A hallmark of administrative law is that compliance
with the technical rules of evidence applicable in civil and
criminal actions is not required in adjudicatory proceedings.
SAPA §306(1), which governs the evidentiary standards
for adjudicatory proceedings, provides that "agencies need
not observe the rules of evidence observed by the courts,
but shall give effect to the rules of privilege recognized
by law." While SAPA §306(1) also authorizes an agency
to adopt a rule providing for the application of the rules
of evidence in an agency adjudication proceeding, no agency
has promulgated a rule to such effect. Additionally, the courts
have not required as an essential element of a fair adjudicatory
proceeding that an ALJ is bound by the rules of evidence.
The refusal to mandate compliance with the
rules of evidence, other than preserving the recognized common
law, statutory and constitutional privileges, takes into account
the major differences between judicial and administrative
adjudication. In that regard, the rules of evidence have as
a goal to ensure that a jury verdict is based on logic and
rationality. Thus, there are many evidentiary rules, with
numerous exceptions, that prohibit the admissibility of certain
offered evidence because it is believed that individual jurors
are unable to evaluate such evidence properly, perhaps by
giving it too much weight or by using it for punitive purposes.
Furthermore, such rules are difficult to understand in every
detail and difficult to apply; experienced judges will often
disagree as to whether offered evidence is admissible.
On the other hand, the ALJ has the knowledge
and ability to assess properly offered evidence and does not
need the protection that the rules of evidence are designed
to provide for jurors. The application of the technical rules
of evidence and the necessary, and surely frequent, determination
of questions regarding their application would be "inconsistent
with the objectives of dispatch, elasticity, and simplicity
which the administrative process is designed to promote."
in Government Agencies: Report of the Attorney General's Committee
on Administrative Procedure (Washington, DC 1941)]. Thus,
it has long been regarded as appropriate not to insist on
adherence to the rules of evidence in adjudicator proceedings.
Accordingly, the AL does not, and should not,
conduct a hearing through a rigid application of the technical
rules of evidence. Rather, the AL may allow evidence to be
admitted even though such evidence would be inadmissible at
a civil or criminal trial. Thus, hearsay, single level or
double level, may be received by the administrative law judge.
[See, e.g., A.J.
& Taylor Restaurant, Inc. v. State Liquor Authority, 214
AD2d 727, 625 NYS2d 623 (2nd Dep't 1995) (statement from person
absent from hearing regarding the purchase of alcohol by minors,
although hearsay, is admissible); Matter of Ribya "BB",
243 AD2d 1013, 663 NYS2d 417 (3rd Dep't 1997) (statement from
person absent from hearing regarding what someone else told
her about the minor's treatment, although double-level hearsay,
is admissible)]. Similarly, written reports
may be received. [See,
e.g., Gray v. Adduci, 73 NY2d 741, 536 NYS2d 40 (1988) (arresting
officer's written report concerning person's conduct, although
hearsay, is admissible); Andersen v. Department of Motor Vehicles,
227 AD2d 617, 643 NYS2d 598 (2nd Dep't 1996) (report of officer's
safety inspection, although hearsay, is admissible)]. Additionally,
statistical evidence may be received, [See,
e.g., Enrico v. Bane, 213 AD2d 784, 623 NYS2d 25 (3rd Dep't
1995); Sunset Taxi Co. v. Blum, 73 AD2d 691, 423 NYS2d 231
(2nd Dep't 1979)], as well as copies of documents,
or documents that have been altered, [See,
e.g., R&D Equipment Leasing Company, Inc. v. Adduci, 220
AD2d 900, 632 NYS2d 332 (3rd Dep't 1995) ("best evidence"
rule does not bar admissibility of a copy of document); Swick
v. New York State and Local Employees' Retirement System,
213 AD2d 934, 623 NYS2d 960 (3rd Dep't 1995) (altered document
may still be admissible)], even though such evidence
might not be admissible at a trial.
When the ALJ receives evidence, even though
the receipt of such evidence would be barred in a court of
law, the important and practical question for the ALJ to determine
is what weight, if any, should be given to it. The weight
of evidence on a disputed issue is on that side of the issue
on which the evidence is more probative. In determining how
much weight to give to evidence, a common sense approach must
Although the ALJ is free to receive any offered
oral or non-testimonial evidence, unless barred by an applicable
privilege, it does not necessarily follow that the ALJ should
receive any and all offered evidence. To admit any and all
evidence that may be offered, however remote from the issues
to be determined and however unreliable or untrustworthy,
means not only delay but also results in intolerably long
and confused records. Additionally, erroneous determinations
could be reached as a result.
Consequently, SAPA §301 provides for,
and the courts authorize, the exercise of discretion by an
ALJ as to whether or not offered evidence should be admitted.
[See, Sowa v. Looney,
23 NY2d 329, 333, 296 NYS2d 760, 764 (1968)]. If
the offered evidence is irrelevant or cumulative or is without
any demonstrable reliability, it may be excluded. [SAPA
§306(1); Sowa v. Looney, 23 NY2d at 333-334, 296 NYS2d
at 764-765, supra.].
For instance, an ALJ may exclude offered evidence
on the ground that it is irrelevant, [See,
e.g., Flynn v. Coombe, 239 AD2d 725, 657 NYS2d 494 (3rd Dep't
1997)(testimony of proposed witnesses was properly excluded
as they had no personal knowledge of the incident in issue,
rendering their testimony irrelevant); Amato v. Department
of Health, 229 AD2d 752, 645 NYS2d 600 (3rd Dep't 1996) (in
OPMC proceedings to revoke physician's license for negligent
and incompetent treatment of five obstetrical patients, testimony
of other patients regarding their treatment by physician properly
excluded as irrelevant); Goomar v. Ambach, 136 AD2d 774, 523
NYS2d 238 (3rd Dep't 1988) (exclusion of grand jury no bill
against physician on ground of irrelevancy proper as such
evidence did not prove/disprove physician's alleged conduct)],
or cumulative. [See, e.g.,
McKinley v. Stinson, 237 AD2d 815, 655 NYS2d 669 (3rd Dep't
1997) (in view of fact that 4 witnesses testified on behalf
of petitioner, exclusion of additional witnesses who would
testify similarly was properly excluded as cumulative); Gonzalez
v. Department of Health, 232 AD2d 886, 648 NYS2d 827(3rd Dep't
1996) (exclusion of exhibits was proper as their subject matter
was fully addressed by expert witnesses)]. Similarly,
irrelevant or repetitious cross-examination can be excluded.
[See, e.g., Gonzalez
v. Department of Health, supra; Amato v. Department of Health,
supra]. The ALJ may also exclude offered
evidence on the ground that it is hearsay. [See,
e.g., Achatz v. New York State and Local Police and Fire Retirement
System, 239 AD2d 857, 657 NYS2d 521 (3rd Dep't 1997) (medical
progress reports of petitioner's nontestifying treating physician
properly excluded as hearsay as counsel for respondent would
have been denied opportunity to cross-examine physician regarding
key findings therein); Gross v. DeBuono, 223 AD2d 789, 636
NYS2d 147 (3rd Dep't 1996) (ALJ did not err in precluding
petitioner physician's expert from testifying as to petitioner's
description of his examination of patients, as petitioner
elected not to testify and he was simply trying to introduce
his own self-serving statements through another witness)].
The ALJ must exercise intelligent judgment
as to whether offered evidence should be excluded because
it is either irrelevant or unreliable. As in determining how
much weight, if any, should be accorded to admitted evidence,
a common sense approach must be used in assessing relevancy
and reliability. However, where the ALJ has some doubt as
to the evidence's relevancy or reliability, the evidence should
be received and appropriate weight given to it in arriving
at a decision. When in doubt, it is better to have a complete
record, rather than a possibly incomplete one.
Certain Evidentiary Rules Are to Be Given
SAPA §306(1) specifically provides that
the privileges recognized in law are to be given effect in
adjudicatory proceedings. Thus, New York State law privileges
whether created under statutory enactment or the common law,
as well as constitutional privileges, whether federal or state,
are to be applied by the ALJ. A fuller discussion of the privileges
is provided infra.
The practice in New York in adjudicatory proceedings
has traditionally been to permit agencies to take judicial
notice of everything of which courts could take judicial notice
and to take official notice of matters within the specialized
expertise of the involved agency. [See,
Borchers and Markell, New York State Administrative Procedure
and Practice (2d ed) §3.9].
SAPA §306(4) codifies this dual practice
for adjudicatory proceedings, provided that notice and opportunity
to respond when a matter within its specialized expertise
is officially noticed, and calls it "official notice."
The concept of judicial notice, as developed
by the courts, allows only clearly indisputable facts to be
the subject of judicial notice. Examples are such facts as
are so generally known or of such common notoriety that they
cannot be reasonably the subject of dispute, and specific
facts and propositions of widely known and generalized knowledge
which are capable of immediate and accurate determination
by resort to easily accessible sources of indisputable accuracy.
Additionally, taking judicial notice of records
found in standard almanacs, official government weather reports,
the contents of standard dictionaries, the wording of statutes
and constitutions are classic instances where official notice
can be taken. Thus, matters of fact used as historical events;
the course and laws of nature; mortality tables; intoxicating
nature of beverages; geographical facts; census statistics;
meterological data on a certain day; official weather reports;
existence of departments and political subdivisions of government;
public officers, past and present; and meaning of words, phrases
and abbreviations can be judicially noticed. Matters of law,
such as statutes of state; acts of congress; regulations;
court procedures; authority of public officers; laws of other
states; and laws of foreign countries, if a party requests
it and furnishes the court with sufficient information to
enable it to comply with the request, can be judicially noticed.
[See, CPLR §
As to matters that are within the specialized
knowledge of the agency, the case law gives a broad freedom
to which matters can be noticed, so long as the requisite
notice is given. [See,
e.g., Cohen v. Ambach, 112 AD2d 497,490 NYS2d 908 (3rd Dep't
1985)]. Thus, official notice can be taken
of earlier agency proceedings [See,
e.g., Bracken v. Axelrod, 93 AD2d 913, 461 NYS2d 922 (3rd
Dep't 1983)], and matters that would otherwise
be the subject of expert testimony. [See,
e.g., Cohen v. Ambach, supra].
When an ALJ intends to take official notice
of a matter pursuant to SAPA §306(1), it is the ALJ's
duty to state on the record the matters of which he/she intends
to take official notice and to afford parties the opportunity
to argue, comment upon, controvert or distinguish the propriety
of taking such notice or to limit the extent and contents
of the matter to be noticed. They may not succeed but they
have the right to know everything that is being considered.
The taking of official notice by an ALJ is
discretionary. As the taking official notice at the request
of an agency may work an unfair advantage to an adverse party,
especially where the parties are not represented, it should
be exercised with caution.
In specific instances, the Legislature may
provide that certain evidence shall or shall not be received
in adjudicatory proceedings. [See,
e.g., N.Y. Publ. Health L. §10(2) (written reports of
investigators concerning alleged violations and investigations
"shall be received" in all "courts and places")].
Where such statutes are applicable to an adjudicatory proceeding,
they must be given effect.
Issues of admissibility also arise when evidence
that is offered has been obtained in violation of a statute
or an exclusionary rule based on a violation of a constitutional
provision. For example, CPLR §4506 prohibits the use
of evidence obtained through the use of an illegal wire tap
at an adjudicatory proceeding as well as a civil or criminal
action. [See, LaPenta
v. State Liq. Auth., 24 NY2d 647, 659-661, 301 NYS2d 584,591-593
(1969)]. With respect to evidence seized
in violation of a constitutional provision, e.g.,
illegal search or seizure in violation of the Fourth Amendment,
such evidence is inadmissible at an adjudicatory proceeding
if the person who committed the violation was an employee
of the agency conducting the proceedings, or a police officer
acting as an agent of the agency. [See,
Finn's Liq. Shop v. State Liq. Auth., 24 NY2d 647, 658-659,
301 NY2d 584, 589-592 (1969) (employee); Malik v. State Liq.
Auth., 24 NY2d 647, 661-663, 301 NYS2d 584, 593-596 (1969)
Where the evidence was obtained unlawfully
by police officers, but they were not at the time the evidence
was seized agents of the agency conducting the proceeding,
a "deterrence analysis" is employed to determine the evidence's
admissibility at the proceeding. [See,
Boyd v. Constantine, 81 NY2d 189, 597 NYS2d 605 (1993)].
This analysis considers whether the police officers could
have foreseen when they engaged in the conduct constituting
the violation that the person involved would be subject to
an adjudicatory proceeding as a result. If they could not
have foreseen such result, the evidence is admissible, and
if they could, it is inadmissible. [Id.].
The ALJ and the Rules of Evidence
From the above discussions it can be seen
that the ALJ is neither obligated to apply the rules of evidence
nor obligated to ignore them, except for privileges. As a
practical matter, the admission or exclusion of offered evidence
is committed to the sound discretion of the ALJ. So long as
the ALJ admits only relevant or reliable evidence, and excludes
irrelevant or unreliable evidence regardless of the evidence's
admissibility under the rules of evidence, the ALJ will assure
a fair, as well as an expeditious hearing.
While the practice in adjudicatory proceedings
is not to require the rules of evidence to be followed, knowledge
of the rules of evidence and their underlying policies, and
an understanding of how they would apply to offered evidence
is important. Such knowledge and understanding will be most
helpful to the ALJ in determining not only whether the offered
evidence has relevance or demonstrable reliability, but also
how much weight, if any, should be given to evidence when
it is received. Thus, knowledge that offered evidence would
be excluded or admissible by application of the rules of evidence
and why such a result occurs would certainly be a great aid
in making rulings or deciding cases.
What follows in Part Two is a rather truncated
discussion of the basic evidentiary rules. It is intended
as an introduction and guide to the rules which the ALJ will
most frequently encounter at adjudicatory proceedings, and
hopefully will assist the ALJ in making his/her rulings on
Evidence is the legal term which covers all
of the information and facts adduced in a case, be it testimony
of witnesses, or documents or other objects identified by
witnesses, or otherwise admissible and presented to the court
to prove or disapprove the facts in issue. Evidence is the
medium of proof.
Proof is the effect or result of evidence
in convincing the mind or the trier of the facts. It is the
conclusion arrived at by a consideration of the evidence.
Facts and Circumstances. A fact is
what a witness has seen, heard, smelled, felt or tasted. Circumstances
are collections of facts.
Inferences may be drawn from facts and circumstances.
Inferences are reasonable deductions or conclusions flowing
logically from facts which have been proved.
Opinions are statements a witness makes and
believes what occurred or did not occur. They may be based
on two or more separate facts.
A presumption is a rule of law requiring that
if one (the "basic") fact or set of facts is established,
the trier of fact must find that another (the "presumed")
fact also exists unless the trier of fact is persuaded that
the latter does not exist. The standard of persuasion is generally
a preponderance of evidence, unless a higher burden is required
Testimony is the oral part of evidence consisting
of the statements of witnesses made under oath.
Non-testimonial evidence is evidence which
is not testimonial in nature and is admitted into evidence
as exhibits. It includes:
Documentary Evidence consists of writings,
instruments, records and documents of all kinds, including
Real Evidence is evidence of which the trier
of the facts acquires knowledge by personal observation and
inspection of a thing or object to which the testimony refers.
It may be a physical object, inspection of premises or exhibition
of parts of the body.
Demonstrative Evidence is evidence which illustrates
for the trier of fact testimony or non-testimonial evidence
that is presented to the trier of fact, and helpsthe trier
of fact understand such other evidence. It includes photographs,
maps, sketches, diagrams, motion pictures, videotapes, x-rays,
computer generated animations and experiments.
Direct Evidence is proof of the facts in issue,
communicated to the trier of the facts by witnesses, having
actual knowledge of them by means of their senses. It is that
evidence which, without interference or evidence of any other
facts, tends to establish directly a fact in issue.
Circumstantial Evidence is proof of collateral
facts, where circumstances are shown, from which the inference
may be drawn that the principal or essential facts are true
and existed, in such a way that the proof is irreconcilable
with any other theory that can be present.
Substantive Evidence or Evidence-in-Chief
is evidence that is adduced for the purpose of proving a fact
in issue, thus enabling the party offering the evidence to
meet its burden of production on a fact in issue.
Impeaching Evidence is evidence that is adduced
for the purpose of discrediting a witness on documentary evidence.
It does not help a party in meeting its burden of production.
Probative Value of Evidence refers to the
tendency, if any, of evidence to make a fact of consequence
in the action more or less probable than it would be without
Weight of Evidence refers to how much probative
value admitted evidence should be accorded, taking into account
credibility, and logic and reason, by the trier of fact.
Sufficiency of the Evidence refers to whether
the evidence admitted on behalf of a party is sufficient to
satisfy the party's burden of production.
A presumption is a rule of law requiring that
if one (the "basic") fact or set of facts is established,
the trier of fact must find that another (the "presumed")
fact also exists unless the trier of fact is persuaded that
the latter does not exist. A presumption differs from an inference
in that an inference permits, but does not require as does
a presumption, a trier of fact to conclude that another fact
has been established. Presumptions, the source of which is
the common law and legislative enactments, are recognized
for policy reasons, generally because they reflect natural
probabilities based on logic and experience.
Generally, once the basic facts are proven
and accepted by the trier of facts, the presumption arises.
At that point, if the party against whom the presumption works
does not establish by a preponderance of evidence that the
presumed fact does not exist, the jury must find that the
fact exists. If the party rebuts the presumption, the presumption
leaves the case entirely. All that remains of the presumption
is the possibility that the jury may draw an inference from
the basic facts that the presumed fact exists. However, it
must be noted that many of the numerous presumptions recognized
in the law have their own set of rules which differs from
this view of the general operation of presumptions. As a result,
each one that is in issue should be scrutinized.
It is impossible to enumerate all the presumptions
recognized in the law. Some of the more common ones are:
It is presumed that a public official, a fiduciary,
an officer or director of a corporation will not do anything
contrary to his/her official duty or fail to do anything which
his/her official duty requires him/her to do;
It is presumed that a death was not brought
about by suicide.
For joint accounts it is presumed that the
account is the property of those named.
It is presumed that a public employee who
stays out of work during a strike is engaged in striking.
It is presumed that a person died at the end
of five years of unexplained absence.
Knowledge of the contents of their books is
presumed when members of a firm have access to them and an
opportunity to know how their accounts were kept.
Mailing of letters: It is presumed that a
properly addressed and stamped envelope, deposited in a post
office or regularly maintained post box, reaches its destination.
If the proof is that such mailing was in a course of business
or office practice, it raises the presumption that it was
in fact mailed. However, there must be a foundation laid showing
that the letter was placed in the usual office receptacle
for outgoing mail and the person whose duty it is to mail
such letters testifies that he/she always mails such letters
placed in such receptacle, and what procedure he/she follows.
Proof of ownership of a motor vehicle creates
a presumption that the person operating it, did so with the
Where alleged services are rendered by a relative
or close friend, it is presumed in the absence of agreement,
that they were rendered voluntarily, gratuitously and without
expectation of pay therefor.
Whether to apply an otherwise applicable presumption
is in the discretion of the ALJ. Unless there is some good
reason not to give effect to the presumption, it should be
The linchpin of all evidence law is the rule
that only relevant evidence is admissible and irrelevant evidence
is excluded. Relevant evidence means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable
than it would be without the evidence. This definition recognizes
that relevancy is not an inherent characteristic of an item
of evidence but exists only as a relation between an item
of evidence and a fact that may be properly proved in an action.
Under the definition, to be relevant, the
evidence must tend to prove a fact that is of consequence
to the litigation. What is of consequence to the litigation
will necessarily turn upon the applicable substantive law
within the framework of the pleadings and the theory of the
action. The fact to which the evidence is directed need not
be an ultimate fact or a vital fact, or be in dispute. It
suffices that the fact is of some consequence to the disposition
of the litigation.
The definition further provides that relevancy
also depends upon whether the evidence has "any tendency to
make the existence" of the fact of consequence "more probable
than it would be without the evidence." When the evidence
has such tendency it is considered to have probative value.
It is not necessary that the evidence by itself proves the
fact for which it is offered or makes the fact more probable
than not. A minimal probative tendency is all that is required.
With respect to the tendency element, the
test is essentially one of logic and reason. The ALJ or hearing
officer, drawing upon his or her own experience, knowledge
and common sense, asks whether some logical, rational relationship
exists between the offered evidence and the fact to be proven.
If such relationship exists, the evidence is relevant, and,
if not barred by some other evidentiary rule, admissible.
If there is no such relationship, the evidence is irrelevant
and excluded. Once the evidence is admitted, it is for the
trier of fact to determine how much weight is to be accorded
Even though evidence is relevant, the hearing
officer possesses the discretion to exclude it. In that regard,
the court may exclude relevant evidence which may have a tendency
to cause undue prejudice, confuse the issues, would be cumulative,
or unduly consume time, when it is determined that the evidence's
probative value is substantially outweighed by one or more
of these factors. Under this standard, where probative value
is slight, and the danger of undue prejudice, etc., is great,
exclusion of the evidence would be warranted, and where the
probative value is high and the danger of undue prejudice,
etc., is slight, exclusion would not be warranted.
Based on experience and policy, the courts
and the Legislature have developed special relevancy rules
governing specific situations. Some of these rules are as
A party's failure to produce a witness or
document when the circumstances indicate it would be logical
to do so gives rise to an inference that the witness or document
was not produced because the witness or document would have
provided facts unfavorable to the party. As a result, the
other party may comment on the failure to produce and obtain
an adverse inference charge, which permits the trier of fact
to consider as relevant evidence the inference and, further,
draw the strongest inference against the party.
To obtain such an adverse inference, it must
be established that the missing witness or document would
be expected to testify favorably or be favorable on behalf
of the party who has not called him/her or produced the document;
that such testimony or document would be non-cumulative; and
that the witness or document is available to the party who
has not called him/her or produced the document.
The rule is applicable in civil and criminal
cases, but as the defendant in a criminal case has a constitutional
right not to testify, it is a violation of that constitutional
right to comment on an exercise of that right.
Similar to the inference that may arise when
a party fails to produce a witness or document, a party's
destruction of relevant evidence gives rise to an inference
that the destroyed evidence would have not supported, or would
have been adverse to, the party's case.
When a party in a civil or criminal case asserts
a privilege to prevent disclosure of testimony or documents,
comment upon such invocation of the privilege and an adverse
inference from the invocation is permitted. The adverse inference
to be drawn is similar to the adverse inference permitted
as the result of a failure to call a witness or produce a
document. The inference is permitted to be drawn even when
the Fifth Amendment privilege against self-incrimination is
invoked, except when the defendant invokes it.
Evidence of a person's habit or proof of business,
professional or other institutional practice or custom is
admissible as proof that the habit, or practice or custom,
was or would have been followed under the same set of circumstances
on a specific occasion. Thus, evidence that a person had the
habit of engaging in certain conduct is admissible to prove
that the person engaged in that conduct at another time. Similarly,
evidence that an institution's practice was to have an employee
perform a certain task is admissible to prove that a certain
employee performed that task on a given occasion.
Evidence that tends to establish that a person
has been negligent on prior occasions is inadmissible to prove
that the person was negligent on another occasion. Similarly,
evidence that prior accidents have occurred involving a party's
product or property is inadmissible to establish that the
party was negligent on another occasion with respect to the
product or property. However, evidence of such prior events
or accidents may be admissible to establish other facts, such
as existence of a dangerous condition or notice.
Evidence of a person's character, i.e., a
person's disposition or propensity to engage or not engage
in various kinds of conduct, whether consisting of reputation
evidence or evidence of prior acts, is inadmissible to prove
that the person acted in conformity or in accordance with
his character on a particular occasion. Thus, in an automobile
accident action, a plaintiff may not show that defendant has
a record of numerous traffic infractions or accidents to prove
defendant was driving negligently at the time of the accident,
nor may the defendant offer evidence of an excellent driving
record, i.e., no tickets or accidents, to show defendant
was driving carefully at the time of the accident. In a criminal
action, the prosecutor may not show that the defendant has
a lengthy criminal record to establish that the defendant
is guilty of the crime charged.
While such character evidence may have probative
value, it is excluded on policy grounds. The view is that
such evidence may distract the trier of fact from the main
issue of what occurred on the particular occasions, and induce
the trier of fact to punish a "bad" person or reward a "good"
person because of his/her character, regardless of the evidence
in the case.
However, where the evidence of prior acts
is relevant for a purpose other than to show conformity or
propensity, the evidence is admissible with respect to that
person, even though it reveals or suggests a conformity or
propensity inference. Such other purposes includes motive,
intent or accident, establishment of identity, negate mistake
and establishment of a common plan or scheme. A court may
nevertheless exercise its discretion and exclude the evidence
if it concludes that the evidence's probative value is substantially
outweighed by the danger of unfair prejudice, etc.
As provided by CPLR §4519, a person is
barred from giving testimony, albeit relevant, where the person,
who is interested in a transaction with a decedent, desires
to testify against the estate of the decedent as to a transaction
with the decedent. The statute is complex and can be parsed
Generally upon a trial or proceeding, a party
or person interested in the event, or a person, from, through,
or under whom such a party or interested person derives his
interest or title, by assignment or otherwise, shall not be
examined as a witness in his/her own behalf or interest, or
in behalf of the party succeeding to his/her title or interest;
Against the executor, administrator or survivor of a deceased
person or a person deriving his title or interest from through,
or under a deceased person, by assignment or otherwise; Concerning
a personal transaction or communication between the witness
and the deceased person; Except where the executor, administrator
or survivor so deriving title or interest is examined in his/her
own behalf or the testimony of a deceased person is given
in evidence concerning the same transaction or communication.
However, the personal representative of the deceased may waive
the privilege by a failure to object on the proper ground,
or by calling the survivor to the transaction or communication
as a witness; but the testimony is confined strictly to the
same transaction or communication.
SAPA §306(l) provides that the ALJ may
admit relevant evidence, and exclude irrelevant evidence,
as well as unduly repetitious evidence. Practicality also
suggests that the ALJs apply the basic relevancy rule; otherwise
proceedings could last for an untolerably long time. Whether
evidence is relevant is a judgment call for the ALJ, committed
to the ALJ's common sense. To the extent a liberal view of
relevancy is taken, the question then becomes how much weight
the admitted evidence is to be accorded.
With respect to the special relevancy rules,
to the extent they are inclusive in nature, they suggest that
they ordinarily should be applied in an adjudicative proceeding.
v. Sobol, 209 AD2d 823, 619 NYS2d 355 (3rd Dep't1994) (adverse
inference from party's failure to testify at hearing may be
drawn); DeBonis v. Corbisiero,155 AD2d 299, 547 NYS2d 274
(1st Dep't 1989) (party's invocation of Fifth Amendment privilege
against self-incrimination may form basis of an evidence inference
at a hearing)]. To the extent the special
relevancy rules are exclusionary, they can, but not mandatorily,
be applied. [Compare,
Amato v. Department of Health, 229 AD2d 752, 645 NYS2d 600
(3rd Dep't 1996), (character evidence, testimony of two of
petitioner's patients, that they received excellent care admitted
in proceeding involving petitioner's other patients) with
Freymann v. Board of Regents, 102 AD2d 912, 477 NYS2d 494
(3rd Dep't 1984) (petitioner's prior disciplinary conviction
properly admitted; character evidence rule is not applicable
in adjudicatory proceedings)].
In the end, admissibility is committed to the
discretion of the ALJ.
The hearsay rule is actually two separate
rules, namely, evidence which is hearsay is inadmissible unless
there is an exception which is applicable. The rule is premised
on a recognition that hearsay evidence itself lacks sufficient
reliability or trustworthiness to be admissible, but there
are instances in which the circumstances surrounding the making
of the hearsay statement assure sufficient reliability or
trustworthiness to warrant its admissibility.
Hearsay may be defined as a statement - an
oral or written assertion, or non-verbal conduct intended
as an assertion - made by a person other than while testifying
at a trial or proceeding which is offered in evidence to prove
the truth of the matter asserted. Expressed another way, it
is evidence which seeks to establish the existence of a fact
based not upon the witness's own personal knowledge or observation
but on what someone else said. An example is: W, a witness,
testifies as to what B said to W about D, a defendant at the
trial, namely that B, who is not present to testify, saw D
steal a car. This testimony is being offered to establish
that D stole the car, the crime for which D is being tried.
Such testimony would be barred by the hearsay rule.
The critical aspect of this testimony to D
is what B allegedly saw. D will certainly want to know if
B actually observed what is alleged he saw. How good was B's
eyesight and how close was B to D when he observed the alleged
conduct? How good was B's recollection of the observed conduct
when he spoke to W? Does B harbor any bias or prejudice towards
D? Is B a credible person? B, of course, is not available
for cross-examination to test the possible problems raised,
which go to B's perception, memory and veracity. Additionally,
B's statements were not made under oath, and the jury cannot
assess his demeanor. Permitting W to testify as to what B
said would deprive D of an opportunity to test B's alleged
Barring hearsay evidence expresses the common
law preference that proof in civil and criminal actions be
elicited under conditions where the witness is physically
present before the trier of fact and subject to cross-examination
by the party against whom the proof is being offered. Observance
of these conditions permits the party affected by the testimony
to test before the trier of fact the trustworthiness of the
witness's testimony, which includes the witness's perception,
memory, narration, and more generally his veracity, i.e.,
is the witness telling the truth?
However, when circumstances surrounding the
making of the hearsay statement tend to indicate that the
hearsay is reliable or trustworthy, the statement may be admissible
under an exception to the hearsay rule. The common law and
legislative enactments recognize many exceptions in differing
circumstances. Generally speaking, these exceptions recognize
that when those requirements of the exceptions are met, it
is unnecessary to cross-examine the person who made the statement
or have the person take an oath in the presence of a jury.
Compliance with the exceptions' requirements dispenses with
the need for cross-examination and oath, as such requirements
establish equivalent guarantees of reliability or trustworthiness.
Hearsay, as discussed above, has three distinct
elements, namely (a) an oral or written assertion, or non-verbal
conduct intended as an assertion; (b) made or done by a person
other than a testifying witness, and (c) which is offered
in evidence to prove the truth of the matter asserted. These
elements are stated in the conjunctive.
As a result, the hearsay rule does not render
inadmissible every statement repeated by a witness as made
by another person. Where the mere fact that a statement was
made or a conversation was had is independently relevant,
regardless of its truth or falsity, such evidence is not deemed
hearsay, and is otherwise admissible.
It is, therefore, important to determine the
purpose for which the evidence is being offered. If the evidence
is being offered to establish the truth of the matter asserted
therein, it is hearsay. Where the evidence is offered for
a non-truth purpose, it is not hearsay, and so long as the
non-truth purpose is relevant, it may be admissible.
Some examples may be given. X said to D, "Watch
out for the hole in the roadway." When offered, not to prove
there was a hole in the roadway, but to prove that D was put
on notice of the possible existence of a hole such evidence
would not be hearsay, and would be admissible if D's notice
is relevant. D said to X, "I am the Pope." When offered to
prove that D is mentally unsound, and such status is relevant,
the evidence is not hearsay and is admissible. In this situation,
the words indicate circumstantially the state of mind of the
speaker, D. Additionally, certain words, e.g., the
words of a libel or slander, of an offer, of an acceptance,
of a bribe, when spoken, have independent legal significance.
When spoken, they create legal rights and liabilities. Thus,
in an action for slander, where the plaintiff alleges that
the defendant called him a thief, a witness who heard the
defendant make that statement may testify to it. Obviously,
a statement offered for that purpose is not offered for its
truth, but rather to establish the essence of the slander
In these instances where the evidence is being
offered to prove that a statement was made, and the making
of the statement is relevant, the inability to cross-examine
the maker of the statement is not all that significant. The
reason is that the witness who said he/she heard the statement
is present for cross-examination, and whether the statement
was actually made can be tested through that witness.
There are many hearsay exceptions that are
recognized in New York law. They are recognized in the common
law, contained in Article 45 of the CPLR as well as various
statutes in the consolidated laws. A few significant ones
will be mentioned here.
It is important to stress that if the evidence
is hearsay, it is inadmissible, unless it satisfies one of
the exceptions. Furthermore, if there are several links in
the chain of hearsay (e.g., A told B, who repeated
it to C, who then passed it on to D), each link will have
to be independently justified under an exception.
An admission is a statement or act which amounts
to the affirmance of some relevant fact, where such affirmance
operates against the interest of the party making it or doing
it. It is receivable only against the party who made it. A
witness may testify to a party's admissions because it is
generally regarded that such admission is reliable, i.e.,
a party would not say things about himself/herself unless
they were true.
Where the act or statement of a party is received
as an admission, the party against whom it is admitted has
the right to offer an explanation. The weight of an admission
is for the trier of fact. Thus, the party may testify that
the statement was made through mistake, or that it was made
without any personal knowledge, and the trier of fact may
credit that testimony.
An admission may be by silence when the person
hears and fully comprehends the force and effect of the words
spoken and when he/she is at full liberty to reply thereto
and would naturally be expected to deny it if he/she considered
it false. No presumption of acquiescence would arise if the
person at the time of the statement was asleep, intoxicated,
deaf, unable to fully understand the language used, or incapacitated
or in any way deprived of the freedom or opportunity to reply.
There are also judicial admissions, formal
Examples of a formal judicial admission are
admitting the genuineness of a paper or photograph; admission
under an agreed state of facts or a stipulation (unless relieved
therefrom by the court); and, facts admitted by the pleadings
(complaint, answer, reply). Such admissions are conclusive
of the facts admitted in the action in which they are made,
unless a court orders otherwise. An informal judicial admission
may be facts incidentally admitted in the course of a trial
in the same or another case or facts admitted in a deposition
or affidavit. Such admissions are not conclusive.
Statements made by a party's employee or agent
are receivable against the party as the party's admission
only if they were made within the scope of the employee's
or agent's authority, i.e., when the statement was authorized
to be made by the employer, expressly or impliedly.
Under New York's business records exception,
which is codified in CPLR 4518, any writing or record, entry,
memorandum or any act, transaction, occurrence or event is
admissible in evidence as proof of said act, occurrence or
event, if it was made in the regular course of any business,
profession, occupation or calling of any kind and it was the
regular course of such business, to make such memorandum or
record at the same time of such act, transaction, occurrence
or event, or within a reasonable time thereafter. It is emphasized
that this exception to the hearsay rule embraces only those
entries which are made systematically in the regular routine
and usual course of the business, etc. It does not embrace
entries made as isolated transactions or incidents or for
a specific purpose which is the subject of the litigation
Under this exception, a record in any form
that describes acts, events, conditions, opinions, or diagnoses
is admissible as an exception to the hearsay rule if four
requirements are met. First, the record must be "made at or
near the time" of the event or opinion being recorded. Second,
the maker of the record must either himself/herself have personal
knowledge of the matter being recorded and a duty to record
it, or must have received the data from others with personal
knowledge and under a duty to transmit the information. Third,
the record must be kept in the course of a regularly conducted
business activity. Finally, it must be shown that it was the
regular practice of the business to make the record. The requirements
of the exception guarantee trustworthiness since business
records are customarily checked; the regularity and continuity
of such entries produce habits of precision; the business
activity functions in reliance on the records; and employees
of the entity are charged with recording and reporting accurately
as part of their job.
It must be recognized that this paragraph
does not by itself encompass entries which, although recorded
in the regular course of business, contain information supplied
by an outsider not under a business duty to report. This is
not, however, to say that an entry based upon information
supplied by an outside volunteer can never be admitted. If
the outsider's statement satisfies the requirements of another
hearsay exception, the statement may be admissible.
Examples of records that may be admissible
as business records are books of account; written memoranda
of public officers; and, hospital records covering diagnosis,
prognosis, treatment and certified bills.
Under the common law and various specific
statutory provisions, books, documents and records of a public
nature required to be kept are admissible under the public
records exception. Thus, birth, marriage and death certificates
are specifically made admissible. Additionally, public records
in general may be admissible under the business records exception.
Under recent judicial decisions, an exception
has been recognized for public investigative reports as to
their findings and conditions. [See,
e.g., Cramer v. Kuhns, 213 AD2d 131, 630 NYS2d 128 (3rd Dep't
1995) (NHTSA report concerning kick stands on motorcycles);
Bogdan v. Peekskill Community Hospital, 168 Misc2d 856, 642
NYS2d 478 (Sup. Ct. 1996) (OPMC findings)]. Such
reports are presumptively reliable, but the courts have broad
discretion in determining their relevancy and reliability.
Under CPLR 4517 prior testimony by a witness
in an action who is now unavailable to testify is admissible
provided such prior testimony was under oath and subject to
cross-examination and was on the same subject matter in a
prior proceeding involving the same parties. Deposition testimony
of a witness is not admissible under this statute but will
usually be admissible under CPLR 3117. Interestingly, testimony
taken at administrative proceedings is not covered by CPLR
4517. [See, Fleury v.
Edwards, 14 NY2d 334, 251 NYS2d 647 (1964)].
New York recognizes the "excited utterance"
exception. The requirements of admissibility under this exception
are: (1) the occurrence of an event or condition sufficiently
startling; (2) a statement brought about by the event or condition
and relating to it; and (3) the absence of time to fabricate.
There is no requirement that the declarant be a participant
in the event or condition. Thus, the statement may be made
by a bystander who observes the startling event.
Such statements are deemed to have a high
degree of reliability because they are the impulsive and unreflective
responses to an event, which militates against their being
made after thought and deliberation.
Hearsay may be received, or it may be rejected
by the ALJ in the ALJ's discretion. How should an ALJ exercise
his/her discretion on hearsay objections?
The policies underlying hearsay and its exceptions
give some guidance. In that regard, the hearsay rule is not
a rule that operates against common sense, and when the evidence
is clearly reliable, albeit hearsay, the ALJ can admit and
give the evidence the weight it deserves. The indicia of reliability
include–corroboration of the statement's content, in
whole or in part, by other evidence; the lack of any basis
from which it can be said there is a reason to falsify; and
the existence of facts and circumstances which show that a
hearsay exception is available. The hearsay statement may
also be discounted when there appears to be no legitimate
reason why the person who made the statement is not testifying.
In short, the ALJ is asking whether the statement "rings true."
If it does, it can be admitted, and if it does not, it can
It should also be kept in mind that if the
opposing party has no objection to the introduction of hearsay
statements, they can be recognized as evidence. The question
then becomes one of how much weight should be given to it,
which is answerable by considering the above-stated factors.
Additionally, hearsay statements, such as
affidavits attesting to certain facts, can be received as
to collateral issues, ones not affecting the relevant issues
in the proceeding.
New York law recognizes numerous evidentiary
privileges. Privileges have been recognized in order to protect
or encourage a specific relationship or interest as a matter
of public policy. In that regard, privileges foster relationships
and interests that are deemed to be of sufficient social importance
so that nondisclosure of the privileged communication or matter
is accepted even though the cost of doing so is to keep relevant
and reliable evidence from a jury.
There are several sources of privileges. Article
45 of the CPLR contains the principal privileges: spousal
[CPLR 4502], attorney-client
social worker-client [CPLR
4508], library records [CPLR
4509], and rape crisis counselor-client
There are also many privileges throughout the consolidated
laws. [See e.g.,
Civ. Rts. Law §79-h (professional journalists and newscasters);Civ.
Rts. Law § 79-j (medical records in computer-based multi-state
information system); DRL §114 (adoption records); PHL
§2301(3) (records of persons with sexually transmitted
diseases); PHL §3371 (certain records relating to controlled
substances); Soc. Serv. L §136(2) (records of public
assistance recipients)]. Additionally,
several privileges have been judicially developed: parent-child,
trade secrets, official information.
As a general proposition, these privileges
protect confidential communications made during the course
of the protected relationships, or records or documents made
that record certain information. Confidential communications
are statements, oral, written or non-verbal, made in the absence
of a third-party and that are not intended to be disclosed
to parties outside the relationship. When a privilege is applicable,
a person can refuse to disclose a communication or record,
and prevent others from doing so. Even when a privilege is
applicable, there are limited circumstances when the confidential
communication or document can be ordered disclosed, or a person
may have waived the protection of the privilege.
There is also recognized a self-incrimination
privilege, under the Fifth Amendment of the United States
Constitution, Art. I, §6 of the New York State Constitution,
and CPLR 4502. Unlike the other mentioned privileges, the
self-incrimination privilege is intended to strike a balance
between the government and the individual in criminal proceedings.
This privilege recognizes that a person is not required to
give an answer to a question which will tend to incriminate
the person or expose the person to a penalty or forfeiture.
Understanding privileges completely is a difficult
task. As observed by a leading treatise, current privileges,
"are incomplete, inconsistent, undecided on significant questions,
and virtually impenetrable to all except the most experienced
counsel." [Martin, Capra
and Rossi, New York Evidence Handbook (1997), §5.12,
at pp.303-304]. What follows is not intended to
be a complete discussion of privileges but rather a brief
introduction to the principal privileges.
Under the attorney-client privilege, an attorney
may not disclose a confidential communication made to him/her
by a client for the purpose of obtaining or providing legal
assistance for the client. The client, too, may refuse to
make such disclosure. Only the client may waive the privilege,
and upon the client's death, only a limited right of disclosure
that relates to wills is permitted. The privilege does not,
however, extend to communications with an attorney consulted
for the purpose of committing what the client knew or reasonably
should have known to be a crime or fraud.
Under the spousal privilege, neither spouse
may testify to a confidential communication made by one to
the other during the marriage. The communication must have
been made in reliance upon the intimacy of the marital relation.
Routine exchanges of business information are not within the
privilege. One spouse may not waive the privilege and volunteer
to disclose the confidential communication without the consent
of the other spouse. After death, the surviving spouse may
testify to the confidential communication, but cannot be compelled
to do so.
Under the physician-patient privilege, a physician,
dentist, podiatrist, chiropractor, and nurse may not disclose
information which was acquired during the course of treating
a patient and which was necessary for treatment. Such information
includes confidential communications from the patient and
the health-care provider's observations of the patient. Only
the patient may waive the privilege.
If the patient has died, the health-care provider
must disclose the otherwise privileged information, except
that which disgraces the patient's memory, where the personal
representative or next of kin of the patient waives the privilege
or there is no objection by any party. There are several statutory
exceptions to the privilege. [See,
e.g., CPLR 4504(b) (dentists are required to disclose information
necessary to identify a patient, and health-care providers
must disclose information that a patient under the age of
sixteen has been the victim of a crime); PHL §§3372,
3373 (reporting requirement with respect to narcotic substance
Under the psychologist-patient privilege,
a psychologist may not disclose a confidential communication
made to him/her by a patient. The client, too, may refuse
to make such disclosure. Only the client may waive the privilege.
There are statutory exceptions. [See,
e.g., Soc. Serv. Law §§413, 415 (written reports
of child abuse or maltreatment are admissible in any proceeding
relating to child abuse or maltreatment)].
Under the social worker-client privilege,
a social worker may not disclose confidential communications
made to him/her by a client in the course of giving advice
or planning a program for the client, or any advice given
to the client. The client may waive the privilege. The exceptions
to the privilege are provided: when the communication by the
client "reveals the contemplation of a crime or harmful act"
when "the client is a child under the age of sixteen and the
information acquired ... indicates that the client has been
the victim or subject of a crime . . . " [CPLR
4508(a)(3)]; and when "the client waives the privilege
by bringing charges against the certified social worker" which
involve confidential communications [CPLR
The common law recognizes a privilege which
allows the owner of a trade secret to refuse to disclose and
prevent others from disclosing his/her trade secret. [See,
Drake v. Heiman, 261 NY 414, 185 NE 685 (1933)].
A trade secret is defined as a formula, pattern, device, or
compilation of information which is not known by others and
gives the owner a competitive advantage over others who do
not know it.
The privilege is not an absolute one as a
court upon a sufficient showing of need can disclose it to
another person. Such disclosure, however, must be conditioned
upon the presence of safeguards which will prevent the information
from being used by the other party or from becoming available
to persons other than the parties involved.
Under the common law, confidential communications
exist "between public officers, and to public officers, in
the performance of their duties, where the public interest
requires that such confidential communications or the sources
should not be divulged." [Cirale
v. 80 Pine St. Corp., 35 NY2d 113, 117, 359 NYS2d 1, 4 (1974)].
A balancing approach is used to determine if disclosure is
World Trade Center Bombing Litigation Steering Com. v. Port
Auth. of N.Y. and N.J., 93 NY2d 1 (1999)].
However, the Freedom of Information Law (FOIL) [N.Y.
Pub. Off. Law §84], supersedes this privilege
to the extent that records that FOIL requires to be disclosed
cannot be protected from disclosure under the privilege. [See,
Doolan v. Board of Coop Educ. Serv., 48 NY2d 341, 422 NYS2d
Under the self-incrimination privilege, a
witness is not required to give an answer to a question which
will tend to incriminate the witness or expose the witness
to a penalty or forfeiture. A witness must invoke the privilege
personally, but a party may invoke the privilege through the
party's attorney. The privilege extends to the witness's books
and papers. However, a person who holds books and records
in a custodial capacity may be compelled to surrender them,
even though they tend to incriminate the person. If the witness's
testimony would tend to incriminate his/her employer, but
not him/her personally, the witness cannot refuse to testify.
SAPA §306(l) compels the ALJ to give
effect to privileges. When an objection to offered evidence
is made on the basis of a privilege, the ALJ must determine
whether the cited privilege encompasses the testimony or document,
and if so, whether there has been a waiver of the privilege.
If the privilege is applicable and there has been no waiver,
the ALJ must sustain the objection.
As a general proposition a witness may testify
only to the facts that he/she perceived. Opinions or conclusions,
based on reasoning from those facts, may not be given. Recognizing
that opinion testimony can be helpful to the trier of fact
in resolving issues fairly and expeditiously, the common law
has provided that in certain instances lay witnesses and expert
witnesses may give opinion testimony.
A lay witness may give his/her opinion, based
upon facts that the witness has personal knowledge of, provided
that such opinion is based upon common ordinary knowledge,
without special skill or background, and it is unreasonable
to expect the witness to describe all the facts which would
permit the trier of fact to draw the conclusion. The rule
is liberally construed, and lay witnesses may give their opinion
on a wide variety of subjects.
■ Observations - A lay witness may give
his/her opinion as to such matters as color, weight, distance,
size, quantity, state of emotion, apparent physical condition,
identity and likeness, estimated age, rational or irrational
■ Sensations - A lay witness may describe
his/her own sensory experiences, such as taste, smell and
touch. He/she may testify as to heat or cold or electric shock.
■ Emotions - A lay witness may give his/her
opinion of another person's display of emotion. He/she may
state, for example, that one person's contact with another
was friendly or hostile.
■ Intention - Where the actual performance
of an act is not disputed, but its effect or genuineness depends
upon the intent with which it was done, the one who did it
may testify as to what his/her intention was at the time.
However, a lay witness may not testify to another person's
■ Physical or Mental Condition - A lay
witness may describe another person's apparent physical condition,
such as general strength, vigor, illness or any other characteristics
that anyone can see; or whether a person appeared to be intoxicated.
The necessary foundation for an expression of opinion as to
apparent intoxication of another may include testimony that
the person in question smelled of alcohol, was incoherent
in speech, his/her eyes were glassy or bloodshot, he/she could
not stand or walk without assistance, etc. He/she may also
testify as to rational and irrational conduct of a person.
■ Speed - A lay witness may testify that
a vehicle was moving rapidly or slowly. However, if he/she
testifies as to the rate of speed, he/she must first show
that he/she had some experience in observing the rate of travel
of vehicles or give some other satisfactory reason or basis
for his/her opinion.
■ Age - A lay witness may give his/her
estimate of another person's apparent age. However, the facts
and circumstances upon which his/her opinion is based must
be given and the witness should first describe the person's
appearance and only then give his/her own opinion as to his/her
■ Identification - The identification
by a lay witness of someone whom he/she knows or has seen
before, or of an object, is proper, even though it may not
be positive and absolutely certain. Although the identification
need not be beyond any doubt, it must, nevertheless, be based
upon some convincing and reliable sensory impression, the
description of which raises the likelihood that it is the
same person or object.
■ Identification of Voice - A lay witness
may identify the voice of another person who is heard but
is out of sight, provided there is some basis for the identification,
e.g., that the witness heard the person speak or another occasion,
prior or subsequent, and, for this reason, recognized the
voice at the time in question.
■ Identification of Handwriting - A lay
witness may identify the handwriting of another person, provided
there is basic showing of some familiarity with the handwriting,
e.g., that the witness has observed in person writing, or
that the witness has received other writings from the person
in circumstances where it is clear that the person made those
A witness qualified as an expert may be permitted
to give an opinion within that area of qualification where
the underlying subject matter of the opinion is beyond the
understanding of the ordinary juror or outside lay comprehension.
The subject matter calling for expert testimony may be in
the fields of science, engineering, technology, mechanics,
medicine, business or other matters requiring specialized
To ensure that there is relevancy and reliability
in expert opinions, the New York courts permit a witness to
testify as an expert and give an opinion where four basic
conditions are met. First, as stated before, the underlying
subject matter of the opinion involves an area which is beyond
the ken and understanding of the average juror. Second, the
witness must be qualified as an expert to give an opinion
within that subject matter. Third, the basis of the opinion
must be facts known to the witness or accepted by similar
experts in the field as reliable in forming an opinion, and
the methodology utilized must be generally accepted within
the expert's field. Fourth, the witness must have reasonable
certainty as to his/her opinion.
As to the first requirement, there is not
always a clear line separating matters within a lay person's
comprehension from those which only an expert can understand.
In essence, the resolution turns upon the need for the testimony,
i.e., whether the expert opinion will supply jurors with knowledge
they do not have. Resolution is in the court's discretion.
With respect to qualifications, it must be
shown that the witness by reason of his/her education or practical
experience possesses special knowledge or skill that pertains
to the subject matter of his/her testimony. It must be emphasized
that the witness may qualify as an expert by formal training
or education, i.e., medical school, or through on the job
work and training, e.g., mechanic. Whether the witness
is qualified to testify as an expert is a question for the
court to determine in the exercise of its discretion.
The third requirement demands a showing that
the witness is basing his/her expert opinion upon an acceptable
basis and is employing an acceptable methodology in reaching
a conclusion from that basis. As to the former, it can be
satisfied by a showing that the witness is basing his/her
opinion upon personal knowledge of facts, e.g., physician
who examines a patient may testify as to what his/her observations
reveal, or facts presented at trial; or, upon facts presented
at trial and made known to the witness, e.g, witness
attends trial and perceives the evidence presented, or information
is conveyed by means of a hypothetical question, which takes
into account evidence presented at the trial; or upon facts
and data presented to the witness outside of court, provided
evidence is presented which establishes the reliability of
such out-of-court material, and that experts in the field
rely on such material as a basis for opinion.
With respect to methodology, when the opinion
is derived with the use of novel scientific theories or techniques,
there is a need for a showing that such theories or techniques
are generally accepted in the relevant scientific community.
In that regard, New York follows the rule of Frye v. United
States, [293 F. 1013
(DC Cir. 1923)], as enunciated by recent court
e.g., People v. Wesley, 83 NY2d 417, 611 NYS2d 97 (1994) (DNA
evidence)]. Under this approach, the trial
court determines whether most scientists in the relevant community
believe that the theory or technique produces or leads to
reliable results, and not whether the theory or technique
is actually reliable. The New York rule differs from the federal
rule, as set forth in Daubert v. Merrell Dow Pharmaceuticals,
S. Ct. 2786 (1993)]. As noted in a leading
New York treatise, the Frye standard has been applied
by the New York courts: "to a wide range of scientific evidence
including DNA profiling, rape trauma syndrome, hypnotically
restored testimony, polygraph test results, bite mark identification,
hair analysis to discover cocaine use, voice spectrographica
analysis, and expertise on the unrelability of eyewitness
Some methodologies, such as DNA profiling,
rape trauma syndrome, and bite mark identification, have been
found generally accepted as reliable by the relevant scientific
community and hence admissible under Frye. Others, such as
polygraph test results and hypnotically refreshed testimony,
have been found wanting." [Martin,
Capra and Rossi, New York Evidence Handbook §7.23, at
With respect to the fourth requirement, it
is intended to ensure that the opinion is not based on speculation.
An expert is no more entitled to speculate
than a layperson.
Opinion evidence is admissible at the discretion
of the ALJ. Where the opinion is helpful to the resolution
of the issues, it should be admitted especially expert. [See,
e.g., City of Schenectady v. McCall, 245 AD2d 708, 666 NYS2d
754 (3rd Dept. 1997) (expert testimony by both parties regarding
whether alleged injury permanently disabled one from employment);
Romanello v. Adduci, 234 AD2d 299, 651 NYS2d 64 (2nd Dep't
1996) (expert testimony that licensed repair shop performed
nonquality work); Enu v. Sobol, 171 AD2d 302, 576 NYS2d 378
(3d Dep't 1991) (general surgeon may testify regarding urologist's
treatment of patients); Sheehan v. Passidomo, 122 AD2d 869,
505 NYS2d 915 (2nd Dept.1986) (DMV automotive facilities inspector's
opinion admissible)]. On the other hand, where
the opinion is not helpful, speculative or otherwise lacks
a rational basis, it may be excluded.
A witness's credibility, i.e., whether the
witness's testimony is believable or unbelievable, will depend
upon two considerations: the accuracy of what the witness
says, i.e., the witness's opportunity and capacity to perceive,
together with the capacity to recollect and communicate, and
the truthfulness of the witness, i.e., the witness's veracity.
The proper scope of cross-examination covers matters affecting
the witness's credibility on both considerations.
Impeachment is the particular form of cross-examination
whose purpose is to attack the witness's credibility and persuade
the trier of fact that the witness's testimony should not
be credited. Generally, any matter that has tendency in reason
to discredit the witness's credibility may be brought to the
attention of the trier of fact. There are six principal modes
of impeachment recognized by the New York courts.
Defects or limits in sensory or mental capacities
of a witness at the time of the relevant event bear on the
witness's credibility. Accordingly, when there is a good faith
basis to do so, the witness can be cross-examined as to weakness
of vision or hearing, influence of drugs or alcohol, physical
or mental illness, and other matters that may affect the witness's
ability to perceive and remember accurately the matters about
which he/she testified. Additionally, such matters can be
established by testimony from other witnesses or documents.
The extent to which this mode of impeachment can be used rests
in the discretion of the court.
The fact that the witness may not be impartial,
but rather harbors a partiality to the party calling the witness,
is generally viewed as bearing on the witness's credibility.
Matters that show bias, intent, or hostility can be inquired
into on cross-examination provided there is a good faith basis
to do so. Among such matters are personal relationships between
the party and the witness; employment between the party and
the witness; a financial stake in the outcome of the action;
enmity between the witness and the other party; and corrupt
pressure placed upon the witness by the party calling him/her.
Such impartiality can be shown by other witnesses or documents.
The extent to which a party uses this mode is subject to the
trial court's discretion.
It is generally regarded under New York law
that a person who has been convicted of a crime may be less
credible than a person who has not been convicted of a crime.
Thus, the fact that a witness had previously been convicted
of a crime either by eliciting an admission of such conviction
on cross-examination or by introduction of a certificate of
such conviction may be inquired into. [See,
CPLR 4513]. It must be stressed that only convictions
may be inquired into and only convictions of crimes. Thus,
questioning as to an arrest or indictment is not permitted,
nor is questioning as to traffic infractions, offenses (except
in criminal cases), juvenile delinquency and youthful offender
convictions permitted. It is also important to note that any
conviction for a crime can be inquired into, even though it
does not directly go to veracity, i.e., murder, robbery.
However, the court in its discretion may bar the examination
where it finds that the conviction due to its remoteness or
nature lacks substantial probative value, or is unduly prejudicial
to a party.
New York law has long recognized that a witness
may be cross-examined, upon a good faith basis, about any
immoral, vicious or criminal act engaged in by the witness
if the act evidences moral turpitude. It is not necessary
that such acts be the subject of a criminal conviction or
that they relate directly to veracity, as engaging in such
acts itself suggests a willingness to lie. Such acts include
use of aliases; use of drugs; use of disrespectful language
to a superior officer; and criminal activity. As with criminal
convictions, the court has the discretion to prohibit such
examination, especially where the questioning is an attack
on character in general. [See,
e.g., Gutierrez v. City of New York, 205 AD2d 425, 613, NYS2d
627 (1st Dep't 1994) (cross-examination about receipt of public
assistance, legitimacy of children and immigration status
improper); Catalan v. Empire Storage Warehouse, Inc., 213
AD2d 366, 623 NYS2d 311 (2nd Dep't 1995) (cross-examination
about personal bankruptcy improper)]. Additionally,
when the witness denies engaging in the charged conduct, the
cross-examination may not show otherwise by the introduction
of other testimony or documents.
The witness may be shown to have a bad reputation
for veracity. This is done by calling a witness who can testify
that he/she is familiar with the witness's reputation for
veracity, and that the witness has a reputation for being
an untruthful person. Such reputation witness may not refer
to specific acts committed by the attacked witness, nor may
the reputation witness give his/her own personal opinion of
the attacked witness's lack of veracity. However, the reputation
witness can state that he/she would not believe the attacked
witness under oath.
If the witness has made a statement prior
to the trial which is inconsistent with his/her trial testimony,
the making of this inconsistent statement can be shown. The
theory is that when a witness has given conflicting accounts
of the same matter or event, the witness's testimony is not
credible, either because the witness may be lying or because
the witness is careless or has an uncertain memory. The making
of the prior inconsistent statement can be explored on cross-examination.
If the making of the prior inconsistent statement is denied,
it may be proven by the introduction of other evidence, provided
it is relevant to an issue in the case or relates to bias
or capacity defects.
Whether to allow the use of one of the modes
of impeachment and/or to place limits thereon is committed
to the discretion of the ALJ. Where the cross-examination
will involve excursions into matters which do not have any
real bearing upon credibility, such cross-examination can
be prohibited or limited. [See,
e.g., Gross v. DeBuono, 223 AD2d 789, 636 NYS2d 147 (3rd Dept.1996)
(ALJ acted well within his discretion in limiting petitioner's
cross-examination with regard to matters such as the witness's
marital status, sexual history, prior injuries and legal proceedings);
Matter of Epstein v. Cort Watch Co., 7 AD2d 663, (3rd Dep't
1958) (ALJ did not act improperly in not requiring witness
to answer questions regarding her personal history and relationship
with decedent, whose widow was seeking death benefits)].
However, where the questioning goes to expose partiality,
it should not be barred, but it can be limited. [See,
e.g., Davis v. Alaska, 94 S. Ct. 1105 (1974)].
Authentication refers to the requirement that
before any relevancy can be ascribed to an offer of evidence,
it must be established that the evidence, be it documentary
evidence, real evidence or demonstrative evidence, or a conversation,
or a test result, is what the offer or the evidence claims
it to be. To illustrate, a purported letter of a party is
not relevant unless it is properly shown that the party who
signed the letter actually wrote the letter, nor is a telephone
conversation offered to show knowledge on the part of a speaker
relevant unless the person speaking is sufficiently identified.
In both cases, relevance is conditioned upon the fulfillment
of a condition of fact, in the former establishing the party
as the author of the letter, in the latter the identification
of the speaker.
Whether the offered evidence is what it purports
to be can be established by other evidence sufficient to sustain
a finding of its genuineness or by reason of a statutory procedure
which may make specified evidence "authenticated" upon certain
conditions being complied with. Once the offered evidence
is found by the court to be what it purports to be, the evidence
shall be admitted for consideration by the trier of fact.
The fact that the court permits the evidence to be admitted
does not necessarily establish the genuineness of the evidence
and does not preclude an opposing party from introducing contradictory
evidence. All that the court has determined is that there
has been a sufficient showing of the genuineness of the evidence
to permit the trier of fact to find that it is genuine. The
trier of fact independently determines the question of genuineness,
and, if the trier of fact does not believe the evidence of
genuineness, it may find that the evidence is not genuine,
despite the fact that the court has determined that it was
"authenticated" or "identified."
Government records are admissible by having
a copy of the record certified in compliance with CPLR 4540,
which certification attests to the authenticity of the copy
of the record and that such copy is an accurate copy of the
original record. Certain private documents such as hospital
records or commercial documents can be authenticated by similar
certification, as established by specific statutory enactments.
Generally, documentary evidence, such as letters
and records, can be authenticated by testimony from a witness
who saw the document executed or is familiarwith the signature
or handwriting on the document, or by expert testimony. Real
evidence, such as the murder weapon, can be authenticated
by testimony from a witness with personal knowledge concerning
the item that the offered item is in fact the murder weapon.
Demonstrative evidence, such as a photograph or a diagram,
can be authenticated by testimony from a witness with knowledge
concerning the scene or event depicted in the photograph or
diagram that it is a fair and accurate representation of that
scene or event.
Oral statements or conversations, like written
communications, are only relevant if the person who purportedly
made the oral statement or engaged in the conversation, was
in fact the person who made such oral communication. Authentication
problems arise when the witness who heard the oral communication
was not physically present with the alleged speaker, a situation
which will arise with telephone conversations and audio recordings.
Authentication can be established by testimony from a witness
who is familiar with the voice based on prior dealings with
the alleged speaker, or by expert testimony.
The results generated by mechanical tests
or devices, such as Breathalyzer tests, blood-alcohol concentration
(BAC) tests, Enzyme Multiplied Immunvassay Test (EMIT), blood
grouping tests, and the Alco-Sensor Breath Screening test,
are admissible so long as it is shown that the results produced
are accurate. This authentication process will involve three
steps. First, the reliability of the principles underlying
the machine or device and that they are capable of producing
accurate results must be demonstrated, which can be shown
by the taking of judicial notice, e.g., the reliability
of radar principles has been judicially noticed, or by independent
proof. Where the machine involves novel scientific theories,
the Frye principle becomes involved. Second, it must
be shown that the machine or device was working properly when
the result was obtained, and third, that the machine or device
was properly used or administered.
Since authentication is an aspect of relevancy,
the ALJ should follow the basic authentication evidentiary
rules, with an objective view as to whether the requirement
is met. With respect to test results, the courts have cautioned
that where there is an absence of proof that the machine or
device producing the result produces accurate results or that
their underlying theories are not generally accepted by the
relevant scientific community, the test results should not
be admitted. [See,
e.g., Sowa v. Looney, 23 NY2d 329, 296 NYS2d 760 (1968) (polygraph
test result should not have been received into evidence at
the police disciplinary hearing as there is a lack of general
scientific recognition of the efficacy of polygraph tests);
Lahey v. Kelly, 71 NY2d 135, 524 NYS2d 30 (1987) (EMIT drug
test results shown to be reliable and properly admitted into
evidence by ALJ)].
The best evidence rule requires that when
a party seeks to prove the contents of a writing, recording
or photograph, the party must produce the original of the
writing, recording or photograph or explain its absence before
other evidence establishing its contents may be admitted.
The underlying principle of this rule is intended to prevent
fraud, fabrication, or mistake and to eliminate uncertainties
that may result from faulty memories.
Thus, when a party offers oral testimony of
the contents of a record, the best evidence rule will require
that the original record be produced. If the original is not
produced, a valid legal reason must be given to account for
the fact that the original cannot be produced. A proper foundation
must be laid for the receipt of the oral evidence, such as
showing that the original record has been destroyed or lost;
or that it is unobtainable because it is out of the jurisdiction;
or that it is in the adverse party's possession or control
and he has refused to produce it. The oral evidence of the
contents of a record may not be given until its absence is
When the offered evidence is a photographic
copy of a writing or a copy made by a similar process that
accurately reproduces the original, CPLR 4539(a) provides
that such copies if made in the regular course of business
are as admissible as the original. Additionally, there are
numerous statutory provisions which provide for the admissibility
of copies of public records provided they are certified to
be accurate copies of the original, a subject discussed in
the authentication section of this appendix.
The application of the best evidence rule
is committed to the discretion of the ALJ. [See,
e.g., R&D Equipment Leasing Company, Inc. v. Adduci, 220
AD2d 900, 632 NYS2d 332 (3rd Dep't 1995) (photocopies of weight
certification documents admitted)]. Where there
is little or no doubt as to the accuracy of a copy, or the
oral summary of the contents of a writing, the best evidence
rule need not be strictly followed. However, where there is
doubt as to the accuracy of the copy of the orally recited
contents, insistence upon the following of the best evidence
rule may be appropriate.