Witness examination

• Author: Justice Gerald Lebovits
• Pages: 413-454

WITNESS

EXAMINATION

15-1

CHAPTER 15

WITNESS EXAMINATION

I. PRINCIPLES

§15:10 Direct Examination

§15:20 Cross-Examination

§15:30 Redirect and Recross

§15:40 Judicial Examination of Witnesses

§15:45 Juror Examination of Witnesses

§15:50 Excluding Nonparty Witnesses

II. OBJECTIONS

A. Objections During Direct Examination

§15:60 Impeaching Own Witness

§15:65 Prior Bad Acts

§15:70 Leading Questions

§15:80 Narrative

B. Objections During Cross-Examination

§15:90 Argumentative

§15:100 Beyond Scope of Direct Testimony

§15:110 Prior Criminal Convictions

C. Objections During Direct or Cross-Examination

§15:120 Asked and Answered

§15:130 Assuming Facts Not in Evidence

§15:140 Unresponsive

§15:150 Conclusion or Opinion Sought

§15:160 Opinion as to Another’s State of Mind

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WITNESS

EXAMINATION

15-3 Witness Examination §15:10

WITNESS

EXAMINATION

I. PRINCIPLES

§15:10 Direct Examination

Usually, the party calling a witness to testify examines that witness during what is called direct examination.

Direct examination typically consists of non-leading questions eliciting the elements of the prima facie case. An

appropriate witness is typically one who will support the party ’s theory of its case or defense. E M. D-

  R L. D, F E, Q  C P  (5th ed.

2014). Under certain circumstances, however, an adverse party or witness may be called for direct examination.

For a list of instructions to give your witness during trial preparation, see E M. D  R L.

D, F E, Q  C P - (5th ed. 2014).

In general, leading questions are not allowed during direct examination unless the witness is considered

hostile. See, e.g., People v. Rivera, 130 A.D.3d 487, 488, 13 N.Y.S.3d 414, 415 (1st Dept. 2015); Brown v. W.U.

Tel. Co., 26 A.D.2d 316, 274 N.Y.S.2d 52 (4th Dept. 1966); Zilver v. Robert Graves Co., 106 A.D. 582, 94 N.Y.S.

714 (1st Dept. 1905); for leading questions, see §15:70. For example, when an adverse party is called as a witness

on direct examination in a civil case, the adverse party is generally assumed to be hostile and the trial court will

allow the direct examination to assume the nature of cross-examination by allowing leading questions. Jordan

v. Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept. 1988). A witness may also be treated as hostile if he

or she is in privity with an opposing party. People v. Rozanski, 209 A.D.2d 1018, 619 N.Y.S.2d 441 (4th Dept.

1994). For a list of instances in which leading questions should be used during direct examination, see E

M. D  R L. D, F E, Q  C P

- (5th ed. 2014).

PRACTICE TIP: Calling adverse party as witness.

It is often necessary or desirable to call an adverse party or other adverse witness to establish aspects

of a prima facie case. This is particularly true in cases in which the plaintiff does not know what occurred, a

party has died, or knowledge about what happened is otherwise peculiarly within the province of another

party or agent. Becker v. Koch, 104 N.Y. 394, 10 N.E. 701 (1887); Cornwell v. Cleveland, 44 A.D.2d

891, 355 N.Y.S.2d 679 (4th Dept. 1974). A typical example of this situation is when a plaintiff in a medical

malpractice case calls as a witness the defendant physician, because the doctor’s testimony is necessary to

lay the medical foundation for what happened. Segreti v. Putnam Community Hosp., 88 A.D.2d 590, 449

N.Y.S.2d 785 (2d Dept. 1982).

A party may not impeach the credibility of a witness whom he or she calls, unless the witness made a contra-

dictory statement either under oath or in writing. CPLR 4514; Jordan v. Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d

686 (2d Dept. 1988); for impeaching own witness, see §15:60.

During direct examination, most courts prefer a question-answer format, in which the witness provides a specic

answer to a specic question, as opposed to a narrative format, in which the witness provides a lengthy response to

an open-ended question, to allow opposing counsel a better opportunity to pose objections to questions or answers.

See Watson v. State, 53 A.D.2d 798, 385 N.Y.S.2d 170 (3d Dept. 1976) (narratives are disfavored even in pretrial

oral examination, though trial court has discretion to permit them); see also Altkrug v. Horowitz, 111 A.D. 420, 97

N.Y.S. 716 (2d Dept. 1906) (court stated in dicta that counsel objecting to narration by witness has right to have

testimony elicited by question and answer to protect client by objection rather than by motion to strike). But see

People v. DePallo, 96 N.Y.2d 437, 729 N.Y.S.2d 649 (2001) (defendant allowed to testify in narrative form where

counsel was unable to persuade him not to testify falsely); for narrative questions, see §15:80.

Courts have discretion to permit various means by which a witness can be examined. For example, a witness

examination was allowed via live two-way television in an assault prosecution, where the trial court had determined

that an 85-year-old complaining witness was too frail to travel from California to New York. e court’s inherent

powers and Judiciary Law §2-b vested the court with authority to fashion such a procedure, and it violated neither

the Federal nor State constitutional confrontation rights. People v. Wrotten, 14 N.Y.3d 33, 896 N.Y.S.2d 711 (2009).

See also CPL 65.00-65-30, authorizing live video testimony of a child witness in a prosecution of a sex crime after a

judicial nding of “vulnerability.” Courts have discretion to permit live two-way video testimony where exceptional

circumstances necessitate it or when each party consents to its allowance. Matter of State v. Robert F., 25 N.Y.3d

448, 454, 13 N.Y.S.3d 319, 322 (2015).