Direct Examination of Lay Witnesses

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 135-156

DIRECT EXAMINATION

OF LAY WITNESSES

CHAPTER 24

DIRECT EXAMINATION

OF LAY WITNESSES

§24:01 New York Trial Notebook 24-2

DIRECT EXAMINATION

OF LAY WITNESSES

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 . . .”

NOTE:

The Commercial Division rules added

Rule 32-a effective November 23, 2016,

which says:

“Direct Testimony by Affidavit.

The court may require that direct tes-

timony of a party’s own witness in a

non-jury trial or evidentiary hearing shall

be submitted in affidavit form, provided,

however, that the court may not require

the submission of a direct testimony affi-

davit from a witness who is not under the

control of the party offering the testimo-

ny. The submission of direct testimony in

affidavit form shall not affect any right

to conduct cross examination or re-direct

examination of the witness.”

By its terms, this new rule allows the

court to require direct testimony by affidavit

despite a party’s potential desire to testify

live. However, the opposing party may still

cross examine the witness, so the witness

must be present in court – although, if there is

no cross examination, the witness may never

be called upon to open his or her mouth. And

if there is cross examination, the witness may

testify live on re-direct. A March 18, 2016