History of the Guide to NY Evidence
Introduction
In mid-2016, the Committee responsible for the publication of the Guide to NY Evidence (GNYE) was commissioned by Chief Judge Janet DiFiore. See New York’s Evidence Guide: The Court System’s ‘Best Kept Secret,’ NYLJ, Sept. 10, 2019; The United Court System’s Guide to NY Evidence, NYS Bar Association Journal, April 2020; The Guide to NY Evidence Explained, NY Criminal Law Newsletter.
In her 2017 State of Judiciary, the Chief Judge explained the reason for GNYE:
"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."
In 2017, the Committee published the first of its 12 planned articles.
In 2020, the Committee published the last of its planned 12 articles
To assist comparison with the Federal Rules of Evidence (FRE), the first ten articles of the GNYE parallel the nominclature of the ten articles of the FRE.
In 2020, the Committee also published an alphabetical index of the rules.
In 2021, the Committee published an index of the statutes incorporated in the rules.
In 2022, the Committee published an index of relevant words.
In 2023, the Committee published a chart of the FRE and parallel rules in the GNYE, and the Committee also published a table of cases.
With the publication of the last of the 12 articles, the following history of added and updated rules was begun. The most recent additions or updates are listed first.
When a rule has been updated, the reason for the update will be set forth in an endnote to the rule.
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October 2024
The following new rules were added:
3.20. Public Records and Documents [CPLR 4520 & Common Law]
4.18.1. Spoliation
4.26.1 Defendant’s Constitutional Right To Present A Defense
4:35.5. Identification: Non-Eyewitness by Video or Photo
The following rules were updated:
2.03. Judicial Notice of Law (CPLR 4511): Note was revised to include the principles set forth in Eccles v Shamrock Capital Advisors, LLC , — NY3d —, 2024 NY Slip Op 02841, *11 [2024].
7.01. Opinion of Expert Witness; 7.21. DNA Evidence; and 8.02 Admissibility of Hearsay Limited by Confrontation Clause: Note updated to include Smith v Arizona , _U.S._, 144 S Ct 1785, 1788 [2024].
May 2024
The following new rule was added:
4.35.3. Identification made for the first-time in-court
The following rules were updated, as explained in an endnote to each rule:
1.07 (Court Control over the Presentation of Evidence)
5.03 (Attorney-client privilege)
7:01 (Opinion of Expert)
7.21 (DNA Evidence)
8.02 (Admissibility Limited by Crawford)
December 2023
The following rules were added:
3.07. Presumption of Regularity
4.30. Bruton: A Defendant's Statement Implicating Codefendant
4.35.1. Identification; Composite Sketch
5.50. Parent-Child Privilege
6.02.5 Competency of Juror as a Witness or to Impeach a Verdict
6.03.1 Exclusion of a Disruptive Defendant
The following rules were updated, as explained in an endnote to each rule:
1.07; 1.09; 4.15; 4.22; 7.13; 8.08.
May 2023
FRE + GNYE Chart:
A chart listing the Federal Rules of Evidence (FRE), with a link to a particular FRE, & list of GNYE rules that is in some way parallel to a FRE has been added to the website.
The following rules were added:
4.27. Defendant’s testimony re: Intent, Knowledge, Motive
4.37. Mental Disease or Defect Evidence to Negate Intent
6.03. Exclusion of Witnesses & Ban on Discussing Testimony (New subd. [3])
6.12.1. Impeachment by Benefit to a Witness
6.25. Impeachment by Silence
7.21. DNA Evidence
8.41 State of Mind (New subd. [2])
8.42. Statement of Pain, Illness, or Physical Condition by Unavailable Declarant
8.45. Verbal Act
The following rules were updated, as explained in an endnote to each rule:
1.09; 4.03; 8.00; 11.11.
December 2022
The following rules were added:
3.07 Res Ipsa Loquitor
3.41 Proof of Proceeding before Justice of Peace [CPLR 4541]
4.14 Contracts in Small Print [CPLR 4544]
4.23 Connecting Physical Evidence to Defendant
4.33 Exception or Proviso
4.34 Gany Membership and Activity
6.02.3 Incompetency of Judge as Witness
7.13 Expert Testimony in Drug Case
The following rules were updated, as explained in an endnote to each rule:
1.07 Court Control over Presentation of Evidence
2.01 Judicial Notice of Facts
3.01 Presumptions in Civil Proceedings
- 4.07 Limited Admissibility of Relevant Evidence
- 4.08 Opening the Door
- 4.11 Character Evidence
6.11 Impeachment, When Authorized and Provable by Extrinsic Evidence
8.07 Ancient Documents
9.13 Photographs
May 2022
The following rules were added:
2.05 Judicial Notice of Map Information [CPLR 4532-b]
3.21 Lack of Record [CPLR 4521]
4.24.2 Motive to Commit an Offense
5.48 Electronic communication of Privileged Info [CPLR 4548]
6.20 Impeachment by Recent Fabrication
7.15 False Confession Expert
7.17 Identification Evidence Expert
7.19 Scientific Evidence
9.09 Medical or diagnostic tests [CPLR 4532-a]
The following rules were updated, as explained in an endnote to each rule:
7.01 Opinion of Expert Witness
8.02 Admissibility Limited by Crawford
8.03 Admission by Party
8.05 Admission by Adopted Statement
8.15 Dying Declaration
8.31 Prior Consistent Statement
9.03 Self Authentication
December 2021
The following rules were added:
3.13. Bills for Service or Repairs [CPLR 4533-a]
3.19. Population Certificate [CPLR 4530]
4.24.3. Possession of opioid antagonists [CPL 60.49; CPLR 4519-a].
6.10.1 Missing Witness
7.06 Abused person’s syndrome
7.08 Child Abuse Syndrome
8.23 Informal and Formal Judicial Admission
The following rules were updated, as explained in an endnote to each rule:
6.09 Refreshing Recollection
6.17 Impeachment by Instances of Misconduct
7.05 Rape Trauma Syndrome
August 2021
Amended Rule 5.10 Rape Crisis Counselor [CPLR 4510] to include the Laws of 2021, ch. 309, effective July 23, 2021, which amended CPLR 4510 to include a privilege for a “Domestic Violence Advocate.”
May 2021
The following rules were added:
3.05 Preumptions Accorded Defendant
3.07 Certificates of a Judgment and Fingerprints
4.02 Direct and Circumstantial Evidence Defined
4.20.3 Statements of Defendants; Corroboration
4.24.1 Intoxication
4.25.1 Possession of Condoms
6.10.1 Corroboration of Accomplice Testimony
6.12 Impeachment of Alibi Testimony
7.05 Rape Trauma Syndrome
December 2020
The following rules were added:
3.10. Agriculture Inspection Certificate [CPLR 4529]
3.12. Ancient Filed Maps, Surveys and Real Property Records [ CPLR 4522]
3.14. Conveyance of Property without the state [CPLR 4524]
3.16. Death of a Missing Person [CPLR 4527]
3.18. Marriage Certificate of Record of Registration [CPLR 4526 & DRL 14-A]
3.20. Process Server Affidavit [CPLR 4531]
3.22. Survey Documents [CPLR 4534]
3.24. Title Co. Certificate of Search [CPLR 4523]
3.26. UCC Art. 9 Filing [CPLR 4525]
3.28. Weather Certificate [CPLR 4528]
4.08 Open Door Evidence
4.20.1 Consciousness of Guilt
4.21.1 Culpability of Third Party
6.02 Competency of Previously Hypnotized Witness
6.02.1 Competency per Dead Man’s Statute [CPLR 4519]
6.14. Impeachment by Improperly Obtained Evidence
6.16. Impeachment of Law Enforcement Officer
8.08. Business Records [ CPLR 4518]
8.24. Market Reports [CPLR 4533]
8.36. Prior Testimony in Civil Proceeding [Part I: CPLR 4517; Part II Common Law]
8.36.1. Prior Testimony in Criminal Proceeding [CPL 670.10]
11.14. Voice Recordings
The following rules were updated, as explained in an endnote to each rule:
1.07 Court Control over the Presentation of Evidence
8.07 Ancient Documents
Rules Updated Prior to Publication in 2020 of the Last of the 12 Articles
Aug 2020: Rule 1.07 Court Control over the Presentation of Evidence was amended by deleting subdivions (3)(a) and (3)(b) and placing them in a separate rule: 1.11 (Court Power to Call or Examine Witnesses).
Dec 2019: Rule 8.05 Admission by Adopted Statement or Silence was amended by adding subdivision (5).
Dec 2018; Rule 2.03 Judicial Notice of Law [CPLR 4511] was amended to conform to a statutory amendment.
May 2018: Rule 8.17 Excited Utterance was amended for reasons explained in the endnote to the rule.
