Conduct of Trial - Rebuttal Evidence
The party holding the affirmative may offer rebuttal evidence and the other party may offer sur-rebuttal evidence.[1]
A party is entitled to give rebuttal evidence. When the party holding the negative of an issue rests, the party who first put in his evidence may then put in evidence which rebuts or contradicts the evidence produced by the adverse party.[2] The evidence may not only contradict the evidence on the opposite side and corroborate that of the party who began, but also may controvert some affirmative fact which the answering party has endeavored to prove. [3]
Rebuttal evidence means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove.[4] Evidence which would have been proper as part of plaintiff's affirmative case, and which he has no right to introduce as affirmative evidence after the defendant has rested, may still be offered by the plaintiff if it tends to impeach or discredit the testimony of defendant.[5]
What evidence may properly be introduced in rebuttal rests in the sound discretion of the trial court,[6] and the court’s exercise of that discretion is ordinarily subject to review only for clear abuse or an improvident action.[7]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-201.
[2] Yeomans v Warren, 87 AD2d 713, 448 NYS2d 889 (3d Dept 1982); Seguin v Berg, 260 AD 284, 21 NYS2d 291 (1940).
[3] Marshall v. Davies, 78 NY 414 (1879); Yeomans v Warren, 87 AD2d 713, 448 NYS2d 889 (3d Dept 1982); Seguin v Berg, 260 AD 284, 21 NYS2d 291 (1940).
[4] Marshall v. Davies, 78 NY 414, 419-20 (1879).
[5] Winchell v. Winchell, 100 N. Y. 159; Ankersmit v. Tuch, 114 NY 51.
[6] People v Buchanan, 145 NY 1, 39 NE 846 (1895); Marshall v Davies, 78 NY 414 (1879); Kupfer v Dalton, 169 AD2d 819, 565 NYS2d 188 (2d Dept 1991); Capone v Gannon, 150 AD2d 749, 542 NYS2d 199 (2d Dept 1989); Saleh v Sears , Roebuck & Co., 119 AD2d 652, 500 NYS2d 796 (2d Dept 1986); Young v Strong, 118 AD2d 974, 499 NYS2d 988 (3d Dept 1986); Hutchinson v Shaheen, 55 AD2d 833, 390 NYS2d 317 (4th Dept 1986).
[7] Capone v Gannon, 150 AD2d 749, 542 NYS2d 199 (2d Dept 1989); Saleh v Sears, Roebuck & Co., 119 AD2d 652, 500 NYS2d 796 (2d Dept 1986).
The party holding the affirmative may offer rebuttal evidence and the other party may offer sur-rebuttal evidence.[1]
A party is entitled to give rebuttal evidence. When the party holding the negative of an issue rests, the party who first put in his evidence may then put in evidence which rebuts or contradicts the evidence produced by the adverse party.[2] The evidence may not only contradict the evidence on the opposite side and corroborate that of the party who began, but also may controvert some affirmative fact which the answering party has endeavored to prove. [3]
Rebuttal evidence means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove.[4] Evidence which would have been proper as part of plaintiff's affirmative case, and which he has no right to introduce as affirmative evidence after the defendant has rested, may still be offered by the plaintiff if it tends to impeach or discredit the testimony of defendant.[5]
What evidence may properly be introduced in rebuttal rests in the sound discretion of the trial court,[6] and the court’s exercise of that discretion is ordinarily subject to review only for clear abuse or an improvident action.[7]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-201.
[2] Yeomans v Warren, 87 AD2d 713, 448 NYS2d 889 (3d Dept 1982); Seguin v Berg, 260 AD 284, 21 NYS2d 291 (1940).
[3] Marshall v. Davies, 78 NY 414 (1879); Yeomans v Warren, 87 AD2d 713, 448 NYS2d 889 (3d Dept 1982); Seguin v Berg, 260 AD 284, 21 NYS2d 291 (1940).
[4] Marshall v. Davies, 78 NY 414, 419-20 (1879).
[5] Winchell v. Winchell, 100 N. Y. 159; Ankersmit v. Tuch, 114 NY 51.
[6] People v Buchanan, 145 NY 1, 39 NE 846 (1895); Marshall v Davies, 78 NY 414 (1879); Kupfer v Dalton, 169 AD2d 819, 565 NYS2d 188 (2d Dept 1991); Capone v Gannon, 150 AD2d 749, 542 NYS2d 199 (2d Dept 1989); Saleh v Sears , Roebuck & Co., 119 AD2d 652, 500 NYS2d 796 (2d Dept 1986); Young v Strong, 118 AD2d 974, 499 NYS2d 988 (3d Dept 1986); Hutchinson v Shaheen, 55 AD2d 833, 390 NYS2d 317 (4th Dept 1986).
[7] Capone v Gannon, 150 AD2d 749, 542 NYS2d 199 (2d Dept 1989); Saleh v Sears, Roebuck & Co., 119 AD2d 652, 500 NYS2d 796 (2d Dept 1986).
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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