R 4517.Prior testimony in a civil action

The Committee recommends that CPLR 4517 be amended to permit the use at trial of the prior trial testimony of: (1) a party, (2) any person who was a party when the testimony was given, or (3) any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party. Such testimony could be used for any purpose by any party who is adversely interested when the prior testimony is offered in evidence.

Where an action is being re-tried for whatever reason, current CPLR 4517 allows testimony taken at the prior trial to be used only in very narrow circumstances. Basically, the prior trial testimony of a witness may be admitted only on the grounds of “true” unavailability of the witness (e.g., death, inability to find the witness, unprocured absence from the jurisdiction).

By contrast, current CPLR 3117 allows prior deposition testimony taken in the action to be admitted in two additional circumstances: 1) unavailability of the witness (e.g., infirmity, distance of more than a hundred miles from the courthouse, witness is a medical doctor), and 2) where the deposition testimony was by a party (or by the party’s agent or employee) and is introduced against the party.

Thus, under our current rules, deposition testimony is more broadly admissible in evidence than is testimony initially taken at a prior trial in the action. This is precisely the opposite of what one might expect.

In sharp contrast to testimony elicited at a trial, deposition testimony often is elicited strictly for informational purposes, and with little or no effort to challenge or impeach the witness. There is no reason why testimony actually given at a prior trial between the parties, necessarily subject to the type of cross-examination available at a trial, should be less admissible than deposition testimony. Yet, that is precisely what CPLR 4517 now provides.

Nor is that the only inconsistency between the way the CPLR treats deposition testimony and the way it treats testimony given at a prior trial. For example, CPLR 3117(b) clearly indicates that one party’s use of part of a deposition entitles the other parties to read any other parts thereof “which ought in fairness to be considered in connection with the part read”, but current CPLR 4517 does not extend this sensible rule to admission of prior trial testimony. Similarly, CPLR 3117(b) sensibly provides that a party does not vouch for or adopt the testimony of the adversary simply by reading a portion of the adversary’s deposition testimony into evidence, whereas CPLR 4517 provides no analogue vis-a-vis use of the adversary’s prior trial testimony.

The suggested amendment of CPLR 4517 would, in effect, extend the same rules now applied to admission of deposition testimony to admission or prior trial testimony. The measure has been amended to clarify that it relates only to the use of prior trial testimony in civil proceedings.

This rule is the same as former § 348 with minor language changes designed only to shorten and clarify the provision and with a broadening of the unavailability clause. In view of the latter change the rule has been explicitly restricted to civil actions. The rule for criminal cases, which is broader than the former law but narrower than this rule, remains unchanged. It reads, “where the defendant has previously been tried upon an indictment or information embracing the same charge, the testimony of any witness who has testified upon such prior trial may be read in evidence upon any subsequent trial of the same indictment or information upon its being satisfactorily shown to the court that the witness is dead or insane, or can not with due diligence be found in the state.” Code Crim Proc § 8(3)(d). The wording regarding unavailability is based upon Uniform rules 62(7) and 63(3). The prior testimony exception to the hearsay rule offers the maximum guarantee of trustworthiness since the original statement was made in court, under oath and subject to cross-examination by a party who had the same motive to expose falsehood and inaccuracy as does the opponent in the trial where the testimony is sought to be used. The former statute’s distinctions, which recognized that a dead witness was unavailable but that a dying witness was not, and took cognizance of a resident’s unavailability if he was outside the state on military service but not if he refused to come back into the state, could be justified only on the ground that they prevented an unscrupulous proponent from arranging to make witnesses unavailable. This result is directly accomplished without any loss of necessary testimony by the provision permitting the judge to exclude prior testimony where the absence of the witness is due to the proponent’s procurement or culpable neglect.

The advisory committee decided not to adopt the requirement of Uniform rule 62(7) that the prior testimony be excluded where unavailability is based on absence from the jurisdiction “and the judge finds that the deposition of the declarant could have been taken by the exercise of reasonable diligence and without undue hardship, and that the probable importance of the testimony is such as to justify the expense of taking such deposition.” Either side is free to take the deposition if it considers it would be useful. There is no reason to put pressure on a litigant to take a deposition where he believes it probable that the prior testimony will duplicate what can be obtained by a deposition.

The reference to incompetency under the dead man statute in former § 348 is not needed in view of CPLR § 4519 abolishing this incompetency. The word “trial” includes a hearing and special proceeding; “witness” includes a party who testified. The phrase “such testimony, exhibits and documents proven by oath to have been so previously taken or read in evidence may be so given or read in evidence” is omitted. It repeated the substance of what was previously stated and it was clear that former testimony might have been proved by anyone who heard it, including the stenographer. See McRorie v Monroe, 203 NY 426, 430, 96 NE 724, 725 (1911).

Add, L 2000, ch 268, § 1, eff Jan 1, 2001.