Eliciting and Refuting Testimony

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 121-136

ELICITING, REFUTING

TESTIMONY

CHAPTER 23

ELICITING AND REFUTING

TESTIMONY

§23:01 New York Trial Notebook 23-2

ELICITING, REFUTING

TESTIMONY

I. GENERAL POINTS

§23:01 Importance of Live Witness

Testimony

Testimony from live witnesses is an essential

part of a trial. Witnesses are necessary to:

• Tell of facts observed, heard or otherwise

perceived.

• Lay foundation for tangible or demonstrative

evidence.

• Give opinions based upon facts.

If a case can be resolved without the necessity of

a live witness then it may be capable of resolution

in a simplified or accelerated proceeding [e.g.,

CPLR 3031-3036], or by motion for summary

judgment, based on documents or other tangible

evidence that can be presented to the court without

the necessity of a trial.

For the jury, evidence presented through a

witness is the most interesting part of the drama

that makes up a trial. Even the most enthusiastically

delivered closing arguments lack the potential

intensity and suspense of the give and take between

lawyer and witness.

Ordinarily, witnesses are presented either live in

court, or by deposition (see §§23:40 et seq.). There

have been recent instances of attempts to present

testimony “live,” in real time, by video link, which

have met with varying degrees of success. Kinship

hearings in Surrogates Courts in Kings County and

New York County have had witnesses presented by

video conference link which would otherwise have

required international travel. [See NYLJ, 5/14/08,

p. 1, col. 3 (“Video Links New York to Slovakia

for Surrogate’s Court Hearing”).] However, in R.M.

v. Dr. R., 18 Misc3d 1138A, 859 NYS2d 906,

NYLJ March 7, 2008, p. 28, col. 3 (SupCt Nassau

County 2008), Supreme Court denied defendant’s

motion to allow him to present three witnesses by

video link to India. In a domestic relations matter,

defendant wished to present the witnesses to give

testimony that he was never married to the plaintiff,

and argued that the witnesses had been unable to

obtain visas and that the court would be able to

assess demeanor and credibility through the video

transmission. Plaintiff opposed the motion, noting,

inter alia, that a plaintiff witness had testified that

defendant had attempted to bribe him, and that

defend ant ha d had ample time to conduct pretrial

depositions in India. In de nying the motion, the

court observed that Article I, §6 of the New York

State Constitution affords parties the right to be

present in court and to confront witnesses, which

is true in civil matters as well as criminal, as per

Matter of Dean L., 109 AD2d 87, 490 NYS2d 75

(4th Dept 1985), and said “[i]n simplest terms, the

enactment of a constitutional right of confrontation

is an acknowledgment that it’s generally more

difficult for a witness to lie about a party when the

witness is sitting in a room face to face with the

party.” While acknowledging that the right is not

absolute and may be outweighed by public policy

concerns or special circumstances (e.g., vulnerable

child witnesses), the court declined to make new law

abrogating a civil litigant’s constitutional right to a

face to face confrontation where only private rights

are in issue. “The right to confront witnesses face to

face is intended to facilitate the search for the truth.

Absent a compelling government interest, a party has

a right, not only to observe the witness, but to have

the witness give his or her evidence while facing the

party against whom he or she is offering testimony

... . As the defendant herein failed to conduct pretrial

depositions [at which plaintiff could have personally

confronted the witnesses] he is precluded by CPLR

3117 from presenting testimony of the witnesses in

issue at trial by teleconferencing.”

For a discussion of the issue of allowing live

video link testimony in a criminal matter, see

People v. Wrotten, 14 NY3d 33, 896 NYS2d 711

(2009), in which the Court of Appeals reversed the

First Department’s decision at 60 AD3d 165, 871

NYS2d 28 (1st Dept 2008), in which the Appellate

Division had reversed defendant’s conviction where

the trial judge had allowed the 84-year-old, infirm

complainant to testify by video link. The Court of

Appeals sent the case back to the Appellate Division,

instructing it to consider whether Supreme Court’s

findings that the live two-way video testimony

satisfied the Federal and State Constitutions’

Confrontation clauses by preserving the essential

safeguards of testimonial reliability were supported

by clear and convincing evidence. The Court of

Appeals held that “[l]ive televised testimony is

certainly not the equivalent of in-person testimony,

and the decision to excuse a witness’s presence

in the courtroom should be weighed carefully.

Televised testimony requires a case-specific finding

of necessity; it is an exceptional procedure to be