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Understanding Hearsay Evidence in New York: Definition and Admissibility, Lecture notes of Law

Civil Lawevidence lawCriminal Law

An in-depth explanation of the concept of hearsay evidence in the new york legal system. It covers the definition of hearsay, the role of the declarant, and the different types of hearsay. The document also discusses the admissibility of hearsay, including the relevance test and exceptions. It concludes by highlighting various non-truth purposes for which hearsay statements may be admitted into evidence.

What you will learn

  • Who is considered a declarant in the context of hearsay evidence?
  • What is the definition of hearsay evidence in New York?
  • What are some non-truth purposes for which hearsay statements may be admitted into evidence in New York?

Typology: Lecture notes

2021/2022

Uploaded on 09/27/2022

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ARTICLE 8. HEARSAY

8.00. Definition of Hearsay

(1) Hearsay is an out of court statement of a

declarant offered in evidence to prove the truth of the

matter asserted in the statement.

(2) The declarant of the statement is a person who is

not a witness at the proceeding, or if the declarant is a

witness, the witness uttered the statement when the

witness was not testifying in the proceeding.

(3) A statement of the declarant may be written or

oral, or non-verbal, provided the verbal or

non-verbal conduct is intended as an assertion.

Note This section sets forth the definition of hearsay which is generally applied by the courts. ( See People v Nieves , 67 NY2d 125, 131 [1986] [the statements in issue “constituted hearsay evidence, as they were made out of court and were sought to be introduced for the truth of what she asserted. Accordingly, they were admissible only if the People demonstrated that they fell within one of the exceptions to the hearsay rule” (citations omitted)]; see also People v Caviness , 38 NY2d 227, 230 [1975]; Felska v New York Cent. & Hudson Riv. R.R. Co. , 152 NY 339, 342 [1897].) Hearsay admitted without objection may properly be considered by the trier of fact and can be given such probative value as under the circumstances it may possess. ( See Matter of Findlay , 253 NY 1, 11 [1930]; Ford v Snook , 205 App Div 194, 198 [4th Dept 1923], affd 240 NY 624 [1925].) However, the Appellate Division may in the interest of justice reverse or modify a judgment for error in admitting hearsay even though no objection was made at trial. ( See Alexander v State of New York, 36 AD2d 777, 778 [3d Dept 1971] [“It is well established that in the interest of justice we have the right to reverse a judgment and grant a new trial where there is fundamental trial error, even though no objection was taken at the trial”]; People v Clegg , 18 AD2d 694 [2d Dept 1962]; CPL 470.15 [3] [c]; [6] [a].) The Court of Appeals review power is much more limited as it is precluded from reviewing a claim of error when no proper objection was made at trial except where the claim falls within “the narrow class

of mode of proceedings errors for which preservation is not required.” ( People v Mack , 27 NY3d 534, 536 [2016].) The Court of Appeals has never held that a claim of error in the admission of hearsay to which no objection was made, much less a general claim of error in the admission of evidence generally, is a “mode of proceedings” error. Subdivision (1). No statement made by a declarant is inherently hearsay. Whether the statement is hearsay turns on the purpose for which it is offered. Thus, where the statement is offered for its truth, or has no relevant purpose other than a truth purpose, the statement is deemed hearsay. ( See People v Steiner , 30 NY2d 762, 763 [1972].) However, a statement which is not offered to prove the truth of the matter asserted therein is not hearsay. ( See People v Salko , 47 NY2d 230, 239 [1979] [“If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply” (internal quotation marks omitted)]; People v Becoats , 17 NY3d 643, 656 [2011] [there was no need for defendant to rely upon a hearsay exception because he was not offering the out-of-court statements for their truth].) If the statement is not offered for its truth, and is offered merely to show that the words were uttered or the conduct was engaged in, the issue of admissibility then becomes whether it is relevant and whether its probative value is substantially outweighed by the potential of unfair prejudice to the party against whom the statement is admissible. ( See Guide to NY Evid rule 4.07.) There are many non-truth purposes for statements offered into evidence which the Court of Appeals has recognized. For example:

  • A statement of a declarant which is heard by another and provides evidence of the hearer’s state of mind. ( See People v Waters , 90 NY2d 826 [1997]; Ferrara v Galluchio , 5 NY2d 16, 20 [1958].)
  • A statement of a declarant which provides evidence of the declarant’s state of mind. ( See People v Ricco , 56 NY2d 320 [1982]; Loetsch v New York City Omnibus Corp., 291 NY 308, 310-311 [1943].)
  • A statement of a testifying witness which may be inconsistent with the witness’s testimony and thereby tend to impeach the witness’s credibility. ( See Larkin v Nassau Elec. R.R. Co. , 205 NY 267, 268-269 [1912].)
  • A timely complaint of a sexual assault by the victim, known as “prompt outcry.” ( See People v McDaniel, 81 NY2d 10, 16-17 [1993].)

not “statements”]; People v Madas, 201 NY 349, 354 [1911] [identifying perpetrator by pointing to him a communicative gesture and therefore hearsay but admissible as a dying declaration]; Roche v Brooklyn City & Newtown R.R. Co. , 105 NY 294 [1887] [involuntary expressions and exclamations of pain not hearsay].)