Cross-Examination of Lay Witnesses
| Author | Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen |
| Pages | 159-198 |
CROSS:
LAY WITNESSES
CHAPTER 25
CROSSEXAMINATION
OF LAY WITNESSES
§25:01 New York Trial Notebook 25-2
CROSS:
LAY WITNESSES
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
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 892, 893 (3d Dept 1989).]
Even after a default when plaintiff is attempting
to prove damages at an inquest, a late-appearing
defendant may cross-examine plaintiff’s witnesses.
[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 if the party “is unable to attend
or testify because of age, sickness, infirmity or
imprisonment.” [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 inadequate, and
that “[t]he defendants’ inability to challenge the
plaintiff’s credibility through live cross-examination
at trial requires a new trial,” on liabil ity 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 important 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 opportunity to
cross-examine witnesses, to inspect documents
and to offer evidence in explanation or rebuttal.”
[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 and
defendant, “during which plaintiff was not afforded
the opportunity to present evidence and cross-
examine Batista, [so] the plaintiff was deprived of
its right to due process of law.”
§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), affirmed 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 witness his own, and
in effect, the cross-examination had ceased. [83 NY
at 459–460.] In 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,
25-3 Cross-Examination of Lay Witnesses §25:03
CROSS:
LAY WITNESSES
the witness was not adverse; it was in the third party
defendant’s interest that the defendant be absolved.
[109 AD2d at 1050.] (Not stated was whether the
witness had been called by plaintiff or defendant.)
[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, 73 NE2d
545, 548 (1947), and not a right to cross-examine
until the questioner gets the desired answer. A party
is not entitled to cross-examination of unlimited
duration, even if that cross-examination may touch
on relevant topics. [Bagby v. Kuhlman, 742 F
Supp 137, 141 (SDNY 1990).] “Although cr oss-
examination is a matter of right [cite omitted], it is
well settled that its scope and manner are left to the
sound discretion of the trial court [cites omitted].”
[Salm v. Moses, 13 NY3d 816, 817, 890 NYS2d
385, 386 (2009).]
The trial court retains wide discretion on the
method, as well as the scope, of cross-examination.
[Badr v. Hogan, 75 NY2d 629, 634, 555 NYS2de
249, 251 (1990); Feldsberg v. Nitschke, 49 NY2d
636, 404 NE2d 1293, 427 NYS2d 751 (1980);
Friedel v. Board of Regents, 296 NY 347, 353,
73 NE2d 545, 548 (1947); Ingebretsen v. Manha,
218 AD2d 784, 631 NYS2d 72 (2d Dept 1995);
Nisipeanu v. Massachusetts Mutual Life Insurance
Co., 41 AD3d 566, 836 NYS2d 434 (2d Dept
2007).] In Matter of Simone D., 32 AD3d 931,
933, 821 NYS2d 248, 251 (2d Dept 2006), the
majority upheld the trial court’s curtailing of
cross examination, finding that when the cross
examination was “viewed as a whole and properly
analyzed in context,” it was clear that counsel was
permitted extensive questioning in all relevant areas;
direct encompassed 13 pages while cross covered
44 pages. The dissent focused on certain portions
of the cross examination, which it suggested the
trial court had curtailed because the court said
it was sufficiently familiar with the issues (the
matter was before the court alone in a proceeding
to require a patient to undergo electroconvulsive
therapy without her consent), and bemoaned that
not only had the court acted as an unsworn witness,
but that an insufficient record had been created.
CASE EXAMPLES:
• Superior Sales & Salvage, Inc. v. Time
Release Sciences, Inc., 227 AD2d 987,
643 NYS2d 291 (4th Dept 1996). No error
in allowing a witness to go on vacation
and conclude the last 45 minutes of his
cross-examination by speakerphone, where
the witness’s testimony had been delayed
by opposing counsel and the jury had
ample opportunity to observe the witness’s
demeanor on cross.
• Steiger v. Mason, 125 AD2d 391, 509
NYS2d 112 (2d Dept 1986). Trial court
did not abuse its discretion in requiring
defendant’s counsel, in impeaching
plaintiff by her deposition, to read both the
oral answer and the change she made in the
transcript.
• Hughes v. Elliott, 1 Misc3d 38, 768 NYS2d
74 (App Term, 2d Dept 2003). Plaintiff in
a small claims action was properly denied
permission to appear for trial by telephone.
Credibility determinations are largely based
on the witness’s demeanor, and testimony
by telephone would prevent effective cross-
examination because the witness could not
be seen.
• Caserta v. Levittown School District, 12
AD3d 549, 784 NYS2d 381 (2d Dept 2004).
The trial court properly refused to admit,
solely for purposes of impeachment, an
irrelevant statement made by defendant eight
months after the accident.
• Ryan v. Kellogg Partners Institutional
Services, 79 AD3d 447, 914 NYS2d 81
(1st Dept 2010). Suit over an employment
agreement; the court properly exercised
its discretion to preclude inquiry into
plaintiff’s financial commitments at the
time he entered into the oral agreements
with defendant; plaintiff’s personal life
was a collateral matter that had no direct
bearing on any issue other than credibility;
moreover, any possible prejudice was
alleviated by plaintiff’s testimony that he
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