3-1. Order of Trial - In General 90 3-2. Order of Trial - Opening and Closing statements: When and how to make them. 90 3-3. Order of Trial - Motion to Dismiss After Opening Statement 92 3-4. Conduct of Trial - Right to Call Witnesses for Direct Examination 93 3-5. Conduct of Trial - Right to Cross-Examination of Witness 95 3-6. Conduct of Trial - Scope of Cross-Examination - Making Adverse Witness Own Witness 97 3-7. Conduct of Trial - Redirect Examination 97 3-8. Conduct of Trial - Redirect Examination - Rule of Completeness 98 3-9. Conduct of Trial - Re-Cross Examination of Witness 99 3-10. Conduct of Trial - Motion to Dismiss for failure to establish a Prima Facie Case 99 3-11. Conduct of Trial - Rebuttal Evidence 100 3-12. Conduct of Trial - Courtroom Decorum for Counsel and Court - Addressing the Judge - Approaching the Bench. 101 3-13. Conduct of Trial - Calling a Witness to the Stand to Testify 102 3-14. Conduct of Trial - Method of Calling a Witness to the Stand - Presenting Witnesses 103 3-15. Conduct of Trial - Requirement that Witness Have Personal Knowledge 103 3-16. Conduct of Trial - Examination of Witnesses - Method of Examination - Improper Questions 103 3-17. Conduct of Trial – Importance of Objections to Inadmissible Evidence or Improper Questions 104 3-18. Conduct of Trial - Method of Making an Objection 106 3-19. Conduct of Trial - Voir Dire to Challenge Foundation for Introduction of Evidence 106 3-20. Conduct of Trial - Leading Questions - What they are and when they are permitted 107 3-21. Conduct of Trial - Method of Making Objection to Leading Question 108 3-22. Conduct of Trial - Refreshing the Witness’s Recollection 108 3-23. Conduct of Trial - Questions for Refreshing Witness Recollection 109 3-24. Conduct of Trial - Refreshing Recollection of Witness - Past recollection recorded 110 3-25. Conduct of Trial - Motion for Reconsideration of Prior Ruling 110 3-26. Conduct of Trial - Method of Making Motion to Reconsider Prior Ruling 110 3-27. Conduct of Trial - Motion to Adjourn Trial - Defendant’s Objection to proceed with Defense before Plaintiff Rests 111 3-28. Conduct of Trial - Method of Making Motion to Adjourn - Objection to proceed with Defense before Plaintiff Rests 111 3-29. Conduct of Trial - Continuing Objection 111 3-30. Conduct of Trial - Motion to Strike Evidence Improperly Admitted 112 3-31. Conduct of Trial - Motion to Strike Evidence Admitted Subject to Connection 112 3-32. Conduct of Trial - Offer of Proof - What is it? 112 3-33. Conduct of Trial - Method of Making an Offer of Proof 113 3-34. Conduct of Trial - Exclusion of Witnesses from Courtroom 113 3-35. Conduct of Trial - Method of Making Request to Exclude Witnesses 113 3-36. Conduct of Trial - Discretion of Judge to Question Witnesses 114 3-37. Conduct of Trial - Right of Court to Compel Testimony 115 3-39. Trial Testimony - Right to Confer with Counsel 118 3-40. Trial Testimony - Right to Interpreter for Person Who Can Not Communicate with Court 118 3-41. Trial Testimony - Calling the Adverse Party as a Witness 122 3-42. Trial Testimony - Cross Examination - Modes of impeachment 123 3-43. Trial Testimony - Cross - Examination - Impeachment of Witnesses 124 3-44. Trial Testimony - Cross-Examination - Impeachment Limited by Collateral Evidence Rule 125 3-45. Trial Testimony - Cross Examination - Impeachment - Reputation for Veracity 126 3-46. Trial Testimony - Cross Examination - Reputation for Veracity - Laying Foundation for Impeachment Testimony of Bad Reputation for Veracity 126 3-47. Trial Testimony - Cross Examination - Reputation for Veracity - Questions for Impeachment Testimony of Bad Reputation for Veracity 127 3-48. Trial Testimony - Cross - Examination - Impeachment of Witness by Prior Inconsistent Statement and Questions for Introduction 127 3-49. Trial Testimony- Cross - Examination – Inadmissibility of Proof of Prior Arrest, Indictment or Conviction for Petty Crime 129 3-50. Trial Testimony - Cross - Examination - Attempt to Procure False Evidence Competent as an Admission 129 3-51. Trial Testimony - Cross-Examination - Impeachment of Witness by Criminal Conviction 129 3-52. Trial Testimony - Cross-Examination - Impeachment of Witness by Showing Bias, Hostility, or Interest 130 3-53. Trial Testimony - Cross - Examination - Impeachment by Showing Witness Hostile to Party 130 3-54. Trial Testimony- Cross - Examination - Impeachment by Showing Predisposition 130 3-55. Trial Testimony - Questions for Impeaching Witness on Cross - Examination by Showing Hostility 130 3-56. Trial Testimony - Impeaching own Witness 131 3-57. Trial Testimony - Testimony of Child 131 3-58. Trial Testimony - Prior Testimony - Use of Depositions at Trial or Hearing 132 3-59. Trial Testimony - Prior Testimony - Use of Deposition from Prior Action 133 3-60. Trial Testimony - Prior Testimony - Effect of using deposition. 133 3-61. Trial Testimony - Prior Testimony - Use of Deposition Subject to Rules of Evidence 133 3-62 Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Deposition Testimony 134 3-63. Trial Testimony - Prior Testimony - Use of Answers to Interrogatories 135 3-64. Trial Testimony - Prior Testimony - Use of Answers to Interrogatories from Prior Action 136 3-65. Trial Testimony - Prior Testimony - Effect of using Answers to Interrogatories. 136 3-66. Trial Testimony - Prior Testimony - Use of Answers to interrogatories Subject to Rules of Evidence 136 3-67. Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Answers to interrogatories 137 3-68. Trial Testimony - Prior Testimony - Admission of Prior Testimony 138 3-69. Trial Testimony - Prior Testimony - Admission of Prior Testimony Subject to Objection 139 3-70. Trial Testimony - Prior Testimony - Necessity of Foundation for Admission of Prior Testimony 140 3-71. Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Testimony 141 3-72. Trial Testimony - Method of Marking Documents as Exhibits for Identification and Offering them into Evidence 142 3-73. Trial Testimony - Method of Offering Exhibit Marked for Identification into Evidence - Standard Questions 143
Conduct of Trial and Trial Testimony 3-1. Order of Trial - In General The trial court has the authority to determine the sequence of the issues tried and to regulate the conduct of the trial.[1]
“No rule for the conduct of trials is more familiar than that a plaintiff must put in all his evidence before he rests. He must exhaust all of his testimony in support of the issue on his side before the proof of his adversary is heard. The defendant should then produce his evidence, and finally, the evidence in rebuttal is received.”[2]
The party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof.[3]
Plaintiff cannot put in merely enough evidence to make out a prima facie case and reserve the rest of his evidence for later needs. He has no right to reopen his case after the defendant has closed his case, although he may introduce proof in rebuttal. He may not, however, under the guise of rebuttal put in evidence tending to support the allegations of his pleading. Notwithstanding this general rule, the trial court, in the exercise of its discretion and for good cause, may allow a departure from the rule and permit a party to reopen his case and supply defects in the evidence which have inadvertently occurred.[4]
The defendant is not required to prove his case until the plaintiff rests. It is reversible error to compel him to do so. [5]
3-2. Order of Trial - Opening and Closing statements: When and how to make them. Before any evidence is offered, the attorney for the plaintiff and the attorney for the defendant have the right to make opening statements.[6]
At the close of all the evidence on the issues tried, the attorneys for each party have the right to make closing statements in inverse order to the opening statements.[7]
The party holding the affirmative upon an issue of fact has the right to open and close the proof at the trial, and to reply in summing up the case to the jury. This is regarded as a legal right, not within the discretion of the court. [8] It is a substantial right, the denial of which is error.[9]
The party who has the burden of proof has the right to open and close[10] and normally is obligated to complete his prima facie case before the opposing party must present his proof. The adverse party side then produces his evidence, following the same procedure for examination and cross-examination of witnesses. The party who first produced his evidence may sometimes produce evidence in rebuttal of his opponent’s case.[11]
The party who has the affirmative of the issue has the right to open first and close last.[12]
In non-jury matrimonial matters, it is customary for the court to ask the attorneys for the parties if they want to waive opening statements and they usually waive them. This is a tactical decision. If the trial judge is new to your case it is recommended that the party with the affirmative make an opening statement in order to familiarize the court with the case.
The party having the burden of proof should never waive the right to make an opening statement as it gives counsel the opportunity to paint a positive picture of his client, allows counsel to put his case in the proper perspective and to convince the court of the correctness of his client's position.
In the opening statement, counsel should explain to the court the facts that you intend to prove. All of the elements that you need to prove to establish a prima facie case should be mentioned in your opening statement. The statement should draw the attention of the court and should be told in the form of a story.
At the close of the case, counsel should make a closing statement, which is usually referred to as "summation.” In your summation, you should refer to your opening statement and specify the facts that you have established. You should then relate the facts you have established to the law and summarize your requests for relief.
Statements made by an attorney in his opening statement have been held to be a judicial admission.[13]
3-3. Order of Trial - Motion to Dismiss After Opening Statement Dismissal of a complaint at end of plaintiff's opening statement is permitted in cases where the complaint does not state cause of action, the cause of action is conclusively defeated by an admitted defense, or counsel, by admissions or statements of fact, has subverted plaintiff's cause of action.[14]
Formal judicial admissions take the place of evidence and are concessions, for the purposes of the litigation, of the truth of a fact alleged by an adversary. [15] Informal judicial admissions are facts incidentally admitted during the trial. These are not conclusive, being merely evidence of the fact or facts admitted. [16]
An unequivocal factual assertion made by counsel during opening statements can constitute a judicial admission. [17] In order to constitute a judicial admission, the statement must be one of fact.[18] Counsel's argument or opinion cannot constitute a judicial admission.[19] The statement must be made with sufficient formality and conclusiveness, that is, it must be deliberate, clear, and unequivocal. [20] Where counsel's statement is not one of fact, nor made with sufficient formality and conclusiveness, and is merely his opinion as to what he believed the evidence had shown, it is not an admission.[21]
There is no CPLR provision for the dismissal of a complaint based on the plaintiff's opening statement. CPLR 4401, however, contemplates judgment for a party on the strength of “admissions” which, at least theoretically, includes dismissal of a complaint upon the basis of a plaintiff's opening statement. If CPLR 4401 is to be relied upon, the admissions must be so self-defeating as to irreparably preclude all possibility of judgment.[22]
In entertaining a motion to dismiss following the opening statement, the court, in exploring the viability of the case, should consult the pleadings, including, the complaint and the bill of particulars to aid in the determination of whether there is going to be enough to warrant the eventual submission of the case to the jury. In making that evaluation, the court must assume that every material fact is to be resolved in favor of the plaintiff, affording every inference in support of the complaint which, for these purposes, must be accepted as true, or, at least provable. The court should not dismiss unless there is “no doubt” that the plaintiff cannot recover. Dismissal is unauthorized if there is any view under which the plaintiff may succeed or any theory by which it may prevail. Once this test is passed, in that the complaint is deemed to have stated a cause of action, the court must then examine whether the valid complaint is conclusively defeated either by a clearly and factually admitted defense, or by an admission or concession so ruinous to the plaintiff's case that dismissal is warranted. These inquiries constitute the three-prong test that courts have come to apply. This is not to say that a trial court should be so indulgent as to sustain a case which, from all indications, has no legal basis. If nonetheless, on the opening, it becomes obvious that the suit cannot be maintained because it lacks a legal basis or, when taken in its strongest light, cannot succeed, the court has the power to dismiss. However, dismissal has not been upheld where the plaintiff's attorney was denied the request to make an offer of proof in support of the opening statement after it was challenged as inadequate.[23]
3-4. Conduct of Trial - Right to Call Witnesses for Direct Examination The Court of Appeals has held that the right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process. A party has the right to have the witness sworn and to ask questions of him. Upon proper objection, the court is entitled to rule on the admissibility of the evidence offered. Unless the offer of evidence is palpably in bad faith, the court should not exclude the witness from testifying. [24]
The right to present evidence is essential to the fair hearing required by the Due Process Clause" [25] and the testimony of a witness may not be excluded prospectively unless offered in bad faith.[26] However, a court may refuse to permit a witness to be called to testify where the witness testimony will be cumulative.[27]
Generally, sound trial practice demands that every witness be questioned in the first instance on all relevant matters of which he has knowledge and be excused at the completion of this testimony, as recall at a later point in trial not only may inject untoward administrative burdens into litigation by reopening a whole range of prior testimony, but may also unfairly disadvantage the adversary in his ability to meet proof or unnecessarily divert the jury's attention away from material issues of case. In certain situations, the trial court may find it necessary to depart from this general rule and may do so in its discretion. Recall of a witness for redirect examination is subject to the discretion of the court.[28]
Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case. The power to permit deviation is an integral part of the Trial Judge's function. This power to control the case is discretionary and its exercise is not reviewable, except for a clear abuse of discretion.[29]
The order of introducing evidence and the time when it may be introduced are matters resting in the discretion of the trial court.[30] This rule[31] recognizes the court's power to permit the introduction of evidence after the close of the offeror’s case[32] or prohibit the same.[33] Also within the trial court's control is the method and duration of cross-examination to determine a witness' credibility or accuracy.[34]
While the court may not deprive a party of the right to inquire into matters "directly relevant to the principal issues of the case against him”, [35] it may, in the proper exercise of discretion, restrict inquiry into collateral matters or prohibit unnecessarily repetitive examination.[36]
3-5. Conduct of Trial - Right to Cross-Examination of Witness After the direct examination of a witness is completed, the adverse party is entitled to question the witness as to anything elicited on direct examination and to impeach the witness. This is called "cross-examination”.
Cross-examination of an adverse witness is matter of right in every trial of disputed issues of fact.[37]
Where a party calls himself as a witness and is examined in chief, the opposite party may go into the whole case on cross-examination, and need not confine himself to a cross-examination on the matters that were the subject of the direct examination.[38]
It is discretionary with the trial judge as to the extent to which he will permit cross-examination relating to collateral matters.[39]
If cross-examination of a witness becomes impossible, that witness’ testimony on direct examination must be stricken.[40] The denial of a motion to strike on this ground ordinarily is reversible error.[41] Where a witness refuses to answer a pertinent question on cross-examination, his testimony in chief should be stricken out.[42] The First Department has held that when a party, through no fault of its own, is deprived of the benefit of the cross-examination of a witness, a court may strike that witness's direct testimony in whole or in part.[43]
A party is entitled to considerable latitude in the examination of an adverse witness, and it is error to exclude questions to such witnesses directed to eliciting material testimony.[44]
Where the wife disputed the husband's claim in their divorce action that he had been locked out of the marital apartment, and testified that the husband had left her without justification for another woman, and at one point in the husband's cross-examination it was brought out that he had purchased furniture and had caused it to be delivered to an unidentified woman, it was held that the trial court should have permitted inquiry into the nature of the husband's relationship with that woman and should have permitted cross-examination of one of the husband's witnesses as to whether the witness knew that husband was living with another woman. [45]
In a proceeding against a former wife for custody of the parties child, the restriction of the wife's cross-examination of the husband with relation to circumstances which brought about the divorce was held to be erroneous, since the widest latitude should have been allowed in inquiring into the question as to whether the estrangement of the parents was based upon misconduct of the wife or the husband's desire to marry another woman.[46]
3-6. Conduct of Trial - Scope of Cross-Examination - Making Adverse Witness Own Witness The General rule as to cross-examination provides that it should be limited to matters brought out on direct examination, except where the cross-examiner seeks to inquire as to subjects not brought out on direct examination, in which case he may make the witness his own.[47]
3-7. Conduct of Trial - Redirect Examination After the adverse party cross-examines the witness, the proponent of the testimony may examine the witness in order to rehabilitate him or question him with regard to matters brought out on cross-examination. This is called "Redirect" examination. A party whose witness has been cross-examined is entitled to conduct redirect examination of the witness and the redirect is confined to those matters which were brought out on cross-examination, so as to allow the witness the opportunity of explaining any new facts which were brought out.[48]
The scope of redirect examination is a matter within the discretion of the trial court and may be allowed concerning an issue raised on cross-examination which was not explored on direct examination. [49]
Recall of a witness for redirect examination is subject to the discretion of the court. [50] The order of presentation of the evidence at trial, including the decision to permit a party to recall a witness who has finished testifying, is a matter generally resting within the sound discretion of the trial court.[51]
Where the evidence sought to be elicited from the plaintiff on redirect examination, went to plaintiff's cause of action, and related to a subject to which plaintiff's attention had not been directed either on direct or cross-examination, and as to which plaintiff might have been recalled and examined, it was not subject to exclusion, in the discretion of the court, because it was not offered on direct examination.[52]
3-8. Conduct of Trial - Redirect Examination - Rule of Completeness The rule of completeness is a rule of fairness which applies where a witness is cross examined by reference to only a portion of his prior statements or admissions. Where only a part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying that statement. [53]
The rule was stated by the Court of Appeals in Grattan v. Metropolitan Life Ins. Co., as follows:
“The rule appears to be firmly settled, both as to a conversation or writing, that the introduction of a part renders admissible so much of the remainder as tends to explain or qualify what has been received and that is to be deemed a qualification which rebuts and destroys the inference to be derived from or the use to be made of the portion put in evidence.”[54]
Completeness evidence may be admitted when portions of a party's prior statements have been introduced against him as admissions[55] or when he has been cross-examined about portions of his prior statements for purposes of impeachment. The attorney who called that witness to testify may then elicit testimony as to the omitted portions of the documents or conversations that tend to provide an explanation or qualification of the testimony. [56]
In People v. Schlessel,[57] the Court of Appeals stated the following three limitations on completeness evidence: (a) the completeness evidence must be relevant to the issue; (b) the completeness evidence must concern the same subject and explain it; [58] (c) the completeness evidence merely aids in the construction of the utterance as a whole, and is not in itself testimony. This last limitation prohibits completion evidence to be used as affirmative evidence in those situations in which it would be otherwise admissible.
3-9. Conduct of Trial - Re-Cross Examination of Witness The adverse party may be allowed to question the witness as to anything elicited on "redirect examination" and to attempt to impeach the witness. This is called "re-cross examination.” Sometimes the court will allow re-redirect examination and re-re-cross examination. Re-cross-examination is limited to facts produced on redirect examination.[59]
3-10. Conduct of Trial - Motion to Dismiss for failure to establish a Prima Facie Case After the party having the burden of proof on the issues has closed his case and rested the adverse party may move to dismiss for failure to establish a prima facie case. Any party may move for a judgment as a matter of law after the close of the evidence presented by an opposing party. The grounds for the motion must be specified. The motion does not waive the right to present further evidence even where it is made by all parties.[60]
In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff's evidence must be accepted as true and given the benefit of every reasonable inference which can reasonably be drawn from that evidence. The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant. [61] The question of credibility is irrelevant, and should not be considered.[62] The testimony must be viewed in a light most favorable to the plaintiff, and accepted as true. [63]
The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant. Such a motion must be denied where facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question.[64]
A motion to dismiss based on admissions is authorized “at any time”. [65]The motion may be granted when counsel “deliberately and intentionally states or admits some fact that, in any view of the case, is fatal to the action”. [66]
After the party having the burden of proof has rested the adverse party has the right to offer evidence. This is subject to the right of the judge to alter the order of proof.[67]
The adverse party meets his adversary's case by either proving that the facts are not as shown by the proponent of the evidence, by impeaching the plaintiff's witnesses or by establishing an affirmative defense.
A party is entitled to give rebuttal evidence. When the party holding the negative of an issue rests, the party who first put in his evidence may then put in evidence which rebuts or contradicts the evidence produced by the adverse party.[69] The evidence may not only contradict the evidence on the opposite side and corroborate that of the party who began, but also may controvert some affirmative fact which the answering party has endeavored to prove. [70] Rebuttal evidence means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove.[71] Evidence which would have been proper as part of plaintiff's affirmative case, and which he has no right to introduce as affirmative evidence after the defendant has rested, may still be offered by the plaintiff if it tends to impeach or discredit the testimony of defendant.[72]
What evidence may properly be introduced in rebuttal rests in the sound discretion of the trial court,[73] and the court’s exercise of that discretion is ordinarily subject to review only for clear abuse or an improvident action.[74]
3-12. Conduct of Trial - Courtroom Decorum for Counsel and Court - Addressing the Judge - Approaching the Bench. The New York Rules of Judicial Conduct require all judges in the unified court system, except part time judges and administrative law judges, to comply with the rules of judicial conduct. All other persons, including judicial hearing officers, who perform judicial functions within the judicial system must comply with the rules in the performance of their judicial functions.[75]
The Rules of Judicial Conduct direct a judge to require order and decorum in proceedings before the judge.[76] The corollary of this rule is that a judge must be “patient, dignified and courteous” to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity. A judge must require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.[77]
The Rules of Judicial Conduct state that a judge must perform judicial duties without bias or prejudice against or in favor of any person,[78] and must accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.
The New York State Bar Association, Code of Judicial Conduct Commentary[79] to this rule states that facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial. Prejudicial behavior includes addressing a lawyer for one of the parties by an honorific title, such as “judge”, senator”“, mayor” or “ambassador” in open court. However, this rule does not prohibit addressing a lawyer who appears in his or her capacity as a public official by the title of the office in which he or she appears, such as “Attorney General,” “District Attorney” or “Solicitor General.” [80]
It is customary for counsel to rise when addressing the judge and to address the judge as "Your Honor”. The judge is usually referred to as "judge”, "Your Honor" or "The court.” For example: "If the court please."
Court personnel, such as courtroom clerks, court officers and court reporters should be given due respect.
Counsel should remain behind the bar at the front of the courtroom and should request permission to have a discussion with the judge and counsel off the record, or to approach the bench at the sidebar for a conference. For example:
(By Counsel). “Your Honor, may we go off the record?"
(By Counsel) “Your Honor, may we approach the bench?"
(By Counsel) “Your Honor, may we have a sidebar conference?”
Counsel should dress in proper business attire giving due consideration to local custom. It is disrespectful for counsel to chew gum, read a newspaper or bring food or drinks into the courtroom, unless approved by the judge.
The witness is then questioned by the attorney who called him. This is called "Direct Examination.” When the attorney who called the witness finishes questioning him he indicates this to the judge by stating:
(By Counsel) "Your Honor, I have no further questions of this witness."
A party’s failure to object to unsworn testimony constitutes a waiver of any argument that the testimony was not properly admitted.[81]
(By Counsel) "Your Honor, I call Ms.__________ as my first witness." or
(By Counsel) "Your Honor, I respectfully request that the court officer be directed to go out into the hallway and call Mr.__________, who I have subpoenaed, to testify.”
3-15. Conduct of Trial - Requirement that Witness Have Personal Knowledge A witness must have personal knowledge of the facts to which he or she testifies. The requirement that a witness have personal knowledge of the facts to which she testifies is fundamental in the law of evidence.[82] Wigmore defined personal knowledge as "an impression derived from the exercise of [the witness'] own senses, not from the reports of others." [83] Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule providing that a witness may not testify to matter unless there is evidence sufficient to support a finding that he has personal knowledge of the matter excludes testimony concerning matters the witness did not observe or had no opportunity to observe.[84]
This rule does not apply to an out of court statement that is not subject to the hearsay rule, as long as the witness actually heard what was said by the out of court declarant. [85] Nor does it apply to an expert witness who may base his opinion on facts in evidence or facts made known to him during trial,[86] or who may rely, in part, on hearsay if it is of a kind that is accepted in the profession as reliable in forming a professional opinion.[87]
A witness may also testify in the form of a spontaneous narration responding to a general question asking what he saw or heard at a particular time and place. In narrative testimony the witness attention is directed to a specific place and time and the witness is asked to state "what occurred.” [89] The trial court exercises its discretion in determining the extent to which narrative testimony may be used.[90]
The court may terminate "unnecessarily repetitive" questioning. [91] This rule applies to both direct and cross-examination.[92]
Questions that are solely intended to humiliate or harass the witness are improper. Argumentative questions are improper. For example, asking the witness to characterize disputed facts, or give his opinion on the truth of what another witness or person said, is improper.[93]
Questions that assume the truth of facts which are not established by proof, or not in evidence are improper. [94]
Where a question is proper but the answer does not respond to the question, it is not responsive, and a motion to “strike the answer as not responsive” may be made.[95]
3-17. Conduct of Trial – Importance of Objections to Inadmissible Evidence or Improper Questions The attorneys (or parties if they are pro se) are required to make timely objections to the introduction of inadmissible evidence or improper questions. The general rule is that the failure to timely object to inadmissible evidence or improper questions results in a waiver of the objection. [96]
Opposing counsel has the right to object to any question which appears to be improper. [97]
Where a party offers objectionable evidence and his opponent does not object to it, that party has opened the door for the introduction of such testimony by the opponent and may not have it excluded. [98]
An appeal from a final judgment brings up for review, among other things, any ruling to which the appellant objected or had no opportunity to object, or which was a refusal or failure to act as requested by the appellant.[99] However, if there is no objection, the issue is not preserved for appellate review. [100]
The proper time to object to a question is when it is asked. The proper time to object to the admission of a document is when it is offered in evidence. [101]
An objection must be made as soon as the opponent either asks a question that apparently calls for improper testimony or attempts to introduce an improper exhibit.[102] An objection to a question should be made as soon as the question is asked and before it is answered. Counsel is not permitted to wait until he finds out whether the answer is favorable or unfavorable before objecting to the question. A delay in objecting until after the testimony is completed may be considered a waiver of the objection. However, if the answer to an improper question is made so quickly that an opportunity is not afforded for an objection until after the answer, an objection made immediately after the question is answered is considered timely. [103]
When the objectionable evidence is part of a series of questions and ongoing testimony, a timely objection, once raised, will serve as "a continuing objection” and it is not necessary to object to other improper evidence of the same sort adduced from that witness.[104]
There is an exception to the rule that the failure to make an objection before the question is answered will be considered a waiver of the objection, where the witness answers before the objection reasonably can be interposed,[105] or when the objectionable nature of the evidence does not become apparent until a later point in the trial.[106]
Where evidence is excluded upon a general objection, the ruling will be upheld upon appeal if any ground existed for the exclusion. It will be assumed in the absence of any request on the part of the opposing party or the court, to make the objection more definite, that the ruling was made upon the right ground. Where, however, evidence is received under a general objection, the ruling will not be held erroneous unless there is some ground which could not have been obviated if it had been specified, or unless the evidence is incompetent. [107]
When evidence is immaterial, and is objected to on the ground that it is immaterial, the objection points out the precise ground upon which the evidence should be excluded, and that is all the person objecting is required to do. Where the evidence which is immaterial is also incompetent and irrelevant, it may properly be objected to on all or either of these grounds. Evidence may be incompetent, but neither immaterial nor irrelevant, or vice versa, in which case the objection may and should be made upon the exact ground that provokes it. The reason for the rule is that if evidence is inadmissible upon one ground, and is objected to upon another ground, the trial court is not advised of the true reason for its rejection, and the objector is held to have waived it. [108]
Thus, an objection on the ground that evidence is incompetent, immaterial and irrelevant is a general objection, unless it relates to an objection as to the relevance of the evidence.[109]
(By Counsel) "I object on the ground of hearsay "(a specific objection)[110] or
(By Counsel) “I object to the question on the grounds that it (is hearsay); (is irrelevant) (is incompetent)” or
(By Counsel) “I object to the admission of the document on the ground that a proper foundation has not been laid for its admission into evidence.
3-19. Conduct of Trial - Voir Dire to Challenge Foundation for Introduction of Evidence During the course of a trial the direct testimony of a witness may be interrupted, in the court's discretion, by cross-examination, known as "voir dire.” Voir dire may be requested when the opponent wishes to challenge the foundation for the introduction (or exclusion) of evidence, such as questions concerning the qualifications of an expert witness, the competency of a witness, the facts upon which a claim of privilege is based, and the authentication of evidence. If the voir dire exposes a defect in the foundation for the admission of the evidence, the inadmissible evidence will be excluded.[111]
As a general proposition, a party, who desires a voir dire hearing when the adverse party makes an offer of some matter in evidence, need not show any affirmative grounds but is entitled to attempt to elicit from the adverse party's witnesses sufficient grounds for its inadmissibility.[112]
3-20. Conduct of Trial - Leading Questions - What they are and when they are permitted “Leading questions” are usually questions which call only for a "yes" or "no" answer, are framed to suggest the answer to the witness, or assume a fact which is controverted.[113] A question asked to a witness is leading when it “puts in the witness mouth the words that are to be echoed back or plainly suggests the answer which the party wishes to get from him. Asking the question in the alternative form, such as whether or not a party did a certain act, and specifying the act, does not make it any less of a leading question.[114]
"Leading questions" may not be ordinarily used on the direct examination of a witness. However, they are permitted on direct examination of the witness where the witness is hostile,[115] where the witnesses’ recollection is exhausted[116] and where the questions relate to introductory matter. If a question relates to introductory matter and is designed only to lead the witness to what is material to the issue, it may be asked even though it is leading.[117] For example:
(By Counsel) Q. I draw your attention to __________.” [118]
A question whether a witness had at any time made a certain statement to certain persons is not leading.[119]
Leading questions are permitted where a witness’ recollection is exhausted. Suggestions by questions are permitted to assist the memory of the witness. [120] They are also permitted where the witness is a young child, illiterate, slow-witted, or too ill to speak without assistance.[121]
A witness may be asked leading questions for purposes of impeaching the testimony of a prior witness on the grounds that he made a statement out of court that was inconsistent with his testimony at the trial. [122]
Leading questions are permitted on cross-examination. [123] However, they are not permitted for the purpose of eliciting new matter from the witness who is being cross-examined. Cross-examining a witness for the purpose of eliciting new matter from the witness is considered conducting a direct examination and it is subject to the rules of direct examination.[124]
It is up to the judge's discretion to determine if a question is leading and to permit it to be asked even if it is leading. [125]
3-22. Conduct of Trial - Refreshing the Witness’s Recollection When a witness claims to have no recollection of an event or conversation, the witness may refresh his recollection by referring to any memorandum or writing written by any person.[126] A witness is permitted to assist his memory by the use of any written instrument, memorandum or entry in a book, and it is not necessary that the writing has been made by the witness, or that it be an original writing, provided that, after inspecting it, he can testify to the facts from his own recollection.[127]
Once the witness has actually used the memorandum or writing to refresh his recollection while on the stand, the opposing counsel then has the right to inspect the memorandum or writing. He may then use it to impeach the witness. Opposing counsel does not have the right to inspect the memorandum until it is used by the witness to refresh his recollection.[128]
The adverse party has the right to inspect any writing or object used by a witness to refresh the recollection of a witness in court while that witness is testifying.[129] Where letters are used by a witness on direct examination to refresh his memory as to the date of material conversations, their production should be compelled for the use of opposing counsel on cross-examination.[130]
Entries in a hotel register were inadmissible to refresh the memory of the clerk, who was testifying to the presence of the defendant at the hotel on a specified date, where the clerk testified to the date without reference to the register.[131]
A paper which a witness has used to refresh his memory on cross-examination, and from which he was cross-examined, is admissible as part of the cross-examination.[132]
Q. I draw your attention to __________. A. Yes[133] Q. Do you recall having a conversation with ____at _________on __________with regard to __________? A. Yes Q. Please tell the court what you said to her and what she said to you. A. I cannot recall exactly what was said. Q. Do you have anything in your possession which will enable you to refresh your recollection? A. Yes, I have notes that I made shortly after the conversation. Q. Would you like to look at the notes to refresh your recollection? A. Yes.
(By Counsel)
Please do so. [Wait for witness to review notes]
When witness is finished reviewing notes.
(By Counsel)
Q. Are you finished? A. Yes Q. Please set aside your notes. A. Yes Q. Have you refreshed your recollection? A. Yes Q. Do you now recall having a conversation with ____at _______on __________with regard to __________? A. Yes Q. Do you now recall what you said to_____and what ____said to you? A. Yes Q. Please tell the court what you said to ____and what ____said to you.
3-24. Conduct of Trial - Refreshing Recollection of Witness - Past recollection recorded If a witness made a written note of an event, or recorded an event, at or about the time of the event, and the writing does not refresh his memory he can attest to its accuracy, and the memorandum or recording can be admitted for its truth. The general rule is if even after reading the memorandum, the witness remains unable or unwilling to testify as to its contents, the memorandum itself is admissible as substantive evidence of the truth of its contents, provided that otherwise competent testimony establishes that (1) the witness once had knowledge of the contents of the memorandum, (2) the memorandum was prepared by the witness, or at his direction, (3) the memorandum was prepared when the knowledge of the contents was fresh in the mind of the witness, and (4) the witness intended, when the memorandum was made, that it be accurate.[134]
A motion may be made for reconsideration of a prior ruling by the court allowing certain testimony where, for example, testimony is given “subject to connection” and it is not subsequently connected.
I move for reconsideration of the court’s ruling that ___________on the grounds that ________________________.
3-27. Conduct of Trial - Motion to Adjourn Trial - Defendant’s Objection to proceed with Defense before Plaintiff Rests Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof.[135] On occasion, an expert witness will be the last witness called to testify for the plaintiff before the plaintiff will rest. Sometimes the witness does not finish her direct testimony or cross-examination and is unable to return the next morning because he has hospital rounds all day. Usually, the court will allow the witness to return on another day and direct the defendant to start his case, subject to recall of the expert witness. If the defendant cannot present his case until the expert has concluded his testimony, counsel may move to adjourn the trial until the witness returns and concludes his testimony and is cross-examined, thus concluding the plaintiff’s case. [136]
Your Honor, I move to adjourn the trial until the conclusion of the testimony of _________, on the ground that the plaintiff has not rested and all of the plaintiff’s evidence is not in the record.[137]
3-29. Conduct of Trial - Continuing Objection One objection to a line of testimony is sufficient to preserve the point for appeal. If the initial objection is overruled, it is unnecessary to object to the next question if it calls for the same kind of testimony.[138]
If, after an objection is overruled, additional evidence is taken which changes the situation and then the same evidence appears in a different light, it may then have to be tested by a new objection. [139]
Where a question is in proper form but the answer is not responsive to the question, a motion to strike the answer, as not being responsive to the question, is proper.[141]
It is not error to deny a motion to strike an answer of a witness as not responsive, where the answer is responsive to a part of the question.[142]
If evidence is received for a particular purpose, which later is abandoned by the proponent of that evidence, a motion to strike that evidence should be granted.[143]
3-31. Conduct of Trial - Motion to Strike Evidence Admitted Subject to Connection When an objection is made to the admission of particular evidence, the court may overrule the objection and allow the evidence to be presented on examining counsel’s promise to cure the objection later. This is known as allowing the evidence to be presented “subject to connection”. If the promised foundation testimony or curative evidence is not supplied, a motion to strike the evidence is proper. If a party still considers a question objectionable after it has been perfected by additional proof, or if the objection is not cured, that party must renew his objection by making a motion to strike the evidence. [144]
3-32. Conduct of Trial - Offer of Proof - What is it? An offer of proof is a presentation of evidence for the record (outside of the jury's presence, if there is a jury) usually made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge's ruling.[145] It may be made to demonstrate the relevancy of challenged evidence, to clarify or specify the purpose or justification for a line of questioning on cross-examination, and to justify reopening the case after the close of evidence to allow presentation of additional evidence. In New York, the common law provides the principal authority for making an offer of proof. [146]
An offer of proof, which may be used to persuade the court to admit the evidence, consists of three parts: (1) the evidence itself, (2) an explanation of the purpose for which it is offered (its relevance), and (3) an argument supporting admissibility. Such an offer may include tangible evidence or testimony (through questions and answers, a lawyer's narrative description, or an affidavit). [147]
Where there is an objection to an offer of evidence, the proponent of the evidence must take advantage of an opportunity to make an offer of proof in order to demonstrate the relevance of disputed evidence.[148]
I respectfully submit that the question propounded to the witness (is material and relevant) (to the following issue) (to clarify the following):___________.
3-34. Conduct of Trial - Exclusion of Witnesses from Courtroom A party and his or her counsel have the right to be present in the courtroom during the trial.[149] The court has the right to exclude witnesses from the courtroom in order to protect against witnesses conforming their testimony to one another. An oral motion to exclude all witnesses or potential witnesses from the courtroom is addressed to the discretion of the court.[150]
Your Honor, I respectfully request that the court exclude all potential witnesses from the courtroom.
3-36. Conduct of Trial - Discretion of Judge to Question Witnesses The trial judge has the right, in the exercise of his discretion, to question and cross-examine witnesses in order to clarify issues and move the case along. A trial Judge may assume an active role in the examination of witnesses where proper or necessary to facilitate or expedite the orderly progress of the trial.[151] The judge may ask leading questions.[152] However, the judge may not be biased or partisan.[153]
While "neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process”, the court's discretion is not unfettered. The overarching principle restraining the court's discretion is that it is the function of the judge to protect the record at trial, not to make it. [154] Although the law will allow a certain degree of judicial intervention in the presentation of evidence, the line is crossed when the judge takes on either the function or appearance of an advocate at trial.[155]
There is no absolute bar to a trial court asking a particular number of questions of a seated witness; [156] or recalling a witness to the stand[157]; or even allowing the People in narrow circumstances to reopen their case after a defense motion for a trial order of dismissal[158], when doing so advances the goals of truth and clarity. [159] A court may not, however, assume the advocacy role traditionally reserved for counsel[160] and in order to avoid this, the court's discretion to intervene must be exercised sparingly. [161]
3-38. Conduct of Trial - Right of Trial Judge to Call own Witness.
The same principals apply when a trial judge calls his own witness as when he cross-examines a witness. Trial judges have wide discretion in directing the presentation of evidence but must exercise that discretion appropriately and without prejudice to the parties. Trial courts sometimes must take a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact.[163]
In People v. Arnold, [164] the issue was whether a trial court, in the exercise of discretion, can call its own witness. Defense counsel advised the court that he had a witness outside the courtroom, but after speaking to the witness rested without calling any further witnesses. The court inquired if the witness was outside and then said: ‘All right. I would want to ask him a couple of questions. Bring him in, please.” Defense counsel placed an objection on the record. The trial court gave no reason for calling the witness and did not articulate the consequences of doing so. The court simply called the witness after both sides had rested and had consciously and deliberately chosen not to call him. The Court of Appeals held that under the circumstances of this case, the court abused its discretion as a matter of law. It assumed the parties’ traditional role of deciding what evidence to present and introduced evidence that had the effect of corroborating the prosecution’s witnesses and discrediting defendant on a key issue. Although it did not appear from the record that the Trial Judge intended to give an advantage to either side, he abused his discretion in calling the witness on a key issue when both parties chose not to, and it resulted in prejudicial error. The Court stated: “We do not hold that a court may never call its own witness over the objection of a party. In those unusual circumstances in which a court feels compelled to do so, it should explain why, and invite comment from the parties. In that way, the court can consider what it aims to gain against any claims of possible prejudice. Moreover, an appellate court will have a basis on which to review the trial court's exercise of discretion.”[165] The Court of Appeals observed that a case calling for special expertise, or other such circumstances, may require a trial court to call its own witness, citing as an example Family Ct Act § 350.4 [2].[166] It noted that, even among jurisdictions where a rule of evidence or statute allows a court to call a witness, the practice is “not particularly desirable” and should be engaged in sparingly, so as to retain the court's impartiality. [167]
Counsel should object, with specific objections, if the role of the judge in questioning witnesses goes beyond clarification of the issues and appears to become partisanship or biased. [168]
The court may not call its own witnesses to establish that a witness committed perjury. Conflict in the testimony of witnesses presents a fundamental question of fact for resolution by the court, as the trier of the facts, on the basis of the evidence presented. Perjury is a criminal offense, and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney's Office and the Grand Jury, not a civil trial court. Where the record suggests that perjury has been committed, the matter may, in the sound exercise of court's discretion, be referred to district attorneys’ office for investigation. [169]
3-39. Trial Testimony - Right to Confer with Counsel The trial judge has the right, in the exercise of his discretion, to prohibit a witness from speaking to his attorney during the time that he is testifying on direct or cross-examination, and this prohibition may extend to a recess period or meal break.[170]
The Court of Appeals has held [171] that precluding a defendant from consulting with his attorney during an overnight recess violated the right to the assistance of counsel. The Court of Appeals has distinguished those cases upholding a temporary and limited ban on discussions between defendant and attorney during a brief recess. The trial court has the discretion to impose a ban on conversation between a defendant and his lawyer during a brief recess between direct and cross-examination or during a recess during defendant's cross-examination. However, an overnight prohibition of consultation between attorney and client is impermissible. It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right. The critical factor in determining whether a violation of the right to counsel occurred is the length of time dividing the defendant's access to counsel contemplated by the trial court's ruling.[172]
To facilitate this right the Judiciary Law provides for the appointment and temporary appointment of court interpreters [174] and provides for the appointment of interpreters for deaf persons.[175] In addition, the court rules provide that “In all civil and criminal cases, when a court determines that a party or witness, or an interested parent or guardian in a Family Court proceeding, is unable to understand or communicate to the extent that he or she cannot meaningfully participate in the proceedings, the court shall appoint an interpreter”.[176]
The failure to provide an interpreter where one is needed renders the trial constitutionally defective.[177] Where trial court is put on notice that the defendant has severe difficulty in understanding the English language, it must inform him that he has the right to a competent translator to assist him, at the state's expense, if he cannot afford one.[178]
The determination whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court,[179] which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his or her constitutional rights. [180]
The determination of the qualifications of an interpreter for a non-English speaking witness or a deaf party is within the sound discretion of trial court.[181]
Upon being appointed to act in a given case, a temporary interpreter is required to “file with the clerk of the court the constitutional oath of office."[182]
It is error for the court to allow a relative to interpret for a witness without first determining the need for the appointment of an interested person, inquiring into the extent of his bias, ascertaining his qualifications to translate, and admonishing him that he must translate exactly what the primary witness had said. An interpreter should be one who has no bias or interest in the outcome of a case. This is so because the danger that a primary witness' message will be distorted through interpretation is compounded when the interpreter is biased one way or the other. It has been termed the better practice to avoid appointing a friend or relative of a party or witness as interpreter. [183]
Many cases recognize that it sometimes may be necessary to appoint an interested interpreter, where no competent disinterested interpreter is available. Such an interested person should not be utilized unless and until the trial judge is satisfied that no disinterested person is available who can adequately translate the primary witness' testimony. Even where the court permissibly appoints an interested interpreter, the Trial Judge must interrogate him in order to gauge the extent of his bias and admonish him that he must translate exactly what the primary witness has said.[184]
The interpreter must translate exactly what the witness has said. He may not paraphrase the witness testimony.[185] Since the interpreter is the conduit from the witness to the trier-of-fact, interpretation should be word-for-word rather than summarized, and there should be no conversation between the witness and the interpreter, and no significant differences in the length of dialogue of the witness and the interpreter. [186]
The Office of Court Administration has issued a “bench card” for Judges working with interpreters in the courtroom, alerting judges to assess: 1. Are there significant differences in the length of interpretation as compared to the original testimony? 2. Does the individual needing the interpreter appear to be asking questions of the interpreter? 3. Is the interpreter leading the witness, or trying to influence answers through body language or facial expressions? 4. Is the interpreter acting in a professional manner? 5. Is the interpretation being done in the first person? 6. If the interpreter has a question, does he or she address the court in the third-person?[187]
It has been held that the failure of the defendant to object as to the adequacy of the translation during the trial or otherwise preserve proof of any serious error does not provide the basis for a reversal.[188]
Reversal is not required where there are errors in translation if the errors do not prejudice the rights of a party.[189]
An interpreter may be appointed by the court, in proper circumstances, where a witness has difficulty communicating to the court. In Matter of Luz P, [190]a child protective proceeding the Appellate Division considered the proper course to be taken by a trial court when confronted with a potential witness who suffered from a disability in communicating. The court, sua sponte, raised the question of whether autism prevented Luz from being sui juris. The Appellate Division observed that all questions of competence are to be decided preliminarily by the court alone. At common law, a non-verbal or mute witness such as Luz would have been disqualified from testifying; however, that is no longer the rule and a deaf mute, similar to a witness unable to speak English, may testify through a person who can understand and communicate with the witness. A critical consideration in the appointment of an interpreter for a witness who does not speak in the English language is a matching of the level of communication skill of the witness with that of the interpreter. When dealing with foreign languages, there are differences in dialects that could render translations unreliable or even unintelligible. Similarly, communicating with witnesses who have profound hearing and/or speech impairments can be complicated by the variety of "signing" systems that are in use. The test for the court in cases such as these is a pragmatic one. Can the interpreter, or in this case the facilitator, effectively communicate with the witness and reliably convey the witness's answers to the court? A determination of these questions does not require expert testimony. The proffered facilitated communication lends itself to empirical rather than scientific proof. Thus, the test whereby the court could question Luz outside the presence of the facilitator and then hear her responses through facilitated communication should adequately establish whether this is a reliable and accurate means of communication by Luz. Fact-specific questions can be devised which should demonstrate whether the answers are subject to the influence, however subtle, of the facilitator. If the court is satisfied from this demonstration that the facilitator is "qualified" to transmit communications from Luz to the court, then the facilitator may be appointed as an interpreter under Judiciary Law article 12. The Appellate Division held that the facilitated communication proffered need not satisfy the requirements of the Frye test.[191] The rule laid down in Frye provides that scientific evidence will only be admitted at trial if the procedure and results are generally accepted as reliable in the scientific community. Since the ability of an interpreter, translator, "signer”, or anyone else who transmits the testimony of a witness is not based on a scientific theory, any application of the Frye test is inapposite. Inasmuch as such a preliminary showing was not necessary with regard to the interpreter and the respondent (Spanish) parents, there was similarly no basis for concluding that the presentation of expert scientific evidence is necessary with respect to Luz's facilitator, who would only assist her in communicating her responses to the court and would not translate any of the questions put to Luz. The better position, in its view, was set forth in Matter of Marshall R.[192] In that case, the Appellate Division reversed the dismissal of a child abuse and neglect petition because the Family Court ruled that an out of court statement made by a six-year-old deaf child could not be testified to by an interpreter for the deaf. In language that was equally applicable to this case, the court observed: "The best interests of the child are far more important than some technical objection which, on this record, appears to have little substance. The testimony of the interpreter should have been admitted, and then it would become the duty of the court to weigh and evaluate such testimony in the light of the circumstances under which it was given.” The Appellate Division observed that the court must be satisfied that the testimony as transmitted by facilitation is the testimony of Luz herself, uninfluenced by the facilitator. If the court is not convinced that the facilitator is reliable, then that facilitator may not serve as the interpreter. However, such a finding should not foreclose Luz from testifying if a reliable facilitator could be found elsewhere. The DSS would have the burden of establishing the reliability of the facilitator at the preliminary proceeding. Furthermore, the fact that Luz had been diagnosed as autistic and classified as retarded did not preclude her from testifying provided she understood the nature and obligations of the oath, and provided, also, she possessed the capacity to give a correct account of what she had seen or heard in reference to the question at issue. This challenge must be decided by the court preliminarily. To this end, the court may examine not only the proposed witness but anyone else who could aid in the resolution of the issue. However, inasmuch as proposed witnesses are presumed competent, it would be the burden of the respondents to demonstrate that Luz lacked the capacity to testify by reason of her autism or purported mental retardation.
The right to an interpreter may be waived where a defendant, or his attorney, fails to call to the attention of the trial court, in some appropriate manner, the fact that he or she does not possess sufficient understanding of the English language.[193] "In the absence of an obvious manifestation to the court of a defendant's lack of understanding of the English language, or a specific request to the court based on this misunderstanding, there is no obligation upon the court to provide a defendant with an interpreter" [194]
3-41. Trial Testimony - Calling the Adverse Party as a Witness When an adverse party is called as a witness, it may be assumed that the adverse party is a hostile witness, and, in the discretion of the court, the direct examination may assume the nature of cross-examination by the use of leading questions. However, a party may not impeach the credibility of a witness whom he calls unless the witness made a contradictory statement either under oath or in writing. [195]
The Court of Appeals has stated that when a party calls an adverse party as a witness due to the exigencies of his case, all the rules applicable to the examination of other witnesses do not strictly apply. An adverse witness may be cross-examined, and leading questions asked by the party calling him.[196]
While the adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the discretion of the trial court. It has been held that the trial Court did not err in prohibiting the mother's counsel from asking the father, in a custody modification proceeding, several leading questions regarding the children's possession of a gun, absent a showing that the father was a hostile witness. The father had been neither reluctant nor evasive in answering non-leading questions, including several regarding the children and guns, and counsel made no effort to elicit the information being sought through non-leading questions.[197]
Counsel may show prior inconsistent statements to discredit the adverse party even though oral and not made under oath. Such statements are treated as admissions of a party.[198]
3-42. Trial Testimony - Cross Examination - Modes of impeachment The main purposes of cross-examination are to elicit favorable facts from the witness, or to impeach the credibility of the witness. To be effective the cross-examiner should, in effect, testify and the witness should agrees with or adopt the facts of the question. This is accomplished by the use of leading questions, which are questions which suggest the answer and which can only be answered with a yes or no. If a witness who is being cross-examined attempts to explain his answer or attempts to answer a question which is not before that witness in order to deflect the impact of the question, the attorney has the right to object to the non-responsive answer and move to strike it. The attorney has the right to call upon the court to admonish the witness to answer the question as posed. The cross-examiner should only ask those questions which assist his or her case and never allow the witness to repeat testimony elicited on direct examination. It has been said that a cross-examiner should only ask questions he knows the answers to.
In his monograph “The Art of Cross-Examination”, Professor Younger wrote that the generally recognized modes of impeaching the testimony of a witness on cross-examination are:
• Oath capacity • Perception • Recollection or memory • Communication • Bias - an irrational predisposition in favor • Prejudice - an irrational pre-disposition against • Interest a stake in the outcome • Corruption - bribery • Prior conviction • Prior bad acts - immoral, criminal, vicious • Prior inconsistent statements • Reputation for veracity.[199]
3-43. Trial Testimony - Cross - Examination - Impeachment of Witnesses A witness may be impeached by questioning his reputation for veracity, his perception, recollection or memory, by showing he is biased (an irrational predisposition in favor) or prejudiced (an irrational pre-disposition against, that he has an interest at stake in the outcome of the litigation, that he is corrupt or has been bribed, that he has a prior conviction, that he committed prior bad acts (immoral, criminal, vicious), and that he has made prior inconsistent statements. A witness may be impeached by showing his bias, hostility or Interest.[200]
A witness may be cross-examined with respect to specific immoral, vicious or criminal acts which bear upon the witness's credibility. Generally, the nature and scope of the cross-examination is discretionary with the trial court.[201] However, the inquiry must have some tendency to show moral turpitude to be relevant to the credibility issue.[202]
Cross-examination relative to specific misconduct must be based upon reasonable grounds and pursued in good faith. [203] A witness may not be asked about conduct which was the subject of criminal charges when those charges resulted in an acquittal.[204]
3-44. Trial Testimony - Cross-Examination - Impeachment Limited by Collateral Evidence Rule The general rule concerning the impeachment of witnesses with respect to collateral matters is that “the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility.”[205] The collateral evidence rule limits the ability of the cross-examiner to contradict the witness by the introduction of extrinsic evidence. It holds that "the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility. This rule is premised on sound policy considerations for if extrinsic evidence which is otherwise inadmissible is allowed to be introduced to contradict each and every answer given by a witness solely for the purpose of impeaching that witness, numerous collateral mini-trials would arise involving the accuracy of each of the witness's answers. The resulting length of the trial would by far outweigh the limited probative value of such evidence."[206]
Even where a particular subject is proper impeachment upon cross-examination, it is collateral unless it is relevant to some issue in the case other than credibility or is independently admissible in order to impeach the witness. Such collateral matter, while proper cross-examination because relevant to the witness's credibility, may not be proved to impeach the witness by extrinsic evidence.[207] Thus, where the subject matter bears upon the witness's credibility because it shows that the witness had acted deceitfully on a prior unrelated occasion, it is collateral and, if the witness denies the conduct, the questioner is bound by the witness's answer and may not refute it with independent proof.[208] However, a negative response by the witness does not preclude further questioning of the witness on the point, "for, it if did, the witness would have it within his power to render futile most cross-examination." [209]
It was error to permit defense counsel to use a confession of judgment on cross-examination to contradict plaintiff's denial that she had received public welfare funds to which she was not entitled, for the sole purpose of impeaching plaintiff's credibility. Plaintiff's alleged prior misconduct had no direct bearing on any issue in the case other than credibility. If proven, it would have shown only that plaintiff acted deceitfully on a prior unrelated occasion. Thus, the matter was collateral and could not be pursued by the cross-examiner with extrinsic evidence to refute plaintiff's denial.[210]
Subjects of impeachment which are not collateral and with respect to which independent or extrinsic evidence may be produced are the witness's bias or hostility[211] and the witness's impaired ability to perceive.[212]
3-45. Trial Testimony - Cross Examination - Impeachment - Reputation for Veracity Where the cross-examiner does not seek to contradict specific answers given by a witness but attempts only to show that the witness has a bad reputation in the community for truth and veracity, the rule is that other qualified witnesses may be called to testify with respect to the witness' reputation for untruthfulness.[213]
The use of extrinsic impeaching testimony is limited to a general statement that the witness' reputation in the community for truth and veracity is bad. A party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity. Whether the opposing party may call witnesses to rebut the impeaching witness' statement is a question best left to the discretion of the Trial Judge for it is he who can best assess whether doing so may result in confusion or cause the trial to be unduly extended in length.[214] A “trial court must allow such testimony, once a proper foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity”.[215]
Reputation in one’s community is not restricted to “one's residential neighborhood”. [216] “A reputation may grow wherever an individual's associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability.” [217] For example, a witness' bad reputation for truth and veracity at his place of employment “can be probative and reliable”. Family and family friends can constitute a relevant community for purposes of introducing testimony pertaining to an opposing witness' bad reputation for truth and veracity.[218]
3-46. Trial Testimony - Cross Examination - Reputation for Veracity - Laying Foundation for Impeachment Testimony of Bad Reputation for Veracity A party is permitted to present testimony, once a proper foundation has been laid, that a “key opposing witness” has a bad reputation in the community for truth and veracity. [219] To lay a foundation for the reputation testimony, the offering party must establish that the impeaching witness knows the opposing witness's general reputation for truth and veracity.[220] Once the proper foundation has been laid, the impeaching witness is permitted to testify as to that reputation, but the evidence is strictly limited to the reputation for truth and veracity, and may not address the general reputation of the impeached witness's character. [221]
Q. Do you know the key party witness? A. Yes. I have known him for five years.[222] Q. How do you know the key party witness? A. We belong to the same golf club. It's called the Country Club. Q. How frequently have you had contact with him? A. I have had contact with him at least a few times a week over the past five years, in addition to contact with other club members. Q. How many club members are there? A. About 400. Q. How many of the club members do you speak to, play golf with or socialize with? A. About 30 to 35, Q. Is Key party witness one of them? A. Yes Q. Are you familiar with the Key party witness' reputation for being truthful among the 30 members of the Country Club that you speak to regularly? A. I am. Q. What is his reputation for being truthful? A. His reputation is terrible. He is regarded in the club as an untruthful person. Q. Was that his reputation as of yesterday, when he testified? A. Absolutely. Yes.
The prior inconsistent statement can be written or oral, and it need not have been under oath.[224]
Counsel may also show prior inconsistent statements to discredit the adverse party though oral and not made under oath. Such statements are treated as admissions of a party.[225]
Any oral or written statement of a witness made out of court, which contradicts a material part of his testimony, may be, if properly proven, introduced in evidence, as tending to discredit him, rather than as proof of the truth of the statement. [226]
If evidence of the statement of a witness is intended to prove that he gave an opinion inconsistent with the testimony, it is sufficient if the opinion is so incompatible with the facts he testified to that an honest mind knowing the facts would not be likely to entertain the opinion. It is sufficient if the testimony and the statements are inconsistent and tend to prove differing facts.[227]
A witness cannot be impeached by inconsistent statements that he made before or after he has testified unless he has been adequately warned by the cross-examiner that those statements will be later offered against him.[228] There must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his testimony at trial and his previous statements, he must first be questioned as to the time, place and substance of the prior statement.[229]
Where the statements are oral, the warning is given as follows:
(By Counsel)
Q. Did you on (date) at (place) in the presence of (name) or to (name of the person(s) state (alleged contradictory statements)? [230]
Where the statements are in writing the paper must be shown or read to the witness and marked for identification.
Where the paper is signed, the signature, and (if the witness requests it the paper) must be shown to him.
The statements may be proved by the admissions of the witness when it is shown to him. If he admits that he made them further proof is unnecessary. His admission that he signed the written statements proves them. [231]
If the witness does not admit that he signed the statements, the genuineness of the signature must be proved in any legal way. [232]
Proof of the written statement enables the impeaching party to properly offer the paper in evidence as a part of his case or, with the permission of the court, at any other stage of the trial. The signature of the witness is some evidence that he made the statements or authorized them to be made for him, and testimony by him that he did not read the statements or hear them read or make them is to be given such force and effect, in connection with the subscription and other relevant evidence, as the jury see fit to accord it.[233]
In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath.[234]
3-52. Trial Testimony - Cross-Examination - Impeachment of Witness by Showing Bias, Hostility, or Interest A witness's bias in favor of the party proponent or his prejudice, hostility against the opposing party, or an interest in the litigation are proper avenues of impeachment.[239] Not only may the witness be cross-examined with respect to such matters, but, if the witness denies the bias or hostility, it may be proven by extrinsic evidence because it is not regarded as collateral. [240]
Thus, in a custody case, it is not error to permit testimony, by a third party, as to an expression of hostility toward the father by one of the mother's witnesses.[243]
Q. How do you feel about the defendant stopping payment on the check she gave you? Q. Are you angry at her? Q. Are you very angry at her? Q. Weren’t you so angry at her that you threatened her, saying that if she didn't pay you, you would report all of this to Mr. _______? Q. Didn’t you follow up on your threat and report all this to Mr. ____? Q. Wouldn’t you would do or say anything to get back at her? Q. Isn’t your testimony here today actuated by feelings of hostility and revenge?[245]
3-56. Trial Testimony - Impeaching own Witness Under common law rules of evidence, a party is not permitted to impeach his or her own witness. CPLR 4514 modifies the common law rule to provide that in civil cases, a party may impeach his or her own witness by means of showing that the witness made a prior inconsistent statement (i.e., a statement that is inconsistent with his earlier statement about the same thing) that was either (1) in a writing subscribed by the witness, or (2) made under oath (for example, in sworn deposition testimony.) [246]
CPLR 4514, which permits the introduction of a prior inconsistent statement sworn or subscribed by the witness for purposes of impeachment, does not limit the trial court's general powers of control. Neither CPLR 3117 nor CPLR 4514 gives a party the absolute right to decide the point in the trial at which he will read an inconsistent statement of his opponent made during a deposition taken under oath.[247]
3-57. Trial Testimony - Testimony of Child The general rule in civil proceedings is that unsworn testimony of a child is inadmissible. However, an exception to that rule allows the court to dispense with the formality of placing a minor under oath before taking testimony after determining the probative value to be accorded to the child's in-court unsworn statements.[248]
• by any party, for the purpose of contradicting or impeaching the testimony of the deponent as a witness;[249]
• the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence;[250]
• the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under the Civil Practice Law and Rules.
However, before permitting a deposition to be used the court must first find:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts; or
(v) upon motion or notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. [251]
If only part of a deposition is read at the trial by a party, the adverse party may read any other part of the deposition which ought in fairness to be considered in connection with the part that was read.[252]
CPLR 3116 (a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath and return it. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. If a party fails to comply with CPLR 3116 (a) and does not send the deposition to the witness that party may not use the transcript of the deposition pursuant to CPLR 3117.[253]
3-59. Trial Testimony - Prior Testimony - Use of Deposition from Prior Action When an action has been brought in any court of any state or of the United States and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions taken in the former action may be used in the latter as if taken in that action.[254]
3-60. Trial Testimony - Prior Testimony - Effect of using deposition. The introduction in evidence of the deposition or any part of a deposition for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition. This rule does not apply to the use of a deposition of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party. At the trial, any party may rebut any relevant evidence contained in a deposition, whether introduced by him or by any other party.[255]
3-61. Trial Testimony - Prior Testimony - Use of Deposition Subject to Rules of Evidence Civil Practice Law and Rules 3117 (a) (2) does not establish an absolute right on the part of the offeror to use a deposition at any time during the presentation of the case, subject only to the exclusion of repetitious matter. A deposition contains no more than testimonial evidence of the party - deponent and is merely the vehicle by which this evidence comes before the trier of fact. CPLR 3117 confers upon the deposition no special qualities rendering its use immune to ordinary rules of trial practice. The discretionary power of the trial court to control the use of live witnesses applies with equal force to control the use of a deposition. In exercising its discretion, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present his case.[256]
If only part of a deposition is read at the trial by a party, the adverse party may read any other part of the deposition which ought in fairness to be considered in connection with the part that was read. [257]
I ask that the court mark this certified transcript of the testimony of the witness taken on __________at __________ be marked for identification.
(By Counsel)
Q. Mr. Witness, did you give testimony in this case at a deposition held on _________20__, at the office of __________? A. Yes [258] Q. I show you the transcript of your deposition held on __________at __________, which is marked as Exhibit __ for identification, and ask you if you recognize it? A. Yes Q. Is that your signature on page___? A. Yes
(By Counsel)
I am handing you a copy of the transcript marked for identification as Exhibit __ and I direct your attention to line__________on page__________ of the transcript and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
(By Counsel)
I direct your attention to line__________on page__________ of the transcript and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
(By Counsel)
I direct your attention to line__________on page__________ of the transcript and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
At the trial or upon a hearing of a motion, part or all of answers to interrogatories, so far as admissible under the rules of evidence, may be used as follows:
(1) by any party, for the purpose of contradicting or impeaching the testimony of the deponent as a witness; [260]
(2) the answers to interrogatories a party, [261] may be used for any purpose by any party who was adversely interested when the answers to interrogatories were given or who is adversely interested when the answers to interrogatories are offered in evidence;[262]
(3) the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition provided the court finds that the witness is unavailable or there are exceptional circumstances.[263]
The general rule under CPLR 3117 (a) (2) subject to the exceptions set forth in subdivision (a) (3) of the statute, is that answers to interrogatories may be introduced only by an adverse party and not by the party responding to the interrogatories. While CPLR 3131 provides that interrogatories may be utilized to the same extent as depositions, a party serving interrogatories is not 'present' or 'represented' at the time the answers are given as required by CPLR 3117 (a) (3) and does not have the opportunity to impeach or inquire into self-serving responses rendered by the party interrogated or its agent. The adversary, therefore, is effectively deprived of the right to cross-examine. [264]
The self-serving answers of a party to written interrogatories which are not subject to the scrutiny of cross-examination may not be introduced by that party under CPLR 3117 (a) (3).[265]
CPLR 3117 (a) articulates the fundamental rule that depositions and interrogatories may be introduced only so far as the rules of evidence permit and the basis for this rule is the fact that matter contained in these discovery devices constitutes hearsay and is admissible as evidence-in-chief only insofar as a hearsay exception is available. Where the party who served the interrogatories is the proponent, the hearsay problem is eliminated because the answers are admissible under the admissions exception to the hearsay rule, but where the party responding is the proponent, the hearsay rule presents a barrier to admission. CPLR 3117 (a) (3), referred to as the 'deposition exception to the hearsay rule', permits any party to introduce answers to interrogatories if certain conditions are met but does not provide an exception to the hearsay barrier where the adversary does not have the opportunity to cross-examine the declarant’s who responded to the interrogatories, an essential requirement for the application of the exception. [266]
3-64. Trial Testimony - Prior Testimony - Use of Answers to Interrogatories from Prior Action When an action has been brought in any court of any state or of the United States and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all answers to interrogatories taken in the former action may be used in the latter as if taken in that action.[267]
3-65. Trial Testimony - Prior Testimony - Effect of using Answers to Interrogatories. The introduction in evidence of the answers to interrogatories or any part of answers to interrogatories for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the answers to interrogatories. This rule does not apply to the use of answers to interrogatories of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party. At the trial, any party may rebut any relevant evidence contained in answers to interrogatories, whether introduced by him or by any other party.[268]
3-66. Trial Testimony - Prior Testimony - Use of Answers to interrogatories Subject to Rules of Evidence Civil Practice Law and Rules 3117 (a) (2) does not establish an absolute right on the part of the offeror to use answers to interrogatories at any time during the presentation of the case, subject only to the exclusion of repetitious matter. Answers to interrogatories are subject to ordinary rules of trial practice. The discretionary power of the trial court controls the use of answers to interrogatories. In exercising its discretion, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present his case.[269]
If only part of the answers to interrogatories is read at the trial by a party, the adverse party may read any other part of the answers to interrogatories which ought in fairness to be considered in connection with the part that was read.
I ask that these answers to interrogatories sworn to on _________20__, by the witness, be marked for identification.
(By Counsel)
Q. Mr. Witness, did you give testimony in this case by answers to interrogatories dated _________20__? A. Yes [270] Q. I show you the answers to interrogatories dated________20__which is marked as Exhibit __ for identification, and ask you if you recognize it? A. Yes Q. Is that your signature on page___? A. Yes
(By Counsel)
I am handing you a copy of the answers to interrogatories marked for identification as Exhibit __ and I direct your attention to line__________on page__________ of the answers and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
(By Counsel)
I direct your attention to line__________on page__________ of the answers and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
(By Counsel)
I direct your attention to line__________on page__________ of the answers and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Were those questions asked and did you give those answers? A. Yes
3-68. Trial Testimony - Prior Testimony - Admission of Prior Testimony CPLR 4517 permits the admission into evidence of testimony of a witness that given at a prior trial in the same action, or at a prior trial involving the same parties or their representatives and arising from the same subject matter. The prior testimony may be admitted, “so far as admissible under the rules of evidence”. [271]
The prior trial testimony of a party [272] may be used for any purpose (evidence in chief or to contradict or impeach) by any party who is adversely interested when the prior testimony is offered in evidence.[273]
In addition, the prior trial testimony of any person may be used by any party for any purpose (evidence in chief or to impeach or contradict) against any other party, provided the court finds: (i) that the witness is dead; or (ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or (v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. [274]
If the witness is available, the prior trial testimony of any person may not be used by any party for any purpose other than to contradict or impeach the testimony of the same witness.[275]
It is not necessary to have a transcript of the stenographer's minutes to give evidence of the testimony of a witness at a former trial. Anyone who was present in the courtroom and heard the witness testify at the former trial may testify as to what he heard the witness testify. The stenographer's minutes are not "best evidence" in the sense that all other evidence is "secondary.”[276]
If the former testimony is offered into evidence, it is subject to any objection other than hearsay.[277] The failure to permit cross-examination is one such objection.[278] There must have been an opportunity to cross-examine that witness at the former trial. [279]
a prior trial in the same action; or a prior trial involving the same parties (or their representatives) and arising from the same subject matter. [280]
CPLR 4517 (a) (iii) allows the prior testimony of any person or party to be admitted into evidence as evidence in chief or for purposes of impeachment where it was given in:
a prior trial in the same action; or
a prior trial involving the same parties (or their representatives) and
arising from the same subject matter, [281] and provided it is demonstrated that the witness is unavailable.[282]
When the former testimony is offered into evidence, it is subject to any objection other than hearsay. [283]
Thus, at the trial of an action or hearing, the prior testimony of a party may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness or for any purpose (evidence in chief) by any party.
(a) questioning the witness as to whether he made a prior statement and then reading portions of the prior testimony into evidence which contradict or impeach his current testimony; or
(b) presenting the testimony of a witness who was at the prior trial when the witness testified and heard the prior testimony.[284]
There is no provision in Civil Practice Law and Rules 4517 for admitting into evidence the entire transcript of the witness prior testimony at a prior trial. The admission of the prior testimony is only permitted “so far as admissible” under the rules of evidence.” The prior testimony is subject to any and all objections under the rules of evidence, such as leading, irrelevant, incompetent, immaterial, failure to lay a proper foundation and hearsay. For that reason, it would appear that the entire transcript of the witness prior testimony at a prior trial may not be admitted into evidence, over objection, unless nothing in the transcript is objectionable.
The admission into evidence of portions of the transcript of a witness's prior testimony, for purposes of impeachment, can only be accomplished during the trial, where the witness is under oath on the witness stand and is questioned on cross-examination where objections may be raised. There is no provision in CPLR 4517 for the admission of prior testimony into evidence after both sides have rested.
I ask that the court mark this certified transcript of the testimony of the witness taken on __________at __________ be marked for identification.
(By Counsel)
Q. Mr. Witness, did you give testimony in this case in (a prior trial or hearing is this action); or (in a prior trial involving the same parties (or their representatives) and arising from the same subject matter) on _________20__, in the __________Court_____before the Hon._________________? A. Yes [285]
(By Counsel)
I am handing you a copy of the transcript that was marked for identification as Exhibit __ and I direct your attention to line__________on page__________ of the transcript and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
(By Counsel)
I direct your attention to line__________on page__________ of the transcript and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
(By Counsel)
I direct your attention to line__________on page__________ of the transcript and ask you to follow along with me as I read from line __________on page__________ to line__________ on page__________.
[Read aloud from transcript and when finished reading ask]
Q. Were those questions asked and did you give those answers? A. Yes
Your Honor, may we have the document marked for identification?
[Wait while the court reporter marks the document.]
Note that the adverse party is not allowed to see the document at this point.
Step 2: Lay a foundation for the introduction of the document into evidence by establishing that the document constitutes an admission by the adverse party or an exception to the rule against hearsay, or is admissible under some other rule of law.
Show the document to the witness. Ask the witness the following questions:
Q. I show you this document which is marked as Exhibit___ for identification and ask you if you can identify it? A. Yes. [286] Q. What is it? A. It is a letter which I sent to the ______.
I offer Exhibit __ for identification into evidence.
Step 3: At this point, the court will ask your adversary if he objects to the offer of the document into evidence, and he/she will be given an opportunity to look at it. If your adversary objects to its introduction into evidence, the court will give him an opportunity to state the basis for his objection and will then usually give the proponent of the document the opportunity to reply. The court will then either sustain or deny the objection.
Step 4: If there was an objection, which was sustained, do not give up. You are not prevented from asking further questions in order to lay a proper foundation for the introduction of the document into evidence.
Step 5: If there was an objection, which was not sustained the document will be marked by the court reported as an exhibit in evidence. Before proceeding wait until the court reporter marks the exhibit in evidence.
The Court of Appeals has observed that the rule that the party having the affirmative of the issue in an action shall have the opportunity to make the opening and closing presentation of his case is deemed founded upon a substantial right, the denial of which is error. In its application to trials by jury it has ordinarily more practical importance than in those before the court without a jury and before referees. If it appears that a party could not have been prejudiced by the failure of the court to observe this rule, the error would not be available, and in trials by the court without jury or before referees that question would be dependent upon the circumstances of each case.[288]
In Matter of Stampfler v Snow, 290 A.D.2d 595, 735 N.Y.S.2d 255, (3d Dept.,2002) the parties were awarded joint custody and petitioner was directed to, inter alia, “follow the recommendations regarding drug and/or alcohol treatment made by the Champlain Valley Family Center” which, in turn, included remaining drug and alcohol free for at least three consecutive months before completing her treatment. In September 1999, Family Court received a letter indicating that petitioner had tested positive for marihuana in four of the six urine screens conducted between June 1999 and August 1999. Family Court, inter alia, issued an order to show cause seeking to have petitioner held in criminal contempt pursuant to Judiciary Law § 750(A)(3). Family Court also applied for two judicial subpoenas duces tecum seeking the records maintained by the Champlain Valley Family Center and the laboratory that conducted petitioner’s urinalysis. After a hearing, Family Court found petitioner guilty of criminal contempt. The Appellate Division reversed. It found that Family Court initiated the underlying contempt proceeding, applied for the subpoenas duces tecum, ruled upon petitioner’s respective motions to quash and dismiss, questioned the only witness to testify at the hearing, ruled upon counsel’s objections thereto, acted as the trier of fact at the contempt hearing and sentenced petitioner to serve 72 hours in the local jail. Family Court’s decision to serve as complainant, prosecutor, trial judge and sentencing court brought about a clear “clash in judicial roles” and, as such, recusal was warranted. At the very least, Family Court’s actions created the appearance of impropriety and, under the circumstances of this case, it deemed it to be an abuse of discretion for Family Court to fail to recuse itself after issuing the order to show cause.
In Matter of Blaize F., 74 A.D.3d 1454, 903 N.Y.S.2d 194 (3d Dept., 2010) petitioner brought a proceeding to extend supervision regarding respondent’s two stepdaughters and, in that petition, it also requested that respondent be granted unsupervised visitation with his son. At the ensuing hearing, both petitioner and the attorney for Blaize advocated for unsupervised visitation. Petitioner’s witnesses unequivocally supported permitting respondent to have unsupervised visitation with Blaize. Family Court nonetheless produced and admitted into evidence its own exhibit, a Canadian study entitled “A Meta–Analysis of the Effectiveness of Treatment of Sexual Offenders: Risk, Need and Responsibility.” Subsequently, in the closing statement, petitioner stated that it had erred in including Blaize in the petition and acknowledged that the petition should be dismissed as to him. However, Family Court rendered a decision (that included a lengthy quote from its exhibit) in which it granted the petition as to Blaize and extended the existing requirement for supervised visitation. The Appellate Division reversed as to Blaize. It pointed out that all the witnesses and all the parties supported unsupervised visitation. Petitioner acknowledged that it should not have even brought the proceeding as to Blaize and agreed with respondent that the petition should be dismissed. Family Court’s production of its own exhibit and then relying thereon in disregard to every witness and all the parties was improper (see generally People v. Arnold, 98 N.Y.2d 63, 67–69, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002]). The court’s determination that the witnesses were unreliable and lacked credibility was unsupported by the record. Since the record did not contain a sound or substantial basis supporting the petition and revealed that Family Court acted arbitrarily, it agreed that the petition as to Blaize must be dismissed.
In Matter of Keaghn Y., 84 A.D.3d 1478, 921 N.Y.S.2d 737 (3d Dept., 2011) a neglect proceeding, respondent argued on appeal, inter alia, that by becoming intimately involved in the examination of witnesses who testified at the hearing and by issuing, on its own accord, a subpoena calling for the production of certain records, Family Court, demonstrated that is was biased against her and did not provide her with a fair hearing. It pointed out that Family Court, on its own motion, issued an order directing that the child’s school records be produced and that an expert who it appointed to review these records advise the court on the child’s educational needs. The Appellate Division noted that While such a practice, coupled with the court’s involvement in the examination of the witnesses who testified at the hearing, may, in some circumstances, present legitimate questions regarding the court’s impartiality neither party opposed the court’s decision to issue the subpoena or objected to its questioning of witnesses and, therefore, such a challenge was not preserved for review. Moreover, the records that were requested were clearly relevant to the issues raised at this hearing and were sought for a benign purpose of determining the legitimate educational needs of the child (seeFamily Ct. Act § 1089[d][2][v]) In a footnote the court indicated that this finding should not be interpreted as an approval by this Court of the practices employed by Family Court in this proceeding (see Matter of Blaize F. [Christopher F.], 74 A.D.3d at 1455, 903 N.Y.S.2d 194; Matter of Stampfler v. Snow, 290 A.D.2d at 596, 735 N.Y.S.2d 255).
A witness’s testimony in a prior proceeding may be incorporated into a later proceeding if it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine.[296]
3-74. Duty of court to determine equitable distribution, maintenance, child support and custody Domestic Relations Law 236[B] and Domestic Relations Law 240 require the Court to determine the ancillary issues of equitable distribution, maintenance, child support and custody before granting a judgment dissolving the marriage, unless there is a waiver of the right to seek such relief in an agreement between the parties in accordance with Domestic Relations Law &s;§236[B] [3].
Domestic Relations Law 236[B] [5] provides, inter alia, that except where the parties have provided in an agreement for the disposition of their property pursuant to Domestic Relations Law &s;§236[B] [3], the court, in an action where all or part of the relief granted is divorce, ““shall”” determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.
In addition, Domestic Relations Law &s;§236[B][6][a] provides, inter alia, in relevant part that [e]xcept where the parties have entered into an agreement pursuant to Domestic Relations Law &s;§236[B][3] providing for maintenance, in any matrimonial action the court may order temporary maintenance or maintenance in such amount as justice requires.
Domestic Relations Law &s;§236 [B][7][a] provides, that in any matrimonial action, the court as provided in Domestic Relations Law &s;§240 ““shall order either or both parents to pay temporary child support or child support without requiring a showing of immediate or emergency need.””
Domestic Relations Law §240 (1) provides that in an action for divorce the court must give such direction between the parties for the custody and support of any child of the parties as in the Court’s discretion justice requires having regard to the circumstances of the case and of the respective parties and to the best interests of the child. Thus, the court is required to enter orders for custody and support as, in the court=s discretion, justice requires. The mandatory aspect denoted by the use of the word “must” requires that the court properly exercise its broad discretion respecting the issues of custody and child support and that it may not refrain from exercising such discretion. A judgment of divorce will be vacated where the court fail to exercise its jurisdiction to determine custody and child support.[297]
The judgment of divorce will also be vacated where it is devoid of any provision addressing the equitable distribution of the parties= marital assets or debts. [298]
A pendente lite order, by its very nature, is temporary and effective only during the pendency of the litigation.[299] Therefore, it is error as a matter of law for Supreme Court to simply continue the order as a permanent provision in a divorce judgment, upon the termination of the divorce action, without conducting a hearing on the issue of the parties' finances.[300]
The trial judge is the “final arbiter of the record” certified to the appellate courts. Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer. Judges confronted with allegations of error in that record, especially allegations of their own error, may hold a reconstruction hearing with the parties, any witnesses or evidence the court deems helpful. Not every dispute about the record mandates a reconstruction hearing. In certain circumstances, Supreme Court can deny a party's request for such a hearing when it concludes the exercise is not necessary to elucidate what originally took place. Even when a judge's recollection of the disputed or missing portion of a transcript is unclear, other information may suffice to allow him or her to resettle the record without a reconstruction hearing. [306]
[1] Civil Practice Law and Rules 4011.
[2] Marshall v. Davies, 78 N. Y. 414; Seguin v. Berg, 260 App.Div. 284, 21 N.Y.S.2d 291.
[3] Yeomans v. Warren, 87 A.D.2d 713, 448 N.Y.S.2d 889. (A party holding the affirmative of an issue is bound to present all of his evidence before he closes his proof.)
[4] Sequin v Berg, 260 AD 284, 21 NYS2d 291 (1940).
[5] In Roberts v. St. Francis Hosp., 96 A.D.2d 272, 275, 470 N.Y.S.2d 716, 719 (3d Dept., 1983) the Appellate Division held that the trial court committed reversible error in striking defendant's answer after she refused to proceed with her case pending the appearance of the plaintiff’s final witness. It observed that the speedy disposition of cases should not take precedence over the substantial rights of the litigants. Here, the trial court was so concerned by the loss of half a trial day that it imposed the drastic penalty of precluding a defense on the merits, despite the valid basis for defendant's refusal to proceed before all of plaintiff's evidence was in. Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof. The saving of a half day's trial time was not a sufficient justification for a departure from the general rule. Had defendant been permitted to hear all of plaintiff's case against her, she might have moved upon the close thereof for a nonsuit on the ground that plaintiff had not proven a prima facie case (CPLR 3212). She might also have been so confident of the weakness of plaintiff's case that she would have chosen to proceed to the jury without presenting any proof on her behalf. The Appellate Division held that defendant should have had the opportunity to exercise these options after hearing all of plaintiff's case.
[6] Civil Practice Law and Rules 4016.
[7] Civil Practice Law and Rules 4016. In Matter of Bond v Bond, 93 A.D.3d 1100, 940 N.Y.S.2d 705 (3d Dept.) a custody modification proceeding, the Appellate Division rejected that the father's contention that Family Court's error in failing to afford him the opportunity to make a closing statement required reversal. At the conclusion of the fact-finding hearing, the father's counsel stated that he wished to make a short closing statement only if the mother did so, and the court indicated that arrangements would be made following the Lincoln hearing. The mother subsequently submitted a written closing statement; the father neither responded to this submission nor requested a further appearance, and more than four weeks passed before the decision was rendered. Considering these circumstances, and that the court was fully familiar with the facts of the case as well as the parties' arguments, no reversible error occurred.
[8] Heilbron v Herzog, 165 NY 98 (1900)
[9] Lake Ontario Nat. Bank v Judson, 122 NY 278 (1890) (citing Conselyea v. Swift, 103 N. Y. 604.)
[10] Lake Ontario Nat. Bank v Judson, 122 NY 278, 25 NE 367 (1890).
[11] Sequin v Berg, 260 AD 284, 21 NYS2d 291 (1940)
[12] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-202. In Lohmiller v Lohmiller (1988, 2d Dept) 140 App Div 2d 497, 528 NYS2d 586, although the trial court erred in refusing to permit the husband's attorney to make an opening statement, reversal was not warranted because the court was familiar with the contentions of the parties. In Matter of Sagese v Steinmetz, 83 A.D.3d 1144, 921 N.Y.S.2d 360 (3d Dept., 2011), a custody proceeding, the Appellate Divison rejected the father’ argument that Family Court committed reversible error by denying the father the right to present an opening statement. While a party to a civil proceeding has the right to make an opening statement, it found that Family Court's error did not require reversal since the court was fully familiar with the facts of the case, the parties and their respective arguments through the numerous court appearances during the year prior to trial.
[13] See Kosterek v Kosterek, 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept., 2013)
[14] Henderson v Henderson, 172 AD2d 956, 568 NYS2d 664 (3d Dept 1991); McLoughlin v Holy Cross High School, 135 AD2d 513, 521 NYS2d 744 (2d Dept 1987).
[15] See Prince, Richardson on Evidence § 8-215 [Farrell 11th Ed].
[16] See Prince, Richardson on Evidence § 8-219 [Farrell 11th Ed]; Wheeler v Citizens Telecom. Co. of New York, Inc., 18 AD3d 1002, 1005 [3d Dept 2005]
[17] Prince, Richardson on Evidence § 8-215; cf. Rahman v. Smith, 40 AD3d 613, 614-615; Diaz v. Bryant, 29 AD3d 854; Wheeler v. Citizens Telecom. Co. of N.Y., Inc., 18 AD3d 1002; De Vito v. Katsch, 157 A.D.2d 413). In Kosterek v Kosterek, 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept., 2013) the Appellate Division found that plaintiff established, prima facie, her entitlement to equitable distribution of a certain parcel of real property where defendant admitted in his Statement of Proposed Disposition that he acquired some ownership interest in the property during the marriage and confirmed the timing of his acquisition in opening statements, during which defense counsel asserted that, during the marriage, the defendant purchased the property, though partially with money received from another source. This unequivocal, factual assertion made during opening statements constituted a judicial admission. It was thereby established that at least a portion of the defendant's interest in the property was presumptively marital property and, thus, the burden shifted to the defendant to rebut that presumption.
[18] See 5 Bender's NY Evidence § 16.06 [1]; Prince, Richardson on Evidence §§ 8-215, 8-219 [Farrell 11th ed])
[19] See Wheeler v Citizens Telecom. Co. of N.Y., Inc., 18 AD3d 1002, 1005 [2005]
[20] See State of New York ex rel. H. v P., 90 AD2d 434, 438 n 4 [1982]; see also Matter of Corland Corp., 967 F2d 1069, 1074 [1992]; 29A Am Jur 2d, Evidence § 770).
[22] Hoffman House v Foote, 172 NY 348; Siegel, NY Prac § 402.
[23] De Vito v Katsch, 157 AD2d 413, 415-19 [2d Dept 1990]
[24] People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of Hopkins, J.
[25] Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, 1853, 23 L.Ed.2d 404. In Beverly B v Rossannh B, 34 A.D.3d 314, 824 N.Y.S.2d 633 (1st Dept., 2006) petitioner was not allowed to testify or offer any other evidence to rebut, or even the opportunity to confront and cross-examine any adverse witnesses. The record was replete with instances in which the Referee refused to let petitioner speak, talked over her, and reprimanded her for trying to present her position. The court held that every party to a proceeding has a fundamental right to be heard. Since the fundamental right to be heard was not afforded petitioner, the order was vacated. In Shagoury v Shagoury, 39 A.D.3d 527, 835 N.Y.S.2d 215 (2d Dept., 2007) the Appellate Division reversed a judgment which, after a nonjury trial, inter alia, granted the plaintiff wife a divorce on the ground of cruel and inhuman treatment. A new trial was required because the trial court impermissibly and repeatedly precluded the husband from eliciting relevant testimony in his defense, as well as in support of the factual allegations contained in his counterclaim, and thereby deprived him of a fair trial. In Matter of Thomson v Battle, 99 A.D.3d 804, 952 N.Y.S.2d 251 (2d Dept., 2012) the Appellate Division held that Family Court erred in concluding the custody hearing without allowing respondent an opportunity call any witnesses or introduce any evidence. In a proceeding seeking modification of a prior custody order, a full and comprehensive hearing is required. Due process requires that a parent be afforded a full and fair opportunity to be heard. The mother's due process rights were violated when the hearing was concluded without her being permitted to present any evidence, call the father or any other witnesses, or properly answer the allegations asserted against her. The record revealed that the father sought, through his attorney, to prolong the hearing and interfere with the mother's right to be heard by engaging in an extended direct examination filled with irrelevant details and unsubstantiated accusations. The Court Attorney Referee, by repeatedly refusing to appropriately limit the father's inquiry and by abruptly concluding the hearing without allowing the mother to present her case, failed to ensure that the mother was afforded a full and fair opportunity to be heard. In Matter of Gerhardt v Baker, 140 A.D.3d 1635, 34 N.Y.S.3d 277 (4th Dept.,2016) the Appellate Division reversed an order of the Family Court on the ground that the father was not properly advised of his right to counsel and the Support Magistrate erred in failing to conduct a proper hearing on the father’s modification petition. It held that while a hearing on a petition for modification of a support obligation need not follow any particular format the hearing in this matter was “‘inherently flawed’ “. The father was not offered an opportunity to testify, nor was he permitted to present the sworn testimony of any other witnesses, and the cursory handling of this matter by the Support Magistrate did not provide a substitute for the meaningful hearing to which the father was entitled.
[26] People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of Hopkins, J.; People v. McClinton, 75 A.D.2d 900, 428 N.Y.S.2d 61; People v. Forbes, 87 A.D.2d 829, 449 N.Y.S.2d 9). See also People v. Daly, 98 A.D.2d 803, 470 N.Y.S.2d 165.
[27] In Bennett v McGorry, 34 A.D.3d 1290, 827 N.Y.S.2d 381 (4th Dept., 2006) plaintiff sought, inter alia, an order directing defendant to contribute to the college expenses of the parties' eldest daughter pursuant to the terms of the agreement. The Appellate Division held that the court properly exercised its discretion in refusing to permit the parties to call their eldest daughter as a witness, inasmuch as the daughter had no relevant testimony to offer on the matters at issue. (Citing, alia, Prince, Richardson on Evidence § 4-102 [Farrell 11th Ed]).
[29] See Richardson, Evidence (11th Ed. Farrell), § 6-201, pp. 349-351.
[30] Feldsberg v Nitschke, 49 NY2d 636, 427 NYS2d 751, 404 NE2d 1293 (1980); Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. (39 U.S.) 448, 463, 10 L.Ed. 535; 6 Wigmore, Evidence (3d Ed.), § 1867, p. 498.
[31] 6 Wigmore, 1867, p. 498.
[32] People v. Koerner, 154 N.Y. 355, 48 N.E. 730; Wright v. Reusens, 133 N.Y. 298, 307, 31 N.E. 215.
[33] Agate v. Morrison, 84 N.Y. 672.
[34] See Langley v. Wadsworth, 99 N.Y. 61, 63, 1 N.E. 106. In re Kasprowicz, 101 A.D.3d 1760, 956 N.Y.S.2d 786 ( 4 Dept., 2012) the Appellate Division held that any alleged error by the Support Magistrate in relying on documents not in evidence in making its determination as to the father's credibility was harmless because that credibility determination was supported by admissible evidence.
[35] People v. Ramistella, 306 N.Y. 379, 384, 118 N.E.2d 566.
[36] See People v. Braun, 158 N.Y. 558, 567-569, 53 N.E. 529; Matter of Friedel v. Board of Regents, 296 N.Y. 347, 351, 73 N.E.2d 545.
[37] Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892 (1st Dept., 1996). In Waldman v. Waldman, 95 AD2d 827, 463 N.Y.S.2d 868 (2d Dept.,1983) the Appellate Division held that the parties to the divorce action could not be forced to consent to the loss of their right to confrontation and cross-examination on issues involving custody or visitation. In re Dominic B., 138 A.D.3d 1395, 30 N.Y.S.3d 769 (4th Dept, 2016) the Appellate Division reversed an order which, inter alia, adjudged that respondent had neglected the child. It held that Family Court, in granting the petition, erred in relying on a psychological evaluation of the mother that was not received in evidence. “[I]t is a fundamental requirement of due process that the decision maker's conclusions must rest solely on legal rules and the evidence adduced at the hearing. Although the parties had expressly stipulated that the evaluation would not be used as evidence in any fact-finding hearing in this matter, or as a basis for seeking to amend the neglect petition, the court relied heavily upon the evaluation in reaching its determination. Under the circumstances of this case that a new fact-finding hearing was required based on the court's violation of the mother's right to due process. It also concluded that the court's failure to afford the mother the opportunity to cross-examine a key witness, i.e., a caseworker for petitioner, constituted a denial of her right to due process, which also required reversal. In Middlemiss v. Pratt, 86 A.D.3d 658, 926 N.Y.S.2d 720 (3d Dept., 2011), a custody proceeding, Family Court denied the father due process by refusing him any opportunity to cross-examine a key witness, the mother, present any witnesses or even testify on his own behalf.
[38] Livingston v. Keech, 34 N.Y.Super.Ct. 547, 2 Jones & S. 547 (N.Y.Super.,1872)
[39] La Beau v. People, 34 N.Y. 223 (1866)
[40] Diocese of Buffalo v McCarthy, 91 AD2d 213, 458 NYS2d 764 (4th Dept 1983); Bartkowiak v St. Adalbert’s Roman Catholic Church Soc., 40 AD2d 306, 340 NYS2d 137 (4th Dept 1973). In Superior Sales & Salvage, Inc. v. Time Release Sciences, Inc., 643 N.Y.S.2d 291 (4th Dept.,1996) the Appellate Division held that the trial court did not err in permitting defendant's witness to go on vacation and to conclude his cross-examination testimony by speaker phone, where the witness' testimony had been delayed by the actions of plaintiff's attorney, and the jury had ample opportunity to observe the demeanor of the witness during that portion of cross-examination conducted in the courtroom.
[41] Sturm v Atlantic Mut. Ins. Co., 63 NY 77 (1875); Gallagher v Gallagher, 92 AD 138, 87 NYS 343 (1904); Helmken v New York, 90 AD 135, 85 NYS 1048 (1904); Morley v Castor, 63 AD 38, 71 NYS 363 (1901); Goldmark v Metropolitan Opera-House Co., 22 NYS 136 (Sup 1893). In Matter of Middlemiss v Pratt, 86 A.D.3d 658, 926 N.Y.S.2d 720 (3d Dept., 2016), during the fact-finding hearing, the mother completed her direct testimony but, due to witness availability and upon the consent of the parties, witnesses were then taken out of order, and the father was not afforded an opportunity to cross-examine the mother. The mother called several more witnesses, including the child, who testified in open court under oath. After the child testified, Family Court, sua sponte, concluded that it did not need to permit any cross-examination of the mother or any testimony from the father, or to allow the presentation of any further evidence in order to reach a decision. The court then concluded the proceeding and issued an order embodying its decision. The Appellate Division reversed on the law. It held that Family Court deprived him of his right to procedural due process. Although the father did not preserve this argument through objection, it was held to be properly before the Appellate Division, as Family Court's abrupt termination of the proceedings afforded him no opportunity to enter any objection. In a proceeding seeking modification of a prior custody order, a “‘full and comprehensive hearing' " is required. At such a hearing, due process requires that a parent be afforded a full and fair opportunity to be heard. Family Court abjectly denied the father due process by refusing him any opportunity to cross-examine a key witness, the mother, present any witnesses or even testify on his own behalf. It revered and remitted for a full hearing on the merits.
[42] In Gallagher v. Gallagher, 92 A.D. 138, 139-40, 87 N.Y.S. 343 (3d Dept 1904) at trial the defendant called the co-respondent as a witness, and his testimony proved facts from which the only legitimate inference was that the plaintiff had committed adultery with him. On cross-examination the plaintiff asked the witness whether he had intercourse with the plaintiff at the time testified to by him. The witness declined to answer. The plaintiff pressed the question and requested the court to direct the witness to answer, which the court did, and the witness still refused. The plaintiff moved to strike his direct testimony upon that point and the motion was denied. The Appellate Divison held that this was reversible error. The court should either have compelled the witness to answer, or should have stricken his testimony from the record. A party has the right to cross-examine a witness produced against him by his adversary, and to have an answer to pertinent questions relating to testimony given on direct examination. The penalty for a denial of this right is the rejection of the testimony given in chief. In Neita W v. Canute W, 453 N.Y.S.2d 278 (Fam. Ct.,1981) the court held that where a witness, following his direct examination, unjustifiably refuses to answer material questions on cross-examination, the direct testimony of the witness should be stricken. In Kissam v. Forrest, 25 Wend. 651, at the close of the direct examination of a witness and before the party had an opportunity to cross-examine, the court adjourned the matter. Pending the adjournment the witness died. The direct testimony was rejected, and a new trial granted. In People v. Cole, 43 N. Y. 508, a witness fainted at the close of her direct examination and became so ill that a cross-examination was impossible. The court refused to strike out the evidence given in chief or adjourn the trial until the witness was able to be cross-examined. This was held error and the conviction was reversed.
[43] Cohen v Cohen, 120 A.D.3d 1060, 993 N.Y.S.2d 4(1st Dept., 2014) (Citing Gallagher v. Gallagher, 92 App.Div. 138, 140 [1904]; Diocese of Buffalo v. McCarthy, 91 A.D.2d 213, 220 [4th Dept 1983])
[44] Smith v. Crocker, 3 A.D. 471 38 N.Y.S. 268 (1st Dept., 1896).
[46] Shuttleworth v. Shuttleworth, 255 A.D. 440, 7 N.Y.S.2d 828 (1st Dept., 1938).
[47] Feblot v. New York Times Co., 39 A.D.2d 227, 333 N.Y.S.2d 525 (1st Dept., 1972).
[48] Feblot v. New York Times Co., 39 A.D.2d 227, 333 N.Y.S.2d 525 (1st Dept., 1972).
[49] People v. Abbott, 275 A.D.2d 481, 711 N.Y.S.2d 611 ( 3d Dept.,2000)
[50] Feldsberg v. Nitschke, 49 N.Y.2d 636, 404 N.E.2d 1293, 427 N.Y.S.2d 751(1980); see 6 Wigmore, Evidence (3d Ed.), 1898, pp. 570-572.
[51] In re Finocchio, 270 A.D.2d 418, 704 N.Y.S.2d 634 (2d Dept., 2000).
[52] Gleason v. Metropolitan St. Ry. Co., 99 AD2d 209, 90 N.Y.S. 1025 (1st Dept.,1904)
[53] People v Torre, 42 N.Y.2d 1036, 369 N.E.2d 759, 399 N.Y.S.2d 203, (citing People v Regina, 19 NY2d 65, 70; People v Buchanan, 145 NY 1, 24; see Feblot v New York Times Co., 32 NY2d 486, 498; Richardson, Evidence [10th Ed], § 523).
[54] Grattan v. Metropolitan Life Ins. Co., 92 N.Y. 274 (1883).
[55] See People v. Dlugash, 41 N.Y.2d 725, 736, 395 N.Y.S.2d 419, 427, 363 N.E.2d 1155, 1162 (1977); People v. La Belle, 18 N.Y.2d 405, 410, 276 N.Y.S.2d 105, 109, 222 N.E.2d 727, 729 (1966); People v. Gallo, 12 N.Y.2d 12, 15–16, 234 N.Y.S.2d 193, 195, 186 N.E.2d 399, 400 (1962); Grattan v. Metropolitan Life Ins. Co., 92 N.Y. 274, 1883 WL 12592 (1883).
[56] People v. Ochoa, 14 N.Y.3d 180, 187, 899 N.Y.S.2d 66, 69–70, 925 N.E.2d 868, 871–72 (2010); People v. Torre, 42 N.Y.2d 1036, 1037, 399 N.Y.S.2d 203, 204, 369 N.E.2d 759, 760–61 (1977); Feblot v. New York Times Co., 32 N.Y.2d 486, 496–98, 346 N.Y.S.2d 256, 265–66, 299 N.E.2d 672, 678–79 (1973); People v. Regina, 19 N.Y.2d 65, 78, 277 N.Y.S.2d 683, 693, 224 N.E.2d 108, 115 (1966).
[57] 196 N.Y. 476, 481, 90 N.E. 44, 45–46 (1909).
[58] Platner v. Platner, 78 N.Y. 90, 103, 1879 WL 10769 (1879) (portions which fail to explain, modify or qualify what was introduced by the adversary are not admissible.) Rouse v. Whited, 25 N.Y. 170, 177 (1862) (portions that relate to some other subject matter are not admissible).
[60] CPLR 4401 provides that any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. The grounds for the motion must be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties.
[61] Wai Foon Chan v Yuk Sim Chan, 193 A.D.2d 575, 576 (2d Dept., 1993)
[62] Janice M. v Terrance J., 96 AD3d 482 [1st Dept 2012]
[63] Wai Foon Chan v Yuk Sim Chan, 193 A.D.2d 575, 576 (2d Dept., 1993); Gonzalez v Gonzalez, 262 A.D.2d 281, 282–83 (2d Dept., 1999); E.S. v. P.D., 6 Misc. 3d 1030(A), 800 N.Y.S.2d 345 (Sup. Ct. 2004) aff'd as modified, 27 A.D.3d 757, 815 N.Y.S.2d 607 (2006) aff'd, 8 N.Y.3d 150, 863 N.E.2d 100 (2007); Matter of Christy v Christy, 113 A.D.3d 848, 979 N.Y.S.2d 623 (2d Dept., 2014); Stephens v. Stephens, 106 A.D.3d 748, 964 N.Y.S.2d 912 (2013); Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2d Dept 2010]; Janice M. v Terrance J., 96 AD3d 482 [1st Dept 2012]
[64] Id.
[65] CPLR 4401
[66] Hoffman House v. Foote, 172 N.Y. 348, 351, 65 N.E. 169 (1902).
[75] 22 NYCCR 100.6 (A). To the extent that any provision of the Code of Judicial Conduct as adopted by the New York State Bar Association is inconsistent with any of these rules, these rules prevail. 22 NYCCR 100.6 (E).
[76] 22 NYCCR 100.3 (B)(2)
[77] 22 NYCRR 100.3 (B)(3)
[78] 22 NYCRR 100.3 (b) (4). New York State Bar Association, Code of Judicial Conduct, Comment [3.13] [3B (7)] states, in part: A judge should encourage and seek to facilitate settlement, but the judge should not take any action or make any comment that might reasonably be interpreted by any party or its counsel as (a) coercion to settle, or (b) impairing the party’s right to have the controversy resolved by the court in a fair and impartial manner in the event settlement negotiations are unsuccessful. In matters that will be tried without a jury, a judge who seeks to facilitate settlement should exercise extreme care to avoid prejudging or giving the appearance of prejudging the case.
[79] New York State Bar Association, Code of Judicial Conduct is authoritative and parallels the provisions contained in the Rules of the Chief Administrator of the Courts, 22 NYCRR part 100. References to Part 100 are included. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules and has not been adopted by the Chief Administrator of the Courts.
[80] Code of Judicial Conduct as adopted by the New York State Bar Association Rule 3.2, Comment 3B (4).
[81] Brown v. Ristich, 36 N.Y.2d 183, 366 N.Y.S.2d 116, 325 N.E.2d 533 (1975)
[82] 1 McCormick on Evidence (5th Ed.) § 10. See, e.g., People v. Di Loretto, 150 A.D.2d 920, 922, 541 N.Y.S.2d 260, 261 (3d Dep't).
[83] 2 Wigmore § 657, at 889. See Hallenbeck v. Vogt, 9 A.D.2d 836, 192 N.Y.S.2d 945 (3d Dep't 1959). See also Overseas Trust Bank v. Poon, 181 A.D.2d 762, 763, 581 N.Y.S.2d 92, 93 (2d Dep't 1992) (trial court properly excluded testimony of defendant's husband concerning wife's overseas travels during certain time period where it was "clear" that husband lacked personal knowledge).
[84] 1 McCormick On Evidence, 5th Ed. $ 10; See e.g. People v Di Loretto, 150 AD2d 920, 541 NYS2d 260 (3 Dept ); Hallenback v Vogt, 9 AD2d 836, 192 NYS2d 945 (3 Dept 1959); Overseas Trust Bank v Poon, 181 AD2d 762, 581 NYS2d 92 (2 Dept 1992)
[85] See 2 Wigmore on Evidence 657.
[86] See People v Keough, 276 NY 141 (1937).
[87] People v Sugden, 35 NY2d 453 (1974).
[88] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-210.
[89] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-223
[90] See Watson v. State, 53 A.D.2d 798, 799, 385 N.Y.S.2d 170, 172 (3d Dep't 1976).
[92] People v. Wright, 159 A.D.2d 282, 282-83, 552 N.Y.S.2d 285, 285-86 (1st Dep't).
[93] People v. Mackell, 47 A.D.2d 209, 220, 366 N.Y.S.2d 173, 184 (2d Dep't 1975), aff'd, 40 N.Y.2d 59, 386 N.Y.S.2d 37, 351 N.E.2d 684 (1976) but see People v. Overlee, 236 A.D.2d 133, 140, 666 N.Y.S.2d 572, 577 (1st Dep't 1997) (when defendant's testimony is in direct conflict with that of a prosecution witness, prosecutor may properly ask defendant if the other witness is a "liar").
[94] Zeleznik v. Jewish Chronic Disease Hospital, 47 A.D.2d 199, 204, 366 N.Y.S.2d 163, 169 (2d Dep't 1975); Gray v. Brooklyn Heights R. Co., 175 N.Y. 448, 451-52, 67 N.E. 899, 900 (1903) (improper to ask plaintiff “How long did you continue to bleed after the miscarriage?" where the issue before the court was whether plaintiff suffered a miscarriage as result of an accident.). This rule applies on both direct and cross examination. People v. Mather, 4 Wend. (N.Y.) 229, 249 (1830).
[95] Helmken v. City of New York, 90 App.Div. 135, 136, 85 N.Y.S. 1048, 1049 (1st Dep't 1904) (court should have stricken response to question calling for "yes" or "no" answer, where witness responded with speculative answer containing inadmissible evidence).
[96] People v. Russell, 71 N.Y.2d 1016, 530 N.Y.S.2d 101, 525 N.E.2d 747 (1988); Horton v. Smith, 51 N.Y.2d 798, 799, 433 N.Y.S.2d 92, 93, 412 N.E.2d 1318, 1319 (1980);
[97] Mandia v Wilson & Co. (1941) 262 AD 1038, 30 NYS2d 404.
[98] Wallis v Randall (1880) 81 NY 164; McCormack v Mandelbaum (1905) 102 AD 302, 92 NYS 425.
[99] CPLR 5501(a) (3). It also brings up for review any remark made by the trial judge to which the appellant objected. See CPLR 5501(a) (4).
[100] Short v Short (1988, 4th Dept) 142 AD2d 947, 531 NYS2d 155, later proceeding (4th Dept) 142 AD2d 948, 531 NYS2d 219.
[101] Re Estate of Gruder (1977) 89 Misc 2d 477, 392 NYS2d 203, 21 UCCRS 287; Re D (1970) 63 Misc 2d 1012, 314 NYS2d 230.
[102] Quin v. Lloyd, 41 N.Y. 349, 355 (1869)
[103] Link v Sheldon, 136 NY 1, 32 NE 696 (1892); Le Coulteux De Caumont v Morgan, 104 NY 74, 9 NE 861 (1887); Kennedy v John N. Robins Co., 154 AD 819, 139 NYS 745 (1913); Miano v Westchester Gulf Service Station, 90 AD2d 477, 455 NYS2d 269 (1 Dept 1982); Liddy v Frome, 85 AD2d 716, 445 NYS2d 841 (2d Dept 1981). Pratt v New York C. & H. R. R. Co., 77 Hun 139, 28 NYS 463 (1894).
[132] Remsen v. Metropolitan El. Ry. Co., 9 A.D. 533, 41 N.Y.S. 593 (1st Dept., 1896).
[133] Answers to questions are for purposes of example.
[134] People v. Raja, 77 A.D.2d 322, 433 N.Y.S.2d 200 (2d Dep't 1980). In Saperston v. Holdaway, 93 A.D.3d 1271, 940 N.Y.S.2d 728 (4th Dep't 2012), the Appellate Division held that the court erred in admitting the father's journal in evidence. The journal constituted hearsay, i.e., “out-of-court statements offered for the truth of the matter asserted”, and the father failed to establish that the journal fell within any recognized exception to the hearsay rule. In order to admit a document as a past recollection recorded the proponent must establish “that the document relates to matters the witness observed, the matters were fairly fresh when recorded or adopted, the witness testifies that the document accurately represented his or her recollection and knowledge when it was made and the witness is presently unable to recall the facts of the matter.” The father did not testify that he could not recall the events that he recorded in the journal. Although the father testified that he made the entries contemporaneously with the events contained therein, a review of the journal reflected that the father later added commentary and/or observations on the events discussed. In addition, the journal contained alleged re-creations of texts and e-mails between the parties, which were not produced. Those portions of the journal violated the best evidence rule, which “requires the production of an original writing where its contents are in dispute and sought to be proven” (Kliamovich v. Kliamovich, 85 A.D.3d 867, 869, 925 N.Y.S.2d 591 (2d Dep't 2011)). While counsel for the father could have utilized the journal to refresh the father's recollection as to specific dates or events, the court erred in allowing the admission of the entire document in evidence.
[135] Yeomans v. Warren, 87 A.D.2d 713, 448 N.Y.S.2d 889; Seguin v. Berg, 260 App.Div. 284, 21 N.Y.S.2d 291.
[136] In Roberts v St. Francis Hospital, 96 A.D.2d 272, 470 N.Y.S.2d 716 (3d Dept, 1983) the trial court committed reversible error in striking defendant's answer after she refused to proceed until after the appearance of plaintiff's final witness. Speedy disposition of cases should not take precedence over the substantial rights of the litigants. The trial court was so concerned by the loss of half a trial day that it imposed the drastic penalty of precluding a defense on the merits, despite the valid basis for defendant's refusal to proceed before all of plaintiff’s evidence was in. Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof. The saving of a half day's trial time was not a sufficient justification for a departure from the general rule. Without the testimony of that witness plaintiff had quite arguably failed to present a prima facie case of malpractice. Had defendant been permitted to hear all of plaintiff's case against her, she might have moved upon the close thereof for a nonsuit on the ground that plaintiff had not proven a prima facie case. She might also have been so confident of the weakness of plaintiff's case that she would have chosen to proceed to the jury without presenting any proof on her behalf. Defendant should have had the opportunity to exercise these options after hearing all of plaintiff's case.
[137] See Roberts v St. Francis Hospital, 96 A.D.2d 272, 470 N.Y.S.2d 716 (3d Dept, 1983).
[139] Chainless Cycle Mfg. Co. v Security Ins. Co. (1901) 169 NY 304, 62 NE 392
[140] Link v Sheldon, 136 NY 1, 32 NE 696; Gall v Gall, 114 NY 109, 21 NE 106 (1889) ; Rosner v United States Waterways Corp., 278 AD 168, 104 NYS2d 217 (1951), affd 304 NY 580, 107 NE2d 77; Buckley v Westchester Lighting Co., 93 AD 436, 87 NYS 763, affd 183 NY 506, 76 NE 1090 (1904); Petrozak v State, 189 Misc 809, 69 NYS2d 809 (1947); Nathan Straus-Duparquet, Inc. v Moglen, 185 Misc 657, 57 NYS2d 395 (1945), affd 185 Misc 831, 58 NYS2d 714.
[141] Helmken v. City of New York, 90 App.Div. 135, 136, 85 N.Y.S. 1048, 1049 (1st Dep't 1904) (answer should have been stricken where in response to question calling for "yes" or "no" answer, witness responded with speculative answer containing inadmissible evidence)
[142] Knoll v. Third Ave. R. Co., 46 A.D. 527, 62 N.Y.S. 16 ( 1st Dept.,1900)
[143] Ventimiglia v Brockway Motor Truck Corp., 143 Misc 681, 257 NYS 27 (1932).
[144] Platner v Platner, 78 NY 90 (1879); Croton-On-Hudson v State, 48 Misc 2d 1092, 266 NYS2d 567 (1966). Marks v King, 64 NY 628 (1876); Jarvis v Metropolitan S. R. Co. 65 AD 490, 72 NYS 829 (1901); United States Vinegar Co. v Schlegel, 143 NY 537, 38 NE 729 (1894); Hamel v Brooklyn H. R. Co., 59 AD 135, 69 NYS 166 (1901). In Croton-On-Hudson v State, 48 Misc 2d 1092, 266 NYS2d 567 (1966), exhibits which were received in evidence subject to connection were stricken from the evidence, where no connection was shown.
[145] Black's Law Dictionary (8th Ed. 2004).
[146] Prince-Richardson on Evidence, Eleventh Ed [Farell] §1-204.
[147] Black's Law Dictionary (8th Ed. 2004).
[148] People v Billups, 132 AD2d 612, 518 NYS2d 9 (2d Dept 1987).
[149] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-204.
[150] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-203.
[151] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002); Jordan v Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept., 1988).
[152] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-231.
[153] In Habenicht v. R.K.O. Theatres, Inc. (1st Dept., 1965) the First Department held that a deprivation of a fair trial calls for a reversal. It noted that from the very inception of the trial the court indicated its lack of confidence in the merits of the plaintiff's case, and that indication was made in such fashion that it could not escape the notice of the jury. Not only did the Court, in its remarks, convey to the jury its feeling that the plaintiff's case had no merit, but it also prevented the plaintiff from presenting whatever case he did have. There was constant interference by the Court with the orderly presentation of plaintiff's case by his counsel. In addition, the trial court repeatedly sustained objections that were never made to testimony offered on behalf of the plaintiff and it overruled objections of plaintiff's counsel while being made, without affording counsel an opportunity to explain the basis for the objections. In Matter of Washington v Edwards, 137 A.D.3d 1378, 26 N.Y.S.3d 804 (3d Dept., 2016) the Appellate Division reversed an order which held respondent in violation of a support order. After the mother testified that the father had only paid approximately $100 a year in support since the order, she said she did not have any documentary evidence to support her allegation. At the conclusion of her testimony, when the Support Magistrate questioned the mother as to whether she had any further evidence in regard to her petition, she answered in the negative. The Support Magistrate then provided her with a copy of the County Office of Child Support Enforcement Support Obligation Summary, which summarized the amounts owed and the payment history regarding the order and indicated that the father was in arrears. The Support Magistrate then questioned the mother regarding the contents of the summary, over objection, and repeated his question to the mother as to whether she had any documents that she would like to enter into evidence. After she again answered in the negative, the Support Magistrate inquired whether the mother was requesting that the summary report be admitted into evidence, at which point she answered affirmatively and, over the father’s continued objections, the document was admitted into evidence. The Support Magistrate thereafter used the summary report as the basis for his calculation of the amount that the father was in arrears. The Appellate Division held that while a Support Magistrate “may properly question witnesses to insure that a proper foundation is made for the admission of evidence and question a witness in an effort to clarify confusing testimony as well as to facilitate the orderly and expeditious progress of the hearing” the Support Magistrate exceeded his authority here. By actually providing the evidence to the mother during the hearing and using his questions to ensure that she introduced that evidence, it could not say that the Support Magistrate was merely ensuring that a proper foundation was set for the admission of the evidence or facilitating the expeditious progress of the hearing.
[154] People v Yut Wai Tom, 53 NY2d 44, 58 [1981); In Matter of Yadiel Roque C, 793 N.Y.S.2d 857(4th Dept, 2005), Respondent appealed from an order adjudicating him to be a juvenile delinquent, contending that he was denied a fair trial by the court's intrusive conduct during the fact-finding hearing. Although respondent's contention was not preserved for review, the Appellate Division reviewed it in the interest of justice, and reversed the order. It held that although a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on 'the function or appearance of an advocate. In last analysis ... [the trial judge] should be guided by the principle that his [or her] function is to protect the record, not to make it”, including juvenile delinquency proceedings. Here, "[t]he course of conduct of the trial judge was such that he assumed the appearance of an advocate at the trial by his extensive examination of certain witnesses".
[155] People v Yut Wai Tom, 53 NY2d 44, 58 (1981); People v Arnold, 98 NY 2d 63, 745 NYS2d 782 (2002); Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011); Matter of Kyle FF, 85 A.D.3d 1463, 926 N.Y.S.2d 196 (3 Dept, 2011).
[156] People v Yut Wai Tom, 53 NY2d 44; People v Mees, 47 NY2d 997 (1979).
[157] Thom v Jaymee Fashions, 35 AD2d 946 (1970), affd 29 NY2d 534 (19710; see also People v Kovzelove, 242 AD2d 477.
[158] People v Whipple, 97 NY2d 1 (2001)
[159] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002)
[160] In Carroll v Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 84 (1st Dept., 1993)) the Appellate Division noted that a court may conduct limited examination of a witness "to elicit significant facts, clarify an issue or facilitate the orderly and expeditious progress of the trial”.
[161] People v Jamison, 47 NY2d at 883.
[162] McCormick v. Mulvihill, 1 Hilt. 131 (N.Y.Com.Pl., 1856).
[163] People v Moulton, 43 NY2d 944, 945 [1978]; People v Jamison, 47 NY2d 882, 883 (1979). In Kennedy v. Kennedy, 256 A.D.2d 1048, 683 N.Y.S.2d 608 (3d Dept.,1998) the Appellate Division held that questions posed by the trial court to the husband's expert in a divorce action were a proper attempt to clarify the expert's "guarantee" of valuation of marital assets. In Accardi v. City of New York, 121 A.D.2d 489, 503 N.Y.S.2d 818 (2d Dept.,1986) the Appellate Division held that the trial judge may assume an active role in the examination of witnesses where it is proper or necessary to facilitate or expedite the orderly progress of the trial.
[164] People v. Arnold, 98 N.Y.2d 63 745 N.Y.S.2d 782, (2002)
[165] People v. Arnold, 98 N.Y.2d 63 745 N.Y.S.2d 782 (2002). In Matter of Carrol v Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 841 (1st Dept, 1993) after both sides rested, the Court indicated an interest in hearing testimony from two witnesses, who resided in Paris, either in person or by way of deposition. When counsel for petitioners protested, the court announced, “Counsel, I am not going to close this proceeding without hearing from Mr. Bernard [Haim] and from Mr. Music. That is my ruling.” In this proceeding pursuant to CPLR article 78, the Appellate Division held that it was beyond respondent's power as a Supreme Court Justice to compel the proposed witnesses, residing in France, to attend at trial in this jurisdiction and give evidence (Constitution Art. 6, § 1; Judiciary Law § 2–b[1] ). Turning to the merits of petitioners' application, it observed that it is well settled that a court may conduct limited examination of a witness to elicit significant facts, clarify an issue or facilitate the orderly and expeditious progress of the trial. But, by presuming to direct the production of testimony from witnesses neither deposed by the parties nor called by them at trial, the Trial Justice has transgressed the bounds of adjudication and arrogated to himself the function of advocate, thus abandoning the impartiality required of his office. Perjury is a criminal offense, and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney's Office and the Grand Jury, not a civil trial court. Respondent asserted no valid ground for the introduction of the testimony of the proposed additional witnesses into this action. If, in the opinion of the court, a party has failed to introduce sufficient evidence to support the judgment sought, the clear option available to the court is to render judgment in favor of the adversarial party. Similarly, if the testimony of witnesses presented by one party is unworthy of belief, it is incumbent upon the court, as trier of the facts, to make findings in favor of the adversarial party. In Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011) the child appealed from Family Court order which adjudged her to be a juvenile delinquent. Although her contention that she was deprived of a fair trial because the Judge took on the function of an advocate by excessively intervening in the fact-finding hearing was unpreserved for appellate review, the Appellate Division reached the issue in the exercise of its interest of justice jurisdiction, because the Judge's excessive intervention deprived the appellant of her right to a fair fact-finding hearing. It observed that although trial courts may appropriately take an active role in the presentation of evidence "in order to clarify a confusing issue or to avoid misleading the trier of fact" (People v. Arnold, 98 N.Y.2d 63, 67), the function of the judge is "to protect the record at trial, not to make it.” Thus, while a certain degree of judicial intervention in the presentation of evidence is permissible, "the line is crossed when the judge takes on either the function or appearance of an advocate at trial.” These principles apply in bench trials, including juvenile delinquency proceedings. Here, the Family Court Judge took on the function and appearance of an advocate by extensively participating in both the direct and cross-examination of the two presentment agency witnesses and eliciting testimony which strengthened the presentment agency's case. When the appellant indicated, during the course of her direct examination, that a certain document which would support her defense had been turned over to a Probation Department officer, the Judge interrupted her testimony to question a Probation Department Court Liaison who was present in the courtroom about whether documents of this nature would indeed be kept by the Probation Department. The Judge then summoned the Probation Department officer assigned to the appellant's case to the courtroom, and indicated to the appellant's attorney that unless he agreed to stipulate as to what certain Probation Department records would reflect, those records would be admitted into evidence through the Probation Officer's testimony. It was clear from the record that neither the presentment agency nor the appellant's attorney intended to call the Probation Officer as a witness or enter the Probation Department records into evidence, and the stipulation regarding what those records reflected had the effect of rebutting a portion of the appellant's testimony. Thus, the Judge essentially "assumed the parties' traditional role of deciding what evidence to present”. The Judge offered no explanation on the record as to why he felt compelled to solicit this evidence. Under these circumstances, a new fact-finding hearing was warranted.
[166] In Matter of Kyle FF, 85 A.D.3d 1463, 926 N.Y.S.2d 196 (3 Dept, 2011) at the dispositional hearing the parties stipulated to the admission of the predispositional report, which recommended that respondent be placed on probation for two years subject to various special conditions. Although the parties asked that Family Court accept that recommendation and indicated that they intended to offer no further proof in this regard, Family Court called as its own witness the author of the report and questioned her extensively regarding respondent's prior admission to the local hospital's mental health unit and a subsequent mental health evaluation conducted by the Northeast Parent & Child Society. In response to this testimony, Family Court then indicated that it would not close the proof until it obtained the corresponding records for respondent's admission/evaluation and stated its intent to issue subpoenas to that effect. Following additional discussion, Family Court agreed to accept the discharge summary from respondent's hospital admission and closed the proof. Thereafter, relying almost exclusively upon proof that it elicited, Family Court ordered that respondent be placed with the Office of Children and Family Services until August 31, 2011. The Appellate Division held that Family Court improperly assumed a prosecutorial role by eliciting testimonial and documentary evidence at the dispositional hearing. Although respondent did not object when Family Court called the author of the predispositional report as a witness and stipulated to the admission of the discharge summary, thereby rendering this issue unpreserved for review it exercised its discretion and reversed Family Court's order. The Appellate Division observed that Family Court is vested with the discretion to call witnesses, including the author of the predispositional report (see Family Ct. Act §350.4[2] ), and may assume a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact. However, "[t]he overarching principle restraining the court's discretion [in this regard] is that it is the function of the judge to protect the record at trial, not to make it" and the court must take care to avoid assuming "the function or appearance of an advocate" (Matter of Yadiel Roque C., 17 A.D.3d at 1169). Even though the parties agreed with the recommendation made by the Probation Department, Family Court called and extensively questioned the author of the predispositional report, secured the production of additional documentary evidence and then, according essentially no weight to the underlying recommendation and the parties' expressed wishes, crafted a disposition based almost entirely upon proof that it elicited-a practice with which the Court previously had expressed its disapproval (see Matter of Keaghn Y., 921 N.Y.S.2d at 739; Matter of Blaize F. [Christopher F.], 74 A.D.3d 1454, 1455 [2010]; Matter of Stampfler v. Snow, 290 A.D.2d 595, 596 [2002]). Family Court's order was reversed and the matter was remitted for a new dispositional hearing before a different judge.
[167] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002).
[168] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-206. In Bolte v. Third Ave. R. Co., 38 A.D. 234, 56 N.Y.S. 1038 (1st Dept., 1899) the Appellate Division held that the action of the trial judge, in practically conducting the plaintiff's case by examining plaintiff and his witnesses while on the stand, as to points not yet touched on by the counsel, by asking them questions which would have been incompetent if asked by plaintiff's counsel, and which were leading and suggestive, warranted a reversal.
[170] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-207.
[171] In People v. Blount, 77 N.Y.2d 888, 568 N.Y.S.2d 908, 571 N.E.2d 78, affg. 159 A.D.2d 579, 552 N.Y.S.2d 441, the Court of Appeals held that precluding a defendant from consulting with his attorney during an overnight recess violated the right to the assistance of counsel. During the cross-examination of the defendant, the trial court directed an overnight recess, and directed defense counsel, over his objection, not to discuss the defendant's testimony with the defendant “at all”. This instruction violated the defendant's right to the assistance of counsel.
[172] People v. Joseph, 84 N.Y.2d 995, 646 N.E.2d 807, (1994). In Turner v. Valdespino, 140 A.D.3d 974, 34 N.Y.S.3d 124 (2d Dept., 2016) a custody proceeding, the mother's hearing testimony spanned several court dates and took place over a period of months. At the end of four hearing dates, while the mother's testimony was continuing, the Family Court instructed the mother not to discuss her testimony with her attorney during the recess. One of these recesses was overnight, two recesses were for approximately one week, and one recess was, because of adjournments, for more than three months. In reversing the order which granted the father custody, the Appellate Division held that the Family Court violated the mother's fundamental due process rights when it instructed her not to consult with her attorney during recesses, which resulted in her being unable to speak to her attorney over extended periods of time. Although the issue was unpreserved for appellate review, it exercised its power to reach it in the interest of justice because the Family Court's conduct deprived the mother of due process. In re Jaylynn R., 107 A.D.3d 809, 810, 811, 967 N.Y.S.2d 129, 130 (2d Dept., 2013) the Appellate Division held that Family Court violated the mother's due process rights when it instructed her not to consult with her attorney during a two-month adjournment of the fact-finding hearing.
[174] Judiciary Law §387. Temporary appointment of interpreters If the services of an interpreter be required in any court and there be no unemployed official interpreter to act therein, the court may appoint an interpreter to act temporarily in such court. Such interpreter shall before entering upon his duties file with the clerk of the court the constitutional oath of office. The court shall fix the compensation of such interpreter at not more than twenty-five dollars per day for each day's actual attendance by direction of the presiding judge or justice and such compensation shall be paid from the court fund of the county upon the order of the court. See also 28 U.S.C.A. § 1827. Interpreters in courts of the United States
[175] Judiciary Law § 390; People v. Doe, 158 Misc.2d 863, 602 N.Y.S.2d 507 (1993) held that a hearing impaired defendant was entitled to the services of interpreter to assist in her defense, as matter of due process, even assuming that she was able to hear 92% of trial.
[176] 22 NYCRR 217
[177] People v. Johnny P., 112 Misc.2d 647, 445 N.Y.S.2d 1007 (1981).
[178] People v. DeArmas, 106 A.D.2d 659, 483 N.Y.S.2d 121 (2d Dept 1884)
[179] In re Ejoel M., 34 A.D.3d 678, 824 N.Y.S.2d 660 (2 Dept 2006)
[180] In re Edward N., 51 A.D.3d 928, 858 N.Y.S.2d 723 (2 Dept 1988) (citing People v. Warcha, 17 A.D.3d 491, 493, 792 N.Y.S.2d 627)
[181] People v. Catron, 143 A.D.2d 468, 532 N.Y.S.2d 589 (3d Dept 1988). In People v. Miller, 140 Misc.2d 247, 530 N.Y.S.2d 490 (1988) a speech therapist was qualified to act as "interpreter" for the complainant who suffered from severe cerebral palsy. The therapist demonstrated ability to understand that witness and to translate his responses word for word.
[182] See Judiciary Law §§386 and 387
[183] Matter of James L, 143 A.D.2d 533, 532 N.Y.S.2d 941 (4 Dept. 1988)
[184] Id.
[185] Id.
[186] See, e.g., Matter of James L., 143 A.D.2d 533, 532 N.Y.S.2d 941; see also, Dat Pham v. Beaver, 445 F.Supp.2d 252 (W.D.N.Y. 2006); US v. Joshi, 896 F.2d 1303 (11 Cir 1990); In re Yovanny, L. 33 Misc.3d 894, 931 N.Y.S.2d 485 (Fam Ct., 2011). See also U.S. v. Joshi, 896 F.2d 1303 (11th Cir 1990) (Under Court Interpreters Act, the general standard for adequate translation of trial proceedings requires continuous word-for-word translation of everything relating to trial a defendant conversant in English would be privy to hear; however, occasional lapses from this standard, particularly when they are not objected to by defendant, will not render trial fundamentally unfair.)
[187] In re Yovanny, L., 33 Misc.3d 894, 931 N.Y.S.2d 485 (Fam Ct., 2011)
[188] See People v. Ko, 133 A.D.2d 850, 520 N.Y.S.2d 412; People v. Rolston, 109 A.D.2d 854, 486 N.Y.S.2d 768.
[189] In People v. Singleton, 59 A.D.3d 1131, 873 N.Y.S.2d 838, the Court held that while there were some errors in interpretation, the defendant failed to establish that he “was prejudiced by those errors”, and the conviction was affirmed. In People v. Dat Pham, 283 A.D.2d 952, 725 N.Y.S.2d 245, while there were some errors in the translation, the jury was informed of the errors, and the conviction was affirmed because the defendant did not show that he was seriously prejudiced.
[193] Catholic Guardian Soc. of Diocese of Brooklyn, Inc. (Ricardo V.) v. Elba V. 216 A.D.2d 558, 628 N.Y.S.2d 796 (2d Dept 1995)
[194] Catholic Guardian Soc. of Diocese of Brooklyn, Inc. (Ricardo V.) v. Elba V. 216 A.D.2d 558, 628 N.Y.S.2d 796 (2d Dept 1995) (citing People v. Ramos, 26 N.Y.2d 272, 274-75, 309 N.Y.S.2d 906, 258 N.E.2d 197; see also, Matter of Vladimir M., 206 A.D.2d 482, 614 N.Y.S.2d 572; People v. Calizaire, 190 A.D.2d 857, 593 N.Y.S.2d 879; People v. Gamal, 148 A.D.2d 468, 538 N.Y.S.2d 620; People v. Navarro, 134 A.D.2d 460, 521 N.Y.S.2d 82; Matter of Jose R., 49 A.D.2d 869,376 N.Y.S.2d 906).
[195] Jordan v Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept.,1988)
[196] Becker v Koch, 104 N.Y. 394, 10 N.E. 701 (1887). In Ferri v Ferri, 60 A.D.3d 625, 878 N.Y.S.2d 67 (2d Dept. 2009) the Appellate Division held that Supreme Court properly permitted the defendant to be treated as a hostile witness at the trial. Where an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross-examination by the use of leading questions. Moreover, the general rule prohibiting a party from impeaching his or her own witness does not preclude a hostile witness from being impeached by prior statements made either under oath or in writing. In Ciaccio v. Housman, 97 Misc.2d 367, 411 N.Y.S.2d 524 (Sup.Ct., 1978) the court held that in calling an adverse party doctor as a plaintiff's witness, it must be assumed that the adverse party is a hostile witness. Therefore, questioning counsel may ask such a witness leading questions. Under that circumstance, the direct examination, in the discretion of the court, may assume the nature of cross-examination. In W. v. D., 36 A.D.2d 455, 324 N.Y.S.2d 333 (4th Dept., 1971) the Appellate Division held that a party who calls the adverse party as witness must not be bound by latter's answers and must be permitted to lead and cross-examine him, and this is particularly so in type of case in which an examination before trial is not permitted.
[197] In Maria A.M. v Dextor N., 95 A.D.3d 578, 944 N.Y.S.2d 91 (1st Dept., 2012) the Respondent's counsel called petitioner as a witness but did not request that she be declared a hostile witness and made no showing that she was either lying or unwilling to answer his questions. As a consequence thereof, the referee properly sustained the objection to the leading questions counsel asked petitioner. In Matter of Amanda L., 302 A.D.2d 1004, 754 N.Y.S.2d 494 (4th Dept., 2003)) the Appellate Division rejected the respondents’ contention that Family Court erred in refusing to allow leading questions of his own witness: his wife and the children's mother. That ruling was proper inasmuch as the witness was not adverse to respondent and did not otherwise appear hostile toward respondent or unwilling to answer his attorney's questions. In Matter of Ostrander v Ostrander, 280 A.D.2d 793, 720 N.Y.S.2d 635 (3 Dept., 2001) the Court stated that while an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the discretion of the trial court. The record disclosed that respondent was neither reluctant nor evasive in answering questions posed during direct examination, including several questions regarding the children and guns. When the objections to the leading questions were sustained, petitioner's counsel made no effort to elicit the information through questions which were not leading and petitioner did not claim that such questions were not feasible or that their use would have been frustrated by respondent's hostility as an adverse party. In these circumstances, there was no reversible error in Family Court's ruling.
[198] Koester v. Rochester Candy works, 194 N.Y. 92; Hanrahan v. New York Edison Co., 238 N.Y. 194.
[199] This list of modes of impeachment is from Irving Younger, “The Art of Cross-Examination”.
[200] Richardson on Evidence, 11th Edition, 6-415.
[201] Carr v. Atchison, 166 AD2d 172, 173, 564 NYS2d 67 (1 Dept. 1990); People v. Bolling, 167 AD2d 345, 346, 561 NYS2d 308 (2 Dept. 1990); People v. Coleman, 56 NY2d 269, 273, 451 NYS2d 705 (1983).
[203] People v. Greer, 42 NY2d 170 (1977); People v. Schwartzman, 24 NY2d 241, 245 (1969), cert den 396 US 846 (1969); People v. Alamo, 23 NY2d 630, 298 NYS2d 681 (1969).
[204] People v. Santiago, 15 NY2d 640 (1964).
[205] People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983) citing Richardson, Evidence [Prince, 10th Ed], § 491, p 477.)
[206] People v. Hudy, 73 NY2d 40, 56, 538 NYS1d 197; People v. Pavao, 59 NY2d 282, 288-289, 464 NYS2d 458 (1983); See also People v. Zabrocky, 26 NY2d 530, 535 (1970); People v. Schwartzman, 24 NY2d 241, 245, 299 NYS2d 817 (1969); People v. Ortiz, 173 AD2d 189, 190 (1 Dept. 1991); People v. Diaz, 173 AD2d 554, 570 NYS2d 149; People v. Pugh, 168 AD2d 906, 907, 565 NYS2d 652 (4th Dept. 1990); Goldman v. Goldman, NYLJ, 9/28/87, p. 13 col.5,(Sup. Ct., N.Y. Co., Glen, J.).
[207] Badr v. Hogan, 75 NY2d 629, 634, 555 NYS2d 249 (1990); People v. Schwartzman, 24 NY2d 241, 245, 299 NYS2d 817 (1969); Peo. v. Jackson, 165 AD2d 724, 564 NYS2d 259 (1st Dept., 1990); Peo. v. Israel, 161 AD2d 730, 732, 555 NYS2d 865 (2d Dept., 1990).
[208] See also, Peo. v. Pavao, 59 NY2d 282, 288, 464 NYS2d 458 (1983).
[209] People v. Sorge, 301 NY 198, 201 (1950).
[210] Badr v. Hogan, 75 NY2d 629, 555 NYS2d 249 (1990); But, see People v. Davis, 43 NY2d 17, 26, 400 NYS2d 735 (1977); see also, Nowack v. Metropolitan St. Ry. Co., 166 NY 433, 437.
[211] People v Cade, 73 NY2d 904, 905, 539 NYS2d 287 (1989); Badr v. Hogan, 75 NY2d 629, 635, 555 NYS2d 249 (1990).
[213] People v Hinksman, 192 NY 421, 432; Prince, Richardson, Evidence (10th Ed), § 494, p 479; Fisch, New York Evidence, § 452, p 259; 65 NY Jur, Witnesses, § 75, p 238. People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983).
[214] People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983).
[215] People v Bouton, 50 NY2d 130 (1988); People v Hanley, 5 NY3d 108, 112 (2005).
[216] People v Fernandez, 17 N.Y.3d 70 (2011).
[217] People v Bouton, 50 NY2d 130 (1988); People v Hanley, 5 NY3d 108, 112 (2005).
[218] People v Fernandez, 17 N.Y.3d 70 (2011) (reputation testimony of a biological aunt admissible on ground the family was a community for purposes of reputation testimony).
[219] People v Pavao, 59 NY2d 282, 290 (1983) see People v Hanley, 5 NY3d 108, 112 (2005).
[220] People v McGhee 82 A.D.3d 1264, 920 N.Y.S.2d 164 (2d Dept, 2011) (citing Carlson v Winterson, 147 NY 652, 655-656 (1895); People v Fernandez, 74 AD3d at 1380-1381; People v Rosario, 298 AD2d 244, 244-245 [2002]; People v Carlo, 46 AD2d 764, 765 (1974); cf. People v O'Regan, 221 App Div 331, 335-336 (1927); see generally Fisch on New York Evidence § 454, at 294 [2d ed]; Richardson on Evidence § 6-402, at 386 (Farrell) 11th Ed..
[221] People v Bouton, 50 NY2d 130, 139 (1980).
[222] Answers to the questions are for purposes of the example only.
[223] People v. Sorge, 301 N.Y. 198, 202, 93 N.E.2d 637, 640.
[224] See generally Barker & Alexander, Evidence in New York State and Federal Courts § 6:49-6:52 (2001).
[225] Koester v. Rochester Candy works, 194 N.Y. 92; Hanrahan v. New York Edison Co., 238 N.Y. 194; Prince, Richardson on Evidence, 11th Edition (Farrell), § 6-411. Blossom v Barrett, 37 NY 434; Hayes v Henault 131 AD2d 930
[226] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[227] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[228] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[229] People v. Weldon, 111 N.Y. 569, 575-576, 19 N.E. 279, 280-281; Richardson, Evidence (10th ed, Prince), § 502); People v. Duncan, 46 N.Y.2d 74, 80, 385 N.E.2d 572, 576 (1978)
[230] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912) Patchin v. Astor Mut. Ins. Co., 13 N. Y. 268 citing Sloan v. New York Central R. R. Co., 45 N. Y. 125; Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854.
[231] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[232] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[233] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[234] CPLR Rule 4514. Impeachment of witness by prior inconsistent statement
[235] People v. Miller, 91 NY2d 373, 670 NYS2d 978 (1998) and cases cited therein.
[236] Prince, Richardson on Evidence, 11th Edition (Farrell), § 8-101; Augustine v Interlaken, 68 AD2d 705 (4th Dept., 1979); Gilberg v Barbieri, 53 NY2d 285 (1981).
[237] See also, People v. Bost, 176 AD2d 1085, 575 NYS2d 392 (3d Dept. 1991) (use of aliases may suggest that witness is person who has found it useful or necessary to conceal his identity and such evidence may bear on credibility and be a proper avenue of impeachment).
[238] People v. Zabrocky, 26 NY2d 530, 535, 311 NYS2d 892 (1970); Able Cycle Engines, Inc. v. Allstate Insurance Co., 84 AD2d 140, 445 NYS2d 469 (Second Dept. 1981); see also, CPLR 4513 ("A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record. The party cross-examining is not concluded by such person's answer.")
[239] People v. Brown, 26 NY2d 88, 308 NYS2d 825; People v. Webster, 139 NY 73, 85; Schultz v. Third Avenue R.R. Co., 89 NY 242; Ryan v. People, 79 NY 593.
[240] People v. McDowell, 9 NY2d 12, 210 NYS2d 514 (1961); Schultz v. Third Avenue R.R. Co., 89 NY 242.
[241] People v Hudy, 73 NY2d 40, 56-57 [1988].
[242] People v Hudy, 73 NY2d, supra, at 56.
[243] See, Leistner v. Leistner, 137 AD 2d 499, 524 NYS2d 243 (2d Dept., 1988). See, also, Potter v. Browne, 197 NY 288 (the hostility of a witness toward a party against whom the witness testifies can be proved either by the party or by others) See also, People v. Miranda, 176 AD2d 494, 574 NYS2d, 563, 564 (1 Dept. 1991)
[244] Schultz v. Third Avenue R. R.Co., 89 NY 242.
[245] People v Thomas, 46 NY2d100
[246] See Barker & Alexander, Evidence in New York State and Federal Courts § 6:33 (2001). CPLR 4514. Impeachment of witness by prior inconsistent statement. In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath.
[247] See Barker & Alexander, Evidence in New York State and Federal Courts § 6:33 (2001).
[248] Matter of Fawn S., 128 Misc.2d 186, 489 N.Y.S.2d 681 (N.Y.Fam.Ct., 1985). In Muscoreil By Vigneri v. Pool Mart, Inc., 486 N.Y.S.2d 518 ( 4 Dept.,1985) the court held that oral examination of the eight-year-old plaintiff would be under oath provided that the infant was first found competent by the trial court in preliminary examination. In Dempsey v Arreglado, 943 NYS2d 657 (3d Dept 2012]) the Appellate Division held that Family Court did not abuse its discretion in refusing to make the child testify in light of the mother's lack of proof regarding her claim of alienation, and the potential for significant negative impact on the child of requiring him to testify.
[249] Civil Practice Law and Rules 3117(a) (1).
[250] Civil Practice Law and Rules 3117(a) (2).
[251] Civil Practice Law and Rules 3117(a) (3).
[252] Civil Practice Law and Rules 3117(b).
[253] See Santos v Intown Assoc., 17 AD3d 564 [2d Dept., 2005]; Lalli v Abe, 234 AD2d 346 [2d Dept., 1996]). In Ramirez v Willow Ridge Country Club, Inc., 84 AD3d 452, (1st Dept 2011) the First Department held that the deposition transcript could not be used during cross-examination, on the ground that there had been a failure to show compliance with CPLR 3116. In its decision, the Court said: “[T]he court properly precluded the use of Jack’s unsigned deposition transcript during Jack’s cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116 (a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).”
[258] Answers to the questions are for purposes of the example only.
[259] CPLR 3131.
[260] CPLR 3117 (a) (1)
[261] This provision also applies to any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party.
[262] CPLR 3117 (a) (2)
[263] CPLR 3117 (a)
[264] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
[265] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
[266] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
[267] CPLR 3117(c).
[268] Civil Practice Law and Rules 3117(d).
[269] See Feldsberg v Nitschke, 49 N.Y.2d 636, 404 N.E.2d 1293, 427 N.Y.S.2d 751 (1980)
[270] Answers to the questions are for purposes of the example only.
[271] CPLR 4517 provides, in part: Rule 4517. Prior testimony in a civil action (a) Impeachment of witnesses; parties; unavailable witness. In a civil action, at the trial or upon the hearing of a motion or an interlocutory proceeding, all or any part of the testimony of a witness that was taken at a prior trial in the same action or at a prior trial involving the same parties or their representatives and arising from the same subject matter, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions: 1. any such testimony may be used by any party for the purpose of contradicting or impeaching the testimony of the same witness; 2. the prior trial testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party, may be used for any purpose by any party who is adversely interested when the prior testimony is offered in evidence; 3. the prior trial testimony of any person may be used by any party for any purpose against any other party, provided the court finds: (I) that the witness is dead; or (ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or (v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court; 4. the prior trial testimony of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances subject to the right of any party to move for preclusion upon the ground that admission of the prior testimony would be prejudicial under the circumstances. (b) Use of part of the prior trial testimony of a witness. If only part of the prior trial testimony of a witness is read at the trial by a party, any other party may read any other part of the prior testimony of that witness that ought in fairness to be considered in connection with the part read.
[272] This provision also applies to a person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party. CPLR 4517(a) (2).
[273] CPLR 4517(a) (2).
[274] CPLR 4517(a)(3)
[275] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-502.
[276] Harmon v. Matthews, 27 N.Y.S.2d 656 (1941).
[277] CPLR 4517. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-508. Dean v Halliburton, 241 NY 354.
[278] Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
[279] Young v Valentine, 177 NY 347. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-506.
[280] CPLR 4517.
[281] CPLR 4517.
[282] CPLR 4517 (a) (iii).
[283] CPLR 4517. Prince, Richardson on Evidence, 11th Edition (Farrell), §8-508. Dean v Halliburton, 241 NY 354.
[284] Harmon v. Matthews, 27 N.Y.S.2d 656 (1941).
[285] Answers to the questions are for purposes of the example only.
[286] Answers to the questions are for purposes of the example only.
[295]In Matter of Donald G v Hope H, 160 A.D.3d 1061, 74 N.Y.S.3d 135 (3d Dept., 2018) the Appellate Division affirmed an order which granted petitioner’s application, to modify a prior order of custody. The Appellate Division rejected the mothers argument on appeal that that Family Court erred in permitting the father to admit into evidence three audio recordings of various comments made by the mother without laying a proper foundation. This claim was waived as to two of the recordings. It noted that the mother was given the required opportunity to explain the inconsistency between her hearing testimony and her remarks on the recording admitted for impeachment purposes (referring to People v. Laurey, 24 A.D.3d 1107, 1109, 807 N.Y.S.2d 437 [2005]). The mother did object to admission of the third recording on foundational grounds. Family Court overruled the objection and admitted the recording into evidence for impeachment purposes on the ground that the mother had acknowledged that the recording contained her voice, and that she and the father had the recorded conversation. Here, the mother was not given the requisite opportunity to explain the inconsistency and her counsel did not specifically object to this failure. If counsel had done so, the Appellate Division stated that it would have found that the error was harmless; the court cited other evidence as the basis for its finding that the mother’s testimony was “not credible as a whole” and made no reference to this recording.
[296] In Matter Aponte v Jagnariain, 205 A.D.3d 803, 169 N.Y.S.3d 105 (2d Dept.,2022) the Appellate Division held that a witness’s testimony in a prior proceeding may be incorporated into a later proceeding if it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine. Here, the prior testimony was given under oath and referred to the same subject matter, and the mother was allowed to cross-examine the witness at the earlier hearing, but declined to avail herself of that opportunity when she voluntarily absented herself from that hearing. In addition, the mother had the opportunity to call the witness to testify at the hearing in the custody and parental access proceeding, and, if necessary, to request that the court deem her to be a hostile witness so that the mother could impeach her, but she failed to do so.
[297] In Rodriguez v. Rodriguez, 79 A.D.2d 550, 550-51, 434 N.Y.S.2d 22 (1st Dep’t 1980), two divorce actions, where plaintiffs specifically sought an award of custody of the issue of their respective marriages, Trial Term did not determine the issue of custody. In the Rodriguez action, the defendant husband appeared, admitted service of the summons which stated that the plaintiff wife was seeking a judgment of divorce and an award of custody of their two children, waived service of all further papers and consented to the entry of judgment. In the Heiek action, the defendant husband failed to appear and defaulted. While finding both plaintiffs entitled to a divorce, Trial Term deleted the provision in each of the two respective submitted judgments which provided for the granting of custody of the issue of the marriage to the plaintiff. The Appellate Division observed that that Section 240 of the Domestic Relations Law which provides, in pertinent part: “In any action . . . for a divorce . . . the court must give such direction, between the parties, for the custody . . . of any child of the parties, as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child” The mandatory aspect denoted by the use of the word “must” requires that the court properly exercise its broad discretion respecting the issue of custody and that it may not refrain from exercising such discretion. The mere striking out of the provisions of the submitted judgments which granted custody to the plaintiffs by Trial Term, without any basis being set forth by the court for its action, whether in a decision or in some other judicially acceptable fashion, constituted a refusal to exercise the discretion mandated by the statute. The stricken provisions awarding custody of the issue of the respective marriages to the respective plaintiffs were reinstated. See also Puri v. Puri, 213 A.D.2d 389, 622 N.Y.S.2d 978 (2d Dep’t 1995).
[298] Serao v. Bench-Serao 149 A.D.3d 645, 53 N.Y.S.3d 628 (1st Dept.,2017); See also Wong v Wong,300 A.D.2d 473, 474, 752 N.Y.S.2d 85, 86, (2 Dept.,2002) (“Moreover, to the extent that the judgment contained no provision concerning equitable distribution or maintenance, it must be reopened.”)
[299] Clemente v. Clemente, 16 Misc. 3d 769, 773, 842 N.Y.S.2d 276, 279 (Sup 2007), aff'd as modified, 50 A.D.3d 514, 857 N.Y.S.2d 78 (1st Dep't 2008) (““Temporary Orders of Support are ““by [their] very nature temporary and effective only during the pendency of the litigation.”” Sass v. Sass, 129 A.D.2d 622, 624, 514 N.Y.S.2d 257 (2d Dep't 1987). A pendente lite order, in contrast to a permanent order, is generally based on limited information and allegations of the parties ...””).
In Marlinghaus v. Marlinghaus, 202 A.D.2d 994, 609 N.Y.S.2d 503 (4th Dep't 1994), the Appellate Division held that the Supreme Court erred in failing to fix the amount of the husband's child support obligation pursuant to the Child Support Standards Act and in failing to set forth pursuant to NY Dom Rel Law &s;§236(B)(6)(b) the factors it considered and the reasons for its award of spousal maintenance. It was improper to affirm summarily prior orders by another judge awarding temporary child support and spousal maintenance and holding such support and maintenance in abeyance while the husband was unemployed, especially where the record failed to show the circumstances underlying his unemployment or, indeed, that he was unemployed.
In Adinolfi v. Adinolfi, 168 A.D.2d 401, 402, 562 N.Y.S.2d 528, 530 (2d Dep't 1990) although the plaintiff's cause of action for a divorce was dismissed for failure to state a cause of action and failure of proof, the judgment left standing all of the defendant's counterclaims for ancillary relief . Therefore, the court did not err in directing the continuance of the prior pendente lite orders pending a final determination of the defendant's claims for ancillary relief (cf., Sass v. Sass, 129 A.D.2d 622, 514 N.Y.S.2d 257 (2d Dep't 1987); Flynn v. Flynn, 128 A.D.2d 583, 584, 512 N.Y.S.2d 847 (2d Dep't 1987)).
In Gilbert v. Gilbert, 32 A.D.3d 416, 820 N.Y.S.2d 609 (2d Dep't 2006), the Appellate Division held that the Supreme Court erred in failing to terminate the existing pendente lite order for the period between its decision after trial and the entry of judgment while obligating the defendant to pay child support from the date of the decision. This resulted in a double shelter allowance during that period. Likewise, the plaintiff was receiving 100%% of the rental income from a portion of the second marital residence during this period. Consequently, upon remittitur, Supreme Court had to recalculate the arrears in child support, if any, or the credit to which the defendant may be entitled. In so doing, the court was required to credit the defendant with that portion of his mortgage payments and other carrying charges for the period between the Supreme Court's decision and the entry of judgment that exceed his interest in the second marital residence resulting from the recalculation on remittitur in the companion appeal. The court also had to credit the defendant with that portion of the rental income representing his interest in the second marital residence.
In Ramirez v. Velez, 78 A.D.3d 1062, 911 N.Y.S.2d 466 (2d Dep't 2010), the Appellate Division held that issues regarding a temporary custody order were rendered academic on appeal from the order awarding the father permanent custody of the child. The order awarding the father temporary custody of the child was superseded by the order awarding him permanent custody, and the temporary order was no longer in effect. Any alleged defect in the temporary order would not render the permanent order defective, since the permanent order was based upon a full and fair hearing.
[305]Shapiro v. Shapiro, 151 A.D.2d 559, 542 N.Y.S.2d 339 (2d Dep’t 1989);(see, Mulligan v Wetchler, supra. Matter of Wareham v Wareham, 34 AD2d 647. Noga v Noga, 235 A.D.2d 1002, 653 N.Y.S.2d 47, 1997 N.Y. Slip Op. 00805 (3d Dept., 1997) (After judgment of divorce was entered defendant requested the court to reconsider its decision and to reopen the trial. In support of his motion, defendant relied on a letter dated March 28, 1994 which set the value of the pension at a lower figure. Supreme Court denied the motion on the ground that defendant failed to explain why such evidence was not presented at trial. The Appellate Division affirmed stating: “. There is no evidence in the record that defendant ever objected at trial to the submission of the March 19, 1993 letter into evidence or that he contested the calculation of his interest in the pension plan by offering an alternative valuation of his interest. There is no proof that defendant was not afforded sufficient time for discovery. Nor is there evidence that defendant was denied the opportunity to submit proof on this issue. Defendant has also failed to offer any reason why he did not act more expeditiously in obtaining the information which he now seeks to submit as evidence (see, Mauro v. Mauro, 148 A.D.2d 684, 685, 539 N.Y.S.2d 432).