The Unified Court System’s Guide to New York Evidence

By William C. Donnino

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There now exists for the benefit of the bench and bar a new resource, the Guide to New York Evidence, published by New York’s Unified Court System at http://www.nycourts.gov/JUDGES/evidence/, with a “rule” set forth in black letter and a “note” explaining the decisional or statutory derivation of the rule and any decisional nuances on the meaning of the rule.1

The Guide to New York Evidence is a milestone in the publication of the law of evidence in New York. It brings this state into the 21st century with the federal government and all other states that have either a consolidated Code or Guide of their own rules of evidence.

As Chief Judge Janet DiFiore explained in commissioning a Committee to write the Guide to New York Evidence:

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.2

The Committee members are sitting and retired trial and appellate judges, including Susan Phillips Read, retired judge of the Court of Appeals, who serves as co-chair; and Michael J. Hutter, professor of the law of evidence, who serves as the Committee’s Reporter. (All committee members are listed at the website.)

It is important to understand that the Guide to New York Evidence is not a statutory code of evidence. It is, as its name is intended to make clear, a “guide” to the existing New York law of evidence, with a rule conforming to the language of the relevant statute or decisional law, particularly of the Court of Appeals. Language from the last Proposed Code of New York Evidence (1991) or the Federal Rules of Evidence (FRE) may be utilized but only when that language accurately reflects existing New York law. As rule 1.01 of the Guide to New York Evidence states: “the rules of evidence set forth in this Guide are not intended to alter the existing law of New York evidence and shall not be construed as doing so or as precluding change in the law when appropriate.”

The Guide to New York Evidence is presently comprised of the following articles:

1. General Rules & Court’s Role

2. Judicial Notice

3. Presumptions

4. Relevance and Its Limits

5. Privileges

6. Witnesses and Impeachment

7. Opinion Evidence

8. Hearsay

9. Authenticity and Identification

10. Best Evidence Rule

11. [Reserved]

12. Appellate Review

For easy comparison with the FRE, the first ten articles correspond to the structure of the FRE. Unlike the FRE, there is an Article 12, “Appellate Review,” which includes New York’s rules on the preservation of a purported error of law for appellate review. And there will be an Article 11 for the publication of rules relating to demonstrative evidence. There is also an index, listing the rules in alphabetical order, along with each rule’s section number.

Publication of the Guide to New York Evidence on the internet permits the bench and bar to carry it in various electronic devices and thereby have free, ready access to New York’s law of evidence wherever they may be, including in court.

An additional anticipated benefit of the Guide to New York Evidence is that it will serve as a catalyst for the courts to consider the areas of the law of evidence that need clarification and thereby fulfill the promise of the common law.

1See New York’s Evidence Guide: The Court System’s ‘Best Kept Secret,’ New York Law Journal, September 10, 2019.

2. State of the Judiciary (Feb. 20, 2017).

Hon. William C. Donnino is a retired Supreme Court Justice and co-chair of the New York Unified Court System Guide to N.Y. Evidence Committee.

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