Trial Testimony - Prior Testimony - Admission of Prior Testimony
CPLR 4517 permits the admission into evidence of testimony of a witness that given at a prior trial in the same action, or at a prior trial involving the same parties or their representatives and arising from the same subject matter. The prior testimony may be admitted, “so far as admissible under the rules of evidence”. [1]
The prior trial testimony of a party [2] may be used for any purpose (evidence in chief or to contradict or impeach) by any party who is adversely interested when the prior testimony is offered in evidence.[3]
In addition, the prior trial testimony of any person may be used by any party for any purpose (evidence in chief or to impeach or contradict) against any other party, provided the court finds:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or
(v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. [4]
If the witness is available, the prior trial testimony of any person may not be used by any party for any purpose other than to contradict or impeach the testimony of the same witness.[5]
It is not necessary to have a transcript of the stenographer's minutes to give evidence of the testimony of a witness at a former trial. Anyone who was present in the courtroom and heard the witness testify at the former trial may testify as to what he heard the witness testify. The stenographer's minutes are not "best evidence" in the sense that all other evidence is "secondary.”[6]
If the former testimony is offered into evidence, it is subject to any objection other than hearsay.[7] The failure to permit cross-examination is one such objection.[8] There must have been an opportunity to cross-examine that witness at the former trial. [9]
[1] CPLR 4517 provides, in part:
Rule 4517. Prior testimony in a civil action
(a) Impeachment of witnesses; parties; unavailable witness.
In a civil action, at the trial or upon the hearing of a motion or an interlocutory proceeding, all or any part of the testimony of a witness that was taken at a prior trial in the same action or at a prior trial involving the same parties or their representatives and arising from the same subject matter, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions: 1. any such testimony may be used by any party for the purpose of contradicting or impeaching the testimony of the same witness; 2. the prior trial testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party, may be used for any purpose by any party who is adversely interested when the prior testimony is offered in evidence; 3. the prior trial testimony of any person may be used by any party for any purpose against any other party, provided the court finds: (I) that the witness is dead; or (ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or (v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court; 4. the prior trial testimony of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances subject to the right of any party to move for preclusion upon the ground that admission of the prior testimony would be prejudicial under the circumstances.
(b) Use of part of the prior trial testimony of a witness. If only part of the prior trial testimony of a witness is read at the trial by a party, any other party may read any other part of the prior testimony of that witness that ought in fairness to be considered in connection with the part read.
[2] This provision also applies to a person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party. CPLR 4517(a) (2).
[3] CPLR 4517(a) (2).
[4] CPLR 4517(a)(3)
[5] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-502.
[6] Harmon v. Matthews, 27 N.Y.S.2d 656 (1941).
[7] CPLR 4517. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-508. Dean v Halliburton, 241 NY 354.
[8] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
[9] Young v Valentine, 177 NY 347. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
CPLR 4517 permits the admission into evidence of testimony of a witness that given at a prior trial in the same action, or at a prior trial involving the same parties or their representatives and arising from the same subject matter. The prior testimony may be admitted, “so far as admissible under the rules of evidence”. [1]
The prior trial testimony of a party [2] may be used for any purpose (evidence in chief or to contradict or impeach) by any party who is adversely interested when the prior testimony is offered in evidence.[3]
In addition, the prior trial testimony of any person may be used by any party for any purpose (evidence in chief or to impeach or contradict) against any other party, provided the court finds:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or
(v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. [4]
If the witness is available, the prior trial testimony of any person may not be used by any party for any purpose other than to contradict or impeach the testimony of the same witness.[5]
It is not necessary to have a transcript of the stenographer's minutes to give evidence of the testimony of a witness at a former trial. Anyone who was present in the courtroom and heard the witness testify at the former trial may testify as to what he heard the witness testify. The stenographer's minutes are not "best evidence" in the sense that all other evidence is "secondary.”[6]
If the former testimony is offered into evidence, it is subject to any objection other than hearsay.[7] The failure to permit cross-examination is one such objection.[8] There must have been an opportunity to cross-examine that witness at the former trial. [9]
[1] CPLR 4517 provides, in part:
Rule 4517. Prior testimony in a civil action
(a) Impeachment of witnesses; parties; unavailable witness.
In a civil action, at the trial or upon the hearing of a motion or an interlocutory proceeding, all or any part of the testimony of a witness that was taken at a prior trial in the same action or at a prior trial involving the same parties or their representatives and arising from the same subject matter, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions: 1. any such testimony may be used by any party for the purpose of contradicting or impeaching the testimony of the same witness; 2. the prior trial testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party, may be used for any purpose by any party who is adversely interested when the prior testimony is offered in evidence; 3. the prior trial testimony of any person may be used by any party for any purpose against any other party, provided the court finds: (I) that the witness is dead; or (ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or (v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court; 4. the prior trial testimony of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances subject to the right of any party to move for preclusion upon the ground that admission of the prior testimony would be prejudicial under the circumstances.
(b) Use of part of the prior trial testimony of a witness. If only part of the prior trial testimony of a witness is read at the trial by a party, any other party may read any other part of the prior testimony of that witness that ought in fairness to be considered in connection with the part read.
[2] This provision also applies to a person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party. CPLR 4517(a) (2).
[3] CPLR 4517(a) (2).
[4] CPLR 4517(a)(3)
[5] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-502.
[6] Harmon v. Matthews, 27 N.Y.S.2d 656 (1941).
[7] CPLR 4517. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-508. Dean v Halliburton, 241 NY 354.
[8] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
[9] Young v Valentine, 177 NY 347. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
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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