Direct Examination of Lay Witnesses

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 49-68

CHAPTER 24

Direct Examination of Lay

Witnesses

§24:01 New York Trial Notebook 24-2

I. GENERAL POINTS

§24:01 Testimony Must Be From

Personal Knowledge

The term “lay witness” generally refers to any

witness other than an expert. The essence of “lay”

testimony is that it is factual, although in limited

circumstances, “lay” witnesses give “lay” opinion.

[See §24:72.] Generally speaking, a lay witness

gives testimony from his or her personal knowledge

of information relevant to the proceedings.

Information that is not within the witness’s

personal knowledge is hearsay and is inadmissible

unless it falls within some exception. [See Ch 29.]

If the witness’s testimony falls within an exception

to the hearsay rules, the hearsay itself must be

within the witness’s personal knowledge (e.g., X

testifying as to Y’s “excited utterance” must have

actually heard Y). In Rodriguez v. New York City

Housing Authority, 215 AD2d 362, 626 NYS2d

240 (2d Dept 1995), the trial court erred when it

permitted the court interpreter to act as a witness

in the following context: Plaintiff had claimed that

she was injured as she descended broken steps, and

there was no banister, but there was a fence nearby.

Plaintiff was a Spanish-speaker. Defendant’s

attorney introduced evidence that plaintiff had

testified at a General Municipal Law 50-h hearing

that she was holding onto a “banister” when she

fell. To diminish the impact of this discrepancy,

plaintiff’s attorney asked the interpreter, who was

not sworn as a witness, whether plaintiff could have

used the Spanish word “veranda,” which could also

mean “fence.” The interpreter, who was not present

at the 50-h hearing and could not have known what

word plaintiff used, was, over objection, permitted

to state “[i]t could be.” This, among other errors,

required a new trial on liability.

Information that is generally known may be the

subject of judicial notice without requiring witness

testimony. [See Ch 18.]

[For preparing witnesses to testify, see Ch 16.]

NOTE:

While trial testimony is ordinarily given

live, with the witness on the witness stand,

depositions may be used instead under certain

circumstances. See §23:40 et seq. Video

depositions may be particularly effective if it is

known that a witness will not be available for

trial. [See §23:42, Gabriel v. Johnston’s L.P.

Gas Service, Inc., 98 AD3d 168, 947 NYS2d

716 (4th Dept 2012) (video depositions of

plaintiff undocumented farm workers were

allowed for use at trial where there was no

real possibility of plaintiffs being able to

be present in the United States for trial).]

Where a plaintiff is extremely ill, such that it

is probable that he will not survive until trial,

it has become routine to preserve on video

the plaintiff’s testimony for use at trial. For

example, the Case Management Order for

New York City Asbestos Litigation (NYCAL)

(amended May 26, 2011), XI. A. 1. provides

that “[a] videotape deposition of a seriously or

terminally ill plaintiff whose availability for trial

may reasonably be doubted may be promptly

taken on notice and without further order of

the Court if plaintiff’s counsel certifies as to

plaintiff’s medical condition . . .”

§24:02 Witness Must Be

Competent

In general, any competent person may testify

as a witness. New York adheres to the “traditional

rule,” namely, that “all adults are presumed to be

competent to testify ... .” [People v. Parks, 41 NY2d

36, 46, 390 NYS2d 848, 856 (1976) (Parks went on

to note, “commitment to a mental institution does

not in itself work an automatic disqualification.”)

The test of whether a prospective witness is

competent is whether the witness “has sufficient

intelligence to understand the nature of an oath

and to give a reasonably accurate account of what

he has seen and heard vis-a-vis the subject about

which he is interrogated.” People v, Parks, id. at

45, 390 NYS2d at 856.]

“The resolution of the issue of witness

competency is exclusively the responsibility of the

trial court, subject to limited appellate review. It

is the Trial Judge who has the opportunity to view

the witness, to observe manner, demeanor and

presence of mind, and to undertake such inquiries

as are effective to disclose the witness’ capacity

and intelligence.” [People v. Parks, 41 NY2d 36,

46, 390 NYS2d 848, 856 (1976).] “In determining

whether a particular prospective witness is competent

to testify, the trial court may properly consider