Hey, Google, why were you allowed to replace New York judges now? New York quietly passes judicial functions to private corporations and creates a new - HUGE - hearsay exception under the guise of "judicial notice"

By the end of its session and right before legislators' vacations start, the New York Legislature quietly passed a bill that many New Yorkers would not even make head or tail as to why it is important.

This one.

But it is - very important.

The new law amends the so-called Civil Practice Law and Rules Section 4511 that, as of today, reads like this:

Let's go through the original pre-admendment law and see what it means, why was it changed and what problems - if any - the new change has brought to New York litigants, especially those litigants who do not have enough money to afford an attorney, much less a court expert.

A "judicial notice" is a type of action of a court of law to recognize certain law or facts without a trial.


The concept of judicial notice of law is simple and of unquestionable constitutionality.  Judges, as a requirement of their professional competence - and CPLR 4511(a) have to know and apply without asking them to do that, laws applicable to the circumstances of a particular case (that are not violative of the U.S. or State Constitutions - such a condition is always implied, as it is in loyalty to the Constitutions that each judge is sworn). 

Here is the text of CPLR 4511(a):

"(a) When judicial notice shall be taken without request.  Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts."

Judicial notice of laws is mandatory for every judge - as reflected by the language of CPLR 4511(a) "every court shall".

Now, a judge may have a choice to take or not to take judicial notice as to some 

Here is the text of CPLR 4511(b):


"(b) When judicial notice may be taken without request;  when it shall be taken on request.  Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state;  ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States;  and the laws of foreign countries or their political subdivisions.  Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it.  Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice."

Ok, so if a party requests a court to take judicial notice of:

• private acts and resolution of the Congress of the United States;
• private acts and resolutions of the New York State Legislature;
• ordinances and regulations  of officers, agencies or governmental subdivisions of the State of New York or United States, and/or
• laws of foreign countries or their political subdivisions

then New York courts have an obligation to take judicial notice of these things as the party requests.

The remaining two subdivisions of the same statute govern how the court would take judicial notice of the law and charge - the law - to the jury:

"(c) Determination by court;  review as matter of law.  Whether a matter is judicially noticed or proof is taken, every matter specified in this section shall be determined by the judge or referee, and included in his findings or charged to the jury.  Such findings or charge shall be subject to review on appeal as a finding or charge on a matter of law.

(d) Evidence to be received on matter to be judicially noticed.  In considering whether a matter of law should be judicially noticed and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether offered by a party or discovered through its own research.  Whether or not judicial notice is taken, a printed copy of a statute or other written law or a proclamation, edict, decree or ordinance by an executive contained in a book or publication, purporting to have been published by a government or commonly admitted as evidence of the existing law in the judicial tribunals of the jurisdiction where it is in force, is prima facie evidence of such law and the unwritten or common law of a jurisdiction may be proved by witnesses or printed reports of cases of the courts of the jurisdiction."

Let's note one unifying factor throughout CPLR 4511 - the judicial notice is being taken of the LAW, not the facts.

This is about to change if Governor Cuomo signs the law that has just passed, into law.

Both chambers of the New York Legislature has so far voted to amend CPLR 4511 to include judicial notice of FACTS, moreover, creating a presumption, before trial, before the case or controversy is even filed with the court, much less before it came for review in front of a jury, that facts reflected in a document created and in exclusive possession of a private corporation-monopolist (Google) are PRESUMED AUTHENTIC AND TRUE - with a nearly impossible to comply with and extremely costly procedure to rebut that presumed authenticity.

In the new bill, subsections (c) and (d) are changed (amended) to read this way:

So, now judicial notice is to be taken of:

• AN IMAGE, 
• MAP, 
• LOCATION, 
• DISTANCE, 
• CALCULATION, OR 
• OTHER INFORMATION TAKEN FROM A WEB MAPPING SERVICE, A GLOBAL SATELLITE IMAGING SITE, OR AN INTERNET MAPPING TOOL, 

in other words, matters of FACT.

So, those facts that require the party asserting them (usually, the Plaintiff) proof in front of a jury - by New York State Constitution - may now be PRESUMED, and presumed long before the jury trial.

What is also presumed, is:

• that the equipment used to map that information was designed to measure such information;
• that the equipment was properly calibrated;
• that the information was properly collected and properly digitized by qualified personnel in good faith.

ALL of these things - matters of fact that are usually hotly contested and require proof from the party introducing these contested facts, through sworn testimony of witnesses having first-hand knowledge of the fact (those who created the digital content), subject to cross-examination of the entire documentary chain of custody - from those who calibrated the equipment to those who collected the information to those who processed it, digitized that and created reports - are now simply PRESUMED, so a party introducing such supposed evidence can simply ask a judge, not a jury, to "take judicial notice" of FACTS - and the jury's hands will be bound, it will be LAW for them.

There is an even easier solution - since contested facts can now be presumed through judicial notice, trial by jury, a costly affair, is now rendered useless, and defendants will be forced in a settlement, or else threatened with a summary judgment, a court deciding all issues of fact, without any jury.

This is what the New York Constitution says about people's right in New York courts to trial by jury:

§2. Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver. (Amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.) 

Moreover, the newly proposed amendment to CPLR 4511 does not use - anywhere in the text of the statute - the word "hearsay", or that he new amendment constitutes a hearsay exception.

There are, unfortunately, hearsay exceptions - like this one, called a "business records exception" - and it is very difficult already to fight in court against turning the entire trial proceeding into a big application for a summary judgment, and that especially applies to Family Court and cases of child abuse and neglect with social services.  My second book in my book series about defense against social services in New York (my first book in this series is already published on Amazon and is available here, there is also a lot of information there about hearsay exceptions) will be dedicated entirely to evidence, burdens and standards of proof in such cases.

But, the newly amended (lacking only the Governor's signature to become law in New York) makes fight in court against hearsay at nearly impossibly hard level, especially for unrepresented litigants.   In the new CPLR 4511 the New York Legislature has put massive hearsay exceptions into a statute that is versed as a "judicial notice of the LAW" - by trick, taking away attention of the public, scholars, lawyers and litigants from the glaring problem with this statute:

1.  creating a presumption of admissibility AND authenticity of FACTS created by a powerful private entity, a monopolist in its field, without any basis for such a presumption;

2.  Eliminating the necessity for parties to prove admissibility of evidence;

3.  Eliminating the need to prove, by hiring experts - inviting them from the same Google - that information is genuine;

4. shifting the burden of proof from plaintiffs or other litigants offering such information to defendants or persons who need to rebut it;

5. turning the normal trial proceedings - presentation and authentication of evidence in front of a jury - into a pretrial determination of facts on their merits by the judge, under the guise that what is determined is not facts, but "law".

Look how that is done.

First, instead of proof, the plaintiff proposes a printout from the Internet - and under the new law there is now (if Governor Cuomo signs the bill into law)

" PRESUMPTION THAT SUCH IMAGE, MAP, LOCATION, DISTANCE, CALCULATION, OR OTHER INFORMATION FAIRLY AND ACCURATELY DEPICTS THE EVIDENCE PRESENTED.

The difference for litigants and outcome of court cases now is that, if such a printout introduced in court today, before Governor Cuomo signed the bill into law, the plaintiff can be laughed out of court, lose the case and incur sanctions and attorney fees for bringing a frivolous action that he could never prove.

After Governor Cuomo signs the bill, the plaintiff will win hands down, without any attempt at proving authenticity and fair representation in the image of the image itself, "map, location, distance, calculation, or other information".

The only cases that may still be protected - if criminal defense attorneys do their job before they are suspended or disbarred for doing their job, which happens in NY all too often (I will publish an overview of yet another such case shortly), and if such criminal defense attorneys remind the court of the Confrontation Clause of the 6th Amendment prohibiting criminal court's verdicts based on hearsay, and even then - not many judges will listen.

What is the remedy now left for a litigant in any civil court case - including, most importantly, Family Court cases where the judge is also the fact-finder and there is no jury trial?

Here is what kind of "remedy" is offered by the new amended statute:

"THE PRESUMPTION ESTABLISHED BY THIS SUBDIVISION SHALL BE REBUTTED BY CREDIBLE AND RELIABLE EVIDENCE THAT THE IMAGE, MAP, LOCATION, DISTANCE, CALCULATION, OR OTHER INFORMATION TAKEN FROM A WEB MAPPING SERVICE, A GLOBAL SATELLITE IMAGING SITE, OR AN INTERNET MAPPING TOOL DOES NOT FAIRLY AND ACCURATELY PORTRAY THAT WHICH IT IS BEING OFFERED TO PROVE."

So, admissibility, credibility and reliability of plaintiff's evidence is presumed before trial, and the burden shifts - also before trial - to defendant to rebut (offset) the offer of an Internet printout now with "credible and reliable evidence".

It is obvious that in such a situation the shifting of the burden of proof to the defendant is a violation of due process, and putting the plaintiff and the defendant on completely unequal grounds undermines fairness and adversarial nature of judicial process.

Note also who constrained the defendant will be now in time to rebut this "judicial notice":

"

A PARTY INTENDING TO OFFER SUCH IMAGE OR INFORMATION AT A TRIAL OR HEARING SHALL, AT LEAST THIRTY DAYS BEFORE THE TRIAL OR HEARING, GIVE NOTICE OF SUCH INTENT, PROVIDING A COPY OR SPECIFYING THE INTERNET ADDRESS AT WHICH SUCH IMAGE OR INFORMATION MAY BE INSPECTED."

So, now all time limitations as to discovery dictated by Article 31 of the CPLR are scrapped, all court orders of discovery similarly limiting time for discovery and ordering that no evidence may be introduced unless first provided for inspection to the requesting party, is scrapped, and is relegated to a NOTICE of an INTERNET ADDRESS 30 days before trial.

Now, clients do not need to bother paying attorneys to send out discovery demands, making motions for violation of discovery schedules, and insist on either providing for inspection originals of documents or certified copies.  All of those choices to prove authenticity of documents are taken away from New York litigants, and what remains is only presumptions that a giant monopolist, Google, or ANY OTHER "Internet mapping service" cannot make a mistake, cannot use wrong equipment, cannot use improperly calibrated equipment (think breathalyzers and speed radars), cannot use unqualified personnel and will always, always be honest and will never fabricate evidence for a person who would ask them to post an image cooked in a certain way at a certain Internet address.

So, yet another presumption is created - that the image at a certain Internet address will remain hosted there forever by an unknown party, and that any image found at that Internet address will be presumed true and accurate.

In fact, issues of fact and especially credibility issues are ALWAYS, ALWAYS for the jury to decide, and neither the legislature, nor the court/judge can usurp, take away from the jury, credibility determinations - what is "fair", accurate and credible.

The new statute does not require provision in discovery of access to either the original document or a properly certified copy.  The only thing that the new statute requires is to provide, at a maximum, a COPY of the document (a printout that is useless for an expert in determination of genuineness of how it was digitally created), or a weblink where the image is supposed to be hosted - without any guarantees that it is hosted there.

How can this new law be fought - other than by filing a civil rights lawsuit in federal court, of course.

The new law creates an extra necessity for paper discovery and interrogatories or live depositions, accompanied with subpoenas duces tecum and information subpoenas of documents.  

The main demand to an opponent in litigation would be, after introduction of the new CPLR 4511, to provide early access - within 21 days of service of the written "Notice to Produce", as required by CPLR Article 31 - to all documentary evidence that plaintiff plans to introduce at trial, through judicial notice under CPLR 4511 or otherwise, and to make an expert disclosure as required by CPLR 3101(a)(4)(d)(1).

And then, experts should be hired, subpoenas filed upon Google and depositions held as to process involved in creating and digitizing information by Google to prepare for the rebuttal.

Because the time frame provided by CPLR 4511 for rebuttal - 20 days between receiving of the notice and a COPY of a document or an Internet link to where the document is supposedly uploaded and provision to the court of a ready expert report rebutting the presumption of credibility and authenticity:

" NO LATER THAN TEN DAYS BEFORE THE TRIAL OR HEARING, A PARTY UPON WHOM SUCH NOTICE IS SERVED MAY OBJECT TO THE REQUEST FOR JUDICIAL NOTICE OF SUCH IMAGE OR INFORMATION, STATING THE GROUNDS FOR THE OBJECTION. UNLESS OBJECTION IS MADE PURSUANT TO THIS SUBDIVISION, OR IS MADE AT TRIAL BASED UPON EVIDENCE WHICH COULD NOT HAVE BEEN DISCOVERED BY THE EXERCISE OF DUE DILIGENCE PRIOR TO THE TIME FOR OBJECTION OTHERWISE REQUIRED BY THIS SUBDIVISION, THE COURT SHALL TAKE JUDICIAL NOTICE OF SUCH IMAGE OR INFORMATION" -

is laughable, insane and heavily hints at some corruption going on in how this legislation supposedly to help cut the costs of litigation (for plaintiffs, certainly) was pushed through.

Any trial lawyer worth his salt will tell you that such discovery is expensive and very labor-consuming and time consuming.  

In the situation where the majority of New York litigants cannot afford a lawyer in civil cases, especially in foreclosures, consumer credit and other proceedings against powerful plaintiffs, such as banks, insurance companies or the government - this little bill that is snuck at the end of legislative session is a death blow to any due process in such cases for unrepresented New Yorkers.  If they are unable to pay for an attorney, they will not be able to hire an expert, especially to conduct a rush job, which is much more expensive, and will just settle or lose their cases.

Making litigation in New York much more "effective" and "speedy", and taking a lot of workload off judges.

After all, making a judge happy is what an officer of the court would do.

Such as the sponsor of the bill, Senator Michael Gianaris, 

an attorney-legislator, "officer of the court", with a very special interest to please judges regulator of his own law license and livelihood.

Since Senator-attorney Michael Gianaris is a Harvard Law School graduate, there is not a shred of possibility that he did not realize what a monster he is creating in his amendment of CPLR 4511.  Which means that Senator Gianaris meant the consequences of his actions.

The bottom line in this story is sad.

The ever-Democratic New York created, to save costs of litigation no less, a tool to make it impossible for unrepresented (pro se) litigants to find justice against powerful plaintiffs, while turning judging into sinecures.

Predictable, and very sad.