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History of the Guide to NY Evidence


Introduction  

 

The Committee responsible for the Guide’s publication was commissioned by Chief Judge Janet DiFiore in 2016. See New York’s Evidence Guide: The Court System’s ‘Best Kept Secret,’ NYLJ, Sept. 10, 2019; The United Court System’s Guide to NY Evidence, NYS Bar Association Journal, April 2020.

In her 2017 State of Judiciary, the Chief Judge explained the reason for Guide:

“ New York is one of the very few states that does not have a statutory code of evidence. Our law of evidence is scattered throughout thousands of judicial decisions, statutory provisions and court rules. For judges and lawyers, this is both frustrating and inefficient. This past July, I established an Advisory Committee on Evidence to create a single, definitive compilation of New York’s law of evidence. Creating an accessible, easy-to-use guide for judges and lawyers will save research time, promote uniformity in applying the law, avoid erroneous rulings and improve the quality of legal proceedings. ”

In 2017, the Committee published the first of its 12 planned articles. To assist comparison with the Federal Rules of Evidence (FRE), the first ten articles parallel the structure of the FRE. The FRE do not have an article 11 or 12.

In 2020, the Committee published the last of its planned 12 articles.

With the publication of the last of the 12 articles, the following history of added and amended rules was begun.

When a rule has been amended, the reason for the amendment will be explained in a footnote to the rule and a brief reason may be stated here in the History section.

 

May 2018

Rule 8.17 (Excited Utterance) was amended, for reasons explained in footnote (1) of the rule.

December 2018

Rule 2.03 (Judicial Notice of Law [CPLR 4511]) was amended to conform to a statutory amendment.

December 2019

Rule 1.13 (Court Reconsideration of Evidence Ruling) was added.

Rule 4.23 (Evidence of Alcohol or Drugs in Blood) was added.

Rule 8.05 (Admission by Adopted Statement or Silence) was amended by adding subdivision (5).

August 2020

Rule 1.07 (Court Control over the Presentation of Evidence) was amended by deleting subdivions (3)(a) and (3)(b) and placing them in a separate rule: 1.11 (Court Power to Call or Examine Witnesses).

The alphabetical Index of rules was revised and expanded to permit obtaining the indexed rule in pdf or Word format by clicking on the appropriate link in the Index.

December 2020

Rules1.07 (Court Control over the Presentation of Evidence) and 8.07 (Ancient Documents) were amended for reasons stated in footnote (1) of each rule.

The following rules were added:

3.10. Agriculture Inspection Certificate [CPLR 4529]
3.12. Ancient Filed Maps, Surveys and Real Property Records [ CPLR 4522]
3.14. Conveyance of Property without the state [CPLR 4524]
3.16. Death of a Missing Person [CPLR 4527]
3.18. Marriage Certificate of Record of Registration [CPLR 4526 & DRL 14-A]
3.20. Process Server Affidavit [CPLR 4531]
3.22. Survey Documents [CPLR 4534]
3.24. Title Co. Certificate of Search [CPLR 4523]
3.26. UCC Art. 9 Filing [CPLR 4525]
3.28. Weather Certificate [CPLR 4528]

4.08 Open Door Evidence
4.20.1 Consciousness of Guilt
4.21.1 Culpability of Third Party


6.02 Competency of Previously Hypnotized Witness
6.02.1 Competency per Dead Man’s Statute [CPLR 4519]
6.14. Impeachment by Improperly Obtained Evidence
6.16. Impeachment of Law Enforcement Officer


8.08. Business Records [ CPLR 4518]
8.24. Market Reports [CPLR 4533]
8.36. Prior Testimony in Civil Proceeding [Part I: CPLR 4517; Part II Common Law]
8.36.1. Prior Testimony in Criminal Proceeding [CPL 670.10]

11.14. Voice Recordings