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Issues In NY Criminal Law--Vol. 2, #4©

ISSUE: To what extent is the "residuum of legal evidence" rule applicable in criminal proceedings?

THE residuum of legal evidence rule was born in 1916 and died in 1977.  But  the rule arose from the dead and has retained its vitality, at least in the criminal context.

Under the legal residuum rule, in administrative proceedings, while hearsay may be introduced, there must be some legally admissible evidence to support the tribunal's conclusion. Carroll v. Knickerbocker Ice Co., 218 NY 425 (1916); 26 Brooklyn L. Rev. 265.

In 300 Gramatan Ave. Assocs. v. NYSDHR, 45 NY2d 176, 180 NYS2d 54 (1977), the rule's death knell apparently was sounded.

However much as it has been dead civilly, New York State courts have recognized the rule's viability in criminal proceedings. Two examples: violation of probation and violation of parole.

With a probation violation, hearsay is admissible, but there must be a residuum of legal evidence adduced at the hearing, See, People v. Yutesler, 177 AD2d 732, 576 NYS2d 613 (2d Dept 1991); People v. Marx, 222 AD2d 763, 634 NYS2d 810 (3d Dept 1996); Handling a Criminal Case in New York (1999-2000 edition), sec. 21:34.

Similarly, with parole violations, while hearsay is allowed, the residuum of legal evidence rule requires that there be some competent evidence to sustain the finding. See, People ex rel Wilt v. Meloni, 179 AD2d 989, 565 NYS2d 669 (4th Dept 1991).

Now, consider yet another type of criminal proceeding, one in which again, hearsay is admissible by statute: the suppression hearing. CPL 710.60(4) provides that hearsay is admissible at such a hearing, but the section does not provide that all hearsay will sustain the prosecution's burden of proof.

So, may all the testimony adduced by the people be hearsay? In a few cases, appellate courts have found the prosecution's use of total hearsay to be insufficient. In these, the prosecution's effort to seemingly insulate the non-hearsay witnesses from testifying was faulted.

In People v. Ortiz, for example, the prosecutor at a Wade hearing called no witnesses with firsthand knowledge of the show-up. On appeal, suppression of identification was granted. Ortiz, 90 NY2d 533, 664 NYS2d 243 (1997); see also, People v. Gonzalez, 80 NY2d 883, 587 NYS2d 607 (1992); People v. Roach, 697 NYS2d 406 (1999); Handling, sec. 9:182. (Remember, with suppression hearings, under the Chipp rule, the ability of the defense to subpoena witnesses is severely circumscribed.) Ortiz, supra; Handling, secs. 8:88, 9:269.)

By no means do Ortiz, et al, apply the legal residuum rule to suppression hearings. It can be fairly stated, however, that this line of cases stands for the proposition that the prosecution may not misuse CPL 710.60(4) to insulate its witnesses and sustain its burden at suppression hearings by calling no witnesses with firsthand knowledge of the subject matter.


Cross-examination:  " . . . the greatest legal engine ever invented for the discovery of the truth." ¾ Henry Wigmore

Jury trial: "the most ingenious and infallible engine for defeating justice that human agency could contrive." ¾ Mark Twain


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