Appendix A: Evidence

APPENDIX A

EVIDENCE

Observance of Rules of Evidence Not Required

A hallmark of administrative law is that compliance with the technical rules of evidence applicable in civil and criminal actions is not required in adjudicatory proceedings. SAPA §306(1), which governs the evidentiary standards for adjudicatory proceedings, provides that "agencies need not observe the rules of evidence observed by the courts, but shall give effect to the rules of privilege recognized by law." While SAPA §306(1) also authorizes an agency to adopt a rule providing for the application of the rules of evidence in an agency adjudication proceeding, no agency has promulgated a rule to such effect. Additionally, the courts have not required as an essential element of a fair adjudicatory proceeding that an ALJ is bound by the rules of evidence.

The refusal to mandate compliance with the rules of evidence, other than preserving the recognized common law, statutory and constitutional privileges, takes into account the major differences between judicial and administrative adjudication. In that regard, the rules of evidence have as a goal to ensure that a jury verdict is based on logic and rationality. Thus, there are many evidentiary rules, with numerous exceptions, that prohibit the admissibility of certain offered evidence because it is believed that individual jurors are unable to evaluate such evidence properly, perhaps by giving it too much weight or by using it for punitive purposes. Furthermore, such rules are difficult to understand in every detail and difficult to apply; experienced judges will often disagree as to whether offered evidence is admissible.

On the other hand, the ALJ has the knowledge and ability to assess properly offered evidence and does not need the protection that the rules of evidence are designed to provide for jurors. The application of the technical rules of evidence and the necessary, and surely frequent, determination of questions regarding their application would be "inconsistent with the objectives of dispatch, elasticity, and simplicity which the administrative process is designed to promote." [Administrative Procedure in Government Agencies: Report of the Attorney General's Committee on Administrative Procedure (Washington, DC 1941)]. Thus, it has long been regarded as appropriate not to insist on adherence to the rules of evidence in adjudicator proceedings.

Accordingly, the AL does not, and should not, conduct a hearing through a rigid application of the technical rules of evidence. Rather, the AL may allow evidence to be admitted even though such evidence would be inadmissible at a civil or criminal trial. Thus, hearsay, single level or double level, may be received by the administrative law judge. [See, e.g., A.J. & Taylor Restaurant, Inc. v. State Liquor Authority, 214 AD2d 727, 625 NYS2d 623 (2nd Dep't 1995) (statement from person absent from hearing regarding the purchase of alcohol by minors, although hearsay, is admissible); Matter of Ribya "BB", 243 AD2d 1013, 663 NYS2d 417 (3rd Dep't 1997) (statement from person absent from hearing regarding what someone else told her about the minor's treatment, although double-level hearsay, is admissible)]. Similarly, written reports may be received. [See, e.g., Gray v. Adduci, 73 NY2d 741, 536 NYS2d 40 (1988) (arresting officer's written report concerning person's conduct, although hearsay, is admissible); Andersen v. Department of Motor Vehicles, 227 AD2d 617, 643 NYS2d 598 (2nd Dep't 1996) (report of officer's safety inspection, although hearsay, is admissible)]. Additionally, statistical evidence may be received, [See, e.g., Enrico v. Bane, 213 AD2d 784, 623 NYS2d 25 (3rd Dep't 1995); Sunset Taxi Co. v. Blum, 73 AD2d 691, 423 NYS2d 231 (2nd Dep't 1979)], as well as copies of documents, or documents that have been altered, [See, e.g., R&D Equipment Leasing Company, Inc. v. Adduci, 220 AD2d 900, 632 NYS2d 332 (3rd Dep't 1995) ("best evidence" rule does not bar admissibility of a copy of document); Swick v. New York State and Local Employees' Retirement System, 213 AD2d 934, 623 NYS2d 960 (3rd Dep't 1995) (altered document may still be admissible)], even though such evidence might not be admissible at a trial.

When the ALJ receives evidence, even though the receipt of such evidence would be barred in a court of law, the important and practical question for the ALJ to determine is what weight, if any, should be given to it. The weight of evidence on a disputed issue is on that side of the issue on which the evidence is more probative. In determining how much weight to give to evidence, a common sense approach must be used.

Discretion to Admit or Exclude Offered Evidence

Although the ALJ is free to receive any offered oral or non-testimonial evidence, unless barred by an applicable privilege, it does not necessarily follow that the ALJ should receive any and all offered evidence. To admit any and all evidence that may be offered, however remote from the issues to be determined and however unreliable or untrustworthy, means not only delay but also results in intolerably long and confused records. Additionally, erroneous determinations could be reached as a result.

Consequently, SAPA §301 provides for, and the courts authorize, the exercise of discretion by an ALJ as to whether or not offered evidence should be admitted. [See, Sowa v. Looney, 23 NY2d 329, 333, 296 NYS2d 760, 764 (1968)]. If the offered evidence is irrelevant or cumulative or is without any demonstrable reliability, it may be excluded. [SAPA §306(1); Sowa v. Looney, 23 NY2d at 333-334, 296 NYS2d at 764-765, supra.].

For instance, an ALJ may exclude offered evidence on the ground that it is irrelevant, [See, e.g., Flynn v. Coombe, 239 AD2d 725, 657 NYS2d 494 (3rd Dep't 1997)(testimony of proposed witnesses was properly excluded as they had no personal knowledge of the incident in issue, rendering their testimony irrelevant); Amato v. Department of Health, 229 AD2d 752, 645 NYS2d 600 (3rd Dep't 1996) (in OPMC proceedings to revoke physician's license for negligent and incompetent treatment of five obstetrical patients, testimony of other patients regarding their treatment by physician properly excluded as irrelevant); Goomar v. Ambach, 136 AD2d 774, 523 NYS2d 238 (3rd Dep't 1988) (exclusion of grand jury no bill against physician on ground of irrelevancy proper as such evidence did not prove/disprove physician's alleged conduct)], or cumulative. [See, e.g., McKinley v. Stinson, 237 AD2d 815, 655 NYS2d 669 (3rd Dep't 1997) (in view of fact that 4 witnesses testified on behalf of petitioner, exclusion of additional witnesses who would testify similarly was properly excluded as cumulative); Gonzalez v. Department of Health, 232 AD2d 886, 648 NYS2d 827(3rd Dep't 1996) (exclusion of exhibits was proper as their subject matter was fully addressed by expert witnesses)]. Similarly, irrelevant or repetitious cross-examination can be excluded. [See, e.g., Gonzalez v. Department of Health, supra; Amato v. Department of Health, supra]. The ALJ may also exclude offered evidence on the ground that it is hearsay. [See, e.g., Achatz v. New York State and Local Police and Fire Retirement System, 239 AD2d 857, 657 NYS2d 521 (3rd Dep't 1997) (medical progress reports of petitioner's nontestifying treating physician properly excluded as hearsay as counsel for respondent would have been denied opportunity to cross-examine physician regarding key findings therein); Gross v. DeBuono, 223 AD2d 789, 636 NYS2d 147 (3rd Dep't 1996) (ALJ did not err in precluding petitioner physician's expert from testifying as to petitioner's description of his examination of patients, as petitioner elected not to testify and he was simply trying to introduce his own self-serving statements through another witness)].

The ALJ must exercise intelligent judgment as to whether offered evidence should be excluded because it is either irrelevant or unreliable. As in determining how much weight, if any, should be accorded to admitted evidence, a common sense approach must be used in assessing relevancy and reliability. However, where the ALJ has some doubt as to the evidence's relevancy or reliability, the evidence should be received and appropriate weight given to it in arriving at a decision. When in doubt, it is better to have a complete record, rather than a possibly incomplete one.

Certain Evidentiary Rules Are to Be Given Effect

Privileges

SAPA §306(1) specifically provides that the privileges recognized in law are to be given effect in adjudicatory proceedings. Thus, New York State law privileges whether created under statutory enactment or the common law, as well as constitutional privileges, whether federal or state, are to be applied by the ALJ. A fuller discussion of the privileges is provided infra.

Official Notice

The practice in New York in adjudicatory proceedings has traditionally been to permit agencies to take judicial notice of everything of which courts could take judicial notice and to take official notice of matters within the specialized expertise of the involved agency. [See, Borchers and Markell, New York State Administrative Procedure and Practice (2d ed) §3.9]. SAPA §306(4) codifies this dual practice for adjudicatory proceedings, provided that notice and opportunity to respond when a matter within its specialized expertise is officially noticed, and calls it "official notice."

The concept of judicial notice, as developed by the courts, allows only clearly indisputable facts to be the subject of judicial notice. Examples are such facts as are so generally known or of such common notoriety that they cannot be reasonably the subject of dispute, and specific facts and propositions of widely known and generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.

Additionally, taking judicial notice of records found in standard almanacs, official government weather reports, the contents of standard dictionaries, the wording of statutes and constitutions are classic instances where official notice can be taken. Thus, matters of fact used as historical events; the course and laws of nature; mortality tables; intoxicating nature of beverages; geographical facts; census statistics; meterological data on a certain day; official weather reports; existence of departments and political subdivisions of government; public officers, past and present; and meaning of words, phrases and abbreviations can be judicially noticed. Matters of law, such as statutes of state; acts of congress; regulations; court procedures; authority of public officers; laws of other states; and laws of foreign countries, if a party requests it and furnishes the court with sufficient information to enable it to comply with the request, can be judicially noticed. [See, CPLR § 4511].

As to matters that are within the specialized knowledge of the agency, the case law gives a broad freedom to which matters can be noticed, so long as the requisite notice is given. [See, e.g., Cohen v. Ambach, 112 AD2d 497,490 NYS2d 908 (3rd Dep't 1985)]. Thus, official notice can be taken of earlier agency proceedings [See, e.g., Bracken v. Axelrod, 93 AD2d 913, 461 NYS2d 922 (3rd Dep't 1983)], and matters that would otherwise be the subject of expert testimony. [See, e.g., Cohen v. Ambach, supra].

When an ALJ intends to take official notice of a matter pursuant to SAPA §306(1), it is the ALJ's duty to state on the record the matters of which he/she intends to take official notice and to afford parties the opportunity to argue, comment upon, controvert or distinguish the propriety of taking such notice or to limit the extent and contents of the matter to be noticed. They may not succeed but they have the right to know everything that is being considered.

The taking of official notice by an ALJ is discretionary. As the taking official notice at the request of an agency may work an unfair advantage to an adverse party, especially where the parties are not represented, it should be exercised with caution.

Specific Statute

In specific instances, the Legislature may provide that certain evidence shall or shall not be received in adjudicatory proceedings. [See, e.g., N.Y. Publ. Health L. §10(2) (written reports of investigators concerning alleged violations and investigations "shall be received" in all "courts and places")]. Where such statutes are applicable to an adjudicatory proceeding, they must be given effect.

Unlawfully Obtained Evidence

Issues of admissibility also arise when evidence that is offered has been obtained in violation of a statute or an exclusionary rule based on a violation of a constitutional provision. For example, CPLR §4506 prohibits the use of evidence obtained through the use of an illegal wire tap at an adjudicatory proceeding as well as a civil or criminal action. [See, LaPenta v. State Liq. Auth., 24 NY2d 647, 659-661, 301 NYS2d 584,591-593 (1969)]. With respect to evidence seized in violation of a constitutional provision, e.g., illegal search or seizure in violation of the Fourth Amendment, such evidence is inadmissible at an adjudicatory proceeding if the person who committed the violation was an employee of the agency conducting the proceedings, or a police officer acting as an agent of the agency. [See, Finn's Liq. Shop v. State Liq. Auth., 24 NY2d 647, 658-659, 301 NY2d 584, 589-592 (1969) (employee); Malik v. State Liq. Auth., 24 NY2d 647, 661-663, 301 NYS2d 584, 593-596 (1969) (police officer)].

Where the evidence was obtained unlawfully by police officers, but they were not at the time the evidence was seized agents of the agency conducting the proceeding, a "deterrence analysis" is employed to determine the evidence's admissibility at the proceeding. [See, Boyd v. Constantine, 81 NY2d 189, 597 NYS2d 605 (1993)]. This analysis considers whether the police officers could have foreseen when they engaged in the conduct constituting the violation that the person involved would be subject to an adjudicatory proceeding as a result. If they could not have foreseen such result, the evidence is admissible, and if they could, it is inadmissible. [Id.].

The ALJ and the Rules of Evidence

From the above discussions it can be seen that the ALJ is neither obligated to apply the rules of evidence nor obligated to ignore them, except for privileges. As a practical matter, the admission or exclusion of offered evidence is committed to the sound discretion of the ALJ. So long as the ALJ admits only relevant or reliable evidence, and excludes irrelevant or unreliable evidence regardless of the evidence's admissibility under the rules of evidence, the ALJ will assure a fair, as well as an expeditious hearing.

While the practice in adjudicatory proceedings is not to require the rules of evidence to be followed, knowledge of the rules of evidence and their underlying policies, and an understanding of how they would apply to offered evidence is important. Such knowledge and understanding will be most helpful to the ALJ in determining not only whether the offered evidence has relevance or demonstrable reliability, but also how much weight, if any, should be given to evidence when it is received. Thus, knowledge that offered evidence would be excluded or admissible by application of the rules of evidence and why such a result occurs would certainly be a great aid in making rulings or deciding cases.

What follows in Part Two is a rather truncated discussion of the basic evidentiary rules. It is intended as an introduction and guide to the rules which the ALJ will most frequently encounter at adjudicatory proceedings, and hopefully will assist the ALJ in making his/her rulings on evidentiary matters.

Definitions

Generally

Evidence is the legal term which covers all of the information and facts adduced in a case, be it testimony of witnesses, or documents or other objects identified by witnesses, or otherwise admissible and presented to the court to prove or disapprove the facts in issue. Evidence is the medium of proof.

Proof is the effect or result of evidence in convincing the mind or the trier of the facts. It is the conclusion arrived at by a consideration of the evidence.

Facts and Circumstances. A fact is what a witness has seen, heard, smelled, felt or tasted. Circumstances are collections of facts.

Inferences may be drawn from facts and circumstances. Inferences are reasonable deductions or conclusions flowing logically from facts which have been proved.

Opinions are statements a witness makes and believes what occurred or did not occur. They may be based on two or more separate facts.

Testimony is the oral part of evidence consisting of the statements of witnesses made under oath.

Non-testimonial evidence is evidence which is not testimonial in nature and is admitted into evidence as exhibits. It includes:

Documentary Evidence consists of writings, instruments, records and documents of all kinds, including computerized records.

Real Evidence is evidence of which the trier of the facts acquires knowledge by personal observation and inspection of a thing or object to which the testimony refers. It may be a physical object, inspection of premises or exhibition of parts of the body.

Demonstrative Evidence is evidence which illustrates for the trier of fact testimony or non-testimonial evidence that is presented to the trier of fact, and helpsthe trier of fact understand such other evidence. It includes photographs, maps, sketches, diagrams, motion pictures, videotapes, x-rays, computer generated animations and experiments.

Kinds of Evidence

Direct Evidence is proof of the facts in issue, communicated to the trier of the facts by witnesses, having actual knowledge of them by means of their senses. It is that evidence which, without interference or evidence of any other facts, tends to establish directly a fact in issue.

Circumstantial Evidence is proof of collateral facts, where circumstances are shown, from which the inference may be drawn that the principal or essential facts are true and existed, in such a way that the proof is irreconcilable with any other theory that can be present.

Substantive Evidence or Evidence-in-Chief is evidence that is adduced for the purpose of proving a fact in issue, thus enabling the party offering the evidence to meet its burden of production on a fact in issue.

Impeaching Evidence is evidence that is adduced for the purpose of discrediting a witness on documentary evidence. It does not help a party in meeting its burden of production.

Evidentiary Worth

Probative Value of Evidence refers to the tendency, if any, of evidence to make a fact of consequence in the action more or less probable than it would be without the evidence.

Weight of Evidence refers to how much probative value admitted evidence should be accorded, taking into account credibility, and logic and reason, by the trier of fact.

Sufficiency of the Evidence refers to whether the evidence admitted on behalf of a party is sufficient to satisfy the party's burden of production.

Presumptions

Generally

A presumption is a rule of law requiring that if one (the "basic") fact or set of facts is established, the trier of fact must find that another (the "presumed") fact also exists unless the trier of fact is persuaded that the latter does not exist. A presumption differs from an inference in that an inference permits, but does not require as does a presumption, a trier of fact to conclude that another fact has been established. Presumptions, the source of which is the common law and legislative enactments, are recognized for policy reasons, generally because they reflect natural probabilities based on logic and experience.

Generally, once the basic facts are proven and accepted by the trier of facts, the presumption arises. At that point, if the party against whom the presumption works does not establish by a preponderance of evidence that the presumed fact does not exist, the jury must find that the fact exists. If the party rebuts the presumption, the presumption leaves the case entirely. All that remains of the presumption is the possibility that the jury may draw an inference from the basic facts that the presumed fact exists. However, it must be noted that many of the numerous presumptions recognized in the law have their own set of rules which differs from this view of the general operation of presumptions. As a result, each one that is in issue should be scrutinized.

Specific Presumptions

It is impossible to enumerate all the presumptions recognized in the law. Some of the more common ones are:

It is presumed that a public official, a fiduciary, an officer or director of a corporation will not do anything contrary to his/her official duty or fail to do anything which his/her official duty requires him/her to do;

It is presumed that a death was not brought about by suicide.

For joint accounts it is presumed that the account is the property of those named.

It is presumed that a public employee who stays out of work during a strike is engaged in striking.

It is presumed that a person died at the end of five years of unexplained absence.

Knowledge of the contents of their books is presumed when members of a firm have access to them and an opportunity to know how their accounts were kept.

Mailing of letters: It is presumed that a properly addressed and stamped envelope, deposited in a post office or regularly maintained post box, reaches its destination. If the proof is that such mailing was in a course of business or office practice, it raises the presumption that it was in fact mailed. However, there must be a foundation laid showing that the letter was placed in the usual office receptacle for outgoing mail and the person whose duty it is to mail such letters testifies that he/she always mails such letters placed in such receptacle, and what procedure he/she follows.

Proof of ownership of a motor vehicle creates a presumption that the person operating it, did so with the owner's permission.

Where alleged services are rendered by a relative or close friend, it is presumed in the absence of agreement, that they were rendered voluntarily, gratuitously and without expectation of pay therefor.

Application At The Adjudicatory Proceeding

Whether to apply an otherwise applicable presumption is in the discretion of the ALJ. Unless there is some good reason not to give effect to the presumption, it should be applied.

Relevancy

Generally

The linchpin of all evidence law is the rule that only relevant evidence is admissible and irrelevant evidence is excluded. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. This definition recognizes that relevancy is not an inherent characteristic of an item of evidence but exists only as a relation between an item of evidence and a fact that may be properly proved in an action.

Under the definition, to be relevant, the evidence must tend to prove a fact that is of consequence to the litigation. What is of consequence to the litigation will necessarily turn upon the applicable substantive law within the framework of the pleadings and the theory of the action. The fact to which the evidence is directed need not be an ultimate fact or a vital fact, or be in dispute. It suffices that the fact is of some consequence to the disposition of the litigation.

The definition further provides that relevancy also depends upon whether the evidence has "any tendency to make the existence" of the fact of consequence "more probable than it would be without the evidence." When the evidence has such tendency it is considered to have probative value. It is not necessary that the evidence by itself proves the fact for which it is offered or makes the fact more probable than not. A minimal probative tendency is all that is required.

With respect to the tendency element, the test is essentially one of logic and reason. The ALJ or hearing officer, drawing upon his or her own experience, knowledge and common sense, asks whether some logical, rational relationship exists between the offered evidence and the fact to be proven. If such relationship exists, the evidence is relevant, and, if not barred by some other evidentiary rule, admissible. If there is no such relationship, the evidence is irrelevant and excluded. Once the evidence is admitted, it is for the trier of fact to determine how much weight is to be accorded to it.

Even though evidence is relevant, the hearing officer possesses the discretion to exclude it. In that regard, the court may exclude relevant evidence which may have a tendency to cause undue prejudice, confuse the issues, would be cumulative, or unduly consume time, when it is determined that the evidence's probative value is substantially outweighed by one or more of these factors. Under this standard, where probative value is slight, and the danger of undue prejudice, etc., is great, exclusion of the evidence would be warranted, and where the probative value is high and the danger of undue prejudice, etc., is slight, exclusion would not be warranted.

Special Relevancy Rules

Based on experience and policy, the courts and the Legislature have developed special relevancy rules governing specific situations. Some of these rules are as follows:

• Failure To Produce Witnesses and Documents

A party's failure to produce a witness or document when the circumstances indicate it would be logical to do so gives rise to an inference that the witness or document was not produced because the witness or document would have provided facts unfavorable to the party. As a result, the other party may comment on the failure to produce and obtain an adverse inference charge, which permits the trier of fact to consider as relevant evidence the inference and, further, draw the strongest inference against the party.

To obtain such an adverse inference, it must be established that the missing witness or document would be expected to testify favorably or be favorable on behalf of the party who has not called him/her or produced the document; that such testimony or document would be non-cumulative; and that the witness or document is available to the party who has not called him/her or produced the document.

The rule is applicable in civil and criminal cases, but as the defendant in a criminal case has a constitutional right not to testify, it is a violation of that constitutional right to comment on an exercise of that right.

• Destruction Of Evidence

Similar to the inference that may arise when a party fails to produce a witness or document, a party's destruction of relevant evidence gives rise to an inference that the destroyed evidence would have not supported, or would have been adverse to, the party's case.

• Invocation Of Privileges

When a party in a civil or criminal case asserts a privilege to prevent disclosure of testimony or documents, comment upon such invocation of the privilege and an adverse inference from the invocation is permitted. The adverse inference to be drawn is similar to the adverse inference permitted as the result of a failure to call a witness or produce a document. The inference is permitted to be drawn even when the Fifth Amendment privilege against self-incrimination is invoked, except when the defendant invokes it.

• Habit Or Custom

Evidence of a person's habit or proof of business, professional or other institutional practice or custom is admissible as proof that the habit, or practice or custom, was or would have been followed under the same set of circumstances on a specific occasion. Thus, evidence that a person had the habit of engaging in certain conduct is admissible to prove that the person engaged in that conduct at another time. Similarly, evidence that an institution's practice was to have an employee perform a certain task is admissible to prove that a certain employee performed that task on a given occasion.

• Similar Accidents Or Events

Evidence that tends to establish that a person has been negligent on prior occasions is inadmissible to prove that the person was negligent on another occasion. Similarly, evidence that prior accidents have occurred involving a party's product or property is inadmissible to establish that the party was negligent on another occasion with respect to the product or property. However, evidence of such prior events or accidents may be admissible to establish other facts, such as existence of a dangerous condition or notice.

• Character

Evidence of a person's character, i.e., a person's disposition or propensity to engage or not engage in various kinds of conduct, whether consisting of reputation evidence or evidence of prior acts, is inadmissible to prove that the person acted in conformity or in accordance with his character on a particular occasion. Thus, in an automobile accident action, a plaintiff may not show that defendant has a record of numerous traffic infractions or accidents to prove defendant was driving negligently at the time of the accident, nor may the defendant offer evidence of an excellent driving record, i.e., no tickets or accidents, to show defendant was driving carefully at the time of the accident. In a criminal action, the prosecutor may not show that the defendant has a lengthy criminal record to establish that the defendant is guilty of the crime charged.

While such character evidence may have probative value, it is excluded on policy grounds. The view is that such evidence may distract the trier of fact from the main issue of what occurred on the particular occasions, and induce the trier of fact to punish a "bad" person or reward a "good" person because of his/her character, regardless of the evidence in the case.

However, where the evidence of prior acts is relevant for a purpose other than to show conformity or propensity, the evidence is admissible with respect to that person, even though it reveals or suggests a conformity or propensity inference. Such other purposes includes motive, intent or accident, establishment of identity, negate mistake and establishment of a common plan or scheme. A court may nevertheless exercise its discretion and exclude the evidence if it concludes that the evidence's probative value is substantially outweighed by the danger of unfair prejudice, etc.

• "Dead Man's" Statute

As provided by CPLR §4519, a person is barred from giving testimony, albeit relevant, where the person, who is interested in a transaction with a decedent, desires to testify against the estate of the decedent as to a transaction with the decedent. The statute is complex and can be parsed as follows:

Generally upon a trial or proceeding, a party or person interested in the event, or a person, from, through, or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness in his/her own behalf or interest, or in behalf of the party succeeding to his/her title or interest; Against the executor, administrator or survivor of a deceased person or a person deriving his title or interest from through, or under a deceased person, by assignment or otherwise; Concerning a personal transaction or communication between the witness and the deceased person; Except where the executor, administrator or survivor so deriving title or interest is examined in his/her own behalf or the testimony of a deceased person is given in evidence concerning the same transaction or communication. However, the personal representative of the deceased may waive the privilege by a failure to object on the proper ground, or by calling the survivor to the transaction or communication as a witness; but the testimony is confined strictly to the same transaction or communication.

Application In Adjudicatory Proceedings

SAPA §306(l) provides that the ALJ may admit relevant evidence, and exclude irrelevant evidence, as well as unduly repetitious evidence. Practicality also suggests that the ALJs apply the basic relevancy rule; otherwise proceedings could last for an untolerably long time. Whether evidence is relevant is a judgment call for the ALJ, committed to the ALJ's common sense. To the extent a liberal view of relevancy is taken, the question then becomes how much weight the admitted evidence is to be accorded.

With respect to the special relevancy rules, to the extent they are inclusive in nature, they suggest that they ordinarily should be applied in an adjudicative proceeding. [See, Jean-Baptiste v. Sobol, 209 AD2d 823, 619 NYS2d 355 (3rd Dep't1994) (adverse inference from party's failure to testify at hearing may be drawn); DeBonis v. Corbisiero,155 AD2d 299, 547 NYS2d 274 (1st Dep't 1989) (party's invocation of Fifth Amendment privilege against self-incrimination may form basis of an evidence inference at a hearing)]. To the extent the special relevancy rules are exclusionary, they can, but not mandatorily, be applied. [Compare, Amato v. Department of Health, 229 AD2d 752, 645 NYS2d 600 (3rd Dep't 1996), (character evidence, testimony of two of petitioner's patients, that they received excellent care admitted in proceeding involving petitioner's other patients) with Freymann v. Board of Regents, 102 AD2d 912, 477 NYS2d 494 (3rd Dep't 1984) (petitioner's prior disciplinary conviction properly admitted; character evidence rule is not applicable in adjudicatory proceedings)]. In the end, admissibility is committed to the discretion of the ALJ.

Generally

The hearsay rule is actually two separate rules, namely, evidence which is hearsay is inadmissible unless there is an exception which is applicable. The rule is premised on a recognition that hearsay evidence itself lacks sufficient reliability or trustworthiness to be admissible, but there are instances in which the circumstances surrounding the making of the hearsay statement assure sufficient reliability or trustworthiness to warrant its admissibility.

Hearsay may be defined as a statement - an oral or written assertion, or non-verbal conduct intended as an assertion - made by a person other than while testifying at a trial or proceeding which is offered in evidence to prove the truth of the matter asserted. Expressed another way, it is evidence which seeks to establish the existence of a fact based not upon the witness's own personal knowledge or observation but on what someone else said. An example is: W, a witness, testifies as to what B said to W about D, a defendant at the trial, namely that B, who is not present to testify, saw D steal a car. This testimony is being offered to establish that D stole the car, the crime for which D is being tried. Such testimony would be barred by the hearsay rule.

The critical aspect of this testimony to D is what B allegedly saw. D will certainly want to know if B actually observed what is alleged he saw. How good was B's eyesight and how close was B to D when he observed the alleged conduct? How good was B's recollection of the observed conduct when he spoke to W? Does B harbor any bias or prejudice towards D? Is B a credible person? B, of course, is not available for cross-examination to test the possible problems raised, which go to B's perception, memory and veracity. Additionally, B's statements were not made under oath, and the jury cannot assess his demeanor. Permitting W to testify as to what B said would deprive D of an opportunity to test B's alleged observation.

Barring hearsay evidence expresses the common law preference that proof in civil and criminal actions be elicited under conditions where the witness is physically present before the trier of fact and subject to cross-examination by the party against whom the proof is being offered. Observance of these conditions permits the party affected by the testimony to test before the trier of fact the trustworthiness of the witness's testimony, which includes the witness's perception, memory, narration, and more generally his veracity, i.e., is the witness telling the truth?

However, when circumstances surrounding the making of the hearsay statement tend to indicate that the hearsay is reliable or trustworthy, the statement may be admissible under an exception to the hearsay rule. The common law and legislative enactments recognize many exceptions in differing circumstances. Generally speaking, these exceptions recognize that when those requirements of the exceptions are met, it is unnecessary to cross-examine the person who made the statement or have the person take an oath in the presence of a jury. Compliance with the exceptions' requirements dispenses with the need for cross-examination and oath, as such requirements establish equivalent guarantees of reliability or trustworthiness.

Hearsay Rule

• Hearsay

Hearsay, as discussed above, has three distinct elements, namely (a) an oral or written assertion, or non-verbal conduct intended as an assertion; (b) made or done by a person other than a testifying witness, and (c) which is offered in evidence to prove the truth of the matter asserted. These elements are stated in the conjunctive.

As a result, the hearsay rule does not render inadmissible every statement repeated by a witness as made by another person. Where the mere fact that a statement was made or a conversation was had is independently relevant, regardless of its truth or falsity, such evidence is not deemed hearsay, and is otherwise admissible.

It is, therefore, important to determine the purpose for which the evidence is being offered. If the evidence is being offered to establish the truth of the matter asserted therein, it is hearsay. Where the evidence is offered for a non-truth purpose, it is not hearsay, and so long as the non-truth purpose is relevant, it may be admissible.

Some examples may be given. X said to D, "Watch out for the hole in the roadway." When offered, not to prove there was a hole in the roadway, but to prove that D was put on notice of the possible existence of a hole such evidence would not be hearsay, and would be admissible if D's notice is relevant. D said to X, "I am the Pope." When offered to prove that D is mentally unsound, and such status is relevant, the evidence is not hearsay and is admissible. In this situation, the words indicate circumstantially the state of mind of the speaker, D. Additionally, certain words, e.g., the words of a libel or slander, of an offer, of an acceptance, of a bribe, when spoken, have independent legal significance. When spoken, they create legal rights and liabilities. Thus, in an action for slander, where the plaintiff alleges that the defendant called him a thief, a witness who heard the defendant make that statement may testify to it. Obviously, a statement offered for that purpose is not offered for its truth, but rather to establish the essence of the slander claim.

In these instances where the evidence is being offered to prove that a statement was made, and the making of the statement is relevant, the inability to cross-examine the maker of the statement is not all that significant. The reason is that the witness who said he/she heard the statement is present for cross-examination, and whether the statement was actually made can be tested through that witness.

• Exceptions

There are many hearsay exceptions that are recognized in New York law. They are recognized in the common law, contained in Article 45 of the CPLR as well as various statutes in the consolidated laws. A few significant ones will be mentioned here.

It is important to stress that if the evidence is hearsay, it is inadmissible, unless it satisfies one of the exceptions. Furthermore, if there are several links in the chain of hearsay (e.g., A told B, who repeated it to C, who then passed it on to D), each link will have to be independently justified under an exception.

■ Admissions

An admission is a statement or act which amounts to the affirmance of some relevant fact, where such affirmance operates against the interest of the party making it or doing it. It is receivable only against the party who made it. A witness may testify to a party's admissions because it is generally regarded that such admission is reliable, i.e., a party would not say things about himself/herself unless they were true.

Where the act or statement of a party is received as an admission, the party against whom it is admitted has the right to offer an explanation. The weight of an admission is for the trier of fact. Thus, the party may testify that the statement was made through mistake, or that it was made without any personal knowledge, and the trier of fact may credit that testimony.

An admission may be by silence when the person hears and fully comprehends the force and effect of the words spoken and when he/she is at full liberty to reply thereto and would naturally be expected to deny it if he/she considered it false. No presumption of acquiescence would arise if the person at the time of the statement was asleep, intoxicated, deaf, unable to fully understand the language used, or incapacitated or in any way deprived of the freedom or opportunity to reply.

There are also judicial admissions, formal or informal.

Examples of a formal judicial admission are admitting the genuineness of a paper or photograph; admission under an agreed state of facts or a stipulation (unless relieved therefrom by the court); and, facts admitted by the pleadings (complaint, answer, reply). Such admissions are conclusive of the facts admitted in the action in which they are made, unless a court orders otherwise. An informal judicial admission may be facts incidentally admitted in the course of a trial in the same or another case or facts admitted in a deposition or affidavit. Such admissions are not conclusive.

Statements made by a party's employee or agent are receivable against the party as the party's admission only if they were made within the scope of the employee's or agent's authority, i.e., when the statement was authorized to be made by the employer, expressly or impliedly.

■ Business Records

Under New York's business records exception, which is codified in CPLR 4518, any writing or record, entry, memorandum or any act, transaction, occurrence or event is admissible in evidence as proof of said act, occurrence or event, if it was made in the regular course of any business, profession, occupation or calling of any kind and it was the regular course of such business, to make such memorandum or record at the same time of such act, transaction, occurrence or event, or within a reasonable time thereafter. It is emphasized that this exception to the hearsay rule embraces only those entries which are made systematically in the regular routine and usual course of the business, etc. It does not embrace entries made as isolated transactions or incidents or for a specific purpose which is the subject of the litigation or hearing.

Under this exception, a record in any form that describes acts, events, conditions, opinions, or diagnoses is admissible as an exception to the hearsay rule if four requirements are met. First, the record must be "made at or near the time" of the event or opinion being recorded. Second, the maker of the record must either himself/herself have personal knowledge of the matter being recorded and a duty to record it, or must have received the data from others with personal knowledge and under a duty to transmit the information. Third, the record must be kept in the course of a regularly conducted business activity. Finally, it must be shown that it was the regular practice of the business to make the record. The requirements of the exception guarantee trustworthiness since business records are customarily checked; the regularity and continuity of such entries produce habits of precision; the business activity functions in reliance on the records; and employees of the entity are charged with recording and reporting accurately as part of their job.

It must be recognized that this paragraph does not by itself encompass entries which, although recorded in the regular course of business, contain information supplied by an outsider not under a business duty to report. This is not, however, to say that an entry based upon information supplied by an outside volunteer can never be admitted. If the outsider's statement satisfies the requirements of another hearsay exception, the statement may be admissible.

Examples of records that may be admissible as business records are books of account; written memoranda of public officers; and, hospital records covering diagnosis, prognosis, treatment and certified bills.

■ Public Records and Documents

Under the common law and various specific statutory provisions, books, documents and records of a public nature required to be kept are admissible under the public records exception. Thus, birth, marriage and death certificates are specifically made admissible. Additionally, public records in general may be admissible under the business records exception.

Under recent judicial decisions, an exception has been recognized for public investigative reports as to their findings and conditions. [See, e.g., Cramer v. Kuhns, 213 AD2d 131, 630 NYS2d 128 (3rd Dep't 1995) (NHTSA report concerning kick stands on motorcycles); Bogdan v. Peekskill Community Hospital, 168 Misc2d 856, 642 NYS2d 478 (Sup. Ct. 1996) (OPMC findings)]. Such reports are presumptively reliable, but the courts have broad discretion in determining their relevancy and reliability.

■ Prior Testimony

Under CPLR 4517 prior testimony by a witness in an action who is now unavailable to testify is admissible provided such prior testimony was under oath and subject to cross-examination and was on the same subject matter in a prior proceeding involving the same parties. Deposition testimony of a witness is not admissible under this statute but will usually be admissible under CPLR 3117. Interestingly, testimony taken at administrative proceedings is not covered by CPLR 4517. [See, Fleury v. Edwards, 14 NY2d 334, 251 NYS2d 647 (1964)].

■ Excited Utterances

New York recognizes the "excited utterance" exception. The requirements of admissibility under this exception are: (1) the occurrence of an event or condition sufficiently startling; (2) a statement brought about by the event or condition and relating to it; and (3) the absence of time to fabricate. There is no requirement that the declarant be a participant in the event or condition. Thus, the statement may be made by a bystander who observes the startling event.

Such statements are deemed to have a high degree of reliability because they are the impulsive and unreflective responses to an event, which militates against their being made after thought and deliberation.

Application in the Adjudicatory Proceeding

Hearsay may be received, or it may be rejected by the ALJ in the ALJ's discretion. How should an ALJ exercise his/her discretion on hearsay objections?

The policies underlying hearsay and its exceptions give some guidance. In that regard, the hearsay rule is not a rule that operates against common sense, and when the evidence is clearly reliable, albeit hearsay, the ALJ can admit and give the evidence the weight it deserves. The indicia of reliability include–corroboration of the statement's content, in whole or in part, by other evidence; the lack of any basis from which it can be said there is a reason to falsify; and the existence of facts and circumstances which show that a hearsay exception is available. The hearsay statement may also be discounted when there appears to be no legitimate reason why the person who made the statement is not testifying. In short, the ALJ is asking whether the statement "rings true." If it does, it can be admitted, and if it does not, it can be excluded.

It should also be kept in mind that if the opposing party has no objection to the introduction of hearsay statements, they can be recognized as evidence. The question then becomes one of how much weight should be given to it, which is answerable by considering the above-stated factors.

Additionally, hearsay statements, such as affidavits attesting to certain facts, can be received as to collateral issues, ones not affecting the relevant issues in the proceeding.

Generally

New York law recognizes numerous evidentiary privileges. Privileges have been recognized in order to protect or encourage a specific relationship or interest as a matter of public policy. In that regard, privileges foster relationships and interests that are deemed to be of sufficient social importance so that nondisclosure of the privileged communication or matter is accepted even though the cost of doing so is to keep relevant and reliable evidence from a jury.

There are several sources of privileges. Article 45 of the CPLR contains the principal privileges: spousal [CPLR 4502], attorney-client [CPLR 4503], physician-patient [CPLR 4504], clergy-penitent [CPLR 4505], psychologist-client [CPLR 4507], social worker-client [CPLR 4508], library records [CPLR 4509], and rape crisis counselor-client [CPLR 4510]. There are also many privileges throughout the consolidated laws. [See e.g., Civ. Rts. Law §79-h (professional journalists and newscasters);Civ. Rts. Law § 79-j (medical records in computer-based multi-state information system); DRL §114 (adoption records); PHL §2301(3) (records of persons with sexually transmitted diseases); PHL §3371 (certain records relating to controlled substances); Soc. Serv. L §136(2) (records of public assistance recipients)]. Additionally, several privileges have been judicially developed: parent-child, trade secrets, official information.

As a general proposition, these privileges protect confidential communications made during the course of the protected relationships, or records or documents made that record certain information. Confidential communications are statements, oral, written or non-verbal, made in the absence of a third-party and that are not intended to be disclosed to parties outside the relationship. When a privilege is applicable, a person can refuse to disclose a communication or record, and prevent others from doing so. Even when a privilege is applicable, there are limited circumstances when the confidential communication or document can be ordered disclosed, or a person may have waived the protection of the privilege.

There is also recognized a self-incrimination privilege, under the Fifth Amendment of the United States Constitution, Art. I, §6 of the New York State Constitution, and CPLR 4502. Unlike the other mentioned privileges, the self-incrimination privilege is intended to strike a balance between the government and the individual in criminal proceedings. This privilege recognizes that a person is not required to give an answer to a question which will tend to incriminate the person or expose the person to a penalty or forfeiture.

Understanding privileges completely is a difficult task. As observed by a leading treatise, current privileges, "are incomplete, inconsistent, undecided on significant questions, and virtually impenetrable to all except the most experienced counsel." [Martin, Capra and Rossi, New York Evidence Handbook (1997), §5.12, at pp.303-304]. What follows is not intended to be a complete discussion of privileges but rather a brief introduction to the principal privileges.

Principal Privileges

• Attorney-Client

Under the attorney-client privilege, an attorney may not disclose a confidential communication made to him/her by a client for the purpose of obtaining or providing legal assistance for the client. The client, too, may refuse to make such disclosure. Only the client may waive the privilege, and upon the client's death, only a limited right of disclosure that relates to wills is permitted. The privilege does not, however, extend to communications with an attorney consulted for the purpose of committing what the client knew or reasonably should have known to be a crime or fraud.

• Spousal

Under the spousal privilege, neither spouse may testify to a confidential communication made by one to the other during the marriage. The communication must have been made in reliance upon the intimacy of the marital relation. Routine exchanges of business information are not within the privilege. One spouse may not waive the privilege and volunteer to disclose the confidential communication without the consent of the other spouse. After death, the surviving spouse may testify to the confidential communication, but cannot be compelled to do so.

• Physician-Patient

Under the physician-patient privilege, a physician, dentist, podiatrist, chiropractor, and nurse may not disclose information which was acquired during the course of treating a patient and which was necessary for treatment. Such information includes confidential communications from the patient and the health-care provider's observations of the patient. Only the patient may waive the privilege.

If the patient has died, the health-care provider must disclose the otherwise privileged information, except that which disgraces the patient's memory, where the personal representative or next of kin of the patient waives the privilege or there is no objection by any party. There are several statutory exceptions to the privilege. [See, e.g., CPLR 4504(b) (dentists are required to disclose information necessary to identify a patient, and health-care providers must disclose information that a patient under the age of sixteen has been the victim of a crime); PHL §§3372, 3373 (reporting requirement with respect to narcotic substance abuse)].

• Psychologist-Patient

Under the psychologist-patient privilege, a psychologist may not disclose a confidential communication made to him/her by a patient. The client, too, may refuse to make such disclosure. Only the client may waive the privilege. There are statutory exceptions. [See, e.g., Soc. Serv. Law §§413, 415 (written reports of child abuse or maltreatment are admissible in any proceeding relating to child abuse or maltreatment)].

• Social Worker-Client

Under the social worker-client privilege, a social worker may not disclose confidential communications made to him/her by a client in the course of giving advice or planning a program for the client, or any advice given to the client. The client may waive the privilege. The exceptions to the privilege are provided: when the communication by the client "reveals the contemplation of a crime or harmful act" [CPLR 4508(a)(2)]; when "the client is a child under the age of sixteen and the information acquired ... indicates that the client has been the victim or subject of a crime . . . " [CPLR 4508(a)(3)]; and when "the client waives the privilege by bringing charges against the certified social worker" which involve confidential communications [CPLR 4508(a)(4)].

• Trade Secrets

The common law recognizes a privilege which allows the owner of a trade secret to refuse to disclose and prevent others from disclosing his/her trade secret. [See, Drake v. Heiman, 261 NY 414, 185 NE 685 (1933)]. A trade secret is defined as a formula, pattern, device, or compilation of information which is not known by others and gives the owner a competitive advantage over others who do not know it.

The privilege is not an absolute one as a court upon a sufficient showing of need can disclose it to another person. Such disclosure, however, must be conditioned upon the presence of safeguards which will prevent the information from being used by the other party or from becoming available to persons other than the parties involved.

• Official Information

Under the common law, confidential communications exist "between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged." [Cirale v. 80 Pine St. Corp., 35 NY2d 113, 117, 359 NYS2d 1, 4 (1974)]. A balancing approach is used to determine if disclosure is warranted. [See, World Trade Center Bombing Litigation Steering Com. v. Port Auth. of N.Y. and N.J., 93 NY2d 1 (1999)]. However, the Freedom of Information Law (FOIL) [N.Y. Pub. Off. Law §84], supersedes this privilege to the extent that records that FOIL requires to be disclosed cannot be protected from disclosure under the privilege. [See, Doolan v. Board of Coop Educ. Serv., 48 NY2d 341, 422 NYS2d 927(1979)].

• Self-Incrimination

Under the self-incrimination privilege, a witness is not required to give an answer to a question which will tend to incriminate the witness or expose the witness to a penalty or forfeiture. A witness must invoke the privilege personally, but a party may invoke the privilege through the party's attorney. The privilege extends to the witness's books and papers. However, a person who holds books and records in a custodial capacity may be compelled to surrender them, even though they tend to incriminate the person. If the witness's testimony would tend to incriminate his/her employer, but not him/her personally, the witness cannot refuse to testify.

Application At The Adjudicatory Proceeding

SAPA §306(l) compels the ALJ to give effect to privileges. When an objection to offered evidence is made on the basis of a privilege, the ALJ must determine whether the cited privilege encompasses the testimony or document, and if so, whether there has been a waiver of the privilege. If the privilege is applicable and there has been no waiver, the ALJ must sustain the objection.

Generally

As a general proposition a witness may testify only to the facts that he/she perceived. Opinions or conclusions, based on reasoning from those facts, may not be given. Recognizing that opinion testimony can be helpful to the trier of fact in resolving issues fairly and expeditiously, the common law has provided that in certain instances lay witnesses and expert witnesses may give opinion testimony.

Opinion Rule

• Lay Witnesses

A lay witness may give his/her opinion, based upon facts that the witness has personal knowledge of, provided that such opinion is based upon common ordinary knowledge, without special skill or background, and it is unreasonable to expect the witness to describe all the facts which would permit the trier of fact to draw the conclusion. The rule is liberally construed, and lay witnesses may give their opinion on a wide variety of subjects.

They include:

■ Observations - A lay witness may give his/her opinion as to such matters as color, weight, distance, size, quantity, state of emotion, apparent physical condition, identity and likeness, estimated age, rational or irrational conduct, handwriting.

■ Sensations - A lay witness may describe his/her own sensory experiences, such as taste, smell and touch. He/she may testify as to heat or cold or electric shock.

■ Emotions - A lay witness may give his/her opinion of another person's display of emotion. He/she may state, for example, that one person's contact with another was friendly or hostile.

■ Intention - Where the actual performance of an act is not disputed, but its effect or genuineness depends upon the intent with which it was done, the one who did it may testify as to what his/her intention was at the time. However, a lay witness may not testify to another person's unexpressed intent.

■ Physical or Mental Condition - A lay witness may describe another person's apparent physical condition, such as general strength, vigor, illness or any other characteristics that anyone can see; or whether a person appeared to be intoxicated. The necessary foundation for an expression of opinion as to apparent intoxication of another may include testimony that the person in question smelled of alcohol, was incoherent in speech, his/her eyes were glassy or bloodshot, he/she could not stand or walk without assistance, etc. He/she may also testify as to rational and irrational conduct of a person.

■ Speed - A lay witness may testify that a vehicle was moving rapidly or slowly. However, if he/she testifies as to the rate of speed, he/she must first show that he/she had some experience in observing the rate of travel of vehicles or give some other satisfactory reason or basis for his/her opinion.

■ Age - A lay witness may give his/her estimate of another person's apparent age. However, the facts and circumstances upon which his/her opinion is based must be given and the witness should first describe the person's appearance and only then give his/her own opinion as to his/her age.

■ Identification - The identification by a lay witness of someone whom he/she knows or has seen before, or of an object, is proper, even though it may not be positive and absolutely certain. Although the identification need not be beyond any doubt, it must, nevertheless, be based upon some convincing and reliable sensory impression, the description of which raises the likelihood that it is the same person or object.

■ Identification of Voice - A lay witness may identify the voice of another person who is heard but is out of sight, provided there is some basis for the identification, e.g., that the witness heard the person speak or another occasion, prior or subsequent, and, for this reason, recognized the voice at the time in question.

■ Identification of Handwriting - A lay witness may identify the handwriting of another person, provided there is basic showing of some familiarity with the handwriting, e.g., that the witness has observed in person writing, or that the witness has received other writings from the person in circumstances where it is clear that the person made those other writings.

• Expert Witness

A witness qualified as an expert may be permitted to give an opinion within that area of qualification where the underlying subject matter of the opinion is beyond the understanding of the ordinary juror or outside lay comprehension. The subject matter calling for expert testimony may be in the fields of science, engineering, technology, mechanics, medicine, business or other matters requiring specialized knowledge.

To ensure that there is relevancy and reliability in expert opinions, the New York courts permit a witness to testify as an expert and give an opinion where four basic conditions are met. First, as stated before, the underlying subject matter of the opinion involves an area which is beyond the ken and understanding of the average juror. Second, the witness must be qualified as an expert to give an opinion within that subject matter. Third, the basis of the opinion must be facts known to the witness or accepted by similar experts in the field as reliable in forming an opinion, and the methodology utilized must be generally accepted within the expert's field. Fourth, the witness must have reasonable certainty as to his/her opinion.

As to the first requirement, there is not always a clear line separating matters within a lay person's comprehension from those which only an expert can understand. In essence, the resolution turns upon the need for the testimony, i.e., whether the expert opinion will supply jurors with knowledge they do not have. Resolution is in the court's discretion.

With respect to qualifications, it must be shown that the witness by reason of his/her education or practical experience possesses special knowledge or skill that pertains to the subject matter of his/her testimony. It must be emphasized that the witness may qualify as an expert by formal training or education, i.e., medical school, or through on the job work and training, e.g., mechanic. Whether the witness is qualified to testify as an expert is a question for the court to determine in the exercise of its discretion.

The third requirement demands a showing that the witness is basing his/her expert opinion upon an acceptable basis and is employing an acceptable methodology in reaching a conclusion from that basis. As to the former, it can be satisfied by a showing that the witness is basing his/her opinion upon personal knowledge of facts, e.g., physician who examines a patient may testify as to what his/her observations reveal, or facts presented at trial; or, upon facts presented at trial and made known to the witness, e.g, witness attends trial and perceives the evidence presented, or information is conveyed by means of a hypothetical question, which takes into account evidence presented at the trial; or upon facts and data presented to the witness outside of court, provided evidence is presented which establishes the reliability of such out-of-court material, and that experts in the field rely on such material as a basis for opinion.

With respect to methodology, when the opinion is derived with the use of novel scientific theories or techniques, there is a need for a showing that such theories or techniques are generally accepted in the relevant scientific community. In that regard, New York follows the rule of Frye v. United States, [293 F. 1013 (DC Cir. 1923)], as enunciated by recent court decisions. [See, e.g., People v. Wesley, 83 NY2d 417, 611 NYS2d 97 (1994) (DNA evidence)]. Under this approach, the trial court determines whether most scientists in the relevant community believe that the theory or technique produces or leads to reliable results, and not whether the theory or technique is actually reliable. The New York rule differs from the federal rule, as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.. [113 S. Ct. 2786 (1993)]. As noted in a leading New York treatise, the Frye standard has been applied by the New York courts: "to a wide range of scientific evidence including DNA profiling, rape trauma syndrome, hypnotically restored testimony, polygraph test results, bite mark identification, hair analysis to discover cocaine use, voice spectrographica analysis, and expertise on the unrelability of eyewitness identification.

Some methodologies, such as DNA profiling, rape trauma syndrome, and bite mark identification, have been found generally accepted as reliable by the relevant scientific community and hence admissible under Frye. Others, such as polygraph test results and hypnotically refreshed testimony, have been found wanting." [Martin, Capra and Rossi, New York Evidence Handbook §7.23, at pp. 645-646].

With respect to the fourth requirement, it is intended to ensure that the opinion is not based on speculation.

An expert is no more entitled to speculate than a layperson.

Application At The Adjudicatory Proceeding

Opinion evidence is admissible at the discretion of the ALJ. Where the opinion is helpful to the resolution of the issues, it should be admitted especially expert. [See, e.g., City of Schenectady v. McCall, 245 AD2d 708, 666 NYS2d 754 (3rd Dept. 1997) (expert testimony by both parties regarding whether alleged injury permanently disabled one from employment); Romanello v. Adduci, 234 AD2d 299, 651 NYS2d 64 (2nd Dep't 1996) (expert testimony that licensed repair shop performed nonquality work); Enu v. Sobol, 171 AD2d 302, 576 NYS2d 378 (3d Dep't 1991) (general surgeon may testify regarding urologist's treatment of patients); Sheehan v. Passidomo, 122 AD2d 869, 505 NYS2d 915 (2nd Dept.1986) (DMV automotive facilities inspector's opinion admissible)]. On the other hand, where the opinion is not helpful, speculative or otherwise lacks a rational basis, it may be excluded.

Generally

A witness's credibility, i.e., whether the witness's testimony is believable or unbelievable, will depend upon two considerations: the accuracy of what the witness says, i.e., the witness's opportunity and capacity to perceive, together with the capacity to recollect and communicate, and the truthfulness of the witness, i.e., the witness's veracity. The proper scope of cross-examination covers matters affecting the witness's credibility on both considerations.

Impeachment is the particular form of cross-examination whose purpose is to attack the witness's credibility and persuade the trier of fact that the witness's testimony should not be credited. Generally, any matter that has tendency in reason to discredit the witness's credibility may be brought to the attention of the trier of fact. There are six principal modes of impeachment recognized by the New York courts.

Modes of Impeachment

• Capacity Defects

Defects or limits in sensory or mental capacities of a witness at the time of the relevant event bear on the witness's credibility. Accordingly, when there is a good faith basis to do so, the witness can be cross-examined as to weakness of vision or hearing, influence of drugs or alcohol, physical or mental illness, and other matters that may affect the witness's ability to perceive and remember accurately the matters about which he/she testified. Additionally, such matters can be established by testimony from other witnesses or documents. The extent to which this mode of impeachment can be used rests in the discretion of the court.

• Partiality

The fact that the witness may not be impartial, but rather harbors a partiality to the party calling the witness, is generally viewed as bearing on the witness's credibility. Matters that show bias, intent, or hostility can be inquired into on cross-examination provided there is a good faith basis to do so. Among such matters are personal relationships between the party and the witness; employment between the party and the witness; a financial stake in the outcome of the action; enmity between the witness and the other party; and corrupt pressure placed upon the witness by the party calling him/her. Such impartiality can be shown by other witnesses or documents. The extent to which a party uses this mode is subject to the trial court's discretion.

• Conviction Of A Crime

It is generally regarded under New York law that a person who has been convicted of a crime may be less credible than a person who has not been convicted of a crime. Thus, the fact that a witness had previously been convicted of a crime either by eliciting an admission of such conviction on cross-examination or by introduction of a certificate of such conviction may be inquired into. [See, CPLR 4513]. It must be stressed that only convictions may be inquired into and only convictions of crimes. Thus, questioning as to an arrest or indictment is not permitted, nor is questioning as to traffic infractions, offenses (except in criminal cases), juvenile delinquency and youthful offender convictions permitted. It is also important to note that any conviction for a crime can be inquired into, even though it does not directly go to veracity, i.e., murder, robbery. However, the court in its discretion may bar the examination where it finds that the conviction due to its remoteness or nature lacks substantial probative value, or is unduly prejudicial to a party.

• Misconduct

New York law has long recognized that a witness may be cross-examined, upon a good faith basis, about any immoral, vicious or criminal act engaged in by the witness if the act evidences moral turpitude. It is not necessary that such acts be the subject of a criminal conviction or that they relate directly to veracity, as engaging in such acts itself suggests a willingness to lie. Such acts include use of aliases; use of drugs; use of disrespectful language to a superior officer; and criminal activity. As with criminal convictions, the court has the discretion to prohibit such examination, especially where the questioning is an attack on character in general. [See, e.g., Gutierrez v. City of New York, 205 AD2d 425, 613, NYS2d 627 (1st Dep't 1994) (cross-examination about receipt of public assistance, legitimacy of children and immigration status improper); Catalan v. Empire Storage Warehouse, Inc., 213 AD2d 366, 623 NYS2d 311 (2nd Dep't 1995) (cross-examination about personal bankruptcy improper)]. Additionally, when the witness denies engaging in the charged conduct, the cross-examination may not show otherwise by the introduction of other testimony or documents.

• Reputation For Truth

The witness may be shown to have a bad reputation for veracity. This is done by calling a witness who can testify that he/she is familiar with the witness's reputation for veracity, and that the witness has a reputation for being an untruthful person. Such reputation witness may not refer to specific acts committed by the attacked witness, nor may the reputation witness give his/her own personal opinion of the attacked witness's lack of veracity. However, the reputation witness can state that he/she would not believe the attacked witness under oath.

• Prior Inconsistent Statements

If the witness has made a statement prior to the trial which is inconsistent with his/her trial testimony, the making of this inconsistent statement can be shown. The theory is that when a witness has given conflicting accounts of the same matter or event, the witness's testimony is not credible, either because the witness may be lying or because the witness is careless or has an uncertain memory. The making of the prior inconsistent statement can be explored on cross-examination. If the making of the prior inconsistent statement is denied, it may be proven by the introduction of other evidence, provided it is relevant to an issue in the case or relates to bias or capacity defects.

Application At The Adjudicatory Proceeding

Whether to allow the use of one of the modes of impeachment and/or to place limits thereon is committed to the discretion of the ALJ. Where the cross-examination will involve excursions into matters which do not have any real bearing upon credibility, such cross-examination can be prohibited or limited. [See, e.g., Gross v. DeBuono, 223 AD2d 789, 636 NYS2d 147 (3rd Dept.1996) (ALJ acted well within his discretion in limiting petitioner's cross-examination with regard to matters such as the witness's marital status, sexual history, prior injuries and legal proceedings); Matter of Epstein v. Cort Watch Co., 7 AD2d 663, (3rd Dep't 1958) (ALJ did not act improperly in not requiring witness to answer questions regarding her personal history and relationship with decedent, whose widow was seeking death benefits)]. However, where the questioning goes to expose partiality, it should not be barred, but it can be limited. [See, e.g., Davis v. Alaska, 94 S. Ct. 1105 (1974)].

Generally

Authentication refers to the requirement that before any relevancy can be ascribed to an offer of evidence, it must be established that the evidence, be it documentary evidence, real evidence or demonstrative evidence, or a conversation, or a test result, is what the offer or the evidence claims it to be. To illustrate, a purported letter of a party is not relevant unless it is properly shown that the party who signed the letter actually wrote the letter, nor is a telephone conversation offered to show knowledge on the part of a speaker relevant unless the person speaking is sufficiently identified. In both cases, relevance is conditioned upon the fulfillment of a condition of fact, in the former establishing the party as the author of the letter, in the latter the identification of the speaker.

Whether the offered evidence is what it purports to be can be established by other evidence sufficient to sustain a finding of its genuineness or by reason of a statutory procedure which may make specified evidence "authenticated" upon certain conditions being complied with. Once the offered evidence is found by the court to be what it purports to be, the evidence shall be admitted for consideration by the trier of fact. The fact that the court permits the evidence to be admitted does not necessarily establish the genuineness of the evidence and does not preclude an opposing party from introducing contradictory evidence. All that the court has determined is that there has been a sufficient showing of the genuineness of the evidence to permit the trier of fact to find that it is genuine. The trier of fact independently determines the question of genuineness, and, if the trier of fact does not believe the evidence of genuineness, it may find that the evidence is not genuine, despite the fact that the court has determined that it was "authenticated" or "identified."

Specific Applications Of Authentication

• Government Records and Certain Private Records

Government records are admissible by having a copy of the record certified in compliance with CPLR 4540, which certification attests to the authenticity of the copy of the record and that such copy is an accurate copy of the original record. Certain private documents such as hospital records or commercial documents can be authenticated by similar certification, as established by specific statutory enactments.

• Documentary, Real and Demonstrative Evidence

Generally, documentary evidence, such as letters and records, can be authenticated by testimony from a witness who saw the document executed or is familiarwith the signature or handwriting on the document, or by expert testimony. Real evidence, such as the murder weapon, can be authenticated by testimony from a witness with personal knowledge concerning the item that the offered item is in fact the murder weapon. Demonstrative evidence, such as a photograph or a diagram, can be authenticated by testimony from a witness with knowledge concerning the scene or event depicted in the photograph or diagram that it is a fair and accurate representation of that scene or event.

• Telephone Conversations and Audio Recordings

Oral statements or conversations, like written communications, are only relevant if the person who purportedly made the oral statement or engaged in the conversation, was in fact the person who made such oral communication. Authentication problems arise when the witness who heard the oral communication was not physically present with the alleged speaker, a situation which will arise with telephone conversations and audio recordings. Authentication can be established by testimony from a witness who is familiar with the voice based on prior dealings with the alleged speaker, or by expert testimony.

• Mechanical Test Results

The results generated by mechanical tests or devices, such as Breathalyzer tests, blood-alcohol concentration (BAC) tests, Enzyme Multiplied Immunvassay Test (EMIT), blood grouping tests, and the Alco-Sensor Breath Screening test, are admissible so long as it is shown that the results produced are accurate. This authentication process will involve three steps. First, the reliability of the principles underlying the machine or device and that they are capable of producing accurate results must be demonstrated, which can be shown by the taking of judicial notice, e.g., the reliability of radar principles has been judicially noticed, or by independent proof. Where the machine involves novel scientific theories, the Frye principle becomes involved. Second, it must be shown that the machine or device was working properly when the result was obtained, and third, that the machine or device was properly used or administered.

• Application To Adjudicatory Proceedings

Since authentication is an aspect of relevancy, the ALJ should follow the basic authentication evidentiary rules, with an objective view as to whether the requirement is met. With respect to test results, the courts have cautioned that where there is an absence of proof that the machine or device producing the result produces accurate results or that their underlying theories are not generally accepted by the relevant scientific community, the test results should not be admitted. [See, e.g., Sowa v. Looney, 23 NY2d 329, 296 NYS2d 760 (1968) (polygraph test result should not have been received into evidence at the police disciplinary hearing as there is a lack of general scientific recognition of the efficacy of polygraph tests); Lahey v. Kelly, 71 NY2d 135, 524 NYS2d 30 (1987) (EMIT drug test results shown to be reliable and properly admitted into evidence by ALJ)].

Generally

The best evidence rule requires that when a party seeks to prove the contents of a writing, recording or photograph, the party must produce the original of the writing, recording or photograph or explain its absence before other evidence establishing its contents may be admitted. The underlying principle of this rule is intended to prevent fraud, fabrication, or mistake and to eliminate uncertainties that may result from faulty memories.

Thus, when a party offers oral testimony of the contents of a record, the best evidence rule will require that the original record be produced. If the original is not produced, a valid legal reason must be given to account for the fact that the original cannot be produced. A proper foundation must be laid for the receipt of the oral evidence, such as showing that the original record has been destroyed or lost; or that it is unobtainable because it is out of the jurisdiction; or that it is in the adverse party's possession or control and he has refused to produce it. The oral evidence of the contents of a record may not be given until its absence is satisfactorily explained.

When the offered evidence is a photographic copy of a writing or a copy made by a similar process that accurately reproduces the original, CPLR 4539(a) provides that such copies if made in the regular course of business are as admissible as the original. Additionally, there are numerous statutory provisions which provide for the admissibility of copies of public records provided they are certified to be accurate copies of the original, a subject discussed in the authentication section of this appendix.

Application In Adjudication Proceedings

The application of the best evidence rule is committed to the discretion of the ALJ. [See, e.g., R&D Equipment Leasing Company, Inc. v. Adduci, 220 AD2d 900, 632 NYS2d 332 (3rd Dep't 1995) (photocopies of weight certification documents admitted)]. Where there is little or no doubt as to the accuracy of a copy, or the oral summary of the contents of a writing, the best evidence rule need not be strictly followed. However, where there is doubt as to the accuracy of the copy of the orally recited contents, insistence upon the following of the best evidence rule may be appropriate.