6.28 1. Cplr Rules Of Evidence
Jurisdiction | New York |
1. CPLR Rules of Evidence
All the reports, records and other documents described below are admissible at trial as prima facie evidence of their contents or the facts stated therein. Generally, the records must be certified or authenticated by the custodian or other appropriate official.
“[A] certificate or an affidavit to a fact ascertained, or an act performed” by a public officer in the course of his or her official duties, when such certificate or affidavit is expressly authorized by law, “is prima facie evidence of the facts stated” therein.556 Government investigative reports probably are not admissible under CPLR 4520 unless they fall within another recognized hearsay exception such as the business records rule.557 They often contain inadmissible hearsay statements and sometimes include opinions that might invade the province of the jury.558
The foundation requirements for evidence introduced pursuant to CPLR 4020 and 4040 are minimal. Unlike business records, the public records exceptions do not require foundation testimony from a custodian or other qualified witness—such as someone familiar with the business practices of the entity. The self-authentication provisions of CPLR 4040 should be sufficient.
A number of government records have been received in evidence under CPLR 4520 and 4540—for example, certificates of conviction,559 abstracts of driving records,560 a National Highway Traffic and Safety Administration report,561 a medical examiner’s report,562 a report of the U.S.-Canada Power System Outage Task Force and “follow-up reports by the New York State Department of Pubic Service” on the causes of a massive power outage and blackout in August 2003,563 and an authenticated federal pre-sentence report, which included such material as an analysis of the crime, the government’s sentence recommendations and evidence of the crime.564 An abstract of the defendant’s driving record, prepared by the Department of Motor Vehicles, however, was not received in evidence in People v. Watson565 since the department seal was affixed to the preprinted form before any entries were made. As a result, the court said, there was no assurance that the abstract had been compared to the original record and that the information on it was accurate.566
A common law public document exception for records prepared by public officers is discussed in People v. Ellison.567 A statement by the custodian of government and court records that, after a search was conducted, a specific record does not exist “is prima facie evidence that the records contain no such record or entry.”568
“[M]aps, surveys and official records affecting real property which have been on file . . . for more than ten years, are prima facie evidence of their contents.”569 Section 24 of the N.Y. Canal Law states that canal maps on file in the office of the commissioner of transportation are “presumptive evidence of the truth of the facts therein stated,” and certified transcripts are “presumptive evidence of the state’s title to the canal lands” in all judicial proceedings.
Records of conveyances of real property outside New York, recorded in accordance with the laws of that jurisdiction, are prima facie evidence of the conveyances.570 However, a record of conveyance is not conclusive and may be rebutted and contested by an affected party.571
Marriage certificates prepared by the person who married the couple within the state, the original entry by the municipal clerk within the state or a certified copy of “the record of marriage” are prima facie evidence of the marriage in all actions or proceedings.572 Certified copies of such records, or a transcript or exemplification thereof, are also admissible in evidence.573
“A written finding of presumed death” prepared under the federal Missing Persons Act574 is prima facie evidence of the death and the date and circumstances thereof.575 A similar provision is contained in CPLR 4527(b) concerning reports of people who died, who were interned or who are missing in action in a foreign country.
A weather condition report “taken under the direction of the United States weather bureau is prima facie evidence of the facts stated.”576
Inspection certificates prepared by the Department of Agriculture are “prima facie evidence of the facts stated.”577
Census reports attested to by the secretary of commerce are “prima facie evidence of such result.”578
Certificates prepared by a state or municipal “sealer” relating to the accuracy of the standard of measurement used by a surveyor are “prima facie evidence of conformity” to state standards.579
“Certification of the acknowledgment or proof of a writing [that a document], except a will,” was executed by the person purporting to do so “is prima facie evidence that it was executed by the person who purported to do so.”580 A conveyance of real property within another jurisdiction of the United States, authenticated in accordance with the laws of that jurisdiction, is admissible in evidence;581 however, that evidence is not conclusive and may be rebutted by “a party affected thereby.”582
Section 4540 of the CPLR sets forth important rules and procedures for the authentication of documents and publications of federal and state agencies, legislatures and courts. For example, CPLR 4540 must be properly applied in order to admit into evidence the documents and materials described in CPLR 4520 (certificate or affidavit of a public officer), 4522 (ancient records affecting real property), 4524 (conveyances of real property outside the state) and 4527 (death reports). Pursuant to CPLR 4540(a), copies of official publications attested to as correct by the officer-custodian of the publication generally are admissible in evidence; for example, a facsimile of the signature of the officer having custody of the original, together with the officer’s seal, is one method.583 Procedures for authenticating records and, in the case of records from another jurisdiction, for certifying that the attesting officer is in fact the legal custodian thereof, are set forth in CPLR 4540(b) and (c).584 An authenticated transcript from the docket book of the proceedings before justices of the peace in New York and other states “is prima facie evidence of any matter stated in the transcript.” Procedures...
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