Cross-Examination of Lay Witnesses

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 163-200

CROSS:

LAY WITNESSES

25-1

CHAPTER 25

CROSSEXAMINATION

OF LAY WITNESSES

I. GENERAL POINTS

§25:01 Right to Cross-Examination

§25:02 Leading Questions for Adverse Witnesses

§25:03 Limits on Duration and Conduct

§25:04 Scope of Cross-Examination

§25:05 Is Scope Limited to Matters Testif‌ied to on Direct?

II. OBJECTIVES

A. Overview

§25:10 Three Objectives

§25:11 Conf‌licting Objectives

B. Probe the Foundation

§25:20 Common Areas to Examine

§25:21 Examiner Not Bound by Answers

C. Impeach the Witness

1. Show Inconsistent Statement

a. General Points

§25:30 Inconsistency Is a Powerful Impeachment

§25:31 The Inconsistent Statement Is Evidence

§25:32 Sources of Inconsistent Statements

§25:33 Impeaching One’s Own Witness

§25:34 Demonstrating Incredibility of Testimony

b. Laying a Foundation

§25:40 Foundation Necessary for a Non-Party Witness’s Inconsistent Statement

§25:41 Oral Inconsistent Statement

§25:42 Written Inconsistent Statement

2. Attack Honesty and Truthfulness

a. Bias, Hostility, Interest, and Motive

§25:50 Not Collateral, Therefore Independently Provable

§25:51 Methods of Proof; Effect

§25:52 Relationship of Witness to Party

§25:53 Witness’s Prior Dealings With a Party

§25:54 The Witness’s Personal Outlook

§25:55 Payment to the Witness Beyond the Statutory Fee

CROSS:

LAY WITNESSES

New York Trial Notebook 25-2

b. Credibility

§25:60 Collateral, Therefore Extrinsic, Evidence Prohibited

§25:61 Criminal Convictions: Extrinsic Evidence Available

§25:62 Immoral, Vicious, or Criminal Acts Relevant

§25:63 Other Acts May Be Relevant

§25:64 Matters Not Relevant

§25:65 Credibility of a Party

D. Elicit Aff‌irmative Evidence

§25:70 Allowed if Relevant to Case

§25:71 Allowed if Door Opened On Direct

III. CONDUCTING CROSSEXAMINATION

A. Preparing for Cross

§25:80 Do Not Stick to a Script

§25:81 Time for Cross-Examination

§25:82 Have a Good Faith Basis for Questions

B. Asking Questions

§25:90 Take the Focus Away From the Witness

§25:91 Ask Leading Questions

§25:92 Pace and Demeanor

§25:93 The Set Up, and Knowing When to Stop

§25:94 End Strong

§25:95 Problems With “Isn’t It True That…” Question

§25:96 Consider Record

§25:97 Ask About Preparation by Proponent Counsel

§25:98 Ask About Unwillingness to Speak With Your Side

§25:99 Refresh Recollection

§25:100 Test Memory

§25:101 Test Quantitative Perceptions

§25:102 Confronting the Witness With New Material

C. Dealing With Responses

§25:110 Be Prepared to Deal With Any Answer

§25:111 Dealing With Cannot Answer Response

§25:112 When a Witness Invokes a Privilege in Declining to Testify

IV. RECROSS

§25:120 General and Scope

§25:121 Have Point to Make

CROSS:

LAY WITNESSES

25-3 Cross-Examination of Lay Witnesses §25:03

I. GENERAL POINTS

§25:01 Right to Cross-Examination

After counsel who called the witness has completed examination on direct, opposing counsel may interrogate

the witness through cross-examination. [Friedel v. Board of Regents, 296 NY347, 73 NE2d 545 (1947); Hill v.

Arnold, 226 AD2d 232, 640 NYS2d 892 (1st Dept 1996); Graves v. American Express, 175 Misc2d 285, 669

NYS2d 463 (App Term, 2d Dept 1997).]

Cross-examination is the principal means by which a witness’s believability and the truth of his or her testimony

is tested. [Graves, supra.] (Similarly, Professor Wigmore called cross-examination “the greatest legal engine ever

invented for the discovery of truth.” 5 Wigmore, Evidence, §1367, at 32 (Chadbourne rev. 1974). The denial of the

fundamental right of cross-examination requires reversal. [Seeger v. Moduform, Inc., 146 AD2d 922, 923, 536 NYS2d

-

Reynolds Securities, Inc. v. Underwriters Bank and Trust

Company, 44 NY2d 568, 572, 406 NYS2d 743, 746 (1978), Montgomery v. City of New York, 307 AD2d 957, 763

NYS2d 477 (2d Dept 2003).] The use of deposition testimony in lieu of live testimony subject to cross-examination

is limited by CPLR 3117(a), which permits a party to introduce his or her deposition transcript into evidence at trial

  M.S. (Anonymous)

v. County of Orange, 64 AD3d 560, 562, 884 NYS2d 74, 76 (2d Dept 2009), citing CPLR 3117(a)(3).] In M.S., the

Second Department reversed and ordered a new trial, holding that the trial court had erred in admitting the transcript

of the General Municipal Law (GML) 50-h hearing testimony of the infant claimant. [NOTE: GML 50-h(4) permits

use of 50-h transcripts in circumstances similar to depositions, Claypool v. City of New York, 267 AD2d 33, 35, 699

NYS2d 363, 365 (1st Dept 1999).] The Second Department held that the ground for admissibility of the transcript was



at trial requires a new trial,” on liability as well as on damages, if warranted. Id. at 562, 884 NYS2d at 76.

Deprivation of cross examination also implicates due process concerns. “In almost every setting where import-

ant decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse

witnesses.” [Goldberg v. Kelly, 397 US 254, 269, 90 S.Ct. 1011, 1021 (1970).] And “no essential element of a

fair trial can be dispensed with unless waived. … In addition, the party whose rights are being determined must

be fully apprised of the claims of the opposing party and of the evidence to be considered, and must be given the

    

[McBarnette v. Sobol, 83 NY2d 333, 339, 640 NYS2d 460 (1994) (internal quotes and cites omitted).] In Indymac

Federal Bank FSB v. Batista, 101 AD3d 952, 952, 956 NYS2d 181, 181 (2d Dept 2012), a Supreme Court order

declaring a mortgage null and void was reversed, as the order was a result of colloquy between Supreme Court

   



§25:02 Leading Questions for Adverse Witnesses

Generally, cross-examination may be conducted by the use of leading questions. [See §25:91.]

However, if the witness is not “adverse,” while other counsel may still examine the witness, there is no right to lead

the witness. [People ex rel Phelps v. Court of Oyer and Terminer, 83 NY 436 (1881); Cohen v. St. Regis Paper Co., 109

AD2d 1048, 487 NYS2d 406 (4th Dept 1985), armed 65 NY2d 752, 492 NYS2d 22 (1985).] In Phelps, the criminal

defendant examined a prosecution witness to develop a defense, and the trial court did not allow counsel to ask leading

questions of that witness. The Court of Appeals observed that in attempting to elicit new matter, counsel had made the

Cohen, defendant’s counsel

was not allowed to lead the witness who was president of the third party defendant, since as to the issues involved,

the witness was not adverse; it was in the third party defendant’s interest that the defendant be absolved. [109 AD2d

See §§25:04, 25:10, 25:11.]

§25:03 Limits on Duration and Conduct

While acknowledging its value, Professor Wigmore compared cross-examination to medieval torture “in more

than one sense.” [5 Wigmore, Evidence, §1367, at 32 (Chadbourne rev. 1974).] Thus, the right to cross-examination

is really the right to cross-examine to a “reasonable extent,” Friedel v. Board of Regents, 296 NY2d 347, 353,