Witness examination

• Author: Helen E. Freedman/Gerald Lebovits
• Pages: 339-372

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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15-3 WITNESS EXAMINATION §15:10

I. PRINCIPLES

§15:10 Direct Examination

Usually, the party who calls a witness to testify examines that witness during what is cal led direct examination.

Ideally, direct examination should consist of non-leading questions eliciting the elements of the prima facie case.

In general, leading questions are not allowed during direct examination unless the witness is hostile. Brown v.

Western Union 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).

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 med-

ical 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 of New York, 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); 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.”

Similarly, it was not error to permit defendants in an action for breach of duciary duty to testify by means

of a live video conference link from Argentina, where there was evidence of diculty in traveling. American Bank

Note Corp. v. Daniele, 81 A.D.3d 500, 916 N.Y.S.2d 112 (1st Dept. 2011).

e court did not abuse its discretion by precluding defendant’s arson expert from testifying via closed-caption

television from Texas, as defendant failed to present medical evidence of a medical problem preventing the expert

from traveling to New York. People v. Towsley, 85 A.D.3d 1549, 924 N.Y.S.2d 708 (4th Dept. 2011). Similarly,

the court did not err in refusing to allow the mother in a custody proceeding to testify from Florida via electronic

means where she did not establish medical proof of a disability restricting her travel. Domestic Relations Law