Conduct of Trial - Examination of Witnesses - Method of Examination - Improper Questions
A witnesses must testify in response to questions. The usual method for eliciting testimony from a witness is the asking of specific questions that call for answers. Witnesses are not permitted to write out testimony and then read it, or to submit affidavits to the court.[1]
A witness may also testify in the form of a spontaneous narration responding to a general question asking what he saw or heard at a particular time and place. In narrative testimony the witness attention is directed to a specific place and time and the witness is asked to state "what occurred.” [2] The trial court exercises its discretion in determining the extent to which narrative testimony may be used.[3]
The court may terminate "unnecessarily repetitive" questioning. [4] This rule applies to both direct and cross-examination.[5]
Questions that are solely intended to humiliate or harass the witness are improper. Argumentative questions are improper. For example, asking the witness to characterize disputed facts, or give his opinion on the truth of what another witness or person said, is improper.[6]
Questions that assume the truth of facts which are not established by proof, or not in evidence are improper. [7]
Where a question is proper but the answer does not respond to the question, it is not responsive, and a motion to “strike the answer as not responsive” may be made.[8]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-210.
[2] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-223
[3] See Watson v. State, 53 A.D.2d 798, 799, 385 N.Y.S.2d 170, 172 (3d Dep't 1976).
[4] Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 755, 404 N.E.2d 1293, 1297 (1980).
[5] People v. Wright, 159 A.D.2d 282, 282-83, 552 N.Y.S.2d 285, 285-86 (1st Dep't).
[6] People v. Mackell, 47 A.D.2d 209, 220, 366 N.Y.S.2d 173, 184 (2d Dep't 1975), aff'd, 40 N.Y.2d 59, 386 N.Y.S.2d 37, 351 N.E.2d 684 (1976) but see People v. Overlee, 236 A.D.2d 133, 140, 666 N.Y.S.2d 572, 577 (1st Dep't 1997) (when defendant's testimony is in direct conflict with that of a prosecution witness, prosecutor may properly ask defendant if the other witness is a "liar").
[7] Zeleznik v. Jewish Chronic Disease Hospital, 47 A.D.2d 199, 204, 366 N.Y.S.2d 163, 169 (2d Dep't 1975); Gray v. Brooklyn Heights R. Co., 175 N.Y. 448, 451-52, 67 N.E. 899, 900 (1903) (improper to ask plaintiff “How long did you continue to bleed after the miscarriage?" where the issue before the court was whether plaintiff suffered a miscarriage as result of an accident.). This rule applies on both direct and cross examination. People v. Mather, 4 Wend. (N.Y.) 229, 249 (1830).
[8] Helmken v. City of New York, 90 App.Div. 135, 136, 85 N.Y.S. 1048, 1049 (1st Dep't 1904) (court should have stricken response to question calling for "yes" or "no" answer, where witness responded with speculative answer containing inadmissible evidence).
A witnesses must testify in response to questions. The usual method for eliciting testimony from a witness is the asking of specific questions that call for answers. Witnesses are not permitted to write out testimony and then read it, or to submit affidavits to the court.[1]
A witness may also testify in the form of a spontaneous narration responding to a general question asking what he saw or heard at a particular time and place. In narrative testimony the witness attention is directed to a specific place and time and the witness is asked to state "what occurred.” [2] The trial court exercises its discretion in determining the extent to which narrative testimony may be used.[3]
The court may terminate "unnecessarily repetitive" questioning. [4] This rule applies to both direct and cross-examination.[5]
Questions that are solely intended to humiliate or harass the witness are improper. Argumentative questions are improper. For example, asking the witness to characterize disputed facts, or give his opinion on the truth of what another witness or person said, is improper.[6]
Questions that assume the truth of facts which are not established by proof, or not in evidence are improper. [7]
Where a question is proper but the answer does not respond to the question, it is not responsive, and a motion to “strike the answer as not responsive” may be made.[8]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-210.
[2] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-223
[3] See Watson v. State, 53 A.D.2d 798, 799, 385 N.Y.S.2d 170, 172 (3d Dep't 1976).
[4] Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 755, 404 N.E.2d 1293, 1297 (1980).
[5] People v. Wright, 159 A.D.2d 282, 282-83, 552 N.Y.S.2d 285, 285-86 (1st Dep't).
[6] People v. Mackell, 47 A.D.2d 209, 220, 366 N.Y.S.2d 173, 184 (2d Dep't 1975), aff'd, 40 N.Y.2d 59, 386 N.Y.S.2d 37, 351 N.E.2d 684 (1976) but see People v. Overlee, 236 A.D.2d 133, 140, 666 N.Y.S.2d 572, 577 (1st Dep't 1997) (when defendant's testimony is in direct conflict with that of a prosecution witness, prosecutor may properly ask defendant if the other witness is a "liar").
[7] Zeleznik v. Jewish Chronic Disease Hospital, 47 A.D.2d 199, 204, 366 N.Y.S.2d 163, 169 (2d Dep't 1975); Gray v. Brooklyn Heights R. Co., 175 N.Y. 448, 451-52, 67 N.E. 899, 900 (1903) (improper to ask plaintiff “How long did you continue to bleed after the miscarriage?" where the issue before the court was whether plaintiff suffered a miscarriage as result of an accident.). This rule applies on both direct and cross examination. People v. Mather, 4 Wend. (N.Y.) 229, 249 (1830).
[8] Helmken v. City of New York, 90 App.Div. 135, 136, 85 N.Y.S. 1048, 1049 (1st Dep't 1904) (court should have stricken response to question calling for "yes" or "no" answer, where witness responded with speculative answer containing inadmissible evidence).
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.
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.
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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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