New York Courtroom Evidence

i

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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

i 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.

ii 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

1.4.

1.3.2.1.

Tape Recording

3

1.3.2.2.

Photograph

3

1.3.2.3.

Scientific Test Results

3

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

ii

iii 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

1.7.1.

1.8.

Expert opinions

Impeachment

10 11

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

iii

iv 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

CHAPTER 1 RELEVANCY

23

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

iv

v 1.17.4.

Unfair surprise to the opponent

29

1.17.5.

Discretion of the Court

29

1.18.

Limited Admissibility

1.18.1.

Limiting Instructions

29 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

v

vi 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

vi

vii 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.

4.3.

Illicit Enterprise

75

Best Evidence Rule

75

vii

viii 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

4.5.

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

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

viii

ix 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

4.9.

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

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.

4.15.

Public Opinion Polls

4.15.1.

4.16.

Proof of Boundaries

Proof of Reliability

Books And Articles

111

112 112

113

ix

x 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 6.1.

Direct Testimony

122 122

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

x

xi 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

CHAPTER 7 OPINIONS BY LAY WITNESSES

134

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

xi

xii 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

8.5.1.

Speculation by Expert

149 151

8.6.

Opinion On Ultimate Question

153

8.7.

Custom and Practice

155

8.8.

Impeaching Expert

156

8.8.1.

8.9.

Authoritative Texts

Economic Testimony

156

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

xii

xiii 8.12.1.

Civil Cases

158

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.

8.15.

General Principles

Criminal Cases

161

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

xiii

xiv 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

xiv

xv 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

CHAPTER 10 10.1.

PRIOR INCONSISTENT STATEMENTS

Prior Inconsistent Statements, generally

193

195 195

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 12.1.

Generally

212 212

xv

xvi 12.1.1.

12.2.

Distinguished From Declaration Against Interest

Requirements

212

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

xvi

xvii 13.2.4.

Bystander’s Statement

233

13.2.5.

Negligence Cases

233

Present Sense Impression

234

13.3.

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

xvii

xviii 15.6.

Jury Instructions

CHAPTER 16 16.1.

FORMER TESTIMONY

When Admissible

251

254 254

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.

16.4.

Sirois Hearing

Identity of Parties

261

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

xviii

xix 16.8.2.

16.9.

Line-Up Identification

Civil Cases

CHAPTER 17

266

267

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

xix

xx 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

CHAPTER 18

JUDICIAL NOTICE

287

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

xx

xxi 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

xxi

xxii 20.10.

Governmental

CHAPTER 21 FAILURE TO PRODUCE EVIDENCE

320

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 22.1.

Character Evidence

22.1.1.

Criminal Cases—Good Character

22.1.1.1. 22.1.2.

330 330 330

Reputation or Opinion

330

Criminal Cases—Bad Character

333

22.1.2.1.

Prior Bad Acts

333

xxii

xxiii 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

22.2.

22.1.4.1.

Similar Acts of Carelessness

351

22.1.4.2.

Prior Acts Admitted for Other Purposes

352

Habit

22.2.1.

22.3.

Routine Business or Professional Tasks

Similar Accidents

353 355

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

xxiii

xxiv 22.3.8.

22.4.

Prior Accident by Plaintiff

Custom and Practice

364

364

22.4.1.

ANSI Standards

366

22.4.2.

Internal rules or manuals

366

22.5.

Insurance

22.5.1.

22.6.

Collateral Source Evidence

Subsequent Remedial Measures

367 369

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 23.1.

Motions In Limine

382 382

23.1.1.

Time and Form of Motion

383

23.1.2.

Criminal Law

383

23.1.3.

Civil Cases

385

xxiv

xxv 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

xxv

1

CHAPTER 1

QUICK REFERENCE NOTES

1.1. STEPS IN EVALUATING THE ADMISSIBILITY OF EVIDENCE ‰ ‰ ‰

‰

1.2. 9 9

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

COURTROOM PROCEDURE 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 Trial counsel cannot testify as to facts in a case, or placed his own credibility on the side of his client.

6

1.2.1. Making the record 9 9 9

The court reporter cannot accurately record overlapped argument, or gestures. Names must be spelled, and evidence referred to by exhibit numbers. 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. 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

9 9 9 9 9 9 9

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 Evidence admitted without objection may be considered by the jury. 8 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. Specific objections to a class of evidence do not need to be repeated. 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. 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 Evidence admitted over objection may be rebutted. 13 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

9 9 9

1.3. 9

7

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. Each ground for admission of the evidence must be articulated by the proponent. 16 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. If the court foresees excluded or excludable evidence being heard by the jury, it may foreclose any testimony along that line. 18

REAL EVIDENCE Real evidence should not be seen by the jury until it is admitted. 19.

Section 2.5.1. 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 8

3 1.3.1. 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. ‰ ‰ ‰ ‰ ‰ ‰

Viewing by the Jury

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. ‰

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. ‰

9

20

Scientific Test Results

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. If the test is generally accepted as reliable, a foundation for the admission of the particular results of that

Section 3.2. 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. 21

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. 9

Tape Recording

4 test must still be established.

1.4.

30

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. the document offered is the original writing, or an accurate photocopy of the original.

9 9

Faxes and computer printouts may be admissible under the use of business record rule. 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

31

1.4.2. Accident Reports An accident report prepared by an employee is admissible if: 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. ‰ ‰

30

Motor vehicle accident reports (MV 104)

must be certified, and can be admitted only by the opponent, not by the party who prepared it.

Section 3.11.1. Section 4.3.2 32 Section 4.3.4. 33 Section 4.4.1. 34 Section 4.4.1. 35 Section 4.4.2. 31

33

‰

35

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 Opinions of the officer may be admissible if based on expert analysis of observable physical evidence. 40

9

1.4.5.

Hospital records A hospital record is admissible if:

‰ ‰ ‰

It is subpoenaed The original, or a certified copy 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 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

9

A blood test in a hospital record is admissible if:

36

Section 4.4.3. 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. 37

41

6

‰ ‰

It is the original, or a certified copy the blood test conducted was needed for the care and treatment of the patient.

44

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 it states that each of the items was necessarily supplied, and the amount charged is reasonable.

1.4.7.

45

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. A Medical Examiner's report and an autopsy report are admissible if business records.

9

1.4.8.

X-ray

An x-ray is admissible if: ‰ ‰ ‰

‰

43

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

Section 4.5.1. 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. 44

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. 9

9 9

1.4.10.

Such a document is some evidence, but the jury is free to disbelieve it even though not rebutted. The public officer must have had personal knowledge of the fact recited in the document. 52 The public officer or subordinate does not need to testify to admit the document. 53.

Records of a municipal corporation, the state, or a library Such records are prima facie evidence if:

‰

The records are certified or authenticated by the entity providing the record.

54

1.4.11. Articles 9

Articles from technical journals are inadmissible as proof of the facts contained, since they are hearsay.

1.4.12. Parol evidence 9

50

Oral testimony as to the content of a writing is inadmissible if the writing indicates it is the final expression of the agreement. 56

Section 4.8.3. 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. 51

55

51

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: ‰ ‰ ‰ ‰ ‰

57

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

Section 5.1. Section 5.1. 59 Section 5.2. 58

9 1.5.3. 9 9 9

Exhibiting physical condition or injuries to jury

A criminal defendant may display a physical characteristic to the jury without taking the stand or submitting to cross-examination.60 A plaintiff in a civil case may exhibit his injury to the jury.61 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 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 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

60

‰

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

Section 5.3.1. 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. 61

10 9 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 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 9 9

Cross-examination is limited to matters brought out on direct and the implications flowing from those matters.70 Cross-examination may cover matters affecting credibility. New matter brought out on cross must be treated as if on direct, making leading questions objectionable.71

1.6.3. Objections to form ‰ ‰ ‰ ‰ ‰ ‰

9

1.7. 9

68

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 The court has wide discretion to determine whether an answer to a question is likely to help or mislead the jury.77

OPINION TESTIMONY A witness may state what he perceived. 78

Section 6.2.7 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. 69

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 9 9 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 An expert witness may clarify an area of which the jury has general awareness.81 Expert testimony may be admitted to dispel misconception that jurors might possess.82 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 If the expert relies on an out of court interview, the testimony may be conditioned on the hearsay declarant testifying at trial.87 The expert may not read portions of a book since the book is hearsay. 88 An expert must first admit the authoritativeness of a book or treatise before being questioned with information in the book.89

9 9 9

78

Section 7.1. 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. 79

12 9 9 9 9

1.8. 9 9 9 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 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 Adequate pretrial disclosure of expert witness information in civil cases may be excused for good cause.92 In a criminal case, the court may permit a defendant to offer expert testimony in the interests of justice.93

IMPEACHMENT Cross-examination is limited to matters covered on direct, and inferences drawn therefrom.94 The credibility of a witness may also be covered on cross. The court has discretion in the method and duration of cross-examination.95 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. 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. 91

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. 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. 101

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:

‰ ‰ ‰

9 9 9 ‰

114

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 Failure to raise a specific objection to lack of foundation for use of the prior inconsistent statements waives the objection.120 A prior inconsistent statement by a party is admissible as an admission. 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

Section 9.21. 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. 115

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 9 9 9 9 9

122

Any act or declaration of a party is an admission and is admissible against him at trial.125 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 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 Statements in a business record are not admissions unless the employees who prepared the record has an identity of interest with the employer.129 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 Admissions contained in documents such as hospital records and police reports are admissible if specifically attributable to a party.131

Section 10.1.5. 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. 123

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 A statement is admissible as a present sense impression if it is:

132

‰ ‰ ‰

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

Section 12.3.5. Section 12.3.7. 134 Section 12.3.10. 135 Section 13.1. 136 Section 13.2.4. 137 Section 13.3. 133

137

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. Section 13.4. 140 Section 13.5. 141 Section 14.1. 142 Section 14.2. 139

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

9

Affidavits of service.

9

Itemized Bill of Invoice:

143

148

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

Section 15.3. Section 15.5. 145 Section 16.1. 146 Section 17.4. 147 Section 17.5. 148 Section 17.6.1. 144

147

19 the Bill. 9

Only one bill can be introduced from the same entity.

9

Life expectancy tables. 149

9

Stock market reports and quotations.

9

Financial reports not prepared for litigation. 151

9

Original certificate of marriage.

9

US weather bureau record of observations of the weather. 153

9

Certified copies of birth and death records.

9

Certificate of population.

9

Certificate of the custodian of fingerprints that records show previous convictions.

9

Certified copy of a will previously proved.

9

Financial books and records of corporation, when used against the corporation.

9

Evidence of family relationship. 0

1.10.

150

152

154

155

157

‰ ‰ ‰ ‰

149

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.

Section 17.6.2. 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. 150

158

JUDICIAL NOTICE The Court is required to take notice of:

‰

156

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: ‰ ‰ ‰ ‰

160 161

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.

Section 18.2. Section 20.2.

21 Psychologist-patient. Husband-wife. Parent-child.

164

165

Social worker-client. Journalists.

166

167

Governmental.

1.12.

163

168

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

‰ ‰ ‰ ‰

162

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

Section 20.3. 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. 163

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. 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. 175

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 9 9 9 9 9 9

181

To suppress improperly obtained evidence. 182 To suppress line-up or show-up identification evidence. 183 To suppress statements made by a defendant. 184 To preclude use of prior convictions and misconduct on cross-examination. To have evidence of uncharged crimes admitted. 186 To show that a defendant has tampered with a witness. 187 To close the courtroom to the public. 188

Section 22.7. 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. 182

185

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 each bit of evidence has enough rational connection with an issue to contribute to the answer.

189

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). 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). 190

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 probative value.

194

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 Radosh v. Shipstad, 20 N.Y.2d 504, 231 N.E.2d 759, 285 N.Y.S.2d 60 (1967). 201 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); 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). 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). 204

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 Relevant evidence may nevertheless be excluded if it is outweighed by other factors.

209

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). 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).

209

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

Radosh v. Shipstad, 20 N.Y.2d 504, 231 N.E.2d 759, 285 N.Y.S.2d 60 (1967). 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 The instruction should be given when the evidence is first introduced. 1.18.1.

215

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 insurance company.

217

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

Radosh v. Shipstad, 20 N.Y.2d 504, 231 N.E.2d 759, 285 N.Y.S.2d 60 (1967). 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). 213

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). 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). 224

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.

227 228

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). 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).

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 is reluctant to do so unless it is quite confident that the fact will be established.

232

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. 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). 232

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). 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). 237

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 speculation about the thought processes of the jurors, a harmless error analysis is inappropriate.

254

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). 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 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). 250

40

41 The doctrine of curative admissibility allows admission of irrelevant evidence on crossexamination 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). 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). 263

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

"with the consent of the parties,"

271

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 sheet after the trial court presents it for their review."

275

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 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). 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 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).

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 case".

278

Counsel becomes an unsworn witness by placing her own credibility on the side of her client. 279

275

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). 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 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); 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. ) 276

44

45 It is improper for trial counsel to bolster his case on summation by repeated accusations that the witnesses for the other side are liars

280

It is error for trial counsel to accuse medical experts, without supporting evidence, of being willing to testify falsely for a fee. 281

280

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). ( 281 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) ("[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.). 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). 283

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

People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977). 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). 295

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). 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 People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977). 300

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 People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977). 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). 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 People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977). 317 People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977). 318 People v. Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974). 319 People v. Connelly, 35 N.Y.2d 171, 316 N.E.2d 706, 359 N.Y.S.2d 266 (1974). 314

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 People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977). 323 People v. Julian, 41 N.Y.2d 340, 360 N.E.2d 1310, 392 N.Y.S.2d 610 (1977). 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 People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979). 329 People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979).

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 of the tape recording in evidence.

333

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 People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979).

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 be offered.

335

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 was used to corroborate the identification testimony of the victim's uncle.

338

The Court of Appeals has stated that photographs that are relevant to an issue should not be excluded merely because they are gruesome.

339

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. Wood, 79 N.Y.2d 958; 591 N.E.2d 1178; 1992 N.Y. LEXIS 928, 582 N.Y.S.2d 992 (1992); 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. Wood, 79 N.Y.2d 958; 591 N.E.2d 1178; 1992 N.Y. LEXIS 928, 582 N.Y.S.2d 992 (1992); 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 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). 344 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). 345 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). 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 tampering.

348

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 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). 349 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). 350 Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981) (tenminute-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). 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). 358

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 indictment or juvenile delinquency petition, it is not necessary to satisfy the Frye test's general acceptance within the scientific community.

366

test and establish the

367

It is not necessary to conduct a Frye hearing when such a hearing is not specifically requested.

368

Novel scientific evidence may be admitted without any hearing at all by the trial court. 3.11.1.

369

Frye hearing Expert testimony based on scientific principles or procedures is admissible only after a

principle or procedure has "gained general acceptance" in its specified field.

370

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 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). 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 addressed in a Frye hearing.

372

After the Frye hearing had been held and the trial court had found the evidence to be reliable, a foundation for the admission of the particular evidence must be established. 3.11.2.

373

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

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). 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). 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”). 372

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). 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). 383

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). 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 People v. Scarola, 71 N.Y.2d 769, 777–778, 530 N.Y.S.2d 83, 525 N.E.2d 728 (1988). 390 351 So.2d 1153 (La.). 391 People v. Scarola, 71 N.Y.2d 769, 777–778, 530 N.Y.S.2d 83, 525 N.E.2d 728 (1988). 386

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 reliability of the procedure. reliable to be admissible,

397

396

Some jurisdictions have held that voice spectrography evidence is sufficiently

while others have held it is not. 398 The legal scholarship on the admissibility of

voice spectrography is likewise conflicting

399

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 existing literature on the subject.

3.11.8.

400

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 an incident, thereby unfairly impairing a defendant's ability to cross-examine the witness about the event.

406

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). People v. Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983). 408 People v. Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983). 409 People v. Hughes, 59 N.Y.2d 523, 453 N.E.2d 484, 466 N.Y.S.2d 255 (1983). 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). 407

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 The test is not whether a particular procedure is unanimously endorsed by the scientific 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 the relevant scientific community.

416

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 scientific community.

419

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) 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 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). 417 See § 3.11.13.1. 418 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). 414

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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 assumptions underlying the probability calculations.

422

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 of fact.

425

419

People v. Hamilton, 681 N.Y.S.2d 117; 1998 N.Y. App. Div. LEXIS 11925 (3d Dep't 1998). 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). 421 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). 422 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). 423 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). 424 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). 425 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). 420

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 4.1.

426

DOCUMENTARY EVIDENCE

GENERALLY

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).

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 recordkeeping 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). 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 People v. Kennedy, 68 N.Y.2d 569 (1986). 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 People v. Kennedy, 68 N.Y.2d 569 (1986). 432

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). 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). 437

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 Law and Rules 4518. 4.3.

441

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 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). 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 the contents of another original written document.

447

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

nonproduction of the original in determining whether the foundational proof of loss was sufficient.

450

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). 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 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). 448 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). 449 See § 4.7. 450 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). 445

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 finding as to whether the loss or destruction was in bad faith. bad faith may require a hearing. 4.3.2.

454

Whether documents are lost or destroyed in

455

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

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). 452 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). 453 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). 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). 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 People v. May, 162 A.D.2d 977 (4th Dep’t 1990). 459 People v. May, 162 A.D.2d 977 (4th Dep’t 1990). 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). 457

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). 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 R & I Electronics, Inc. v. Neuman, 81 A.D.2d 832 (2d Dep’t 1981). 466 R & I Electronics, Inc. v. Neuman, 81 A.D.2d 832 (2d Dep’t 1981). 462

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

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). 468 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). 469 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). 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). 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”). 480

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

Schiffer v. Korman, 40 A.D.2d 681, 336 N.Y.S.2d 169 (2d Dep’t 1972). 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). 487

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 no duty to render the information contained.

495

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 Mooneyh v. Osowiecky, 235 A.D.2d 603; 651 N.Y.S.2d 713; 1997 N.Y. App. Div. LEXIS (3rd Dep't 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). 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). 500

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 drawn from the facts.

508

Thus, the opinion of a police officer that one story is credible and another is not is

inadmissible. 509

503

Mooneyh v. Osowiecky, 235 A.D.2d 603; 651 N.Y.S.2d 713; 1997 N.Y. App. Div. LEXIS (3rd Dep't 1997). 504 Mooneyh v. Osowiecky, 235 A.D.2d 603; 651 N.Y.S.2d 713; 1997 N.Y. App. Div. LEXIS (3rd Dep't 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 physical evidence.

512

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 accident occurred, if offered to bolster consistent statements made at trial.

514

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 Mooneyh v. Osowiecky, 235 A.D.2d 603; 651 N.Y.S.2d 713; 1997 N.Y. App. Div. LEXIS (3rd Dep't 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

Mooneyh v. Osowiecky, 235 A.D.2d 603; 651 N.Y.S.2d 713; 1997 N.Y. App. Div. LEXIS (3rd Dep't 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

519 520

CPLR 2306(a). 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). 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 522

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). 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, 531

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). People v. Davis, 225 A.D.2d 449; 639 N.Y.S.2d 350; 1996 N.Y. App. Div. LEXIS (1st Dep't 1996). 538 People v. Davis, 225 A.D.2d 449; 639 N.Y.S.2d 350; 1996 N.Y. App. Div. LEXIS (1st Dep't 1996). 539 Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d Dep’t 1987). 537

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)) 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). 541

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 Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d Dep’t 1987). 545 Napolitano v. Branks, 141 A.D.2d 705, 529 N.Y.S.2d 824 (2d Dep’t 1988). 546 Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d Dep’t 1987). 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 Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d Dep’t 1987).

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 Upon a proper foundation, a medical examiner's report is admissible.

4.6.3.

551

Autopsy Report An autopsy report is admissible upon laying a proper foundation. 552

549

Wilson v. Bodian, 130 A.D.2d 221, 519 N.Y.S.2d 126 (2d Dep’t 1987). 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 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. 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). 550

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 Xray 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). 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 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). 554

100

101 As in the case of any other lost original, once the absence of an X-ray film is excused, all competent secondary evidence is generally admissible to prove its contents,

557

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

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), 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 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). 560 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).

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). 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). 562

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). 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). 571

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 School records of a pupil’s age constitute evidence of the facts required to be recorded.

579

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). 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). 601

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 suggest otherwise, UCC 2-202 bars parol evidence to contradict those terms.

605

If the parol evidence is being used to contradict a term of the contract, not to show that there was no contract, UCC 2-202 applies.

606

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 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).

113

114 UCC 2-202 does not require that there be some express indication in the writing itself or some other evidence that the parties intended it to be the final expression of their agreement. 4.18.

607

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 testimony.

608

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

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). 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 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). 610 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). 611 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).

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

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). 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). 614 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). 613

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 The use of visual aids to assist the jury is permitted.

622

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 crossexamination. 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- to16-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 crossexamination 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 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) 635 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)

120

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

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) (incompetent plaintiff allowed to answer questions designed to show his mental condition as a result of his injuries). 637 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) (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

6.1.

QUESTIONING OF WITNESSES

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 Richardson, Evidence, § 478 644 Wigmore, Evidence. § 769; See Fed. R. Evid., § 611(a) 643

124

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.

645 646

Wigmore, Evidence, § 769 Wigmore, Evidence, § 770

125

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.

647 648

See Wigmore, Evidence, § 770, fn. 1 Wigmore, Evidence, § 780

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

Richardson, Evidence, § 482 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 Richardson, Evidence, § 484 652 Wigmore, Evidence, § 780 650

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

Wigmore, Evidence, § 909 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 N.Y.S.2d 679, 1974 N.Y. App. Div. LEXIS 4876 (2d Dep't 1974). 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). 654

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 crossexamination 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 crossexamination. 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 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 Richardson, Evidence, § 485 662 Wigmore, Evidence, § 914; Richardson, Evidence, §§ 485, 516 660

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), 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). 667

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

671 672

See Wigmore, Evidence, § 781. 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). 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). 675

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

677 678

Larsen v. Vigliarolo Brothers, Inc., 77 A.D.2d 562, 429 N.Y.S.2d 273 (2d Dep’t 1980). 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). 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). 680

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 of rape trauma syndrome is inadmissible, though, if it bears solely on proving that a rape had occurred.

688

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 specialists. Expertise may be acquired from practical experience.

690

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) (failure to exercise such discretion required reversal). 690 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) (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 crossexamine 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 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); 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). 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 hitand-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). 700

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 why his testimony should not simply be stricken."

712

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). 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 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). 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). 708

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

principle, procedure, test or syndrome must satisfy the Frye test, have gained general acceptance in its specified field.

718

that is, the principle or procedure must

719

A Frye hearing may be necessary to determine whether the expert's opinion has the requisite scientific foundation.

720

714

See Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195 (1984). 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 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). 715

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 accepted in the profession as reliable in forming a professional opinion.

726

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

state his opinion without further foundation.

735

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). 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). 733

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 causeand-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. InterCaribbean 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, was ruled insufficient to defeat a motion for summary judgment in a Dram Shop Act case.

745

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). 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). 742

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). 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). 747

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). 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). 753

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). 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).

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); 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). 764 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). 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). 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). 775

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 The test is not whether a particular procedure is unanimously endorsed by the scientific 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). 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 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). 788 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). 789 People v. Smith, 63 N.Y.2d 41, 468 N.E.2d 879, 479 N.Y.S.2d 706 (1984). 784

160

161 there must be a threshold evidentiary foundation establishing that the pattern of behavior is generally recognized in the relevant medical context and community. 8.14.

790

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 excluded 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

790 791

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). 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

upon the people and files with the court a written notice of his intention to present psychiatric evidence."

794

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 the plea of not guilty to the indictment".

798

792

Daubert v. Merrell Dow Pharmaceuticals, Inc. ,113 S.Ct. at 2796-97. 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 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). 797 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). 798 CPL 250.10 (2). 793

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 defense.

803

A continuance to permit the prosecution to examine the defendant may be disruptive in many ways, warranting preclusion from testifying rather than a continuance.

804

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). 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). 800

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 determination to be made by the trial court

806

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 constitutional right to present witnesses in his own defense.

807

In making its determination, the trial court must therefore weigh this right against the resultant prejudice to the People from the belated notice.

808

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 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). 808 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). 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

9.1.

IMPEACHMENT

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 crossexaminer 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 truth or veracity or the witness’s bad moral character, even if the witness is an adverse party

817

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 Wigmore, Evidence, § 916. 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 Wigmore, Evidence, § 878. 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 crossexamination 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

See Wigmore, Evidence, § 993.

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

Wigmore, Evidence, § 993. See Wigmore, Evidence, § 991. 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). 829

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 Wigmore, Evidence, § 996.

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.

834 835

CPLR 3115(b). 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 selfcontradiction is predicated, have been shown in evidence for any purpose independently of the selfcontradiction?” 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 affects his character and tends to show that he is not worthy of credit.

846

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 the exceptions referred to in People v. Molineux.

848

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). 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 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. Malkin, 250 N.Y. 185, 197, 164 N.E. 900 (1928). 851 People v. Webster, 139 N.Y. 73 (1893). 847

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 negative answers.”

854

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). 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. 853

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.

858 859

Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958 (1911). 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). 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) (crossexamination of plaintiff in personal injury action as to prior conviction for intoxication held to be improper). 861

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. 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). 865

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). 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). 869

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 selfinsured, 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). Wigmore, Evidence, § 944. 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 Wigmore, Evidence, § 966. 878 Christensen v. Pittston Stevedoring Corp., 283 A.D. 1088, 131 N.Y.S.2d 546 (2d Dep’t 1954). 875

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). 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). 880

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 Wigmore, Evidence, § 953. 886 Potter v. Browne, 197 N.Y. 288, 90 N.E. 812 (1910). 887 Zimmer v. Third Avenue R.R. Co., 36 A.D. 273, 55 N.Y.S. 314 (2d Dep’t 1899). 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 crossexamination. 899

894

Geddes v. Red Star Express Lines, Inc., 30 A.D.2d 761, 291 N.Y.S.2d 885 (4th Dep’t 1968). Ryan v. Dwyer, 33 A.D.2d 878, 307 N.Y.S.2d 565 (4th Dep’t 1969). 896 Ryan v. Dwyer, 33 A.D.2d 878, 307 N.Y.S.2d 565 (4th Dep’t 1969). 897 Blakney v. Gleam Cab Corporation, 43 A.D.2d 520, 349 N.Y.S.2d 77 (1st Dep’t 1973). 895

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). Ryan v. Dwyer, 33 A.D.2d 878, 307 N.Y.S.2d 565 (4th Dep’t 1969). 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). 899

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

906 907

ABA Model Code of Professional Responsibility, DR 7-109. Zimmer v. Third Avenue R.R. Co., 36 A.D. 273, 55 N.Y.S. 314 (2d Dep’t 1899).

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 crossexamination 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). 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). 909

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); Wigmore, Evidence, § 982. 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 For policy reasons, specific acts of misconduct cannot be proven by extrinsic evidence.

916

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. People v. McCormick, 303 N.Y. 403, 103 N.E.2d 529 (1952); Fed. R. Evid., § 608(b); Wigmore, Evidence, § 981. 918 Wigmore, Evidence, § 979. 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). 917

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 about a previous conviction regardless of the fact that it arose from an Alford plea.

926

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 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).

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

Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 98 N.E. 465 (1912). Wigmore, Evidence, § 1040 929 Wigmore, Evidence, § 1040. 928

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 Wigmore, Evidence, § 1040. 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). Wigmore, Evidence, § 1043. 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). 936

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

Wigmore, Evidence, § 1041. Wolfe v. Madison Avenue Coach Co., Inc., 171 Misc. 707, 13 N.Y.S.2d 741 (App. Term, 1st Dep’t 1939). 941 Larkin v. Nassau Electric R.R. Co., 205 N.Y. 267, 98 N.E. 465 (1912). 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). 940

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. 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). 945

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

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) (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 950

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). 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). 956

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). 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 Schiffer v. Korman, 40 A.D.2d 681, 336 N.Y.S.2d 169 (2d Dep’t 1972). 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) 959

203

204 10.2.

PRIOR CONSISTENT STATEMENTS A witness' trial testimony ordinarily may not be bolstered with pretrial statements.

965

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 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). 969 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).

204

205 facts in issue, but to rehabilitate the credibility of the witness (not all inconsistencies developed on crossexamination 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). 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). 971

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). 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). 974

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

admissible to corroborate the allegation that an assault took place.

979

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

identification is at issue.

982

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 perpetrator.

983 984

984

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). 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

12.1.

ADMISSIONS

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.). 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). 990

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). 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 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). 999 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) (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). 997

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). 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, 1034

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 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). 1044 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).

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). 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). 1046

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

a guilty mind includes false statements or alibis, abandonment or concealment of evidence.

1054

coercion or harassment of witnesses,

1055

and

1056

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 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). 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 connection between the conduct and a guilty mind often is tenuous.

1057

Even innocent persons, fearing

wrongful conviction, may flee or lie to extricate themselves from situations that look damning

1058

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 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). 1059 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). 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.) 1058

225

226 CHAPTER 13

13.1.

EXCITED UTTERANCES

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 opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory.

1064

of Appeals has added a requirement of corroboration to bolster these assurances of reliability.

1065

The Court

1061

See McCormick, Evidence (2d ed.), § 288. 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 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). 1064 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). 1065 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). 1062

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 corroboration. 13.2.

1066

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

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). 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 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); 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) (twoto-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. 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. 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 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). 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 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).

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. 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. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45 (1979). 1081 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).

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

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). 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). 1084 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). 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 People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45 (1979). 1087 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). 1083

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

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). 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). 1090 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). 1091 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). 1089

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

People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45 (1979). 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) (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. 1093

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

observations are admissible if the descriptions are sufficiently corroborated by other evidence.

1097

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 recollection is eliminated.

1099

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 observer's utterance.

1100

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 and contemporaneously with the events described.

1102

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

events.

1104

The corroboration element cannot be established merely by showing that the declarant's

statements were unprompted and were made at or about the time of the reported event.

1105

1100

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). 1101 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). 1102 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) (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 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).

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 dependent on the particular circumstances of the individual case.

1107

In all cases the critical inquiry is

whether the corroboration offered to support admission of the statement truly serves to support its substance and content. 13.4.

1108

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

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). 1105 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). 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 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) (witnesses description of events in 911 call did not sufficiently coincide with corroborating witnesses description of events, so uncorroborated and inadmissible). 1108 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). 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

14.1.

DECLARATIONS AGAINST INTEREST

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). 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). 1128

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 People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986). 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). 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 People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986). 1140 People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986). 1141 People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999). 1137

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 testimony subject to cross-examination.

1143

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 statement’s reliability.

1144

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 a co-defendant.

1146

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 People v. Blades, 93 N.Y.2d 166; 711 N.E.2d 187; 1999 N.Y. LEXIS 221 (1999).

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

People v. Blades, 93 N.Y.2d 166; 711 N.E.2d 187; 1999 N.Y. LEXIS 221 (1999). People v. Thomas, 68 N.Y.2d 194, 500 N.E.2d 293, 507 N.Y.S.2d 973 (1986). 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). 1148

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). 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 codefendant'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) 1151

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

15.1.

DYING DECLARATIONS

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). People v. Nieves, 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986). 1156 People v. Nieves, 67 N.Y.2d 125, 501 N.Y.S.2d 1 (1986). 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). 1155

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). 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). 1160

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). 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). 1172

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

16.1.

FORMER TESTIMONY

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). People v. Corley, 77 A.D.2d 835, 431 N.Y.S.2d 21 (1st Dep’t Bronx Co. 1980). 1180 Healy v. Rennert, 9 N.Y.2d 202, 173 N.E.2d 777, 213 N.Y.S.2d 44 (1961). 1181 People v. Corley, 77 A.D.2d 835, 431 N.Y.S.2d 21 (1st Dep’t Bronx Co. 1980). 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). 1179

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 crossexamination. 1188

1183

Koehler v. Schneider, 10 N.Y.S. 101 (1890). 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). 1184

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). 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). 1187

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 crossexamination. 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. 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). 1196

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). 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). 1207

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 procured that witness's unavailability.

1218

1212

Matter of Barry M., 93 Misc.2d 882, 403 N.Y.S.2d 979 (N.Y. City Fam. Ct. 1978). 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). 1213

260

261 16.3.3.1.

Sirois Hearing

A Sirois hearing

1219

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 actions and the witness's unavailability.

1223

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 waive the hearing.

1225

If the Court finds sufficient evidence of a distinct possibility of tampering, the Sirois

hearing must then be held.

1219

See 23.7. 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 People v Cotto, 92 N.Y.2d 68, 72, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998). 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). 1220

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). 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). 1239

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 of present recollection, whether or not the defendant is the person in question".

1242

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 perpetrator.

1243

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 line-up.

1244

1240

People v. Ayala, 75 N.Y.2d 422 (1990). People v. Ayala, 75 N.Y.2d 422 (1990). 1242 CPL 60.25[1][a]. 1243 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). 1244 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). 1241

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

17.1.

MISCELLANEOUS HEARSAY EXCEPTIONS

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 prove that B did go with A.

1250

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 precluding a suspicion of misrepresentation.

1253

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 People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999). 1252 People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999). 1253 People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999).

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 falsify and evidence that the intended future acts were at least likely to have actually taken place. 17.3.

1255

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

People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999). People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999). 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). 1255

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). 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).

1264

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 New York Civil Practice Law and Rules 4526 provides: 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). 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).

1276

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). 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). 1284

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). 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). 1288

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 1323

In re Schiff’s Estate, 136 Misc. 129, 238 N.Y.S. 778 (Sur. Ct. 1930). In re Riggs’ Estate, 68 Misc.2d 760, 328 N.Y.S.2d 138 (Sur. Ct. 1972).

288

289 CHAPTER 18

18.1.

JUDICIAL NOTICE

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). 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) 1325

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) 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 Ptasznik v. Schultz, 247 A.D.2d 197; 679 N.Y.S.2d 665; 1998 N.Y. App. Div. LEXIS (2d Dep't 1998). 1336 Ptasznik v. Schultz, 247 A.D.2d 197; 679 N.Y.S.2d 665; 1998 N.Y. App. Div. LEXIS (2d Dep't 1998). 1330

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) 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). 1343

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

19.1.

PRESUMPTIONS

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

accordance with office practice and procedure was received.

1373

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). 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). 1368

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). 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). 1376

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). 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). 1386

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). 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). 1393

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

20.1.

PRIVILEGES

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 New York Civil Practice Law and Rules 4503 states: (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 of obtaining legal advice.

1407

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). 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). 1412

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 New York Civil Practice Law and Rules 4504 provides: (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, copartnership, 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 1421

Greer v. Greer, 58 Hun. 251, 12 N.Y.S. 778 (1890); Hebbard v. Haughian, 70 N.Y. 54 (1877). 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). 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). 1423

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 crossexamination, 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). 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). 1431

311

312 The legislature has enacted a number of narrow exceptions abrogating the physician-patient privilege for various public policy reasons.

1438

The Court of Appeals has narrowly construed statutes limiting the privilege and rejected claims that there is a general public interest exception to CPLR 4504.

1439

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). 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). 1438

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. New York Civil Practice Law and Rules 4505 states: 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. New York Civil Practice Law and Rules 4507 states: 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. 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, copartnership, association, firm, trust, estate or any other legal entity whatsoever; and 2. “insurance benefits” shall include payments under a self-insured plan. 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). 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). 1451

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 New York Civil Practice Law and Rules 4508 states: (a) Confidential information privileged.

1457

People v. Allman, 41 A.D.2d 325, 342 N.Y.S.2d 896 (2d Dep’t 1973). 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). 1458

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: 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, copartnership, association, firm, trust, estate or any other legal entity whatsoever; and 2. “insurance benefits” shall include payments under a self-insured plan. 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). 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. 1465

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). 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). 1471

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). 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). 1476

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. 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). 1478

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

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). 1490 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). 1491 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). 1492 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). 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). 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). 1497

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. 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. 1504

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 possession.

1514

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. 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). 1512 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). 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 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). 1511

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,

heightened prosecutorial attention is appropriate.

1517

The defense does not have to know the precise form of the document, as long as the request provided particularized notice of the information sought.

1518

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 have differed had the evidence been produced.

1519

If no specific discovery request was made, the failure to disclose such material is governed by a "reasonable probability" standard of prejudice.

1520

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

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). 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 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). 1520 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). 1521 People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498). 1522 People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999).

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 and degree of prejudice resulting from the loss

1525

1523

People v. James, 1999 N.Y. LEXIS 1433 (N.Y. Ct. App. 1999). People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 (1988). 1525 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). 1524

328

329

329

330

CHAPTER 22

22.1.

SPECIFIC SUBJECTS

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 crossexamination 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). 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).

1527

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). 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). 1529

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). 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 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). 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. 1534

332

333 Similarly, because discussion of specific facts is permitted only on crossexamination, “[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. 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). 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). 1540

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). 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). 1552

335

336 The first part of the two-part inquiry requires the proponent of the evidence to identify some issue, other than criminal propensity, to which the evidence is relevant.

1556

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 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). 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 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) (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 People v. Underwood, 680 N.Y.S.2d 555; 1998 N.Y. App. Div. LEXIS 11758 (2d Dep't 1998). 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); People v. Underwood, 680 N.Y.S.2d 555; 1998 N.Y. App. Div. LEXIS 11758 (2d 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 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). 1578

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). People v. Fiore, 34 N.Y.2d 81, 87–88, 312 N.E.2d 174, 179, 356 N.Y.S.2d 38, 45 (1974). 1584 People v. Fiore, 34 N.Y.2d 81, 87–88, 312 N.E.2d 174, 179, 356 N.Y.S.2d 38, 45 (1974). 1585 People v. Fiore, 34 N.Y.2d 81, 87–88, 312 N.E.2d 174, 179, 356 N.Y.S.2d 38, 45 (1974). 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). 1583

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., “induced or encouraged” in one case,

1595

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). 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). 1598

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 be unbelievable or suspect.

1605

Thorough cautionary instructions should be given to the jury on the limited purpose for which this evidence is received, to minimize the possibility of prejudice.

1606

1601

People v. Carter, 77 N.Y.2d 95, 107, 566 N.E.2d 119, 124, 564 N.Y.S.2d 992, 997 (1990). 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). 1602

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 acquitted.

1610

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

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 abuse of Nussbaum was critical to an understanding of her testimony). 1606 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). 1607 People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969). 1608 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); see § 10.1100 1609 People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969). 1610 People v. Santiago, 15 N.Y.2d 640, 204 N.E.2d 197, 255 N.Y.S.2d 864 (1964); People v. Schwartzman, 24 N.Y.2d 241, 247 N.E.2d 642, 299 N.Y.S.2d 817 (1969). 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 crossexamination of defendant concerning twenty-one other similar fraudulent transactions and worthless checks which were more damaging to his credibility). 1613 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). 1614 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). 1615 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). 1616 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).

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 admissible to prove the element of forcible compulsion in a rape case.

1618

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 relevant to comprehend the spouse's testimony.

1620

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 equivalents.

1621

The evidence cannot be admitted on the basis that the victim was killed by the

defendant, and therefore the victim is unavailable to testify due to the acts of the defendant. 22.1.2.13.

1622

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 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). 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 the victim’s prior sexual conduct with the accused;

1625

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 threshold showing of relevance rests on the defense as the moving party.

1627

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 own past sexual history.

1630

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 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). 1628 See infra § 2.3. 1629 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). 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

Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d Dep’t 1985). 1635 Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d Dep’t 1985). 1636 Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d 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 malpractice suit.

1643

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 occurred. 22.2.

1644

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 Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 361 N.E.2d 991, 393 N.Y.S.2d 341 (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.). Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 361 N.E.2d 991, 393 N.Y.S.2d 341 (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 Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 361 N.E.2d 991, 393 N.Y.S.2d 341 (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). 1649

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 Rigie v. Goldman, 148 A.D.2d 23, 543 N.Y.S.2d 983 (2d Dep’t 1989). 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 Rigie v. Goldman, 148 A.D.2d 23, 543 N.Y.S.2d 983 (2d Dep’t 1989). 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 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). 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 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). 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 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). 1670 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) (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 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). 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

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). 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 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). 1676 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). 1677 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). 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 crossexamination. The contents of the documents beyond title, proof of service, etc., in such circumstances

1679

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). 1680 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). (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

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); 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 N.Y.S.2d 170, 1969 N.Y. App. Div. LEXIS 3922 (3d Dep't 1969). 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 rearend 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 of reasonable care.

1705

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). 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). 1703

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 crossexamination 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 awarded economic loss may be used to reduce the injured's judgment.

1720

There must be a direct

1717

Lynch v. Ford, 60 A.D.2d 880, 401 N.Y.S.2d 281 (2d Dep’t 1978). 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). 1718

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). 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). 1726

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 Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981).

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

Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984). Caprara v. Chrysler Corporation, 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981).

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). 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). 1740

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

Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864, 473 N.Y.S.2d 378 (1984). 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

23.1.

MOTIONS IN LIMINE

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 present witnesses in his own defense as defined in Chambers v. Mississippi.

1751

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). 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. 1751

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 MAPP HEARING (SEARCH AND SEIZURE) 1757

23.2.

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 710.60, in order that the trial court grant the Mapp Hearing.

1758

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 person in question".

1762

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 perpetrator.

1763

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 line-up.

1764

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]. 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 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). 1763

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 unduly suggestive and subject to suppression.

1769

The burden is on the People first to produce evidence validating the admission of such evidence.

1770

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 the crime will generally satisfy this element of the People's burden.

1771

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 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). 1772 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). 1773 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).

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

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). 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, and thus may be cross-examined on past criminal or immoral acts affecting credibility

1779

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) When the People desire to have evidence of uncharged crimes

1782

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 "potential for mischief". 23.7.

1785

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 between the defendant's actions and the witness's unavailability.

1789

1782

See infra § § 22.1.2 et seq. 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. 1783

1785 1786

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).

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 People v Cotto, 92 N.Y.2d 68, 72, 677 N.Y.S.2d 35, 699 N.E.2d 394 (1998). 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 hearing does not waive the hearing.

1791

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 probability of prejudice to an overriding interest in the event of open-court testimony.

1797

The

interest must be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

1798

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 an active undercover and fears for his or her safety.

1799

Secondly, there is an affirmative duty on trial courts to raise and consider reasonable alternatives to closing, sua sponte, and to place their consideration of them on the record.

1800

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 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). 1798 Press-Enterprise Co. v. Superior Ct. of Cal., 464 US 501 (1984). 1799 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). 1800 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).

393

394 The Court must address possible alternatives, such as a disguise, a partition, a guard stationed at the door to screen each prospective spectator.

1801

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 allegedly

would

equally

preserve

the

interest.

1803

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 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). 1803 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).

394

395 INDEX

In Translation to Counsel, 223

A Accident Reports, 80 Employee Accident Report, 80 Motor Vehicle Accident Reports, 82 Police Accident Reports, 83, See Police Accident Reports Acting in Concert, 343 Acts of Misconduct, 191 Eliciting Fact from Witness, 191 Excluding Extrinsic Evidence, 192 Administrative Code Judicial Notice of, 291 Admissibility Probative Value Outweighed by Prejudicial Impact, 1 Steps in Evaluating, 1 Admissions

In Workers Compensation Report, 221 Opinion, 217 Repeating What Was Heard, 218 Requirements, 213 Statement by a Party, 213 Statement by Employee of a Party, 213 Statement May be Based on Hearsay, 217 Translated Statement, 222 Use Only Against Party Making Statement, 216 age of individual as hearsay exception, 270 Ancient Documents, 108 Proof of Boundaries, 111 Rationale, 109 Real Estate Proceedings, 110 Statute, 110 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 Generally, 212 In Guilty Plea, 220

Authoritative Texts, 156 Autopsy Reports, 100, 106 toxicologist report, 106

In Hospital Record, 218

B

In Pleadings, 220 In Police Report, 219 In Statement, 219

Best Evidence Rule, 75 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 Prior Acts for Other Purposes, 351

80 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 Judicial Notice of, 289

C Census Records As Hearsay Exception, 279 Character Evidence Civil Cases, Bad Character, 350 Civil Cases, Good Character, 349 Criminal, Bad, 332 Criminal, Good, 329 Entrapment and Duress, 341 Extrinsic Evidence, 345

collateral issues, 175 grounds for excluding relevant evidence, 29 Collateral Source Evidence, 368 Conclusions in Police Accident Report, 88 Conditional Admission Subject to Connection, 2 conditional relevance definition, 26 insufficient evidence of conditional fact, 27

396

397 jury instruction if conditional fact not established, 27 sufficiency to go to jury compared to determination fact established, 27 test for admission, 27 Conduct of Counsel Testifying or Vouching for Witness, 1 confusion limiting instruction to correct, 29 Consumer Price Index Judicial Notice of, 294 Consumer Product Safety Regulations Judicial Notice of, 291 continuation of conditions presumption of, 300 conviction limiting instruction, 32 conviction of crime, 193

CPLR 4518, 71 CPLR 4545, 368 Cross-examination narration, 172 on distances, 172 on influences on perception, recall, testimony, 173 on knowledge, 170 on opportunity to observe, 170 on recollection, 171 on time, 172 raising new matter, 167 scope of, 166 subjects of, 170 testing knowledge, 171 Use of extrinsic evidence, 173 Custom and Practice, 363 ANSI Standards, 365 Internal Rules or Manuals, 365

Copies

D

Best Evidence Rule, 77 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 Receipt of Money for Testimony, 189 Tampering with Witness or Evidence, 191 Courtroom Procedure, 1 CPLR 3113(c), 129 CPLR 4504, 311 CPLR 4511, 288

Death Certificate As Hearsay Exception, 276 Declaration Against Penal Interest Grand Jury Testimony, 246 declaration of insanity, 238 declaration of past pain, 237 declarations against interest

CPLR 4514, 195

397

398 Generally, 240 Declarations Against Interest Distinquished from Admissions, 212 Declarations Against Penal Interest, 241 Plea Allocution, 244 demonstrative evidence, 116

unfair prejudice, 25 Discretion of Trial Court Determining Form of Offer of Proof, 36 strike inadmissible evidence at any time, 38 Permitting Jury to Take Exhibits into 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 in Police Accident Report, 87 diagrams, 117 Did You or Did You Not?, 126 direct evidence definition, 24 Discretion

demonstrative evidence, 116 real or demonstrative evidence, 116 weighing value of evidence against potential for prejudice, 117 displaying physical or mental condition to jury, 121 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 reverse even absent objection at trial:, 41 Discretion of trial court

use of leading question, 125 barring information suggested by leading 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 Cross-examination nature and extent on partiality, 183

judicial skepticism, 248 Jury instructions, 251 rationale, 248

cross-examination concerning uncharged acts:,

E

338 cross-examination to cause change of answer:, 192 determining relevancy:, 357 determining sanction for failure to disclose:, 327 determining sufficiency of corroboration:, 236 excluding prior inconsistent statement when contents disclosed orally:, 201 excluding public from courtroom:, 391 Form of Questions:, 134 need for evidentiary hearing:, 389 reinstructing jury on limjited use of evidence:, 370 restricting inquiry into collateral matters:, 346 specific immoral, vicious or criminal acts, 176 tests of witness's knowledge or capabilities:, 171 weighing considerations of declaration against penal interest:, 243 weighing probative worth against prejudice, 333 whether prior convictions unduly admissible:, 389

Emotional State, 136 Employee Accident Reports, 80 evidence destruction of, 324 Excited Utterance Bystander's Statement, 233 Focus on Condition of the Declarant, 232 In Negligence Cases, 233 Introduction, 226 Response to Question, 231 Time Interval, 228 exclamations of pain, 237 Exhibiting Physical Condition or Injury Civil Cases, 120 Criminal Cases, 119 Exhibits, 34 Viewing by Jury, 1

DNA Evidence, 68

399

400 Expert Witnesses. See Opinions, Expert Witnesses

As Hearsay Exception, 275 Fingerprint Records

experts failure to testify, 158

As Hearsay Exception, 280

qualifications, 140

Foreign Birth Certificate

Extrinsic Evidence

As Hearsay Exception, 278

Acts of Misconduct, 192

Form Objections, 131

Character Evidence, 345 on cross-examination, 173

Argumentative, 132

to prove partiality, 185

Asked and Answered, 133

use to impeach, 169

Compound, 131 Confusing, 132

F failure to call employee, 323 Failure To Call Expert Witness, 158 failure to call physician, 321 failure to call relative, 322 failure to call witness, 320 failure to exchange expert information before trial, 158 Failure to Exchange Expert Information Before Trial Civil Cases, 158 failure to produce document, 323 Failure to Serve Notice of Intention to Offer Psychiatric Evidence in Criminal Case, 162 Failure to Serve Notice of Intention to Offer

Intimidation, 132 Overbroad, 131 Former Testimony civil cases, 267 Complete Identity Not Necessary, 262 Criminal Cases, 265 Definition, 259 Deposition Testimony, 257 Due Process Considerations, 258 Establishing Unavailability, 260 Failure to Object at Prior Proceeding, 258 Form of earlier Evidence, 263 Foundation for admitting, 263 Grand Jury Testimony, 256

Psychiatric Testimony

identity of parties, 262

Permitting Late Notice in the Interest of Justice,

other uses, 264

164 failure to testify party, 320

Right to Cross-Examine, 257 Statute, 262 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

G

Foundation Photograph, 3 Real Evidence, 3 Tape Recording, 3 Foundations, 37 Basis for Expert Opinion, 151

Going Off the Record, 35 governmental privilege, 319 Grand Jury Testimony As Declaration Against Interest, 246 As Former Testimony, 256

Blood alcohol test, 63

H

Busines Records, 71 Currency, 52 Displaying Physical or Mental Condition, 121 DNA Profiling, 69 Expert Witness Testimony, 142 Former Testimony, 263, 264 Illustration, Diagram or Chart, 118 Medical Abbreviation, 99 Models, 118 Past Recollection Recorded, 114

Habit, 352 hair comparison, 67 Harmless Error, 2 hearsay definition, 210 rationale for excluding, 210 rationale for hearsay exceptions, 211 right to confront witness, 269 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

I

Pedigree, 282 Applicability, 283 Availability of Other Evidence, 283 Establishing Trustworthinness, 285 Examples, 285 Hearsay Upon Hearsay, 286 Rationale, 282 Rebuttal, 286

Identification Showup identification, 386 Identification Evidence Hearing to challenge admissibility, 385 Wade Hearing, 385 identity of individual 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

J

on use of drugs, 181 partiality, 182 Partiality Circumstances showing, 185 conduct showing, 186 Prior inconsistent statement, 195 use of extrinsic evidence, 169 written statement, 31 impending death Dying Declarations, 248 Improperly Admitted Evidence Curing, 2 Invited Error, 2 innocence Presumption of, 300 insanity declaration of, 238 Insanity, 179, 344 Inspectors of Building and Housing Reports, 107 Insurance, 366 Collateral Source Evidence, 368 intent presumption of, 300 interest, 183 Internal Rules or Manuals, 365 intoxication, 179 Intoxication, 137 proof of, 95

journalist privilege, 317 relevance, 29 Judicial Notice, 288 Administrative Code, 291 Consumer Price Index, 294 Consumer Product Safety Regulations, 291 Courts Own Records, 290 CPLR 4511, 288 Facts Within Judge's Personal Knowledge, 291 Laws and Statutes of New York, 289 Laws of Foreign Countries, 290 Laws of Other States, 289 matters of fact, 291 Matters of Fact Examples of, 292 Indisputable Source, 292 test of, 291 matters of law, 289 New York State codes, rules and regulations, 289 NHTSA Regulations, 291 Notice of Intention to Request, 289 Ordinances, Regulations, 289 OSHA Regulations, 291 Patents, 291 Public Records, 291 Rate of Interest for Discount Purposes, 294 Scientific Facts, 293

irrelevant

403

404 When May Be Taken Without Request, and Must Be Taken On Request, 288

Use to Establish Foundation or Preliminary Facts, 2

When Must Be Taken Without Request, 288 jury

When Permissible on Direct, 127 legitimacy

polling to determine effect of evidence, 30 jury instructions

Presumption of, 301 Library Records, 105

dying declaration, 251

lie detectors, 66 limited admissibility, 29

L laws and Statutes Judicial Notice of, 289 Laws and Statutes Judicial Notice of, 289 Laws of Foreign Countries Judicial Notice of, 290 Laws of Other States Judicial Notice of, 289 Laying the Foundation meaning, 2 Leading Questions, 124 Adverse Party at Deposition, 129

balancing risk and advantage, 29 Limiting instruction limiting evixdence to particular issue, 30 When to give, 29 workers compensation coverage, 31 Limiting Instruction Conviction of Crime, 32 duty to request, 30 Insurance Coverage, 30 Pattery Jury Instruction 1 65, 30 Prior Statement, 31 unfair prejudice, 28

Assuming a Fact, 126

use of admission by one party, 30

Calling for Agreement, 125

Use of injury evidence during liability phase of

Did You or Did You Not, 126 Matters Not Covered on Direct, 130 On Cross of Favorable Witness, 130 On Cross-Examination, 127 On Direct of Adverse Party, 128 On Direct of Hostile or Partisan Witness, 130

bifurcated trial, 30 use of subsequent repairs, 30 Workers’ Compensation Coverage, 30 Line-Up Identification, 266 Hearing on admissibility, 385 Preconditions to admissibility, 386

Permissible Uses, 127

404

405

M

By conference with Court, 382 Challenging expert witness or opinion, 384

Making the Record Marking Excluded Documentary Evidence, 2 Mapp Hearing Motion papers to obtain, 385 marriage Presumption of, 301 Marriage License As Hearsay Exception, 275 material

Challenging line-up identification, 385 Civil Cases, 384 Criminal Cases, 382 Dead Man Statute, 384 Excluding anticipated hearsay testimony, 384 Excluding privileged material, 384 Form of motion, 382 Form of Motion, 382 Guarding against potential mistrial or reversal,

definition, 25 383 Medical Examiner's Report, 99 Medical Records Autopsy Report, 100 Doctor's Office Records, 96 Medical Examiner's Report, 99 of complaining witness in criminal case, 96 Memo Book Police Accident Report, 88 mental condition, 178 models, 118 morality, 188

Huntley Hearing, 388 MAPP HEARING, 385 Notice of motion time periods, 382 Permission to use demonstrative evidence, 384 Permission to use real evidence, 384 Redacting document or deposition, 384 Redacting hospital record, 384 Redacting police report, 384 Request for judicial notice, 384 SEARCH AND SEIZURE, 385 Time of Motion, 382

Mortality Tables Time to make motion, 382 As Hearsay Exception, 273 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 Narrative Answer at Deposition, 124 Negative identification testimony, 207

criminal cases, 162 required pretrial disclosure of expert information, 158 requiring defendant’s opinion, 158

NHTSA Regulations

Expert witnesses

Judicial Notice of, 291 Notice of Intention to Offer Psychiatric Testimony in

scientific evidence, 160 Expert Witnesses

Criminal Case, 162

admissibility, 138

O

Degree of certainty required, 149 Economic Testimony

Objections, 37 General Objections, 2 Repeating Specific Objection Unnnecessary, 2 Specificity, 38 Stating the Objection, 38 Timeliness, 37 Off the Record Appealability of Ruling, 1 Stipulations, 1 Offer of Proof, 2 OFFER OF PROOF, 36 Opinions As Constituting Admission, 217 Emotional State, 136 exceptions to rule against opinions, 135 expert witnesses, 138 basis for opinion, 142 custom and practice, 155

Effect of Inflation on future damages, 157 Present Value of Award for Loss of Future Earnings, 157 Value of Housewife’s Services, 157 Facts Established by Judicial Notice, 148 Factual Basis for Opinion, 144 foundation for, 142 Hypothetical Question, 148 Material Reasonably Relied on by Experts in the Field, 146 Nontreating Expert Physician, 148 Opinion on ultimate question, 153 Permissible Sources of Information, 142 Qualifications, 140 Reliance on Extrajudicial Materal, 145 Reliance on Hearsay, 147 Reliance on Scientific Tests or Syndromes, 145 Reliance on Technical Material, 145

406

407 Required Pretrial Disclosure of Expert Information

Extrinsic Evidence, 185 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 IN GENERAL, 135

As hearsay exception, 282 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 pain exclamation of, 237 pain in past declaration of, 237

Presumption, 296 Photograph Foundation, 3 Photographs, 55 Similarity, 57

parent-child privilege, 315

physician-patient privilege, 307

parol evidence, 113

Plain Error, 41

Partiality, 182

Plea Allocution

by prior or pending claim, 186 Circumstances showing, 185 conduct showing, 186

As Declaration Against Interest, 244 Police Accident Reports, 83 admission of, 85

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 Statement, Absence of, 88 prejudice defined, 28

to show partiality, 186 Prior consistent statement, 204 foundation, 205 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 against suicide, 298

prior consistent testimony 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 reading to explain inconsistency, 203 Reason for error, 195

Prompt complaint sexual assault, 207 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 use to impeach only, 203 Ways to use, 198 where witness admits the statement, 201 Prior Inconsistent Statement, 195 Prior Injuries Hospital Records, 94 prior or subsequent condition of object to prove condition of object at particular time, 27

Psychiatric Testimony Notice of Intention Late in Interest of Justice, 164 Notice of Intention to offer in criminal case, 162 psychologist-patient privilege, 313 Public Opinion Polls, 112 Proof of Reliability, 112 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 definition, 25

Questioning Calling for Agreement, 125

409

410 COURT’S ROLE, 134

written statement, 32 Regulations

Did You or Did You Not, 126

Judicial Notice of, 289

Direct, 122

relevance

LEADING QUESTIONS, 124

conditional, 26

Narrative Answer, 122 Inadmissible Information During, 123

consuming undue amount of time, 28 definition, 24

Objectionable Form 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 When to Object, 2

logical relevance, 25 misleading jury, 26 outweighed by confusion, 26, 29

R Reading Into the Record, 35 Real Evidence, 46 Foundation, 3 Fungible Goods, 50 Tampering, 49 Unique Objects, 48 When Viewable by Jury, 2 receipt of mail Presumption of, 298 Receipt of Money for Testimony, 189 Record Making the Record, 1 redaction

undue arousal of prejudice, hostility or sympathy, 28, See prejudice, hostility or sympathy unfair prejudice, 25 Relevancy Creating a side issue, 29 repairs, subsequent, 369 Repeating What Was Heard As Constituting Admission, 218 Rephrasing Question Objectionable as Leading, 127 Requiring defendant to give opinion, 158 Response to Question As Excited Utterance, 231 ria analysis of human hair, 68 Routine Business or Professional Tasks, 354 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 Sanction Prosecutors Failure to Disclose or Preserve:, 327 Sandoval hearing, 389 sanity presumption of, 301 School Records, 106 scientific evidence acceptance in scientific community, 160 daubert analysis, 161 frye hearing, 160 test of admissibility, 160 Scientific tests, 59 scientific treatises as hearsay exception, 271 Search and Seizure Mapp Hearing, 385 Showup Identification, 386 Burden of proof, 387 Suggestiveness and unrealiability, 387 Threshold showing required of prosecution, 387 Side Bar Conferences, 35 Similar Accidents, 355

social worker-client privilege, 315 Speed, 136 speed radar, 63 State of Mind as Hearsay Exception, 269 State Records, 105 Statement of intention as hearsay exception, 269 Statements Absence of in Police Accident Report, 88 Based on Hearsay, 217 Employee of a Party, 213 Party Statements, 213 Use Only Against Party Making Statement, 216 Statistical Materials As Hearsay Exception, 274 Stipulations Putting on Record, 1 STIPULATIONS, 35 Stock Market Reports and Quotations As Hearsay Exceptions, 274 Subsequent Accidents, 361 Subsequent Acts, 343 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 Trial Record

to Impeach Credibility, 377 to prove Both Manufacturing and Design Defect,

Echoing Answers, 34 Gestures and Indications, 34

373 to prove Control, 374

Overlapping, 34

to prove Feasibility of Alternative Design, 374

Parts Making Up, 33

Concession of Feasibility, 376

U

to prove Manufacturing Defect, 372 Subsequent Physical Conditions, 343 Subsequent Remedial Measures, 369 Impeachment, 370

Unavailability of Witness Establishing Unavailability, 260 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 Tape Recording Foundation, 3

Unfair surprise continuance to correct, 29 Unique Objects, 48

Tape recordings, 53

V

Tests in Courtroom, 58 Observational viewpoint, 58

Ventimiglia hearing, 390

412

413 Weather Observations

Video Pictures

As Hearsay Exception, 276

Day in the Life Film, 57

Wills

Similarity, 57

As Hearsay Exception, 281

view byjury, 53 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 Charge, 31

Voluminous Writings

written statement

Best Evidence Rule, 79

by party, 31

W Wade Hearing, 385

limiting instruction, 31, 32 refreshing recollection, 31

Former Testimony, 266

X

Line-Up identification, 385 Showup identification, 386

Xrays, 32, 100, 126

413