Admissibility of Evidence - Exceptions to the Rule against Hearsay - Former Testimony
Very frequently a party seeks to introduce into evidence testimony given at a prior hearing involving the parties. [1]
CPLR 4517 (a)(i) and (ii) provide that at the trial of an action or hearing, the prior testimony of a party or his agent may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness or for any purpose (evidence in chief) by any party. CPLR 4517 (a) (iii) sets forth three conditions for the admissibility of the former testimony of any person, as evidence in chief, which is taken or introduced in evidence at a former trial: unavailability of the witness; the identity of subject matter and identity of the parties. If the witness is available, it may not be introduced into evidence.[2] In addition, there must have been an opportunity to cross-examine that witness at the former trial.[3] If the former testimony is introduced into evidence, it is subject to any objection other than hearsay.[4] The failure to permit Cross Examination is one such objection.[5] The original stenographic notes may be read into evidence proved by anyone whose competence is established by the court. The former testimony may also be proved by anyone who heard it. [6] The witness is not required to give the exact words that were said; the substance of the prior testimony is sufficient.[7]
[1] Deposition testimony of a party or non-party witness may also be used to impeach the witness or admitted pursuant to CPLR 3117(a) where the witness is unavailable.
[2] Prince, Richardson on Evidence, 11th Edition, 8-502.
[3] Young v Valentine 177 NY 347. Prince, Richardson on Evidence, 11th Edition (Farrell), § 8-506.
[4] CPLR 4517. Prince, Richardson on Evidence, 11th Edition (Farrell), § 8-508; Dean v. Halliburton, 241 NY 354.
[5] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
[6] McRorie v Monroe, 203 NY 426, 96 NE 724.
[7] McIntyre v NY Central RR, 37 NY 287.
Very frequently a party seeks to introduce into evidence testimony given at a prior hearing involving the parties. [1]
CPLR 4517 (a)(i) and (ii) provide that at the trial of an action or hearing, the prior testimony of a party or his agent may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness or for any purpose (evidence in chief) by any party. CPLR 4517 (a) (iii) sets forth three conditions for the admissibility of the former testimony of any person, as evidence in chief, which is taken or introduced in evidence at a former trial: unavailability of the witness; the identity of subject matter and identity of the parties. If the witness is available, it may not be introduced into evidence.[2] In addition, there must have been an opportunity to cross-examine that witness at the former trial.[3] If the former testimony is introduced into evidence, it is subject to any objection other than hearsay.[4] The failure to permit Cross Examination is one such objection.[5] The original stenographic notes may be read into evidence proved by anyone whose competence is established by the court. The former testimony may also be proved by anyone who heard it. [6] The witness is not required to give the exact words that were said; the substance of the prior testimony is sufficient.[7]
[1] Deposition testimony of a party or non-party witness may also be used to impeach the witness or admitted pursuant to CPLR 3117(a) where the witness is unavailable.
[2] Prince, Richardson on Evidence, 11th Edition, 8-502.
[3] Young v Valentine 177 NY 347. Prince, Richardson on Evidence, 11th Edition (Farrell), § 8-506.
[4] CPLR 4517. Prince, Richardson on Evidence, 11th Edition (Farrell), § 8-508; Dean v. Halliburton, 241 NY 354.
[5] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
[6] McRorie v Monroe, 203 NY 426, 96 NE 724.
[7] McIntyre v NY Central RR, 37 NY 287.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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