Foundation for Evidence - Judicial Notice of Testimony at Prior Pendente lite Hearing
It appears that the trial court may not take judicial notice of its notes or recollection of a former testimony at prior hearing it conducted during the same case. There is no authority for the court to take judicial notice of its own notes or recollection of prior testimony.
However, a court may properly take notice, pursuant to CPLR 4517 of former testimony in prior proceedings between the parties.[1]
The admissibility of former testimony is governed by CPLR 4517, which provides, for the admissibility of former testimony where the witness is unavailable. If the witness is available, his former testimony may not be introduced into evidence. [2] The statute sets forth three conditions for the admissibility of the transcript of former testimony taken or introduced in evidence at a former trial, where the witness who testified at the former trial, is unavailable: (1.) The unavailability of the witness ;( 2.) The identity of subject matter; and (3.) The identity of the parties. In addition, there must have been an opportunity to cross-examine that witness at the former trial.[3]
[1] See CPLR 4517.
[2] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-502.
[3] See CPLR 4517. Young v Valentine, 177 NY 347. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
It appears that the trial court may not take judicial notice of its notes or recollection of a former testimony at prior hearing it conducted during the same case. There is no authority for the court to take judicial notice of its own notes or recollection of prior testimony.
However, a court may properly take notice, pursuant to CPLR 4517 of former testimony in prior proceedings between the parties.[1]
The admissibility of former testimony is governed by CPLR 4517, which provides, for the admissibility of former testimony where the witness is unavailable. If the witness is available, his former testimony may not be introduced into evidence. [2] The statute sets forth three conditions for the admissibility of the transcript of former testimony taken or introduced in evidence at a former trial, where the witness who testified at the former trial, is unavailable: (1.) The unavailability of the witness ;( 2.) The identity of subject matter; and (3.) The identity of the parties. In addition, there must have been an opportunity to cross-examine that witness at the former trial.[3]
[1] See CPLR 4517.
[2] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-502.
[3] See CPLR 4517. Young v Valentine, 177 NY 347. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
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