 4531.
272
273
Additionally, pursuant to Civil Practice Law and Rules 4532, the affidavit of a publisher or
printer of a newspaper published in New York, setting forth the publication of a court-ordered or otherwise
lawfully required notice, when attached to the printed copy of the notice or advertisement, is prima facie
evidence of publication.
Absent independent grounds for admission of an affidavit, it is hearsay and inadmissible. 1263
17.6. SPECIFIC DOCUMENTS
17.6.1. Itemized Bills or Invoice
New York Civil Practice Law and Rules 4533(a) authorizes the admission into evidence of
certified itemized bills or invoices for services or repairs that do not exceed two thousand dollars. The bill or
invoice constitutes prima facie evidence of the reasonable value and necessity of such services or repairs.
The provision should be frequently used in personal injury and property damage cases. 1264
For a bill to be admissible as prima facie evidence, the bill must:
1. Be certified by the person, firm, or corporation rendering the services or repairs;
2. State that “no part of the payment will be refunded to the debtor”;
3. State that “the amounts itemized are the usual and customary rates charged for such
services or repairs”; and
4. Be served upon each party at least ten days before trial, together with a Notice of Intention
to introduce the bill. 1265
Only one bill can be introduced from the same person.
1263
Ptasznik v. Schultz, 247 A.D.2d 197; 679 N.Y.S.2d 665; 1998 N.Y. App. Div. LEXIS (2d Dep't 1998).
1264
Carbo Industries, Inc. v. Becker Chevrolet, Inc., 112 A.D.2d 336, 491 N.Y.S.2d 786 (2d Dep’t 1985)
(cost of replacing defective engine); Rivera v. State, 115 Misc.2d 523, 454 N.Y.S.2d 408 (N.Y. Ct. Cl.
1982) (physician’s bill introduced into evidence in personal injury action).
273
274
A paid bill that is not itemized or certified is inadmissible. 1266
New York Civil Practice Law and Rules 4533(a) is applicable to all professional services,
including legal, accounting, and medical. 1267
The notification and verification requirements of New York Civil Practice Law and Rules
4533(a) are not applicable in small claims court. 1268
17.6.2. Mortality Tables
Utilized for, among other reasons, the purpose of estimating probable life expectancy of
decedents in wrongful death actions or to evaluate damages where permanent injuries or disorders are in
issue, mortality tables are considered to be merely “slight evidence” of a particular person’s life expectancy.
1269
The mortality tables must be considered in light of the person’s health, habits, constitution,
and mode of living. 1270
The rationale behind the admittance of mortality tables is that they are in the nature of an
exact science or mathematics and are impartial and neutral, thus, credible. 1271
1265
CPLR 4533(a); See also Rivera v. State, 115 Misc.2d 523, 454 N.Y.S.2d 408 (1982) (notation “Partial
Payment Received . . . In Full Satisfaction of Bill” sufficient to meet statutory requirement).
1266
Tobia v. Loiacono, 93 Misc.2d 689, 403 N.Y.S.2d 395 (S. Ct. 1977).
1267
Rivera v. State, 115 Misc.2d 523, 454 N.Y.S.2d 408 (1982); Henderson v. Marden Construction
Corp., 58 Misc.2d 975, 297 N.Y.S.2d 180 (N.Y. City Civ. Ct. 1969).
1268
Schnee v. Jonas Equities, Inc., 109 Misc.2d 221, 442 N.Y.S.2d 342 (S. Ct. 1981); Gonzalez v. CNLD
Corp., 108 Misc.2d 549, 437 N.Y.S.2d 910 (N.Y. City Civ. Ct. 1981), aff’d, 115 Misc.2d 151, 454 N.Y.S.2d
1015 (Sup. Ct. 1982); Lanni v. Clark Disposal, Inc., 100 Misc.2d 1023, 420 N.Y.S.2d 547 (N.Y. City Civ.
Ct. 1979).
1269
Hartley v. Eagle Insurance Co., 222 N.Y. 178, 185–187, 118 N.E. 622, 3 A.L.R. 1379 (1918); 118
Barone v. Forgette, 286 A.D. 588, 146 N.Y.S.2d 63 (3d Dep’t 1955); Cf. In re Bowker’s State, 157 Misc.
341, 283 N.Y.S. 564 (Sur. Ct. 1935) (American experience table of mortality utilized in determining
whether charitable gift violated former section 17 of the Decedent Estate Law).
1270
Hartley v. Eagle Insurance Co., 222 N.Y. 178, 186, 118 N.E. 622 (1918).
1271
People v. Security Life Insurance & Annuity Co., 78 N.Y. 114, 126 (1879) (“these tables are built upon
long and varied experience and deemed sufficiently reliable in the absence of a better basis, for the
guidance of the courts, of public officials and of insurers”).
274
275
Pursuant to section 403 of the New York Real Property Actions and Proceedings Law,
mortality tables may be used in determining the value of interest in real property, “where such valuation
depends upon the continuance of, or upon the termination of a life or lives on being.”
The mortality table utilized must conform with the requirements of section 4217 of the New
York Insurance Law. If the mortality table fails to provide the requisite information, other tables accepted by
actuarial practice may be used.
17.6.3. Statistical Materials
Various statistical materials are admitted as exceptions to the hearsay rules.
17.6.4. Stock Market Reports and Quotations
New York Civil Practice Law and Rules 4533, which governs with regard to information
concerning stock or commodities on an organized market, provides in relevant part:
[The] report of a regularly organized stock or commodity market published

in a newspaper or periodical of general circulation or in an official
publication or trade journal is admissible in evidence to prove the market
price or value of any article regularly sold or dealt in on such market. The
circumstances of the preparation of such a report may be shown to effect its
weight but not to effect its admissibility.
A similar provision is found in section 2-724 of the Uniform Commercial Code.
Stock quotations and reports provided by a service available to subscribing brokers only are
inadmissible under New York Civil Practice Law and Rules 4533 to prove a stock’s market price. Circulation
must be general. 1272
1272
Horgan v. Frenkel, Kovac & Co., 161 Misc. 493, 293 N.Y.S. 264 (S. Ct. 1936); Cf. Fistel v. Christman,
135 F. Supp. 830 (S.D.N.Y. 1955) (quotations published by National Quotation Bureau, although
admissible as to value of stock, are limited in probative value).
275
276
Private brokerage service subscriptions, however, may be admissible under New York Civil
Practice Law and Rules 4578(a), the business entry exception statute, provided the business regularly collects
the quotations from original sources as part of its business and records them in the regular course of business.
17.6.5. Financial Reports
Dunn and Bradstreet reports are admissible for the purpose of determining whether a foreign
corporation is sufficiently engaged in international trade to sustain personal jurisdiction in New York under
Civil Practice Law and Rules. Said reports are prepared, not for litigation, but for use by persons engaged in
business and finances.
17.6.6. Marriage Licenses
An original certificate of a marriage made by whom it was solemnized

within the state, or the original entry thereof made pursuant to law in the
office of the clerk of a city or a town within the state, is prima fade of the
evidence of the marriage.
The marriage license is only presumptive proof that the marriage took place. 1273
Although the statute refers to marriage certificates issued within the state, certificates issued
outside the state also are admissible under this exception. 1274
Moreover, section 14-a(4) of the Domestic Relations Law provides that a certificate of
marriage registration issued by a town or city clerk constitutes “prima facie evidence of the facts therein
stated.”
1273
McCarter v. McCarter, 27 Misc.2d 610, 208 N.Y.S.2d 876 (Sup. Ct. 1960), modified on other grounds,
227 N.Y.S.2d 608 (Sup. Ct. 1962) (marriage license insufficient to prove parties competent to marry);
Applebaum v. Applebaum, 9 Misc.2d 677, 168 N.Y.S.2d 970 (Sup. Ct. 1957), aff’d, 7 A.D.2d 911, 183
N.Y.S.2d 54 (2d Dep’t 1959) (marriage license as to first marriage insufficient to rebut presumption of
second marriage); In re Bilotta’s Estate, 110 N.Y.S.2d 331 (Sur. Ct. 1951), aff’d, 281 A.D. 887, 120
N.Y.S.2d 248 (2d Dep’t 1953).
1274
Matter of Foote, 5 Misc.2d 58, 160 N.Y.S.2d 85 (Sur. Ct. 1957) (Massachusetts marriage certificate).
276
277
In addition to containing information as to the marriage ceremony, said certificates also
contain other hearsay information such as the groom’s and bride’s dates of birth and residences. Said
statements, pursuant to Domestic Relations Law section 14-a(4), therefore would be presumptive evidence of
these facts.
A certificate of marriage provided by the State Commissioner of Health also constitutes
prima facie evidence of the facts set forth therein. 1275
17.6.7. Weather Observations
Pursuant to New York Civil Practice Law and Rules 4528, “[a]ny record of the observations
of the weather, taken under the direction of the United States weather bureau, is prima facie evidence of the
facts stated.” 1276
Under common law, records of weather observations are admissible provided that there is a
duty to record, even if prepared by agencies of state or federal governments other than the United States
Weather Bureau. Such reports, under common law, are not prima facie evidence, and opponents of such
evidence need not proffer substantial contrary proof in order for the trier of fact to disbelieve the observations.
Weather reports have more probative force than witness opinion evidence. 1277
17.6.8. Birth and Death Certificates
Pursuant to Public Health Law sections 4130 and 4140, death and birth certificates must be
filed with the official custodian of vital statistics. As noted previously, these certificates are prepared by
private persons specified by statute, generally physicians, nurse-midwives, and parents with regard to births
and physicians, funeral directors, undertakers, coroners, or medical examiners with regard to deaths.
1275
Dom. Rel. Law § 20-b(1).
1276
Monahan v. City, 31 A.D.2d 933, 298 N.Y.S.2d 822 (2d Dep’t 1969) (United States Weather Bureau
report is prima facie evidence that may only be overcome by substantial contrary evidence).
277
278
Pursuant to section 4103 of the Public Health Law, certified copies of birth and death records
constitute “prima facie evidence in all courts and places of the facts therein stated.” This statute, despite its
broad language, has been limited in application by some courts, including the state’s Court of Appeals.
With regard to private controversies, death certificates have been held admissible by some
courts only to show the fact and date of death. Collateral issues, such as the cause of death and the age,
residence, and parentage of decedent, may not, according to some case law, be established through the use of
the death certificate. 1278
The rationale offered by courts as to limiting section 4103 of the Public Health Law to
proceedings involving public policy is that the “statute was a police regulation, required for public purposes
. . . [I]t was not the intention of the legislature to change the common law rule of evidence in controversies of
private parties growing out of contract.” 1279
More recently, other courts, however, have permitted death certificates to be admitted into
evidence as proof of the matters stated therein. 1280
1277
Richman v. New York,54 N.Y.S.2d 148 (S. Ct. Dep’t 1945), 1945 N.Y. Misc. LEXIS 1663 (App. Term
1945).
1278
Beglin v. Metropolitan Life Ins. Co., 173 N.Y. 374, 66 N.E. 102 (1903) (death certificate inadmissible
to establish cause of death); In re Gibson’s Will, 29 Misc.2d 21, 212 N.Y.S.2d 335 (Sur. Ct. 1961)
(decedent’s birth date may not be established through death certificate); Lock v. Fisher, 104 Misc.2d 656,
428 N.Y.S.2d 868 (Fam. Ct. 1980) (birth or death certificates only admissible as presumptive evidence of
birth or death, respectively); People ex rel. Blake v. Charger, 76 Misc.2d 577, 351 N.Y.S.2d 322 (Fam. Ct.
Queens Co. 1974) (birth certificate)
Hammerstein v. Hammerstein, 74 Misc. 567, 134 N.Y.S. 473 (Sur. Ct. 1911) (birth certificate inadmissible
to establish paternity); In re Curtiss’ Will, 140 Misc. 185, 250 N.Y.S. 146 (Sur. Ct. 1931) (death certificate
is not proof of decedent’s residence).
1279
Beglin v. Metropolitan Life Ins. Co., 173 N.Y. 374, 376, 66 N.E. 102 (1903).
1280
Stein v. Lebowitz-Pine View Hotel, Inc., 111 A.D.2d 572, 489 N.Y.S.2d 635 (3d Dep’t 1985) (death
certificate and coroner’s report admissible as to proof of cause of death under Public Health Law § 4103
and CPLR 4520); Matter of Whitaker, 120 Misc.2d 1021, 466 N.Y.S.2d 947 (Sup. Ct. 1983); Regan v.
National Postal Transport Ass’n, 53 Misc.2d 901, 280 N.Y.S.2d 319 (N.Y. City Civ. Ct. 1967) (death
certificate may be utilized in wrongful death action to establish cause of death); Anderson v. Commercial
Travelers Mutual Accident Ass’n, 73 A.D.2d 769, 423 N.Y.S.2d 542 (3d Dep’t 1979); Brownrigg v. Boston
& Albany R.R., 8 A.D.2d 140, 185 N.Y.S.2d 977 (1st Dep’t 1959); Sherman v. Pullman, 29 A.D.2d 1044,
289 N.Y.S.2d 802 (4th Dep’t 1968); Gioia v. State, 22 A.D.2d 181, 254 N.Y.S.2d 384 (4th Dep’t 1964);
Hoyt v. John Hancock Mut. Ins. Co., 48 Misc.2d 935, 266 N.Y.S. 309 (Sup. Ct. 1966).
278
279
Collateral facts contained in birth and death certificates may also come into evidence under
the business entries rule, New York Civil Practice Law and Rules 4518. 1281
17.6.9. Foreign Birth and Death Certificates
Pursuant to Public Health Law sections 4130 and 4140, death and birth certificates must be
filed with the official custodian of vital statistics. As noted previously, these certificates are prepared by
private persons specified by statute, generally physicians, nurse-midwives, and parents with regard to births
and physicians, funeral directors, undertakers, coroners, or medical examiners with regard to deaths.
Pursuant to section 4103 of the Public Health Law, certified copies of birth and death records
constitute “prima facie evidence in all courts and places of the facts therein stated.” This statute, despite its
broad language, has been limited in application by some courts, including the state’s Court of Appeals.
With regard to private controversies, death certificates have been held admissible by some
courts only to show the fact and date of death. Collateral issues, such as the cause of death and the age,
residence, and parentage of decedent, may not, according to some case law, be established through the use of
the death certificate. 1282
The rationale offered by courts as to limiting section 4103 of the Public Health Law to
proceedings involving public policy is that the “statute was a police regulation, required for public purposes
1281
In re Estate of Kirkby, 57 Misc.2d 982, 293 N.Y.S.2d 1008 (Sur. Ct. 1968) (birth certificate admissible
under business entry exception on issue of legitimacy).
1282
Beglin v. Metropolitan Life Ins. Co., 173 N.Y. 374, 66 N.E. 102 (1903) (death certificate inadmissible
to establish cause of death); In re Gibson’s Will, 29 Misc.2d 21, 212 N.Y.S.2d 335 (Sur. Ct. 1961)
(decedent’s birth date may not be established through death certificate); Lock v. Fisher, 104 Misc.2d 656,
428 N.Y.S.2d 868 (Fam. Ct. 1980) (birth or death certificates only admissible as presumptive evidence of
birth or death, respectively); People ex rel. Blake v. Charger, 76 Misc.2d 577, 351 N.Y.S.2d 322 (Fam. Ct.
Queens Co. 1974) (birth certificate)
Hammerstein v. Hammerstein, 74 Misc. 567, 134 N.Y.S. 473 (Sur. Ct. 1911) (birth certificate inadmissible
to establish paternity); In re Curtiss’ Will, 140 Misc. 185, 250 N.Y.S. 146 (Sur. Ct. 1931) (death certificate
is not proof of decedent’s residence).
279
280
. . . [I]t was not the intention of the legislature to change the common law rule of evidence in controversies of
private parties growing out of contract.” 1283
More recently, other courts, however, have permitted death certificates to be admitted into
evidence as proof of the matters stated therein. 1284
Collateral facts contained in birth and death certificates may also come into evidence under
the business entries rule, New York Civil Practice Law and Rules 4518. 1285
Foreign birth and death certificates complying with statutory requirements are admissible,
even with regard to collateral facts contained therein. 1286
In proceedings involving dependency of aliens residing in foreign countries, properly
authenticated birth certificates may be admissible as proof of age. 1287
17.6.10. Census Records
The census, a survey as to population and other sociological information, made pursuant to
statutory and constitutional authority, clearly falls within the public documents and reports exception at
common law. Because a public official has the obligation to record the gathered statistics and to issue a
certificate of population with regard to the findings, the records are also admissible under New York Civil
Practice Law and Rules 4520.
1283
Beglin v. Metropolitan Life Ins. Co., 173 N.Y. 374, 376, 66 N.E. 102 (1903).
1284
Stein v. Lebowitz-Pine View Hotel, Inc., 111 A.D.2d 572, 489 N.Y.S.2d 635 (3d Dep’t 1985) (death
certificate and coroner’s report admissible as to proof of cause of death under Public Health Law § 4103
and CPLR 4520); Matter of Whitaker, 120 Misc.2d 1021, 466 N.Y.S.2d 947 (Sup. Ct. 1983); Regan v.
National Postal Transport Ass’n, 53 Misc.2d 901, 280 N.Y.S.2d 319 (N.Y. City Civ. Ct. 1967) (death
certificate may be utilized in wrongful death action to establish cause of death); Anderson v. Commercial
Travelers Mutual Accident Ass’n, 73 A.D.2d 769, 423 N.Y.S.2d 542 (3d Dep’t 1979); Brownrigg v. Boston
& Albany R.R., 8 A.D.2d 140, 185 N.Y.S.2d 977 (1st Dep’t 1959); Sherman v. Pullman, 29 A.D.2d 1044,
289 N.Y.S.2d 802 (4th Dep’t 1968); Gioia v. State, 22 A.D.2d 181, 254 N.Y.S.2d 384 (4th Dep’t 1964);
Hoyt v. John Hancock Mut. Ins. Co., 48 Misc.2d 935, 266 N.Y.S. 309 (Sup. Ct. 1966).
1285
In re Estate of Kirkby, 57 Misc.2d 982, 293 N.Y.S.2d 1008 (Sur. Ct. 1968) (birth certificate admissible
under business entry exception on issue of legitimacy).
1286
In re Bartowicz Estate, 254 A.D. 705, 3 N.Y.S.2d 764 (2d Dep’t 1938).
280
281
Certificates of population also are admissible under New York Civil Practice Law and Rules
4530. “A certificate is prima facie evidence of the population in any part of the United States. Census returns,
however, may or may not be admissible, to prove collateral or incidental matter stated therein.” 1288
If admitted to prove collateral matters, the census records do not constitute prima facie
evidence, but they do have probative value. The trier of fact is to determine the weight to be given such
statements. 1289
New York Civil Practice Law and Rules 4530(b) provides that
Where the population of the state or subdivision, or a portion of a

subdivision of the state, is required to be determined according to the
federal or state census or enumeration last proceeding a particular time,” a
certificate as to such population constitutes conclusive evidence of that
determination.
Judicial notice of the population as set forth in official census returns has also been held
appropriate. 1290
17.6.11. Fingerprint Records
Section 60.60 of the Criminal Procedure Law pertains to the report or certificate of a
custodian of fingerprints within the state. Pursuant to subdivision (1) of the statute, the division of criminal
justice services, upon the receipt of an accused’s fingerprints, is to search the records and immediately prepare
and transmit a report containing all information concerning any previous record of defendant.
1287
Workers’ Comp. § 121(a).
1288
Hegler v. Faulkner, 153 U.S. 109, 14 S. Ct. 779, 38 L.Ed. 653 (Neb. 1894) (Indian lists inadmissible to
prove party’s age); Maher v. Empire Life Ins. Co., 110 A.D. 723, 96 N.Y.S. 496 (2d Dep’t 1906) (foreign
census inadmissible to establish age); In re Kennedy, 82 Misc. 214, 143 N.Y.S. 404 (Sur. Ct. 1913)
(foreign census may be admitted to prove relationship).
1289
In re Estate of Kirkby, 57 Misc.2d 982, 293 N.Y.S.2d 1008, reconsid. denied, 59 Misc.2d 584, 299
N.Y.S.2d 873 (Sur. Ct. 1969) (census returns considered in contested estate distribution proceeding as to
matters of marital status and legitimacy).
1290
Trustees of Union College v. City of New York, 65 A.D. 553, 73 N.Y.S. 51 (Sup. Ct. 1901), aff’d, 173
N.Y. 38, 65 N.E. 853 (1903) (judicial notice of population growth).
281
282
A certificate of a custodian of the fingerprints, stating his records show previous convictions
by an individual whose fingerprints are identical with those of the accused, is “presumptive evidence of the
fact of such previous convictions of such offenses.”
17.6.12. Wills
Pursuant to section 2506 of the Surrogate’s Court Procedure Act, a certified copy of a will
previously proved may be recorded in any county and is to be received in evidence, as if the original will had
been produced and proved at that time.
17.6.13. Corporate Books and Records
Section 624(a) of the Business Corporation Law provides a corporation must keep complete
financial records, minutes of shareholders’ and directors’ meetings, and records as to the names and addresses
of its shareholders. Subdivision (g) provides such books and records constitute “prima facie evidence of the
facts therein stated in favor of the plaintiff in any action or special proceeding against such corporation or any
of the officers, directors or shareholders.”
A certificate of incorporation filed by the Department of State is conclusive evidence of
compliance with all conditions precedent to incorporation and that the corporation was formed under the
relevant provisions of the Business Corporation Law, except in actions or special proceedings brought by the
attorney general (Business Corporation Law section 403).
Comparable provisions as to not-for-profit corporations are found in Not-for-Profit
Corporation Law section 106.
17.7. PRIVILEGE
A possible limitatation to the admissibility of public documents, in particular death
certificates, is the rules of privilege. Where the physician’s knowledge as to decedent’s cause of death was
282
283
obtained in a professional capacity and subsequently listed on a death certificate, the certificate, even though
filed with the Board of Health, has been held inadmissible due to the physician-patient privilege. 1291
As a general rule, the privilege may be waived. 1292
Waiver is impermissible where the information has a tendency to disgrace the memory of a
decedent. 1293
17.8. PEDIGREE
Pedigree is the history of family lineage, descent, and succession. 1294
If pedigree is directly at issue in a proceeding, hearsay evidence to prove family relationship
may be admitted. 1295
17.8.1. Rationale
Courts have noted the probative need for hearsay evidence pertaining to pedigree as a result
of the difficulty in establishing descent in accordance with strict rules of evidence. 1296
Descent may involve long-ago events in which any individuals having personal knowledge of
the facts have long since passed away. 1297
1291
Davis v. Supreme Lodge Knights of Honor, 165 N.Y. 159, 58 N.E. 891 (1900); Tinney v. Nielson’s
Flowers, Inc., 61 Misc.2d 717, 305 N.Y.S.2d 713 (Sup. Ct. Nassau Co. 1969), aff’d, 35 A.D.2d 532, 314
N.Y.S.2d 161 (2d Dep’t 1970).
1292
In re Monroe’s Will, 270 A.D. 1039, 63 N.Y.S.2d 141 (2d Dep’t 1946).
1293
Tinney v. Neilson’s Flowers, Inc., 61 Misc.2d 717, 305 N.Y.S.2d 713 (Sup. Ct. Nassau Co. 1969),
aff’d, 35 A.D.2d 532, 314 N.Y.S.2d 161 (2d Dep’t 1970) (privilege as to physician’s statement that a
contributory cause of decedent’s death was psychosis due to alcohol cannot be waived because the
statement disgraces decedent’s memory).
1294
Young v. Shulenberg, 165 N.Y. 385, 59 N.E. 135 (1901); ln re Powers’ Estate, 96 N.Y.S.2d 25 (Sur.
Ct. 1950).
1295
In re Doud’s Estate, 18 A.D.2d 715, 236 N.Y.S.2d 147 (2d Dep’t 1962); Washington v. Bank for
Savings in City of N.Y., 171 N.Y. 166, 63 N.E. 831 (1902); Eisenlord v. Clum, 126 N.Y. 552, 27 N.E. 124
(1891).
1296
Matter of Glaser, 151 Misc. 778, 273 N.Y.S. 860 (Sur. Ct. 1934); Young v. Shulenberg, 165 N.Y. 385,
59 N.E. 135 (1901).
283
284
The courts have also noted that there is a circumstantial guarantee of trustworthiness in such
hearsay evidence. There is an assumption that the declarant had accurate knowledge and was truthful about
the subject. 1298
17.8.2. Applicability
The pedigree exception is not applicable in every proceeding. Its admissibility is strictly
limited to those actions in which the issue of family lineage, descent, or succession is in issue. Thus,
proceedings brought in Surrogate’s Court (for example, probate, administration, or accounting actions)
permit the use of such evidence. 1299
17.8.3. Availability of Other Evidence
Even if nonhearsay evidence of pedigree is available, hearsay evidence is admissible. There is
no requirement that the proponent of the hearsay evidence establish a need for it. 1300
17.8.4. Subjects of Pedigree Evidence
Evidence relating to pedigree consists of statements concerning birth, legitimacy, marriage,
and death; the dates of such events; and other facts necessarily involved in or resulting therefrom. 1301
The pedigree exception does not include hearsay statements pertaining to residence. 1302
1297
Young v. Shulenberg, 165 N.Y. 385, 59 N.E. 135 (1901); People v. Koerner, 154 N.Y. 355, 48 N.E.
730 (1897).
1298
Aalhom v. People, 211 N.Y. 406, 105 N.E. 647 (1914), modified, 157 A.D. 618, 142 N.Y.S. 926 (1st
Dep’t 1913); In re Riggs’ Estate, 68 Misc.2d 760, 328 N.Y.S.2d 138 (Sur. Ct. 1972).
1299
See, e.g., Will of Esther T., 86 Misc.2d 452, 382 N.Y.S.2d 916 (Sur. Ct. 1976); In re Powers’ Estate,
96 N.Y.S.2d 25 (Sur. Ct. 1950).
1300
In re Monty’s Estate, 32 N.Y.S.2d 705 (Sur. Ct. 1941), rev’d, 264 A.D. 7, 34 N.Y.S.2d 1011 (3d Dep’t
1942), rev’d, 289 N.Y. 685, 45 N.E.2d 334(1942).
1301
Washington v. Bank for Savings in City of N.Y., 171 N.Y. 166, 63 N.E. 831 (1902); Young v.
Shulenberg, 165 N.Y. 385, 59 N.E. 135 (1901).
1302
Tevlin v. Kressman, 215 A.D. 844, 213 N.Y.S. 921 (2d Dep’t 1928).
284
285
The pedigree exception also has been applied with regard to ejectment actions in which title
to property is involved. 1303
17.8.5. Declarant to Be Related
An important element to be established before the hearsay evidence will be admitted under
the pedigree exception is that the declarant has to be related to the family, which is affected by the statement
by blood or affinity. 1304
Such relationship may be shown through the testimony of a witness with firsthand
knowledge of declarant’s relationship. 1305
Even other hearsay declarations of the extrajudicial declarant may be used to establish the
requisite relationship. 1306
As a general rule, only slight evidence is necessary. 1307
Common names, religion, or national origin, however, are usually inadequate to establish
relationship. 1308
A birth certificate signed by an individual alleging to be the mother of a child with the same
name as a claimant in an estate proceeding was admissible as a declaration in regard to pedigree. 1309
1303
People v. Tuthill, 176 A.D. 631, 163 N.Y.S. 843 (1st Dep’t 1917) (state, by escheat, claimed title to
property).
1304
In re Monty’s Estate, 32 N.Y.S.2d 705 (Sur. Ct. 1941), rev’d, 264 A.D. 7, 34 N.Y.S.2d 1011 (3d Dep’t
1942), rev’d, 289 N.Y. 685, 45 N.E.2d 334 (1942); See In re Denisuk’s Estate, 34 Misc.2d 137, 226
N.Y.S.2d 511 (Sur. Ct. 1962) (statements of intestate and deceased brother-in-law as to his marriage to
person having same name as claimant admissible).
1305
Will of Esther T., 86 Misc.2d 452, 382 N.Y.S.2d 916 (Sur. Ct. 1976) (decedent’s declarations that
contestant was her son are admissible); Matter of Glaser, 151 Misc. 778, 273 N.Y.S. 860 (Sur. Ct. 1934);
Cf. In re Reedy’s Estate, 49 Misc.2d 81, 266 N.Y.S.2d 964 (Sur. Ct. 1966) (decedent’s declaration
regarding nonexistence of paternal relatives is of probative value).
1306
Matter of Morris, 277 A.D. 211, 98 N.Y.S.2d 997 (3d Dep’t 1956).
1307
Young v. Shulenberg, 165 N.Y. 385, 59 N.E. 135 (1901); Layton v. Krafi, 111 A.D. 842, 98 N.Y.S. 72
(1st Dep’t 1906).
1308
In re Whalen’s Estate, 146 Misc. 176, 261 N.Y.S. 761 (Sur. Ct. 1932).
1309
In re King’s Estate, 31 A.D.2d 758, 297 N.Y.S.2d 588 (1969).
285
286
17.8.6. Unavailability of Declarant
As a general rule, a declarant is deemed unavailable under the pedigree exception if he has
died, is incompetent, or is beyond the court’s jurisdiction. 1310
Some New York courts, however, have required the declarant to be dead. 1311
17.8.7. Establishing Trustworthiness
To be shown as trustworthy, statements must have been made ante litem motam (before the
controversy arose or at a time when there is an absence of motive to distort or misrepresent the true facts). 1312
17.8.8. Examples
A classic example of pedigree evidence is an entry in the family Bible. 1313
In one case, various forms of written pedigree evidence were utilized, including handwritten
family history notes, recorded deeds and mortgages, marriage and baptismal records, government consensus
records, a grave site purchase receipt, tombstone inscriptions, a petition for letters of administration, and even
a valentine. 1314
Other examples include bank statements of various banks containing information provided
by the depositor. Even though such written declarations were not made by the declarant personally, they were
made by someone with his direction. 1315
General reputation in the family is another form of pedigree evidence. 1316
1310
Young v. Shulenberg, 35 A.D. 79, 54 N.Y.S. 419 (3d Dep’t 1898), aff’g, 165 N.Y. 385, 59 N.E. 135
(1901).
1311
Kass v. Metropolitan Life Insurance Co., 252 A.D. 888, 300 N.Y.S. 193 (2d Dep’t 1937), aff’d, 278
N.Y. 512, 15 N.E.2d 671 (1938); In re Wood’s Estate, 164 Misc. 425, 299 N.Y.S. 195 (Sur. Ct. 1937); In
re Mosley’s Will, 138 Misc. 847, 247 N.Y.S. 520 (Sur. Ct. 1931).
1312
Aalhom v. People, 211 N.Y. 406, 105 N.E. 647 (1914); People v. Fulton Fire Insurance Co., 25 Wend.
205 (N.Y. 1840); In re Whalen’s Estate, 146 Misc. 176, 261 N.Y.S. 761 (Sur. Ct. 1932).
1313
Chamberlain v. Chamberlain, 71 N.Y. 423 (1888); Hunt v. Johnson, 19 N.Y. 279 (1859).
286
287
Conduct also may constitute pedigree evidence. 1317
17.8.9. Hearsay Upon Hearsay Sufficient
The hearsay declarations need not have been based upon the personal knowledge of the
declarant. Hearsay upon hearsay may be admissible provided the hearsay information to which the declarant
referred was obtained from an individual who, like the declarant, was related to the subject family by blood or
affinity. 1318
17.8.9.1. Rebutting Pedigree Evidence
Although pedigree statements are admissible, the trier of fact need not accept them as true.
The declarations may be given the weight they warrant, the trier of fact is to take into account that declarant
may have had some reason for alleging or denying the relationship. 1319
A declarant’s pedigree statement is subject to impeachment by proof of a contradictory
declaration by him. 1320
Oral statements pertaining to pedigree are considered suspicious, given the faultiness of
memory, the remoteness of family relationships, and the possibility family pride has led to slanting or
exaggerating the information. 1321
1314
In re Wood’s Estate, 164 Misc. 425, 299 N.Y.S. 195 (Sur. Ct. 1937); Accord, Conn. v. Boylan, 224
N.Y.S.2d 823 (Sup. Ct. 1962) (inscriptions on headstones).
1315
In re Deutscher’s Estate, 132 Misc. 205, 229 N.Y.S. 814 (Sur. Ct. 1928).
1316
Chamberlain v. Chamberlain, 71 N.Y. 423 (1877); Jacobs v. Fowler, 135 A.D. 713, 119 N.Y.S. 647
(2d Dep’t 1909).
1317
Chamberlain v. Chamberlain, 71 N.Y. 423 (1877); In re Schiff’s Estate, 136 Misc. 129, 238 N.Y.S. 778
(Sur. Ct. 1930).
1318
Eisenlord v. Clum, 126 N.Y. 552, 27 N.E. 124 (1891); In re Greer’s Estate, 88 N.Y.S.2d 807 (Sur. Ct.
1947), aff’d, 274 A.D. 981, 85 N.Y.S.2d 308 (1st Dep’t 1948).
1319
Will of Ester T., 86 Misc.2d 452, 382 N.Y.S.2d 916 (Sur. Ct. 1976).
1320
Matter of Strong, 168 Misc. 716, 6 N.Y.S.2d 300 (Sur. Ct. 1938), aff’d. 256 A.D. 971, 11 N.Y.S.2d 225
(1st Dep’t 1939).
1321
In re Layh’s Estate, 55 Misc.2d 92, 284 N.Y.S.2d 511 (S. Ct. 1967); Johnson v. LaSala Mason Corp.,
19 A.D.2d 925, 244 N.Y.S.2d 31 (3d Dep’t 1963).
287
288
Written statements are afforded greater weight than oral statements since many of the
negative factors are considered absent. 1322
The weight to be given to pedigree statements depends upon the facts of each particular case.
1323
1322
In re Schiff’s Estate, 136 Misc. 129, 238 N.Y.S. 778 (Sur. Ct. 1930).
1323
In re Riggs’ Estate, 68 Misc.2d 760, 328 N.Y.S.2d 138 (Sur. Ct. 1972).
288
289
CHAPTER 18 JUDICIAL NOTICE
18.1. STATUTE
New York Civil Practice Law and Rules 4511. Judicial Notice of Law.
(a) When judicial notice shall be taken without request.
Every court shall take judicial notice without request of the common law,
constitutions and public statutes of the United States and of every state,
territory and jurisdiction of the United States and of the official compilation
of codes, rules and regulations of the state except those that relate solely to
the organization of internal management of an agency of the state and of all
local laws and county acts.
(b) When judicial notice may be taken without request; it shall be taken on
request.
Every court may take judicial notice without request of private acts and
resolutions of the congress of the United States and of the legislature of the
state; ordinances and regulations of officers, agencies or governmental
subdivisions of the state or of the United States; and the laws of foreign
countries or other political subdivisions. Judicial notice shall be taken of
matters specified in this subdivision if a party requests it, furnishes the
court sufficient information to enable it to comply with the request, and has
given each adverse party notice of his intention to request it. Notice shall be
given in the pleadings or prior to the presentation of any evidence at the
trial, but a court may require or permit other notice.
(c) Determination by court; review as matter of law. Whether a matter is

judicially noticed or proof is taken, every matter specified in this section
shall be determined by the judge or referee, and included in his findings or
charged to the jury. Such findings or charge shall be subject to review on
appeal as a finding or charge on a matter of law.
(d) Evidence to be received on matter to be judicially noticed. In considering

whether a matter of law should be judicially noticed and in determining the
matter of law to be judicially noticed, the court may consider any testimony,
document, information or argument on the subject, whether offered by a
party or discovered through its own research. Whether or not judicial
notice is taken, a printed copy of a statute or other written law or a
proclamation, edict, decree or ordinance by an executive contained in a
book or publication, purporting to have been published by a government or
commonly admitted as evidence of the existing law in the judicial tribunals
of the jurisdiction where it is in force, is prima facie evidence of such law
289
290
and the unwritten or common law of a jurisdiction may be proved by

witnesses or printed reports of cases in the courts of the jurisdiction.
18.2. MATTERS OF LAW
Where the court takes judicial notice of a law, it will read the law to the jury, even though
there has been no proof of the law. 1324
Courts must take judicial notice of the law and statutes for New York state. 1325
The court is required to take judicial notice of the official compilations of codes, rules, and
regulations of New York state and of all local laws and county acts. 1326
The court must take judicial notice of the laws of other states as well. 1327
A court may take judicial notice, without request, of ordinances and regulations of officers,
agencies, or governmental subdivisions of the state or of the United States. Upon request, the court must take
judicial notice of such ordinances and regulations, as long as the party requesting judicial notice furnishes the
court with sufficient information to enable it to comply with the request.
The party must give the adverse parties notice of intention to request such judicial notice, in
the pleadings or otherwise before trial. 1328
1324
Green v. Downs, 27 N.Y.2d 205, 265 N.E.2d 68, 316 N.Y.S.2d 221 (1970).
1325
Souveran Fabrics Corp. v. Virginia Fibre Corp., 32 A.D.2d 753, 301 N.Y.S.2d 273 (1st Dep’t 1969);
NYACK Rural Cemetery, Inc. v. State, 32 Misc. 2d 828, 225 N.Y.S.2d 815,1962 N.Y. Misc. LEXIS 3693
(1962) (judicial notice of laws and statutes can be read into claim to determine motion to dismiss for
failure to state cause of action); Gass v. Flynn, 57 Misc.2d 893, 293 N.Y.S.2d 791 (Sup. Ct. Kings Co.
1968); Lawrence v. Corwin, 75 A.D.2d 840, 427 N.Y.S.2d 865 (2d Dep’t 1980) (judicial notice of acts of
Congress).
1326
Sansiverow v. Garz, 20 A.D.2d 723, 247 N.Y.S.2d 596 (2d Dep’t 1964) (judicial notice of New York
City Traffic Regulations); Souveran Fabrics Corp. v. Virginia Fibre Corp., 32 A.D.2d 753, 301 N.Y.S.2d
273 (1st Dep’t 1969).
1327
CPLR 4511(a)
1328
CPLR 4511(b)
290
291
The court may take judicial notice without request of the laws of foreign countries. It must
take such judicial notice if a party requests it, furnishes the court with sufficient information to enable it to
comply with the request, and has given each adverse party notice of its intention to request it. 1329
Notice may be given in pleadings or prior to the presentation of evidence at trial, but a court
may require or permit other notice. 1330
The court may consider any testimony, document, information, or argument on the issue of
whether judicial notice should be taken. 1331
The court may conduct its own research to determine whether a matter of law should be
judicially noticed. 1332
A printed copy of a statute or other written law or ordinance, which is published by a
government or commonly admitted as evidence of the existing law of courts in the jurisdiction, is prima facie
evidence of such law. Common law may be proven by witnesses or reports of cases. 1333
A court may take judicial notice of its own records. 1334 Undisputed portions of court files or
official records, such as prior orders or kindred documents, may be judicially noticed. 1335 This of course does
not mean that any document in the court file is admissible in evidence. An affidavit contained in a court file
does not become admissible in evidence merely because it is contained in the court file. 1336 There must be
some independent ground of admissibility.
1329
CPLR 4511(b)
1330
CPLR 4511
1331
CPLR 4511(d)
1332
CPLR 4511(d); NYACK Rural Cemetary, Inc. v. State, 32 Misc. 2d 828, 225 N.Y.S.2d 815,1962 N.Y.
Misc. LEXIS 3693 (1962) (judicial notice of laws and statutes can be read into claim to determine motion
to dismiss for failure to state cause of action).
1333
CPLR 4511(d)
1334
Casson v. Casson, 107 A.D.2d 342, 486 N.Y.S.2d 191 (1st Dep’t 1985).
1335
1336
291
292
A court may take judicial notice of facts within the judge’s personal knowledge, derived from
an unrelated case that came before the court. 1337
The court may take judicial notice of U.S. patents. 1338
Public records may be judicially noticed. 1339
A manual prepared by the State relating to highway design was not a “public record” and
could not be judicially noticed in a case against the state for negligent failure to replace a guard rail on a
highway. 1340
Courts must take judicial notice of the Administrative Code of the City of New York,
regulations of the US. Occupational Safety and Health Administration, the Consumer Products Safety
Commission, National Highway Traffic Safety Administration, and the like, upon request and receipt of
adequate information.
18.3. MATTERS OF FACT
Some facts may be established without the use of evidence. If the court takes judicial notice
of a fact, or the opponent admits the fact through pleadings, a notice to admit or stipulation is unnecessary on
that fact.
The test is whether the fact rests upon knowledge or sources so widely accepted and
unimpeachable that it need not be evidentiarily proven. 1341
1337
Sam & Mary Housing Corp. v. Jo/Sal Market Corp., 100 A.D.2d 901, 474 N.Y.S.2d 786 (2d Dep’t
1984), appeal dismissed, 62 N.Y.2d 941, 468 N.E.2d 53, 479 N.Y.S.2d 215 (1984).
1338
Barr Rubber Products Co. v. Son Rubber Co., 425 F.2d 1114, 1970 U.S. App.
LEXIS 9461, 165 U.S.P.Q. (BNA) 429, 1970 Trade Cas. (CCH) P 73161, 14 Fed. R. Serv. 2d (Callaghan)
57 (2d Cir. N.Y. 1970cert. denied, 400 U.S. 878, 91 S. Ct. 118, 27 L.Ed.2d 115 (1970).
1339
Siwek v. Mahoney, 39 N.Y.S.2d 159, 347 N.E.2d 599, 383 N.Y.S.2d 238 (Erie Co. 1976).
1340
Kissenger v. State, 126 A.D.2d 139, 513 N.Y.S.2d 275 (3d Dep’t 1987).
1341
Ptasznik v. Schultz, 247 A.D.2d 197; 679 N.Y.S.2d 665; 1998 N.Y. App. Div. LEXIS (2d Dep't 1998)..
292
293
The court may take judicial notice of facts that are common knowledge. The issue is not what
the judge happens to know, but whether the fact is common knowledge in the community. The court may
refer to documents and references to refresh its recollection. 1342
If the fact is not commonly known, but the court can readily ascertain it from an indisputable
source, the court may take judicial notice of the fact.
The more important the issue, the less likely it is that the court will take judicial notice of a
fact determining that issue. 1343
The following are some examples of instances in which the court took judicial notice of facts:
1344
Judicial notice is improper unless the fact is common knowledge or determinable by resort to
sources of indisputable accuracy. 1345
1342
CPLR 4511(d)
1343
Transworld Airlines, Inc. v. Hughes, 308 F. Supp. 679, 1969 U.S. Dist. LEXIS 12483,1970 Trade
Cas.(CCH) P 73017 (S.D.N.Y. 1969).
1344
Gasper v. Ford Motor Co., 13 N.Y.2d 104, 192 N.E.2d 163, 242 N.Y.S.2d 205 (1963) (that a window
was not designed or intended to hold weight of a man is common engineering knowledge). Hunt v. Board
of Ed. of Schenectady, 43 A.D.2d 397, 352 N.Y.S.2d 237 (3d Dep’t 1974) (nature and use of monkey bars
in playground is one of common knowledge); Battalla v. State, 26 A.D.2d 203, 272 N.Y.S.2d 28 (3d Dep’t
1966), aff’d, 24 N.Y.2d 980, 250 N.E.2d 224, 302 N.Y.S.2d 813 (1969) (the fact that fright can have
serious mental and physical consequences is common knowledge); Kaempfe v. Lehn & Fink Products
Corp., 21 A.D.2d 197, 249 N.Y.S.2d 840 (1st Dep’t 1964) (common knowledge that many persons are
allergic to ingredients that do not affect normal individuals); Meisenzahl v. McAvoy, 31 Misc.2d 511, 222
N.Y.S.2d 747 (Sup. Ct. Monroe Co. 1962), aff’d, 15 A.D.2d 720, 222 N.Y.S.2d 1022 (4th Dep’t 1962) (that
a highway was subject to considerable traffic); Spica v. Connor, 56 Misc. 2d 364, 288 N.Y.S.2d 719, 1968
N.Y. Misc. LEXIS 1651 (1968). (Co. Ct. Suffolk Co. 1968) (common knowledge that wheel will not leave
automobile unless there has been negligence in installation or maintenance of wheel); Miller v. Food Fair
Stores, Inc., 63 A.D.2d 766, 404 N.Y.S.2d 740 (3d Dep’t 1978) (judicial notice that customer entering
store has attention focused on merchandise and display and cannot be expected to be watching the floor
as he enters); Muszynski v. City of Buffalo, 49 Misc.2d 957, 268 N.Y.S.2d 753 (Sup. Ct. Erie Co. 1966),
rev’d, 33 A.D.2d 648, 305 N.Y.S.2d 163 (4th Dep’t 1969), aff’d, 29 N.Y.2d 810, 277 N.E.2d 414, 327
N.Y.S.2d 368 (1971) (judicial notice that salt on highways and sidewalks results in fewer accidents);
Garcia v. Freeland Realty, Inc., 63 Misc.2d 937, 314 N.Y.S.2d 215 (N.Y. Civ. Ct. 1970) (lead poisoning to
children results in mental retardation and death and occurs when paint peels off of slum apartment walls
and flakes are eaten by child); Gass v. Flynn, 57 Misc.2d 893, 293 N.Y.S.2d 791 (Sup. Ct. Kings Co.
1968); (judicial notice in rear-end collision that green light goes out as yellow light goes on, yellow light
remains on from 1.8 seconds to 2.7 seconds, and then the red light goes on).
293
294
The stopping distance for specialized vehicles is not a proper matter for judicial notice, since
specialized vehicles are not commonly operated by, and known to, the general public. 1346
There are many factors that affect the stopping distance of a motor vehicle, including the
reaction time among individual drivers, the weight of the vehicle, the type and condition of brakes, the force
with which the brakes are applied, and the type and condition of the roadway surface. The factors are
interrelated.
A chart issued by the State of Connecticut showing average stopping distances for an
automobile under favorable conditions was held to be inadmissible, since it was based on assumptions as to
the many variables. 1347
The better practice is to have opinion testimony of an expert as to the speed of the motor
vehicle, based on skid marks and other physical facts proven on the trial of each particular case. 1348
Courts may take judicial notice of scientific facts as long as they are common knowledge. 1349
Some matters are considered common knowledge, but not appropriate subjects for judicial
notice, since they are based on rumor or gossip. 1350
Judicial notice given to matters of common knowledge may provide a factual basis for the
court to reach legal conclusions. 1351
1345
Crater Club, Inc. v. Adirondack Park Agency, 86 A.D.2d 714, 466 N.Y.S.2d 565 (3d Dep’t 1982)
(contents of letter); La Lima v. Fath, 36 A.D.2d 923, 320 N.Y.S.2d 882 (1st Dep’t 1971) (judicial notice of
life expectancy tables is improper where no proof of permanent injury).
1346
Keppler v. New York Central R.R. Co., 263 AD. 199, 32 N.Y.S.2d 673 (3d Dep’t 1942) (a train).
1347
Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 (2d Dep’t 1980), citing State v. Tomanelli, 153
Conn. 365, 216 A.2d 265 (1966).
1348
Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 (2d Dep’t 1980), citing Tomas v. Commerford,
168 Conn. 64, 69, 357 A.2d 476 (1975).
1349
Merrill Transport Company v. State, 94 A.D.2d 39, 464 N.Y.S.2d 249 (3d Dep’t 1983) (judicial notice
that spilled oil can seep through the ground into the surface and ground water and cause ecological
damage).
1350
DeVaul v. Carvigo Inc., 138 A.D.2d 669, 526 N.Y.S.2d 483 (2d Dep’t 1988), appeal dismissed, 72
N.Y.2d 914, 532 N.Y.S.2d 848, 529 N.E.2d 178 (1988) (viciousness of German shepherd dogs not an
appropriate subject for a judicial notice).
294
295
A court could take judicial notice of the fact that individuals who suffer loss of a body part,
whether a breast, ear, finger, or otherwise, suffer emotional trauma. 1352
The court can take judicial notice of the consumer price index. 1353
A court cannot judicially notice the appropriate rate of interest to use for discount purposes.
1354
1351
See Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 398 N.E.2d 517, 422 N.Y.S.2d 911 (1979)
(accidental falls out windows are sometimes suicide leaps; therefore, victim’s mental condition is an
issue); Locilento v. John A. Coleman Catholic High School, 134 A.D.2d 39, 523 N.Y.S.2d 198, 44 L.Ed.
Law Rep. 545 (3d Dep’t 1987) (common knowledge that tackling injuries occur in football even when the
players are professionally trained and equipped).
1352
Matter of Shirley C., 136 Misc.2d 843, 519 N.Y.S.2d 328 (Sup. Ct. Suffolk Co. 1987).
1353
City of Hope, Inc. v. Fisk Building Associates, 63 A.D.2d 946, 406 N.Y.S.2d 472 (1st Dep’t 1978).
1354
Bregman v. Meehan, 125 Misc. 2d 332, 479 N.Y.S.2d 422, 1984 N.Y. Misc. LEXIS 3413 (Sup. Ct.
1984) (U.S. Government bonds could not be judicially noticed as having the rate of interest appropriate to
use for discount purposes).
295
296
CHAPTER 19 PRESUMPTIONS
19.1. In Civil Actions and Proceedings
The word “presumption” means different things. A conclusive or irrebuttable presumption
means that when A is shown, then B is to be presumed without question, and the existence of B cannot be
rebutted. If the jury finds A, then it must find B.
The word “presumption” refers to a rule that allocates the burden of producing evidence to
another. The word “inference,” on the other hand, refers to the process by which a person draws a conclusion
based on reasoning and experience. An inference does not shift a burden of proof, while a presumption does.
Presumption usually refers to a logical inference from one fact to another. Proof constantly
requires the use of circumstantial evidence from which an inference can be drawn. Long skid marks on
pavement infer the vehicle was traveling fast. Dropping a letter in a mailbox infers that the addressee received
the letter.
Presumptions, assumptions, inferences, and substantive law may be similar concepts, but a
presumption has meaning relating to the judge’s charge, rather than merely the jury’s reasoning process, and
therefore the concepts must be kept distinct.
What is likely is often presumed in the absence of evidence to the contrary. For example, it is
convenient and fair to assume that a person is sane or that a letter which was mailed reached the addressee.
Often the reason for creating a presumption is that the evidence is more accessible to one party than to
another, so it is fair to cause him to produce the evidence, if he has any.
The main problem with presumptions is determining what to do if the opponent produces
evidence that rebuts the presumption. What happens to the presumption? When do you conclude that the
presumption is destroyed and disappears?
Thus, if an addressee testifies that he never received the letter, the presumption of receipt is
ended. There still remains a rational inference that the letter was received, but there is no rule to the effect
that the letter was received. The jury could still find that the letter was received, because it disbelieves the
testimony of nonreceipt.
296
297
If, on the other hand, the juror is undecided what to believe, the party with the burden of
proving the fact must lose. Who has the burden of persuading the juror as to the existence or nonexistence of
the fact?
If the production burden to rebut the presumption is met, should the presumption be
mentioned to the jury at all? Should the jury be told that an inference is permitted, rather than a presumption?
A number of cases have addressed such issues in particular factual situations. 1355
How much evidence is required to remove a presumption from the consideration of the jury
appears to depend upon the strength of the presumption. 1356
In addition to presumptions created by the legislature, the courts have engrafted
presumptions to deal with particular factual situations. 1357
19.2. PERMISSIVE USE
There is a presumption that permission was given by the owner of the vehicle to the driver.
1358
The presumption of permissive use is controlling until it is rebutted. It may be rebutted by
proof that permission was never given or that only conditional permission was given. 1359
1355
People v. Nemadi, 140 Misc.2d 712, 531 N.Y.S.2d 693 (N.Y.C. Crim. Ct. 1988) (conclusive
presumption requires particular inference to be drawn); Hanely v. Flanigan, 104 Misc.2d 698, 428
N.Y.S.2d 865 (N.Y. Fam. Ct. 1980) (conclusive presumption is really a rule of substantive law);
Schelberger v. Eastern Savings Bank, 93 A.D.2d 188, 461 N.Y.S.2d 785 (1st Dep’t 1983), aff’d, 60
N.Y.2d 506, 458 N.E.2d 1225, 470 N.Y.S.2d 548 (1983) (presumption against suicide does not vanish
from case after contrary proof produced, but is to be considered by the jury in evaluating the evidence);
Leotta v. Plessinger, 8 N.Y.2d 449, 171 N.E.2d 454, 209 N.Y.S.2d 304 (1960) (presumption is rebutted by
substantial evidence to the contrary).
1356
See, e.g., Commissioner of Welfare v. Rose, 283 A.D. 781, 128 N.Y.S.2d 355 (1st Dep’t 1954)
(presumption of legitimacy rebutted by evidence to entire satisfaction of court).
1357
E.g., Verni v. Johnson, 295 N.Y. 436, 68 N.E.2d 431, 174 A.L.R. 1078 (1946) (child under four
incapable of contributory negligence); Ehrlich v. Marra, 32 A.D.2d 638, 300 N.Y.S.2d 81 (2d Dep’t 1969)
(child four years and ten months crossing street under supervision and direction of mother incapable of
contributory negligence); Romanchuck v. County of Westchester, 40 A.D.2d 877, 337 N.Y.S.2d 926 (2d
Dep’t 1972) (child five years old put on sled and sent down hill by father is struck by truck; child incapable
of negligence); See PJI 2:23; PJI 2:48.
1358
PJI 1:63; Leotta v. Plessinger, 8 N.Y.2d 449, 171 N.E.2d 454, 209 N.Y.S.2d 304 (1960).
1359
Lovetere v. Stackhouse, 25 A.D.2d 628, 267 N.Y.S.2d 758 (1st Dep’t 1966) (controlling until
rebutted); PJI 2:247 (permission conditioned upon driver taking riders); Smyth v. Pelligrino, 28 A.D.2d
537, 279 N.Y.S.2d 694 (2d Dep’t 1967) (permitting no one else to drive); Fiocco v. Carver, 234 N.Y. 219,
297
298
Whether the presumption of permissive use is rebutted is a question either for the court or
for the jury, depending on whether a fair interpretation of evidence could yield a conclusion by the jury that
permission had been granted. Ordinarily, the questions are for the jury. 1360
The presumption is “very strong,” and credibility is usually an issue. When there is
substantial evidence rebutting the presumption, it disappears from the case. 1361
In that case, unless proof of permission is presented, the complaint must be dismissed. 1362
The court must instruct the jury of the presumption, if it instructs the jury of the burden of
proving permission. 1363
If the presumption has been rebutted as a matter of law, the presumption should not be
mentioned to the jury. The jury will decide the issue as to whether permission was given based on all the
evidence in the case.
If the sole evidence is that the owner denies permission, the presumption should be
mentioned. The issue of whether the presumption is overcome is for the jury to decide. 1364
If the owner contends that the driver violated a condition of the permission, the court will
instruct the jury that there is a presumption that permission was given, unless they believe that there was
such a condition and that the condition was violated. 1365
19.3. OWNERSHIP OF AUTOMOBILE
A person is presumed to own any car registered to him. 1366
A defendant in a personal injury case cannot claim that a car registered to him is in fact
owned by someone else. 1367
137 N.E. 309 (1922) (using car in given area or for particular purpose); Rachon v. Chevuant, 37 A.D.2d
911, 325 N.Y.S.2d 452 (4th Dep’t 1971) (used during daylight hours only).
1360
Leotta v. Plessinger, 8 N.Y.2d 449, 171 N.E.2d 454, 209 N.Y.S.2d 304 (1960).
1361
St. Andrassy v. Mooney, 262 N.Y. 368, 186 N.E. 867 (1933).
1362
In re Magna, 258 N.Y. 82, 179 N.E. 266 (1932).
1363
Rivera v. W & R Serv. Sta., 34 A.D.2d 115, 309 N.Y.S.2d 274 (1st Dep’t 1970).
1364
PJI 1:63 (comment).
1365
PJI 1:63.
1366
Aetna Cas. & Surety Co. v. Brice, 72 A.D.2d 927, 422 N.Y.S.2d 203 (1979), aff’d, 50 N.Y.2d 958, 409
N.E.2d 1000, 431 N.Y.S.2d 528 (1980).
298
299
In a property damage claim, a plaintiff cannot claim a car is owned by him if it is not
registered to him. 1368
19.4. OWNERSHIP OF PROPERTY
A person who possesses property is presumed to own it, although any explanation of the
possession may overcome the presumption. 1369
19.5. AGAINST SUICIDE
There is a presumption against suicide. 1370
The presumption against suicide shifts the burden of proof, so the insurance company has the
burden of proving that the insured committed suicide. 1371
The jury is told of the presumption against suicide in the charge. 1372
19.6. RECEIPT OF MAIL
There is a presumption that a letter mailed in the regular course of business and in
1373
accordance with office practice and procedure was received. Denial of receipt by the addressee is
inadequate to rebut the presumption. 1374
There must be proof submitted that there is an office practice and procedure of duly
addressing and mailing the notice, and the procedure is carefully followed to ensure the likelihood that the
1367
Elfeld v. Burkham Auto Renting Co., 299 N.Y. 336, 87 N.E.2d 285, 13 A.L.R.2d 370 (1949).
1368
Scholock v. Fifth Avenue Coach Co., 188 Misc. 476, 68 N.Y.S.2d 208 (Mun. Ct. 1947).
1369
Rawley v. Brown, 71 N.Y. 85 (1877); Bata v. Chase Safe Deposit Co., 99 N.Y.S.2d 535 (S. Ct. 1950),
aff’d, 279 A.D. 182, 108 N.Y.S.2d 659 (1951), aff’d, 306 N.Y. 96, 115 N.E.2d 672 (1953).
1370
PJI 1:63; Schelberger v. Eastern Savings Bank, 60 N.Y.2d 506, 458 N.E.2d 1225, 470 N.Y.S.2d 548
(1983).
1371
Begley v. Prudential Insurance Company of America, 1 N.Y.2d 530, 136 N.E.2d 839, 154 N.Y.S.2d
866 (1956); Ostrander v. Travelers Insurance Co., 265 N.Y. 467, 193 N.E. 274 (1934).
1372
Schelberger v. Eastern Savings Bank, 93 A.D.2d 188, 461 N.Y.S.2d 785 (1st Dep’t 1983), aff’d, 60
N.Y.2d 506, 458 N.E.2d 1225, 470 N.Y.S.2d 548 (1983); PJI 1:63.
1373
For a suggested charge in a presumption of receipt case, see PJI 1:63
1374
Nassau Insurance Co. v. Murray, 46 N.Y.2d 828, 386 N.E.2d 1085, 414 N.Y.S.2d 117 (1978); Allstate
Insurance Co. v. Patrylo, 144 A.D.2d 243, 533 N.Y.S.2d 436 (1st Dep’t 1988).
299
300
letter was properly addressed and mailed. Testimony by someone with personal knowledge of the regular
course of business is adequate. It is not necessary for the person in charge of mailing to testify. 1375
There is a presumption that receipt occurred five days after mailing. 1376
It must be shown that the letter was placed in the outgoing mail box, and the clerk in charge
of taking those letters from the receptacle and putting them into the U.S. mailbox invariably did so. 1377
There must be evidence that there is an office practice with regard to mailing that ensures the
likelihood that the mail was properly addressed and mailed. 1378
If the letter was incorrectly addressed, there is no presumption that it was received. 1379
A properly endorsed certificate of mailing creates a conclusive presumption that the notice
was mailed. 1380
An affidavit of service creates the presumption that the document was mailed and received.
1381
Service of papers by mail is complete upon deposit in the mailbox. 1382
Just as there is a presumption that a letter once mailed has been received, there is a converse
presumption that if a letter was not received, it was not mailed. 1383
Such a presumption would apply only when there is inadequate proof of proper mailing.
Where a secretary submits an affidavit that her practice is to note in the file when pleadings
or notices of motions are received, the presumption of receipt is overcome, requiring a hearing and the finding
of fact to determine whether the papers were received by the addressee. 1384
1375
Matter of Lumberman’s Mutual Casualty Co., 135 A.D.2d 373, 521 N.Y.S.2d 432 (1st Dep’t 1987).
1376
Bartolomie v. Heckler, 597 F. Supp. 1113 (N.D.N.Y. 1984).
1377
Felician v. State Farm Mutual Insurance Co., 113 Misc.2d 825, 449 N.Y.S.2d 887 (Sup. Ct. Queens
Co. 1982).
1378
Claim of Colyar, 129 A.D.2d 946, 515 N.Y.S.2d 330 (3d Dep’t 1987).
1379
Optivision, Inc. v. Syracuse Shopping Center Associates, 472 F. Supp. 665 (N.D.N.Y. 1979).
1380
Allstate Insurance Co. v. Peruche, 100 A.D.2d 935, 474 N.Y.S.2d 845 (2d Dep’t 1984).
1381
Watt v. New York City Transit Authority, 97 A.D.2d 466, 467 N.Y.S.2d 655 (2d Dep’t 1983).
1382
Vita v. Heller, 97 A.D.2d 464, 467 N.Y.S.2d 652 (2d Dep’t 1983).
1383
Teichberg v. D.H. Blair & Co., 63 Misc.2d 1073, 314 N.Y.S.2d 284 (Sup. Ct. N.Y. Co. 1970).
1384
Vita v. Heller, 97 A.D.2d 464, 467 N.Y.S.2d 652 (2d Dep’t 1983).
300
301
19.7. INTENT
A person is presumed to intend the natural and probable consequences of his acts. 1385
19.8. INNOCENCE AND ABSENCE OF WRONGDOING
Innocence is presumed, both in criminal cases and in civil cases. 1386
In a civil case, where there is equal evidence that the party did or did not do a wrongful act, it
is presumed that the person did not do a wrongful act. 1387
19.9. CONTINUATION OF CONDITIONS
There is a presumption that conditions continue to exist until they are shown to have
changed, as long as the lapse of time does not create a commonsense inference that the situation could have
changed from unknown circumstances or causes. 1388
There is a presumption that if a situation exists at one point in time, it existed before that
time, but the presumption is said to have very limited worth. 1389
Other courts consider the general rule to be that the presumption of continuance does not
“flow backwards,” i.e., a past condition cannot be inferred from evidence of the present condition. 1390
Whether it can be presumed that a condition existed previously depends on the facts. 1391
1385
People v. Magee, 102 Misc.2d 345, 423 N.Y.S.2d 417 (Sup. Ct. N.Y. Co. 1979).
1386
Crim. Proc. Law § 300.10 (criminal); State University of New York v. Denton, 35 A.D.2d 176, 316
N.Y.S.2d 297 (4th Dep’t 1970).
1387
DeMayo v. Yates Realty Corp., 35 A.D.2d 700, 314 N.Y.S.2d 918 (1st Dep’t 1970), aff’d, 28 N.Y.2d
894, 271 N.E.2d 559, 322 N.Y.S.2d 727 (1971); Rooney v. S.A. Healy Co., 26 A.D.2d 671, 272 N.Y.S.2d
843 (2d Dep’t 1966) rev’d, 20 N.Y.2d 42, 228 N.E.2d 383, 281 N.Y.S.2d 321 (1967).
1388
Hynes v. Sloma, 59 A.D.2d 1014, 399 N.Y.S.2d 745 (4th Dep’t 1977); McFarland v. Gregory, 425
F.2d 443 (2d Cir. 1970).
1389
McFarland v. Gregory, 425 F.2d 445 (2d Cir. 1970).
1390
Smith v. Campbell, 270 A.D. 668, 66 N.Y.S.2d 51 (1946); Matter of Chollar, 200 Misc. 948, 107
N.Y.S.2d 192 (1951).
1391
See Clapper v. Town of Waterford, 16 N.Y.S. 640 (1891), rev’d on other grounds, 131 N.Y. 382, 30
N.E. 240 (1892) (condition of bridge presumed to be the same the night before as in the morning); Bailey
v. Baker’s Air Force Gas Corp., 50 A.D.2d 129, 376 N.Y.S.2d 212 (3d Dep’t 1975); Larsen Baking Co. v.
Cay of New York, 30 A.D.2d 400, 292 N.Y.S.2d 145 (2d Dep’t 1968), aff’d, 24 N.Y.2d 1036, 250 N.E.2d
356, 303 N.Y.S.2d 80 (1960) (presumption may be applied backward in time from condition).
301
302
19.10. LEGITIMACY
There is a presumption that a child born to a married woman is legitimate, even if the wife
was adulterous. 1392
The presumption exists even though the husband and wife are separated or living apart,
absent proof of nonaccess. 1393
Blood tests can exclude the husband as the father. 1394
19.11. MARRIAGE
Where two persons publicly maintain the relationship of husband and wife, it is presumed
that they are married, that their marriage is valid, and that any prior marriages were dissolved. 1395
19.12. SANITY
Every person is presumed sane, but in a criminal case, the presumption, once rebutted by the
defendant, is not required to be charged to the jury. 1396
19.13. MISCELLANEOUS
There has been said to be a presumption of undue influence that arises from illicit sexual
cohabitation. 1397
There is presumption that a bailee negligently damaged property, if it was delivered to the
bailee in good condition and was returned damaged. 1398
1392
Irma N. v. Carlos A.F., 46 A.D.2d 893, 361 N.Y.S.2d 701 (2d Dep’t 1974).
1393
Backus v. Backus, 72 A.D.2d 893, 422 N.Y.S.2d 161 (3d Dep’t 1979); Hawthorne v. DeBoth, 42
A.D.2d 827, 345 N.Y.S.2d 806 (4th Dep’t 1973); Joan G. v. Robert W., 83 A.D.2d 838, 441 N.Y.S.2d 709
(2d Dep’t 1981).
1394
CPLR 3121 (blood tests discoverable where relationship at issue); Family Ct. Act §§ 418, 532 (blood
tests can exclude husband as father in support and paternity proceedings); Family Ct. Act § 418 (human
leukocyte antigen blood tissue test).
1395
Fischer v. Endres Del. Co. Inc., 45 A.D.2d 892, 357 N.Y.S.2d 222 (3d Dep’t 1974); Maltzer v. McAnn
Bar & Grill, 85 A.D.2d 826, 445 N.Y.S.2d 655 (3d Dep’t 1981); In re Goethie’s Will, 9 Misc.2d 906, 161
N.Y.S.2d 785 (Westchester Co. 1957).
1396
Gomboy v. Mitchell, 57 A.D.2d 916, 395 N.Y.S.2d 55 (2d Dep’t 1977); People v. Jandelli, 116 Misc.2d
384, 455 N.Y.S.2d 728 (1982).
1397
Platt v. Elias, 186 N.Y. 374, 79 N.E. 1 (1906).
302
303
In such case, the burden of going forward with evidence is switched by the presumption.
1398
Aronette Mfg. Co. v. Capitol Piece Dye Works, 6 N.Y.2d 465, 160 N.E.2d 842, 190 N.Y.S.2d 361
(1959).
303
304
CHAPTER 20 PRIVILEGES
20.1. GENERAL RULE
Certain communications between individuals are accorded a privilege from public disclosure
to assure their confidentiality. The following privileges axe statutorily recognized:
Husband and wife: CPLR 4502
Attorney and client: CPLR 4503
Physician, dentist, or nurse and patient: CPLR 4504
Person to a member of the clergy: CPLR 4505
Psychologist and patient: CPLR 4507
Social worker and client: CPLR 4508
Other communications are also confidential, although they are not listed in article 45.
Communications between or to public officials, between a source and a journalist, between close family
members, and between physicians at a medical review committee or meeting are confidential under specific
circumstances.
20.2. ATTORNEY-CLIENT
(a) Confidential Communication Privilege. Unless the client waives the

privilege, an attorney or his employee, or any person who obtains without
the knowledge of the client evidence of a confidential communication made
between an attorney or his employee and the client in the course of
professional employment, shall not disclose, or be allowed to disclose such
communication, nor shall the client be compelled such communication, in
any action, disciplinary trial or hearing, where administrative action,
proceeding or hearing, conducted by or on behalf of any state, municipal or
local governmental agency or by the legislature or any committee or body
thereto. Evidence of any such communication obtained by any person, and
evidence resulting there from, shall not be disclosed by any state, municipal
or local governmental agencies or by the legislature or body thereof. The
304
305
relationship of any attorney-client shall exist between a professional service

corporation organized under article 15 of the business corporation law to
practice as an attorney and counselor-at-law and the clients to whom it
tenders legal services.
(b) Wills. In any action involving the probate, validity or construction of a

will, an attorney or his employee shall be required to disclose information as
to the preparation, execution or revocation of any will or other relevant
instrument, but he shall not be allowed to disclose any communication
privileged under sub-division (a) which would tend to disgrace the memory
of the decedent. This reflects the policy favoring full disclosure to an
attorney by client. In criminal cases, the client is constitutionally
guaranteed adequate representation. The counsel in civil cases similarly
must be fully employed.
The statutory requirements are:
1. There must have been communication between a client and his attorney or the client and
an employee of the attorney;
2. The communication must have been made while the attorney was employed in that
capacity by the client; and
3. The communication must have been confidential in character.
Once the requirements are met, the communication is privileged unless the client waives the
privilege. 1399
The burden is on the person asserting the privilege to establish it applies. 1400
The attorney must be admitted in some states, although he or she does not have to be
admitted in New York. 1401
There does not have be a formal retainer between the attorney and the client, nor does the
attorney have to have been paid for his service. 1402
1399
An exception exists with regard to will probate proceedings. An attorney or his employee may be
required to disclose information concerning the preparation, execution, or revocation of any will in a
probate matter, unless it would disgrace the memory of the decedent.
1400
People v. Allen, 88 N.Y.2d 831; 666 N.E.2d 1351; 1996 N.Y. LEXIS 681; 644 N.Y.S.2d 478 (1996).
1401
People v. Doe, 99 Misc.2d 411, 416 N.Y.S.2d 466 (Sup. Ct. Queens Co. 1979).
305
306
The client may have made the disclosure during his initial consultation. 1403
If the attorney is acting as a friend rather than an attorney, the communication is not
privileged. 1404
The communication is not privileged if the attorney is primarily engaged as a negotiator,
broker, or business agent. 1405
As long as the attorney is giving legal advice, conversations between the attorney and the
client are privileged. 1406 If the communication was with a former attorney, it must have been for the purpose
1407
of obtaining legal advice.
Any communication with the attorney’s office is privileged, whether made to a clerk,
secretary, messenger, interpreter, or other employee. 1408
For the communication to have been made in confidence, third persons who are not
employed by the attorney must not be present. 1409
Thus, even though the information is given to an attorney, it is not confidential if it is later
given to a third party. 1410
If a third person inadvertently obtains the information, without the permission or knowledge
of the client, the information remains confidential. 1411
If the attorney represents both driver and passenger, both clients may invoke the privilege
against outsiders, but between themselves, there is no privilege. 1412
1402
Pfeffer v. Kling, 58 A.D. 179, 68 N.Y.S. 641 (1st Dep’t 1901), aff’d, 171 N.Y. 668, 64 N.E. 1125
(1902).
1403
People v. Squitieri, 49 A.D.2d 374, 375 N.Y.S.2d 124 (1st Dep’t 1975).
1404
See In re Application of A. & M., 61 A.D.2d 426, 403 N.Y.S.2d 375, 6 A.L.R.4th 532 (4th Dep’t 1978).
1405
In re Levinsky’s Will, 23 A.D.2d 25, 258 N.Y.S.2d 613 (2d Dep’t 1965).
1406
E. v. E., 76 Misc.2d 2, 349 N.Y.S.2d 623 (Fam. Ct. N.Y. Co. 1973).
1407
People v. Allen, 88 N.Y.2d 831; 666 N.E.2d 1351; 1996 N.Y. LEXIS 681; 644 N.Y.S.2d 478 (1996).
1408
See People v. Doe, 99 Misc.2d 411, 416 N.Y.S.2d 466 (Sup. Ct. Queens Co. 1979).
1409
See Platt v. Bank of New York, 41 A.D.2d 648, 340 N.Y.S.2d 739 (2d Dep’t 1973).
1410
People v. Fentress, 103 Misc.2d 179, 425 N.Y.S.2d 485 (Sup. Ct. Dutchess Co. 1980).
306
307
When an attorney represents two parties to a contract, the parties may claim a privilege with
regard to outsiders finding out what they said to the attorney, but not with regard to what each of them said
to the attorney. 1413
In matrimonial actions, the attorney may represent both spouses. If this is the case,
communications with the attorney are privileged as against outsiders, but not between the clients. The same
rule applies with regard to adoption proceedings where the attorney arranges the transaction for both parties.
1414
The privilege can be waived only by the client, not by the attorney; the privilege belongs to
the client. 1415
If the client testifies to what was said to the attorney at a deposition or at the trial, he may
waive the privilege. 1416
It has been held that, where relevant, the terms of the retainer agreement are not privileged.
1417
The names and addresses of an attorney’s clients are not privileged when relevant. 1418
It has been held that an attorney may not be required to disclose a client’s address in
connection with matters he has not been retained to handle. 1419
1411
See People v. Boone, 51 A.D.2d 25, 379 N.Y.S.2d 181 (3d Dep’t 1976).
1412
Finn v. Morgan, 46 A.D.2d 229, 362 N.Y.S.2d 292 (4th Dep’t 1974).
1413
In re State of Friedman, 64 A.D.2d 70, 407 N.Y.S.2d 999 (2d Dep’t 1978).
1414
Tierney v. Flower, 32 A.D.2d 392, 302 N.Y.S.2d 640 (2d Dep’t 1969).
1415
See People v. Shapiro, 308 N.Y. 453, 126 N.E.2d 559, 51 A.L.R.2d 515 (1955).
1416
People v. Northrop, 29 A.D.2d 895, 287 N.Y.S.2d 987 (3d Dep’t 1968).
1417
Priest v. Hennessy, 75 A.D.2d 722, 427 N.Y.S.2d 110 (4th Dep’t 1980), aff’d, 51 N.Y.2d 62, 409
N.E.2d 983, 431 N.Y.S.2d 511 (1980); People v. Belge, 59 A.D.2d 307, 399 N.Y.S.2d 599 (4th Dep’t
1977); Central Nat’l Bank v. Thorington, 115 A.D.2d 829, 495 N.Y.S.2d 787 (3d Dep’t 1985) (retainer
agreement in case involving enforcement of loan agreement held privileged).
1418
Matter of Jacqueline F., 47 N.Y.2d 215, 39 N.E.2d 967, 417 N.Y.S.2d 884 (1979) (mother’s location in
child custody proceeding is not information protected by attorney-client privilege).
1419
Potamkin Cadillac Corp. v. Karmgard, 100 Misc.2d 627, 420 N.Y.S.2d 104 (Civ. Ct. 1979)
Brooklyn Sav. Bank v. Park Slope Realty Corp., 146 Misc. 4, 260 N.Y.S. 508 (S. Ct. 1932).
307
308
Generally, testimony of an attorney that he drew a deed for a client and took his
acknowledgment and that the description in the deed included a specific quantity of land is not a privileged
communication. Directions received by attorney from client as to drawing of the deed are not subject to the
privilege. 1420
The privilege has been held applicable in actions involving grantor or grantee and third
parties. 1421
20.3. PHYSICIAN-PATIENT
(a) Confidential information privileged. Unless the patient waives the

privilege, a person authorized to practice medicine, registered professional
nursing, licensed practical nursing, or dentistry shall not be allowed to
disclose any information which he acquired in attending a patient in a
professional capacity, and which was necessary to enable him to act in that
capacity. The relationship of a physician and patient shall exist between a
medical corporation, as defined in article forty-four of the public health law,
a professional service corporation organized under article fifteen of the
business corporation law to practice medicine, and the patients to whom
they respectively render professional medical services. A patient who, for
the purpose of obtaining insurance benefits, authorizes the disclosure of any
such privileged communication to any person shall not be deemed to have
waived the privilege created by this subdivision.
For purposes of subdivision:
1. “person” shall mean any individual, insurer or agent thereof, peer review
committee, public or private corporation, political subdivision, government
agency, department, or bureau of the state, municipality, industry, co-
partnership, association, firm, trust, estate or any other legal entity
whatsoever; and
2. “insurance benefits” shall include payments under a self-insured plan.
(b) Identification by dentist; crime committed against patient under

sixteen. A dentist shall be required to disclose information necessary for
1420
Greer v. Greer, 58 Hun. 251, 12 N.Y.S. 778 (1890); Hebbard v. Haughian, 70 N.Y. 54 (1877).
1421
Barry v. Coville, 53 Hun. 620, 7 N.Y.S. 36, (S. Ct. 1889), aff’d, 129 N.Y. 302, 29 N.E. 307 (1891).
308
309
identification of a patient. A physician, dentist or nurse shall be required to

disclose information indicating that a patient who is under the age of
sixteen years has been the victim of a crime.
(c) Mental or physical condition of deceased patient. A physician or nurse

shall be required to disclose any information as to the mental or physical
condition of a deceased patient privileged under subdivision (a), except
information which would tend to disgrace the memory of the decedent,
either in the absence of an objection by a party to the litigation or when the
privilege has been waived:
1. by the personal representative, or the surviving spouse, or the next of kin

of the decedent, or
2. in any litigation where the interests of the personal representative are

deemed by the trial judge to be adverse to those of the estate of the
decedent, by any party in interest; or
3. if the validity of the will of the decedent is in question, by the executor

named in the will, or the surviving spouse or any heir-at-law or any of the
next of kin or any other party in interest.
(d) Proof of negligence, unauthorized practice of medicine. In any action for

damages for personal injuries or death against a person not authorized to
practice medicine under article 131 of the education law for any act or acts
constituting the practice of medicine, when such act or acts were a
competent producing proximate or contributing cause of action of such
injuries or death, the fact that such person practiced medicine without
being so authorized shall be deemed prima facie evidence of negligence
The four requirements for the physician-patient privilege are:
1. The medical professional must have been licensed to practice his profession;
2. The medical professional must have attended to the patient in his professional capacity;
3. The patient must have communicated the information to the medical professional during
the course of being attended; and
4. It must have been necessary for the patient to communicate the information to the medical
provider.
309
310
Treatment is not essential to establishing a physician-patient privilege, although normally
that is the case. 1422
The medical person must have been acting as a medical provider, rather than merely as a
friend. 1423
If the medical provider is examining the patient not for the purpose of rendering medical
assistance, but, for example, on behalf of an insurance company or defendant in a law suit, communications
with the patient are not privileged. 1424
Information that is obvious to anyone is not privileged, whether or not medical assistance is
provided. 1425
A doctor’s file on a patient is privileged. 1426
The patient’s medical records, including diagnosis, prognosis, and propensities, are privileged
under New York Civil Practice Law and Rules 4504. 1427
It must have been necessary to disclose the information to qualify for the privilege. Thus,
nonmedical portions of the medical records are not privileged. 1428
If the manner in which the patient received an injury is useful to the physician in making his
diagnosis or treatment, the communication is privileged. If a statement as to the cause or mechanism of injury
does not assist the medical provider, it is an unnecessary statement for treatment and is not privileged. 1429
1422
People v. Decina, 2 N.Y.2d 133, 138 N.E.2d 799, 157 N.Y.S.2d 558, 63 A.L.R.2d 970 (1956).
1423
Griffiths v. Metropolitan R.R. Co., 171 N.Y. 106, 63 N.E. 808 (1902).
1424
E.g., Lynch v. Germania Life Insurance Co., 132 A.D. 571, 116 N.Y.S. 998 (3d Dep’t 1909).
1425
Klein v. Prudential Ins. Co., 221 N.Y. 449, 117 N.E. 942 (1917).
1426
Lehman v. Lehman, 94 A.D.2d 761, 462 N.Y.S.2d 703 (2d Dep’t 1983).
1427
Ashford v. Brunswick Psychiatric Center, 90 A.D.2d 848, 456 N.Y.S.2d 96 (2d Dep’t 1982) (plaintiff’s
husband killed by patient allegedly negligently released from psychiatric hospital; patient’s hospital
records held to be privileged); Moore v. St. John’s Episcopal Hospital, 89 A.D.2d 618, 452 N.Y.S.2d 669
(2d Dep’t 1982) (same).
1428
Moore v. St. John’s Episcopal Hospital, 89 A.D.2d 618, 452 N.Y.S.2d 669 (2d Dep’t 1982).
1429
E.g., Griffiths v. Metropolitan R.R. Co., 171 N.Y. 106, 63 N.E. 808 (1902).
310
311
The patient can waive the physician-patient privilege in a number of ways. The most
common way is by affirmatively placing his physical condition in issue by bringing a personal injury lawsuit
concerning those injuries for which the physician provided treatment. 1430
If the patient discloses the information to a third party, the privilege is waived. 1431
Where a patient makes an admission to a nurse and states that he intends to make the same
admission to a third person, the patient was held not to have made the statement in confidence, and, therefore,
the privilege did not apply. 1432
Testimony by the patient may waive the privilege. 1433
If the party did not voluntarily render the testimony, but it was elicited from him on cross-
examination, the privilege is not waived. 1434
Similarly, if the opponent calls the patient to the stand and elicits the testimony, the privilege
is not waived. 1435
In a case where the defendant claimed that the plaintiff’s eyesight, rather than a defect in the
stairs, caused him to fall, a plaintiff’s testimony at a deposition concerning his eyesight did not waive the
privilege. 1436
Criminal defendants are entitled to privileged information for their defense in some
circumstances. The criminal defendant may obtain an adverse witness’s hospital record for psychiatric
problems. 1437
1430
Koump v. Smith, 25 N.Y.2d 287, 250 N.E.2d 857, 303 N.Y.S.2d 858 (1969).
1431
Johnson v. Johnson, 25 A.D.2d 672, 268 N.Y.S.2d 403 (2d Dep’t 1966); Maggio v. State, 88 A.D.2d
1087, 452 N.Y.S.2d 719 (3d Dep’t 1982) (since parolee raised insanity defense to criminal charges, he
waived the physician-patient privilege).
1432
People v. Christopher, 101 A.D.2d 504, 476 N.Y.S.2d 640 (4th Dep’t 1984), rev’d in part, 65 N.Y.2d
417, 482 N.E.2d 45, 492 N.Y.S.2d 566 (1985).
1433
See Giamanco v. Giamanco, 57 A.D.2d 564, 393 N.Y.S.2d 453 (2d Dep’t 1977).
1434
Lynch v. County of Lewis, 68 Misc.2d 78, 326 N.Y.S.2d 243 (Sup. Ct. Lewis Co. 1971).
1435
Vilardi v. Vilardi, 200 Misc. 1043, 107 N.Y.S.2d 342 (Sup. Ct. N.Y. Co. 1951).
1436
Iseman v. Delmar Medical-Dental Building, Inc., 113 A.D.2d 276, 495 N.Y.S.2d 747 (3d Dep’t 1985).
311
312
The legislature has enacted a number of narrow exceptions abrogating the physician-patient
1438
privilege for various public policy reasons.
The Court of Appeals has narrowly construed statutes limiting the privilege and rejected
1439
claims that there is a general public interest exception to CPLR 4504. Thus, it violated the physician-
patient privilege for the DEA and police to obtain, without authorization, a police officers medical records
from his dentists and physicians, for the purpose of proving he was improperly obtaining prescription
medicine from his medical providers. 1440
The Court has implied an exception under the Narcotics Control Act to further narcotics
treatment designed to benefit the patient. 1441
1437
People v. Maynard, 80 Misc.2d 279, 363 N.Y.S.2d 384 (Sup. Ct. N.Y. Co. 1974).
1438
See, e.g., CPLR 4504 [b] (disclosure of dental identification data and information concerning a
victim of crime under age 16); CPLR 4504 [c] (information as to the mental or physical condition of a
deceased patient); Family Ct Act § 1046 [a] [vii] (no privilege in proceedings for child abuse or
neglect); Social Services Law § 384-b [3] [h] (the privilege affords no ground for exclusion of evidence in
proceedings for guardianship and custody of destitute or dependent children); Social Services Law §
413, 415 (cases of suspected child abuse or maltreatment must be reported in writing and such reports
are admissible in any proceedings relating to child abuse or maltreatment); Mental Hygiene Law § 81.09
[d] (allowing for inspection of medical records of an alleged incapacitated person); Public Health Law §
2101 [1] (requiring disclosure of communicable disease]; Public Health Law § 2785 [2] (a court may
grant an order for the disclosure of HIV-related information upon an application showing a "compelling
need" in judicial proceedings); Penal Law § 265.25 (making it a misdemeanor for a doctor or hospital to
fail to report a wound "caused by discharge of a gun or firearm" or "a wound which is likely to or may
result in death and is actually or apparently inflicted by a knife, ice pick or other sharp or pointed
instrument). Physicians must report information concerning a drug addict or habitual user of narcotics to
the State Health Commissioner, for statistical purposes. Pub. Health Law § 3372. Statements by a drug
addict to a doctor are not privileged. Pub. Health Law § 3373. Theft of a controlled substance must be
reported. Pub. Health Law § 3374.
1439
People v. Sinski, 88 N.Y.2d 487; 669 N.E.2d 809; 1996 N.Y. LEXIS 1518; 646 N.Y.S.2d 651 (1996),
citing In re Grand Jury Investigation, 59 N.Y.2d 130, 135, 450 N.E.2d 678, 1983 N.Y. LEXIS 3109, 463
N.Y.S.2d 758 (1983); People v. Decina, 2 N.Y.2d 133, 138 N.E.2d 799, 1956 N.Y. LEXIS 631, 157
N.Y.S.2d 558, 63 A.L.R.2d 970 (1956); People v Murphy, 101 N.Y. 126, 4 N.E. 326, 1886 N.Y. LEXIS
604 (1886).
1440
People v. Sinski, 88 N.Y.2d 487; 669 N.E.2d 809; 1996 N.Y. LEXIS 1518; 646 N.Y.S.2d 651 (1996).
1441
People v. Fuller, 24 N.Y.2d 292, 248 N.E.2d 17, 1969 N.Y. LEXIS 1682, 300 N.Y.S.2d 102 (1969).
312
313
20.4. CLERGYMAN-PENITENT
Communication to any duly authorized priest, rabbi, pastor, rector, or other type of
clergyman is privileged, if the information was disclosed to the clergyman in reliance of the fact that it would
be kept in confidence.
Unless the person confessing or confiding waives the religion privilege, a

clergyman, or other minister of any 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 role of clergyman includes family counseling as well as counseling on strictly spiritual
matters. 1442
The privilege may be waived if it is made in front of third persons or repeated later to others.
1443
Conversations made to a clergyman in his spiritual capacity are privileged, but not
conversations relating to possible unlawful activities or for secular purposes. 1444
The party invoking the privilege has the burden of establishing the communication sought to
be protected was made for the purpose of seeking religious counsel. 1445
The privilege can be revoked only by the person confessing or confiding in the clergyperson.
It cannot be waived by the clergyperson. 1446
1442
Kruglikov v. Kruglikov, 29 Misc.2d 17, 217 N.Y.S.2d 845 (Sup. Ct. Queens Co. 1961), appeal
dismissed, 16 A.D.2d 735, 226 N.Y.S.2d 931 (4th Dep’t 1962); Compare In re Honigman’s Will, 8 N.Y.2d
244, 168 N.E.2d 676, 203 N.Y.S.2d 859 (1960) (conversation with priest was not shown to be privileged).
1443
See People v. Brow, 47 N.Y.2d 160, 390 N.E.2d 1151, 417 N.Y.S.2d 226 (1979), cert. denied, 444
U.S. 887, 100 S. Ct. 18n, 82 Misc.2d 115, 368 N.Y.S.2d 645 (Sup. Ct. N.Y. Co. 1974).
1444
Keenan v. Grigante1, 62 L.Ed.2d 118 (1979); People v. Drelich, 123 A.D.2d 441, 506 N.Y.S.2d 746
(2d Dep’t, Kings Co. 1986) (defendant’s conversations with rabbi seeking clergyman’s assistance in
securing attorney and negotiating beneficial plea bargain not privileged); In re Fuber, 100 Misc.2d 315,
419 N.Y.S.2d 426 (S. Ct. 1979) (privilege not to be used as shield to cover up purported illegal money
laundering scheme in which clergyman allegedly involved).
1445
People v. Drelich, 123 A.D.2d 441, 506 N.Y.S.2d 746 (2d Dep’t, King’s Co. 1986).
313
314
20.5. PSYCHOLOGIST-PATIENT
Communications made by a patient to a psychologist are privileged, as long as they are
induced by a confidential relationship.
The confidential relations and communications between a psychologist

registered under the provisions of Article 153 of the Education Law and his
client are placed on the same basis as those provided by law between
attorney and client, and nothing in this article shall be construed to require
any such privileged communications to be disclosed. A client who, for the
purpose of obtaining insurance benefits, authorizes the disclosure of any
such privileged communication to any person shall not be deemed to have
waived the privilege created by this section.
whatsoever; and
The privilege may be waived in the same manner as a physician-patient or attorney-client
privilege. 1447
The mere fact that the client takes the stand in a proceeding on his own behalf does not
constitute a waiver of the privilege. 1448
Where established as relevant in resolving a child custody dispute, the privilege will yield to
the court’s duty to guard the welfare of minor children. 1449
Purely conclusory and inadmissible opinions as to mental condition of a parent in a custody
proceeding are insufficient to justify waiver or suspension of the privilege. An evidentiary showing must be
1446
De’Udy v. De’Udy, 130 Misc.2d 168, 495 N.Y.S.2d 616 (S. Ct. 1985) (clergy must disclose
communication where communicant waives privilege).
1447
People v. Wilkins, 65 N.Y.2d 172, 480 N.E.2d 373, 490 N.Y.S.2d 759 (1985).
1448
People v. Wilkins, 65 N.Y.2d 172, 480 N.E.2d 373, 490 N.Y.S.2d 759 (1985).
1449
Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.2d 382 (4th Dep’t 1978).
314
315
made by the party seeking examination of the protected records that a party’s physical, mental, or emotional
condition is in controversy. 1450
20.6. HUSBAND-WIFE
New York Civil Practice Law and Rules 4502(b) states:
(b) confidential communication privileges.
A husband and wife should not be required, or, without consent of the other
if living, allowed, to disclose a confidential communication made by one to
the other during marriage.
The couple must be married at the time the communication was made. As long as they were
married when the communication was made, it does not matter if they were later divorced. If the husband and
wife are separated, the communication may still be privileged. 1451
The couple must be officially married, not just cohabitating. 1452
The communication must have been made in confidence on the trust of the spouse. 1453
It is generally presumed that communication between spouses is made in confidence. 1454
Daily and ordinary exchanges between a husband and wife are not confidential, unless the
communication was of a type that would normally be kept a secret. 1455
Crimes and torts against the other spouse are not privileged, since they are not performed in
confidence that the act would not be revealed. 1456
1450
Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382 (4th Dep’t 1978).
1451
People v. Oyola, 6 N.Y.2d 259, 160 N.E.2d 494, 189 N.Y.S.2d 203 (1959).
1452
People v. Torres, 90 Misc.2d 358, 394 N.Y.S.2d 546 (Sup. Ct. N.Y. Co. 1977).
1453
People v. Patterson, 39 N.Y.2d 288, 347 N.E.2d 898, 383 N.Y.S.2d 573 (1976).
1454
People v. Fields, 38 A.D.2d 231, 328 N.Y.S.2d 542 (1st Dep’t 1972), aff’d, 31 N.Y.2d 713, 289 N.E.2d
557, 337 N.Y.S. 517 (1972); People v. McCormack, 278 A.D. 191, 104 N.Y.S.2d 139 (1st Dep’t 1951),
aff’d, 303 N.Y. 782, 103 N.E.2d 895 (1952).
1455
People v. Dudley, 24 N.Y.2d 410, 248 N.E.2d 860, 301 N.Y.S.2d 9 (1969); See Schneider v. Van
Wyckhouse, 54 N.Y.S.2d 446 (Sup. Ct. Monroe Co. 1945).
1456
People v. Cull, 37 N.Y.2d 833, 340 N.E.2d 466, 378 N.Y.S.2d 30 (1975); Poppe v. Poppe, 3 N.Y.2d
312, 144 N.E.2d 72, 165 N.Y.S.2d 99 (1957).
315
316
Child abuse is not a privileged communication between spouses. 1457
If the husband and wife were cohorts in crime, communications in furtherance of the crime
are not privileged. 1458
One spouse cannot waive the privilege and then disclose confidential communications. Both
spouses must consent to the disclosure. 1459
The privilege can be waived by failing to object or by affirmatively disclosing the
communication. Once waived, it is no longer privileged in any way or in any proceeding. 1460
20.7. PARENT-CHILD
Communications between a parent and child are also confidential, if the child confided in the
parent. 1461
A child’s confession to his parent is privileged, absent a waiver by the child. 1462
As long as the parties intend the communication to be confidential, the age of the child is
irrelevant. 1463
20.8. SOCIAL WORKER-CLIENT
(a) Confidential information privileged.
1457
People v. Allman, 41 A.D.2d 325, 342 N.Y.S.2d 896 (2d Dep’t 1973).
1458
People v. Watkins, 89 Misc.2d 870, 393 N.Y.S.2d 283 (Sup. Ct. Suffolk Co. 1977), aff’d, 63 A.D.2d
1033, 406 N.Y.S.2d 343 (2d Dep’t 1978) cert. denied, 439 U.S. 984, 99 S. Ct. 575, 58 L.Ed.2d 656
(1978).
1459
People v. Santiago, 68 Misc.2d 85, 326 N.Y.S.2d 332 (Sup. Ct. N.Y. Co. 1971).
1460
People v. Santiago, 68 Misc.2d 85, 326 N.Y.S.2d 332 (Sup. Ct. N.Y. Co. 1971).
1461
In re Application of A. & M., 61 A.D.2d 426, 403 N.Y.S.2d 375, 6 A.L.R. 4th 532 (4th Dep’t 1978)
(parents invoked parent-child privilege and refused to answer questions regarding admissions by the child
that he set a fire).
1462
People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S.2d 309 (Sup. Ct. Westchester Co. 1979) (child’s
confession to criminally negligent homicide could not be disclosed by the father).
1463
People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S.2d 309 (Sup. Ct. Westchester Co. 1979).
316
317
A person duly registered as a certified social worker under the provisions of

article one hundred fifty-four of the educational law shall not be required to
disclose communication made by his client to him, or his advice given
thereon, in the course of his professional employment, nor shall any clerk,
stenographer or other person working for the same employer as a certified
social worker or for the certified social worker be allowed to disclose any
such communication or advise [sic] given thereon; except
1. The certified social worker may disclose such information as the client
may authorize;
2. That a certified social worker shall not be required to treat as confidential

a communication by a client which reveals the contemplation of a crime or
harmful act;
3. Where the client is a child under the age of sixteen and the information
acquired by the certified social worker indicates that the client has been the
victim or subject of a crime, the certified social worker may be required to
testify fully in relation thereto upon any examination, trial or other
proceeding in which the commission of such crime is a subject of inquiry;
4. Where the client waives the privilege by bringing charges against the
certified social worker and such charges involve confidential
communications between the client and certified social worker.
(b) Limitations on waiver, a client who for the purpose of obtaining

insurance benefits, authorizes the disclosure of any person shall not be
deemed to have waived the privilege created by this section. For purposes of
this subdivision:
whatsoever; and
Thus, if the client authorizes disclosure of the communication, brings charges against the
social worker, or is a victim of a crime and under sixteen, the social worker may disclose the communication.
317
318
What constitutes a “harmful act” is subjective. If the client communicates that he has a desire
to harm his child, the communication could be disclosed. Records of the social worker indicating harmful
propensities are subject to disclosure. 1464
If the client indicates to the social worker that he has already committed the crime, the
communication is disclosable. 1465
If the client is trying to defraud the Department of Social Services, communications made in
the course of such fraudulent activity are discoverable. 1466
Both federal and state law require that Department of Social Services records remain
confidential. 1467
Disclosure of welfare records is improper absent special circumstances. 1468
An in-camera review may be conducted by the court to determine what information should
be disclosed.
Neither the physician-patient privilege nor social worker-client privilege will shield
disclosure of information by the hospital of its records with regard to grand jury investigation into possible
crimes committed against patients by hospital staff. 1469
20.9. JOURNALISTS
The New York Shield Law prevents a journalist from being held in contempt for refusing to
disclose sources of his information. 1470
1464
See Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382 (4th Dep’t 1978).
1465
People v. Braoks, 50 A.D.2d 319, 376 N.Y.S.2d 928 (2d Dep’t 1975).
1466
People v. O’Gorman, 91 Misc.2d 539, 398 N.Y.S.2d 336 (S. Ct. 1977).
1467
42 U.S.C.S. § 602 (a)(9); Soc. Serv. Law § 136(2); Early v. The County of Nassau, 98 A.D.2d 789,
469 N.Y.S.2d 809 (2d Dep’t 1983) (confidentiality necessary to “preserve the dignity and self respect of
recipient of welfare and to assure the integrity and efficiency of the administration of the program”).
1468
Jeffrey v. Jeffrey, 120 A.D.2d 709, 502 N.Y.S.2d 507 (2d Dep’t 1986).
1469
In re Grand Jury Proceedings, 56 N.Y.2d 348, 437 N.E.2d 1118, 452 N.Y.S.2d 361 (1982)
§ 21.900.
318
319
The privilege can only be invoked by professional journalists who gather, prepare, or edit
news as part of their livelihood for a newspaper, magazine, news agency, or the like. Furthermore, the news or
the news sources must have been given to the reporter, in confidence, with the understanding that the
information or source would not be disclosed. 1471
Thus, the contents of the letter from the “Weather Underground” was disclosable, because
the letter was left in a public telephone booth where anyone could read it and the author of the letter tried to
conceal his identity from the newscaster who was tipped off to pick up the letter. The communication was
not made to the journalist with the understanding that it, or its source, would be kept confidential. 1472
New York Civil Rights Law section 79(h) provides an absolute, non-qualified privilege for
journalists against the disclosure of unpublished information, as well as the identity of a source. 1473
There must have been an express or implied understanding that the information that was
being given to the reporter or the source of the information would not be revealed; absent such an assurance of
confidentiality, there is no privilege. 1474
Photographs taken by a photojournalist or reporter are qualifiedly privileged from disclosure.
To obtain the photographs, the litigant must demonstrate, clearly and specifically, that the items sought are
(1) highly material, (2) critical to the litigant’s claim, and (3) not otherwise available.
1470
N.Y. Civ. Rights L. § 79(h).
1471
See Hennigan v. The Buffalo Courier Express Co., 85 A.D.2d 924, 446 N.Y.S.2d 767 (4th Dep’t
1981); Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442 (S. Ct. 1977); People v. Zagarino, 97
Misc.2d 181, 411 N.Y.S.2d 494 (S. Ct. 1978).
1472
Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442 (S. Ct. 1977).
1473
Wilkins v. Kalla, 118 Misc.2d 34, 459 N.Y.S.2d 985 (S. Ct. 1983) (subpoena served on 60 Minutes for
outtakes, notes and other non-broadcast materials from an interview quashed)
Beach v. Shanley, 62 N.Y.2d 241, 465 N.E.2d 304, 476 N.Y.S.2d 765 (1984) (subpoena quashed
requiring a television reporter to appear before a grand jury investigating an unauthorized disclosure from
another grand jury’s report); Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d 158, 464 N.E.2d
967, 476 N.Y.S.2d 269 (1984), cert. denied, 469 U.S. 1158, 105 5. Ct. 907, 83 L.Ed.2d 921 (1985)
(newspaper not required to disclose name of person who wrote letter to editor).
1474
In re Pennzoil Co., 108 A.D.2d 666, 485 N.Y.S.2d 533 (1st Dep’t 1985) (magazine reporter required
to testify concerning actual words used in an interview which was published).
319
320
Disclosure on ancillary issues is not permissible, nor is disclosure necessary if material can be
obtained through an alternate source. 1475
20.10. GOVERNMENTAL
Communications between public officers and to public officers are privileged, if they are
made to the public official while he is performing an official duty. 1476
1475
O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 523 N.E.2d 277, 528 N.Y.S.2d 1 (1988).
1476
People v. Keating, 286 A.D. 150, 141 N.Y.S.2d 562 (1st Dep’t 1955) (interest would be harmed if the
communication was disclosed); Cirale v. 80 Pine Street Corp., 35 N.Y.2d 113, 316 N.E.2d 301, 359
N.Y.S.2d 1 (1974).
320
321
CHAPTER 21 FAILURE TO PRODUCE EVIDENCE
If a party is in a position to produce a witness or documentary evidence and fails to do so
without a reasonable explanation, the jury is permitted to infer that the testimony of the uncalled person or
the contents of the document would not support the non-producing party’s version of the case. The jury is
then permitted to draw the strongest inferences against the non-producing party that the opposing evidence
permits. 1477
21.1. PARTY’S FAILURE TO TESTIFY
The strongest inference is that a party with opposing evidence will testify at his own trial. 1478
No adverse inference can be drawn by a criminal defendant’s failure to testify in his own
defense. 1479
If the criminal defendant does take the stand, the jury may be instructed concerning the
unfavorable inference arising from his failure to controvert or explain certain issues which an innocent
defendant would have controverted or explained. 1480
In a civil case, where a defendant in a personal injury action fails to testify or to call his wife
as a witness to testify, the jury may draw the strongest inference against the defendant which the evidence
against him would permit. 1481
21.2. FAILURE TO CALL WITNESS
It is well established that when a party fails or refuses to produce a material witness who is
within his control, the jury may consider that fact on the issue which the witness was in a position to
controvert in assessing the strength of evidence offered by the opposite party. 1482
1477
PJI 1:75; 1:76; 1:77.
1478
Nat’l Bank & Trust of New Jersey v. Alba, 111 A.D.2d 294, 489 N.Y.S.2d 285 (2d Dep’t 1985).
1479
Crim. Proc. Law § 60.15.
1480
People v. Connolly, 253 N.Y. 330, 171 N.E. 393 (1930).
1481
Jarrett v. Madifari, 67 A.D.2d 396, 415 N.Y.S.2d 644 (1st Dep’t 1979).
1482
Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 405 N.E.2d 205, 427
N.Y.S.2d 961 (1980).
321
322
The jury may consider the evidence already introduced most strongly against the party who
failed to call the witness, but it may not infer that such a witness would, if called, testify against the party who
failed to call him.
The jury is not permitted to speculate as to what the absent witness would have testified in
the absence of some direct evidence. 1483
21.3. FAILURE TO CALL PHYSICIAN
The unexplained failure to call a witness who might naturally be expected to give testimony
favorable to a party gives rise to an adverse inference. 1484
Absent explanation for the failure to produce a witness, a charge as to what inferences may
be drawn is proper. 1485
The party has control of a witness if the witness is in the party’s employ or management, if
the witness is under the influence of the party, or if it may be naturally inferred that the witness is of good will
to the party. 1486
The missing witness must be in a position to give substantial, not merely cumulative,
evidence. 1487
In an unusual holding, one court held that a plaintiff with a preexisting back problem had to
call his prior treating doctor or show that the physician was not within his control, or a missing witness
charge would be given with respect to the prior treating doctor. 1488
1483
Felice v. Long Island R.R. Co., 426 F.2d 192 (2d Cir. 1970), cert. denied, 400 U.S. 820, 91 S. Ct. 37,
27 L.Ed.2d 47 (1970).
1484
Guzman v. Manhattan Bronx Surface Transit Operating Authority, 99 A.D.2d 972, 472 N.Y.S.2d 662
(1st Dep’t 1984) (failure to call three doctors who had treated the plaintiff).
1485
PJI 1:75; Mashley v. Kerr, 47 N.Y.2d 892, 393 N.E.2d 471, 419 N.Y.S.2d 476 (1979) (failure to
produce certain medical witnesses, without explanation).
1486
Chandler v. Flynn, 111 A.D.2d 300, 489 N.Y.S.2d 289 (2d Dep’t 1985), appeal dismissed, 67 N.Y.2d
647, 490 N.E.2d 559, 499 N.Y.S.2d 1032 (1986) (for failure to call treating physician).
1487
Oswald v. Heaney, 70 A.D.2d 653, 416 N.Y.S.2d 826 (2d Dep’t 1979) (failure to call ten treating
doctors not cause for missing witness charge).
1488
Griffin v. Nissen, 89 A.D.2d 808, 453 N.Y.S.2d 277 (4th Dep’t 1982).
322
323
Former treating physicians, like former employees, may be neither under the control of the
party nor willing to provide testimony favorable to the patient if the patient left them to go to other doctors.
1489
A missing witness charge should not be given for failure to call an anesthetist, a radiologist,
or other physicians who had minimal contact with the injured plaintiff; nor should it be required that the
additional doctors be called if it would entail substantial cost to the plaintiff and provide evidence that is
merely cumulative. 1490
The burden is on the party opposing the inference to show that the witness is not available or
under his control. 1491
If the plaintiff left the doctor to go to another physician, the doctor is not subject to
subpoena, or there are other circumstances which would create hostility or ill will justifying not calling the
doctor, counsel should so indicate on the record to avoid a missing witness charge. 1492
A doctor who examines the plaintiff on behalf of the defendant must be called to testify by
the defendant, or a missing witness charge with respect to his testimony is proper. 1493
In such case, the fact finder may infer that the testimony would not have contradicted or
qualified the testimony of the plaintiff’s doctor. 1494
21.4. FAILURE TO CALL RELATIVE
Even though a wife-witness was in the courtroom and available to both sides, the husband’s
failure to call the wife as a witness entitled the jury to draw an inference that her testimony would not have
been favorable to the husband with regard to how the accident happened. 1495
1489
1490
1491
1492
1493
Rice v. Ninacs, 34 A.D.2d 388, 312 N.Y.S.2d 246 (4th Dep’t 1970).
1494
Goldman v. State, 28 A.D.2d 782, 280 N.Y.S.2d 879 (3d Dep’t 1967).
1495
Rosa v. Blander, 47 A.D.2d 865, 366 N.Y.S.2d 36 (2d Dep’t 1975).
323
324
Thus, although the witness is available to both parties, the inference is that the wife’s
testimony would tend to favor the husband and be unfavorable and hostile to the opponent. 1496
Relatives are generally considered under the control of a party, for the purpose of
determining whether a missing witness charge shall be given. 1497
21.5. FAILURE TO CALL EMPLOYEE
To establish control over an employee, it must be shown that the nontestifying witness was
employed at the time of trial. 1498
Depending on the circumstances, a subordinate employee may be as likely to be favorable to a
coworker as to a corporate employer, absent personal hostility between the coemployees. 1499
No adverse inference can be drawn from a party’s failure to call a former employee. 1500
21.6. FAILURE TO PRODUCE DOCUMENTS
An unfavorable inference may be drawn against the party who fails to produce documents
that are within his control and that he is naturally expected to produce. 1501
The failure of the party to produce a document cannot be used against him unless the jury is
satisfied from the evidence that, first, there is a document in his possession which relates materially to an issue
in the case, and second, that the party has not shown a reasonable explanation for failure to produce a
document. 1502
1496
Rosa v. Blander, 47 A.D.2d 865, 366 N.Y.S.2d 36 (2d Dep’t 1975).
1497
Ausch v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d 43, 511 N.Y.S.2d 919 (2d Dep’t 1987), appeal
denied, 70 N.Y.2d 610, 516 N.E.2d 1223, 522 N.Y.S.2d 110 (1987).
1498
Valentino v. State, 62 A.D.2d 1086, 403 N.Y.S.2d 596 (3d Dep’t 1978).
1499
Felice v. Long Island R.R. Co., 426 F.2d 192 (2d Cir. 1970), cert. denied, 400 U.S. 820, 91 S. Ct. 37,
27 L.Ed.2d 47 (1970).
1500
Sachs v. Fumex Sanitation, Inc., 75 A.D.2d 595, 426 N.Y.S.2d 817 (2d Dep’t 1980); Vispetto v.
Bassuk, 41 A.D.2d 958, 343 N.Y.S.2d 988 (2d Dep’t 1973) (failed to call ex-superintendent of building in a
slip-and-fall case).
1501
PJI 1:77; Ausch v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d 483, 511 N.Y.S.2d 919 (2d Dep’t
1987), appeal denied, 70 N.Y.2d 610, 516 N.E.2d 1223, 522 N.Y.S.2d 110 (1987) (failure to supply
opponent with material and relevant documentation relating to his financial status).
1502
PJI 1:77; Mullin v. Quinlan & Co., 195 N.Y. 109, 87 N.E. 1078 (1909).
324
325
If the jury is satisfied that the party did fail to produce the document, it may infer the
document would not have supported the party and draw the strongest inferences that the evidence permits
against the party on that issue. 1503
If the party who failed to produce the document was served with a notice to produce,
secondary evidence of the contents of the document is admissible by the party who served the notice. Failure
to comply with the notice to produce permits such secondary evidence to be taken more strongly against the
party who withheld the document. 1504
21.7. DESTRUCTION OF EVIDENCE
Destruction of potential evidence, such as a document or object, which is relevant to proof on
an issue at trial, can give rise to a strong inference that the document or object would have been unfavorable to
the party who destroyed it. 1505
Where the evidence was destroyed unintentionally or the failure to produce the evidence is
explained satisfactorily, no unfavorable inference may be drawn. 1506
The destruction of evidence may be an admission. 1507
There is also a presumption that if the document had been introduced in evidence, it would
have been adverse to the party who destroyed it and that its destruction was fraudulent. 1508
Thus, the jury should be instructed that if they find that the party destroyed a relevant
document and failed to give a reasonable explanation for doing so, they may infer that the purpose in
destroying the documents was fraudulent, and, if produced, the document would have been against the party’s
interest. 1509
1503
PJI 1:77.
1504
Bleecker v. Johnston, 69 N.Y. 309 (1877).
1505
Dow Chemical Co. v. S.S. Giovanella D’Amico, 297 F. Supp. 699 (S.D.N.Y. 1969).
1506
INA Aviation Corp. v. U.S., 468 F. Supp. 695 (E.D.N.Y. 1979), aff’d, 610 F.2d 806 (2d Cir. 1979).
1507
PJI 1:56.
1508
Armour v. Gaffey, 30 A.D. 121, 51 N.Y.S. 846 (3d Dep’t 1898), aff’d, 165 N.Y. 630, 9 N.E. 1118
(1901).
1509
PJI 1:77.
325
326
The jury should be further instructed that such destruction casts doubt upon the party’s
position and may be considered an admission that his case is weak. The jury is entitled to give the destruction
whatever weight they deem proper. 1510
Testimony that a defendant has threatened a witness is admissible on the ground that it "has
some tendency to prove a consciousness of guilt". 1511
Where the threats are not attributable to the defendant, the court must instruct the jury that
such evidence is admissible only to demonstrate the witness's state of mind or to explain prior inconsistent
statements. 1512
21.8. PROSECUTORS DUTY
21.8.1. Duty to Disclose
A defendant has the right, guaranteed by the Due Process Clauses of the Federal and State
Constitutions, to discover favorable evidence in the People's possession which is material to guilt or
punishment. 1513
21.8.2. Duty to Preserve
The People have an affirmative obligation to preserve all discoverable evidence within their
1514
possession.
The obligation to turn over statements by witnesses is limited to "written or recorded"
statements. Oral statements are not included. 1515
1510
PJI 1:77.
1511
1991).
1512
1991).
1513
Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, 1963 U.S. LEXIS 1615 (1963);
People v. Vilardi, 76 N.Y.2d 67, 73, 555 N.E.2d 915, 1990 N.Y. LEXIS 1084, 556 N.Y.S.2d 518 (1990).
1514
People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 (1988); People v Kelly,
62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498 (1984).
1515
1991).
326
327
There is no requirement that a prosecutor record in any fashion his interviews with a
witness. 1516
21.8.3. Defense Request
Where the defense has provided specific notice of its interest in particular material,
1517
heightened prosecutorial attention is appropriate.
The defense does not have to know the precise form of the document, as long as the request
1518
provided particularized notice of the information sought.
Where the prosecutor has been made aware by a specific discovery request that defendant
considered certain material important to the defense, the failure to disclose such evidence is governed by a
"reasonable possibility" standard of prejudice--i.e., a reasonable possibility that the outcome of the trial would
1519
have differed had the evidence been produced.
If no specific discovery request was made, the failure to disclose such material is governed by
1520
a "reasonable probability" standard of prejudice.
21.8.4. Lost Evidence
Where discoverable evidence gathered by the prosecution or its agent is lost, the People have
a heavy burden of establishing that diligent, good-faith efforts were made to prevent the loss. 1521
The prosecution may be accountable for missing evidence caused by a key witness's actions
in particular circumstances. 1522
1516
1991).
1517
People v. Scott, 88 N.Y.2d 888; 667 N.E.2d 923; 1996 N.Y. LEXIS 1166; 644 N.Y.S.2d 913 (1996).
1518
People v. Scott, 88 N.Y.2d 888; 667 N.E.2d 923; 1996 N.Y. LEXIS 1166; 644 N.Y.S.2d 913 (1996)
(notice sufficiently specific when polygraph results of informant requested, even though reference to such
polygraph results were contained in document titled "homicide bureau information sheet").
1519
1520
1521
People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498).
1522
327
328
A witness who erased part of a tape recording which was later turned over to the prosecution
and used against the defendant, was not acting as an agent of the prosecution when she erased the tape, and
therefore no missing evidence instruction was warranted. 1523
21.8.5. Sanction for Failure to Disclose or Preserve
The trial court will exercise its discretion in choosing an appropriate sanction. 1524
The touchstone for determining the remedy for the loss of Rosario material is the existence
1525
and degree of prejudice resulting from the loss
1523
1524
People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 (1988).
1525
(1996).
328
329
329
330
CHAPTER 22 SPECIFIC SUBJECTS
22.1. CHARACTER EVIDENCE
22.1.1. Criminal Cases—Good Character
A witness’s truthfulness can be brought before the jury by evidence of those
character traits which are indicative of the person’s truthful nature or lack of it. Such evidence is
generally called character evidence.
22.1.1.1. Reputation or Opinion
The Proposed Code of Evidence would allow the use of opinion evidence relating to
credibility whenever reputation evidence is admissible, so long as the general criteria for admission of
opinion evidence is met. 1526
If the character witness testifies to reputation, inquiry would be permitted on cross-
examination as to the witness’s knowledge of relevant rumors or reports about the person.
If the character witness testified in the form of an opinion, inquiry would be
permitted on cross-examination as to such rumors or reports, as well as to the witness’s knowledge of
specific relevant instances of conduct of the person.
Under traditional evidentiary principles in New York, a defendant may attempt to
establish his good character only by showing his general reputation in the community. The opinions
of those who know him personally and have firsthand knowledge of his character are inadmissible.
1527
1526
See §§ 608(a), 701).
1527
People v. Bouton, 50 N.Y.2d 130, 405 N.E.2d 699, 1980 N.Y. LEXIS 2275, 428 N.Y.S.2d 218
(1980) ; See generally People v. Barber, 74 N.Y.2d 653, 656–657, 543 N.Y.S.2d 365 (1989)
(Titone, J., dissenting).
330
331
The rule is derived from People v. Van Gaasbeck, 1528, which held that character
means the estimate in which the individual is held by the community and not the private opinion
entertained of him by the witnesses who may be called to testify in reference to such fact. 1529
This was the majority view in jurisdictions in the United States at the time because
of “overwhelming considerations of practical convenience,” namely, the difficulty in ascertaining the
truth of the specific occurrences underlying the witness’s opinion and a concern that the admission of
character evidence beyond reputation would lead to a proliferation of collateral factual disputes,
thereby impeding the conduct of trial.
Wigmore argued that the rule was the result of a cumulative misreading of prior
precedent. 1530
The Van Gaasbeck restriction on proof of character has since been criticized as
“archaic” and “paradoxical.” 1531
It has been modified or rejected in a majority of jurisdictions, either by statute or
judicial decision, permitting opinion testimony as an alternative to reputation evidence. 1532
The Federal Rules of Evidence now provide that “[i]n all cases in which evidence of
character . . . is admissible, proof may be made by testimony as to reputation or by testimony in the
form of an opinion.” 1533
The Van Gaasbeck rule has fallen into disfavor because it requires rejection of the
more reliable form of proof, i.e., the opinions of those in a position to know the character of the
accused, while exposing the trier of fact to unverifiable hearsay of unknown origin. Further, it places
the jury in the difficult position of having to evaluate the validity of so nebulous a concept as the
opinion held of the defendant by the “general community,” while the personal opinions of the
1528
189 N.Y. 408, 82 N.E. 718 (1907).
1529
People v. Van Gaasbeck, 189 N.Y. 408, 416, 82 N.E. 718 (1907).
1530
7 Wigmore, Evidence §§ 1981–1982, 1986 [Chadbourn rev. ed.].
1531
People v. Barber, 74 N.Y.2d 653, 656–657 541 N.E.2d 394, 1989 N.Y. LEXIS 482, 543
N.Y.S.2d 365 (1989, quoting Michelson v. United States, 335 U.S. 469, 486 93 L. Ed. 168, 69 S.
Ct. 213, 1948 U.S. LEXIS 2792 (1948) .
1532
Model Code of Evidence, Rule 306 [2] [a]; Uniform Rules of Evidence, Rule 405, 13A ULA
[Master ed.] (acceptance of personal opinion as character evidence).
331
332
testifying witnesses, which may readily be examined for credibility, bias, and reliability through
traditional forms of cross-examination, must be ignored.
Wigmore notes:
The Anglo-American rules of evidence have occasionally taken

some curious twistings in the course of their development; but they
have never done anything so curious in the way of shutting out
evidential light as when they decided to exclude the person who
knows as much as humanly can be known about the character of
another, and have still admitted the secondhand, irresponsible
product of multiplied guesses and gossip which we term
“reputation.” 1534
When viewed against this impressive array of authority favoring change, it has been
argued that the reasons for retaining the Van Gaasbeck rule seem insubstantial. 1535
The “practical” concerns that were expressed in Van Gaasbeck, i.e., the difficulty of
ascertaining the facts underlying the witness’s opinion and the danger of proliferating collateral
factual issues, can be resolved by careful tailoring of the rules governing character evidence. 1536
The Federal Rules, for example, provide that only the witness’s opinion may be
elicited on direct examination; questioning about specific acts or the facts which form the basis for
the witness’s opinion is permitted only if the prosecution wishes to explore the matter further on
cross-examination. 1537
This limitation effectively eliminates any prejudice or unfair surprise to the
prosecution that might flow from a defense witness’s direct testimony about specific facts pertaining
to the defendant’s character. 1538
1533
Fed. R. Evid., § 405(a).
1534
7 Wigmore, Evidence, at 244; quoted in People v. Barber, 74 N.Y.2d 653, 656–657 541
N.E.2d 394, 1989 N.Y. LEXIS 482, 543 N.Y.S.2d 365 (1989) accord, Jones, Evidence, § 4:45, at
474; Morgan, Basic Problems of Slate and Federal Evidence, at 311 (5th ed.).
1535
People v. Barber, 74 N.Y.2d 653, 543 N.E.2d 394, 1989 N.Y. LEXIS 482, 543 N.Y.S.2d 365
(1989).
1536
(1989).
1537
Fed. R. Evid., § 405 (a); Accord, Cal. Evid. Code, § 1102; accord, N.Y. Proposed Code of
Evidence, § 405.
1538
See Fed. R. Evid., § 405, Advisory Comm. Note.
332
333
Similarly, because discussion of specific facts is permitted only on cross-
examination, “[t]he danger of collateral issues [is] no greater than that inherent in reputation
evidence.” 1539
At least one member of the Court of Appeals would abrogate the rule by judicial
decision. 1540
22.1.2. Criminal Cases—Bad Character
22.1.2.1. Prior Bad Acts
A general rule of evidence, applicable in both civil and criminal cases, is that it is
improper to prove that a person did an act on a particular occasion by showing that he did a similar
act on a different, unrelated occasion. 1541
Evidence of unconnected, uncharged criminal conduct is inadmissible if the purpose
is to establish a predisposition to commit the crime charged. 1542
While such evidence may be marginally relevant to the question of the guilt of the
accused, its probative value is deemed to be outweighed by its potential for prejudice, and,
accordingly, the evidence is excluded as a matter of judicial policy. 1543
Simple proof showing that A shot B at one time and place throws no light upon the
charge that A poisoned C. 1544 Testimony from witnesses that they had been attacked by the
1539
Cal. Evid. Code, § 1102, Law Rev. Comm. Comment.
1540
(1989).
1541
Coopersmith v. Gold, 89 N.Y.2d 957; 678 N.E.2d 469; 1997 N.Y. LEXIS 90; 655 N.Y.S.2d
857 (1997); Maner of Brandon, 55 N.Y.2d 206433 N.E.2d 501, 448 N.Y.S.2d 436 (1982).
1542
People v. Dales, 309 N.Y. 97, 101, 127 N.E.2d 829, 830 (1955); Coleman v. People, 55 N.Y.
81, 90 (1873).
1543
See People v. Allweiss, 48 N.Y.2d 40, 46, 396 N.E.2d 735, 738, 421 N.Y.S.2d 341, 344
(1979); People v. Zackowitz, 254 N.Y. 192, 254 N.Y. (N.Y.S.) 192, 172 N.E. 466, 1930 N.Y.
LEXIS 1025 (1930).
1544
People v. Katz, 209 N.Y. 311, 328, 103 N.E. 305, 310 (1913).
333
334
defendant eight or nine hours before the crime charged is inadmissible to establish the defendant's
general criminal propensity on the day in question. 1545
Evidence of other assaults is not admissible to establish defendant’s violent
character. 1546 Such other assaults against the same complaint may be admissible to establish the
defendant's motive and intent, and to refute his assertion that the complainant's injuries were
accidental. 1547
The court must weigh the evidence’s probative worth against its potential for
mischief to determine whether it should ultimately be placed before the fact finder. This weighing
process is discretionary, but the threshold problem of identifying a specific issue, other than
propensity, to which the evidence pertains poses a question of law. 1548
Whether prior crime evidence is actually being offered to prove propensity alone is
often a subtle matter in which semantics sometimes plays an important part. 1549
Jury instructions limiting the purpose for which evidence of uncharged crimes is
offered are not always adequate. The Court of Appeals has reversed convictions where the probative
value of the uncharged crime was considered substantially outweighed by its prejudicial effect. 1550
1545
People v. Heath, 175 A.D.2d 562; 572 N.Y.S.2d 228; 1991 N.Y. App. Div. LEXIS 10059 (4th
Dep't 1991).
1546
People v. Van Gaasbeck, 189 N.Y. 408, 82 N.E. 718 (1907); People v. Sharp, 107 N.Y. 427,
14 N.E. 319 (1887); People v. Heath, 175 A.D.2d 562; 572 N.Y.S.2d 228; 1991 N.Y. App. Div.
LEXIS 10059 (4th Dep't 1991).
1547
People v. Underwood, 680 N.Y.S.2d 555; 1998 N.Y. App. Div. LEXIS 11758 (2d Dep't 1998).
1548
People v. Alvino, 71 N.Y.2d 233, 242, 519 N.E.2d 808, 812, 525 N.Y.S.2d 7, 12 (1987).
1549
E.g., People v. Lewis, 69 N.Y.2d 321, 506 N.E.2d 915, 514 N.Y.S.2d 205 (1987) (evidence of
prior sexual contact with the same “victim,” traditionally admitted under the rubric of “amorous
design,” is really no more than a form of propensity evidence hiding behind an assumed name
and should no longer be permitted).
1550
See, e.g., People v. McKinney, 24 N.Y.2d 180, 185, 247 N.E.2d 244, 247, 299 N.Y.S.2d 401,
405 (1969); People v. Alvino, 122 A.D.2d 666, 670, 505 N.Y.S.2d 868 (1986) (trial court assured
a fair trial to defendant, first by holding an in limine hearing on the prior crime proof outside the
presence of the jury in conformity with People v. Ventimiglia, 52 N.Y.2d 350, 420 N.E.2d 59, 1981
N.Y. LEXIS 2233, 438 N.Y.S.2d 261 (1981), and then instructing the jury both in the course of the
trial, and in its final charge, regarding the limited purpose for which the evidence was to be
received. Jury was resolutely steered away from the “bad man” appraisal of defendant).
334
335
Evidence of other crimes is admissible if directly probative of the crime charged, for
in that event the evidence is relevant for a purpose other than to show a criminal disposition, and its
probative value is deemed to outweigh the danger of prejudice. 1551
Evidence of a collateral criminal act is admissible where it is relevant to establish: (1)
motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing
the commission of two or more crimes, so related to each other that proof of the one tends to establish
the other; or (5) the identity of the perpetrator of the crime charged. 1552
There is no pre-established formula for determining when a particular uncharged
criminal or immoral act may be admitted in evidence against a defendant. Although Molineux
suggests certain “categories” for use as a guide in evaluating the relevance of such evidence, the Court
of Appeals has consistently stated that these categories are not exhaustive, but rather represent
“illustrations” of the type of analysis to be applied in cases involving potentially prejudicial
information. 1553
Evidence of a prior uncharged crime may not be admitted solely to demonstrate a
defendant's bad character or criminal propensity, but may be admissible if linked to a specific
material issue or fact relating to the crime charged, and if its probative value outweighs its prejudicial
impact. 1554
Evidence of uncharged crimes is not barred merely because the People are able to
establish their case without it; they are entitled to present all the admissible evidence available to
them. 1555
1551
People v. Sckwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969).
1552
People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901).
1553
E.g., People v. Vails, 43 N.Y.2d 364, 368, 372 N.E.2d 320, 322, 401 N.Y.S.2d 479, 482
(1977); People v. Jackson, 39 N.Y.2d 64, 68, 346 N.E.2d 537, 539, 382 N.Y.S.2d 736, 738
(1976); People v. Calvano, 30 N.Y.2d 199, 205–206, 282 N.E.2d 322, 326, 331 N.Y.S.2d 430,
435 (1972).
1554
People v. Tyrell, 90 N.Y.2d 1003; 688 N.E.2d 503; 1997 N.Y. LEXIS 3236; 665 N.Y.S.2d 629
(1997).
1555
People v. Steinberg, 170 A.D.2d 50; 573 N.Y.S.2d 965; 1991 N.Y. App. Div. LEXIS 10834 (1st
Dep't 1991) (evidence of defendant's physical abuse of wife clearly admissible in case for
manslaughter of daughter).
335
336
The first part of the two-part inquiry requires the proponent of the evidence to
1556
identify some issue, other than criminal propensity, to which the evidence is relevant. The second
part of the inquiry focuses on the probative worth of the evidence. 1557
22.1.2.2. Intent
Where guilty knowledge or an unlawful intent is in issue, evidence of other similar
acts is admissible to negate the existence of an innocent state of mind. The focus is not on the actual
doing of the act, for the act is either conceded or established by other evidence. Rather, the element in
issue is the actor’s state of mind, and evidence of other similar acts is admitted under this exception
because no particular intent can be inferred from the nature of the act committed. 1558
Where the alleged act of the defendant is unequivocal, the intention to inflict
physical injury may be inferred from the act itself, and the defendant does not contest the element of
intention in the crime charged, the evidence of uncharged assaults serves no purpose other than to
prejudice the accused. The probative value of the testimony of other uncharged crimes is outweighed
by its prejudicial effect, and the evidence is inadmissible.
Evidence of other crimes to prove intent is warranted only where the acts involved in
the crimes charged are equivocal so that intention is not easily inferred from the acts alone. 1559
In such cases, it is recognized that “proof of intent is often unobtainable except by
evidence of successive repetitions of the act.” 1560
1556
People v. Decker, 224 A.D.2d 860; 638 N.Y.S.2d 211; 1996 N.Y. App. Div. LEXIS 1294 (3d
Dep't 1996).
1557
Dep't 1996).
1558
Matter of Brandon, 55 N.Y.2d 206, 433 N.E.2d 501, 448 N.Y.S.2d 436 (1982)
1559
People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969)
1560
People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969)
(defendant admitted obtaining $1,000 from Mrs. Gladstone by assigning an encumbered account
receivable to her; since he admitted the transaction, his intention is the only fact in dispute;
however, the acts involved in assigning the receivable are equivocal, and the underlying intention
is not easily inferred from the acts alone; thus, evidence of successive similar misrepresentations
by defendant is crucial in attempting to ascertain defendant’s intention concerning the crime at
bar)
336
337
The rationale underlying the admission of such proof is that “the successive
repetition of similar unlawful acts tends to reduce the likelihood of the actor’s innocent intent on the
particular occasion in question.” 1561
The intent exception is predicated primarily on a theory of increased probability
arising from repetitive actions. According to Professor Wigmore: “The argument here is purely from
the point of view of the doctrine of chances—the instinctive recognition of that logical process which
eliminates the element of innocent intent by multiplying instances of the same result until it is
perceived that this element cannot explain them all.” 1562
Thus, evidence of prior similar acts has been admitted to establish a variety of
crimes. 1563
Evidence of other similar crimes is particularly appropriate where the defendant is
charged with larceny by false pretenses. 1564
The problem is one of the similarity of the other misconduct with the crime charged.
Professor Wigmore states that “[s]ince it is the improbability of a like result being repeated by mere
chance that carries probative weight, the essence of this probative effect is the likeness of the
instance.” 1565
1561
People v. Bagarozy, 132 A.D.2d 225, 236–237, 522 N.Y.S.2d 848, 854 (1st Dep’t 1987);
Matter of Brandon, 55 N.Y.2d 206, 212, 433 N.E.2d 501, 504, 448 N.Y.S.2d 436, 439 (1982)
1562
Matter of Brandon, 55 N.Y.2d 206, 212, 433 N.E.2d 501, 504, 448 N.Y.S.2d 436, 439 (1982);
Citing 2 Wigmore, Evidence [Chadbourn rev. ed.], § 302, p. 241
1563
People v. Marino, 271 N.Y. 371, 3 N.E.2d 439, 105 A.L.R. 1283 (1936) (receiving stolen
property); People v. Everhardt, 104 N.Y. 591, 11 N.E. 62 (1887); People v. Dolan, 186 N.Y. 4, 78
N.E. 569 (1906) (feloniously uttering a forged instrument); People v. Marrin, 205 N.Y. 275, 98
N.E. 474 (1912) (forgery); People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d
817 (1969) (larceny by false pretenses); People v. Alvino, 122 A.D.2d 666, 505 N.Y.S.2d 868 (1st
Dep’t 1986) (evidence of fifteen similar bribery transactions admissible as proof of defendant’s
corrupt intent, as well as negating mistake or accident).
1564
Dep't 1996) (intent to steal shown by prior conviction for similar acceptance of money for work not
ultimately performed); People v. Lowenstein, 203 A.D.2d 304; 610 N.Y.S.2d 61; 1994 N.Y. App.
Div. LEXIS 3158 (2d Dep't 1994) (prior fraudulent scheme to obtain money from employer);
People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969) (evidence that
defendant mortgaged a 1962 Cadillac which he did not own had an important bearing on the vital
issue of whether the defendant assigned the account receivable with intent to defraud).
1565
2 Wigmore, Evidence (3d ed.), § 302, p. 200
337
338
The evidence of defendant’s other misrepresentations may be highly relevant on the
issue of his intention to defraud in the crime charged and may disclose a pattern of obtaining money
by false pretenses over a period prior to the crime charged.
Cross-examination of defendant on such occurrences, and, if he denies them, the
introduction of documentary evidence concerning these other crimes, is proper. 1566
In the trial of sex offenses, extrinsic evidence of intent is admissible only in those
cases where there is no challenge to the occurrence of the physical contact itself, but the intent of the
actor is at issue because the nature of the contact is subject to varying interpretations. 1567
Where the acts charged are not equivocal, and defendant has consistently denied any
sexual contact with his accusers and has never offered an innocent explanation as to those specific
acts, his intent was never at issue, and proof of prior sexual crimes is inadmissible under the “amorous
design” exception. 1568
Such evidence is admissible if, among other things, it tends to negate the defense of
“accident” or mistake. 1569 The credibility of the “accident” explanation diminishes as the instances of
similar alleged “accidental” injuries increase. 1570
Proof that defendant previously fired shots at the victim, or previously assaulted the
victim, may be admissible to establish defendant's motive or intent. 1571
Evidence of an uncharged crime of perjury was admissible to prove intent, and to
rebut the defense that the defendant was insane at the time of the crime. 1572
1566
People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969) (evidence
that defendant mortgaged a 1962 Cadillac which he did not own had an important bearing on the
vital issue of whether the defendant assigned the account receivable with intent to defraud).
1567
See, e.g., People v. Young, 99 A.D.2d 373, 472 N.Y.S.2d 802 (4th Dep’t 1984) (father’s
fondling of his infant daughter was equivocal); People v. Sims, 110 A.D.2d 214, 494 N.Y.S.2d 114
(2d Dep’t 1985), lv denied, 67 N.Y.2d 657, 490 N.E.2d 570, 499 N.Y.S.2d 1054 (1986) (mother
alleged accidental injury to child).
1568
People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848 (1st Dep’t 1987) (defendant’s sexual
misconduct toward one boy in the past has no legitimate, legally cognizable bearing on the
truthfulness of the other children’s charges against defendant).
1569
1570
People v. Henson, 33 N.Y.2d 63, 304 N.E.2d 358, 1973 N.Y. LEXIS 1004, 349 N.Y.S.2d 657
(1973) (child beating).
338
339
It is not an abuse of discretion to permit cross-examination concerning uncharged
acts of individual dishonesty or untrustworthiness which demonstrate the defendant's willingness to
place his individual self-interest ahead of the interests of society. 1573
The necessity for proof of intent must be analyzed carefully. Where a crime does not
require specific intent, only the general intention to perform the prohibited act, proof of specific
intent may be irrelevant. 1574
The court must not equate “intent” with “inclination” or “proclivity.” 1575
22.1.2.3. Common Scheme or Plan
The intent exception and the “common scheme or plan” exception constitute two
discrete theories under which evidence of collateral acts may be admitted. The distinction between
the two exceptions has sometimes been overlooked, and, as a result, the more stringent requirements
of the common scheme or plan exception (i.e., direct connection in time, place, and character) have
been applied in cases in which only the intent theory was involved. 1576
As Professor Wigmore explains: “The clue to the difference is best gained by
remembering that in the one class of cases the act charged is assumed as done, and the mind asks only
for something that will negate innocent intent; and the mere prior occurrence of an act similar in its
gross features—i.e., the same doer, and the same sort of act, but not necessarily the same mode of
1571
People v. Rodriquez, 680 N.Y.S.2d 181; 1998 N.Y. App. Div. LEXIS 12108 (4th Dep't 1998);
1572
People v. Cilberg, 680 N.Y.S.2d 697; 1998 N.Y. App. Div. LEXIS 11896 (3d Dep't 1998).
1573
People v. Lowenstein, 203 A.D.2d 304; 610 N.Y.S.2d 61; 1994 N.Y. App. Div. LEXIS 3158
(2d Dep't 1994).
1574
People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848 (1st Dep’t 1987) ("Amorous design"
evidence irrelevant in incest case, where specific intent is not required; proof defendant did it
once to one child relevant to show he would do it again, and so probably abused the other
children, nothing more than a disguised “propensity” argument).
1575
People v. Kanston, 192 A.D.2d 721; 597 N.Y.S.2d 152; 1993 N.Y. App. Div. LEXIS 4289 (2nd
Dep't 1993) (evidence that he and his codefendant engaged in multiple narcotics transactions
minutes before commission of the charged sale evidence that defendant and co-defendant made
numerous drug sales immediately prior to sale they were "busted" for held admissible); People v.
Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848 (1st Dep’t 1987) (defendant’s affiliation with
NAMBLA powerful evidence of sexual tendencies and desires; proof of such affiliation for that
purpose highly improper).
1576
Matter of Brandon, 55 N.Y.2d 206, 212, 433 N.E.2d 501, 504, 448 N.Y.S.2d 436, 439 (1982).
339
340
acting nor the same sufferer, may suffice for that purpose. But where the very act is the object of
proof, and is desired to be inferred from a plan or system, the combination of common features that
will suggest a common plan as their explanation involves so much higher a grade of similarity as to
constitute a substantially new and distinct test.” 1577
In New York, the courts have been particularly cautious in permitting proof of
uncharged criminal acts to establish a common scheme or plan. 1578
The rule of exclusion is not always compelled by logic, but rests on grounds of policy
in the criminal law. 1579
Much more is required than mere similarity between the crime charged and the
uncharged crime. There must be “such a concurrence of common features that the various acts are
naturally to be explained as caused by a general plan of which they are the individual manifestations.”
1580
It is impermissible to offer proof of uncharged crimes committed pursuant to a
common plan unless the uncharged crimes support the inference that there exists a single inseparable
plan encompassing both the charged and uncharged crimes, typically, but not exclusively, embracing
uncharged crimes committed in order to effect the primary crime for which the accused has been
indicted. 1581 In a case decided the same day as Grutz, proof of prior uncharged bribes by lawbreakers
to a police officer was held admissible. 1582
The difference in result between the Duffy case and the Grutz case is the very close
relationship in Duffy between the scheme or system and the many bribes which had been regularly
received from the same owners of various gambling houses. In the Grutz case, the several tires were
separate, independent transactions, separately planned and effected, albeit due to an initial overall
agreement between the two culprits.
1577
2 Wigmore, Evidence [Chadbourn rev. ed.], § 304, p. 251
1578
People v. Fiore, 34 N.Y.2d 81, 85, 312 N.E.2d 174, 177, 356 N.Y.S.2d 38, 42 (1974).
1579
People v. Fiore, 34 N.Y.2d 81, 86–87, 312 N.E.2d 174, 178, 356 N.Y.S.2d 38, 43 (1974).
1580
2 Wigmore, Evidence (3d ed.), § 304, p. 202.
1581
People v. Grutz, 212 N.Y. 72, 105 N.E. 843 (1914) (testimony concerning setting of nine
previous fires could not be used to prove arson).
340
341
Where there is no evidence of a single scheme to collect corrupt payments, and the
only relationship between the payments and the solicitation is their close similarity and involvement
of a single construction project, there is no equivalent identity of time, place, and circumstance, or of
persons from whom payments were to be exacted, between the crime charged and the uncharged
offenses. The close similarity of the bribery attempts, with arguably insubstantial “identities,” does
not support an inference that there existed a common scheme or plan. 1583
In Duffy and in Grutz, there was direct testimonial evidence of a scheme or plan,
although circumstantial evidence of a common scheme or plan will suffice. In Duffy, too, there was
evidence of a considerable number of bribes over an extended period of time from the same persons,
involving the same gambling places, establishing circumstantially a single scheme to take bribes. In
short, merely showing two or more similar crimes does not necessarily establish a common scheme.
To some extent, every criminal repeater has a modus operandi. But a modus operandi alone is not a
common scheme; it is only a repetitive pattern. 1584
In establishing a common scheme in a proper case, it might be admissible to show a
modus operandi, as one of the elements of proof. 1585
22.1.2.4. Identity
It has long been held that where the evidence of independent crimes is sought to be
introduced for purposes of establishing identity, there must first be shown a pattern of behavior in
the other crimes and the crime charged which is unique. If the “method used is not uncommon,” the
evidence of other crimes is inadmissible. 1586
1582
People v. Duffy, 212 N.Y. 57, 105 N.E. 839 (1914).
1583
1584
1585
1586
People v. Sanza, 121 A.D.2d 89, 509 N.Y.S.2d 311 (1st Dep’t 1986); People v. Allweiss, 48
N.Y.2d 40, 47, 396 N.E.2d 735, 738, 421 N.Y.S.2d 341, 344 (1979).
341
342
The question is whether defendant’s modus operandi was sufficiently unique to tend
to establish his identity and accordingly permit use of the identity exception. 1587
The mere fact that similar crimes were attempted in a similar manner would not
particularly aid in identifying a defendant unless the similarities were unusual enough to compel the
inference that defendant had committed both crimes. The defendant’s procedure must be sufficiently
unique as to make the evidence of the uncharged crimes probative. 1588
The modus operandi must be “so unique” that the “identifiable characteristics”
would be “highly probative” that the defendant committed the crime charged. 1589
In each of the authorities where such evidence was found to be admissible, there was
a remarkably unique pattern of behavior common to each of the uncharged crimes. 1590
“Simply categorizing the defendant as one of many criminal specialists [is] of little
probative value.” 1591
The differences as well as the similarities must be considered. 1592
22.1.2.5. Entrapment and Duress
In the defense of entrapment, the defendant is under the burden of proving
entrapment by showing that he is “a person not . . . disposed to commit” the crime charged. In the
defense of duress, the defendant is under the burden of satisfying the jury that he was coerced to
commit the crime by the use or threat of force overcoming his will.
1587
People v. Matthews, 175 A.D.2d 24; 573 N.Y.S.2d 157; 1991 N.Y. App. Div. LEXIS 9548 (1st
Dep't 1991); People v. Sanza, 121 A.D.2d 89, 509 N.Y.S.2d 311 (1st Dep’t 1986).
1588
People v. Sanza, 121 A.D.2d 89, 509 N.Y.S.2d 311 (1st Dep’t 1986).
1589
People v. Condon, 26 N.Y.2d 139, 144, 257 N.E.2d 615, 617, 309 N.Y.S.2d 152, 156 (1970).
1590
People v. Allweiss, 48 N.Y.2d 40, 396 N.E.2d 735, 738, 421 N.Y.S.2d 341, 344 (1979);
People v. Beam, 57 N.Y.2d 241, 441 N.E.2d 1093, 455 N.Y.S.2d 575 (1982).
1591
People v. Allweiss, 48 N.Y.2d 40, 47, 396 N.E.2d 735, 421 N.Y.S.2d 341 (1979).
1592
People v. Sanza, 121 A.D.2d 89, 509 N.Y.S.2d 311 (1st Dep’t 1986) (differences more
notable than similarities; the three Florida rapes occurred in victims’ apartments, not an office
building; Florida rapist was relatively polite; in this case, there was a savage assault resulting in
death; gunpoint threats and theft or attempted theft of jewelry are hardly “unique” or “uncommon”
in rape cases; the evidence of the three Florida rapes merely establishes that defendant is a
convicted rapist).
342
343
The U.S. Supreme Court stated, after finding the predisposition and criminal design
of the defendant relevant to the defense of entrapment, that “if the defendant seeks acquittal by
reason of entrapment, he cannot complain of an appropriate and searching inquiry into his own
conduct and predisposition as bearing upon that issue. If, in consequence, he suffers a disadvantage,
he has brought it upon himself by reason of the nature of the defense.” 1593
The Sorrells rule was reaffirmed in Sherman v. United States, 1594 however, the
government’s proof of defendant’s previous narcotics convictions—one a nine-year-old sales
conviction and the other a five-year-old possession conviction—was held insufficient to prove
defendant’s “readiness to sell narcotics” at the time of the crime charged.
Since proof of other sales would be competent to rebut the entrapment defense
interposed in a narcotics prosecution, parity of reasoning compels the same conclusion with respect
to the duress defense. Under each defense there is asserted, and a defendant may make prima facie
proof, that there is an absence of the criminal intent ordinarily inferable from the admitted acts of
commission; under one he asserts that he was persuaded, under the other that he was coerced, i.e.,
1595
“induced or encouraged” in one case, or “coerced” in the other. 1596 Indeed, the terms “induced”
and “coerced” differ only in respect of the pressures exerted, so that if prior criminal acts of the same
nature may properly be proved to rebut the defense that defendant was “coerced” into the
transgression, like proof may\ properly be received in refutation of a claim that he was “induced or
encouraged” to transgress.
In one case, as in the other, his intent—meaning his will and volition—is overcome
by force or by persuasion, as the case may be, exerted by another. And thus, because, and only
because, defendant tenders the issue of innocent intent which his admitted acts would otherwise
1593
Sorrells v. United States, 287 U.S. 435, 451–452, 53 S. Ct. 210, 216, 77 L.Ed. 413, 86 A.L.R.
249 (1932).
1594
356 U.S. 369, 376, 78 S. Ct. 819, 822, 2 L.Ed.2d 848 (1958);
1595
Criminal Procedure Law Section 40.05, entrapment
1596
Criminal Procedure Law Section 40.00, duress
343
344
belie, the People should be permitted, in respect of each defense, to prove a disposition inconsistent
with an intent or disposition free of criminality. 1597
22.1.2.6. Subsequent Acts or Subsequent Physical Conditions
Acts subsequently occurring or physical conditions existing as of a later time may in
some cases reflect a disposition or condition antedating the criminal act charged. Certainly, they may
have that effect when shown as part of a continuing transaction or a chain of events initiated before
and continuing after the offense in issue. In other cases, a subsequent incident alone may sometimes
be of such a nature and so related to disposition as to render proof of the incident relevant. 1598
Collateral evidence of this nature must always undergo the scrutiny and preliminary
evaluation of the trial judge, who is charged with the responsibility of excluding it when its relevance
to disposition is remote or its probative effect so doubtful as to be outweighed by the prejudice its
reception will engender.
22.1.2.7. Acting in Concert
While “acting in concert” is not one of the five Molineux exceptions, those
categories are merely illustrative, not exclusive. 1599
Where one defendant received cash for a drug buy, and another defendant, upon
signal, delivered the drugs, testimony as to such method of operation was relevant to point out the
connection between the two. The value of such testimony outweighs any possible prejudice. 1600
Evidence that the defendant exchanged pink envelopes with other persons for
money after the event for which he is charged may be admissible on the issue of “acting in concert”
and identity, where they are disputed. 1601
1597
People v. Calvano, 30 N.Y.2d 199, 282 N.E.2d 322, 331 N.Y.S.2d 430 (1972).
1598
People v. Calvano, 30 N.Y.2d 199, 282 N.E.2d 322, 331 N.Y.S.2d 430 (1972).
1599
People v. Calvano, 30 N.Y.2d 199, 205–206, 282 N.E.2d 322, 331 N.Y.S.2d 430 (1972).
1600
People v. Carter, 77 N.Y.2d 95, 107, 566 N.E.2d 119, 124, 564 N.Y.S.2d 992, 997 (1990).
See also People v. Kanston, 192 A.D.2d 721; 597 N.Y.S.2d 152; 1993 N.Y. App. Div. LEXIS 4289
(2nd Dep't 1993) (evidence that defendant and co-defendant made numerous drug sales
immediately prior to sale they were "busted" for held admissible).
344
345
22.1.2.8. Insanity
When a defendant interposes the “insanity defense,” he necessarily puts in issue
some aspects of his character and personal history. Evidence of uncharged criminal or immoral
conduct may be admitted as part of the People’s case on rebuttal if it has a tendency to disprove the
defendant’s claim that he was legally insane at the time of the crime. Background information which
sheds light upon a defendant’s personal history is often of crucial significance in cases involving the
insanity defense, and is not inadmissible solely because it is indicative of the defendant’s prior
antisocial conduct. Having placed his mental state before the trier of fact, the defendant cannot
complain when the People seek to bring forth additional evidence bearing upon that issue. 1602
A defendant does not automatically place his entire character in issue when he
interposes the defense of legal insanity. A defendant who asserts an insanity defense “opens the door”
to the People’s “character evidence” only to the extent that such evidence has a natural tendency to
disprove his specific claim. 1603
22.1.2.9. To Present Comprehensible Testimony
The People may introduce prior bad act evidence "to complete a witness's narrative
to assist the jury in their comprehension of the crime." 1604
Uncharged crime evidence may be used to support testimony that otherwise might
1605
be unbelievable or suspect.
Thorough cautionary instructions should be given to the jury on the limited purpose
1606
for which this evidence is received, to minimize the possibility of prejudice.
1601
People v. Carter, 77 N.Y.2d 95, 107, 566 N.E.2d 119, 124, 564 N.Y.S.2d 992, 997 (1990).
1602
People v. Santarelli, 49 N.Y.2d 241, 249–250, 401 N.E.2d 199, 204, 425 N.Y.S.2d 77, 82
(1980).
1603
People v. Santarelli, 49 N.Y.2d 241, 249–250, 401 N.E.2d 199, 204, 425 N.Y.S.2d 77, 82
(1980).
1604
People v. Steinberg, 170 A.D.2d 50, 573 N.Y.S.2d 965, 1991 N.Y. App. Div. LEXIS
10834 (1st Dep't 1991); People v. Mendez, 165 A.D.2d 751, 752, 564 N.Y.S.2d 241, 1990 N.Y.
App. Div. LEXIS 11242 (N.Y. App. Div. 1st Dep't 1990).
345
346
22.1.2.10. Use of Extrinsic Evidence
In addition to cross-examining the defendant as to these previous criminal acts, the
prosecution may also use documentary evidence to assist his examination.
Where intention to defraud is an essential element of the crime charged, evidence
competent to establish criminal intention is not a collateral matter with respect to cross-examination.
1607
The extrinsic evidence is not admissible if introduced solely on a collateral issue 1608 .
The issue therefore is whether the extrinsic evidence was admissible for any purpose
independent of the contradiction.
The use of a copy and the original of a document during cross-examination does not
constitute improper impeachment on a collateral matter, if the documents not only impeach
defendant’s credibility, but are also independently admissible on the essential issue of defendant’s
intention to defraud in the crime charged. 1609
It is settled that reversible error is committed when a prosecutor with knowledge of
an acquittal cross-examines a defendant concerning the criminal charge on which he has been
1610
acquitted.
This is in keeping with the general rule that knowing use of false evidence or
allowing it to remain uncorrected denies due process. 1611
1605
Dep't 1991) (evidence of defendant's abuse of Nussbaum was critical to an understanding of her
testimony).
1606
Dep't 1991).
1607
People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969).
1608
857 (1997); see § 10.1100
1609
1610
People v. Santiago, 15 N.Y.2d 640, 204 N.E.2d 197, 255 N.Y.S.2d 864 (1964);
1611
People v. Savvides, 1 N.Y.2d 554, 136 N.E.2d 853, 154 N.Y.S.2d 885 (1956); Cf. Napue v.
Illinois, 360 U.S. 264, 269, 79 5. Ct. 1173, 1177, 3 L.Ed.2d 1217 (Ill. 1959).
346
347
If the questioning of the defendant was in good faith and in ignorance of his acquittal of the charge,
and the error was harmless, no reversal is required. 1612
22.1.2.11. Use in Rebuttal
A trial court is invested with broad discretion to restrict inquiry into collateral
matters. 1613 Where the primary reason plaintiff sought to introduce rebuttal witness testimony was
to challenge defendant's credibility and rehabilitate her own, which are collateral matters by their
very essence, the trial court had not abused its discretion by denying plaintiff's applications to call
defendant's former patients as rebuttal witnesses. 1614
Evidence offered in rebuttal must counter some affirmative fact which defendant
attempted to prove. 1615 Where the People's rebuttal testimony concerning an alleged drug
transaction eight months before the events for which the defendant was convicted did nothing to
refute defendant's claim that he had been framed, but merely tended to show his propensity to sell
drugs, it was reversible error to admit the testimony. 1616
Although evidence of prior crimes is generally excluded when the prior conduct
involved relates to the accused, when the prior conduct of a third party is at issue, absent
1612
People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969) (district
attorney demonstrated his good faith at trial by showing that a “print record” which he had before
him was complete to June 4, 1965, and showed that defendant had not been tried since 1963;
defendant’s February 1965 acquittal of the check charge did not appear on the District Attorney’s
record; inference that defendant had been charged and acquitted in itself could not have
influenced the result, in view of the strong evidence of defendant’s guilt and the proper cross-
examination of defendant concerning twenty-one other similar fraudulent transactions and
worthless checks which were more damaging to his credibility).
1613
857 (1997).
1614
857 (1997).
1615
(1997).
1616
(1997).
347
348
countervailing considerations of prejudice, the relevancy and materiality of the evidence is to be
judged on its own merits. 1617
22.1.2.12. Evidence of Prior Abuse
Evidence of the defendant's prior abusive behavior toward the complainant may be
1618
admissible to prove the element of forcible compulsion in a rape case. This is true even where the
defense is not consensual sex, but that the rape never occurred and that the complainant's allegation
was a lie. 1619
Evidence of the defendant's prior abusive behavior towards his spouse may be
1620
relevant to comprehend the spouse's testimony.
Where the charge is that the defendant killed the victim he previously abused, the
use of the hearsay evidence of the prior abuse must fall within one of the Molineux categories, or their
1621
equivalents. The evidence cannot be admitted on the basis that the victim was killed by the
1622
defendant, and therefore the victim is unavailable to testify due to the acts of the defendant.
22.1.2.13. Victim’s Prior Sexual Conduct
The "Rape Shield Law" 1623 bars evidence of a complainant's past sexual conduct
unless one of five statutory exceptions applies. The first four allow evidence of a complainant's prior
sexual conduct in narrowly defined factual circumstances. The fifth is a broader "interest of justice"
exception.
1617
People v. Culhane, 45 N.Y.2d 757, 763–764, 308 N.E.2d 315, 320, 408 N.Y.S.2d 489, 494
(1978).
1618
People v. Cook, 93 N.Y.2d 840; 710 N.E.2d 654; 1999 N.Y. LEXIS 41; 688 N.Y.S.2d 89
(1999).
1619
People v. Cook, 93 N.Y.2d 840; 710 N.E.2d 654; 1999 N.Y. LEXIS 41; 688 N.Y.S.2d 89
(1999).
1620
Dep't 1991). For discussion, see § 22.1.2.9.
1621
See § § 22.1.2.1.
1622
People v. Maher, 89 N.Y.2d 456; 677 N.E.2d 728; 1997 N.Y. LEXIS 94; 654 N.Y.S.2d 1004
(1997). See § 23.7
1623
CPL § 60.42.
348
349
This reflects a legislative decision to end the introduction into evidence of prior
sexual conduct of the victim unless it falls within the statutory exceptions, since such evidence was
seldom relevant to the issue of consent and credibility and served only to harass the alleged victim
and confuse the jurors. 1624
The exceptions are when such evidence proves or tends to prove specific instances of
1625
the victim’s prior sexual conduct with the accused; with someone convicted under section
230.00 of the penal law within three years; or to rebut evidence introduced by the people of the
victim's failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a
given period of time; or to rebut evidence introduced by the people which proves or tends to prove
that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the
victim. 1626
Under the fifth exception, the "interest of justice" exception, the burden for making a
1627
threshold showing of relevance rests on the defense as the moving party. The trial court must
permit a offer of proof, 1628 and then state the findings of fact underlying its determination. 1629
The Rape Shield Law does not prevent the victim from introducing testimony of her
1630
own past sexual history. The accused may then offer relevant rebuttal evidence. 1631
1624
People v. Williams, 81 N.Y.2d 303; 614 N.E.2d 730; 1993 N.Y. LEXIS 1176; 598 N.Y.S.2d
167 (1993); People v. Westfall, 95 A.D.2d 581, 583–584, 469 N.Y.S.2d 162 (3d Dep’t 1983).
1625
CPL § 60.42.
1626
Where the People did not offer any evidence that the defendant had infected the victim with
syphilis, it was proper to exclude evidence that the victim's charge of rape first surfaced during a
gynecological exam which diagnosed syphilis. People v. White, 690 N.Y.S.2d 300, 1999 N.Y.
App. Div. LEXIS 4699 (3d Dep't 1999).
1627
167 (1993).
1628
See infra § 2.3.
1629
167 (1993).
1630
People v. Wigfall, 253 A.D.2d 80; 690 N.Y.S.2d 2; 1999 N.Y. App. Div. LEXIS 4173 (1st Dep't
1999) (victim testified to her past sexual history to explain why she had not immediately told her
husband of the rape).
1631
People v. Wigfall, 253 A.D.2d 80; 690 N.Y.S.2d 2; 1999 N.Y. App. Div. LEXIS 4173 (1st Dep't
1999).
349
350
22.1.2.14. Victim's Use Of Drugs Or Alcohol
A toxicology report evidencing a victim’s usage of alcohol, cocaine and cannabis is
admissible to support a justification defense to a murder charge where a defendant, though ignorant
of drug use, reports crazed behavior on the part of the victim’s consistent with such evidence. 1632 The
evidence enhances the objective description of the victim's behavior so as to better judge the
reasonableness of the defendant's conduct.
22.1.3. Civil Cases—Good Character
The use of evidence of good character in a civil case is restricted and may be
admitted only after a person’s good character has been directly called into question, by evidence of
bad character or otherwise.
There is a distinction between the contention that the witness is not testifying
truthfully in a particular case, and a claim that he or she is not a truthful person in general. In most
cross-examinations, the questioner seeks to show that the witness is not testifying accurately, either
because he lacks the factual foundation to do so or because he is being untruthful in a particular
testimony. Such an attack is not to the character of the witness, and it does not permit the witness to
introduce evidence of his truthful nature in general.
Affirmative evidence of good character, such as truthfulness, to bolster a witness’s
credibility is admissible only if an attack has been made on the witness’s truthful nature in general.
An effort must have been made to suggest that the witness was not normally a truthful person.
Suggesting that a witness is lying in a particular case for pecuniary reasons does not constitute an
attempt to prove bad character. 1633
An expert witness may not give opinion testimony as to the credibility of another
witness, because credibility is an issue of fact which must always be decided by the jury, since it
1632
People v. Chevalier, 89 N.Y.2d 1050; 681 N.E.2d 1292; 1997 N.Y. LEXIS 2357; 659 N.Y.S.2d
846 (1997). For use of such evidence on cross-examination, see § 9.15.
1633
Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d
Dep’t 1985).
350
351
involves matters susceptible of being understood by members of the general public without expert
assistance. 1634
A physician cannot give an opinion that the plaintiff “is a very stable type of
individual who would not try to pull the wool over my eyes” or is not “a malingerer or a faker or an
exaggerator in any sense of the word.” 1635
22.1.4. Civil Cases—Bad Character
Evidence of bad character is normally inadmissible in a civil case to impeach a
witness. 1636
It may be used in cases in which a person’s character is directly in issue as a matter
of substantive law, such as showing the plaintiff’s bad reputation in an attempt to mitigate damages
in an action for defamation or malicious prosecution. 1637
Evidence that a plaintiff allegedly suffered from “denial syndrome” which tended to
make him disregard competent medical advice was held to be inadmissible, because it was akin to
evidence of character and habit. 1638
22.1.4.1. Similar Acts of Carelessness
Evidence of carefulness or carelessness on another occasion is inadmissible to prove
how careful or careless a party was on a particular occasion. Courts have long resisted allowing
evidence of specific acts of carefulness or carelessness to be admitted to create an inference that such
conduct was repeated in the case at hand. 1639
1634
Dep’t 1985).
1635
Dep’t 1985).
1636
Dep’t 1985).
1637
Hart v. McLaughlin, 51 A.D. 411, 64 N.Y.S. 827 (1st Dep’t 1900).
1638
Davis v. Blum, 70 A.D.2d 583, 416 N.Y.S.2d 57 (2d Dep’t 1979).
1639
Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 361 N.E.2d 991, 393 N.Y.S.2d 341
(1977); Eppendorf v. Brooklyn City & Newtown R.R. Co., 69 N.Y. 195, 197 (1877) (evidence that
plaintiff had a habit of jumping on streetcars inadmissible to prove he jumped on the streetcar on
351
352
Evidence of how a party acted in the past is not probative of how he acted at the
time in question, unless a sufficient number of instances of the conduct can be established to prove a
habit. Conduct which involves not only one’s self, but also other persons or independently controlled
instrumentalities, cannot produce a regular usage. The conduct will encounter too many variations in
such circumstances.
Usually, such evidence is offered to show that a party was careless in general, to infer
that he was careless at the time of the accident. Such evidence is not admissible 1640
A prior bad accident record is inadmissible to establish the party was negligent in a
particular accident. 1641
Testimony by former patients of a psychiatrist that the doctor had sex with them is
inadmissible to prove that the doctor had sex with the plaintiff. 1642
22.1.4.2. Prior Acts Admitted for Other Purposes
Evidence of a prior act may be admissible where it has some relevancy, other than
similarity, to the issues presented. The trial court did not abuse its discretion in applying this
exception to permit admission of evidence surrounding a prior ineffective tubal ligation, where the
fact was inextricably bound to the second tubal ligation which was the subject of the medical
1643
malpractice suit.
the day of the accident); Zucker v. Whitridge, 205 N.Y. 50, 58–66, 98 N.E. 209, 210–213 (1912)
(evidence that party usually looked both ways before crossing railroad tracks inadmissible to
show that he looked both ways on the day of the accident).
1640
Lefcourt v. Jenkinson, 258 A.D. 1080, 18 N.Y.S.2d 160 (2d Dep’t 1940) (evidence that plaintiff
pushed on a glass panel previously is inadmissible to prove that he pushed on the glass panel at
the time of the incident); Morgan v. Robinson, 3 A.D.2d 216, 159 N.Y.S.2d 639 (1st Dep’t 1957)
(testimony that party had been speeding on other occasions inadmissible to establish he was
speeding at the time in question).
1641
Powell v. Beskin, 13 A.D.2d 683, 213 N.Y.S.2d 868 (26 Dep’t 1961) (defendant cab driver
was told at police department hearing that his hack license should not be renewed because he
had been in eleven car accidents, and he should be in some other kind of job; the fact that the
deputy police commissioner made such remarks about the defendant’s driving record was
irrelevant to whether defendant had been negligent in this particular instance).
1642
Coopersmith v. Gold, 89 N.Y.2d 957, 678 N.E.2d 469, 1997 N.Y. LEXIS 90, 655 N.Y.S.2d
857 (1997).
1643
Lohan v. Evanczyk, 229 A.D.2d 844; 646 N.Y.S.2d 213; 1996 N.Y. App. Div. LEXIS 7998 (3rd
Dep't 1996).
352
353
Evidence of the prior act may be admissible where it would be futile to attempt to
separate it from the facts of the case and still present to the jury an accurate summary of what
1644
occurred.
22.2. HABIT
The party seeking to establish habit or regular usage must be able to satisfy the judge
on voir dire that he expects to prove a sufficient number of instances of the conduct in question. The
witness should be able to fix, at least generally, the times and places of the occurrences. 1645
Evidence of habitual behavior or custom is circumstantial proof that the habit was
followed on the occasion in question. Traditionally, the admissibility of such evidence of habit was
limited to situations involving the performance of routine business or professional tasks. 1646
Until the decision of the Court of Appeals in Halloran v. Virginia Chemicals, Inc. the
courts in this state had excluded evidence of habitual behavior in negligence actions to show that a
party was or was not careful on a specific occasion. 1647
Habit evidence was forbidden in negligence cases for a variety of reasons: it raised
too many collateral issues; it was too similar to character evidence that is not admissible in civil
1644
Lohan v. Evanczyk, 229 A.D.2d 844; 646 N.Y.S.2d 213; 1996 N.Y. App. Div. LEXIS 7998 (3rd
Dep't 1996); People v. Steinberg, 170 A.D.2d 50; 573 N.Y.S.2d 965; 1991 N.Y. App. Div. LEXIS
10834 (1st Dep't 1991).
1645
(1977).
1646
See Matter of Will of Kellum, 52 N.Y. 517 (1873) (evidence of habit of drawing a will in
accordance with statutory requirements); People v. Bombard, 5 A.D.2d 923, 172 N.Y.S.2d 1
(1958) and People v. Bean, 284 A.D. 922, 134 N.Y.S.2d 483 (1954) (evidence of habit of advising
defendants of their right to counsel); Peninsula Natl. Bank v. Hill, 52 Misc. 2d 903, 277 N.Y.S.2d
162 (2d Dep’t 1966), aff’d, 30 A.D.2d 643, 292 N.Y.S.2d 820 (2d Dep’t 1968) (evidence of
process server’s habit in making substituted service); People v. Medina, 130 A.D.2d 515, 515
N.Y.S.2d 94 (2d Dep’t 1987); People v. Gonzalez, 100 A.D.2d 852, 474 N.Y.S.2d 97 (2d Dep’t
1984) (defendant’s “habitual” appearance); People v. Paschall, 91 A.D.2d 645, 456 N.Y.S.2d 828
(2d Dep’t 1982) (defendant’s habit of carrying a particular weapon); See Rigie v. Goldman, 148
A.D.2d 23, 543 N.Y.S.2d 983 (2d Dep’t 1989).
1647
See, e.g., Zucker v. Whitridge, 205 N.Y. 50, 58–66, 98 N.E. 209 (1912); Witherel v. Balling
Constr., 99 A.D.2d 646, 472 N.Y.S.2d 218 (4th Dep’t 1984); Davis v. Blum, 70 A.D.2d 583, 416
N.Y.S.2d 57 (2d Dep’t 1979).
353
354
actions; and negligence involves a departure from normal behavior, so that prior conduct is of little
probative value on the question of the behavior at issue. 1648
The Halloran case allowed evidence of repetitive conduct to be admitted in a
personal injury action as a means of establishing one’s conduct on a particular occasion. 1649
The Court of Appeals held that where the proof demonstrates “a deliberate and
repetitive practice” and the particular conduct involves a person “in complete control of the
circumstances,” evidence of such a routine practice could be admitted to allow an inference of
negligence on a particular occasion. 1650
Prior to permitting the introduction of such evidence, the trial judge must be
satisfied that the party seeking to admit habit evidence “expects to prove a sufficient number of
instances of the conduct in question.” 1651
It has been argued that Halloran did not intend to disturb the earlier rulings in
negligence cases which prohibited introduction of evidence of repetitive conduct. Rather, the court
intended to carve out a limited exception where the probative value of the habit evidence was
substantial and clearly outweighed the danger of creating collateral issues or of confusing, misleading,
or prejudicing the jury. 1652
Support for this view of Halloran as a limited exception may be found in the
subsequent Court of Appeals decision which held inadmissible evidence that the four-year-old infant
plaintiff’s mother had instructed her repeatedly on safe procedures to be followed in crossing city
streets.1653
1648
1 Wigmore, Evidence, § 92 (3d ed.).
1649
(1977) (plaintiff’s habit of overheating cans of freon while servicing automobile air conditioning
units was permitted into evidence to demonstrate the plaintiff’s contributory fault).
1650
(1977).
1651
Halloran v. Virginia Chemicals. Inc., 41 N.Y.2d 386, 361 N.E.2d 991, 393 N.Y.S.2d 341
(1977).
1652
See Prince, Evidence, 29 Syracuse L. Rev. 553, 555–556 (1978); See also Richardson,
Evidence, § 186 (Prince 10th ed., 1972–1985 Cum. Supp.).
1653
Ferrer v. Harris, 55 N.Y.2d 285, 434 N.E.2d 231, 449 N.Y.S.2d 162 (1982).
354
355
The infant plaintiff was injured when she ran from between parked cars into the
street and was struck by the defendant’s automobile. The plaintiffs sought to introduce evidence of
the instructions given to the infant to demonstrate the infant acted in accordance with those
instructions on the occasion in question. The court held such evidence inadmissible because there
was no proof the infant had acted on the mother’s instructions. However, the decision seemed to leave
open the question of whether the court would have departed from the traditional rule and allowed
proof of the infant’s own habit of carefully crossing the street.
22.2.1. Routine Business or Professional Tasks
A line of federal cases permits evidence of a professional’s routine and regular
practices in malpractice trials 1654
Admission of such evidence in federal courts is governed by a specific statutory rule
permitting evidence of habit to prove a person’s conduct on a specified occasion. 1655
One department has extended the use of habit evidence by permitting a doctor to
testify that, although he had no independent recollection as to specifically what he told the plaintiff
regarding the risks associated with the removal of an impacted wisdom tooth, he always tells his
patients of the risks of the surgery. 1656
His dental assistant was permitted to testify that in the hundreds of times she had
assisted the doctor, he had without exception always told the patient of the risk of the surgery before
administering anesthesia
1654
See, e.g., Meyer v. United States, 464 F. Supp. 317 (D. Colo. 1979), aff’d, 638 F.2d 155 (10th
Cir. 1980) (practice of warning patients of the risks involved in the extraction of third molars); In re
Swine Flu Immunization Prods. Liab. Litig., 533 F. Supp. 567 (D. Colo. 1980) (routine of obtaining
signed consent forms prior to administering the swine flu vaccine).
1655
Fed. R. Evid., § 406
1656
Rigie v. Goldman, 148 A.D.2d 23, 543 N.Y.S.2d 983 (2d Dep’t 1989).
355
356
The court in Rigie v. Goldman held that the doctor’s testimony in that case
established an adequate number of prior instances of specific, repetitive conduct by the doctor to rise
to the level of habit. 1657
Moreover, the physician was in complete control of the circumstances in which the
operative procedure was performed. 1658
Where the evidence of habit exhibits a uniformity of response and a sufficient
number of instances of the repetitive conduct, it is admissible. The jury may reasonably infer that the
routine practice was followed in the particular occasion in issue. 1659
The weight and value to be accorded such testimony as well as the resolution of the
plaintiff’s contradictory testimony that the doctor did not warn her of the dangers associated with
the surgical procedure were for determination by the jury. 1660
22.3. SIMILAR ACCIDENTS
Evidence of prior similar accidents is admissible when offered to prove the existence
of a defective or dangerous condition, to prove notice, and to prove proximate cause or actionable
negligence, if the highway or object was in substantially the same condition as at the time of the
negligence at issue and the circumstances were substantially the same. 1661
1657
Rigie v. Goldman, 148 A.D.2d 23, 543 N.Y.S.2d 983 (2d Dep’t 1989) (nineteen years of
practice, thousands of extractions).
1658
1659
Rigie v. Goldman, 148 A.D.2d 23, 543 N.Y.S.2d 983 (2d Dep’t 1989) (nineteen years of
practice, thousands of extractions).
1660
1661
Kaplan v. New York, 10 A.D.2d 319, 200 N.Y.S.2d 261, 1960 N.Y. App. Div. LEXIS 10550
(1st Dep't 1960); Annino v. City of Utica, 276 N.Y. 192, 11 N.E.2d 726 (1937); Gastel v. City of
New York, 194 N.Y. 15, 86 N.E. 833 (1909); See Allstadt v. Long Island Home, Ltd., 210 A.D.2d
365; 620 N.Y.S.2d 425; 1994 N.Y. App. Div. LEXIS (2nd Dep't 1994); Burns v. City of New York,
272 A.D. 1063, 76 N.Y.S.2d 439 (2d Dep’t 1947) (judgment for defendant reversed because of
error in excluding proof of prior accidents); Hynes v. Railway Espress Agency, 267 A.D. 835, 46
N.Y.S.2d 18 (2d Dep’t 1944); Hanselman v. Broad, 113 A.D. 447, 99 N.Y.S. 404 (2d Dep’t 1906).
356
357
Where other injuries occur under the identical conditions as the injury in suit, those
other injuries may be proved for the purpose of showing that the condition was unsafe. 1662
Proof of the happening of prior accidents at a place claimed to be unsafe and
dangerous, when the conditions have been shown to be similar, has frequently been held to be
competent when negligence is at issue, on the ground that it tends to show that, tested by actual use,
such place has been demonstrated to be unsafe. 1663
Where the issue is the utility, proper condition, or safety of any work of human
construction designed for practical use, evidence tending to show how the article has served when
put to the use for which it was designed may bears directly upon the issue. 1664
22.3.1. Similarity
Proof of a prior accident is admissible only upon a showing that the relevant
conditions of the subject accident and the previous one were substantially the same. 1665
Before offering testimony of prior accidents, it must be shown that the
circumstances of the earlier accidents were sufficiently similar to the relevant conditions prevailing at
the time of the later accident.1666
The burden is on the proponent of the evidence to establish sufficient similarity. 1667
1662
Putnam Rolling Ladder Co. v. Manufacturers Hanover Trust Co., 74 N.Y.2d 340, 546 N.E.2d
904, 1989 N.Y. LEXIS 3074, 547 N.Y.S.2d 611, 10 U.C.C. Rep. Serv. 2d (CBC) 14 (1989) (clerk
reviewed approximately 4,200 checks during a four-hour shift, allowing at most four seconds to
inspect each check; error to reject evidence that, using such procedure, bank had paid five
facially defective checks on other instances).
1663
(1st Dep't 1960).
1664
Klatz v. Armor Elevator Co., 93 A.D.2d 633, 462 N.Y.S.2d 677, 1983 N.Y. App. Div. LEXIS
17521 (2d Dep't 1983); Citing Taylor v. Northern States Power Co., 192 Minn. 415, 418–419, 256
N.W. 674 (1934).
1665
Hyde v. County of Rensselaer, 51 N.Y.2d 927, 415 N.E.2d 972, 1980 N.Y. LEXIS 2766, 434
N.Y.S.2d 984 (1980); Malossi v. State of New York, 680 N.Y.S.2d 305; 1998 N.Y. App. Div.
LEXIS 12501 (3d Dep't 1998);
1666
(1st Dep't 1960).
1667
Malossi v. State of New York, 680 N.Y.S.2d 305; 1998 N.Y. App. Div. LEXIS 12501 (3d Dep't
1998); Facci v. General Electric Company, 192 A.D.2d 991; 596 N.Y.S.2d 928; 1993 N.Y. App.
Div. LEXIS (3rd Dep't 1993).
357
358
No questioning before the jury about prior accidents is permissible until it is
established that the prior accidents were similar. 1668
The relevancy of the conditions as to prior accidents is determined by the issues as
presented in the case. 1669
The trial court is vested with broad discretion to determine the materiality and
relevance of proposed evidence. 1670
Proof of similar dangerous conditions may be by testimonial or documentary means
or a combination of both. However, when testimonial in the sense that descriptive allegations of the
parties are relied upon, or the natural result of their introduction in evidence is to prove both a
dangerous condition and proximate cause, the parties’ claimant in such cases should be produced and
available for cross-examination. 1671
While the prior accidents relied on need not be precise in every detail, there must be
a similarity in essential circumstances or conditions. 1672
The conditions existing at the time of prior accidents must have been substantially
similar to those existing in this case. In an auto case, the mental and physical condition of the driver,
1668
Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 493 N.E.2d 920, 502 N.Y.S.2d 696 (1986)
(plaintiff’s counsel asked the witness if, before plaintiff’s accident, he had heard of other accidents
with this press; the witness denied knowledge of any accidents at first, but after being shown
documents to refresh his recollection, he admitted that he had; questions were not proper, and
they could not be made so by the use of documents to impeach the credibility of defendant’s
witness or refresh his recollection on matters which were not properly before the jury in the first
place).
1669
(1st Dep't 1960).
1670
857 (1997) (within discretion of trial court to exclude evidence that psychiatrist-defendant had
sexual relations with four other patients, when issue was whether he had sexual relations with the
plaintiff);Hyde v. County of Rensselaer, 51 N.Y.2d 927, 415 N.E.2d 972, 1980 N.Y. LEXIS 2766,
434 N.Y.S.2d 984 (1980). (New York State trooper testified that he had been present at the scene
of another accident at the same location in 1973, at which time he observed the roadway’s
physical condition; trial court admitted evidence to show the condition of the road shoulder and
delineator posts on the issue of constructive notice; appellate division characterized the testimony
as “entirely proper,” but the Court of Appeals could not do so; nevertheless, no abuse of trial
court’s discretion).
1671
(1st Dep't 1960).
1672
2 Wigmore, Evidence, § 442 (3d ed.).
358
359
the mechanical condition of the car, its method of operation, etc., all may be or become relevant
dependent upon the issues of the case. 1673
Notice may be shown from the fact of other accidents because how the object has
served becomes relevant, though alone it does not establish negligence. 1674
Where the circumstances of the prior accidents are not given, the other accidents
may well have occurred exclusively by the fault of the persons injured. Unless that fact is negated, it
cannot be said that they were similar occurrences to prove the existence of a dangerous obstruction
or condition. 1675 More must be shown than the mere happening of the occurrence. 1676
Occurrences and the persistence of the condition complained of are both logically
probative and relevant. However, definiteness and accuracy upon the point of causation is the crucial
point. 1677
It is only necessary that the relevant conditions be shown to be similar to those
existing at the time of the accident in question. 1678
22.3.2. Analysis of Similarity
In Kaplan, the court demonstrated the analysis required to determine the similarity
of conditions. The basic issue was whether a pillar on a roadway was so marked, maintained, lighted,
1673
(1st Dep't 1960).
1674
. Kaplan v. New York, 10 A.D.2d 319, 200 N.Y.S.2d 261, 1960 N.Y. App. Div. LEXIS 10550
(1st Dep't 1960).
1675
(1st Dep't 1960).
1676
(1st Dep't 1960).
1677
(1st Dep't 1960).
1678
Tomassi v. Union, 58 A.D.2d 670, 395 N.Y.S.2d 747, 1977 N.Y. App. Div. LEXIS 12772 (3d
Dep't 1977) (road conditions were somewhat dissimilar, but the physical condition of the ditch had
remained unchanged) modified Tomassi v. Union, 46 N.Y.2d 91, 385 N.E.2d 581, 1978 N.Y.
LEXIS 2382, 412 N.Y.S.2d 842 (1978).
359
360
or projected by reason of street or other lighting that it was, could be, or should have been seen at a
reasonable distance by one operating a car at a reasonable rate of speed. 1679
Evidence of prior accidents to show a dangerous road condition becomes relevant
when the pillar and the approach to the pillar were so constructed or maintained that the accidents
occurred even though the drivers of the vehicles involved were operating at a reasonable rate of speed
under the physical conditions existing at the time. 1680
A police officer, after describing the physical conditions of the roadway, was
permitted to testify that he had gone to the scene on two prior occasions in connection with other
accidents which occurred there.
22.3.3. Prior Complaints or Notice of Claim
In Kaplan, the plaintiffs then introduced and were permitted to read into evidence
portions of another driver’s notice of claim and complaint on the theory that the city had notice of an
alleged dangerous and hazardous condition.
The fact that a notice of claim had been sent and received and that a complaint was
served might well be relevant and properly admissible, but only after the dangerous condition to
which it relates has been shown. However, the plaintiffs were permitted to read the descriptive and
conclusory allegations contained in the Notice of Claim. A portion of the documents from another
lawsuit was similarly read to the jury.
No attempt was made in either case to offer independent proof of what caused the
accidents, whether human frailty, mechanical defect, or physical obstructions. An offer of proof by the
defendant that three-plus alcohol was found in the brain of one driver was excluded.
Nor were the other claimants produced to testify or be subjected to cross-
examination. The contents of the documents beyond title, proof of service, etc., in such circumstances
1679
(1st Dep't 1960).
1680
(1st Dep't 1960). (precomparative negligence case).
360
361
were hearsay evidence, and the admission thereof was clearly prejudicial. Its effect, despite disclaimer,
was to go far beyond proof of notice and tended to establish the existence of a claimed dangerous
condition. The mere happening of an accident is not in and of itself proof of negligence, nor proof of
freedom from contributory negligence.
The admission into evidence of the contents of the papers, as distinguished from
proof of the fact of filing and service thereof, constituted prejudicial error requiring reversal and a new
trial.
Testimony given at a prior trial was read in evidence on the theory of similar
accident. In that accident, the claimant testified he was driving alongside a truck; the truck pulled
out; claimant cut to his left and crashed into the pillar, which he had not seen. On cross-examination,
the claimant said the truck cut him off. The court stated that such cutting off seemed to have been the
cause of that accident.
Other accidents may well prove notice, but more than notice is required to make the
evidence admissible. There must be evidence of such a fundamental condition of the thing under
scrutiny as will at least permit the inference that the party complained of was negligent. 1681
The pillar must be shown to have constituted an unreasonable and dangerous
obstruction. In Kaplan, witnesses testified that there had been other accidents, but they did not know
or could not state what caused the collisions.
If it is contended that the danger is in such proximity to the highway as to make
traveling perilous, it should be shown that persons in the exercise of due care, and not subjected to
unusual distractions, met with accidents at the scene.
1681
(1st Dep't 1960); Gastel v. City of New York, 194 N.Y. 15, 18, 86 N.E. 833 (1909); see
Rittenhouse v. State, 134 A.D.2d 774, 521 N.Y.S.2d 824, 1987 N.Y. App. Div. LEXIS 50947 (3d
Dep't 1987) (claimant failed to prove that the prior accidents involved vehicles leaving the
highway and colliding with trees or that there were any other pertinent circumstances in the prior
accidents similar to the instant one; evidence of frequent need to replace the knocked-down
guideposts, and 1981 photographs of scarring of trees in the vicinity of the accident, did not put
the State on notice that the tree struck by decedent’s car was a hazard requiring its removal).
361
362
Where the defendant testified that he knew of complaints about flying stones and of
an alleged injury from that cause, there was no prejudice from the exclusion of other accidents to
prove notice, since it was a conceded fact. 1682
Such evidence would be permitted to show a dangerous condition, but a foundation
was not laid for its use for that purpose.
22.3.4. Subsequent Accidents
Proof of subsequent accidents at the same place and under the same conditions,
while of no probative value on the question of notice, is admissible to establish the existence of a
dangerous condition, instrumentality, or place. 1683
There is no reason why the one should not be given the same effect as the other. Of
course, the occurrences subsequent to the one involved in the suit are not admissible for the purpose
of showing notice of the danger or defect. 1684
22.3.5. Discovery Regarding Similarity
Reports of prior or subsequent accidents is initially necessary to determine whether
the circumstances surrounding the other accidents were sufficiently similar to the circumstances to
constitute material evidence in that case. The court should not be concerned that the discovery order
might produce evidence of accidents which would not be admissible in the actual trial because of
“dissimilarity in time or conditions.” 1685
1682
Gutin v. Frank Mascali & Sons, Inc., 11 N.Y.2d 97, 181 N.E.2d 449, 1962 N.Y. LEXIS 1339,
226 N.Y.S.2d 434 (1962).
1683
Klatz v. Armor Elevator Co., 93 A.D.2d 633, 462 N.Y.S.2d 677, 1983 N.Y. App. Div. LEXIS
17521 (2d Dep't 1983); Dudly v. County of Saratoga, 145 A.D.2d 689 (3d Dep’t 1988); Tomassi v.
Town of Union, 58 A.D.2d 670 (3d Dep’t 1977); Galieta v. YMCA, 32 A.D.2d 711, 712, 300
1684
Klatz v. Armor Elevator, 93 A.D.2d 633, 462 N.Y.S.2d 677, 1983 N.Y. App. Div. LEXIS 17521
(2d Dep't 1983); citing Taylor v. Northern States Power Co., 192 Minn. 415, 418–419, 256 N.W.
674 (1934); Eisenbraun v. City of New York, 2 Misc.2d 981, 159 N.Y.S.2d 73 (1955) (such
evidence has as much probative value as evidence of prior accidents on the question of whether
the condition was “dangerous and naturally calculated to cause accidents”).
1685
Klatz v. Armor Elevator, 93 A.D.2d 633, 462 N.Y.S.2d 677, 1983 N.Y. App. Div. LEXIS 17521
(2d Dep't 1983); (allowing plaintiff’s discovery of records of any accidents involving the subject
362
363
22.3.6. Absence of Other Accidents
Proof of no prior similar accidents is inadmissible unless it can be established that
the site has existed in the same condition over several years. 1686
The lack of evidence of prior accidents is admissible to negate negligence because
continued use over a long period of time without incident may indicate that the condition has been
proven to be adequate or safe. 1687
The defendant must establish that the same allegedly dangerous condition had
existed for a number of years and that a significant number of persons had encountered the condition
without being injured. 1688
Where a witness testifies to a similar accident to prove a dangerous condition, the
defense is entitled to establish that the accident did not infer notice of the defect to defendant
because it occurred after the accident in issue. The defendant can prove the dates of the two accidents
to show that the plaintiff’s accident was the first of its kind. 1689
elevator which (1) occurred during the six-month period subsequent to the date of the accident
which is the subject of the instant action, and (2) were caused by defective safety mechanisms);
citing McDuffy v. Boston & Me. R. R., 102 N.H. 179, 152 A.2d 606, 74 A.L.R.2d 872 (1959).
1686
Ramundo v. Guilderland, 142 A.D.2d 50, 534 N.Y.S.2d 543, 1988 N.Y. App. Div. LEXIS
10980 (3d Dep't 1988).
1687
Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246, 250, 331, 282 N.E.2d 610, 1972 N.Y.
LEXIS 1383, 331 N.Y.S.2d 651 (1972), Cassar v. Central Hudson Gas & Electric Corporation, (3d
Dep’t 1988).
1688
Cassar v. Central Hudson Gas & Electric Corporation, 134 A.D.2d 672 (3d Dep’t 1988)
(although plaintiff’s witnesses established that some neighborhood children had previously been
in the creek, it was not demonstrated by the defendant that the conditions were the same or that
the children were in the area of the outlet a significant number of times; in the absence of such
proof, Supreme Court was justified in excluding the evidence as irrelevant).
1689
Bolm v. Triumph Corp., 71 A.D.2d 429, 422 N.Y.S.2d 969 (4th Dep’t 1979) (witness permitted
to testify that he had a similar accident while operating one of defendant’s motorcycles and that
as a result he lost his penis, his scrotum was ripped, and his testicles had to be pushed inside his
body; admissible to establish a dangerous condition).
363
364
22.3.7. Limiting Instruction
To the extent that the defendant believes the testimony impermissibly introduces
details of the prior accident, it is his or her obligation to request limiting instructions. 1690
22.3.8. Prior Accident by Plaintiff
Prior accidents by a plaintiff are not admissible to prove negligence, absent showing
of a habit. 1691
Such evidence may be admissible on damages. 1692
22.4. CUSTOM AND PRACTICE
Evidence as to the custom and practice in the same trade or business as the
defendant is relevant and admissible, since it bears upon the reasonableness of the defendant’s
conduct under the circumstances. It tends to establish the standard of ordinary care. 1693
It need not be shown that the particular custom or usage is universally observed, so
long as it is fairly well defined within the particular field. 1694
If the jury finds that there was a general custom or usage in the trade or business, the
jury may give the fact that the custom and practice was violated whatever weight they think it
1690
Hyde v. County of Rensselaer, 51 N.Y.2d 927 (1980); Galieta v. Young Men’s Christian
Assn., 32 A.D.2d 711, 712 (3d Dep’t 1969) (witness testified he too was burned in the calf after
coming into contact with the return pipe and that the conditions existing at the time were the same
as when plaintiff was injured; trial judge stated he would give a limiting instruction, but then forgot,
not reversible error, since defense counsel did not reiterate request for such an instruction).
1691
See § 2.200 et seq.
1692
Janac v. Adams, 35 A.D.2d 623 (3d Dep’t 1970) (plaintiff in a car accident testified both on
direct and cross-examination that he had never been involved in a prior similar accident;
appellant called a police officer who had investigated and made a police report of a similar rear-
end collision involving respondent and the same car which had occurred ten months prior to the
accident involved in the present litigation; the testimony, and the police report referred to by the
officer to refresh his recollection, were improperly excluded from evidence).
1693
PJI 2:16; Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 482 N.E.2d 898,
493 N.Y.S.2d 102 (1985); Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 493 N.E.2d 920,
502 N.Y.S.2d 696 (1986); Regan v. Eight Twenty Fifth Corp., 287 N.Y. 179, 38 N.E.2d 489
(1941).
1694
Cruz v. New York City Transit Authority, 136 A.D.2d 196, 526 N.Y.S.2d 827 (2d Dep’t 1988);
Trimarco v. Klein, 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52 (1982) (so that the actor may
be charged with knowledge of it or negligent ignorance).
364
365
deserves. It is not a conclusive or controlling test of due care; the question remains whether the
defendant acted with reasonable care under the circumstances. 1695
What usually is done may be evidence of what should be done, but what should be
done is fixed by a standard of reasonable prudence, whether or not people usually comply with it. 1696
Such evidence reflects the general consensus of the industry as to what should be done, and also tends
to prove the feasibility of certain practices.
Thus, to prove that it was negligence to place metal posts in concrete footing
elevated above the ground at a race track, the plaintiff could introduce testimony of witnesses that
the footings were not used in any other track in the country. 1697
The circumstances must be similar for the evidence to be relevant. For example, to
admit evidence that certain safety equipment is customarily used at a construction site, it is necessary
to show that the conditions of the job sites being compared are similar. 1698
It is the custom and practice in the industry that is relevant, not the custom and
practice of any one particular employer. 1699
If a company has a special rule which is more stringent than other companies, the
more stringent rules are admissible. 1700
The plaintiff should have been permitted the opportunity to establish, through
testimony of an expert, that there was an accepted practice of designing railings at elevated subway
stations in a manner which would deter sitting on the railings. 1701
1695
PJI 2:16; Trimarco v. Klein, 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52 (1982);
Shannahan v. Empire Engineering Corp., 204 N.Y. 543, 550, 98 N.E. 9, 11 (1912).
1696
Texas & Pacific R.R. Co. v. Behymer, 189 U.S. 468, 470, 23 S. Ct. 622, 47 L.Ed. 905 (Tex.
1903).
1697
Cole v. New York Racing Association, 17 N.Y.2d 761, 217 N.E.2d 144, 270 N.Y.S.2d 421
(1966), aff’d without op. 24 A.D.2d 993 (2d Dep’t 1965).
1698
McKinney v. New York Consolidated R.R. Co., 230 N.Y. 194, 129 N.E. 652 (1920).
1699
Garthe v. Ruppert, 264 N.Y. 290, 190 N.E. 643 (1934).
1700
Kush v. Buffalo, 59 N.Y.2d 26, 449 N.E.2d 725, 462 N.Y.S.2d 831 (1983); Danbois v. N.Y.
Central R.R. Co., 12 N.Y.2d 234, 189 N.E.2d 468, 238 N.Y.S.2d 921 (1963); Ehlinger v. Board of
Education, 96 A.D.2d 708, 465 N.Y.S.2d 378 (4th Dep’t 1983).
1701
Cruz v. New York City Transit Authority, 136 A.D.2d 196, 526 N.Y.S.2d 827 (2d Dep’t 1988).
365
366
22.4.1. ANSI Standards
ANSI standards are admissible in a labor law or products liability case. 1702 ANSI
standards may be considered by the jury as some evidence of negligence if it is first found that the
standards set forth in the booklet represent the general custom or usage in the industry. 1703
ANSI standards are not conclusive on the subject of negligence, and the jury should
have been instructed that they were not conclusive but were to be considered with all the other facts
and circumstances of the case in determining whether a third-party defendant’s conduct was
reasonable. 1704
22.4.2. Internal rules or manuals
Internal rule books and manuals which are relied upon by the parties experts, or
which do not impose a higher standard than that imposed by law, may be admissible where relevant
to an issue.
While internal operating rules may provide some evidence of whether reasonable
care has been taken and thus some evidence of the defendant's negligence or absence thereof, such
rules must be excluded, as a matter of law, if they require a standard of care which transcends the area
1705
of reasonable care. If the internal rule book or manual imposes a higher standard than that
imposed by law, it is inadmissible. 1706
1702
Sawyer v. Dreis & Krump Mfg., 67 N.Y.2d 328, 493 N.E.2d 920, 502 N.Y.S.2d 696 (1986).
1703
Sawyer v. Dreis & Krump Mfg., 67 N.Y.2d 328, 493 N.E.2d 920, 502 N.Y.S.2d 696 (1986).
1704
Sawyer v. Dreis & Krump Mfg., 67 N.Y.2d 328, 493 N.E.2d 920, 502 N.Y.S.2d 696 (1986);
See Trimarco v. Klein, 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52 (1982).
1705
Lesser v Manhattan & Bronx Surface Tr. Operating Auth., 157 A.D.2d 352, 356 (1st Dept
1990),
1706
Rivera v. New York City Transit Authority, 77 N.Y.2d 322; 569 N.E.2d 432; 1991 N.Y. LEXIS
213; 567 N.Y.S.2d 629 (1991); Conrad v. County of Westchester, 687 N.Y.S.2d 404; 1999 N.Y.
App. Div. LEXIS 3155 (2nd Dep't 1999); Clarke v. New York City Transit Authority, 174 A.D.2d
268; 580 N.Y.S.2d 221; 1992 N.Y. App. Div. LEXIS (1st Dep't 1992).
366
367
The jury should be instructed that a violation of the rule would represent some
evidence of negligence only if it first determined that the rule imposed a standard of care no greater
than that which reasonable prudence required. 1707
If it is shown that the plaintiff changed his position in detrimental reliance on the
defendants following that internal rule or policy, the internal rule may be relevant on that issue. 1708
22.5. INSURANCE
The general rule is that evidence pertaining to insurance is inadmissible and an
improper subject of cross-examination. 1709
If the evidence is admitted, the jury must be instructed, preferably at the time of the
evidence’s admission, that it may be considered solely on that one particular issue. See Limiting
Instruction, supra. The fact that there is insurance coverage has no bearing on the case. 1710
The burden is on the party against whom the evidence is offered to request a limiting instruction. 1711
It is advisable to give the instruction when the evidence is first introduced. 1712
Since automobile insurance is compulsory in New York, inadvertent mention of
insurance in an automobile case is not prejudicial. 1713
Where liability is clear, inadvertent mention of insurance does not require a mistrial.
1714
1707
Conrad v. County of Westchester, 687 N.Y.S.2d 404; 1999 N.Y. App. Div. LEXIS 3155 (2nd
Dep't 1999); Clarke v. New York City Transit Authority, 174 A.D.2d 268; 580 N.Y.S.2d 221; 1992
N.Y. App. Div. LEXIS (1st Dep't 1992).
1708
Conrad v. County of Westchester, 687 N.Y.S.2d 404; 1999 N.Y. App. Div. LEXIS 3155 (2nd
Dep't 1999); Clarke v. New York City Transit Authority, 174 A.D.2d 268; 580 N.Y.S.2d 221; 1992
N.Y. App. Div. LEXIS (1st Dep't 1992).
1709
Oltarsh v. Aetna Ins. Co., 15 N.Y.2d 111, 204 N.E.2d 622, 256 N.Y.S.2d 577 (1965).
1710
PJI 1:65.
1711
C.K.S. Inc. v. Helen Bordenicht Sportswear, Inc., 25 A.D.2d 218, 268 N.Y.S.2d 409 (1st Dep’t
1966).
1712
See People v. Marshall, 306 N.Y. 223, 117 N.E.2d 265 (1954)
1713
Zeglen v. Adamson, 12 A.D.2d 15, 208 N.Y.S.2d 282 (3d Dep’t 1960), appeal denied, 9
N.Y.2d 610, 172 N.E.2d 294, 210 N.Y.S.2d 1026 (1961).
1714
Rush v. Sears, Roebuck & Co., 92 A.D.2d 1072, 461 N.Y.S.2d 559 (3d Dep’t 1983).
367
368
Insurance coverage may be admissible for a limited purpose in some circumstances.
For example, evidence that the party is covered by insurance may be admissible when ownership is
disputed. 1715
Evidence of insurance coverage may be admissible if there is an issue as to whether
an owner retained control of that portion of the premises where an injury occurred. 1716
The contents of insurance applications may be relevant, necessitating admission of
evidence of insurance. For example, where a party prepares inconsistent reports to different insurance
companies, the facts concerning insurance coverage may become obvious to the jury. The jury may
learn that one party is insured, while another is not. This may have an effect on their deliberations. 1717
In Lynch v. Ford, the plaintiff’s husband had prepared an MV 104 report to the
Department of Motor Vehicles claiming three cars were involved in the accident, and an application
for uninsured motorist coverage claiming only two cars were involved in the accident. One issue in
the case was whether the third car had actually been involved in the collision. The application for
uninsured coverage probably failed to mention the third automobile because the uninsured coverage
could be denied on that ground. The defendant sought to cross-examine the plaintiff’s husband about
his motives for the inconsistent statements.
The trial court permitted the inquiry, but it was reversed on appeal. The cross-
examination should have been limited to the inconsistency between the two reports, and not the
motivation for preparing the application for uninsured coverage. The jury’s knowledge that car 2 was
uninsured, and that the plaintiff had recovered payments under uninsured motorist coverage, could
turn a close case.
Where a party makes statements in an application or report to workers’
compensation, the court should charge the jury as follows:
The fact that the plaintiff has (received, applied for) workers’ compensation benefits has no bearing
1715
Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406 (1915); Flieg v. Levy, 148 A.D. 781, 133 N.Y.S.
249 (2d Dep’t 1912), aff’d, 208 N.Y. 564, 101 N.E. 1102 (1913).
1716
Martyn v. Braun, 270 A.D. 768, 59 N.Y.S.2d 588 (2d Dep’t 1946)
368
369
on any other issue in the case than the weight you will give to (plaintiff’s, the witness’s) testimony.
Compensation benefits (are payable, were paid) (to, for) plaintiff because he was an employee of CD
at the time of the accident. These payments are made without determining fault with respect to the
happening of the accident. If, but only if, plaintiff is successful in this action, the payments made by
CD will have to be refunded by plaintiff to CD.
22.5.1. Collateral Source Evidence
In medical malpractice, personal injury, property damage, and wrongful death
actions, CPLR 4545 permits introduction of evidence of sources of compensation that would, with
reasonable certainty, be available to the plaintiff in the future. 1718
The Court must find that the plaintiff is legally entitled to the continued receipt of
such collateral source, pursuant to a contract or otherwise enforceable agreement, subject only to the
continued payment of a premium and such other financial obligations as may be required by such
agreement. 1719
Only those collateral source payments that actually replace a particular category of
1720
awarded economic loss may be used to reduce the injured's judgment. There must be a direct
1717
Lynch v. Ford, 60 A.D.2d 880, 401 N.Y.S.2d 281 (2d Dep’t 1978).
1718
Bryant v. New York City Health and Hospitals Corporation, 1999 N.Y. LEXIS 1423 (N.Y. Ct.
App. 1999).
CPLR 4545 states:
"where the plaintiff seeks to recover * * * loss of earnings or other economic loss, evidence shall
be admissible for consideration by the court to establish that any such past or future cost or
expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part,
from any collateral source such as insurance (except for life insurance), social security (except
those benefits provided under title XVIII of the social security act), workers' compensation or
employee benefit programs (except such collateral sources entitled by law to liens against any
recovery of the plaintiff). If the court finds that any such cost or expense was or will, with
reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the
amount of the award by such finding, minus an amount equal to the premiums paid by the plaintiff
for such benefits for the two-year period immediately preceding the accrual of such action and
minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits."
1719
Bryant v. New York City Health and Hospitals Corporation, 1999 N.Y. LEXIS 1423 (N.Y. Ct.
App. 1999)(monthly Social Security survivor benefits paid to decedent's daughter should be
deducted in a wrongful death action, since such benefits were intended to replace a parent's
earnings).
1720
Oden v Chemung County Indus. Dev. Agency, 87 N.Y.2d 81, 85, 637 N.Y.S.2d 670, 661
N.E.2d 142).
369
370
correspondence between the item of loss and the type of collateral reimbursement before the required
statutory offset may be made.
22.6. SUBSEQUENT REMEDIAL MEASURES
Evidence of subsequent repairs is not admissible in a negligence case. 1721
The traditional concern with admitting subsequent repairs or subsequent design
changes is that permitting the use of such evidence will deter subsequent repairs or improvements to
property or products. 1722
At the heart of a negligence case is affirmative conduct in creating a dangerous
condition or a failure to take steps to avert a foreseeable risk to others. In such cases, proof of
subsequent conduct is considered to be of low probative value. 1723
In negligence cases, the degree of care previously provided could have been adequate,
but because of the accident, the defendant decided to take extra precautions, beyond that which was
reasonable.
22.6.1. Ownership or Control
Evidence of subsequent repairs may be admissible if an issue of control and
maintenance exists. 1724 Where the village denied control of a tree from which a limb had fallen in the
street, the plaintiff was permitted to introduce evidence that two months following the accident, the
1721
Corcoran v. Village of Peekskill, 108 N.Y. 151, 15 N.E. 309 (1888)
Getty v. Town of Hamlin, 127 N.Y. 636, 27 N.E. 399 (1891); Clapper v. Town of Waterford, 131
N.Y. 382, 30 N.E. 240 (1892); Cahill v. Kleinberg, 233 N.Y. 255, 135 N.E. 323 (1922); Scudero v.
Campbell, 288 N.Y. 328, 43 N.E.2d 66 (1942); Croff v. Kearns, 29 A.D.2d 703, 286 N.Y.S.2d 119
(3d Dep’t 1968) aff’d, 22 N.Y.2d 718, 238 N.E.2d 927, 291 N.Y.S.2d 821 (1968); Barone v. 111
East 39th St. Corp., 38 A.D.2d 797, 328 N.Y.S.2d 454 (1st Dep’t 1972); Carollo v. Rose, 43
A.D.2d 831, 350 N.Y.S.2d 929 (2d Dep’t 1974).
1722
Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981)
(dissent), citing Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (2d Dep’t 1976); Ault v.
International Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148, 24 A.L.R.3d 986
(1974); see generally 2 Wigmore, Evidence, § 283 (3d ed.).
1723
Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981).
1724
Harris v. Village of East Hills, 41 N.Y.2d 446, 362 N.E.2d 243, 393 N.Y.S.2d 691 (1977);
Scudero v. Campbell, 288 N.Y. 328, 43 N.E.2d 66 (1942); Olivia v. Gouze, 285 A.D. 762, aff’d, 1
N.Y.2d 811, 153 N.Y.S.2d 71 (1956).
370
371
village had the remaining parts of the tree that had fallen on the plaintiff cut down and removed. 1725
At the time this evidence was introduced, the court instructed the jury that “any testimony relative to
the post-accident actions by the defendant, Village of East Hills, . . . was received on the issue of
control of the tree in question and not as to whether or not said defendant Village was negligent at
the time of the occurrence.”
A limiting instruction should be given at the time the evidence is introduced. It is a
matter of discretion whether the court must reinstruct the jury on the subsequent repair doctrine at
the close of the trial. 1726
22.6.2. Impeachment
Where the defendants denied that the plaintiff tripped on a defect on their sidewalk
because they would have seen it from their window, a bill which demonstrated that a repairman had
come to defendants’ premises on the date of the accident for the purpose of either performing
sidewalk repairs or viewing the sidewalk in preparation for future repairs was admitted, even though
the exact place where the plaintiff allegedly fell was not repaired. 1727
Where the answer of the original defendants denied the allegation in the complaint
as to control over the premises, but at the trial their counsel conceded such control, testimony of
subsequent repairs to show control is immaterial and irrelevant. 1728
22.7. SUBSEQUENT DESIGN CHANGES
The general rule is that evidence that the design of the product was changed after
the particular model in question was sold is not admissible to show that the product’s initial design
was defective. 1729
1725
Harris v. Village of East Hills, 41 N.Y.2d 446, 362 N.E.2d 243, 393 N.Y.S.2d 691 (1977).
1726
Harris v. Village of East Hills, 41 N.Y.2d 446, 362 N.E.2d 243, 393 N.Y.S.2d 691 (1977).
1727
Schechtman v. Lappin, 161 A.D.2d 118 (1st Dep’t 1990).
1728
Croff v. Kearns, 29 A.D.2d 703, 286 N.Y.S.2d 119 (3d Dep’t 1968) aff’d, 22 N.Y.2d 718, 238
N.E.2d 927, 291 N.Y.S.2d 821 (1968) (not reversible error, since clear showing of negligent
condition and limiting instruction given).
371
372
The general rule is based on the traditional inadmissibility of post-accident repairs.
Many courts have reasoned that the traditional rationale for excluding evidence of
subsequent repairs does not apply in products liability cases because manufacturers are almost
always insured and are likely to make a safety improvement to prevent further liability. 1730
They argue that the policy against deterring repairs is inapplicable, since the
economic self-interest of the manufacturer will cause them to effect repairs of defective products to
avoid ruinous additional liability from marketing a product which they know or should know has a
defect.
The rationale that the precaution by the manufacturer could be an “extreme” one
does not fit in a product liability setting. In strict liability cases, the manufacturer is presumed to
know the dangers associated with his product. Unless the accident was entirely unforeseeable, he is
presumed to know of the potential for injury that the product presents. 1731
Furthermore, the Court of Appeals has said that a safe product is one whose utility
outweighs its risk when the product has been designed so that “the risks are reduced to the greatest
extent possible while retaining the product’s inherent usefulness at an acceptable cost.” 1732
1729
Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984); Rainbow v. Albert
Elia Building Co., Inc., 56 N.Y.2d 550, 434 N.E.2d 1345, 449 N.Y.S.2d 967 (1982), aff’d, 79
A.D.2d 287, 436 N.Y.S.2d 480 (4th Dep’t 1981).
1730
Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (2d Dep’t 1976); Ault v. International
Harvester Co., 13 Cal.3d 113, 120, 117 Cal.Rptr. 812, 528 P.2d 1148, 1151–1152, 24 A.L.R.3d
986 (1974); Products Liability and Evidence of Subsequent Repairs, 1972 Duke L. J. 837, 848–
860.
1731
Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981)
(“it breathes the spirit of strict products liability” that “the determination of whether a reasonably
prudent manufacturer would put the product on the market must be made with the assumption
that the manufacturer knew of the dangerous condition of the product”; quoting Wade, On
Product “Design Defects” and their Actionability, 33 Vanderbilt L. Rev. 551, 567 (1980)); Cover v.
Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378 (1984) (whether a product is reasonably safe is
determined by “whether a reasonable person with knowledge of the potential for injury of the
product and of the available alternatives balancing the product’s risks against its utility and costs
against the risks, utility and costs of the alternatives, would conclude that the product should not
be placed on the market in that condition”).
1732
372
373
Thus, under this definition, every risk should be reduced “to the greatest extent
possible,” as long as it is feasible to do so. Therefore, a manufacturer cannot be excessively cautious, if
the additional precaution reduces the risk, and it is feasible to use the design at an acceptable cost.
It is argued that design changes are made for many reasons, not just safety. In the
vast majority of cases, the implementation of the new design is done after careful study and
consideration by the manufacturer. In most cases, use of the new design is logically probative of the
manufacturer’s belief that the new design was not only feasible, but also safer.
When the manufacturer takes the position at trial that the old design was safe, the
question still remains whether the risks were “reduced to the greatest extent possible.”
The Court of Appeals reasons that the evidence is inadmissible because in a design
defect case, the jury is faced with a balancing process which is imprecise and rests on a subjective
judgment. The jury is not considering whether the manufacturer used the best possible design, but
whether the design used was reasonably safe. In such a subjective decision, the court believes that the
evidence that a manufacturer later adopted the new design could be overemphasized by the jury. 1733
Thus, despite the fact that the evidence is relevant, the Court excludes the evidence
because it is too persuasive to the jury.
Whether the product could be safer is clearly an important inquiry for the jury. it is
not conclusive, in itself. The manufacturer can always reason with the jury that the product as
initially designed was safe enough.
The exceptions to the rule are frequently available, when the evidence is introduced
properly.
22.7.1. Manufacturing Defect
The Court of Appeals has held that evidence of a subsequent design change is
admissible to prove that the product was defectively manufactured. 1734
1733
1734
373
374
The Court of Appeals stated in a footnote that because the case was not submitted
on a design defect theory, it was not considering the balancing of benefits against the risk which is
involved in determining whether a product has a design defect. This footnote was then used to limit
the holding in Caprara to cases involving a claim of a manufacturing defect. 1735
The composition of the Court of Appeals then changed, and the majority, declining
to overrule Caprara, nevertheless limited its application to cases alleging a manufacturing defect. 1736
22.7.2. Both Manufacturing and Design Defect
In most product liability cases, the complaint will be framed so as to include both a
design defect and a manufacturing defect because it is difficult to conclusively exclude one claim for
another before discovery is complete.
Where both a design defect and a manufacturing defect are alleged, evidence of the
subsequent design change may be admissible on the issue of whether the product contained a
manufacturing defect. 1737 In Brown, the plaintiff’s fingertip was amputated when a blade of a paper
cutter fell on her finger while she was removing some paper from the machine. After the accident, a
lock washer was inserted around the screw or bolt that held the cam to the shaft of the paper cutter.
The court held that the evidence tended to support the inference that at the time of
the accident, the cam was loose and caused the accident. Defective design, manufacture, and repairs
were all submitted to the jury. The court stated that the evidence of the subsequent repair strongly
led to the conclusion that there was a defect in the paper cutter. The court permitted introduction of
evidence that the defendant repaired the paper cutter after the accident, since both design and
manufacturing theories were present in the case.
1735
Rainbow v. Albert Elia Building Co., Inc., 56 N.Y.2d 550, 434 N.E.2d 1345, 449 N.Y.S.2d 967
(1982), aff’g, 79 A.D.2d 287, 436 N.Y.S.2d 480 (4th Dep’t 1981).
1736
Rainbow v. Albert Elia Building Co., Inc., 56 N.Y.2d 550, 434 N.E.2d 1345, 449 N.Y.S.2d 967
(1982), aff’g, 79 A.D.2d 287, 436 N.Y.S.2d 480 (4th Dep’t 1981).
1737
Brown v. Michael Business Machines Corporation, 104 Misc.2d 200, 428 N.Y.S.2d 148 (Sup.
Ct. N.Y. Co. 1980).
374
375
22.7.3. Control
The traditional use of a subsequent repair is to show control, to impeach, or to
establish feasibility of precautionary measures. In such cases, the evidence is admissible, although it
must be accompanied by limiting instructions. 1738
22.7.4. Feasibility of Alternative Design
Evidence that other manufacturers use an alternative design is admissible. The
“other manufacturer” may be the defendant themselves, using the design on a different model. The
evidence is admissible to exemplify available alternative designs. 1739
Whether it was feasible to produce the product with the safer design is frequently
the primary issue for the jury, rather than whether the alternative design is safer. The design would
not be suggested by the expert or attorney if it would not have prevented the injury in the particular
case before the jury. Thus, the jury knows that it would have been a safer design, at least in one
concrete instance. The burden in essence then switches to the manufacturer to show that the
suggested design would create more dangers than it solves, since the jury is faced with one concrete
instance of an injury that would have been avoided by the suggested design.
The fact that the manufacturer started using the other design after the date of sale is
not relevant, since the evidence still demonstrates what designs could be used. Of course, the
plaintiff’s expert must testify that the design was available at the time the product in question was
sold, i.e., that the design was “within the state of the art” when the product was sold.
If the alternative design was within the state of the art at the time of the sale, it can
be used to illustrate alternative designs, even though the defendant did not start using the design
until after the product in question was sold. If the defendant denies an element essential to the
plaintiff’s case, i.e., that this alternative design could have reasonably been used, it opens the door to
proof of the fact that the defendant itself used the alternative design.
1738
Antonse v. Bay Ridge Savings Bank, 292 N.Y. 143, 54 N.E.2d 388 (1944); Mason v. New
York, 29 A.D.2d 922, 288 N.Y.S.2d 990 (1st Dep’t 1968).
375
376
Thus, it was held that evidence that General Electric had changed the design of an
extension cord several years after the cord at issue was manufactured, and also evidence that they had
included warnings on the packaging of later manufactured extension cords, was highly probative of
how readily the cord at issue could be made less dangerous. 1740
In Lancaster Silo & Block Company v. Northern Propane Gas Company, the
defendant sold a cylinder of propane gas that leaked and allegedly caused an explosion. The plaintiff
claimed that the manufacturer’s valve was shorter than the 0.687 inches required by industry
standards, resulting in a propensity to come loose. The manufacturer increased the length of the
shank of the bonnet of the cylinder to 0.638 inches four years after the accident. The appellate
division held that proof of the manufacturer’s design modification should have been admitted,
because it was probative of the alternatives available to the manufacturer at the time the product was
made. It tended to prove that the design alternative was feasible and within the state of the art at the
time of manufacture.
The fact that the design change was made demonstrates that the change could be
made without impairing the function of the product and without unreasonably increasing the cost of
the product, i.e., that the alternative design was feasible. 1741
The rule permitting use of subsequent design changes where feasibility is an issue
merely permits a plaintiff to prove one of the essential elements of his proof: the feasibility of an
alternative design. The fact that the alternative design happens to be a design used by the defendant
himself does not prevent the plaintiff from proving the feasibility of the alternative design. The
defendant’s fear of prejudice is overcome by the plaintiff’s right to prove essential elements of his case.
Usually, the plaintiff’s expert establishes that the subsequent design was within the
state of the art at the time the product was sold.
1739
Bolm v. Triumph Corporation, 71 A.D.2d 429, 422 N.Y.S.2d 969 (4th Dep’t 1979).
1740
Bartlett v. General Electric Company, 90 A.D.2d 183, 457 N.Y.S.2d 628 (3d Dep’t 1982).
1741
Lancaster Silo & Block Company v. Northern Propane Gas Company, 75 A.D.2d 55, 427
N.Y.S.2d 1009 (4th Dep’t 1980).
376
377
Even more persuasive is the testimony of an employee of the defendant that the
technology was known to the defendant and available at the time the product was sold. 1742
The plaintiff in Caprara called a supervisor and engineer in Chrysler’s steering and
suspension department, who testified that after the accident, Chrysler added a plastic insert onto the
ball joint which eliminated the end play or movement. He also testified that this end play or
movement would wear away the ball joint. Thus, the defendant’s own engineer was used to establish
that the design change was feasible and could be helpful.
22.7.5. Concession of Feasibility
Defense counsel may state that they are “conceding feasibility.” To concede
feasibility, the testimony at the trial must concede certain key elements of proof.
Whether another design was “feasible” requires several separate factual findings.
Each of these concessions must be brought to the attention of the jury.
1. Technologically possible alternative design
First, it must have been technologically possible to manufacture the suggested safer design. A design
by the same manufacturer is the best proof of this.
By conceding feasibility, the defendant is conceding that the alternative design was
within the “state of the art” at the time the product was sold.
2. Functional alternative design
Second, to be feasible, the product must remain functional with the suggested design. By conceding
this, the defendant is agreeing that not only could the design have been used, but it also would not
impair the function of the product.
3. Reasonably priced alternative design
For an alternative design to be feasible, the product must remain reasonably priced, i.e., it must not
only be technologically possible to use the alternative design, but commercially possible as well. The
best proof of this is that the defendant now actually sells a product with the suggested design.
1742
Bartlett v. General Electric Company, 90 A.D.2d 183, 457 N.Y.S.2d 628 (3d Dep’t 1982).
377
378
By conceding this, the defendant is agreeing that not only could the alternative
design be used, without impairing the function of the product, but that use of the alternative design
would not make the product unmarketable.
If the manufacturer concedes that it was feasible to use the suggested alternative
design, the key issue is whether the alternative design is safer.
To establish proximate cause, the plaintiff must show how the suggested alternative
design would have prevented the particular injury in question. Since that also establishes one risk
that is reduced by the suggested alternative design, such proof also goes to establish that the
alternative design was safer.
To dispute the claim that the risks would be reduced by the alternative design, the
manufacturer must show how using the alternative design would have increased other injuries.
Whichever design the jury concludes would result in fewer injuries is safer.
Merely because one design is safer does not mean that another design is not
reasonably safe. 1743
It is persuasive to a jury that a manufacturer did not reduce the risks to the greatest
extent possible.
22.7.6. Impeach Credibility
If the defendant’s witness takes the position that no manufacturer uses the
suggested alternative design, he may be impeached by evidence that the manufacturer, in fact, uses
the subsequent design. 1744
In Singer, a hammer broke and a chip struck the plaintiff in the eye. The plaintiff claimed that if the
hammer had been beveled, it would not have broken.
The plaintiff was permitted to introduce evidence that after the accident, the
defendant began beveling the edges of its hammers, because on redirect, the defendant’s president
1743
1744
Singer v. Walker, 39 A.D.2d 90, 331 N.Y.S.2d 823 (1st Dep’t 1972).
378
379
was asked whether any manufacturer at the time of trial beveled the hammer. The witness replied,
“Not that I know of.” On recross, he was asked whether, at the time, his company beveled their
hammers. The objection was properly overruled, since the defendant had opened the door on redirect.
Since the witness claimed that he knew of no company that manufactured a beveled
hammer, the plaintiff could properly introduce in evidence a hammer manufactured by the defendant,
which was beveled.
22.7.7. Relevancy Outweighing Prejudice
Previously, the courts believed the prejudice from evidence of subsequent design
changes outweighed the relevancy of such evidence. In strict products liability cases, the court in
Caprara found that the relevancy of the evidence of subsequent design changes outweighed the
prejudice of admitting the evidence. 1745
Similarly, evidence that General Electric had changed the design of an extension
cord several years after the cord at issue was manufactured, as well as evidence that they had included
warnings on the packaging of later manufactured extension cords, was highly probative of how
readily the cord at issue could be made less dangerous. 1746
22.7.8. Laying Foundation
During depositions, the deponent for the manufacturer will often take stands which
result in the plaintiff being able to use the evidence of the subsequent design change. The deponent
should be asked whether the alternative design:
a. Would impair the function of the product
1745
Citing Wade, On Product “Design Defects” and Their Actionability, 33 Vanderbilt L. Rev. 551,
567 (1980); Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke L. J. 837;
Note, Evidence of Subsequent Repair, Yesterday, Today and Tomorrow, 9 U. C. Davis L. Rev.
422.
1746
Bartlett v. General Electric Company, 90 A.D.2d 183, 457 N.Y.S.2d 628 (3d Dep’t 1982). The
fourth department decided Rainbow v. Albert Ella Building Co., Inc., 79 A.D.2d 287, 436 N.Y.S.2d
480 (4th Dep’t 1981), on February 26, 1981. It was affirmed by the Court of Appeals on March 25,
1982 (56 N.Y.2d 550, 434 N.E.2d 1345, 449 N.Y.S.2d 967 (1982)). Bartlett was decided on
December 9, 1982.
379
380
b. Would make the product impractical;
c. Would increase unreasonably the price of the product;
d. Would make the product more dangerous; and
e. Is used by any manufacturers.
If he or she claims that the alternative design would impair the function of the product, make the
product impractical, or unreasonably increase the price of the product, he has challenged the
feasibility of using the alternative design, and, therefore, the evidence of the subsequent design change
is admissible
22.7.9. To establish punitive damages
Evidence of subsequent design changes is not admissible in attempting to prove
grounds for punitive damages. 1747
1747
Camillo v. Geer, 185 A.D.2d 192; 587 N.Y.S.2d 306; 1992 N.Y. App. Div. LEXIS (1st Dep't
1992).
380
381
381
382
CHAPTER 23 MOTIONS IN LIMINE
23.1. MOTIONS IN LIMINE
During the discovery process and the preparation of his case for trial, counsel should
consider the potential evidence that his adversary will seek to have admitted. If it is determined that
an evidentiary matter would be highly prejudicial to one’s client, a motion in limine might be
appropriate. This motion, derived from the common law, is one made before or after the beginning of
a jury trial for a protective order against the potential use of prejudicial evidence by an adversary. As
an offensive motion, it may be used by a party seeking to admit possibly inadmissible evidence to
avoid the possibility of a mistrial. The major benefit of the motion is to have the controversy directed
to the court before the evidence is received or at least before it is offered.
Trial attorneys are well aware that the mention of evidence before a jury, even
though subsequently held inadmissible by a judge, could very well be considered by the members of
the deciding panel. Further damage occurs by raising the objection before the jury. Clearly, the lay
person may wonder what counsel may be trying to hide. To guard against this, the effective lawyer,
after evaluating his adversary’s case, should consider the need for a motion in limine. By bringing such
a motion, the objective is to obtain a ruling before the evidence is mentioned in the presence of the
jury, or at the very least, as a rule of exclusion and silence until the court, after considering the legal
and factual information, has made a final ruling on the admissibility of extremely prejudicial evidence.
Motions in limine are helpful to counsel when the evidence in issue is conceivably
relevant, but its probative value is substantially outweighed by the likelihood that it will cause undue
prejudice, confuse the issue, or mislead the jury. Moreover, by bringing such a motion with regard to
more difficult evidentiary issues, the judge might be afforded the opportunity to review and consider
relevant law and cases. Generally, evidentiary decisions are made with only a moment’s thought by
the trial judge.
Counsel, forewarned of complex legal issues involving potential evidence, would be
well advised to consider the potential benefits of a motion in limine.
382
383
23.1.1. Time and Form of Motion
Obviously, the preferable time to make a motion in limine is prior to the
commencement of trial or the seating of the jury. The motion, if possible, also should be made in
writing, with an accompanying memorandum of law. By putting the motion in writing, counsel will
be developing a record for use in cases of abuse, misunderstanding, and appeal. Bringing the motion as
early as possible in the proceedings also affords the judge the rare opportunity to have time to
carefully consider complex evidentiary issues.
If making the motion in advance of trial, the notice requirements set forth in the
New York Civil Practice Law and Rules should be kept in mind. Motions should be served personally
eight days before the return date or mailed thirteen days before said date, if opposition papers are
required to be served three days before the return date. If opposition papers are required seven days
before the return date, personal service should be twelve days before its return date or, if mailed,
seventeen days.
Where a prejudicial subject is developed at trial, and no motion in limine has been
made in advance, an immediate conference out of the jury’s presence for the purpose of making the
motion should be requested.
23.1.2. Criminal Law
Motions in limine are common in criminal cases.
Suppression of identification testimony by a witness where the procedures utilized
by police were suggestive is properly raised in a motion in limine. 1748
Collateral evidence may properly be excluded through a motion in limine. 1749
1748
People v. Sanders, 108 A.D.2d 316, 489 N.Y.S.2d 348 (2d Dep’t 1985); see also People v.
Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983) (motion to suppress victim’s
identification where victim identified defendant as assailant while under hypnosis).
1749
People v. Felder, 143 A.D.2d 839, 533 N.Y.S.2d 322 (2d Dep’t 1988).
383
384
Use of the motion in limine by a prosecutor, however, is subject to restraint. As a
general rule, a defense witness will not be prospectively prohibited from testifying unless such
testimony is offered in palpably bad faith. 1750
This rule is necessary in order to preserve the defendant’s constitutional right to

1751
present witnesses in his own defense as defined in Chambers v. Mississippi.
Prosecutors may find the motion in limine to be useful as an offensive tactic to guard
against potential mistrial or reversal. For example, the prosecutor may seek permission prior to trial
to introduce certain evidence to ensure that the defendant will receive a fair trial. 1752
The Court of Appeals has stressed that certain procedures should be followed in
cases involving potentially prejudicial testimony. 1753
When a prosecutor knows that potentially prejudicial evidence is to be presented
and waits until an objection is made during trial before informing the court of the basis upon which
he considers it to be admissible, there is unfairness to the defendant, even if his objection is sustained,
because of the questionable effectiveness of cautionary instructions in removing prior crime evidence
from consideration by the jurors. There is, moreover, a greater probability of error and consequent
waste of scarce judicial resources when evidentiary rulings are made during trial.
Either prior to trial, just before the trial begins, or just before the witness testifies,
depending upon the circumstances, the prosecutor should ask for a ruling out of the presence of the
jury. At this time, the evidence can be detailed to the court, either as an offer of proof 1754 by counsel
or, preferably, by presenting the live testimony of the witness. 1755
1750
People v. Johnson, 143 A.D.2d 847, 533 N.Y.S.2d 345 (2d Dep’t 1988).
1751
410 U.S. 284, 93 S. Ct. 1038, 35 L.Ed.2d 297 (1973); People v. Felder, 143 A.D.2d 839, 533
N.Y.S.2d 322 (2d Dep’t 1988); People v. Scott, 104 A.D.2d 667, 480 N.Y.S.2d 119 (2d Dep’t
1984).
1752
People v. Clark, 132 A.D.2d 704, 518 N.Y.S.2d 183 (2d Dep’t 1987).
1753
People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261 (1981).
1754
See infra § 2.3.
1755
People v. Ventimiglia, 52 N.Y.2d 350 (1981); Citing Dolan, Rule 403: The Prejudice Rule in
Evidence 49 S. Cal. L. Rev. 220 at p. 255; Rothblatt and Leroy, The Motion in Limine an Criminal
Trials: A Technique for the Pretrial Exclusion of Prejudicial Evidence, 60 Ky. L.J. 611; Ann., 63
A.L.R.3d 311.
384
385
The court should then assess how the evidence relates to the case and the relevance,
probativeness and necessity for it weighed against its prejudicial effect. It then should either admit or
exclude it in total or admit it without the prejudicial parts when that can be done without distortion
of the meaning.
23.1.3. Civil Cases
With regard to civil cases, the motion in limine also serves extremely useful
purposes, to wit, keeping extremely prejudicial matters from a jury.
If counsel knows his adversary is contemplating using privileged material, a motion
in limine would be appropriate.
Inadmissible portions of the hospital record or police report should be redacted.
Permission to use certain real or demonstrative evidence may be appropriate.
The court may be asked if it will take judicial notice of a certain fact.
Statements of a decedent also should be considered as the appropriate subject of a
motion in limine.
Challenging the opinion of a potential lay or expert witness might also be an
important use of the motion in limine.
Rulings on redaction of depositions are appropriate.
Rulings regarding the use of prior accidents, subsequent design changes, subsequent
remedial measures, etc., may help to avoid error requiring retrial.
Foreknowledge of use of hearsay statements by a witness for the adversary could
warrant the use of the motion.
The key for counsel to remember is that any potential evidence of its adversary that
is highly prejudicial to his client should be considered as an issue for a motion in limine. The more
complex the evidentiary issues, then the earlier the issue is raised, the better. 1756
1756
Kearney v. City of New York, 144 Misc. 2d 201, 543 N.Y.S.2d 879 (Sup. Ct. Kings Co. 1989).
385
386
23.2. MAPP HEARING (SEARCH AND SEIZURE) 1757
This hearing relates to the propriety of the police action in the recovery of evidence
it intends to introduce against the defendant. The question presented at a Mapp Hearing is whether
the defendant’s constitutional right as proscribed in the 4th Amendment to be free from unreasonable
search and seizure was violated by the police in the recovery of said evidence. It is necessary that the
attorney set forth in his motion papers sufficient sworn allegations of fact as demanded by CPL
1758
710.60, in order that the trial court grant the Mapp Hearing.
Mere legal conclusions are not a sufficient basis to grant a hearing.1759 The
sufficiency of these allegations are dependent on the nature of the case involved. In the typical buy
and bust case the defendant must allege with particularity how his Fourth Amendment Rights were
violated.
The Court of Appeals has ruled that police initiated questioning of civilians cannot
proceed to the common law right of inquiry unless there is some evidence that there is criminal
activity afoot.1760
In a prior decision this Court set forth the parameters for the propriety of police
action in questioning, inquiring, seizing and arresting a civilian.1761
23.3. WADE HEARING (IDENTIFICATION)
23.3.1. Line-Up Identification
Whether line-up identification is admissible, despite its hearsay nature, may be
resolved by a motion in limine. CPL 60.25 permits, in particular instances, evidence that the
1757
The author would like to thank Andrew Bersin, Esq., former Kings County A.D.A., for his
contribution to the following sections.
1758
People v Martinez 82 N.Y. 2d 413 (1993)
1759
People v Martinez 82 N.Y. 2d 413 (1993)
1760
People v Hollman 79 N.Y.2nd 181
1761
People v De Bour 40 N.Y. 2d 210
386
387
defendant was identified at a line-up, despite the inability of the witness to identify the defendant at
the trial.
The statute sets forth preconditions which must be satisfied. The witness who
made the pretrial identification must have testified to: (1) observing the defendant "either at the time
and place of the commission of the offense or upon some other occasion relevant to the case;" (2)
observing, under constitutionally permissible circumstances, "a person whom he recognized as the
same person whom he had observed on the first or incriminating occasion;" and (3) being "unable at
the proceeding to state, on the basis of present recollection, whether or not the defendant is the
1762
person in question".
There must be testimony at trial from the identifying witness that establishes, along
with the other enumerated requirements, a lack of present recollection of the defendant as the
1763
perpetrator.
The testimony of the third party, who witnessed the previous identification but not
the crime, is then admissible as evidence-in-chief to identify the defendant that was identified at the
1764
line-up.
23.3.2. Showup Identification
Showup identifications are disfavored, since they are suggestive by their very nature.
1765
Prompt showup identifications which are conducted in close geographic and
temporal proximity to the crime are not presumptively infirm, and in fact have generally been
allowed. 1766
1762
CPL 60.25[1][a].
1763
People v. Patterson, 93 N.Y.2d 80; 710 N.E.2d 665; 1999 N.Y. LEXIS 222; 688 N.Y.S.2d 101
(1999).
1764
(1999).
1765
People v. Ortiz, 90 N.Y.2d 533; 686 N.E.2d 1337; 1997 N.Y. LEXIS 3212;
664 N.Y.S.2d 243 (1997), citing People v. Rivera, 22 N.Y.2d 453, 239 N.E.2d 873, 1968 N.Y.
LEXIS 1174, 293 N.Y.S.2d 271 (1968).
387
388
Showup identifications are not, though, routinely admissible. The Court of Appeals
has emphasized that the proof must be scrutinized very carefully for evidence of unacceptable
suggestiveness and unreliability. 1767
Where there is no effort to make the provision for a reliable identification and the
combined result of the procedures employed establish that the showup was unduly suggestive, the
identification must be suppressed. 1768
The defendant bears the ultimate burden of proving that a showup procedure is
1769
unduly suggestive and subject to suppression.
The burden is on the People first to produce evidence validating the admission of
1770
such evidence. The People must initially demonstrate that the showup was reasonable under the
circumstances. Proof that the showup was conducted in close geographic and temporal proximity to
1771
the crime will generally satisfy this element of the People's burden.
The People then also have the burden of producing some evidence relating to the
showup itself, in order to demonstrate that the procedure was not unduly suggestive. 1772 Failure to
meet this threshold responsibility to call a witness to testify to the circumstances under which
defendant was actually identified warrants exclusion of the identification evidence. 1773
1766
People v. Duuvon, 77 N.Y.2d 541; 571 N.E.2d 654; 1991 N.Y. LEXIS 377; 569 N.Y.S.2d 346
(1991).
1767
People v. Duuvon, 77 N.Y.2d 541; 571 N.E.2d 654; 1991 N.Y. LEXIS 377; 569 N.Y.S.2d 346
(1991).
1768
People v. Adams, 53 N.Y.2d 241, 249, 423 N.E.2d 379, 1981 N.Y. LEXIS 2478, 440
N.Y.S.2d 902 (1981).
1769
People v. Ortiz, 90 N.Y.2d 533; 686 N.E.2d 1337; 1997 N.Y. LEXIS 3212; 664 N.Y.S.2d 243
(1997).
1770
People v. Chipp, 75 N.Y.2d 327, 335, 552 N.E.2d 608, 1990 N.Y. LEXIS 230, 553 N.Y.S.2d
72 (1990).
1771
(1997).
1772
(1997).
1773
(1997).
388
389
If the victim who identified the defendant at the line-up does not testify, evidence as
to who was identified at the line-up is inadmissible. 1774
23.4. HUNTLEY HEARING (STATEMENTS)
There are a multitude of issues regarding the introduction of statements made by
the defendant. The most familiar are the Miranda issues regarding the sufficiency of the warnings
given to the defendant and whether the statements were voluntarily made. The prosecutor must
serve notice pursuant to CPL 710.30 that they intend to introduce a statement made to law
enforcement officers. Unlike the requirements when seeking a Mapp Hearing it is not necessary to
state factual allegations when seeking to suppress statements as being involuntarily made.1775
In conjunction with the Huntley Hearing the question of whether there was a
Fourth Amendment violation in the seizure of the defendant is resolved in a Dunaway Hearing.1776
This is applicable when there is the issue concerning whether there were any Payton1777 violations (
the necessity of obtaining a warrant when making an arrest in the defendant’s home), in the
obtaining of the statements. New York law requires that once a warrant is issued for the arrest of the
defendant the right to counsel attaches and a statement cannot be obtained without his presence.
New York law has gone further than the Supreme Court in protecting the rights of the defendant in
concluding that a warrantless arrest in violation of Payton will mandate the suppression of the
statement unless the taint resulting from the violation has been attenuated. 1778
1774
(1999) (victim died after identifying defendant but before trial).
1775
People v Martinez 82 N.Y. 2d 415
1776
Dunaway v New York 442 US 200
1777
People v Payton 45 N.Y.2nd 3000
1778
People v. Harris, 77 N.Y.2d 434; 570 N.E.2d 1051; 1991 N.Y. LEXIS 210; 568 N.Y.S.2d 702
(1991).
389
390
23.5. SANDOVAL HEARING (IMPEACHMENT BY PRIOR CONVICTIONS OR BAD
ACTS)
Defendants who take the stand, like other witnesses, place their credibility in issue,
1779
and thus may be cross-examined on past criminal or immoral acts affecting credibility
Recognizing the importance of a defendant's informed choice whether or not to testify, in People v.
Sandoval 1780 the Court of Appeals held that a defendant is entitled to a pretrial ruling on the scope of
permissible cross-examination as to such prior misconduct.
The defendant with definitive advance knowledge of the scope of cross-examination
to which he will be subjected can decide whether to take the witness stand. Revelation of the
impeachment testimony and announcement of the trial court’s ruling in advance of trial are consistent
with the objectives of broad pretrial discovery and disclosure.
The procedural vehicle is a motion, accompanied, in the discretion of the judge to
whom the motion is made, by an appropriate evidentiary hearing. The defendant is free (but not
subject to compulsion) to give relevant and material proof, in affidavit form or in person, and such
proof may never be introduced in trial or otherwise used against him in the pending case.
The defendant shall inform the court of the prior convictions and misconduct which
might unfairly affect him as a witness in his own behalf. The trial court in its discretion and in the
interests of justice shall then determine whether and to what extent the particular defendant has met
his burden of demonstrating that the prejudicial effect of the admission of evidence thereof for
impeachment purposes would so far outweigh the probative worth of such evidence on the issue of
credibility to warrant its exclusion. 1781
1779
People v. Bennett, 79 N.Y.2d 464; 593 N.E.2d 279; 1992 N.Y. LEXIS 1307; 583 N.Y.S.2d 825
(1992).; People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950). See § 22.1.2.
1780
People v. Sandoval, 34 N.Y.2d 371 (1974).
1781
For discussion of the use of prior uncharged crimes and bad acts, see § 22.1.2.1. For
discussion of the use of prior convictions, see § 1.18.1.5.
390
391
23.6. VENTIMIGLIA HEARING (UNCHARGED CRIMES EVIDENCE)
1782
When the People desire to have evidence of uncharged crimes admitted, the
People should seek a ruling from the court prior to the introduction of the testimony. 1783
The court must then conduct a two-part inquiry, first determining whether the
evidence is relevant to some issue other than defendant's criminal propensity. 1784
If it is, the court must then determine whether its probative value outweighs its
1785
"potential for mischief".
23.7. SIROIS HEARING (WITNESS TAMPERING)
A Sirois hearing is appropriate when the People allege specific facts which
demonstrate a distinct possibility that a criminal defendant has engaged in witness tampering. 1786
At a Sirois hearing, the People must demonstrate by clear and convincing evidence
that the defendant, by violence, threats or chicanery, caused a witness's unavailability. 1787
If the People meet that burden, the defendant is precluded from asserting either the
constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order
to prevent the admission of the witness's out-of-court declarations. 1788
It is reversible error to admit hearsay testimony without first holding the Sirois
hearing and determining by clear and substantial evidence that there was a causal relationship
1789
between the defendant's actions and the witness's unavailability.
1782
See infra § § 22.1.2 et seq.
1783
People v. Ventimiglia, 52 N.Y.2d 350, 420 N.E.2d 59, 1981 N.Y. LEXIS 2233, 438 N.Y.S.2d
261 (1981); People v. Heath, 175 A.D.2d 562; 572 N.Y.S.2d 228; 1991 N.Y. App. Div. LEXIS
10059 (4th Dep't 1991). See § 22.1.2.1.
1784
See § 22.1.2.1.
1785
People v. Hudy, 73 N.Y.2d 40, 55, 535 N.E.2d 250, 1988 N.Y. LEXIS 3538, 538 N.Y.S.2d 197 (1988).
1786
People v. Cotto, 92 N.Y.2d 68, 72, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998).
1787
People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 ( 1995).
1788
1789
People v. Johnson, 93 N.Y.2d 254; 711 N.E.2d 967; 1999 N.Y. LEXIS 813; 689 N.Y.S.2d 689
(1999) (tape recording of the defendant, a priest, asking a 12 year old girl to lie to prevent
defendant from going to jail held insufficient to obviate the need for a Sirois hearing).
391
392
The defendant may waive a Sirois hearing by agreeing to forego a hearing or
acquiescing in proceeding without further inquiry. 1790
The Court must first determine that the People have submitted sufficient evidence
that there is a distinct possibility of witness tampering. Submitting that issue to the Court without a
1791
hearing does not waive the hearing. If the Court finds sufficient evidence of a distinct possibility
of tampering, the Sirois hearing must then be held.
Statements made by the recanting witness may then be testified to by those who
heard the statements. 1792
While on its face a victim who was allegedly murdered by the defendant is
unavailable to testify due to the defendant's actions, the Sirois exception does not apply, since the
hearing would require a finding by the Court on the ultimate question of whether the defendant
murdered the victim. 1793
23.8. HINTON HEARING (CLOSE COURTROOM)
Trial courts possess "inherent discretionary power" to exclude members of the public
from the courtroom, 1794 but there remains a presumption of openness. The right to an open trial may
yield to other rights or interests in rare circumstances only. 1795
Closure of criminal proceedings must meet a four-part standard: "[T]he party
seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced,
the closure must be no broader than necessary to protect that interest, the trial court must consider
1790
People v. Johnson, 93 N.Y.2d 254; 711 N.E.2d 967; 1999 N.Y. LEXIS 813; 689 N.Y.S.2d 689
(1999).
1791
People v. Johnson, 93 N.Y.2d 254, 1 N.E.2d 967, 1999 N.Y. LEXIS 813; 689 N.Y.S.2d 689
(1999).
1792
People v. Cotto, 92 N.Y.2d 68, 72, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998).
1793
People v. Maher, 89 N.Y.2d 456; 677 N.E.2d 728; 1997 N.Y. LEXIS 94; 654 N.Y.S.2d 1004
(1997).
1794
People v. Hinton, 31 N.Y.2d 71, 286 N.E.2d 265, 1972 N.Y. LEXIS 1174, 334 N.Y.S.2d
885 (1972), cert denied 410 US 911 (1973).
1795
People v. Ayala, 90 N.Y.2d 490; 685 N.E.2d 492; 1997 N.Y. LEXIS 1388; 662 N.Y.S.2d 739
(1997).
392
393
reasonable alternatives to closing the proceeding, and it must make findings adequate to support the
closure." 1796
The essential first step is a sufficient trial record to establish a substantial

1797
probability of prejudice to an overriding interest in the event of open-court testimony. The
interest must be articulated along with findings specific enough that a reviewing court can determine
1798
whether the closure order was properly entered.
In buy-and-bust cases where an undercover police officer must testify, a finding of a
substantial probability of prejudice requires more than conclusory assertions that the officer remains
1799
an active undercover and fears for his or her safety.
Secondly, there is an affirmative duty on trial courts to raise and consider reasonable
1800
alternatives to closing, sua sponte, and to place their consideration of them on the record.
1796
Waller v. Georgia, 467 U.S. 39, 45, 81 L. Ed. 2d 31, 104 S. Ct. 2210, 1984 U.S. LEXIS 86, 52
U.S.L.W. 4618, 10 Media L. Rep. (BNA) 1714 (1984).
1797
(1997).
1798
Press-Enterprise Co. v. Superior Ct. of Cal., 464 US 501 (1984).
1799
(1997).
1800
(1997).
393
394
The Court must address possible alternatives, such as a disguise, a partition, a guard
1801
stationed at the door to screen each prospective spectator. Such consideration may be implied
from the Court's ruling, where the factual record supports closure. 1802
Where the factual record permits closure and the closure is not facially overbroad,
the party opposed to closing the proceeding must alert the court to any alternative procedures that
1803
allegedly would equally preserve the interest.
1801
Ayala v Speckard, 89 F3d 91, adhered to on reh 102 F3d 649, cert denied US , 117 S Ct
1838 [May 19, 1997], reh en banc granted No. 95-2463 [2d Cir May 19, 1997]).
1802
(1997).
1803
(1997).
394
395
INDEX
In Translation to Counsel, 223

A In Workers Compensation Report, 221
Opinion, 217
Accident Reports, 80
Repeating What Was Heard, 218
Employee Accident Report, 80
Requirements, 213
Motor Vehicle Accident Reports, 82
Statement by a Party, 213
Police Accident Reports, 83, See Police Accident
Statement by Employee of a Party, 213
Reports
Statement May be Based on Hearsay, 217
Acting in Concert, 343
Translated Statement, 222
Acts of Misconduct, 191
Use Only Against Party Making Statement, 216
Eliciting Fact from Witness, 191
age of individual
Excluding Extrinsic Evidence, 192
as hearsay exception, 270
Administrative Code
Ancient Documents, 108
Judicial Notice of, 291
Proof of Boundaries, 111
Admissibility
Probative Value Outweighed by Prejudicial Rationale, 109
Impact, 1 Real Estate Proceedings, 110
Steps in Evaluating, 1 Statute, 110
Admissions Unavailability of Declarant, 109
By Attorney, 222 ANSI Standards, 365
Consciousness of Guilt Evidence, 224 Assuming a Fact, 126
Distinquished from Declarations Against Interest, attorney-client privilege, 303
212 Authoritative Texts, 156
Generally, 212 Autopsy Reports, 100, 106
In Guilty Plea, 220 toxicologist report, 106
In Hospital Record, 218

B
In Pleadings, 220
In Police Report, 219 Best Evidence Rule, 75
In Statement, 219 Copies of Business Records, 77
395
396
Excuse for Failure to Produce Original, 77 Opinion, 329
Oral Testimony to Establish Content of Writing, Prior Abuse, 347
80 Prior Acts for Other Purposes, 351
Voluminous Writings, 79 Prior Carelessness, 350
Bills Prior Sexual Conduct, 347
As Hearsay Exception, 272 Reputation, 329
Hospital, 94 To Present Comprehensible Testimony, 344
Birth Certificate To Prove Common Scheme or Plan, 338
As Hearsay Exception, 276 To Prove Identity, 340
bite marks, 68 To Prove Intent, 335
blood samples, 61 Use in Rebuttal, 346
Books and articles, 113 Use of Drugs or Alcohol, 349
breath analyzers, 62 charts, 117
Business Records, 71 circumstantial evidence
CPLR 4518, 71 definition, 24
Foundation Requirements, 71 sufficiency to support criminal conviction, 27
Illicit Enterprise, 75 clergyman-penitent privilege, 312
Bystander's Statement closed courtroom, 391
As Excited Utterance, 233 Codes, Rules, Regulations

C collateral issues, 175
Census Records grounds for excluding relevant evidence, 29
As Hearsay Exception, 279 Collateral Source Evidence, 368
Character Evidence Conclusions
Civil Cases, Bad Character, 350 in Police Accident Report, 88
Conditional Admission
Civil Cases, Good Character, 349
Subject to Connection, 2
Criminal, Bad, 332
conditional relevance
Criminal, Good, 329
definition, 26
Entrapment and Duress, 341
insufficient evidence of conditional fact, 27
Extrinsic Evidence, 345
396
397
jury instruction if conditional fact not established, CPLR 4518, 71
27 CPLR 4545, 368
sufficiency to go to jury compared to Cross-examination
determination fact established, 27 narration, 172
test for admission, 27 on distances, 172
Conduct of Counsel on influences on perception, recall, testimony, 173
Testifying or Vouching for Witness, 1 on knowledge, 170
confusion on opportunity to observe, 170
limiting instruction to correct, 29 on recollection, 171
Consumer Price Index on time, 172
Judicial Notice of, 294 raising new matter, 167
Consumer Product Safety Regulations scope of, 166
Judicial Notice of, 291 subjects of, 170

continuation of conditions testing knowledge, 171
presumption of, 300 Use of extrinsic evidence, 173
conviction Custom and Practice, 363
limiting instruction, 32 ANSI Standards, 365
conviction of crime, 193 Internal Rules or Manuals, 365
Copies
Best Evidence Rule, 77 D

Corporate Books and Records
Daubert Analysis
As Hearsay Exception, 281
General Principles, 161
Corruption, 188
Day in the Life Film, 57
Payment of Money to Witness, 189
Death Certificate
Receipt of Money for Testimony, 189
Tampering with Witness or Evidence, 191
Declaration Against Penal Interest
Courtroom Procedure, 1
Grand Jury Testimony, 246
CPLR 3113(c), 129
declaration of insanity, 238
CPLR 4504, 311
declaration of past pain, 237
CPLR 4511, 288
declarations against interest
CPLR 4514, 195
397
398
Generally, 240 unfair prejudice, 25
Declarations Against Interest Discretion of Trial Court
Distinquished from Admissions, 212 Determining Form of Offer of Proof, 36
Declarations Against Penal Interest, 241 strike inadmissible evidence at any time, 38
Plea Allocution, 244 Permitting Jury to Take Exhibits into
demonstrative evidence, 116 Deliberation Room, 43
charts, 117 view of premises by jury:, 53
diagrams, 117 View of Photographs, 55
Exhibiting Physical Condition or Injury viewing videotape, 56
Civil Cases, 120 day in the life film, 57
Criminal Cases, 119 tests in courtroom, 58
illustrations, 117 voice exemplars, 64
models, 118 past recollection recorded, 115
Diagram of Accident Scene demonstrative evidence, 116
in Police Accident Report, 87 real or demonstrative evidence, 116
diagrams, 117 weighing value of evidence against potential for
Did You or Did You Not?, 126 prejudice, 117
direct evidence displaying physical or mental condition to jury,
definition, 24 121
Discretion questions calling for narrative answers, 123
Conduct of trial, 29 restraining witness from yapping, 124
Relevancy determination, 29 whether question leading, 125
Discretion of appellate court use of leading question, 125
reverse even absent objection at trial:, 41 barring information suggested by leading
Discretion of trial court question, 127
conditional relevance, 26 use of leading questions, 127
conduct of trial, 25 question lacking full set of time and place
misleading or confusing evidence, 26 parameters, 132
order of proof, 26 whether question argumentative:, 132
relevancy, 25 whether asked and answered question can be
undue emphasis, 25 repeated:, 133
398
399
Expert testimony, 139 Evaluating Weight, 70
preclude expert from testifying, 163 Doctor's Office Records, 96
determining interests of justice, 164 Drug or Alcohol Use, 349
Not Unlimited Discretion when Precluding drugs, use of, 181
Expert, 164 dying declarations
cross-examination method and duration, 166 certainty of impending death, 248
description of witness nonverbal actions, 173 Form of declaration, 251
cross-examination manner and extent on impeachment of victim, 250
collateral matters, 177 judicial skepticism, 248
Cross-examination nature and extent on Jury instructions, 251
partiality, 183 rationale, 248
cross-examination concerning uncharged acts:,
338 E
cross-examination to cause change of answer:, 192
Emotional State, 136
determining relevancy:, 357
Employee Accident Reports, 80
determining sanction for failure to disclose:, 327
evidence
determining sufficiency of corroboration:, 236
destruction of, 324
excluding prior inconsistent statement when
Excited Utterance
contents disclosed orally:, 201
Bystander's Statement, 233
excluding public from courtroom:, 391
Focus on Condition of the Declarant, 232
Form of Questions:, 134
In Negligence Cases, 233
need for evidentiary hearing:, 389
Introduction, 226
reinstructing jury on limjited use of evidence:, 370
Response to Question, 231
restricting inquiry into collateral matters:, 346
Time Interval, 228
specific immoral, vicious or criminal acts, 176
exclamations of pain, 237
tests of witness's knowledge or capabilities:, 171
Exhibiting Physical Condition or Injury
weighing considerations of declaration against
Civil Cases, 120
penal interest:, 243
Criminal Cases, 119
weighing probative worth against prejudice, 333
Exhibits, 34
whether prior convictions unduly admissible:, 389
Viewing by Jury, 1
DNA Evidence, 68
399
400
Expert Witnesses. See Opinions, Expert Witnesses As Hearsay Exception, 275
experts failure to testify, 158 Fingerprint Records
qualifications, 140 As Hearsay Exception, 280
Extrinsic Evidence Foreign Birth Certificate
Acts of Misconduct, 192 As Hearsay Exception, 278
Character Evidence, 345 Form Objections, 131
on cross-examination, 173 Argumentative, 132
to prove partiality, 185 Asked and Answered, 133
use to impeach, 169 Compound, 131
Confusing, 132
F Intimidation, 132
Overbroad, 131
failure to call employee, 323
Former Testimony
Failure To Call Expert Witness, 158
civil cases, 267
failure to call physician, 321
Complete Identity Not Necessary, 262
failure to call relative, 322
Criminal Cases, 265
failure to call witness, 320
Definition, 259
failure to exchange expert information before trial,
Deposition Testimony, 257
158
Due Process Considerations, 258
Failure to Exchange Expert Information Before Trial
Establishing Unavailability, 260
Civil Cases, 158
Failure to Object at Prior Proceeding, 258
failure to produce document, 323
Form of earlier Evidence, 263
Failure to Serve Notice of Intention to Offer
Foundation for admitting, 263
Psychiatric Evidence in Criminal Case, 162
Grand Jury Testimony, 256
Failure to Serve Notice of Intention to Offer
Psychiatric Testimony identity of parties, 262
Permitting Late Notice in the Interest of Justice, other uses, 264
164 Right to Cross-Examine, 257
failure to testify Statute, 262
party, 320 Statute Authorizing Use of, 255
field sobriety tests, 62 Type of Prior Proceeding, 256
Financial Reports use when witness unavailable, 259
400
401
Wade Hearing, 266 Fungible Goods, 50
when admissible, 254
Foundation
G
Photograph, 3
Going Off the Record, 35
Real Evidence, 3
governmental privilege, 319
Tape Recording, 3
Grand Jury Testimony
Foundations, 37
As Declaration Against Interest, 246
Basis for Expert Opinion, 151
As Former Testimony, 256
Blood alcohol test, 63
Busines Records, 71 H
Currency, 52
Habit, 352
Displaying Physical or Mental Condition, 121
hair comparison, 67
DNA Profiling, 69
Harmless Error, 2
Expert Witness Testimony, 142
hearsay
Former Testimony, 263, 264
definition, 210
Illustration, Diagram or Chart, 118
rationale for excluding, 210
Medical Abbreviation, 99
rationale for hearsay exceptions, 211
Models, 118
right to confront witness, 269
Past Recollection Recorded, 114
Hearsay Exception
Photograph, 55
Age of Individual, 270
Physician's Office Records, 98
Birth Certificate, 276
Prior Consistent Statement, 205
Birth Certificate, Foreign, 278
Prior Inconsistent Statement:, 199
Census Records, 279
Record of Conviction, 194
Corporate Books and Records, 281
Scientific Work or Treatise, 156
Death Certificate, 276
Subsequent Design Change, 378
Financial Reports, 275
Syndrome, Theory or Pattern, 160
Fingerprint Records, 280
Tape Recording, 54
Historical Treatises, 271
Videotape, 56
Identity of Individual, 270
Voice Exemplar, 64
Itemized Bill or Invoice, 272
frye hearing, 60, 160
401
402
Marriage License, 275 hypnotic recall, 66
Mortality Tables, 273
Pedigree, 282
I
Applicability, 283
Identification
Availability of Other Evidence, 283
Showup identification, 386
Establishing Trustworthinness, 285
Identification Evidence
Examples, 285
Hearing to challenge admissibility, 385
Hearsay Upon Hearsay, 286
Wade Hearing, 385
Rationale, 282 identity of individual
Rebuttal, 286 as hearsay exception, 270
Relationship Requirement, 284 Idiocy, 179
Subjects of, 283 Illicit Enterprise
Unavailability Requirement, 285 Business Records, 75
scientific treatises, 271 illustrations, 117
State Of Mind, 269 Impeachment, 165
Statement of Intention, 269 acts of misconduct, 191
Statistical Materials, 274 Acts of Misconduct. See Acts of Misconduct
Stock Market Reports and Quotations, 274 by prior or pending claim, 186
Weather Observations, 276 calling witness then impeaching with prior
Wills, 281 inconsistent statement, 198
hinton hearing, 391 Collateral issues, 175

historical treatises conviction of crime, 193
as hearsay exception, 271 Corruption, 188, See Corruption
Hospital Bills, 94 errors by witness, 174
Hospital Records, 90 impeaching absent witness, 169
History in, 91 impeaching opposing party called on direct, 168
Prior Injuries, 94 impeaching own witness, 167
Proof of Intoxication, 95 interest, 183
Unrelated Injuries, 93 morality, 188
Huntley Hearing, 388 on insanity or idiocy, 179
husband-wife privilege, 314
402
403
on intoxication, 179 definition, 25
on mental condition, 178
on use of drugs, 181

J
partiality, 182
journalist privilege, 317
Partiality
relevance, 29
Circumstances showing, 185
Judicial Notice, 288
conduct showing, 186
Administrative Code, 291
Prior inconsistent statement, 195
Consumer Price Index, 294
use of extrinsic evidence, 169
Consumer Product Safety Regulations, 291
written statement, 31
Courts Own Records, 290
impending death
CPLR 4511, 288
Dying Declarations, 248
Facts Within Judge's Personal Knowledge, 291
Improperly Admitted Evidence
Laws and Statutes of New York, 289
Curing, 2
Laws of Foreign Countries, 290
Invited Error, 2
Laws of Other States, 289
innocence
matters of fact, 291
Presumption of, 300
Matters of Fact
insanity
Examples of, 292
declaration of, 238
Indisputable Source, 292
Insanity, 179, 344
test of, 291
Inspectors of Building and Housing Reports, 107
matters of law, 289
Insurance, 366
New York State codes, rules and regulations, 289
Collateral Source Evidence, 368
NHTSA Regulations, 291
intent
Notice of Intention to Request, 289
presumption of, 300
Ordinances, Regulations, 289
interest, 183
OSHA Regulations, 291
Internal Rules or Manuals, 365
Patents, 291
intoxication, 179
Public Records, 291
Intoxication, 137
Rate of Interest for Discount Purposes, 294
proof of, 95
Scientific Facts, 293
irrelevant
403
404
When May Be Taken Without Request, and Must Use to Establish Foundation or Preliminary Facts,
Be Taken On Request, 288 2
When Must Be Taken Without Request, 288 When Permissible on Direct, 127
jury legitimacy
polling to determine effect of evidence, 30 Presumption of, 301
jury instructions Library Records, 105
dying declaration, 251 lie detectors, 66
limited admissibility, 29
L balancing risk and advantage, 29
Limiting instruction
laws and Statutes
limiting evixdence to particular issue, 30
When to give, 29
Laws and Statutes
workers compensation coverage, 31
Limiting Instruction
Laws of Foreign Countries
Conviction of Crime, 32
duty to request, 30
Laws of Other States
Insurance Coverage, 30
Laying the Foundation Pattery Jury Instruction 1
65, 30
meaning, 2
Prior Statement, 31
Leading Questions, 124
unfair prejudice, 28
Adverse Party at Deposition, 129
use of admission by one party, 30
Assuming a Fact, 126
Use of injury evidence during liability phase of
Calling for Agreement, 125
bifurcated trial, 30
Did You or Did You Not, 126
use of subsequent repairs, 30
Matters Not Covered on Direct, 130
Workers’ Compensation Coverage, 30
On Cross of Favorable Witness, 130
Line-Up Identification, 266
On Cross-Examination, 127
Hearing on admissibility, 385
On Direct of Adverse Party, 128
Preconditions to admissibility, 386
On Direct of Hostile or Partisan Witness, 130
Permissible Uses, 127
404
405
M By conference with Court, 382
Challenging expert witness or opinion, 384

Making the Record
Challenging line-up identification, 385
Marking Excluded Documentary Evidence, 2
Civil Cases, 384
Mapp Hearing
Criminal Cases, 382
Motion papers to obtain, 385
Dead Man Statute, 384
marriage
Excluding anticipated hearsay testimony, 384
Presumption of, 301
Excluding privileged material, 384
Marriage License
Form of motion, 382
Form of Motion, 382
material
Guarding against potential mistrial or reversal,
definition, 25
383
Medical Examiner's Report, 99
Huntley Hearing, 388
Medical Records
MAPP HEARING, 385
Autopsy Report, 100
Notice of motion time periods, 382
Doctor's Office Records, 96
Permission to use demonstrative evidence, 384
Medical Examiner's Report, 99
Permission to use real evidence, 384
of complaining witness in criminal case, 96
Redacting document or deposition, 384
Memo Book
Redacting hospital record, 384
Police Accident Report, 88
Redacting police report, 384
mental condition, 178
Request for judicial notice, 384
models, 118
SEARCH AND SEIZURE, 385
morality, 188
Time of Motion, 382
Mortality Tables
Time to make motion, 382
To exclude collateral evidence, 382
Motion in Any complex evidentiary issue, 384
To suppress identification testimony, 382
Motion in Limine, 381
Unfairness in waiting until trial, 383
Admissibility of prior accidents, 384
Use by prosecutor, 383
Admissibility of subsequent design change, 384
Wade Hearing, 385
Admissibility of subsequent remedial measure, 384
motion pictures and video pictures, 56
Any highly prejudicial evidence, 384
Motions. See Motion in Limine
405
406
Motor Vehicle Accident Reports, 82 economic testimony, 157
Municipal Records, 105 impeaching expert, 156
psychiatric testimony
N criminal cases, 162
required pretrial disclosure of expert

Narrative Answer at Deposition, 124
information, 158
Negative identification testimony, 207
requiring defendant’s opinion, 158
NHTSA Regulations
Expert witnesses
scientific evidence, 160
Notice of Intention to Offer Psychiatric Testimony in
Expert Witnesses
Criminal Case, 162
admissibility, 138
O Degree of certainty required, 149
Economic Testimony
Objections, 37
Effect of Inflation on future damages, 157
General Objections, 2
Present Value of Award for Loss of Future
Repeating Specific Objection Unnnecessary, 2
Earnings, 157
Specificity, 38
Value of Housewife’s Services, 157
Stating the Objection, 38
Facts Established by Judicial Notice, 148
Timeliness, 37
Factual Basis for Opinion, 144
Off the Record
foundation for, 142
Appealability of Ruling, 1
Hypothetical Question, 148
Stipulations, 1
Material Reasonably Relied on by Experts in
Offer of Proof, 2
the Field, 146
OFFER OF PROOF, 36
Nontreating Expert Physician, 148
Opinions
Opinion on ultimate question, 153
As Constituting Admission, 217
Permissible Sources of Information, 142
Emotional State, 136
Qualifications, 140
exceptions to rule against opinions, 135
Reliance on Extrajudicial Materal, 145
expert witnesses, 138
Reliance on Hearsay, 147
basis for opinion, 142
Reliance on Scientific Tests or Syndromes, 145
custom and practice, 155
Reliance on Technical Material, 145
406
407
Required Pretrial Disclosure of Expert Extrinsic Evidence, 185
Information permissible proof of, 184
Civil Cases, 158 past recollection recorded, 114
Speculation by Expert, 151 Payment of Money to Witness, 189
Testimony as to Basis of Opinion, 143 Pedigree
Witness Subject to Cross-Examination, 146 As hearsay exception, 282
IN GENERAL, 135 As Hearsay Exception
Intoxication, 137 Applicability, 283
LAY WITNESSES, 135 Availability of Other Evidence, 283
Senses, 136 Establishing Trustworthiness, 285
Speed, 136 Examples, 285
Ordinances Hearsay Upon Hearsay, 286
Judicial Notice of, 289 Rationale, 282
OSHA Regulations Rebuttal, 286
Judicial Notice of, 291 Relationship Requirement, 284
Ownership of Automobile Subjects of, 283
Presumption, 297 Unavailability Requirement, 285
Ownership of property Pending Claim
Presumption, 298 to show partiality, 186
Permissive Use of Automobile

P
Presumption, 296
Photograph
pain
Foundation, 3
exclamation of, 237
pain in past Photographs, 55
declaration of, 237 Similarity, 57
parent-child privilege, 315 physician-patient privilege, 307
parol evidence, 113 Plain Error, 41
Partiality, 182 Plea Allocution
As Declaration Against Interest, 244

by prior or pending claim, 186
Police Accident Reports, 83
Circumstances showing, 185
admission of, 85
conduct showing, 186
407
408
conclusions in, 88 Prior Accidents of Plaintiff, 363
Diagram of Accident Scene, 87 Prior Bad Acts, 332, 389
Memo Book, 88 Prior Complaints or Claims, 359
Prior Consistent Statement, 89 to show partiality, 186
Statement, Absence of, 88 Prior consistent statement, 204
prejudice foundation, 205
defined, 28 in Police Accident Report, 89
Prejudicial testimony. See Motion in Limine motive to falsify, 205
Present bodily condition, 236 prompt complaint of sexual assault, 207
Present Sense Impression, 234 recent fabrication defined, 204
Corroboration Requirement, 235 to rebut recent fabrication, 204
Time Interval, 235 use to bolster, 204
Presumption prior consistent testimony
against suicide, 298 Negative identification testimony, 207
Bailee damage, 301 Prior convictions, 389
Compared to inference, 295 Prior inconsistent statement
Conclusive Presumption defined, 295 admissibility in evidence, 203
continuation of conditions, 300 admissible against party, 203
Effect of, 295 asking witness to explain, 199
In Civil Actions, 295 calling witness to prove, 198
innocence, 300 conduct inconsistent, 196
intent, 300 failure to recall, 197
legitimacy, 301 federal rule distinquished, 198, 201
marriage, 301 Form of, 195
Ownership of automobile, 297 foundation for, 199
ownership of property, 298 impeaching deposition testimony, 202
Permissive Use of Automobile, 296 In workers compensation application, 31
receipt of mail, 298 inconsistency explained, 196
sanity, 301 introducing document in evidence, 198
Undue Influence, 301 objection on foundation ground, 202
Prior Abuse, 347 omission. See
408
409
opportunity to explain, 201 Prompt complaint
reading to explain inconsistency, 203 sexual assault, 207
Reason for error, 195 Prosecutors Duty
ruling on inconsistency, 196 Defense Request, 326
showing statement to witness, 201 Lost Evidence, 326
signed statement, 195 to Disclose, 325
to refresh recollection, 198 to Preserve, 325
use on redirect, 203 Psychiatric Testimony
use to impeach only, 203 Notice of Intention
Ways to use, 198 Late
where witness admits the statement, 201 in Interest of Justice, 164
Prior Inconsistent Statement, 195 Notice of Intention to offer in criminal case, 162
Prior Injuries psychologist-patient privilege, 313
Hospital Records, 94 Public Opinion Polls, 112
prior or subsequent condition of object Proof of Reliability, 112
to prove condition of object at particular time, 27 Public Records, 102
Prior Sexual Conduct, 347 common law exception, 102
Privilege against disclosure of public documents, 281 defined, 102
privileges Entries by Private Individuals, 104
attorney-client, 303 Judicial Notice of, 291
clergyman-penitent, 312 Lack of record, 107
general rule, 303 official investigations, 108
governmental, 319 Personal Knowledge of Public Official, 104
husband-wife, 314 Rationale for Exception, 104
journalist, 317 Statutory Exception, 103
parent-child, 315 Testimony of Public Office Who Made Document,
physician-patient, 307 104
psychologist-patient, 313
Q
social worker-client, 315
probative value Questioning

definition, 25 Calling for Agreement, 125
409
410
COURT’S ROLE, 134 written statement, 32
Did You or Did You Not, 126 Regulations
Direct, 122 Judicial Notice of, 289
LEADING QUESTIONS, 124 relevance
Narrative Answer, 122 conditional, 26
Inadmissible Information During, 123 consuming undue amount of time, 28
Objectionable Form definition, 24
Argumentative, 132 difference between sufficiency, 24
Asked and Answered, 133 discretion of trial court, 25
Compound, 131 factors causing exclusion of relevant evidence, 28
Confusing, 132 general rule, 25
Intimidation, 132 Grounds for excluding relevant evidence, 28
Overbroad, 131 inference on inference, 27
Questions Calling for Inadmissible Evidence logical relevance, 25
When to Object, 2 misleading jury, 26
outweighed by confusion, 26, 29

R undue arousal of prejudice, hostility or sympathy,
28, See prejudice, hostility or sympathy

Reading Into the Record, 35
unfair prejudice, 25
Real Evidence, 46
Relevancy
Foundation, 3
Creating a side issue, 29
Fungible Goods, 50
repairs, subsequent, 369
Tampering, 49
Repeating What Was Heard
Unique Objects, 48
As Constituting Admission, 218
When Viewable by Jury, 2
Rephrasing Question Objectionable as Leading, 127
receipt of mail
Requiring defendant to give opinion, 158
Presumption of, 298
Response to Question
Receipt of Money for Testimony, 189
As Excited Utterance, 231
Record
ria analysis of human hair, 68
Making the Record, 1
Routine Business or Professional Tasks, 354
redaction
Ruling
410
411
Appealability, 2 Absence of, 362
Rulings, 39 Limiting Instruction, 363
Effect of Erroneous Ruling, 39 Similarity, 356
Harmless Error and Constitutional Rights, 40 Discovery regarding, 361
Hearing of Jury, 41 Similar Acts of Carelessness, 350
Remedial Actions, 40 Sirois Hearing, 390
Required Hearing, 261

S social worker-client privilege, 315
Speed, 136
Sanction
speed radar, 63
Prosecutors Failure to Disclose or Preserve:, 327
State of Mind
Sandoval hearing, 389
as Hearsay Exception, 269
sanity
State Records, 105
presumption of, 301
Statement of intention
School Records, 106
scientific evidence
Statements
acceptance in scientific community, 160
Absence of in Police Accident Report, 88
daubert analysis, 161
Based on Hearsay, 217
frye hearing, 160
Employee of a Party, 213
test of admissibility, 160
Party Statements, 213
Scientific tests, 59
Use Only Against Party Making Statement, 216
scientific treatises
Statistical Materials
Search and Seizure
Stipulations
Mapp Hearing, 385
Putting on Record, 1
Showup Identification, 386
STIPULATIONS, 35
Burden of proof, 387
Stock Market Reports and Quotations
Suggestiveness and unrealiability, 387
As Hearsay Exceptions, 274
Threshold showing required of prosecution, 387
Subsequent Accidents, 361
Side Bar Conferences, 35
Subsequent Acts, 343
Similar Accidents, 355
Subsequent Design Change, 370
411
412
Laying Foundation, 378 Toxicologist Report in Autopsy Report, 106
Relevancy Outweighing Prejudice, 378 trial
to establish Punitive Damages, 379 discretion of trial court, 25
to Impeach Credibility, 377 Trial Record
to prove Both Manufacturing and Design Defect, Echoing Answers, 34
373 Gestures and Indications, 34
to prove Control, 374 Overlapping, 34
to prove Feasibility of Alternative Design, 374 Parts Making Up, 33
Concession of Feasibility, 376
to prove Manufacturing Defect, 372

U
Subsequent Physical Conditions, 343

Unavailability of Witness
Subsequent Remedial Measures, 369 Establishing Unavailability, 260
Impeachment, 370 use of former testimony, 259
Ownership or Control, 369 Unavailable Witness
Subsequent Repairs, 369 Witness Tampering, 261
Impeachment, 370 uncharged crime evidence, 390
Ownership or Control, 369 undue emphasis
suicide discretion of trial court, 25
Presumption against, 298 Undue Influence
Surveillance, 59 Presumption of, 301
Undue prejudice. See Motion in Limine

T
unfair prejudice
Tampering, 49 excluding evidence due to, 28
Tampering with Evidence, 191 limiting instruction, 28
Tampering with Witness, 191 Unfair surprise
Tape Recording continuance to correct, 29
Foundation, 3 Unique Objects, 48
Tape recordings, 53
V
Tests in Courtroom, 58
Observational viewpoint, 58 Ventimiglia hearing, 390
412
413
Video Pictures Weather Observations
Day in the Life Film, 57 As Hearsay Exception, 276
Similarity, 57 Wills
view byjury, 53 As Hearsay Exception, 281
Viewing a Location Witness Tampering, 390
Procedure, 3 Sirois Hearing, 261
voice identification tests, 63 Witness Tampering:, 261
voice spectrographic evidence, 65 Workers Compensation Benefits
Voluminous Writings Charge, 31
Best Evidence Rule, 79 written statement
by party, 31
W limiting instruction, 31, 32
refreshing recollection, 31
Wade Hearing, 385
Former Testimony, 266

X
Line-Up identification, 385
Showup identification, 386 Xrays, 32, 100, 126
413

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JOHN E. DURST, JR.

Lexis® Law Publishing

For information concerning

John E. Durst, Jr.

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firms in the City.

John E. Durst, Jr.

CHAPTER 1 QUICK REFERENCE NOTES 1

1.1. Steps in evaluating the admissibility of evidence 1

1.2. Courtroom Procedure 1

1.2.1. Making the record 1

1.3. Real Evidence 2

1.3.1. Viewing by the Jury 3

1.3.2. Foundation for Real Evidence 3

1.3.2.1. Tape Recording 3

1.3.2.3. Scientific Test Results 3

1.4. Documentary Evidence 4

1.4.1. Business Records 4

1.4.2. Accident Reports 4

1.4.3. Motor vehicle accident reports (MV 104) 4

1.4.4. Police accident reports 5

1.4.5. Hospital records 5

1.4.6. Hospital bill 6

1.4.7. Doctor's office records 6

1.4.9. Public records 7

1.4.10. Records of a municipal corporation, the state, or a library 7

1.4.12. Parol evidence 7

1.4.13. Past recollection recorded 8

1.5. Demonstrative evidence 8

1.5.1. Courtroom Tests and Demonstrations 8

1.5.2. Illustrations, diagrams, charts and models: 8

1.5.3. Exhibiting physical condition or injuries to jury 9

1.6. Questioning witnesses 9

1.6.1. Direct examination 9

1.6.3. Objections to form 10

1.7. Opinion testimony 10

1.7.1. Expert opinions 11

1.8.1. Extrinsic evidence 12

1.8.2. Collateral Matters 13

1.8.3. Prior inconsistent statements 14

1.8.4. Prior consistent statement 15

1.9.3. Excited utterances 16

1.9.4. Present sense impression 16

1.9.5. Present bodily condition 17

1.9.6. Declarations against interest 17

1.9.6.1. Declaration against penal interest 17

1.9.7. Dying declarations 17

1.9.8. Former testimony 18

1.9.9. Other Hearsay Exceptions 18

1.10. Judicial Notice 19

1.12. Common Issues 21

1.12.1. Character Evidence 21

1.12.2. Similar Accidents 22

1.12.3. Custom and Practice 22

1.12.4. Subsequent remedial measures 22

1.13. Pretrial Hearings on Evidence 23

1.15. Conditional relevancy 26

1.16. Inference on Inference 27

1.17. Dangers Outweighing Relevance 28

1.17.1. Unduly arousing emotions of prejudice, hostility, or sympathy 28

1.17.3. Consuming an undue amount of time in the trial 29

1.17.4. Unfair surprise to the opponent 29