Considerable discussion has existed through the years among the courts, attorneys and commentators as to whether a prior out-of-court statement of a testifying witness should be classified as hearsay.1 The orthodox view is that the hearsay rule applies even though the witness is on the stand, under oath and subject to cross-examination about the prior statement. The logic of this view is, however, questionable since the dangers against which the hearsay rule is designed to protect are largely non-existent due to the ability to cross-examine the witness about the prior statement. Yet New York, like all other jurisdictions, still follows the view that a prior statement of a testifying witness is hearsay when offered for its truth.2
New York nonetheless recognizes three, albeit limited, hearsay exceptions encompassing a prior statement of a testifying witness, which exceptions turn upon the nature of the statement. These exceptions are for: (a) in civil actions certain prior statements that are inconsistent with the witness’ trial testimony; (b) in all actions prior statements which are consistent with the witness’ trial testimony and are offered to rebut a charge of recent fabrication or improper motive made against the witness; and (c) in criminal cases certain prior statements of identification.3
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
