Hearsay

• Author: Justice Gerald Lebovits
• Pages: 133-226

HEARSAY

5-1

CHAPTER 5

HEARSAY

I. PRINCIPLES

A. Hearsay Rule

§5:10 Def‌inition and Purpose

§5:20 Non-Hearsay Distinguished

§5:25 Right to Confrontation With Testimonial Hearsay

§5:30 Effect of Hearsay Admitted Without Objection

B. Exceptions to Hearsay Rule

§5:40 Overviews

§5:50 Availability of Declarant

§5:60 No Wild Card Exception

II. OBJECTIONS

A. General Objections

§5:70 Hearsay

§5:80 Hearsay Within Hearsay

§5:85 Testimonial Hearsay in Criminal Prosecutions

B. Objections Involving Hearsay Exceptions

1. Declarant Must Be Unavailable

§5:90 Former Testimony

§5:100 Declarations Against Interest

§5:110 Dying Declaration

§5:120 Pedigree

2. Declarant Must Be Available

§5:130 Prior Inconsistent Statements

§5:140 Past Recollection Recorded

3. Declarant Availability Irrelevant

§5:150 Admissions

§5:160 Business, Hospital, and Police Records

§5:170 Public Documents

§5:180 State of Mind

§5:185 Statement to Medical Personnel

§5:190 Present Sense Impression

§5:200 Excited Utterance or Spontaneous Declaration

§5:210 Prompt Outcry

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HEARSAY

5-3 Hearsay §5:20

HEARSAY

I. PRINCIPLES

A. Hearsay Rule

§5:10 Def‌inition and Purpose

Hearsay is an out-of-court statement oered to prove the truth of the matter asserted in the statement. People v.

Patterson, 28 N.Y.3d 544, 68 N.E.3d 1242 (2016); Stern v. Waldbaum, Inc., 234 A.D.2d 534, 651 N.Y.S.2d 187 (2d

Dept. 1996); Guide to New York Evidence, NYCourts.Gov, https://www.nycourts.gov/judges/evidence/8-H EAR-

SAY/8.00_DEFINITION%20OF%20HEARSAY.pdf (last visited Jan. 30, 2022). Stated simply, the hearsay rule

prohibits introducing into evidence statements made out of court to prove the truth of facts asserted in the statement.

People v. Acomb, 87 A.D.2d 1, 450 N.Y.S.2d 632 (4th Dept. 1982). A “statement” may be oral, written or nonverbal,

provided the verbal or non-verbal conduct is intended as an assertion. People v. K ass, 59 A.D.3d 77, 874 N.Y.S.2d

475 (2d Dept. 2008); Joseph M. McLaughlin; Compendium: New York Law of Evidence, 9 St. John’s Journal Of

Legal Commentary, Journal Of Civil Rights And Economic Development 322 (1993).

e danger inherent in hearsay evidence is that when the person who made the statement is not called as a

witness at trial, the party against whom the statement is oered has no opportunity to cross-examine the declarant

or to impeach his or her credibility. People v. John, 27 N.Y.3d 294, 52 N.E.3d 1114 (2016); People v. Settles, 46

N.Y.2d 154, 412 N.Y.S.2d 874 (1978). is limitation is the major justication for excluding hearsay. People v.

Charles, 137 Misc.2d 111, 519 N.Y.S.2d 921 (S up. Ct., Kings Cnty., 1987).

New York is relatively strict in applying the hearsay rule to exclude oral and written statements, and nonverbal

conduct intended as an assertion. People v. Garcia, 25 N.Y.3d 77, 30 N.E.3d 137 (2015) (detective’s testimony that the

murder victim’s sister told him there was friction between the victim and defendant was inadmissible hearsay as it created

“an out-of-court substitute for the testimony of [the victim’s] sister regarding that discord”); People v. DePass, 137 Misc.

2d 111, 519 N.Y.S.2d 921 (S up. Ct., Kings Cnt y., 1987); People v. Salko, 47 N.Y.2d 230, 417 N.Y.S.2d 894 (1979) (in

bribery and conspiracy prosecution, police ocer’s testimony regarding co-conspirator’s nonverbal acts, including his

approaching ocer, their meetings, and co-conspirator’s transfer of money to ocer, were admissible without resort

to co-conspirator’s exception to hearsay rule). e rule against hearsay may even exc lude prior statements made under

oath. See Bookman v. Stegman, 105 N.Y. 621, 11 N.E.376 (1887) (adavit is hearsay if oered as testimonial assertion).

However, hearsay evidence is often necessary for proper resolution of a particular matter. Of necessity, a number

of exceptions to the hearsay rule have been developed. us, in certain circumstances, if strict criteria relating to its

admission are met, an out-of-court statement may be admitted into evidence to prove the matter it asserts. People

v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874 (1978); for exceptions to hearsay rule, see §§5:90-5:200.

e rule is dierent in administrative proceedings, where hearsay is admissible. Haug v. State Univ. of New York

at Potsdam, 32 N.Y.3d 1044, 112 N.E.3d 323 (2018); Gray v. Adduci, 73 N.Y.2d 741 (1988). Hearsay alone may

support an administrative determination, provided it meets the substantial evidence standard of such proceedings.

Parris v. Shah, 127 A.D.3d 515, 8 N.Y.S.3d 53 (1st Dept. 2015); Rispoli v. Waterf ront Comm’n of NY Harbor, 104

A.D.3d 461, 961 N.Y.S.2d 105 (1st Dept. 2013); Today’s Lounge of Oneonta v. New York State Liquor Authority, 103

A.D.3d 1082, 962 N.Y.S.2d 430 (3d Dept. 2013); Colon v. City of New York Dept. of Educ., 96 A.D.3d 540, 946

N.Y.S.2d 468 (1st Dept. 2012); Matter of Parker v. Carrion, 90 A.D.3d 512, 935 N.Y.S.2d 14 (1st Dept. 2011);

Café La China Corp. v. NYS Liquor Auth., 43 A.D.3d 280, 841 N.Y.S.2d 30 (1st Dept. 2007). Hearsay evidence

will not satisfy the substantial evidence standard if the facts it purportedly establishes are seriously controverted.

Gerald HH. v. Carrion, 130 A.D.3d 1174, 14 N.Y.S.3d 185 (3d Dept. 2015).

§5:20 Non-Hearsay Distinguished

When an out-of-court statement is not oered to prove the truth of the matter asserted in the statement, it is

not hearsay and may be admissible. Provenzo v. Sam, 23 N.Y.2d 256, 296 N.Y.S.2d 322 (1968); Stern v. Waldbaum,

Inc., 234 A.D.2d 534, 651 N.Y.S.2d 187 (2d Dept. 1996). us, for example, out-of-court statements have been

held admissible as non-hearsay in the following circumstances:

• Making the statement itself is at issue. People v. Davis, 58 N.Y.2d 1102, 462 N.Y.S.2d 816 (1983); DeLuca

v. Ricci, 194 A.D.2d 457, 599 N.Y.S.2d 267 (1st Dept. 1993).

• Without regard to truthfulness, the statement is oered to impeach a witness’s credibility. See Letendre v.

Hartford Accident & Indemnity Co., 21 N.Y.2d 518, 289 N.Y.S.2d 183 (1968); Campbell v. Cty. of Elmira,