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June 22, 2015

Hearsay evidence

Hearsay evidence
Ohio v Clark, No. 13-1352, Decided  June 18, 2015

As the Court of Appeals observed in Matter of Gray v Adduci, 73 N.Y.2d 741, hearsay evidence can be the basis of an administrative determination,

In Willis v New York State Liquor Authority, 118 AD3d 1013, the Appellate Division noted that:

[1] “The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible” and 

[2] “Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency's determination, unless it is seriously controverted.”

Indeed, in Doctor v New York State Office of Alcoholism & Substance Abuse Services, 112 A.D.3d 1020, the court said that hearsay evidence alone may constitute substantial evidence in an administrative hearing.

In contrast, hearsay testimony is typically barred in a criminal trial.

Paul Rothstein, Professor of Law, Georgetown University Law Center, addressed the use of hearsay in a criminal trial in his review of Ohio v Clark,* a decision recently handed down by the United States Supreme Court. His analysis is posted on the Internet at

In response to an inquiry, “Does not Ohio v Clark suggest a weakening, if not the eventual demise, of the prohibition against the use of “hearsay” in criminal actions?”, Professor Rothstein explained:

"The hearsay rule and its exceptions still apply as an additional filter, but the states are free to make exceptions to the hearsay rule. As long as the exceptions are not used to let in "testimonial" hearsay (i.e. statements made/obtained at the time with a primary purpose to make/get evidence for prosecution) against a criminal defendant, which would violate the confrontation clause, the evidence would be admissible.

"In many situations, the new approach to the confrontation clause (beginning with Crawford in 2004) lets LESS hearsay in. The previous approach (a case called Roberts) allowed hearsay in, if it was within a traditional hearsay exception, even if it was testimonial. Evidence even if within a traditional hearsay exception is now inadmissible under the confrontation clause if it is testimonial"

* In Ohio v Clark, addressing an appeal from a criminal conviction, the U.S. Supreme Court held that “In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial.” At the time the statements at issue were made L.P. was a three-year old child.