Impeaching own witness, leading questions, narrative, argumentative, beyond scope of testimony, prior criminal convictions, asked and answered, assuming facts not in evidence, unresponsive, conclusion or opinion sought, opinion as to another’s state of mind

by Justice Helen E. Freedman*

New York Objections

Excerpted from New York Objections


A. Objections During Direct Examination

§ 15:60 Impeaching Own Witness

Objection, Your Honor. Counsel is impeaching (his/her) own (witness) (witness’ credibility).

Comments

At common law, a party is not allowed to impeach the credibility of the party’s own witnesses. Hanrahan v. New York Edison Co., 238 N.Y. 194, 144 N.E. 499 (1924); People v. Guy, 223 A.D.2d 723, 637 N.Y.S.2d 445 (2d Dept.1996); Beck v. Albany MedicalCenter Hosp., 191 A.D.2d 854, 594 N.Y.S.2d 844 (3d Dept.1993). The Civil Practice Law and Rules modify the common law by permitting any party in a civil case to introduce proof that any witness made a prior statement that is inconsistent with the witness’ testimony at trial, providing the statement was made under oath or in a writing signed by the witness. CPLR 4514; Rodriguez v. New York City Housing Authority, 215 A.D.2d 362, 626 N.Y.S.2d 240 (2d Dept. 1995).

Generally, such prior inconsistent statements are only admissible on the issue of witness credibility, and not as evidence in chief. City of Rochester v. BSF Realty, Ltd., 59 A.D.2d 1035, 399 N.Y.S.2d 779 (4th Dept. 1977).

Before a party in a criminal trial may impeach its own witness, the witness must give testimony on a material issue in the case that tends to disprove the party’s position or that affirmatively damages the party’s case. As in civil cases, such impeachment is limited to use of a signed written statement by the witness, or an oral statement made under oath, that is contradictory to testimony given by the witness in a criminal proceeding. CPL § 60.35(1). See People v.Clark, 281 A.D.2d 947, 725 N.Y.S.2d 154 (4th Dept. 2001). In addition, the damaging testimony must consist of something more than the witness’ inability to recall the events in question. People v. Guerrero-Rivera, 236 A.D.2d 837, 654 N.Y.S.2d 224 (4th Dept. 1997).

In general, a party’s “own witness” usually means a witness called by the party in furtherance of his or her case or version of the events at issue. A party called as a witness by an opposing party is not that party’s “own witness” in the true sense. Nevertheless, impeachment of the credibility of such adverse party witnesses is also restricted to those situations set forth in CPLR 4514. Mantuano v. Mehale, 258 A.D.2d 566, 685 N.Y.S.2d 467 (2d Dept. 1999) (witness could be cross-examined by use of Bill of Particulars in another action); Skerencak v. Fischman, 214 A.D.2d 1020, 626 N.Y.S.2d 337 (4th Dept.1995). However, the general rule prohibiting a party from impeaching his or her own witness “does not apply where the witness is an adverse party.” Williams v. Brosnahan, 295 A.D.2d 791, 746 N.Y.S.2d 219 (4th Dept.2002).

The court will sustain this objection if a party attempts to impeach its own witness on reputation grounds, even if the party calls an adverse party as its own witness. See, e.g., Tarulli v. Salanitri, 34 A.D.2d 962, 312 N.Y.S.2d 55 (2dDept. 1970). The court will probably overrule the objection if you employ extrinsic evidence simply to show that the witness was mistaken. See, e.g., Tryon v. Willbank, 234 A.D. 335, 255 N.Y.S. 27 (4th Dept. 1932); In re Tessitore’s Estate, n.o.r. (Surr. Ct., Queens County, 1950) 99 N.Y.S.2d 776 (1950).

Objection Tactics

  • Object to any attempt by your adversary to impeach his or her own witness’ credibility unless your opponent meets the requirements of CPLR 4514. Assert that, having called the witness, your opponent is bound by the witness’ answers.

  • Alternatively, if the witness can be impeached on a material issue, you may explore the contradictory statements with leading questions during your cross-examination instead of objecting. Argue that your opponent has opened the door to such testimony.

Response

  • If the prior inconsistent statement does not come within CPLR 4514, explain that you are using it merely to refresh the witness’s recollection or to give the witness an opportunity to change or reconsider his or her testimony.

  • Argue against any claim by the objecting party that you made the witness your own by exceeding the scope of direct examination. For objecting based on exceeding the scope of direct examination, see § 15:100.

  • Make it clear to the court that you are merely trying to set the record straight as to facts or events, and that you are not challenging the witness’ truthfulness.

  • If the court allows impeachment of the witness, you may attempt to “rehabilitate” the witness on cross-examination.

Cases

Spampinato v. A.B.C. Consolidated Corp., 35 N.Y.2d 283, 360 N.Y.S.2d 878 (1974). In a personal injury action, the fact that the plaintiff bicyclist read the defendant truck driver’s pretrial deposition into evidence did not make the truck driver his own witness. Since the truck driver was a party to the action, the plaintiff was entitled to use the driver’s deposition as evidence in chief.

Hanrahan v. New York Edison Co., 238 N.Y. 194, 144 N.E. 499 (1924). A party cannot call a witness and attempt to impeach the witness as to his or her reputation for truth and veracity, even if the witness is the opposing party.

Cross v. Cross, 108 N.Y. 628, 15 N.E. 333 (1888). In an action for limited divorce, by calling the defendant as her witness, the plaintiff could not directly impeach the character of the defendant for truth. However, the plaintiff is not bound by the defendant’s testimony and could prove facts showing that the defendant’s testimony was incorrect.

People v. Clark,281 A.D.2d 947, 725 N.Y.S.2d 154 (4th Dept. 2001). In a second-degree murder prosecution, the prosecution was allowed to impeach its own witness where a prior written statement signed by the witness contradicted his trial testimony on a material issue.

Rodriguez v. New York CityHousing Authority, 215 A.D.2d 362, 626 N.Y.S.2d 240 (2d Dept. 1995). In a personal injury action, plaintiff may be impeached concerning locations of the accident where her signed notice of claim gave a different address.

People v. Jablonski, 176 A.D.2d 1242, 576 N.Y.S.2d 737 (4th Dept. 1991). A prosecutor may impeach a prosecution witness with a prior inconsistent statement. There was no indication that the prosecutor called the witness in “bad faith,” simply to use her presence to introduce prior statements that would otherwise be inadmissible.

Jordan v. Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept.1988). In a personal injury action, when an adverse party is called as a witness, it may be assumed that the party is hostile. The party calling the adverse party witness may ask leading questions, but the witness’ credibility cannot be impeached except pursuant to CPLR 4514.

Newman v. Great Atlantic and Pacific Tea Co., 100 A.D.2d 538, 473 N.Y.S.2d 231 (2d Dept.1984). A trial court in a slip and fall personal injury case erred in preventing a plaintiff from refreshing the recollection of the defendant’s assistant manager, called by plaintiff as a witness, with an accident report containing a prior inconsistent statement supplied to plaintiff by defendant. CPLR 4514 permits impeachment of one’s own witnesses with a subscribed, prior inconsistent writing. The report and deposition testimony concerning water in the aisle from a freezer was inconsistent with the assistant manager’s trial testimony.

Tryon v. Willbank, 234 A.D. 335, 255 N.Y.S. 27 (4th Dept. 1932). In a personal injury wrongful death action by a passenger involved in a motor vehicle collision, the plaintiff’s decedent could not impeach either driver directly, but was at liberty to prove by other testimony that the material facts relating to the issues involved in the case were different from those testified to by either driver.

In re Tessitore’s Estate, 99 N.Y.S.2d 776, (Surr. Ct., Queens County, 1950). The general rule that one cannot impeach one’s own witness has an exception where the witness is an adverse party. However, credibility and veracity may not be attacked.

§ 15:70 Leading Questions

Objection, Your Honor. Counsel is asking leading questions

[or] Counsel is leading the witness.

Comments

Definition

A leading question is one that is framed to suggest the answer the questioner wants or expects from the witness. Cope v. Sibley, 12 Barb. 521 (N.Y. 1850). Such questions are usually answered by a “yes” or “no” answer. However, not all yes-or-no questions are leading. For instance, “Did you steal a brooch?” is not leading because it does not suggest the answer to the witness. Conversely, some questions not answerable with a “yes” or “no” may be leading. “How about the brooch you stole…?” is a leading question because it assumes a fact in controversy. See People v. Slover, 232 N.Y. 264, 133 N.E. 633 (1921).

The context in which a question is asked may well determine whether the question is leading. For example, “Did you leave before dinner or before lunch?” may not be answered with a “yes” or “no,” but is leading if it has not yet been established that the witness actually left. In other words, leading may be related to the assumption of a fact not in evidence. In contrast, “Did you attend college?” may be answered by a “yes” or “no,” but in most contexts would not be considered a leading question because there is no obvious expectation that the question suggests an answer to the witness.

The following types of questions are the most likely to prompt a leading objection:

  • Long questions.

  • Questions that assume facts not in evidence.

  • Questions containing factual material and therefore that suggest an answer.

  • Questions that call for a “yes” or “no” answer.

When allowed

Ordinarily, leading questions are prohibited on direct examination, People v. Mudd, 184 A.D.2d 388, 585 N.Y.S.2d 364 (1st Dept. 1992); La Motta v. City of New York, 130 A.D.2d 627, 515 N.Y.S.2d 554 (2d Dept. 1987) but are permitted on cross-examination. Downs v. New York Central R.R. Co., 47 N.Y. 83 (1871); People ex rel Phelps v. Court of Oyer and Terminer County of New York, 83 N.Y. 436 (1881).

Thus, generally, leading questions may be used to examine an opposing party when called to give direct testimony. However the use of leading questions lies within the court’s discretion. It is not an abuse for a court to disallow leading questions where the opponent shows no sign of reluctance or hostility. Ostrander v. Ostrander, 280 A.D.2d 793, 720 N.Y.S.2d 635 (3rd Dept.2001).

If cross-examination goes beyond the scope of direct examination, the questioner may make the witness his or her own. In this situation, leading questions are inappropriate. See Bennett v. Crescent Athletic-Hamilton Club, 270 N.Y. 456, 1 N.E.2d 963 (1936) (plaintiff’s cross-examination beyond the direct examination resulted in making the witness plaintiff’s witness, and prevented plaintiff from impeaching the witness); for objecting to questions exceeding scope of direct examination, see § 15:100.

Technically, leading is prohibited on redirect examination, but courts tend to be more lenient once the matter has been investigated during cross-examination. However, these rules are replete with exceptions. Trial court judges have substantial discretion to allow leading questions under a variety of circumstances. Downs v. New York Central RR Co., 47 N.Y. 83 (1871).

Exceptions to rule

Exceptions to the prohibition on asking leading questions include the following:

  • Direct examination on preliminary matters for purposes of moving expeditiously to the main issues in the case. The rationale for this exception is that there is no motive to suggest inaccurate answers on background, nonessential, or undisputed matters.

  • Focusing a witness’ attention as to subject, occasion, time, place, or person.

  • Direct examination of an adverse or hostile witness.Becker v. Koch, 104 N.Y. 394, 10 N.E. 701 (1887); for definition of adverse witness, see § 15:10. Leading is almost invariably allowed in such situations on the assumption that the witness is not suggestible or easily led.

  • Direct examination of people who might otherwise be unable to testify, such as:

    • Children. People v. Tyrell, 101 A.D.2d 946, 475 N.Y.S.2d 937 (3dDept. 1984); People v. Greenhagen, 78 A.D.2d 964, 433 N.Y.S.2d 683 (4thDept. 1980).

    • Physically- or mentally-impaired individuals. People v. Yarusevich, 81 A.D.2d 528, 438 N.Y.S.2d 94 (1stDept. 1981).

    • Elderly witnesses, or individuals with language difficulties. Nicoletti v. Dieckmann, 89 Misc. 131, 151 N.Y.S. 520 (1stDept. 1915); Strnad v. William Messer Co., 142 N.Y.S. 314 (1stDept. 1913).

PRACTICE TIP

Obtain ruling from court that witness is adverse.

An adverse party, or his or her agent, is presumed hostile. Jordan v. Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept.1988). As to any other witness, you may have to establish hostility before you may ask leading questions. The judge should make a finding that the witness is hostile before allowing leading questions.

If the witness appeared pursuant to subpoena and indicated a reluctance to testify, you may make that fact known to the judge before calling the witness, and may request that the judge declare the witness hostile. Otherwise, you may have to demonstrate reluctance or evasiveness through actual questioning of the witness before the judge will declare the witness hostile. See, e.g., People v. Arhin, 203 A.D.2d 62, 609 N.Y.S.2d 604 (1st Dept. 1994); People v. Walker, 125 A.D.2d 732, 510 N.Y.S.2d 203 (2d Dept. 1986). It is usually easier to demonstrate the need for leading questions based on hostility than on mere reluctance or evasiveness.

PRACTICE TIP

“Leading” objections may be counterproductive.

Most objections to leading questions are subject to a discretionary ruling from the court. Confronted with a leading objection, the court is likely to ask the questioner to merely rephrase the question. By that time, the witness has had an opportunity to consider the question and has already “heard” the suggested answer. Thus, objecting on this basis may be counterproductive. If opposing counsel insists on conducting direct examination by using leading questions to elicit testimony on key issues, ask for a bench conference and request an admonition.

Objection Tactics

  • Do not object to leading questions on preliminary matters.

  • Remain alert when your adversary is examining a witness, and be prepared to object to leading questions which:

    • Elicit testimony on controversial or disputed matters.

    • Assume facts in controversy or not in evidence.

    • Assume facts “subject to connection.” If the court allows such questions, remember to move to strike the testimony if the connection is not made.

    • Suggest answers to children, physically or mentally-impaired individuals, the elderly, or individuals with language difficulties. Though the objection is likely to be overruled, the court may limit leading questioning to essential matters solely or primarily within the knowledge of the witness, and may carefully scrutinize leading questions to make sure they are not unduly argumentative or suggestive.

  • Be alert to opposing counsel using your client or your client’s agent as an expert witness. If that occurs, object to use of leading questions.

  • Watch for seemingly adverse witnesses who are actually “friendly,” as for example, when a former defendant who has settled with a plaintiff gives testimony favorable to the plaintiff and unfavorable to a nonsettling defendant. See, e.g., Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892 (1stDept. 1996).

  • Object to leading questions on the ground that the witness has not demonstrated hostility merely because the witness was subpoenaed, or had some relationship to the adverse party, or merely appears reluctant to testify. Insist on evidence of hostility.

  • If the party seeking to lead the witness claims the witness is being evasive, argue that the witness is not being evasive but is simply confused by opposing counsel’s questions.

  • If the court overrules your objection:

    • Insist on stating the grounds for your objection in front of the jury. This will alert jurors to the possible “unfairness” of the questions, and also alerts your witness to potential traps.

    • Ask the judge to observe the witness carefully and to limit the use of leading questions to non-argumentative questions.

  • If opposing counsel persists in asking leading questions, request a bench conference and ask the court to admonish opposing counsel. Ask for an admonition in front of the jury only as a last resort.

  • If you have asked leading questions on direct examination because the witness is adverse or hostile, object to leading questions on cross-examination on the ground that the witness is actually friendly to the cross-examiner.

Response to Objection

  • If possible, respond to a leading objection by rephrasing the question. You can make simple modifications of questions by asking questions in the following manner:

    • What, if anything, happened next?

    • What, if anything, did you observe at . . . ?

    • Did you or did you not . . . ?

  • If appropriate, contend that the matter involved is preliminary, undisputed, or necessary to focus the witness as to time, place, or person, and that leading questions will conserve the court’s and the jury’s time.

  • If appropriate, argue that the witness is adverse and that you have a right to ask leading questions.

  • When a witness appears pursuant to subpoena or is otherwise reluctant, argumentative, or unfriendly, ask to have the witness declared hostile for purposes of asking leading questions.

  • If questions assume facts that have not been established, ask that the testimony be permitted “subject to connection.” Be sure to introduce the connecting evidence or you risk a motion to strike by opposing counsel.

  • If the witness is a child, is elderly, is hearing-impaired, does not speak English, or has difficulty remembering facts, ask the court’s permission to ask leading questions. Such questions help to focus both the witness and the narrative without being unduly suggestive. Demonstrate that your witness is unable to either recall or explain what happened without leading. You may need to lay a foundation for asking leading questions in such situations by [Schultz v. Third Ave R.R. Co., 89 N.Y. 242 (1882)]:

    • Establishing that the witness has relevant knowledge.

    • Demonstrating that the witness is unable to communicate in narrative form.

    • Establishing that a child or mentally-impaired witness has the ability to distinguish between truth and lying, or between right and wrong.

  • If you are allowed to lead a witness, limit leading as much as possible to focusing the witness, refreshing the witness’ recollection, or assisting the witness in communicating. If you put answers directly into the witness’ mouth, you and the witness may lose credibility.

Cases

Court discretion

Downs v. New York Central R.R. Co., 47 N.Y. 83 (1871). It was within the discretion of the judge to “suffer” leading questions; a judgment will not be reversed for an error in that respect.

Walker v. Dunspaugh, 20 N.Y. 170 (1859). The trial judge has discretion to determine under the circumstances of the case whether a question is leading.

Cope v. Sibley, 12 Barb. 521 (N.Y. 1850). The court has wide discretion to rule on the form of questions asked; its rulings will not be disturbed on appeal unless they result in harm. A witness’ attention may be called through leading questions on direct examination to subject, occasion, time, place, or person.

People v. Mudd, 184 A.D.2d 388, 585 N.Y.S.2d 364 (1st Dept.1992). A criminal conviction for sodomy cannot be based on leading questions posed to a child witness followed by perfunctory answers alone, especially where the capacity of the child to give sworn testimony was questionable at best and the trial court’s inquiry fell far short of that in another case in which it was held to be inadequate.

La Motta v. City of New York, 130 A.D.2d 627, 515 N.Y.S.2d 554 (2d Dept.1987). In a personal injury matter, the trial court may rephrase leading or otherwise improper questions.

Adverse witnesses

Becker v. Koch, 104 N.Y. 394, 10 N.E. 701 (1887). A plaintiff, in an action brought by plaintiff’s assignees for the benefit of creditors to recover possession of personal property, may use leading questions when examining a defendant, who justified the taking of the property by virtue of a writ of attachment issued by the sheriff of ErieCounty, as part of the plaintiff’s direct case.

Ostrander v. Ostrander, 280 A.D.2d 793, 720 N.Y.S.2d 635 (3rd Dept. 2001). In a Family Court case seeking modification of a custody order, the trial court did not abuse its discretion in sustaining objections to leading questions posed to an adverse witness. The witness answered the questions and did not seem evasive or reluctant and counsel made no effort to elicit the information through direct questions.

People v. Rozanski, 209 A.D.2d 1018, 619 N.Y.S.2d 441 (4th Dept. 1994). A prosecutor in a rape prosecution could use leading questions during direct examination of the defendant’s wife, who was a patently reluctant, hostile witness.

People v. Arhin, 203 A.D.2d 62, 609 N.Y.S.2d 604 (1st Dept. 1994). In a prosecution of a man for the brutal rape of his wife, a narrative of the attack could be elicited by leading questions posed to the wife, given her reluctance to testify because she had received word that the people back in Ghana did not want her to testify.

Acampora v. Acampora, 194 A.D.2d 757, 599 N.Y.S.2d 614 (2d Dept. 1993). In an action for personal injuries for failure to warn of a defect in a shotgun against the plaintiff’s father, it was not error to deny an application by the plaintiff to pose leading questions to the father, whom the plaintiff called as the first witness.

People v. Clark, 181 A.D.2d 1028, 586 N.Y.S.2d 538 (4th Dept.1992). A prosecutor could direct leading questions to a witness who was patently unwilling, reluctant, and hostile.

People v. Davis, 163 A.D.2d 826, 558 N.Y.S.2d 358 (4th Dept.1990). It was within the trial court’s discretion to designate a witness who was evasive before the grand jury and at trial as hostile for impeachment purposes.

Jordan v. Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept.1988). When an adverse party is called as a witness, that party is a hostile witness; direct examination may assume the nature of cross-examination through the use of leading questions.

People v. Marshall, 144 A.D.2d 1005, 534 N.Y.S.2d 623 (4th Dept.1988). A prosecutor could address leading questions to a witness who was obviously unwilling, reluctant, and hostile.

People v. Walker, 125 A.D.2d 732, 510 N.Y.S.2d 203 (2d Dept.1986). Leading questions may be asked of an obviously unwilling witness.

Segreti v. Putnam Community Hosp., 88 A.D.2d 590, 449 N.Y.S.2d 785 (2d Dept. 1982). It was prejudicial error on the part of the court in a medical malpractice case to refuse to treat an adverse witness, the defendant doctor, as hostile and to refuse to allow leading questions regarding treatment of plaintiff.

Cornwell v. Cleveland, 44 A.D.2d 891, 355 N.Y.S.2d 679 (4th Dept.1974). In a case involving a claim for wrongful death of a five year old, the trial court improperly limited the right of the plaintiff’s counsel to use leading questions when the plaintiff called the defendant motorist to testify as part of the plaintiff’s case.

W. v. D., 36 A.D.2d 455, 324 N.Y.S.2d 333 (4th Dept.1971). In a support proceeding, the trial court’s refusal to permit the petitioner’s attorney, who called the respondent and his father as witnesses, to lead those witnesses as hostile witnesses constituted reversible error.

Zilver v. Robert Graves Co., 106 A.D. 582, 94 N.Y.S. 714 (1st Dept. 1905). In a personal injury case involving a 15-year-old worker falling down an elevator shaft, it was permissible to use leading questions when a witness called by the plaintiff turned out to be adverse or hostile concerning material facts: the lighting at the time of the accident.

Children, elderly, non-English speaking, or mentally- or physically-challenged witnesses

People v. Gilley, 4 A.D.3d 127, 770 N.Y.S.2d 868 (1st Dept.2004). In a jury trial convicting defendant of sodomy and first degree sexual assault, court exercised proper discretion in allowing eleven-year-old victim, defendant’s daughter, to testify to prior uncharged crimes or immoral acts defendant committed against her to complete her narrative. Acts took place in homeless shelter and assisted jury in understanding context.

People v. Prado, 1 A.D.3d 533, 767 N.Y.S.2d 129 (2d Dept. 2003). Trial court’s involvement in examination of eleven-year-old complaining witness did not deprive defendant of a fair trial since court did not usurp prosecutor’s function. A trial judge possesses the discretion to become involved to the extent necessary to clarify issues and ensure the orderly and expeditious progress of the trial.

People v. Tyrell, 101 A.D.2d 946, 475 N.Y.S.2d 937 (3d Dept. 1984). It was proper for the prosecutor to pose leading questions and to show the eight-year old victim of a sex crime her prior written statement when she was apparently unwilling to testify freely at a probation-violation hearing.

People v. Greenhagen, 78 A.D.2d 964, 433 N.Y.S.2d 683 (4th Dept. 1980). Leading questions were appropriately posed by the prosecutor during direct examination of nine- and ten-year-old victims of sexual abuse in a rape-sodomy case where the children’s stepfather was the accused.

People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2d 171 (Sup. Ct.,KingsCounty, 1994). In a prosecution for rape and child abuse, “mildly leading” questions by an interviewer may be necessary to “open up a shy child,” but should not imply that the child, who did not admit to the abuse, is wrong or untruthful.

During cross-examination

People ex rel Phelps v. Court of Oyer and Terminer County of New York, 83 N.Y. 436 (1881). A party seeking to elicit new matter on cross-examination does not have the right to ask leading questions. As to that new matter, the witness becomes the cross-examiner’s own. Moreover, the court has the right to limit cross-examination.

People v. Dolan, 172 A.D.2d 68, 576 N.Y.S.2d 901 (3d Dept. 1991). Police officers called by the people in a bribery prosecution of a police chief could be impeached by the people, since the defendant’s cross-examination of the two officers exceeded the scope of direct.

§ 15:80 Narrative

Objection, Your Honor. The question calls for a narrative response.

Comments

Generally, counsel elicits testimony of witnesses by asking specific questions that call for specific answers. Trial courts may allow narrative testimony when the most efficient means of presenting testimony understandable to the jury is asking the witness to describe the event or tell the story. Psota v. Long Island R.R. Co., 246 N.Y. 388, 159 N.E. 180 (1927); Watson v. State of New York, 53 A.D.2d 798, 385 N.Y.S.2d 170 (3d Dept. 1976). However, such narrative testimony is usually restricted to preliminary matters, matters that are undisputed, or that orient the judge and jury to time and place.

Direct and redirect examination often elicit narrative responses. For example, some questions merely coax the witness along in the narrative, such as when counsel asks, “And then what happened?” In examining your own witness, questions calling for a narrative may focus the witness’ attention on major points, and may allow you to create an orderly scenario.

The danger of narrative testimony is that a witness may blurt out inadmissible matter and deprive opposing counsel of the opportunity to object before such testimony is given. Once the jury hears inadmissible evidence, your only remedies are to move to strike or request a mistrial.

The court has discretion in this area. Watson v. State of New York, 53 A.D.2d 798, 385 N.Y.S.2d 170 (3d Dept. 1976). Therefore, it is unwise to object to narrative testimony on preliminary matters — matters that are undisputed, that have been previously testified to, or that orient the trier of fact to time, place, or circumstance. For example, you may ask an expert witness to describe his or her credentials. Use of narrative testimony is often an efficient means of covering preliminary matters so that counsel can get to the major issues in the case. However, if there is a possibility that a witness giving a narrative answer will testify about an inadmissible matter or will describe events in an unduly prejudicial manner, an objection is warranted. For objections based on prejudice, see Ch. 6.

Objection Tactics

  • Where there is a likelihood that a narrative will contain inadmissible or highly prejudicial material, object on the ground that you will not be able to make timely objections to specific points.

  • Request a bench conference so as not to appear as though you want to prevent the jury from hearing something important.

  • If unduly prejudicial or otherwise inadmissible matter comes out, your only recourse may be to move to strike or for a mistrial.

Response to Objection

  • When you seek to have your witness testify in narrative form, assure the court that you have instructed the witness not to give inadmissible evidence.

  • Respond that the best way to understand what happened, and for the jury to evaluate the credibility of your witness, is to have the witness describe the events without interruption.

  • Assure the court and your opponent that narrative testimony will save time and will be limited to specific events.

Cases

People v. DePallo, 96 N.Y.2d 437, 729 N.Y.S.2d 649 (2001). It was appropriate to allow the defendant to testify in narrative form where he was determined to testify and counsel was unable to persuade him not to testify falsely. However, counsel did not refer to the testimony in his summation.

Psota v. Long Island R.R. Co., 246 N.Y. 388, 159 N.E. 180 (1927). Vague, undirected questions were permissible in a car accident case in which two children were injured. There is no set form for asking questions.

Watson v. State of New York, 53 A.D.2d 798, 385 N.Y.S.2d 170 (3d Dept.1976). Though narrative testimony is disfavored, the use of narrative testimony in addition to questions and answers was wholly within the discretion of the court in a personal injury case.

Altkrug v. Horowitz, 111 A.D. 420, 97 N.Y.S. 716 (2d Dept. 1906). Testimony of witnesses should be elicited by questions and answers to allow timely objections.

B. Objections During Cross-Examination

§ 15:90 Argumentative

Objection, Your Honor. Counsel is (arguing with) (browbeating) (badgering) the witness.

[or] Counsel is being argumentative.

Comments

Arguing with or badgering a witness is forbidden because it amounts to an improper attempt to change the witness’ testimony. People v. Rodriguez, 103 A.D.2d 121, 479 N.Y.S.2d 25 (1st Dept.1984). In essence, counsel attempts to give unsworn testimony. However, since most cross-examination — and some redirect examination — involves some argument, the court has wide discretion in ruling on this objection. Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751 (1980); Solow v. Wellner, 157 A.D.2d 459, 549 N.Y.S.2d 384 (1st Dept. 1990).

Counsel typically raise this objection on cross-examination. However, you may raise it on direct examination if your opponent calls an adversarial or hostile witness. On occasion, a frustrated attorney may even badger his or her own witness. This is a perfect opportunity for opposing counsel to object and make the point, in understated or bemused fashion, that counsel is arguing with his or her own witness.

Objection Tactics

  • This objection is particularly useful during cross-examination when your witness becomes flustered or begins arguing with opposing counsel. The objection may reassure your witness, and allow the witness time to compose himself or herself.

  • Characterizing the line of questioning as badgering or browbeating may promote sympathy from the jury for the witness.

Response to Objection

  • Apologize to the court and to the jury or rephrase the question in a more conciliatory fashion.

  • Justify your behavior by contending that the witness is uncooperative or unresponsive.

  • When the witness is argumentative or unresponsive, ask the judge to direct the witness to answer questions or to refrain from arguing with you. This deflects the objection away from you and focuses it on the witness’ behavior.

Cases

Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751 (1980). In a motor vehicle case involving the personal injury and wrongful death of a hitchhiker, the trial court did not abuse its discretion in curtailing argumentative and repetitive questioning during cross-examination.

People v. Rodriguez, 103 A.D.2d 121, 479 N.Y.S.2d 25 (1st Dept. 1984). Cross-examination of an expert should not be mean-spirited, nor should it be punctuated by ridicule or insult. However, though cross-examination of the defendant’s expert in a murder case went beyond the realm of legitimate advocacy, the questioning did not deprive defendant of a fair trial.

Thompson v. Green Bus Lines, Inc., 280 A.D.2d 468, 721 N.Y.S.2d 70 (2d Dept. 2001). A witness may not be impeached by a document that has a version of the facts that differs from the witness’ testimony where there is no evidence that the witness was the source of the information in the document.

§ 15:100 Beyond Scope of Direct Testimony

Objection, Your Honor. The question goes beyond the scope of (direct) (cross-) examination.

Comments

Civil cases

A party has a right to cross-examine adverse witnesses in every trial of disputed issue of fact. McNeill v. La Salle, 52 A.D.3d 407, 861 N.Y.S.2d 15 (1st Dept. 2008) (trial court erred in precluding cross-examination of personal injury plaintiff about his deposition testimony and his statement as to the reason that he lost the job he held at the time of the accident); Rosenthal v. Allstate Insurance Co., 248 A.D.2d 455, 670 N.Y.S.2d 862 (2d Dept. 1998); Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892 (1st Dept. 1996);see Schwartz v. 38 Town Assocs., 187 A.D.2d 377, 589 N.Y.S.2d 487 (1st Dept. 1992) (trial court properly granted request to strike direct testimony of witness who failed to return to court for cross-examination that had just begun).

New York generally follows the “American Rule,” which limits the scope of cross-examination to matters covered on direct examination.Provo v. Morehouse, 12 A.D.2d 668, 207 N.Y.S.2d 536 (3d Dept.1960). Nevertheless, trial courts have considerable discretion to permit cross-examination or redirect in any area in which counsel opens the door on direct or cross-examination. The court may also permit cross-examination when counsel raises a matter pertinent to a key issue that is outside the scope of direct, or when testing witness credibility. Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751 (1980); Friedel v. Board of Regents of University of the State of New York, 296 N.Y. 347, 73 N.E.2d 545 (1947).

In addition, cross-examination designed to impeach the credibility of an adverse witness by showing bad reputation for veracity, prior inconsistent statements, immoral acts, or felony convictions is always permissible in a civil matter. Stein v. Lebowitz-Pine View Hotel, Inc., 111 A.D.2d 572, 489 N.Y.S.2d 635 (3d Dept. 1985); for character and habit, see Ch. 8.

Theoretically, only matters brought up on the preceding cross-examination or redirect may be the subject of inquiry on succeeding redirect or recross. However, courts have substantial discretion when it comes to redirect and recross, and may deem the question to be a reopening of direct or cross. People v. Melendez, 55 N.Y.2d 445, 449 N.Y.S.2d 946 (1982); Benjamin v. Desai, 228 A.D.2d 764, 643 N.Y.S.2d 717 (3d Dept. 1996); Matter of Joshua, 216 A.D.2d 749, 628 N.Y.S.2d 827 (3d Dept.1995).

PRACTICE TIP

Be careful of making witness your own during cross-examination.

When cross-examination exceeds the scope of direct examination, the witness becomes the examiner’s witness, so that rules relating to impeachment of one’s own witness may be invoked. See CPLR 4514 (permitting any party to impeach any witness with prior inconsistent statement made under oath or in signed writing). In addition, some courts restrict the use of leading questions in this situation. See Bennett v. Crescent Athletic-Hamilton Club, 270 N.Y. 456, 1 N.E.2d 963 (1936) (plaintiff’s cross-examination beyond the direct examination resulted in making the witness plaintiff’s witness, and prevented plaintiff from impeaching the witness); Becker v. Koch, 104 N.Y. 394, 10 N.E. 701 (1887); Tarulli v. Salanitri, 34 A.D.2d 962, 312 N.Y.S.2d 55 (2d Dept. 1970). However, this is rare since such witnesses are usually “hostile.” Pierre-Louis v. Algoo, 226 A.D.2d 441, 640 N.Y.S.2d 598 (2d Dept.1996) (questions concerning personal injuries incurred in prior accident were relevant).

Criminal cases

Denial of the right to full cross-examination of prosecution witnesses may deprive the defendant of his or her constitutional right to cross-examine his or her accusers. People v. Waite, 52 A.D.3d 237, 859 N.Y.S.2d 162 (1st Dept.2008); People v. Baranek, 287 A.D.2d 74, 733 N.Y.S.2d 704 (2d Dept.2001); People v. Brinkworth, 112 A.D.2d 799, 492 N.Y.S.2d 309 (4th Dept. 1985); People v. Allen, 67 A.D.2d 558, 416 N.Y.S.2d 49 (2d Dept. 1979), aff’d 50 N.Y.2d 898, 430 N.Y.S.2d 588 (1980). Thus, New York follows the “English Rule” in criminal cases, permitting cross-examination on any relevant proposition, including facts relevant to the examiner’s affirmative case or defense. People v. Rufrano, 220 A.D.2d 701, 632 N.Y.S.2d 648 (2d Dept.1995); People v. Sanchez, 216 A.D.2d 207, 629 N.Y.S.2d 215 (1st Dept.1995).

Objection Tactics

  • Argue that the questioning has gone far beyond the scope of direct or cross-examination, and that your opponent is making the witness his or her own.

  • Argue that the purpose of limiting the scope of direct is to promote admission of evidence in a logical order. Testimony elicited beyond the scope of your direct examination properly belongs in your opponent’s direct case.

  • If the court allows the questioning to continue, request that the rules of direct examination apply.

  • If redirect or recross exceed the scope of the preceding inquiry, argue that the testimony belongs in another part of the trial or that the inquiry is repetitive.

Response

  • Request the court to exercise its considerable discretion to allow you to proceed with your inquiry.

  • Argue that your adversary has opened the door or that you will save considerable time and perhaps avoid having to call extra witnesses if you are allowed some latitude in questioning the witness.

  • If the objection is posed on redirect or recross, but the matter was not raised in the preceding inquiry, ask the court to deem your examination of the witness a reopening of direct or cross-examination.

Cases

People v. Melendez, 55 N.Y.2d 445, 449 N.Y.S.2d 946 (1982). A party may explain or clarify matters put in issue for the first time on cross-examination, but the court should normally exclude all evidence that has not been made necessary by the opponent’s case in reply.

Feblot v. New York Times Co., 32 N.Y.2d 486, 346 N.Y.S.2d 256 (1973). In a personal injury action involving the closing of an elevator door on a visiting masseuse and the injuring of her right shoulder, the trial judge committed reversible error in not allowing further testimony concerning a conversation between receptionist and safety coordinator who inspected the elevator. Plaintiff opened the door on cross-examination to the conversation; defendant should have been allowed to further explore on redirect.

Peters v. Gersch, 26 N.Y.2d 976, 311 N.Y.S.2d 20 (1970). Where which side of the highway a head-on collision had occurred was a close question, undue curtailment of cross-examination of an under-sheriff concerning his personal observations was prejudicial and grounds for reversal. The witness’ testimony could be inconsistent with prior testimony before the medical examiner. The cross-examination had not gone beyond the scope of direct examination.

Healy v. Rennert, 9 N.Y.2d 202, 213 N.Y.S.2d 44 (1961). The trial court should have sustained an objection to cross-examination concerning the witness’s membership in a health plan, since such cross-examination was both irrelevant and beyond the scope of direct examination. Proper cross-examination is restricted to matters brought out on direct.

Friedel v. Board of Regents of University of the State of New York, 296 N.Y. 347, 73 N.E.2d 545 (1947). The trial court may permit cross-examination on matters outside the subject matter of direct examination if such cross-examination is pertinent to the case. However, the court has discretion to restrict the scope of cross-examination.

Bennett v. Crescent Athletic-Hamilton Club, 270 N.Y. 456, 1 N.E.2d 963 (1936). If the trial court permits the cross-examining party to go beyond the scope of direct examination, the witness becomes the cross-examiner’s own witness, and the rules of direct examination govern. Plaintiff caught her foot on the curled corner of defendant’s carpet and injured herself. When plaintiff’s attorney repetitiously asked the waiter on cross-examination about a conversation allegedly made in the course of an interview in the presence of a law clerk six months after the accident, plaintiff made the witness his own and was bound by his answers. Plaintiff could not present contradictory evidence to impeach the waiter’s credibility.

Kings County Trust Co. v. Hyams, 242 N.Y. 405, 152 N.E. 129 (1926). The function of redirect is to rehabilitate the witness or to explain inconsistencies or facts disclosed on cross-examination. In an action to recover $10,000 that the defendant widow allegedly paid to herself by forging her late husband’s signature, cross-examination opened the door for the widow to answer questions as to how she came into possession of the check, notwithstanding the Dead Man’s Statute, which prohibits testimony regarding transactions with a decedent.

People v. Waite, 52 A.D.3d 237, 859 N.Y.S.2d 162 (1st Dept. 2008). Allowing undercover officers to identify themselves solely by shield number constituted a denial of right to cross-examination and constituted reversible error.

Guthrie v. Overmyer, 19 A.D.3d 1169, 797 N.Y.S.2d 203 (4th Dept. 2005). In a motor vehicle accident case, cross-examination of plaintiff’s expert concerning prior back or neck injury that allegedly resulted in permanent partial disability was proper impeachment where plaintiff testified on direct examination that he was not suffering from any disabilities prior to the accident. By testifying as he did, plaintiff put his physical condition prior to the accident at issue.

Goff v. Paul, 8 A.D.3d 971, 778 N.Y.S.2d 609 (4th Dept. 2004). In medical malpractice case, limitation on patient’s attempt to elicit opinion testimony on cross-examination from a physician who was called as a fact witness was properly within the court’s discretion.

American Motorists Ins. Co. v. Schindler Elevator Corp., 291 A.D.2d 467, 739 N.Y.S.2d 388 (2d Dept. 2002). In a breach of contract action, cross-examination regarding plaintiff’s continued contractual relationship with the defendant after the breach was irrelevant to whether the breach occurred.

People v. Baranek, 287 A.D.2d 74, 733 N.Y.S.2d 704 (2d Dept.2001). It was improper not to allow the defense to cross-examine the complaining witness about her prior psychiatric history, including her mental illness involving delusions. A defendant’s right to be heard includes the right to offer evidence that the infirmity of a crucial witness affects the witness’s ability to perceive and recall events.

Rosenthal v. Allstate Insurance Co., 248 A.D.2d 455, 670 N.Y.S.2d 862 (2dDept. 1998). Where defendant insurance company alleged that the plaintiff filed a false insurance claim, the trial court erred in refusing to allow defense attorney to cross-examine plaintiff regarding other false claims made, since the questions were relevant to motive and intent.

People v. Sanchez, 216 A.D.2d 207, 629 N.Y.S.2d 215 (1st Dept. 1995). The purpose of redirect is to explain, clarify, and fully elicit issues only partially explored or brought out on cross-examination. Because cross-examination of police officers, who had not been prosecuted in connection with the shooting of a murder suspect, was the subject of police and grand jury investigation, exploration of the circumstances of the suits filed by the officers could be explored on redirect examination.

Matter of Joshua, 216 A.D.2d 749, 628 N.Y.S.2d 827 (3d Dept. 1995). Permitting rebuttal evidence is within the discretion of the court. Thus, the trial court was justified in permitting such evidence in a case involving a petition by a grandfather and step grandmother to adopt a child where the mother had not visited the child for six months.

Sitaras v. James Ricciardi & Sons, Inc., 154 A.D.2d 451, 545 N.Y.S.2d 937 (2dDept. 1989). Though reversal was not required, the trial court erred in not allowing the plaintiff to testify on redirect that statements made at an examination before trial may have resulted from a language misunderstanding.

Pullo v. Stern, 175 A.D.2d 554, 572 N.Y.S.2d 810 (3d Dept. 1991). In a personal injury motor vehicle case, it was within the trial court’s discretion to refuse to admit rebuttal evidence to show that the defendant’s trial testimony was inconsistent with a statement made to the police officer at the time of the accident.

Abrams v. Gerold, 37 A.D.2d 391, 326 N.Y.S.2d 1 (1st Dept. 1971). In a motor vehicle case involving an intersection collision, a witness may testify on redirect to prior statements indicating that the witness had reported to the police officer on the day of the accident regarding who had run the red light, after opposing counsel attacked the witness by implying that the witness’ testimony was a recent fabrication.

Tarulli v. Salanitri, 34 A.D.2d 962, 312 N.Y.S.2d 55 (2d Dept. 1970). The defendant, who cross-examined a police officer witness as to matters not brought up on direct, made the witness his own and was thus bound by his answers and could not impeach the witness’ credibility.

§ 15:110 Prior Criminal Conviction

Objection, Your Honor. Evidence of a (prior conviction) (bad act) of this witness (is irrelevant) (would confuse the jury) (would involve time-consuming trial of a collateral issue).

[or] The prior conviction is (over 10 years old) (for a crime that does not show defendant’s propensity to put his or her own interests above that of society).

Comments

Admissibility of prior convictions in civil cases

A past criminal conviction does not render a witness incompetent, nor does it disqualify a witness from testifying in any matter. See CPLR 4513 (person convicted of crime competent to testify).

However, on cross-examination, counsel may use a witness’ past conviction to impeach the witness’ credibility. See CPLR 4513. There is no limitation on admissibility of prior convictions of a witness for purposes of impeachment. See CPLR 4513; Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249 (1990) (rule precluding admission of impeachment evidence as to collateral matters is subject to discretion of trial court); Sauer v. Diaz, 300 A.D.2d 1136, 753 N.Y.S.2d 631 (4th Dept. 2002).

Both the conviction itself and the circumstances surrounding it are admissible. CPLR 4513; Frank v. McCutcheon, 29 A.D.3d 470, 816 N.Y.S.2d 680 (1st Dept. 2006); Morgan v. National City Bank, 32 A.D.3d 1264, 822 N.Y. S.2d 201 (4th Dept.2007); Able Cycle Engines v. Allstate Ins. Co., 84 A.D.2d 140, 445 N.Y.S.2d 469 (2d Dept. 1981).

The court also has discretion to allow cross-examination of a witness for the purpose of impeaching credibility as to “prior bad acts,” as long as there is a good faith basis for such questions. Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249 (1990);Shainwald v. Barasch, 29 A.D.3d 337, 814 N.Y.S.2d 156 (1st Dept.2006); Shinder v. Altorki, 309 A.D.2d 799, 765 N.Y.S.2d 522 (2d Dept.2003); Kleimann v. St. Peter’s Hosp., 298 A.D.2d 675, 748 N.Y.S.2d 814 (3d Dept. 2002); Simon v. Indursky, 211 A.D.2d 404, 630 N.Y.S.2d 2 (1st Dept. 1995). However, bad faith questioning about a witness’ prior bad acts may constitute reversible error. Dance v. Town of Southampton, 95 A.D.2d 442, 467 N.Y.S.2d 203 (2d Dept.1983).

Criminal cases

The court may hold a pretrial hearing on the request of defense counsel to determine if the prior conviction implicates the witness’s credibility. The defendant has the burden of showing that prejudice caused by admitting the conviction will outweigh the probative value of the evidence with respect to credibility. CPL § 60.40; People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974); People v. Grant, 7 N.Y.3d 421, 823 N.Y.S.2d 757 (2006) aff’d 23 A.D3d 172 (1st Dept. 2005) (trial court’s ruling permitting prosecution to elicit all of defendant’s six prior contempt convictions was an improvident exercise of discretion). Some courts do not allow introduction of the conviction for impeachment purposes if the conviction is:

  • Ten years old or older.

  • For a crime that, in the court’s determination, does not show a propensity to put one’s own interests above that of society. [People v.Davis, 44 N.Y.2d 269, 405 N.Y.S.2d 428 (1978); People v. Tirado, 192 A.D.2d 755, 596 N.Y.S.2d 183 (3dDept. 1993)]

There is no similar right to a pretrial hearing in civil cases.

Objection Tactics

Direct examination of own witness

  • File a motion in limine to limit the scope of the opposition’s interrogation concerning the crime. Argue that the prejudice to your client substantially outweighs any probative value of the jury hearing details of the crime.

  • If the court denies your motion, bring out the conviction as soon as possible during your direct examination of the witness. If you do not, your adversary will certainly reveal it during cross-examination.

  • Ask the witness to explain the circumstances of the conviction in as favorable a light as possible. For instance, if the witness received probation or a suspended sentence or performed community service, bring that fact to light.

Cross-examination of opposition witness

  • Consider the appropriate timing strategy. You may want to:

    • Question the witness about the criminal conviction at the beginning of cross-examination to condition the jury’s attitude toward the testimony that follows.

    • Save the question about the conviction until it makes the greatest impact.

  • Be prepared with a certified copy or other admissible record of the conviction, in case the witness denies the conviction, dissembles, or attempts to avoid answering.

  • Bad faith questioning about prior bad acts may constitute reversible error. Dance v. Town ofSouthampton, 95 A.D.2d 442, 467 N.Y.S.2d 203 (2dDept. 1983). However, the court may permit you to persist in questioning the witness if the court is convinced you are acting in good faith.

Response

Direct examination of own witness

  • If the party offering the witness moves in limine to limit questioning about the crime, argue that witness credibility is always at issue, and that CPLR 4513 requires the court to allow full inquiry.

  • If the conviction was for a crime involving dishonesty, make sure you point this out.

  • Ask for permission to question the witness about the underlying circumstances of the crime and to elicit details if necessary.

  • Assure the court that your questions regarding the witness’ past crime will be brief and will not cause undue delay of the trial.

  • You are not bound by the witness’ answers to questions about his or her prior conviction. If the witness denies the conviction, dissembles, or attempts to avoid answering, you may impeach the witness with a certified copy or other admissible record of the conviction. See CPLR 4513 (proof of conviction may be made through record as well as by cross-examination).

Cross-examination of opposition witness

  • Request an in limine instruction limiting the scope of inquiry concerning the crime. Argue that the prejudice to your client substantially outweighs any probative value of the jury hearing details of the crime.

  • If your witness was convicted of a crime, establish the fact early and explain the circumstances. If the witness received probation or a suspended sentence, bring that fact to light.

  • If your client has not been convicted of any charge brought, make certain that no reference is made to the fact that a charge was brought.

Cases

Civil cases

Cohens v. Hess, 92 N.Y.2d 511, 683 N.Y.S.2d 161 (1998). In a civil personal injury case, a withdrawn guilty plea is admissible for impeachment purposes. Here, defendant withdrew the guilty plea to a violation three years after the accident during the pendency of the civil case.

Morgan v. National City Bank, 32 A.D.3d 1264, 822 N.Y. S.2d 201 (4th Dept. 2007). In an automobile negligence case, defense counsel could question plaintiff about prior conviction for driving while intoxicated for purpose of impeaching credibility.

Davis v. McCullough, 37 A.D.3d 1121, 829 N.Y. S.2d 388 (4th Dept.2007). Court did not abuse discretion by curtailing cross-examination of defense witness concerning prior criminal convictions because credibility was not at issue. Witness offered no evidence concerning negligence.

Shainwald v. Barasch, 29 A.D.3d 337, 814 N.Y.S.2d 156 (1st Dept. 2006). Defense counsel could cross-examine treating physician concerning underlying facts of guilty plea to a harassment violation related to touching and lewd comments to a nurse.

Frank v. McCutcheon, 29 A.D.3d 470, 816 N.Y.S.2d 680 (1st Dept. 2006). In a personal injury case, plaintiff was properly impeached by her prior conviction, the underlying facts, and her violation of probation. Affidavits submitted by physicians on plaintiff’s behalf in connection with her prior litigation, which asserted facts at variance with her present trial testimony could be introduced as admissions.

Cruz v. Long Island Rail Road Co., 17 A.D.3d 397, 793 N.Y.S.2d 117 (2d Dept. 2005). Exclusion of evidence of plaintiff’s prior conviction in a FELA personal injury action was harmless error although it had been properly offered for impeachment and should have been allowed.

Shinder v. Altorki, 309 A.D.2d 799, 765 N.Y.S.2d 522 (2d Dept. 2003). In a medical malpractice case, cross examination of plaintiff’s expert regarding the circumstances under which the expert left employment of New YorkPresbyterianHospitalwas permissible where the questioning was narrowly tailored to the issue of the witness’s credibility and his potential bias or hostility toward PresbyterianHospital.

Sauer v. Diaz, 300 A.D.2d 1136, 753 N.Y.S.2d 631 (4th Dept. 2002). In an intersection collision case, lower court erred in failing to recognize that it had discretion to permit the use of a prior conviction for driving while under the influence of alcohol to impeach the credibility of a testifying party.

Kleimann v. St. Peter’s Hosp., 298 A.D.2d 675, 748 N.Y.S.2d 814 (3d Dept. 2002). In a medical malpractice action, during cross examination of plaintiff’s wife, defendant was permitted to ask whether the witness had previously engaged in an altercation with a nurse at Albany County Nursing Home, allegedly twisting the nurse’s hand and arm causing personal injury. “It is axiomatic that a witness may be cross-examined about any immoral, vicious or criminal act that tends to impeach her credibility, provided there is a good faith basis for such inquiry.” The record here demonstrated a good faith basis.

Jones v. Fraser, 265 A.D.2d 773, 698 N.Y.S.2d 57 (3rd Dept. 1999). Defendant’s guilty plea, together with testimonial evidence regarding how the accident occurred, was sufficient to meet plaintiff’s burden of demonstrating entitlement to summary judgment on the issue of liability.

Vernon v. New York City Health and Hospitals Corp., 167 A.D.2d 252, 561 N.Y.S.2d 751 (1st Dept.1990). Criminal convictions are admissible for impeachment purposes in civil cases under CPLR 4513.

Dance v. Town of Southampton, 95 A.D.2d 442, 467 N.Y.S.2d 203 (2d Dept.1983). In a negligence action involving a rear end motor vehicle collision, where there was no evidence showing that a witness had previously been convicted, continued questioning suggesting prior convictions or bad acts was in bad faith and constituted reversible error. A good faith inquiry concerning specific immoral acts would have been permissible if there were a reasonable factual basis for such an inquiry. However, admitting testimony about failure to report prior knee operations, and testimony that implied that plaintiff had been convicted of a crime for which there was no evidence, created reversible error.

Able Cycle Engines v. Allstate Ins. Co., 84 A.D.2d 140, 445 N.Y.S.2d 469 (2d Dept. 1981). The circumstances surrounding a conviction in another jurisdiction, as well as the fact of the conviction, are admissible.

Landt v. Kingsway Equipment Leasing Corp., 159 N.Y.S.2d 453 (Sup. Ct., QueensCounty, 1956), aff’d 4 A.D.2d 785, 165 N.Y.S.2d 715 (2d Dept.1957). In a personal injury case arising from a collision between a truck and an automobile, it was prejudicial error to ask the operator of the vehicle whether he was served with a summons for a traffic violation arising out of the accident, and to repeat the question to the operator’s wife who was not in the vehicle at the time, where there was no evidence of a conviction.

Roe v. Doe, 160 Misc.2d 1074, 612 N.Y.S.2d 558 (Sup. Ct., New YorkCounty, 1994). In medical malpractice case by parents in connection with the birth of a child, it was reversible error to pose cumulative questions to the physician regarding disciplinary proceedings and license suspension for the unauthorized placement of a child for adoption, where there was already evidence that the physician had been convicted of a crime for the same transgression.

Evans v. Willson, 133 Misc.2d 1079, 509 N.Y.S.2d 296 (Civ. Ct., New York County, 1986). In a hit-and-run case, the trial court properly ruled, after holding a hearing, that counsel for the plaintiff could ask the defendant if he had ever been convicted of a misdemeanor but not what the misdemeanor was, since it involved a prior hit and run and drunk driving incident.

Criminal cases

People v. Johnson, 46 A.D.3d 276, 847 N.Y.S.2d 74 (1st Dept. 2007). A robbery defendant may be cross-examined and impeached based on her attorney’s statements made during a prior bail application.

People v. Scott, 47 A.D.3d 1016, 849 N.Y.S.2d 335 (3d Dept. 2008). In a first degree murder case, prosecutor’s cross-examination of defendant concerning his statements to a reporter in which he denied involvement in a hit and run accident when, in fact, he had pled guilty to leaving the scent of an accident was not improper in that such statements were relevant to his truthfulness and honesty.

People v. Miller, 91 N.Y.2d 372, 670 N.Y.S.2d 978 (1998). An Alford plea may be a basis for impeaching a witness defendant’s credibility.

People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261 (1981). Defendants’ statements that they had a place for disposing of the bodies of murder victims was admissible since its probative value as to the premeditation of the murder and the plan of conspiracy outweighed any prejudice concerning the implicit admission that defendants had committed other murders for which they had not been charged. Though it was error to admit other parts of the statement, their admission was cumulative and thus harmless.

People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974). Though criminal defendants have a right to request a pretrial ruling on the limits of questioning regarding prior convictions, the defendant has the burden of proving that prejudice will outweigh probative value.

People v. Santiago, 15 N.Y.2d 640, 255 N.Y.S.2d 864 (1964). There must be an actual conviction, not merely a trial resulting in acquittal.

People v. Redman, 275 A.D.2d 658, 713 N.Y.S.2d 856 (1st Dept. 2000). Defendant opened the door to evidence that had previously been precluded by a Sandoval ruling by giving the jury a misleading impression in his direct testimony of the nature of certain property at the time of his arrest. The court thus properly modified its ruling to permit cross-examination on that subject to impeach defendant’s credibility.

C. Objections During Direct or Cross-Examination

§ 15:120 Asked and Answered

Objection, Your Honor. That question has been asked and answered.

[or] Counsel has asked the same question[number] times.

Comments

In general, repeating a question on direct or cross examination, whether to elicit favorable testimony or to emphasize an important point, is permissible as long as it does not unduly prolong a trial. People v. Lustig, 206 N.Y. 162, 99 N.E. 183 (1912). Frequently, repeating the same question on cross-examination will elicit a slightly different or more complete answer. A witness who claims not to have known the answer may suddenly become knowledgeable.

However, the trial court is more likely to sustain an objection on cross-examination, where repetitiousness may appear to be badgering or to encourage or “trap” the witness into changing his or her testimony. Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751 (1980); for badgering of witnesses, see § 15:90. Similarly, in a multi-party case, the court may sustain an objection to a question asked by one defendant’s counsel where another defendant’s counsel has already asked the same question.

PRACTICE TIP

Even if overruled, an objection alerts the witness.

Objecting may remind the witness that he or she has already answered the question, and may alert the witness to be careful to give a consistent answer.

Objection Tactics

  • Emphasize the fact that your opponent is wasting the court’s and jury’s time.

  • If the pattern of repetition persists, request a bench conference.

Response to Objection

  • Ask to approach the bench. Explain that your questions are designed to clarify or to further elucidate prior testimony.

  • Indicate that your questions are designed to refresh the witness’ faulty recollection.

  • Demonstrate that your questions are preliminary foundation questions for further areas of inquiry. For example, you may begin a line of cross-examination inquiry by stating, “Mr. Smith, is it your testimony that the light was red when my client entered the cross walk?” Assuming an affirmative answer, then proceed with, “For how long was the light red?”

  • Remind the court that latitude is permissible on cross-examination. Ordinarily, the court will allow repetition on cross-examination so long as counsel does not abuse the practice.

Cases

Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751 (1980). While the court may not deprive a party of the right to inquire into matters directly relevant to principal issues in the case, it may in the proper exercise of discretion restrict inquiry into collateral matters or prohibit unnecessary repetitive examination. Here the court properly controlled cross-examination designed to challenge a witness’ credibility.

Friedel v. Board of Regents of University of the State of New York, 296 N.Y. 347, 73 N.E.2d 545 (1947). An administrative hearing officer, like a trial court, has a right to prohibit unnecessary, repetitive cross examination.

People v. Lustig, 206 N.Y. 162, 99 N.E. 183 (1912). One purpose of cross-examination is to test the witness’ memory and veracity or credibility. Thus, the trial court erred in precluding counsel from asking the same question on cross-examination that the witness answered on direct.

Moyer v. New York Central & Hudson River R.R. Co., 98 N.Y. 645 (1885). The trial court did not err in refusing to allow needless repetition of the same question to the same witness.

In the Matter of Anibal P. (Anonymous), 234 A.D.2d 298, 651 N.Y.S.2d 311 (2d Dept. 1996). The court properly sustained a cross-examination question objected to on an “asked and answered” basis where defense counsel questioned the witness about the statement “I don’t want to hurt you” after he had already had questioned the witness about the statement “I don’t want to have to hurt you.”

Groht v. Sobol, 198 A.D.2d 679, 604 N.Y.S.2d 279 (3d Dept. 1993). In an Article 78 proceeding to review a determination of the Commissioner of Education revoking a teacher’s teaching certification, the administrative officer properly sustained objections where the testimony sought to be elicited would have been redundant, since similar questions had been asked and answered by the witness.

§ 15:130 Assuming Facts Not in Evidence

Objection, Your Honor. The question assumes facts not in evidence.

Comments

Questions that assume facts not already introduced into evidence require immediate objection because they may be very misleading. Spenseri v. Lasky, 258 A.D.2d 754, 685 N.Y.S.2d 821 (3d Dept. 1999), affd 94 N.Y.2d 231, 701 N.Y.S.2d 689; Miceli v. Geico Properties, Inc., 215 A.D.2d 461, 626 N.Y.S.2d 266 (2d Dept. 1995); Mohr v. Long Island Lighting Co., 51 A.D.2d 1053, 381 N.Y.S.2d 697 (2d Dept. 1976). Questions that assume facts not in evidence or personally known to the witness may also confuse witnesses and may cause them to appear needlessly evasive. Finally, using such questions may introduce otherwise inadmissible hearsay. Interstate Cigar Co., Inc. v. Dynaire Corp., 176 A.D.2d 699, 574 N.Y.S.2d 789 (2d Dept. 1991); for hearsay, see Ch. 5.

PRACTICE TIP

Don’t assume too many facts in a hypothetical question.

Questions that begin, “If I were to tell you that . . . .” or “Assume the following facts . . . .” are typical hypothetical questions or questions subject to connection that may contain facts not in evidence. Courts do not like questions of this sort, particularly when there are many assumed facts, and are likely to sustain an objection on this basis, or to at least ask counsel to rephrase or break down the question into its component parts. For expert witnesses, see Ch.16.

These questions are particularly dangerous when posed to expert witnesses, because jurors may assume there has been testimony or evidence concerning such facts and they have forgotten it or that facts actually in controversy are undisputed. Questions to an expert need not be posed in hypothetical form, nor need expert witnesses give the basis for an opinion before rendering it. However, experts may be required to give the basis for an opinion on cross-examination. CPLR 4515. Moreover, an expert’s opinion must be based on facts either in the record or personally known to the expert. De Wall v. Owl Homes of Victor, 213 A.D.2d 977, 624 N.Y.S.2d 482 (4th Dept.1995).

CAUTION

Request an instruction to disregard.

If an objection on this basis is not timely made, or if cross-examination reveals that an expert’s opinion is based on facts not in evidence, you must request the court to instruct the jury to disregard the expert’s opinion and to strike the testimony from the record. Failure to do so may result in waiver of this objection. See Miceli v. Geico Properties, Inc., 215 A.D.2d 461, 626 N.Y.S.2d 266 (2d Dept. 1995).

Objection Tactics

  • Object vociferously to questions that assume facts not in evidence.

  • Scrutinize any long question carefully. Even if the facts are in evidence, argue that the question is really a summation and should not be allowed.

  • If the court overrules your objection, ask to approach the bench to explain the seriousness of your objection, or why certain facts are not in evidence or are seriously disputed and should not be the basis of a hypothetical question.

  • If the court sustains your objection, seek a curative instruction concerning the particular facts not in evidence.

  • Consider asking for an admonition as well, both to emphasize the inaccuracy of the assumptions and to cast your adversary in an unfavorable light.

  • If your adversary assures the court that he or she will introduce evidence establishing the disputed or unfounded facts, and your adversary does not establish the facts, remember to move to strike the testimony before summations.

  • If the conclusions drawn by the witness are sufficiently prejudicial, consider moving for a mistrial.

Response to Objection

  • If possible, let the judge know at the beginning of the session or the day before so as to give him or her time to think about presentation of the question.

  • Lay your foundation before asking hypothetical questions. If the foundation facts are commonly known or the conclusion is commonly known, lay witnesses may be asked questions that are subject to connection.

  • If the assumptions are not significant, offer to change or omit them.

  • If you are unable to avoid asking a conditional question that is subject to connection with evidence to be established, be absolutely certain you will be able to make the connection.

    • Make an offer of proof, preferably outside the presence of the jury.

    • If you are certain you will establish the foundation, assure the court that valid testimony or evidence will corroborate your assumptions.

Cases

Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751 (1980). In a personal injury wrongful death action, it was proper to exclude testimony of an expert as to the cause of skid marks when there was no evidence about skid marks and thus no foundation for the opinion.

People v. Arce, 42 N.Y.2d 179, 397 N.Y.S.2d 619 (1977). Though a prosecutor asked questions in testimonial rather than interrogational form, thus introducing inadmissible evidence and forcing the trial judge to repeatedly sustain objections and give curative instructions, the judge’s exposition to the jury dissipated the effect of unanswered questions sufficiently to avoid reversal.

Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410, 322 N.Y.S.2d 665 (1971). In a personal injury products liability action brought by a novice skier, an expert was properly permitted to give an opinion in response to a hypothetical question concerning the cause of the malfunction — failure to release ski bindings — where the facts were fairly inferable from the evidence.

People v. Slover, 232 N.Y. 264, 133 N.E. 633 (1921). Because of its misleading nature, a question assuming the truth of a fact in controversy, such as a criminal act, may not be put to a witness. However, the trial court avoided reversible error by immediately rephrasing the question, “How about the brooch you stole . . . ?” to “Did you steal a brooch?”

Fernandes v. Allstate Insurance Co., 305 A.D.2d 1065, 758 N.Y.S.2d 729 (4thDept. 2003). In a case involving insurance coverage for collapse of roof, court correctly precluded expert from testifying as to his opinion as to cause of collapse because the opinion was neither based on facts in the record nor those personally known to the witness. An expert cannot base an opinion on an assumption of facts not supported by the evidence.

Spenseri v. Lasky, 258 A.D.2d 754, 685 N.Y.S.2d 821 (3d Dept. 1999), affd 94 N.Y.2d 231, 701 N.Y.S.2d 689. In a medical malpractice case, it was improper to ask a physician on cross examination whether it was proper to prescribe medication without first arriving at a diagnosis because there was no support or basis in the record for asking the question.

Gathers v. New York CityTransit Authority, 242 A.D.2d 506, 662 N.Y.S.2d 493 (1st Dept. 1997). Since plaintiff did not testify about the speed of the train involved in the accident, and there was no evidence about the speed, the expert’s opinion that defendant was negligent was speculative and assumed material facts not in evidence.

Guldy v. Pyramid Corp., 222 A.D.2d 815, 634 N.Y.S.2d 788 (3d Dept. 1995). An expert’s opinion can have no greater probative value than the facts or data on which it is based. Thus, an expert’s opinion that there should have been a yellow line where the shopping mall changed from macadam to gravel, based on practices of three shopping malls in the area, did not provide a sufficient basis for the opinion.

Miceli v. Geico Properties, Inc., 215 A.D.2d 461, 626 N.Y.S.2d 266 (2d Dept. 1995). Where the facts forming the basis of the expert’s opinion were neither personally known nor in the record, the expert’s opinion was properly excluded, and the verdict in favor of another defendant in the personal injury action properly upheld.

De Wall v. Owl Homes of Victor, 213 A.D.2d 977, 624 N.Y.S.2d 482 (4thDept. 1995). In a case involving an award of $2,000 plus costs, disbursements, and interest for faulty installation of a mobile home, the trial court correctly admitted an expert opinion based on facts that were either personally known to the expert after performing an inspection or that were in the record.

Interstate Cigar Co., Inc. v. Dynaire Corp., 176 A.D.2d 699, 574 N.Y.S.2d 789 (2dDept. 1991). An architect’s opinion to the effect that air conditioners were not properly attached to a roof by means of steel supports, which in turn caused the roof to deflate and leak, was inadmissible because it was based on facts not in the record or within the architect-expert’s personal knowledge. An expert may not draw a conclusion based on speculation.

Lopato v. Kinney Rent-A-Car, Inc., 73 A.D.2d 565, 423 N.Y.S.2d 42 (1st Dept. 1979). Where cross-examination revealed that an expert’s medical opinion was based on facts not in evidence or not personally known to the physician, the trial court erred in failing to strike all of the expert’s testimony.

Mohr v. Long Island Lighting Co., 51 A.D.2d 1053, 381 N.Y.S.2d 697 (2dDept. 1976). An expert’s conclusion that fires were caused by the defendant’s negligence was improperly admitted because the opinion was based on unwarranted assumptions or on facts neither in evidence nor personally known to the witness.

§ 15:140 Unresponsive

Objection, Your honor. The answer is not responsive. I move to strike.

Comments

An unresponsive answer is one that does not address the question or that goes off on a tangent. In addition, such questions may well disclose damaging or inadmissible evidence. This objection, followed by a motion to strike, is frequently made by the cross-examining attorney during cross-examination. People v. Budd, 198 A.D.2d 854, 604 N.Y.S.2d 423 (4th Dept. 1993). However, it may also be made on direct examination by counsel for either side.

In response to an “unresponsive” objection, the judge may ask counsel to repeat the question to focus the witness, or may overrule or sustain the objection depending on how far afield the witness has gone. Brockway v. Monroe, 59 N.Y.2d 179, 464 N.Y.S.2d 410 (1983). The court should strike unresponsive answers, and should tell the jury to disregard any stricken testimony. People v. Parker, 46 A.D.2d 699, 360 N.Y.S.2d 99 (3d Dept. 1974); Raisler v. Benjamin, 133 A.D. 721, 118 N.Y.S. 223 (1st Dept. 1909).

PRACTICE TIP

Think before objecting on this basis.

Courts may find this objection annoying if not used properly, or if the witness’ answer was indeed responsive or otherwise probative. However, if the court grants the objection, request that the unresponsive testimony be stricken from the record. The court usually appreciates a reminder as to the necessity of making a clear ruling on the record striking the unresponsive testimony. See Raisler v. Benjamin, 133 A.D. 721, 118 N.Y.S. 223 (1st Dept. 1909).

Objection Tactics

  • Theoretically, only the attorney questioning the witness should make this objection, inasmuch as he or she is the one seeking the information. However, since both or all sides usually have a interest in an orderly presentation of admissible evidence, any party may interpose the objection.

  • This is a particularly good objection when the witness offers damaging testimony that in any way exceeds the scope of the question. However, you run the risk that the jury will think you are trying to hide something or will think you are being rude or discourteous to the witness. Thus, object promptly but unobtrusively and try not to appear as though you are preventing the witness from telling a coherent story.

  • Make certain that the judge rules on your motion to strike and tells the jury to disregard stricken testimony.

Response

  • If your witness has been responsive, ask the court to permit the witness to continue.

  • If your witness has not been responsive, repeat and possibly rephrase the question so as to elicit a responsive answer.

  • If your witness has something relevant to say, tailor the question to the answer that the witness wishes to give.

  • If your adversary makes this objection frequently, request a bench conference and ask the judge to admonish counsel concerning the impropriety of the objection.

Cases

Graubard Mollen Dannett & Horowitz v. Moskovitz, 204 A.D.2d 218, 612 N.Y.S.2d 39 (1st Dept.1994). In a breach of contract-breach of fiduciary duty case brought by a law firm against a former partner, the trial court properly refused to strike allegedly unresponsive answers since they explained ultimate answers.

People v. Budd, 198 A.D.2d 854, 604 N.Y.S.2d 423 (4th Dept.1993). A statement at trial by a co-defendant that “Rondel was in jail at the time” was unresponsive to the question asked, but the court’s prompt instruction to the jury cured the error.

People v. Rivera, 172 A.D.2d 1059, 569 N.Y.S.2d 316 (4th Dept. 1991). Though the trial court erred in a murder case by failing to strike a police officer’s unresponsive answer to counsel for the co-defendant’s questioning, the error was harmless because proof of the defendant’s guilt was overwhelming, and there was no significant probability the jury would have acquitted the defendant but for this error.

People v. Hernandez, 162 A.D.2d 549, 556 N.Y.S.2d 740 (2d Dept. 1990). In a murder case, the defendant’s response to the prosecutor’s question whether the defendant had planned the robbery on the day in question that he had “never been incarcerated for robbery,” though unresponsive, opened the door to further inquiry regarding the robbery.

§ 15:150 Conclusion or Opinion Sought

Objection, Your Honor. The question calls for (a conclusion) (an opinion).

[or] The witness is not qualified to give (a conclusion) (an opinion).

[or] The question calls for expert testimony.

Comments

As a general rule, trial court judges confine lay witnesses to testimony concerning facts or observations. Giraldez v. City of New York, 214 A.D.2d 461, 625 N.Y.S.2d 517 (1st Dept.1995); People v. Russell, 165 A.D.2d 327, 567 N.Y.S.2d 548 (2d Dept.1991), aff’d 79 N.Y.2d 1024, 584 N.Y.S.2d 428 (1992).

Unlike expert witnesses, lay witnesses are precluded from drawing conclusions or offering opinions, particularly with respect to “ultimate issues” in a case, such as whether a particular course of conduct was necessary, reasonable, proper, or dangerous. To permit such testimony from lay witnesses would invade the province of the jury. M. La Penta v. Loca-Bik Ltee Transport, 238 A.D.2d 913, 661 N.Y.S.2d 132 (4th Dept. 1997); Hitchcock v. Best, 247 A.D.2d 769, 669 N.Y.S.2d 419 (3d Dept. 1998) (plaintiff tenant could testify about tenant’s oral agreement to make basic repairs but not whether the repair which would have prevented the accident was one of the repairs landlord should have made); for expert witnesses, see Ch. 16.

However, separating observation from opinion is often difficult. A long-standing rule permits lay persons to give opinion evidence only when the subject matter of the testimony is such that it would be impossible to accurately describe the facts without stating an opinion or impression. People v. Russell, 165 A.D.2d 327, 567 N.Y.S.2d 548 (2d Dept.1991), aff’d 79 N.Y.2d 1024, 584 N.Y.S.2d 428 (1992); Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d Dept. 1985). Thus, for instance, lay witnesses may identify an individual portrayed in a photograph where that individual is known to the witness. People v. Russell, 165 A.D.2d 327, 567 N.Y.S.2d 548 (2d Dept. 1991), aff’d 79 N.Y.2d 1024, 584 N.Y.S.2d 428 (1992).

Lay witnesses may also be permitted to testify to conclusions when there is an adequate basis for the perception, and the conclusion will assist the trier of fact. Shpritzman v. Strong, 248 A.D.2d 524, 670 N.Y.S.2d 50 (2d Dept. 1998) (a lay witness may testify to the estimated speed of an automobile, i.e. that plaintiff’s car was traveling at 60-70 m.p.h., based on the frequency with which most people view automobiles at various speeds).

On the other hand, the trial court may exclude such testimony if its value is outweighed by the risk of unfair prejudice. For objections on basis of prejudice, see Ch. 6.

Specific areas in which courts allow lay opinion if counsel lays a proper foundation include:

  • Handwriting. Collins v. Wyman, 38 A.D.2d 600, 328 N.Y.S.2d 725 (2d Dept. 1971) (lay witness may testify to genuineness of disputed writing, but must first establish his or her familiarity with handwriting of person at issue, and how this familiarity came about).

  • Senses: matters of taste, smell, touch. People v. Marx, 128 A.D. 828, 112 N.Y.S. 1011 (1908).

  • Emotional state of another. People v. Marx, 128 A.D. 828, 112 N.Y.S. 1011 (1908).

  • Physical condition of another if readily observed, such as strength, weakness, or illness. Rawls v. American Mut. Life Ins. Co., 27 N.Y. 282 (1863); Stanley v. Ford Motor Co., 49 A.D.2d 979, 374 N.Y.S.2d 370 (3dDept. 1975); for related exceptions to hearsay rule, see Ch. 5.

  • Age of another. People v. Patterson, 149 A.D.2d 966, 540 N.Y.S.2d 626 (4thDept. 1989).

  • Value of property or services. Tulin v. Bostic, 152 A.D.2d 887, 544 N.Y.S.2d 88 (3dDept. 1989).

  • Speed of a vehicle. People v. Olsen, 22 N.Y.2d 230, 292 N.Y.S.2d 420 (1968); Sweeney v. Peterson, 1 A.D.3d 650, 766 N.Y.S.2d 255 (3dDept. 2003); Shpritzman v. Strong, 248 A.D.2d 524, 670 N.Y.S.2d 50 (2dDept. 1998).

  • Appearance of intoxication. People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625 (1979); Rivera v. City ofNew York, 253 A.D. 597, 677 N.Y.S.2d 573 (1stDept. 1998); Ryan v. Big Z Corp., 210 A.D.2d 649, 619 N.Y.S.2d 838 (3dDept. 1994).

  • Voice identification of another. People v. Lynes, 49 N.Y.2d 286, 425 N.Y.S.2d 295 (1980).

  • Mental condition: whether another person was behaving rationally, though not whether the person was “of sound mind.” Matter of Estate of Vickery, 167 A.D. 2d 828, 561 N.Y.S.2d 937 (4thDept. 1990).

Foundation

The foundation to introduce lay-witness opinions varies depending on the subject matter. At a minimum, the proponent must show [see Kravitz v. Long Island Jewish-Hillside MedicalCenter, 113 A.D.2d 577, 497 N.Y.S.2d 51 (2d Dept.1985)]:

  • That the witness observed the events, circumstances, or person about which the witness has an opinion.

  • A basis of knowledge concerning the subject matter, including familiarity with the subject.

  • The incomplete nature of the witness’ testimony unless he or she is allowed to give his or her opinion.

  • The probative value of the opinion testimony outweighs any prejudice.

  • That ultimate issues are still left to the jury to decide.

Objection Tactics

  • When an opponent asks a lay witness for an opinion or conclusion, consider objecting on one or more of the following grounds:

    • Qualification of the witness to give an opinion.

    • Lack of foundation or factual predicate.

    • Relevancy. SeeCh. 4.

    • Invasion of the province of the jury, or testifying to an ultimate issue.

  • Ask for a voir dire or for a preliminary inquiry concerning the predicate for the opinion and the witness’ ability to draw conclusions.

  • Argue that the witness’ opinion will not help the jury assess the evidence impartially, or will be unduly prejudicial.

  • Ask the judge to limit the witness to factual descriptions and observations.

  • If the court overrules the objection, ask for a cautionary instruction to the effect that the jury does not have to adopt the witness’ opinion or that the jury may draw its own conclusion.

  • If the court allows the witness’ testimony, challenge the underpinnings of the opinion or conclusion during cross-examination. Avenues of inquiry may include:

    • The witness’ physical impairments, such as visual or aural deficits.

    • Distance from the event or obstructions to line of sight.

    • Existence and identity of other witnesses.

    • The effects of passage of time on the witness’ ability to recall the events at issue.

    • The witness’ communications with others concerning the events.

    • Likelihood that the witness’ description of events is based on evidence other than the witness’ personal knowledge. For hearsay, see Ch. 5.

    • The witness’ educational and vocational background and experience.

    • The witness’ qualifications to draw conclusions.

    • The witness’ competence to give an opinion.

    • The witness’ relationship to the parties.

    • The witness’ interest in the outcome of the case.

    • The witness’ interest, financial or otherwise, in testifying.

    • The witness’ biases, based on personal experiences or the knowledge of parties.

  • Argue that you established a clear factual predicate for the witness to give the opinion.

  • Assert that the witness’ observations and opinions are clearly intertwined, so that merely stating facts does not adequately describe the witness’s observations.

  • In response to claims of prejudice or irrelevance, demonstrate that the probative value of the opinions outweighs any prejudice.

  • Point out that forming opinions about actions witnessed or events experienced is natural, and that the witness is clearly competent to make those determinations.

  • Assure the court that opposing counsel will be able to challenge inferences during cross-examination or by calling other witnesses.

  • Assure the court that the jury will have ample opportunity to form its own opinion and will not be unduly influenced by the testimony.

  • Suggest a cautionary instruction if the court appears reluctant to permit the testimony.

Cases

Handwriting

People v. Corey, 148 N.Y. 476, 42 N.E. 1060 (1896). A lay person may compare handwriting where there is an adequate foundation and competence is established.

Freeman Check Cashing Inc. v. State of New York, 97 Misc.2d 819, 412 N.Y.S.2d 963 (Ct. Cl. 1979). In a forgery case, a lay person is not permitted to make an actual comparison of handwriting samples in the technical manner that would be employed by a handwriting analyst.

Mental state

Matter of Estate of Vickery, 167 A.D.2d 828, 561 N.Y.S.2d 937 (4th Dept. 1990). In an action to remove an executor, a lay witness was permitted to testify that the individual’s acts were rational but not whether the person was of sound mind.

Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept. 1972). Testimony by a lay witness describing another’s acts and stating whether the behavior appeared rational or irrational was admissible.

In re Coddington’s Will, 281 A.D. 143, 118 N.Y.S.2d 525 (3d Dept. 1952), aff’d 307 N.Y. 181, 120 N.E.2d 777 (1954). A lay person may not give an opinion about another’s mental capacity, but may state impressions concerning that person’s rationality based on observations of conduct and conversations.

Property value

Tulin v. Bostic, 152 A.D.2d 887, 544 N.Y.S.2d 88 (3d Dept. 1989). Lay persons may express opinions as to the value of property where they are familiar with the property and have some knowledge of market value. In addition, the owner of property can testify as to its value regardless of any showing of special knowledge as to its value.

Trode v. Omnetics, Inc., 106 A.D.2d 808, 484 N.Y.S.2d 197 (3d Dept. 1984). Testimony as to the value of property is admissible if based on ownership coupled with experience in the business.

Fassett v. Fassett, 101 A.D.2d 604, 475 N.Y.S.2d 154 (3d Dept. 1984). In a matrimonial action, a spouse may testify to the value of household goods based on familiarity with their cost.

Speed of motor vehicles

Soto v. New York CityTransit Authority, 6 N.Y.3d 487, 813 N.Y.S.2d 701 (2006). Lay witness’ (plaintiff’s) estimate of his own running speed was sufficient as a basis for expert to testify as to whether train could have stopped before striking him.

People v. Olsen, 22 N.Y.2d 230, 292 N.Y.S.2d 420 (1968). Lay testimony concerning the speed of a vehicle is admissible if it is clear that it is a lay opinion and a proper foundation is laid.

Guthrie v. Overmyer, 19 A.D.3d 1169, 797 N.Y.S.2d 203 (4th Dept. 2005). It is well settled that once a proper foundation is laid, a lay witness will be permitted to testify as to the estimated speed of an automobile based on the prevalence of automobiles in our society.

Sweeney v. Peterson, 1 A.D.3d 650, 766 N.Y.S.2d 255 (3d Dept. 2003). Where it was a question of fact as to whether officer acted with reckless disregard for the safety of others (and in violation of the Vehicle and Traffic Law) that caused trooper’s vehicle to hydroplane and crash into an oncoming vehicle, ordinary witnesses could testify to the speed at which the trooper’s vehicle was going.

Shpritzman v. Strong, 248 A.D.2d 455, 670 N.Y.S.2d 50 (2d Dept. 1998). The court approved testimony by a lay witness that a vehicle was traveling 60 to 70 m.p.h. The court stated that a “lay witness is ordinarily permitted to testify as to estimated speed of automobiles in our society based on the frequency with which most people view automobiles at various speeds.”

Swoboda v. We Try Harder, Inc., 128 A.D.2d 862, 513 N.Y.S.2d 781 (2d Dept. 1987). Though a witness may testify to the estimated speed of an automobile, such lay opinion requires some foundational evidence of knowledge and experience. Thus, in an action to recover damages for personal injuries in a vehicle collision, the defendant was improperly permitted to testify that the plaintiff’s motorcycle was traveling 60 to 65 miles per hour before the collision. There was a lack of foundational evidence that the defendant was qualified to estimate the specific speed of the motorcycle, and at no time did the defendant state he had experience in establishing the speed of motorcycles, though he did testify he had 31 years of driving experience and had estimated speed of “moving objects.”

Callaghan v. Giuffre, 44 A.D.2d 631, 353 N.Y.S.2d 577 (3d Dept. 1974). Part time police officers may testify, as lay witnesses, to the speed of a motorcycle before an accident.

Intoxication

People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625 (1979). A lay witness may determine whether an individual has consumed too much alcohol to operate a motor vehicle.

Rivera v. City of New York, 253 A.D. 597, 677 N.Y.S.2d 573 (1st Dept.1998). A lay witness may testify to a person’s appearance of intoxication by describing person’s conduct and speech. In this vehicular collision case, a lay witness was permitted to give his opinion of intoxication based on conduct including exceeding the speed limit and failing to heed traffic signals.

Allan v. Keystone Nineties, Inc., 74 A.D.2d 992, 427 N.Y.S.2d 107 (4thDept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding bar owners liable for damages where they served alcohol to a person already intoxicated).

Physical condition

People v. Grozdalski, 239 A.D.2d 896, 659 N.Y.S.2d 677 (4th Dept. 1997). Lay witness may testify to another’s physical condition (burn on leg) if the witness possesses enough experience to describe such a condition.

Schwartz v. Rosenthal, 244 A.D.2d 325, 664 N.Y.S.2d 310 (2d Dept. 1997). Police officer who was present shortly after an accident could testify as to the position of vehicles at the time of impact and thereafter. The court found that these were “observations not requiring particular expertise.”

Ultimate issues

Water Wheel Inn, Inc. v. Exchange Ins. Company, 261 A.D. 535, 690 N.Y.S.2d 622 (2d Dept 1999). In an action to recover the proceeds of a fire insurance policy, witnesses could not testify whether, in their opinion the president of the corporation was innocent of arson. Such testimony would determine the ultimate issue in the case and usurp the function of the jury.

Andersen v. Park Centre Associates, 250 A.D.2d 473, 673 N.Y.S.2d 396 (1stDept. 1998). Lay person could testify to the existence of a leak in a ceiling for a period of time based on an observation that the ceiling had a yellow brown stain.

Hitchcock v. Best, 247 A.D.2d 769, 669 N.Y.S.2d 419 (3d Dept.1998). In a personal injury action by a tenant against a landlord, the tenant could testify to an oral agreement that the tenant would perform basic repairs, but the trial court properly excluded the tenant’s lay opinion about whether the repair that would have prevented his accident was “basic.”

Mead v. Reilly, 238 A.D.2d 484, 656 N.Y.S.2d 653 (2d Dept. 1997). A police officer could state that the road was wet, and that the road’s condition contributed to the accident at issue in the case, even though the officer was not qualified as an expert, since these were his own observations and no special skill was required.

M. La Penta v. Loca-Bik Ltee Transport, 238 A.D.2d 913, 661 N.Y.S.2d 132 (4thDept. 1997). Policeman’s notation and testimony to the effect that a causing factor of an accident was “plaintiff’s inattention” improperly invaded the jury’s province to determine ultimate factual issues.

Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (2nd Dept. 1969). In a personal injury action stemming from an automobile accident, the trial court erred in allowing defense counsel on cross-examination to elicit an opinion from the plaintiff that the “highway was dangerous,” since this was for the jury to decide from the facts.

Dougherty v. Braddock Automatic Music Corp., 277 A.D. 923, 98 N.Y.S.2d 514 (3rd Dept. 1950). In an action arising from an auto collision, a lay witness could not give an opinion concerning the dangerousness of a driver’s conduct, since this was an ultimate issue in the case.

§ 15:160 Opinion as to Another’s State of Mind

Objection, Your Honor. The question calls for the witness’ opinion on the state of mind of another person.

Comments

In general, a lay witness may not give evidence concerning the state of mind of another person, such as motive, knowledge, intent, or emotional state. When a lay witness testifies to the intent or expectations of another apart from acts or statements from which the witness has drawn such conclusions, the witness’ declaration is improper and should not be allowed as testimony in a case.

However, the facts and circumstances on which the witness’ conclusion is based are admissible; the trier of fact may determine from that evidence the intention or expectation of the person under consideration. Bogart v. City of New York, 200 N.Y. 379, 93 N.E. 937 (1911); see People v. Travis, 216 A.D.2d 883, 628 N.Y.S.2d 915 (4th Dept. 1995) (complainant’s testimony that defendant tried to remove wallet from his pocket during struggle did not usurp function of jury to determine whether defendant intended to commit robbery).

In addition, a lay witness may testify to his or her own intent or state of mind when material. Brezinski v. Brezinski, 84 A.D.2d 464, 446 N.Y.S.2d 833 (4th Dept. 1982); Epstein v. Cuba, 25 A.D.2d 680, 268 N.Y.S.2d 947 (2d Dept. 1966); see Noonan v. Luther, 206 N.Y. 105, 99 N.E. 178 (1912) (in assault action, trial court improperly excluded defendant’s testimony as to his intent in removing plaintiff from his business premises, since defendant’s intent was a material issue in case).

Objection Tactics

  • Object promptly when your adversary asks questions of a lay witness seeking to elicit testimony regarding another’s state of mind. Once the jury hears the answer, even if the court strikes it, it may still be damaging.

  • If the court overrules your objection, use cross-examination to cast doubt on the validity or weight of the opinion.

Response

  • If the question seeks a description of a person’s emotional state, argue that you are calling for an observation rather than a conclusion or opinion as to state of mind.

  • If the question is improper, withdraw it and attempt to elicit the information through testimony about observations and descriptions of conduct.

Cases

Grossjahann v. Geo. B. Wilkins & Sons, Inc., 244 A.D.2d 808, 666 N.Y.S.2d 271 (3dDept. 1997). In an action to recover clean-up costs from a seller of real property, an out-of-court statement by a state environmental agency representative that there were no signs of contamination was admissible not for the truth but to show purchaser’s state of mind at the time the property was bought.

Matter of Estate of Vickery, 167 A.D.2d 828, 561 N.Y.S.2d 937 (4th Dept. 1990). In an action to remove an executor, a lay witness was properly permitted to testify that the individual’s acts were rational, but not whether the person was of sound mind.

Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept. 1972). Testimony by a lay witness describing another’s acts and stating whether the behavior appeared rational or irrational was admissible.

People v. Williams, 29 A.D.2d 780, 287 N.Y.S.2d 797 (2d Dept. 1968). A police officer could not testify in a burglary prosecution that the defendant “looked like he wanted to get away with something,” particularly where the issue of identification of the burglar was a close question.


*Justice Helen E. Freedman has served as a trial judge since 1979, and in 1998 she received the Judicial Excellence Award of the State Trial Judges Conference of the American Bar Association. She has served on the Appellate Term, and served in the Commercial Division of the New York State Supreme Court for eight years. She was also the Mass Torts Judge in charge of all New York City asbestos personal injury and New York Statesilicone gel breast implant, latex glove, and diet drug cases. She is a founding member of the State Judges Mass Tort Litigation Committee. She was appointed to the Appellate Division, First Department, by Governor David Paterson in 2008. She is the author ofNew York Objections,from which this article is excerpted.