15.23 - 1. The Law

• Jurisdiction: New York

1. The Law

A witness in a New York criminal trial, on cross-examination, may be asked about, and impeached by inquiry into, any immoral, vicious or criminal act performed by the witness in the past if the act evidences moral turpitude.²¹²³ The extent to which a witness may be questioned concerning prior acts of misconduct is discretionary with the trial court, but the questions must be asked in good faith and have a good faith basis in fact.²¹²⁴

Since an inquiry on cross-examination as to specific acts of misconduct is an inquiry into a collateral matter, the cross-examiner is bound by the answers of the witness to questions concerning the specific acts of misconduct and cannot disprove the answer by calling other witnesses or by introducing other evidence.²¹²⁵ However, the fact that an adversary’s witness has been previously convicted of a crime may be shown either by the record of conviction or by eliciting an admission of the prior conviction on cross-examination.²¹²⁶ Thus, if a witness is properly asked whether he was previously convicted of a specified offense and answers in the negative or in an equivocal manner, the party cross-examining that witness may independently prove such conviction and the witness may also be cross-examined with respect to the acts underlying the criminal conviction.²¹²⁷ However, facts underlying charges that have been dismissed or that have resulted in acquittals may not be used for impeachment purposes.²¹²⁸ This limitation does not apply if the charges were not dismissed on the merits.²¹²⁹ Similarly, the cross-examiner may explore acts underlying a youthful offender adjudication, or juvenile delinquency charges, although the fact of the adjudication may not be brought out.²¹³⁰

Counsel may not inquire into pending charges to challenge a defendant’s credibility as per a Court of Appeals ruling in People v. Betts.²¹³¹ However, previously disposed-of charges, where the resulting disposition may have been effected through the witness’s cooperation with the prosecutor’s office, are fair game.²¹³² Questions regarding pending charges against a witness may be asked—under terms and conditions set by the court—but the witness may refuse to answer on Fifth Amendment grounds.²¹³³ Under the Court of Appeals construction of the Fifth Amendment a defendant may not be questioned about the underlying facts of a rape conviction that is currently on appeal.²¹³⁴

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Notes:

^[2123] . See People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950); People v. Schwartzman, 24 N.Y.2d 241, 299...