New York’s Secret Rules of Evidence
We write frequently about evidence, usually with reference to the Federal Rules of Evidence. That’s largely because of where we practice, but also because the Federal Rules have shaped the rules of evidence in many state jurisdictions as well. For example, the Texas Rules of Evidence use the same numbering scheme as the Federal Rules and have a high degree of overlap in content. Indeed, as we’ve written before, the Texas Rules are actually more true to the original draft evidence rules prepared by the federal advisory committee in the early 1970s when it comes to privilege.
But the state where Mandel Bhandari is located, New York, is a notable exception. There is no statutorily codified New York Rules of Evidence in the way such a creature exists at the federal level or in virtually every other state. [1] This isn’t for lack of trying. As recently as 1991, an official commission led by the late Professor Robert Pitler submitted a detailed proposed evidence code to the New York state legislature for approval. That code was explicitly designed to restate existing law with, in the words of its drafters, “fidelity to New York common law principles and statutory provisions with only limited, well-reasoned, expressly-stated changes.” [2]
Despite this, the proposed code was rejected by the legislature and, thirty years later, we still do not have a replacement. New York has law relating to evidence – arguably too much – but the sources for that law are thousands of prior decisions of the New York courts, together with dozens of one-off statutory provisions scattered throughout the CPLR, the Criminal Procedure Law, the Mental Hygiene Law, and the Surrogate’s Court Procedure and Family Court Acts.
This is obviously sub-optimal. While some evidentiary disputes can be spotted in advance, carefully researched on Westlaw or Lexis, and briefed before proceedings begin, others arise more or less spontaneously during trial. There is rarely time for a comprehensive search for precedent and in the absence of an authoritative guide, it can be difficult to guide discussions between parties and the court about the appropriate decisional rule.
So, what can you do? As it turns out, the New York Courts have your back. Realizing that the legislature was never going to fix the issue, in mid-2016 Chief Judge Janet DiFiore commissioned a “Guide to New York Evidence” or “GNYE” to be maintained by a committee and published by the courts themselves. As she described it:
"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."
The GNYE was completed in 2020 and is available here. While very clear that it is not a statutory evidentiary code and that “[t]he rules of evidence set forth in this Guide are not intended to alter the existing law of New York evidence and shall not be construed as doing so or as precluding change in the law when appropriate,” the document is organized exactly like the Rules of Evidence adopted in other states. Indeed, the entire thing waddles, swims, and quacks very much like an official-unofficial New York Rules of Evidence.
The guide is hosted by the court system and periodically receives updates as new decisions are handed down. This can result new “rules” appearing relatively quickly in the wake of decisions by the New York Court of Appeals. For example, in April of last year, the Court of Appeals decided People v. Mosley, 41 N.Y.3d 640 (2024), a case involving witness identification of a defendant from surveillance video. The Court of Appeals set down a standard for when a witness can properly testify that a defendant “is the person on the video.” Shortly thereafter, a new “evidence rule” was added to the GNYE, Rule 4.35.5:
(1) When a defendant is purported to be depicted in a video or photo related to the commission of an offense, a person who was not an eyewitness to the commission of the offense may testify that the defendant is the individual depicted in the video or photo when the witness is sufficiently familiar with the defendant that the witness’s testimony would be reliable and there is reason to believe the jury might require assistance in making its independent assessment of whether the person depicted is the defendant because, for example: the person in the video or photo used a disguise, or the defendant’s appearance changed between the time of the video or photo and the trial, or the clarity of the depiction of the person in the video or photo is such that the jury could not identify the person but someone sufficiently familiar with the person's appearance could.
(2) The factors a court may consider in determining whether a non-eyewitness may testify to an identification include: the witness’s level of familiarity with the defendant’s appearance; whether the witness’s familiarity spanned an extended period of time and variety of circumstances; whether the witness was familiar with the defendant’s appearance at the time the video or photograph was taken; whether the witness was familiar with the defendant’s customary manner of dress or clothing on the day of the video or photograph; and whether the witness testifies that the defendant has a specific trait (such as a distinctive gait, scar, or tattoo) and identifies that trait in the video or photograph.
In addition to rapid updates, the GNYE also has features designed to facilitate its use by lawyers familiar with the Federal Rules of Evidence. In particular, in 2023 the Committee added a compare and contrast chart to the GNYE that highlights the New York analogue (or lack thereof) for each Federal Rule. This is helpful for highlighting areas where New York law basically tracks (such as the evidence rules regarding a court taking judicial notice) and also where it radically diverges (New York has no residual exception for hearsay and has repeatedly rejected judicial efforts to create one).
But my favorite feature of the GNYE is Article 4, Relevance and Its Limits. At first blush this looks like Rules 401 – 403 of the Federal Rules of Evidence. GNYE Rules 4.01 – 4.07 generally set forth what “relevance” means, what it means to admit evidence and why courts don’t generally admit evidence that isn’t relevant. But once you get past 4.08, Article 4 turns into something of an “evidence grab bag” of highly specific evidentiary rulings masquerading as general “rules.” The “identifying a person in a video” rule can be found there, along with a number of others that really don’t fit anywhere else.
I’m not sure why I find absurdly specific rules of evidence amusing, but I obviously do. So here are some of my favorites.
First, Rule 4.12, which governs “Contracts in small print.” Reflecting CPLR § 4544, this rule states that a written contract involving a consumer transaction or a residential lease is inadmissible if printed in less than 8 point font (or 5 point if all caps). In the way that all sorts of public policy finds its way into the tax code, this is a very reasonable consumer protection policy that has somehow found its way into the law of New York evidence. It is also reminiscent of the individual rules at least one Bronx County judge who will reject summary judgment motions if the deposition transcripts are submitted in min-u-script.
Second, Rule 4.40, which governs “Possession of Condoms; Receipt into Evidence.” Reflecting CPL 60.47, this rule essentially states that possession of condoms (regardless of quantity) is not admissible to prove that a person is a prostitute. Again, this is a fine public health policy, but the fact that New York state – which still hasn’t gotten around to passing the “basic” rules of evidence – felt compelled to pass a law on this issue specifically highlights just how frequently folks were getting locked up for carrying around legal prophylactics.
Finally, Rule 4.35.1, which governs “Identification; Composite Sketch.” This rule stands for the straightforward proposition that a composite sketch of an eyewitness description created by a sketch artist is not admissible to prove that a defendant committed a crime. This rule is supported by no fewer than three New York Court of Appeals decisions on the issue. New York prosecutors appeared to really like establishing guilt by holding up a sketch drawn by the police department, pointing to the defendant and saying, “case closed.”
While unofficial and a little bit kooky, the GNYE is a godsend for practitioners seeking to navigate the universe of New York evidence and should be one of the first places you look when evidence issues arise during New York trials.
[1] Missouri is the other exception. See Kassandra Altantulkhuur, A Second Rape: Testing Victim Credibility Through Prior False Accusations, 2018 U. Ill. L. Rev. 1091, 1116 (2018) (“Out of the fifty states, New York and Missouri do not have codified rules of evidence but rather rely on court opinions, statutes, and treatises.”).
