REPORT NO. 122 April 7, 1998

A. 9700 By: M of A O'Connell

Assembly Committee: Codes

Effective Date: 1st day of January next

succeeding the date on

which it shall have become

a law

AN ACT to amend the civil practice law and rules, in relation to the use of prior testimony by an available witness and certain other testimony in actions involving domestic cases in certain instances




This bill would amend CPLR 4517 to provide for the use of prior testimony by an unavailable witness. The latter is provided by expanding the circumstances in which the prior testimony of an absent witness could be used to include, in an action involving domestic violence, inability to procure the attendance of the witness through "process or other reasonable means." The bill also adds a new subsection 2 to CPLR 4517 which would incorporate into the CPLR Federal Rule of Evidence 804(b)(5) , the residual exception to the hearsay rule, available if a statement has "sufficient guarantees of trustworthiness" but limited to actions involving domestic violence.

The supporting memorandum states that the purpose of the bill is to enable a prosecutor to pursue a prosecution of a perpetrator of domestic violence despite the lack of cooperation of the complaining witness. This is said to be a particularly vexing problem in cases of domestic violence addressed by the bill because the complaining witness is often a woman living or in a close relationship with the defendant who in the weeks and months between an incident and a trial, or a retrial after a mistrial or appeal, may lose the ire which prompted her to go to the authorities in the first place. Thus the perpetrator is undeterred, the complaining witness remains an obvious potential victim and the public interest is far from being served.

Admirable as the motives of the sponsors and draftsmen may be, these bills cannot achieve the desired result. CPLR 4517 applies only to civil actions, so an amendment to it cannot effect use of prior testimony in criminal actions, governed by CPL §670.10 et seq.

The proposed amendment would theoretically be available in a civil action for damages brought by a victim of domestic violence. However, the rationale of the supporting memorandum would not be material in such a proceeding, because, for the exception to be available, plaintiff would have to demonstrate that she was unable to obtain her own attendance, an unlikely circumstance (In the event the plaintiff/victim was unable to appear because of death or disability CPLR 4517 in its present form would permit use of her prior testimony). The proviso for domestic violence cases would extend to prior testimony of witnesses other than the plaintiff, but there is no compelling reason to relax the requirements for use of prior testimony of such witnesses.

A. 9700 also requires that, in order to use the prior testimony, it must have been subject to cross examination. Presumably this would incorporate the judicial gloss placed upon prior testimony admitted under CPL §670.10, et seq, that there must have been a fair opportunity to cross examine, although the cross examination itself need not have been adequate. Preiser, McKinney's Practice Commentaries to CPL §670.10. However, given that unlike prior testimony admitted under CPL §670.10, which may be from trial or other preliminary proceedings, prior testimony admitted under CPLR 4517 can only be from a prior trial, making it most unlikely that the testimony would not have been "subject to cross examination." The cross examination requirement thus adds nothing to the reliability of the testimony from the prior trial, or to the utility of this proposed amendment to a victim of domestic violence.

The adoption of the federal residual hearsay exception limited to domestic violence actions would have the same lack of utility in a civil action for, as in the case of prior testimony, it is difficult to conceive of how the plaintiff could take advantage of it to avoid testifying.

Unlike the prior testimony provision of the bill, the residual hearsay exception would be available in a criminal action. However, given the specific requirements of CPL 670.10 for use of prior testimony it would not serve the purpose described in the supporting memorandum. While adoption of a part of the Federal Rules of Evidence might well be a useful experiment with a code of evidence, long a subject of discussion in New York, this particular proposal limited to domestic violence actions would be unlikely to generate any significant experience and is more likely to lead to confusion.

The proposed residual hearsay exception is also technically flawed by the omission of "statements with" prior to "equivalent circumstantial guarantees of trustworthiness."

For the forgoing reasons, this bill is DISAPPROVED.

Person who prepared the report: James N. Blair, Esq.

Chair of the Committee: Paul H. Aloe, Esq.