Conduct of Trial - Requirement that Witness Have Personal Knowledge
A witness must have personal knowledge of the facts to which he or she testifies. The requirement that a witness have personal knowledge of the facts to which she testifies is fundamental in the law of evidence.[1] Wigmore defined personal knowledge as "an impression derived from the exercise of [the witness'] own senses, not from the reports of others." [2] Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule providing that a witness may not testify to matter unless there is evidence sufficient to support a finding that he has personal knowledge of the matter excludes testimony concerning matters the witness did not observe or had no opportunity to observe.[3]
This rule does not apply to an out of court statement that is not subject to the hearsay rule, as long as the witness actually heard what was said by the out of court declarant. [4] Nor does it apply to an expert witness who may base his opinion on facts in evidence or facts made known to him during trial,[5] or who may rely, in part, on hearsay if it is of a kind that is accepted in the profession as reliable in forming a professional opinion.[6]
[1] 1 McCormick on Evidence (5th Ed.) § 10. See, e.g., People v. Di Loretto, 150 A.D.2d 920, 922, 541 N.Y.S.2d 260, 261 (3d Dep't).
[2] 2 Wigmore § 657, at 889. See Hallenbeck v. Vogt, 9 A.D.2d 836, 192 N.Y.S.2d 945 (3d Dep't 1959). See also Overseas Trust Bank v. Poon, 181 A.D.2d 762, 763, 581 N.Y.S.2d 92, 93 (2d Dep't 1992) (trial court properly excluded testimony of defendant's husband concerning wife's overseas travels during certain time period where it was "clear" that husband lacked personal knowledge).
[3] 1 McCormick On Evidence, 5th Ed. $ 10; See e.g. People v Di Loretto, 150 AD2d 920, 541 NYS2d 260 (3 Dept ); Hallenback v Vogt, 9 AD2d 836, 192 NYS2d 945 (3 Dept 1959); Overseas Trust Bank v Poon, 181 AD2d 762, 581 NYS2d 92 (2 Dept 1992)
[4] See 2 Wigmore on Evidence 657.
[5] See People v Keough, 276 NY 141 (1937).
[6] People v Sugden, 35 NY2d 453 (1974).
A witness must have personal knowledge of the facts to which he or she testifies. The requirement that a witness have personal knowledge of the facts to which she testifies is fundamental in the law of evidence.[1] Wigmore defined personal knowledge as "an impression derived from the exercise of [the witness'] own senses, not from the reports of others." [2] Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule providing that a witness may not testify to matter unless there is evidence sufficient to support a finding that he has personal knowledge of the matter excludes testimony concerning matters the witness did not observe or had no opportunity to observe.[3]
This rule does not apply to an out of court statement that is not subject to the hearsay rule, as long as the witness actually heard what was said by the out of court declarant. [4] Nor does it apply to an expert witness who may base his opinion on facts in evidence or facts made known to him during trial,[5] or who may rely, in part, on hearsay if it is of a kind that is accepted in the profession as reliable in forming a professional opinion.[6]
[1] 1 McCormick on Evidence (5th Ed.) § 10. See, e.g., People v. Di Loretto, 150 A.D.2d 920, 922, 541 N.Y.S.2d 260, 261 (3d Dep't).
[2] 2 Wigmore § 657, at 889. See Hallenbeck v. Vogt, 9 A.D.2d 836, 192 N.Y.S.2d 945 (3d Dep't 1959). See also Overseas Trust Bank v. Poon, 181 A.D.2d 762, 763, 581 N.Y.S.2d 92, 93 (2d Dep't 1992) (trial court properly excluded testimony of defendant's husband concerning wife's overseas travels during certain time period where it was "clear" that husband lacked personal knowledge).
[3] 1 McCormick On Evidence, 5th Ed. $ 10; See e.g. People v Di Loretto, 150 AD2d 920, 541 NYS2d 260 (3 Dept ); Hallenback v Vogt, 9 AD2d 836, 192 NYS2d 945 (3 Dept 1959); Overseas Trust Bank v Poon, 181 AD2d 762, 581 NYS2d 92 (2 Dept 1992)
[4] See 2 Wigmore on Evidence 657.
[5] See People v Keough, 276 NY 141 (1937).
[6] People v Sugden, 35 NY2d 453 (1974).
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.
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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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