Who Needs an Evidence Code?: The New York Court of Appeals' Radical Reevaluation of Hearsay

37 Pages Posted: 3 May 2011

Date Written: 1999


New York remains one of a handful of states without an evidence code. The law of evidence in New York has not, however, remained dormant. In the vital field of hearsay evidence jurisprudence, the New York Court of Appeals in the past decade has dramatically reshaped the admissibility landscape through common law development, leading to an unprecedented increase in the admission of out-of-court statements. Proponents of codification of the evidentiary rules in New York view it as the best way to achieve much-needed reform in the area, while opponents believe that codification inappropriately involves legislatures and politics in evidence law and will vest the trial judge with too much discretion, resulting in increased admissibility.

This Article shows that the Court of Appeals has altered the face of hearsay in New York State both by creating new exceptions and expanding existing ones, leading to in a pronounced trend toward greater admissibility. The consequence is a transformation in the types of evidence that jurors are permitted to hear and the ways in which trials are conducted. Part I examines the expansion of existing hearsay exceptions, focusing on excited utterances and statements made by witnesses who are unavailable due to the defendant's misconduct. Part II analyzes the recently adopted present sense impression exception, and the newly recognized due process catchall for reliable evidence that does not fit within any presently recognized exception. Part III evaluates the increased reliance on judicial interpretations of out-of-court statements as “nonhearsay.” Finally, Part IV analyzes the unintended, but predictable, consequences of the relaxation of evidentiary standards and attendant greater admissibility and their implications for the codification debate.

Keywords: Evidence, Hearsay, Federal Rules of Evidence, Codification

Suggested Citation

Zeidman, Steven, Who Needs an Evidence Code?: The New York Court of Appeals' Radical Reevaluation of Hearsay (1999). Cardozo Law Review, Vol. 21, p. 211, 1999, Available at SSRN: https://ssrn.com/abstract=1828942

Steven Zeidman (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY
United States

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