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    • New York Matrimonial Trial Handbook
    • New York Matrimonial Trial Handbook 2020 Update Pdf Edition
    • Books about Divorce and Family Law
  • Conduct of Trial
    • Order of Trial - In General
    • Order of Trial - Opening and Closing statements: When and how to make them
    • Order of Trial - Motion to Dismiss After Opening Statementage
    • Conduct of Trial - Right to Cross-Examination of Witness
    • Conduct of Trial - Right to Call Witnesses for Direct Examination
    • Conduct of Trial - Scope of Cross-Examination - Making Adverse Witness Own Witness
    • Conduct of Trial - Redirect Examination
    • ​Conduct of Trial - Redirect Examination - Rule of Completeness
    • Conduct of Trial - Re-Cross Examination of Witness
    • Conduct of Trial - Motion to Dismiss for failure to establish a Prima Facie Case
    • Conduct of Trial - Courtroom Decorum for Counsel and Court - Addressing the Judge - Approaching the Bench
    • Conduct of Trial - Calling a Witness to the Stand to Testify
    • Conduct of Trial - Method of Calling a Witness to the Stand - Presenting Witnesses
    • Conduct of Trial - Requirement that Witness Have Personal Knowledge
    • Conduct of Trial - Examination of Witnesses - Method of Examination - Improper Questions
    • Conduct of Trial – Importance of Objections to Inadmissible Evidence or Improper Questions
    • Conduct of Trial - Method of Making an Objection
    • Conduct of Trial - Voir Dire to Challenge Foundation for Introduction of Evidence
    • Conduct of Trial - Leading Questions - What they are and when they are permitted
    • Conduct of Trial - Method of Making Objection to Leading Question
    • Conduct of Trial - Refreshing the Witness’s Recollection
    • Conduct of Trial - Questions for Refreshing Witness Recollection
    • Conduct of Trial - Refreshing Recollection of Witness - Past recollection recorded
    • ​Conduct of Trial - Motion for Reconsideration of Prior Ruling
    • Conduct of Trial - Method of Making Motion to Reconsider Prior Ruling
    • ​Conduct of Trial - Motion to Adjourn Trial - Defendant’s Objection to proceed with Defense before Plaintiff Rests
    • ​Conduct of Trial - Method of Making Motion to Adjourn - Objection to proceed with Defense before Plaintiff Rests
    • Conduct of Trial - Continuing Objection
    • Conduct of Trial - Motion to Strike Evidence Improperly Admitted
    • Conduct of Trial - Motion to Strike Evidence Admitted Subject to Connection
    • Conduct of Trial - Offer of Proof - What is it?
    • Conduct of Trial - Method of Making an Offer of Proof
    • ​Conduct of Trial - Exclusion of Witnesses from Courtroom
    • Conduct of Trial - Method of Making Request to Exclude Witnesses
    • Conduct of Trial - Discretion of Judge to Question Witnesses
    • Conduct of Trial - Right of Court to Compel Testimony
    • Conduct of Trial - Right of Trial Judge to Call own Witness.
  • Trial Testimony
    • Trial Testimony - Right to Confer with Counsel
    • Trial Testimony - Right to Interpreter for Person Who Can Not Communicate with Court
    • Trial Testimony - Calling the Adverse Party as a Witness
    • Trial Testimony - Cross Examination - Modes of impeachment
    • ​Trial Testimony - Cross - Examination - Impeachment of Witnesses
    • Trial Testimony - Cross-Examination - Impeachment Limited by Collateral Evidence Rule
    • Trial Testimony - Cross Examination - Impeachment - Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Laying Foundation for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Questions for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross - Examination - Impeachment of Witness by Prior Inconsistent Statement and Questions for Introduction
    • Trial Testimony - Testimony of Child
    • Trial Testimony- Cross - Examination – Inadmissibility of Proof of Prior Arrest, Indictment or Conviction for Petty Crime
    • Trial Testimony - Cross - Examination - Attempt to Procure False Evidence Competent as an Admission
    • Trial Testimony - Cross-Examination - Impeachment of Witness by Criminal Conviction
    • ​Trial Testimony - Cross-Examination - Impeachment of Witness by Showing Bias, Hostility, or Interest
    • ​Trial Testimony - Cross - Examination - Impeachment by Showing Witness Hostile to Party
    • Trial Testimony- Cross - Examination - Impeachment by Showing Predisposition
    • Trial Testimony - Questions for Impeaching Witness on Cross - Examination by Showing Hostility
    • ​Trial Testimony - Impeaching own Witness
    • Trial Testimony - Prior Testimony - Use of Depositions at Trial or Hearing
    • Trial Testimony - Prior Testimony - Use of Deposition from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using deposition.
    • ​Trial Testimony - Prior Testimony - Use of Deposition Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Deposition Testimony
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using Answers to Interrogatories.
    • Trial Testimony - Prior Testimony - Use of Answers to interrogatories Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Answers to interrogatories
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony Subject to Objection
    • Trial Testimony - Prior Testimony - Necessity of Foundation for Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Testimony
    • Trial Testimony - Method of Marking Documents as Exhibits for Identification and Offering them into Evidence
    • Trial Testimony - Method of Offering Exhibit Marked for Identification into Evidence - Standard Questions
  • Rules of Evidence in Matrimonial Actions
    • Rules of Evidence - In General
    • Evidence and Proof - Competent and Material
    • ​Admissibility of Evidence - General Rule
    • Burden of Proof - Standards of Proof
    • Burden of Proof - Fair Preponderance of Credible Evidence - Clear and Convincing Evidence
    • Burden of Proof - Clear and Convincing Evidence in Matrimonial Actions
    • ​Burden of Proof - Presumptions
    • ​Burden of Proof - “Competent Proof” in Family Court Proceedings
    • ​Standards of Proof for Overcoming Presumptions in Matrimonial Actions
    • ​Foundation for Evidence - Fundamental Error and Harmless Error
    • Foundation for Evidence - Stare Decisis - The Doctrine of Precedent
    • Foundation for Evidence - Law of the Case
    • Foundation for Evidence - Judicial Estoppel
    • Foundation for Evidence - Rule Against Inconsistent Positions
    • Foundation for Evidence - Estoppel from Presenting Evidence at Trial Based Upon Contents of Response to Discovery Demand
    • Foundation for Evidence - Judicial Notice of Law and Facts
    • Foundation for Evidence - Method of Asking Court to Take Judicial Notice of a Fact
    • Foundation for Evidence - Judicial Notice of Testimony at Prior Pendente lite Hearing
    • Admissibility of Evidence - Settlement Offers Not Admissible
    • Admissibility of Evidence - Admissions and Letters by Party’s Attorney Admissible in Evidence
    • Admissibility of Evidence - Presumption that Only Admissible Evidence Was Considered By the Trial Court.
    • Admissibility of Evidence – Rule against Hearsay
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay Applicable in Matrimonial Case
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Verbal or operative acts and State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Present Sense Impression and Excited Utterance/Spontaneous Declaration
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Not Necessary to Lay Foundation For Admission of Certified Non-Party Business Records Produced Pursuant to Subpoena - CPLR 3122-a.
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Expressions of Intent
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Evidence of Abuse or Neglect in Custody and Child Protective Proceedings
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Former Testimony
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admissions
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of New Spouse
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Past recollection recorded
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for and Questions for Offering Business Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Business Records - Admission of Hospital bills and Records, Records and Reports of Genetic Marker or DNA tests, and Payment Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of Certified Hospital, Library, and Government Records.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admission of Business Records - Other Certification Substitutes for Foundation Testimony.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admissibility of Medical Reports - Not admissible As Business Records Where They Contain Doctor's Opinion or Expert Proof
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for Admission of Business Records and Records of Municipality into Evidence - Summary of Rule
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Questions for Laying a Foundation for and Offering Business and Municipality Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Method of Laying a Foundation for and Offering into Evidence Certified Records of Business or Municipality
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records Rule - Business Duty
    • Admissibility of Evidence - Results of Lie Detector Test Inadmissible
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other. - Action founded Upon Adultery - In General
    • Admissibility of Evidence - Expert Report Inadmissible Without Consent
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other- Action Founded Upon Adultery - As to Non-access
    • Admissibility of Evidence - Privilege - Testimony of One Spouse Against the Other – Actions for Divorce, Separation or Annulment - Confidential Communications.
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Testimony of One Spouse for the Other - Action founded Upon Adultery
    • Admissibility of Evidence - Privilege - Confessions and Admissions - Action Founded Upon Adultery
    • Admissibility of Evidence - Privilege - Conduct Prior to Marriage - Action Founded Upon Adultery.
    • Admissibility of Evidence - Privilege - Attorney - Client Privilege - Civil Practice Law and Rules § 4501.
    • Admissibility of Evidence - Privilege - Psychologist - Patient Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Physician, dentist, podiatrist, chiropractor and nurse Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Clergy - Penitent Privilege - Civil Practice Law and Rules § 4505.
    • Admissibility of Evidence - Privilege - Social worker - Patient Privilege - Civil Practice Law and Rules § 4508(a).
    • Admissibility of Evidence - Privilege - Rape crisis counselor - client Privilege - Civil Practice Law and Rules § 4510.
    • Admissibility of Evidence - Practice Point - Privilege - Confidential Communications
    • Admissibility of Evidence - Privilege - Fifth Amendment Privilege against Self-Incrimination
    • Admissibility of Evidence - Privilege - Method of Making Objection to Question on Fifth Amendment Grounds
    • Admissibility of Evidence - Privilege - Adverse Inference from Failure of Party to Testify and Failure to Call Favorable Witness - Missing Witness Rule in Civil Case
    • Admissibility of Evidence - Privilege - New York Privilege against Self-incrimination - Civil Practice Law and Rules §4501.
    • Admissibility of Evidence - Privilege - Electronic Communication of Privileged Communications - Civil Practice Law and Rules § 4548
    • Admissibility of Evidence - Evidence Illegally Obtained. – Unlawful Entry, Search and Seizure and Electronic Surveillance of Family Conversations – Exceptions for Custody and Article 10 Cases
    • Admissibility of Evidence - Suppression of Illegally Obtained Eavesdropping Evidence - Civil Practice Law and Rules § 4506(a) - Vicarious Consent for Child
    • Admissibility of Evidence - Motion to Suppress Illegally Obtained Eavesdropping Evidence under CPLR § 4506
    • Admissibility of Evidence - Illegal Interception of Electronic Evidence - Electronic Evidence Defined
    • Admissibility of Evidence - Social Networking Sites
    • Admissibility of Evidence - Admissibility of Electronic Evidence
    • Admissibility of Evidence - Authentication of Instant Message
    • Admissibility of Evidence - Authentication of Text Message and Questions for Introduction into Evidence
    • Questions to Lay Foundation for Introduction of text message into evidence
    • Admissibility of Evidence - Authentication of Blogs and Websites
    • Admissibility of Evidence - Authentication of email and Questions for Introduction
    • Questions to Lay Foundation for Introduction of email into evidence
    • Admissibility of Evidence - Evidence Obtained By Spyware - CPLR 4506
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings - Foundation for Admission of Recordings
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Recorded telephone call into Evidence
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Transcript of Sound Recorded telephone call into Evidence
    • Admissibility of Evidence - Best evidence rule
    • Admissibility of Evidence - Parol Evidence Rule
    • Admissibility of Evidence - Authentication of Foreign Records and Documents for Use at Trial
    • Admissibility of Evidence - Spoliation - Unfavorable Inference - Preclusion
    • Admissibility of Evidence - Inadmissibility of Evidence Protected by the Health Insurance Portability and Accountability Act
    • Admissibility of Evidence - Admissibility of Foreign Language Exhibits and Affidavits and Papers
    • Admissibility of Evidence - Authentication of official record of court or government office in the United States
    • Practice Point - Admissibility of Charts and Summaries Counsel may be permitted to use charts to summarize documents already in evidence where the charts are based solely on information already in evidence. A foundation must be laid, demonstrating that
    • Practice Point – Testimony about Out of Court Statements Made by Third Party.
    • Practice Point - No Client - Expert Privilege.
    • Practice Point - Trial Evidence not Limited by Scope of Pretrial Disclosure
    • Practice Point - Effect of the Failure of a Party to Deny or Contradict Evidence or Pleadings
    • Practice Point - Effect of withholding Evidence in Your Possession, or Failure to Call a Witness
  • Opinion Evidence
    • Opinion Evidence and Need for Expert Opinion
    • Opinion Evidence - Form of expert opinion
    • Opinion Evidence - Admissibility of Expert Testimony - Basis for Admission of Expert Opinion
    • Opinion Evidence - Impeaching Your Own Expert Witness.
    • Opinion Evidence - Opinion of Ordinary Witness as to ownership, intent, belief and value of property or services.
    • Opinion Evidence - Cross Examination of Expert Witnesses - Impeaching the Expert
    • Opinion Evidence
    • Opinion Evidence – Qualification of Expert and Weight of Testimony
    • Opinion Evidence - Expert Cannot Be Compelled to Testify
  • Custody Proceedings - Rules of Evidence
    • Custody Proceedings - Evidence - Admissibility of Hearsay
    • Custody Proceedings - Evidence - Use of Experts, Evaluations, and Reports
    • Custody Proceedings - Evidence - Investigations
    • Custody Proceedings – Evidence - In-camera and Lincoln interviews
    • Custody Proceedings – Evidence - Confidential communications - Waiver in Custody Cases
    • Custody Proceedings - Evidence - Child Permitted to Assert Psychologist - Patient Privilege
    • Custody Proceedings - Evidence - Admissibility of child abuse reports
    • Custody Proceedings - Evidence - Child as a Witness
  • Questions for the Examination of Witnesses
    • Questions for Placing Stipulation on the Record and Allocution
    • Questions for prima facie economic case - Direct Examination of Client – General Questions
    • Questions for Prima Facie Custody Case -Direct Examination of Party
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Admissibility of Evidence - Privilege - Fifth Amendment Privilege against Self-Incrimination
 
          The Fifth Amendment privilege against self-incrimination provides that a party may refuse to testify where his testimony may tend to incriminate him of a crime.[1] This privilege is applicable in matrimonial actions, although it may be waived, either affirmatively or by the conduct of the parties.[2] 
 
          Since adultery is a crime, a spouse accused of adultery in a divorce action cannot be compelled to testify to his or her own adultery if the constitutional privilege against self-incrimination is raised and is applicable.[3]
 
          The rule that defendant's invocation of his Fifth Amendment privilege against self- incrimination on the stand is not to be taken into account in weighing the evidence against him does not extend to civil cases, where the parties are on an equal footing and the only disadvantage threatened is liability to compensate the adversary for damages.[4]
 
           While a party's invocation of the privilege against self-incrimination can be used to draw an adverse inference against that party in a civil case, no inference arises from the invocation of the privilege by a nonparty witness.[5]
 
          An attorney has no exposure to self-incrimination with regard to personal property he is holding for his client and, thus, has no Fifth Amendment right against the production of a tape belonging to his client, nor can he assert that right on behalf of his client, against whom no compulsion has been directed.[6]
 
          The Fifth Amendment privilege against self-incrimination applies to civil proceedings, including Family Court proceedings. A witness may refuse to testify on the grounds that it will tend to incriminate him of a crime. [7]
 
          CPLR 4501 provides that a witness may not be compelled to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture.  It provides: “A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish that he owes a debt or is otherwise subject to a civil suit. This section does not require a witness to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture, nor does it vary any other rule respecting the examination of a witness.”

          A proceeding for a violation of a family court order is considered penal or criminal in nature within the meaning of the Fifth Amendment.  The civil and criminal contempt provisions of the Judiciary Law apply to proceedings over which the Family Court properly has jurisdiction.   Any violation of a Family Court order directing a party to do or refrain from doing an act is punishable under those provisions.  Judiciary Law §753 provides that civil contempt is punishable by fine, imprisonment, or both. The statute does not provide limits on these punishments.  While a contempt proceeding under Article 19 of the Judiciary Law might be characterized as a civil proceeding the penalty that may imposed in such a proceeding leads to a fine and imprisonment.  Thus, the proceeding must be considered penal or criminal in nature within the meaning of both CPLR 4501, and the Fifth Amendment of the Constitution of the United States, as interpreted in Illinois v. Vitale. [8] 




        [1]  In Slater v. Slater, 78 Misc.2d 13, 355 N.Y.S.2d 943 (Sup., 1974) the court held that one who claims privilege against self-incrimination may invoke privilege when he has reasonable cause to fear the danger of incrimination. The mere imaginary possibility of prosecution is insufficient to stave off the direction to respond. The privilege against self-incrimination protects not only answers which alone could support a criminal conviction, but all responses which could feed the chain of evidence needed to prosecute.

        [2]  In Taber v. Herlihy, 570 N.Y.S.2d 723 (3d Dept.,1991), a custody proceeding, the Appellate Division held that the mother waived any Fifth Amendment privilege when, during her direct testimony, she voluntarily stated that she had smoked marihuana on an occasional basis in past.
           In M. v. S., 37 A.D.2d 915, 325 N.Y.S.2d 504 (4th Dept., 1971), a proceeding to establish paternity, the court held that by testifying in his own behalf that he was not the father of child the witness waived the privilege against self-incrimination, and it was error to permit him to refuse, after so testifying in his own behalf, to answer questions on the ground of self-incrimination.
           In Abramowitz v. Abramowitz, 137 N.Y.S.2d 442 (Sup.,1954) the court held that adultery being a crime, a spouse accused thereof in divorce action cannot be compelled to testify to his or her own adultery if the constitutional privilege against self-incrimination is raised and is applicable. The Constitutional privilege against self-incrimination, unless timely invoked, is waived, except where incriminating testimony is elicited, without objection, from the party unrepresented by counsel and unadvised of his or her rights with respect thereto.  Where the wife had objected to being compelled to give testimony against herself on the issue of adultery, but had failed to base her objection on her constitutional privilege against self-incrimination, the privilege was waived.

     [3]  Abramowitz v. Abramowitz, 137 N.Y.S.2d 442 (Sup., 1954).

     [4]  Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 427 N.Y.S.2d 961, 405 N.E.2d 205.
             In Dolezal v. Dolezal, 218 A.D.2d 682, 630 N.Y.S.2d 550 (2d Dept.,1995) the Appellate Division held that the trial court in a matrimonial action did not err in drawing an unfavorable inference from wife's assertion of her Fifth Amendment right against self-incrimination but not from the husband's similar assertion, as the wife invoked her privilege some 14 times on a topic which related to wife's ability to act in a custodial capacity and tendency to place her  own interests above those of children, while the  husband invoked his right only once, regarding an incident not reflective of his ability as a father.
             In Nolan v. Nolan, 107 A.D.2d 190, 486 N.Y.S.2d 415 ( 3d Dept.,1985), an action for a divorce,  the Appellate Division held that the trial court properly inferred marital misconduct on wife's part, where the wife availed herself of her Fifth Amendment right against self-incrimination when questioned regarding an alleged adulterous relationship.
             In Fritz v. Fritz, 88 A.D.2d 778, 451 N.Y.S.2d 519 (4th Dept.,1982), an action for a divorce, the  husband's invocation of Fifth Amendment privilege when asked whether he had sexual relations with certain named women permitted the court to draw an adverse inference against him.

     [5]   State v. Markowitz, 273 A.D.2d 637, 710 N.Y.S.2d 407 (3d Dept., 2000).

     [6]   Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66, 453 N.Y.S.2d 662
439 N.E.2d 378 (1982).

     [7]  See, Matter of Figueroa v. Figueroa, 160 A.D.2d 390, 391, 553 N.Y.S.2d 753; Matter of De Bonis v. Corbisiero, 155 A.D.2d 299, 300, 547 N.Y.S.2d 274,  Matter of Gladys H, 235 A.D.2d 841, 653 N.Y.S.2d 392 (3d Dept 1987).

     [8]   447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228; See also Dutchess County   Department of Social Services v James F, 41 Misc.2d 309 (1988).
​
​

​The material on our website is from  the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case.  It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  There are numerous questions for the examination and cross-examination of witnesses. 
​Joel R. Brandes Consulting Services, Inc. ​publishes The ​New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at  Amazon,  Barnes & Noble, Goodreads and other online book sellers.  

The New York Matrimonial Trial Handbook  is  available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore. 
Joel R. Brandes Consulting Services, Inc.   
2881 NE 33rd Court (At Dock)
Ft. Lauderdale, Florida 33306.
Telephone (954) 564-9883.
email to:divorce@ix.netcom.com.


​​Joel R. Brandes Consulting Services, Inc is a Florida corporation  which is owned and operated  by 
​Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. 
​This website is published by ​Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C.  Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of  the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters),  and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.

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  • Home
  • Bookstore
    • New York Matrimonial Trial Handbook
    • New York Matrimonial Trial Handbook 2020 Update Pdf Edition
    • Books about Divorce and Family Law
  • Conduct of Trial
    • Order of Trial - In General
    • Order of Trial - Opening and Closing statements: When and how to make them
    • Order of Trial - Motion to Dismiss After Opening Statementage
    • Conduct of Trial - Right to Cross-Examination of Witness
    • Conduct of Trial - Right to Call Witnesses for Direct Examination
    • Conduct of Trial - Scope of Cross-Examination - Making Adverse Witness Own Witness
    • Conduct of Trial - Redirect Examination
    • ​Conduct of Trial - Redirect Examination - Rule of Completeness
    • Conduct of Trial - Re-Cross Examination of Witness
    • Conduct of Trial - Motion to Dismiss for failure to establish a Prima Facie Case
    • Conduct of Trial - Courtroom Decorum for Counsel and Court - Addressing the Judge - Approaching the Bench
    • Conduct of Trial - Calling a Witness to the Stand to Testify
    • Conduct of Trial - Method of Calling a Witness to the Stand - Presenting Witnesses
    • Conduct of Trial - Requirement that Witness Have Personal Knowledge
    • Conduct of Trial - Examination of Witnesses - Method of Examination - Improper Questions
    • Conduct of Trial – Importance of Objections to Inadmissible Evidence or Improper Questions
    • Conduct of Trial - Method of Making an Objection
    • Conduct of Trial - Voir Dire to Challenge Foundation for Introduction of Evidence
    • Conduct of Trial - Leading Questions - What they are and when they are permitted
    • Conduct of Trial - Method of Making Objection to Leading Question
    • Conduct of Trial - Refreshing the Witness’s Recollection
    • Conduct of Trial - Questions for Refreshing Witness Recollection
    • Conduct of Trial - Refreshing Recollection of Witness - Past recollection recorded
    • ​Conduct of Trial - Motion for Reconsideration of Prior Ruling
    • Conduct of Trial - Method of Making Motion to Reconsider Prior Ruling
    • ​Conduct of Trial - Motion to Adjourn Trial - Defendant’s Objection to proceed with Defense before Plaintiff Rests
    • ​Conduct of Trial - Method of Making Motion to Adjourn - Objection to proceed with Defense before Plaintiff Rests
    • Conduct of Trial - Continuing Objection
    • Conduct of Trial - Motion to Strike Evidence Improperly Admitted
    • Conduct of Trial - Motion to Strike Evidence Admitted Subject to Connection
    • Conduct of Trial - Offer of Proof - What is it?
    • Conduct of Trial - Method of Making an Offer of Proof
    • ​Conduct of Trial - Exclusion of Witnesses from Courtroom
    • Conduct of Trial - Method of Making Request to Exclude Witnesses
    • Conduct of Trial - Discretion of Judge to Question Witnesses
    • Conduct of Trial - Right of Court to Compel Testimony
    • Conduct of Trial - Right of Trial Judge to Call own Witness.
  • Trial Testimony
    • Trial Testimony - Right to Confer with Counsel
    • Trial Testimony - Right to Interpreter for Person Who Can Not Communicate with Court
    • Trial Testimony - Calling the Adverse Party as a Witness
    • Trial Testimony - Cross Examination - Modes of impeachment
    • ​Trial Testimony - Cross - Examination - Impeachment of Witnesses
    • Trial Testimony - Cross-Examination - Impeachment Limited by Collateral Evidence Rule
    • Trial Testimony - Cross Examination - Impeachment - Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Laying Foundation for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Questions for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross - Examination - Impeachment of Witness by Prior Inconsistent Statement and Questions for Introduction
    • Trial Testimony - Testimony of Child
    • Trial Testimony- Cross - Examination – Inadmissibility of Proof of Prior Arrest, Indictment or Conviction for Petty Crime
    • Trial Testimony - Cross - Examination - Attempt to Procure False Evidence Competent as an Admission
    • Trial Testimony - Cross-Examination - Impeachment of Witness by Criminal Conviction
    • ​Trial Testimony - Cross-Examination - Impeachment of Witness by Showing Bias, Hostility, or Interest
    • ​Trial Testimony - Cross - Examination - Impeachment by Showing Witness Hostile to Party
    • Trial Testimony- Cross - Examination - Impeachment by Showing Predisposition
    • Trial Testimony - Questions for Impeaching Witness on Cross - Examination by Showing Hostility
    • ​Trial Testimony - Impeaching own Witness
    • Trial Testimony - Prior Testimony - Use of Depositions at Trial or Hearing
    • Trial Testimony - Prior Testimony - Use of Deposition from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using deposition.
    • ​Trial Testimony - Prior Testimony - Use of Deposition Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Deposition Testimony
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using Answers to Interrogatories.
    • Trial Testimony - Prior Testimony - Use of Answers to interrogatories Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Answers to interrogatories
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony Subject to Objection
    • Trial Testimony - Prior Testimony - Necessity of Foundation for Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Testimony
    • Trial Testimony - Method of Marking Documents as Exhibits for Identification and Offering them into Evidence
    • Trial Testimony - Method of Offering Exhibit Marked for Identification into Evidence - Standard Questions
  • Rules of Evidence in Matrimonial Actions
    • Rules of Evidence - In General
    • Evidence and Proof - Competent and Material
    • ​Admissibility of Evidence - General Rule
    • Burden of Proof - Standards of Proof
    • Burden of Proof - Fair Preponderance of Credible Evidence - Clear and Convincing Evidence
    • Burden of Proof - Clear and Convincing Evidence in Matrimonial Actions
    • ​Burden of Proof - Presumptions
    • ​Burden of Proof - “Competent Proof” in Family Court Proceedings
    • ​Standards of Proof for Overcoming Presumptions in Matrimonial Actions
    • ​Foundation for Evidence - Fundamental Error and Harmless Error
    • Foundation for Evidence - Stare Decisis - The Doctrine of Precedent
    • Foundation for Evidence - Law of the Case
    • Foundation for Evidence - Judicial Estoppel
    • Foundation for Evidence - Rule Against Inconsistent Positions
    • Foundation for Evidence - Estoppel from Presenting Evidence at Trial Based Upon Contents of Response to Discovery Demand
    • Foundation for Evidence - Judicial Notice of Law and Facts
    • Foundation for Evidence - Method of Asking Court to Take Judicial Notice of a Fact
    • Foundation for Evidence - Judicial Notice of Testimony at Prior Pendente lite Hearing
    • Admissibility of Evidence - Settlement Offers Not Admissible
    • Admissibility of Evidence - Admissions and Letters by Party’s Attorney Admissible in Evidence
    • Admissibility of Evidence - Presumption that Only Admissible Evidence Was Considered By the Trial Court.
    • Admissibility of Evidence – Rule against Hearsay
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay Applicable in Matrimonial Case
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Verbal or operative acts and State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Present Sense Impression and Excited Utterance/Spontaneous Declaration
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Not Necessary to Lay Foundation For Admission of Certified Non-Party Business Records Produced Pursuant to Subpoena - CPLR 3122-a.
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Expressions of Intent
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Evidence of Abuse or Neglect in Custody and Child Protective Proceedings
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Former Testimony
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admissions
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of New Spouse
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Past recollection recorded
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for and Questions for Offering Business Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Business Records - Admission of Hospital bills and Records, Records and Reports of Genetic Marker or DNA tests, and Payment Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of Certified Hospital, Library, and Government Records.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admission of Business Records - Other Certification Substitutes for Foundation Testimony.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admissibility of Medical Reports - Not admissible As Business Records Where They Contain Doctor's Opinion or Expert Proof
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for Admission of Business Records and Records of Municipality into Evidence - Summary of Rule
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Questions for Laying a Foundation for and Offering Business and Municipality Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Method of Laying a Foundation for and Offering into Evidence Certified Records of Business or Municipality
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records Rule - Business Duty
    • Admissibility of Evidence - Results of Lie Detector Test Inadmissible
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other. - Action founded Upon Adultery - In General
    • Admissibility of Evidence - Expert Report Inadmissible Without Consent
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other- Action Founded Upon Adultery - As to Non-access
    • Admissibility of Evidence - Privilege - Testimony of One Spouse Against the Other – Actions for Divorce, Separation or Annulment - Confidential Communications.
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Testimony of One Spouse for the Other - Action founded Upon Adultery
    • Admissibility of Evidence - Privilege - Confessions and Admissions - Action Founded Upon Adultery
    • Admissibility of Evidence - Privilege - Conduct Prior to Marriage - Action Founded Upon Adultery.
    • Admissibility of Evidence - Privilege - Attorney - Client Privilege - Civil Practice Law and Rules § 4501.
    • Admissibility of Evidence - Privilege - Psychologist - Patient Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Physician, dentist, podiatrist, chiropractor and nurse Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Clergy - Penitent Privilege - Civil Practice Law and Rules § 4505.
    • Admissibility of Evidence - Privilege - Social worker - Patient Privilege - Civil Practice Law and Rules § 4508(a).
    • Admissibility of Evidence - Privilege - Rape crisis counselor - client Privilege - Civil Practice Law and Rules § 4510.
    • Admissibility of Evidence - Practice Point - Privilege - Confidential Communications
    • Admissibility of Evidence - Privilege - Fifth Amendment Privilege against Self-Incrimination
    • Admissibility of Evidence - Privilege - Method of Making Objection to Question on Fifth Amendment Grounds
    • Admissibility of Evidence - Privilege - Adverse Inference from Failure of Party to Testify and Failure to Call Favorable Witness - Missing Witness Rule in Civil Case
    • Admissibility of Evidence - Privilege - New York Privilege against Self-incrimination - Civil Practice Law and Rules §4501.
    • Admissibility of Evidence - Privilege - Electronic Communication of Privileged Communications - Civil Practice Law and Rules § 4548
    • Admissibility of Evidence - Evidence Illegally Obtained. – Unlawful Entry, Search and Seizure and Electronic Surveillance of Family Conversations – Exceptions for Custody and Article 10 Cases
    • Admissibility of Evidence - Suppression of Illegally Obtained Eavesdropping Evidence - Civil Practice Law and Rules § 4506(a) - Vicarious Consent for Child
    • Admissibility of Evidence - Motion to Suppress Illegally Obtained Eavesdropping Evidence under CPLR § 4506
    • Admissibility of Evidence - Illegal Interception of Electronic Evidence - Electronic Evidence Defined
    • Admissibility of Evidence - Social Networking Sites
    • Admissibility of Evidence - Admissibility of Electronic Evidence
    • Admissibility of Evidence - Authentication of Instant Message
    • Admissibility of Evidence - Authentication of Text Message and Questions for Introduction into Evidence
    • Questions to Lay Foundation for Introduction of text message into evidence
    • Admissibility of Evidence - Authentication of Blogs and Websites
    • Admissibility of Evidence - Authentication of email and Questions for Introduction
    • Questions to Lay Foundation for Introduction of email into evidence
    • Admissibility of Evidence - Evidence Obtained By Spyware - CPLR 4506
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings - Foundation for Admission of Recordings
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Recorded telephone call into Evidence
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Transcript of Sound Recorded telephone call into Evidence
    • Admissibility of Evidence - Best evidence rule
    • Admissibility of Evidence - Parol Evidence Rule
    • Admissibility of Evidence - Authentication of Foreign Records and Documents for Use at Trial
    • Admissibility of Evidence - Spoliation - Unfavorable Inference - Preclusion
    • Admissibility of Evidence - Inadmissibility of Evidence Protected by the Health Insurance Portability and Accountability Act
    • Admissibility of Evidence - Admissibility of Foreign Language Exhibits and Affidavits and Papers
    • Admissibility of Evidence - Authentication of official record of court or government office in the United States
    • Practice Point - Admissibility of Charts and Summaries Counsel may be permitted to use charts to summarize documents already in evidence where the charts are based solely on information already in evidence. A foundation must be laid, demonstrating that
    • Practice Point – Testimony about Out of Court Statements Made by Third Party.
    • Practice Point - No Client - Expert Privilege.
    • Practice Point - Trial Evidence not Limited by Scope of Pretrial Disclosure
    • Practice Point - Effect of the Failure of a Party to Deny or Contradict Evidence or Pleadings
    • Practice Point - Effect of withholding Evidence in Your Possession, or Failure to Call a Witness
  • Opinion Evidence
    • Opinion Evidence and Need for Expert Opinion
    • Opinion Evidence - Form of expert opinion
    • Opinion Evidence - Admissibility of Expert Testimony - Basis for Admission of Expert Opinion
    • Opinion Evidence - Impeaching Your Own Expert Witness.
    • Opinion Evidence - Opinion of Ordinary Witness as to ownership, intent, belief and value of property or services.
    • Opinion Evidence - Cross Examination of Expert Witnesses - Impeaching the Expert
    • Opinion Evidence
    • Opinion Evidence – Qualification of Expert and Weight of Testimony
    • Opinion Evidence - Expert Cannot Be Compelled to Testify
  • Custody Proceedings - Rules of Evidence
    • Custody Proceedings - Evidence - Admissibility of Hearsay
    • Custody Proceedings - Evidence - Use of Experts, Evaluations, and Reports
    • Custody Proceedings - Evidence - Investigations
    • Custody Proceedings – Evidence - In-camera and Lincoln interviews
    • Custody Proceedings – Evidence - Confidential communications - Waiver in Custody Cases
    • Custody Proceedings - Evidence - Child Permitted to Assert Psychologist - Patient Privilege
    • Custody Proceedings - Evidence - Admissibility of child abuse reports
    • Custody Proceedings - Evidence - Child as a Witness
  • Questions for the Examination of Witnesses
    • Questions for Placing Stipulation on the Record and Allocution
    • Questions for prima facie economic case - Direct Examination of Client – General Questions
    • Questions for Prima Facie Custody Case -Direct Examination of Party
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