Time to discuss hearsay. Rather, a small bit of hearsay theory. Since hearsay is a common law principle, New York’s hearsay rules are largely similar to the Federal Rules of Evidence (FRE). Hearsay is universally defined as “an out-of-court statement offered to prove the truth of the matters asserted.”[1] New York, much like almost every other jurisdiction that has a hearsay rule, permits hearsay if it falls under an exception.[2] Many hearsay exceptions will be familiar for those who know the FRE. Some exceptions include dying declarations,[3] excited utterances,[4] present sense impressions,[5] declaration of future intent,[6] and state of mind.[7] These are just a few notable examples of hearsay exceptions that New York and the FRE both accept.

But it should also go without saying that there will be some slight differences between the FRE and New York. The example that I will discuss in this blog is the residual exception. The residual exception is completely missing in New York. This exception stems from the rarely used FRE 807, which states:

Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.[8]

This rule essentially permits a statement to be evaluated for admittance even if it has no exception that it falls under. It is a safety net for statements that do not have exceptions but have “equivalent” circumstantial guarantees of trustworthiness.[9] In other words, it permits the court to evaluate the trustworthiness of a statement when there are no exceptions for that statement. This makes it so that hearsay statements with no exceptions can still come in if they are deemed trustworthy by the court. Pretty common-sense. If something is trustworthy, then the statement should be admitted into evidence as the whole purpose of inadmissible hearsay is due to credibility concerns. But here is where our differences in hearsay approaches and theory come in.

The New York Court of Appeals does not accept residual exception. Not only has the Court of Appeals not accepted the residual exception, but has ruled against the residual exception in People v. Nieves.[10] The Court’s reason for rejecting the residual exception was, “We are not prepared at this time to abandon the well-established reliance on specific categories of hearsay exceptions in favor of an amorphous “reliability” test, particularly in criminal cases where to do so could raise confrontation clause problems.”[11]

The Court spells out that they don’t want New York to abandon the well-established exceptions in favor of an “amorphous” new test.[12] Not only that, but they do not want to open the door to issues regarding the confrontation clause.[13] New York does not want to deal with any more hearsay than they already have to. Whereas in jurisdictions where the FRE applies, residual exceptions must be dealt with whenever a party really wants to get in a statement but has no exceptions.

In sum, hearsay is largely the same between New York and the FRE. Since hearsay is tied to very basic common law principles, it is unlikely that you will encounter an immense difference anywhere between the two systems when it comes to hearsay.

[1] Hearsay, as a common law principle, has a well-established common definition of being “an out-of-court statement offered to prove the truth of the matters asserted.” People v. Settles, 46 N.Y.2d 154, 386 N.E.2d 796 (N.Y. 1978), accord Subramaniam v. Public Prosecutor, [1956] A.C. 177 (P.C.), 1 W.L.R. 965 (1956).

[2] See People v. Nieves, 67 N.Y.2d 125, 131 (1986).

[3] Nieves at 131-134, People v. Allen, 300 N.Y. 222, 227 (1949), People v. Ludkowitz, 266 N.Y. 233, 238-239 (1935), People v. Becker, 215 N.Y. 126, 145-146 (1915).

[4] See People v. Johnson, 1 N.Y.3d 302, 306 (2003).

[5] See People v. Brown, 80 N.Y.2d 729, 734-735, 737 (1993).

[6] See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892); see also Crawford v. Nilan, 289 N.Y. 444, 448-449 (1943); People v. Conklin, 175 N.Y. 333, 342 (1903).

[7] See People v. Reynoso, 73 N.Y.2d 816, 819 (1988).

[8] Fed. R. Evid. 807.

[9] Fed. R. Evid. 807 advisory committee’s note.

[10] Nieves at 131-132.

[11] Id.

[12] Id.

[13] Id.