A View from The Bench: A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts

The rules of evidence used in the Federal courts are codified in a single statute known as the Federal Rules of Evidence (the “FRE”). Enacted by Congress, with great input from the Federal Judicial Conference, they took effect on January 2, 1975. Many States have adopted the Federal Rules of Evidence. New York State (the “State”) has declined to do so as yet, a mistake in my view.
The State’s rules of evidence are found partly in statues, such as the CPLR, the Criminal Penal Law, the General Business Law, the Estate Power and Trust Laws, and the Family Court Act. That said, the State’s evidentiary law has developed principally though the “Common Law,” meaning by court decisions.
This two-part View from the Bench column will give an overview of some of the differences between State and Federal evidentiary rules, with an emphasis on practice in the United States District Courts. In addition, the article will cover some distinctions between the two jurisdictions’ procedures. The ultimate goal is to help those who navigate both forums to understand the differences and sharpen their litigation skills.
The Rules of Evidence

What is Hearsay?
By far the most important and widely used rules of evidence involve the Hearsay doctrine. Often misunderstood, a review of the essential principles is worthwhile. Broadly stated, as the readers of this paper are well aware, the State hearsay rule excludes as evidence any extra-judicial declaration offered to prove the truth of the matter asserted. The definition of the various terms and exceptions involved in the hearsay rule’s application in State court is found by and large in case law.

In the Federal courts, by way of contrast, the definition of hearsay is expressly stated in Rule 801(C) of the Federal Rules of Evidence. It is short and to the point: “Hearsay is a statement, other than one made by the declarant while testifying at trial … offered in evidence to prove the truth of the matter asserted.” Rule 802 bars the admission of hearsay evidence unless an exception applies. Most exceptions to the Hearsay Rule are found in Rules 803, 804 and 807. In my view, together with the rule on admissions, these hearsay exceptions are among the most important evidentiary rules in Federal practice.
The Rule 803 Exceptions
Federal Rule 803 begins with the following language: “The following are not excluded by the hearsay rule even though the declarant is available as a witness.” The Rule then list 23 categories of exceptions to the hearsay rule that apply regardless of the availability of the declarant. Five additional exceptions that apply when the declarant is unavailable are contained in Rule 804, and Rule 807 provides for a residual exception.
Taking just one of the exceptions under FRE 803, entitled “Statements in Ancient Documents,” much can be gleaned about the Federal approach. FRE 803(16) permits the admission of every statement in an authentic document at least 20 years in age as an exception to the hearsay rule. Such documents may include newspaper articles, deeds and letters, among others.
The rule exemplifies the inclusionary orientation of the Federal courts. In addition, the Court of Appeals for the Second Circuit favors the admissibility of relevant, probative and reliable evidence. Of course, the most important hearsay exception is the business record rule set forth in Rule 803(6). It is substantially similar to the State rule, except the more inclusive approach of the FRE’s makes any given writing more likely to be admitted in Federal court.
The far-ranging exceptions to the hearsay rule set forth in Rule 803 are:

  • Present sense impression (e.g., “Look at the blue truck right now. It’s running the red light.” Those words are admissible as a present sense impression, but not as an exited utterance.);
  • Excited utterance (An example would be a statement by a highly distraught, tearful 10-year- old girl to her grandmother, saying the defendant had sexually assaulted her within the hour.);
  • Then existing mental, emotional or physical condition (e.g., “My knee hurts” or “I intend to do so.”);
  • Statements for purposes of medical diagnosis or treatment (but only those statements pertinent to diagnosis or treatment);
  • Recorded recollection (If the witness knew the facts at one time, recorded them when fresh, and presently has no recollection, the writing may be read in the record, but it does not become an exhibit unless offered by an adverse party.);
  • Business records and other records of regularly conducted activity. This is introduced through the testimony of a custodian, other qualified witness, or by certified copy, if the record is made and kept in the ordinary course of the enterprise;
  • Absence of entry in business or other regularly kept records;
  • Public records and reports (Federal, State, Municipal or other agency activity, observations, evaluations);
  • Absence of public record entry;
  • Records of vital statistics recorded by religious organizations or documented in family-created records or municipal certificates;
  • Documents relating to property interests and statements contained therein;
  • Statements in ancient documents;
  • Market reports and commercial publications, (of the type relied upon by the public or professionals in the field);
  • Learned treatises (if relied on during direct examination or called to an expert’s attention on cross). If the statements in the text are recognized as reliable authority through judicial notice or testimony, they may be read into the record, but do not become exhibits;
  • Reputation concerning personal or family history;
  • Reputation concerning boundaries or general history;
  • Reputation as to character;
  • Judgment of previous convictions;
  • Judgment as to personal, family or general history of boundaries.

Be advised, the FRE’s are amended from time to time, generally to include more categories of evidence. For example, in 2001, Rule 803(6), the Business Record hearsay exception was further liberalized to provide for the admissibility of such records without the testimony of a custodian, namely, “by certification that complies with Rule 902(11), 902(12) or a statute permitting certification” (certified domestic and foreign records of regularly conducted activity).

Party Admissions
Another extremely important evidentiary rule that varies significantly in Federal practice from the State norm is the admissibility of party admissions.
The New York State Rule. In State practice, an admission is an act or oral or written statement made by a party prior to trial that is inconsistent with one of the relevant or material facts the party seeks to establish. Significantly, the statement must be against the interest of the person making the statement. In the State courts, an admission is an exception to the hearsay rule and is admitted against the declarant for the truth of the matter asserted.
The Federal Rule: FRE 801(d) defines “Statements which are not hearsay.” One important category of non-hearsay is the “Admission by party-opponent.” FRE 801(d) (2) defines such an admission as a “statement offered against a party and is (A) the party’s own statement, in either an individual or representative capacity or … (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”
FRE 801(d) (2)(A), (D) and (E). 
Under the Federal Rules, every statement by a party or its agent or employee, if offered against that party, is not hearsay, so no exception is required. It is admissible even if it was not against the interest of the declarant when made. It is worth repeating that important distinction from State law. Every relevant out-of-court statement by a party may be admitted against that party. In Federal court, such a statement, whether verbal or in documentary form, is simply not hearsay and is admissible.
To appreciate the difference from State practice, it is instructive to consider the seminal New York State Court of Appeals case of Cover v. Cohen, 61 N.Y.2d 261 (1984), a major decision in the field of products liability authored by Judge Bernard Meyer. In Cover, a vital piece of evidence at trial was the statement by the defendant driver that “his accelerator stuck on him.” The New York Court of Appeals ruled that the statement was inadmissible because, among other reasons, it was exculpatory when made by the driver, rather than against his interest. If the same products liability case had been tried in Federal court under its diversity jurisdiction, the defendant/dri­ver’s statement would not have been treated as hearsay. It would have been considered relevant and admissible, very probably leading to a different result in the litigation.
To change for a moment to the area of criminal cases, another major difference in State and Federal practice is found in the treatment of statements of co-conspirators. If made during the course of the conspiracy and in furtherance of the conspiracy, such statements by co-conspirators are not hearsay. They are admissible for the truth of their contents under the Federal Rules. This Rule has played a substantial role in the prosecution of major drug and racketeering cases in Federal courts.
The State rule is quite different. In New York State, statements against penal interest are admissible only if the declarant is unavailable to testify, was aware that the statement was against his or her own interest when made, had competent knowledge of the facts, and there is sufficient other competent evidence to assure its reliability. See People v. Brensic, 70 N.Y. 2d 9, 15 (1987). A comparison of the difference from the Federal Rule was noted by the U.S. Court of Appeals for the Second Circuit in Glenn v. Bartlett, 98 F.3d 721 (2d Cir. 1996), in which the Court of Appeals for the Second Circuit held: “As the District Court correctly noted in dismissing [the] habeus petition, even if admission of [the co-conspirator”] statement violated New York Law – which unlike Federal law requires independent indicia of reliability for a co-conspirator’s statement- the statement does not offend the Federal Confrontation clause if it falls within Rule 801(D)(2)’s co-conspirator exception.”
Glenn, 98 F.3d at 728.

Learned Treatises
Another hearsay exception with marked differences in the two jurisdictions is the Federal exception to the hearsay covering writings cited by experts. FRE 803(18), entitled
“Learned Treatises,” provides:
“To the extent called to the attention of an expert witness upon cross- examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted the statements may be read into evidence but may not be received as exhibits.” (Emphasis added.)
Under this Rule, in Federal Court, the relevant passage of a treatise can be used by a party as evidence in chief even if the expert witness on the stand is not willing to recognize the writing as authoritative. Once an expert is on the stand, it is possible to obtain the admission of the writings of a non-witness expert that the witness is willing to recognize as authoritative; that another expert witness recognizes as authoritative; or the judge accepts through judicial notice.

In State practice, there is no comparable evidentiary rule and the use of learned treatises is confined to the impeachment of expert witnesses, and only if the witness is willing to recognize the writing as authoritative.
The “Residual Exception” 
As of December 1997, the “Residual Exception,” formerly found in two separate Rules, was consolidated in FRE 807, which allows for the admission of statements not covered by other exceptions.
Lest those reading Rule 807 gets the idea that the exception is used frequently, that is not the case. In essence, the Rule provides that hearsay statements that do not qualify for another exception are admissible only if (1) there are equivalent circumstantial guarantees of trust-worthiness; (2) it involves a material fact; (3) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and (4) the general purpose of the rules regarding reliability and trustworthiness together with the interests of justice would be served by the statement’s admission. Another significant barrier to the use of the statement is the requirement of pre-trial or hearing notice to the adversary regarding the proponent’s intention to use it and information regarding the statement.
While the residual exception appears to offer a door to admit hearsay statements that are not admissible through any of the traditional exceptions, when Congress enacted the Rule it expressed an intention that the courts would use it rarely, in exceptional circumstances, and only for hearsay with high probative value. As a result, parties are rarely successful in obtaining court approval for the residual exception to the hearsay rule.
Editor’s note: This is the first of a two part series by Judge Spatt comparing the Federal and State courts. Next month’s column covers unfairly prejudicial evidence, experts, and a comparison of courtroom procedures.
United States District Judge Arthur D. Spatt was formerly a New York State Supreme Court Justice, sitting in the 10th Judicial District from 1978 to 1982, when he became Administrative Judge of Nassau County. He continued in that position until his elevation to the Appellate Division, Second Judicial Department, where he served as an Associate Justice from 1986 to 1989. In 1989, Judge Spatt became a United States District Judge, assuming senior status in 2004. Before ascending to the bench, Judge Spatt was engaged in the private practice of law in New York City for 28 years.