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Authenticating Records For Trial Without Live Testimony

by | Jul 3, 2024 | Auto Accident Injuries, Personal Injury, Premises Liability, Slip, Trip And Falls

Navigating the courtroom can be a complex and demanding process, especially when it comes to presenting evidence. For New York lawyers and legal professionals, authenticating records without live testimony can be a game-changer. This post will explore various methods to authenticate evidence, ensuring your case is strong and sound, even in the absence of a live witness.

The Importance of Authentication 

In order for a Court to consider a piece of evidence, there must be proof that the evidence is what its proponent says it is. People v. Price, 29 N.Y.3d 472 (2019). That is, you must first prove that the document, photograph, video, or recording is authentic, genuine, and that there has been no tampering with it. Id. This threshold issue of admissibility is known as authentication, and no document, photograph, video, or recording can be considered as evidence until its proponent proves authenticity. Id

Authenticating Evidence By Calling A Live Witness To Prove Authenticity 

The foundation necessary to establish authenticity may differ according to the nature of the evidence sought to be admitted. Id. For example, mere identification by one familiar with an item of evidence may suffice where the item is distinct or unique. Id. Where a party seeks to admit tape recordings, authenticity may often be established by live testimony from a participant in the conversation attesting to the fact that the recording is a fair and accurate reproduction of the conversation. Id. With respect to photographs or video, authenticity can be established through live testimony that the photograph or video accurately represents the subject matter depicted. Id. Similarly, medical and business records can be authenticated through live testimony that the record was made in the regular course of business and that it was the regular course of such business to make it, at the time of the act, or within a reasonable time thereafter. See CPLR 4518. 

Challenges With Authentication Through Live Testimony 

Authenticating evidence through live testimony can be burdensome. Witnesses may fail to appear at trial, which can render evidence inadmissible and potentially harm your case. Moreover, the New York Appellate Division has continually held that an unauthenticated record cannot be considered in support of or in opposition to a motion for summary judgment. Sherrod v. Mount Sinai St. Luke’s, 204 A.D.3d 1053 (2d Dept. 2022); Pena v. KST Trucking, Inc., 206 A.D.3d 1007 (2d Dept. 2022). Fortunately, there are several CPLR provisions that allow for the authentication of evidence without the need for live testimony.

Authentication of Google Map Photographs Without Live Testimony by Judicial Notice  

CPLR § 4532-B is the procedure to authenticate Google map photographs without live testimony, rendering them admissible into evidence by judicial notice. CPLR § 4532-B creates a rebuttable presumption that a Google Map photograph bearing the date the image was captured is authenticate and receivable into evidence so long as the proponent follows the procedure outlined in the statute. The Court must take judicial notice of the image so long as the proponent serves the parties, at least 30 days before the trial or hearing, with a notice of intention to offer the image into evidence, providing either a copy of the image or the internet address at which the image can be inspected. If this procedure is followed, the Court must take judicial notice of the image and admit it into evidence unless within 10 days before the trial or hearing the adverse party provides sufficient evidence to show the image does not fairly and accurately portray that which is being offered to prove. Ryabaya v. City of New York, 220 A.D.3d 903 (2d Dept. 2023).

Authenticating Documents Disclosed And Created/Authored By An Adverse Party

CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to CPLR article 31 for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party.  In other words, if (1) an adverse party (2) discloses material it authored or created (3) in response to a CPLR Article 31 demand, then the disclosure is deemed authentic when you offer evidence against the disclosing party. 

Authenticating Non-Party Business Records Without Live Testimony 

CPLR 3122-a provides the mechanism for authenticating business records produced by a non-party without the need to call a witness for live foundational testimony. To authenticate a non-party’s business record, the proponent must serve the non-party with a subpoena or other request demanding the record be produced accompanied by a certification in the form of a signed, notarized, sworn affidavit from an authorized custodian of records. The certification must attest to the following: 

  • To the best of the custodian’s knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum (or other request) that are in the possession, custody, or control of the person receiving the subpoena or other request; 
  • To the best of the custodian’s knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum or other request; and 
  • The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.

Upon receipt of the records and certification, the proponent of the records must, within 30 days of trial, serve all parties to the action with a notice of intention to admit the records into evidence specifying where the records can be inspected. This method may be used to authenticate non-hospital medical records, general business records and diagnostic test reports.

Authenticating Hospital Records Hospital, Library, Municipal Corporation Or State Records Without Live Testimony 

Due to a recent amendment to CPLR § 2305, you now have two options for authenticating hospital, library, municipal corporation or state records without live testimony. Option one is the old way, subpoena records into the court accompanied by the proper certification. Option two is the new way as discussed in greater detail below under II. As a note of caution, the amendment to CPLR § 2305 does not change the way business records (non-hospital, library, municipal corporation or state records) must be authenticated, i.e., you still have to use CPLR § 3122-a. 

I. Using CPLR § 2306(A) To Authenticate To Authenticate Hospital, Library, Municipal Corporation Or State Records Under CPLR 4518(C)

CPLR §§ 2306(a) authorizes receipt into evidence of domestic hospital records which have been properly (1) certified and (2) subpoenaed to the Clerk of the Court. CPLR § 2306 permits a hospital to comply with a subpoena by sending the records to the subpoena record room. CPLR § 4518(c) deems hospital records authentic if they are accompanied by a certification complying with 4518(a)’s requirements. 

The negative of authenticating domestic hospital records under this procedure is that records are received directly by the subpoenaed record room of the Court, and thus, you are limited in your ability to review the records unless you go to the record room to inspect and or copy the records. 

II. Using CPLR § 2305(D) To Authenticate Hospital, Library, Municipal Corporation Or State Records Under CPLR 4518(C)

CPLR § 2305(d) provides that where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.  

CPLR 4518(c) all records, writings, and other things referred to in sections 2306 (hospital records) are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of hospital, laboratory, department or bureau of municipal corporation or of the state, or by an employee delegated fort that purpose or by a qualified physician. 

So the addition of CPLR § 2305(d) allows a hospital to comply with a trial subpoena by sending records to the attorney instead of to the subpoenaed record room so long as (1) you serve a copy of the subpoena on all parties simultaneously with the subpoena served on the hospital and (2) you send the records received to all parties in the exact format you received them in. Once CPLR § 2305(d) is complied with, the records will be deemed authentic thanks to CPLR 4518(c) so long as the records are accompanied by a certification from the proper custodian of records. 

Diagnostic Medical Testing CPLR § 4532-A

CPLR 4532-a provides when and how diagnostic tests are authenticated. 

A diagnostic test cannot be authenticated unless it: (1) contains the name of the injured party; (2) the date when the test was taken; (3) contains such additional identifying information as is customarily inscribed by the medical practitioner or facility. 1, 2, and 3, are referred to as the required information. 

If a test has the required information, then CPLR § 4532-a gives you two ways to authenticate it without having to call the facility who conducted the test. 

Subpoena the film to the office or to court and under CPLR § 4532-a(1)(2)(a) and have your medical expert testify that the film contains the required information and you make a showing that your opponent previously received or examined the film. Note, your expert must be familiar with the facility where the test was taken so that he can attest that the additional identifying information is customarily inscribed on films generated by the respective facility. 

Alternatively, under CPLR § 4532-a(1)(2)(b), you get the actual film from the facility accompanied by an affidavit or affirmation of a physician identifying the film and attesting (1) to the identifying information inscribed thereon; (2) that the identifying information inscribed thereon is the same as is customarily inscribed by the medical practitioner or facility; and (3) that if called as a witness, he or she would so testify. Once you get the film accompanied by the affidavit or affirmation, you must serve a notice of intention to offer the film into evidence  along with the affidavit or affirmation. 

Conclusion

Authenticating records without live testimony is a powerful tool for New York lawyers and legal professionals. By utilizing the provisions outlined in the CPLR, you can ensure your evidence is admissible and your case remains strong, even in the absence of a live witness. 

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