|
Conduct of Trial - Right to Call Witnesses for Direct Examination
The Court of Appeals has held that the right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process. A party has the right to have the witness sworn and to ask questions of him. Upon proper objection, the court is entitled to rule on the admissibility of the evidence offered. Unless the offer of evidence is palpably in bad faith, the court should not exclude the witness from testifying. [1]
The right to present evidence is essential to the fair hearing required by the Due Process Clause" [2] and the testimony of a witness may not be excluded prospectively unless offered in bad faith.[3] However, a court may refuse to permit a witness to be called to testify where the witness testimony will be cumulative.[4]
Generally, sound trial practice demands that every witness be questioned in the first instance on all relevant matters of which he has knowledge and be excused at the completion of this testimony, as recall at a later point in trial not only may inject untoward administrative burdens into litigation by reopening a whole range of prior testimony, but may also unfairly disadvantage the adversary in his ability to meet proof or unnecessarily divert the jury's attention away from material issues of case. In certain situations, the trial court may find it necessary to depart from this general rule and may do so in its discretion. Recall of a witness for redirect examination is subject to the discretion of the court.[5]
Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case. The power to permit deviation is an integral part of the Trial Judge's function. This power to control the case is discretionary and its exercise is not reviewable, except for a clear abuse of discretion.[6]
The order of introducing evidence and the time when it may be introduced are matters resting in the discretion of the trial court.[7] This rule[8] recognizes the court's power to permit the introduction of evidence after the close of the offeror’s case[9] or prohibit the same.[10] Also within the trial court's control is the method and duration of cross-examination to determine a witness' credibility or accuracy.[11]
While the court may not deprive a party of the right to inquire into matters "directly relevant to the principal issues of the case against him”, [12] it may, in the proper exercise of discretion, restrict inquiry into collateral matters or prohibit unnecessarily repetitive examination.[13]
[1] People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of Hopkins, J.
[2] Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, 1853, 23 L.Ed.2d 404.
In Beverly B v Rossannh B, 34 A.D.3d 314, 824 N.Y.S.2d 633 (1st Dept., 2006) petitioner was not allowed to testify or offer any other evidence to rebut, or even the opportunity to confront and cross-examine any adverse witnesses. The record was replete with instances in which the Referee refused to let petitioner speak, talked over her, and reprimanded her for trying to present her position. The court held that every party to a proceeding has a fundamental right to be heard. Since the fundamental right to be heard was not afforded petitioner, the order was vacated.
In Shagoury v Shagoury, 39 A.D.3d 527, 835 N.Y.S.2d 215 (2d Dept., 2007) the Appellate Division reversed a judgment which, after a nonjury trial, inter alia, granted the plaintiff wife a divorce on the ground of cruel and inhuman treatment. A new trial was required because the trial court impermissibly and repeatedly precluded the husband from eliciting relevant testimony in his defense, as well as in support of the factual allegations contained in his counterclaim, and thereby deprived him of a fair trial.
In Matter of Thomson v Battle, 99 A.D.3d 804, 952 N.Y.S.2d 251 (2d Dept., 2012) the Appellate Division held that Family Court erred in concluding the custody hearing without allowing respondent an opportunity call any witnesses or introduce any evidence. In a proceeding seeking modification of a prior custody order, a full and comprehensive hearing is required. Due process requires that a parent be afforded a full and fair opportunity to be heard. The mother's due process rights were violated when the hearing was concluded without her being permitted to present any evidence, call the father or any other witnesses, or properly answer the allegations asserted against her. The record revealed that the father sought, through his attorney, to prolong the hearing and interfere with the mother's right to be heard by engaging in an extended direct examination filled with irrelevant details and unsubstantiated accusations. The Court Attorney Referee, by repeatedly refusing to appropriately limit the father's inquiry and by abruptly concluding the hearing without allowing the mother to present her case, failed to ensure that the mother was afforded a full and fair opportunity to be heard.
In Matter of Gerhardt v Baker, 140 A.D.3d 1635, 34 N.Y.S.3d 277 (4th Dept.,2016) the Appellate Division reversed an order of the Family Court on the ground that the father was not properly advised of his right to counsel and the Support Magistrate erred in failing to conduct a proper hearing on the father’s modification petition. It held that while a hearing on a petition for modification of a support obligation need not follow any particular format the hearing in this matter was “‘inherently flawed’ “. The father was not offered an opportunity to testify, nor was he permitted to present the sworn testimony of any other witnesses, and the cursory handling of this matter by the Support Magistrate did not provide a substitute for the meaningful hearing to which the father was entitled.
[3] People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of Hopkins, J.; People v. McClinton, 75 A.D.2d 900, 428 N.Y.S.2d 61; People v. Forbes, 87 A.D.2d 829, 449 N.Y.S.2d 9). See also People v. Daly, 98 A.D.2d 803, 470 N.Y.S.2d 165.
[4] In Bennett v McGorry, 34 A.D.3d 1290, 827 N.Y.S.2d 381 (4th Dept., 2006) plaintiff sought, inter alia, an order directing defendant to contribute to the college expenses of the parties' eldest daughter pursuant to the terms of the agreement. The Appellate Division held that the court properly exercised its discretion in refusing to permit the parties to call their eldest daughter as a witness, inasmuch as the daughter had no relevant testimony to offer on the matters at issue. (Citing, alia, Prince, Richardson on Evidence § 4-102 [Farrell 11th Ed]).
[5] Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751, 404 N.E.2d 1293 (1980).
[6] See Richardson, Evidence (11th Ed. Farrell), § 6-201, pp. 349-351.
[7] Feldsberg v Nitschke, 49 NY2d 636, 427 NYS2d 751, 404 NE2d 1293 (1980);
Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. (39 U.S.) 448, 463, 10 L.Ed. 535; 6 Wigmore, Evidence (3d Ed.), § 1867, p. 498.
[8] 6 Wigmore, 1867, p. 498.
[9] People v. Koerner, 154 N.Y. 355, 48 N.E. 730; Wright v. Reusens, 133 N.Y. 298, 307, 31 N.E. 215.
[10] Agate v. Morrison, 84 N.Y. 672.
[11] See Langley v. Wadsworth, 99 N.Y. 61, 63, 1 N.E. 106.
In re Kasprowicz, 101 A.D.3d 1760, 956 N.Y.S.2d 786 ( 4 Dept., 2012) the Appellate Division held that any alleged error by the Support Magistrate in relying on documents not in evidence in making its determination as to the father's credibility was harmless because that credibility determination was supported by admissible evidence.
[12] People v. Ramistella, 306 N.Y. 379, 384, 118 N.E.2d 566.
[13] See People v. Braun, 158 N.Y. 558, 567-569, 53 N.E. 529; Matter of Friedel v. Board of Regents, 296 N.Y. 347, 351, 73 N.E.2d 545.
The Court of Appeals has held that the right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process. A party has the right to have the witness sworn and to ask questions of him. Upon proper objection, the court is entitled to rule on the admissibility of the evidence offered. Unless the offer of evidence is palpably in bad faith, the court should not exclude the witness from testifying. [1]
The right to present evidence is essential to the fair hearing required by the Due Process Clause" [2] and the testimony of a witness may not be excluded prospectively unless offered in bad faith.[3] However, a court may refuse to permit a witness to be called to testify where the witness testimony will be cumulative.[4]
Generally, sound trial practice demands that every witness be questioned in the first instance on all relevant matters of which he has knowledge and be excused at the completion of this testimony, as recall at a later point in trial not only may inject untoward administrative burdens into litigation by reopening a whole range of prior testimony, but may also unfairly disadvantage the adversary in his ability to meet proof or unnecessarily divert the jury's attention away from material issues of case. In certain situations, the trial court may find it necessary to depart from this general rule and may do so in its discretion. Recall of a witness for redirect examination is subject to the discretion of the court.[5]
Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case. The power to permit deviation is an integral part of the Trial Judge's function. This power to control the case is discretionary and its exercise is not reviewable, except for a clear abuse of discretion.[6]
The order of introducing evidence and the time when it may be introduced are matters resting in the discretion of the trial court.[7] This rule[8] recognizes the court's power to permit the introduction of evidence after the close of the offeror’s case[9] or prohibit the same.[10] Also within the trial court's control is the method and duration of cross-examination to determine a witness' credibility or accuracy.[11]
While the court may not deprive a party of the right to inquire into matters "directly relevant to the principal issues of the case against him”, [12] it may, in the proper exercise of discretion, restrict inquiry into collateral matters or prohibit unnecessarily repetitive examination.[13]
[1] People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of Hopkins, J.
[2] Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, 1853, 23 L.Ed.2d 404.
In Beverly B v Rossannh B, 34 A.D.3d 314, 824 N.Y.S.2d 633 (1st Dept., 2006) petitioner was not allowed to testify or offer any other evidence to rebut, or even the opportunity to confront and cross-examine any adverse witnesses. The record was replete with instances in which the Referee refused to let petitioner speak, talked over her, and reprimanded her for trying to present her position. The court held that every party to a proceeding has a fundamental right to be heard. Since the fundamental right to be heard was not afforded petitioner, the order was vacated.
In Shagoury v Shagoury, 39 A.D.3d 527, 835 N.Y.S.2d 215 (2d Dept., 2007) the Appellate Division reversed a judgment which, after a nonjury trial, inter alia, granted the plaintiff wife a divorce on the ground of cruel and inhuman treatment. A new trial was required because the trial court impermissibly and repeatedly precluded the husband from eliciting relevant testimony in his defense, as well as in support of the factual allegations contained in his counterclaim, and thereby deprived him of a fair trial.
In Matter of Thomson v Battle, 99 A.D.3d 804, 952 N.Y.S.2d 251 (2d Dept., 2012) the Appellate Division held that Family Court erred in concluding the custody hearing without allowing respondent an opportunity call any witnesses or introduce any evidence. In a proceeding seeking modification of a prior custody order, a full and comprehensive hearing is required. Due process requires that a parent be afforded a full and fair opportunity to be heard. The mother's due process rights were violated when the hearing was concluded without her being permitted to present any evidence, call the father or any other witnesses, or properly answer the allegations asserted against her. The record revealed that the father sought, through his attorney, to prolong the hearing and interfere with the mother's right to be heard by engaging in an extended direct examination filled with irrelevant details and unsubstantiated accusations. The Court Attorney Referee, by repeatedly refusing to appropriately limit the father's inquiry and by abruptly concluding the hearing without allowing the mother to present her case, failed to ensure that the mother was afforded a full and fair opportunity to be heard.
In Matter of Gerhardt v Baker, 140 A.D.3d 1635, 34 N.Y.S.3d 277 (4th Dept.,2016) the Appellate Division reversed an order of the Family Court on the ground that the father was not properly advised of his right to counsel and the Support Magistrate erred in failing to conduct a proper hearing on the father’s modification petition. It held that while a hearing on a petition for modification of a support obligation need not follow any particular format the hearing in this matter was “‘inherently flawed’ “. The father was not offered an opportunity to testify, nor was he permitted to present the sworn testimony of any other witnesses, and the cursory handling of this matter by the Support Magistrate did not provide a substitute for the meaningful hearing to which the father was entitled.
[3] People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of Hopkins, J.; People v. McClinton, 75 A.D.2d 900, 428 N.Y.S.2d 61; People v. Forbes, 87 A.D.2d 829, 449 N.Y.S.2d 9). See also People v. Daly, 98 A.D.2d 803, 470 N.Y.S.2d 165.
[4] In Bennett v McGorry, 34 A.D.3d 1290, 827 N.Y.S.2d 381 (4th Dept., 2006) plaintiff sought, inter alia, an order directing defendant to contribute to the college expenses of the parties' eldest daughter pursuant to the terms of the agreement. The Appellate Division held that the court properly exercised its discretion in refusing to permit the parties to call their eldest daughter as a witness, inasmuch as the daughter had no relevant testimony to offer on the matters at issue. (Citing, alia, Prince, Richardson on Evidence § 4-102 [Farrell 11th Ed]).
[5] Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751, 404 N.E.2d 1293 (1980).
[6] See Richardson, Evidence (11th Ed. Farrell), § 6-201, pp. 349-351.
[7] Feldsberg v Nitschke, 49 NY2d 636, 427 NYS2d 751, 404 NE2d 1293 (1980);
Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. (39 U.S.) 448, 463, 10 L.Ed. 535; 6 Wigmore, Evidence (3d Ed.), § 1867, p. 498.
[8] 6 Wigmore, 1867, p. 498.
[9] People v. Koerner, 154 N.Y. 355, 48 N.E. 730; Wright v. Reusens, 133 N.Y. 298, 307, 31 N.E. 215.
[10] Agate v. Morrison, 84 N.Y. 672.
[11] See Langley v. Wadsworth, 99 N.Y. 61, 63, 1 N.E. 106.
In re Kasprowicz, 101 A.D.3d 1760, 956 N.Y.S.2d 786 ( 4 Dept., 2012) the Appellate Division held that any alleged error by the Support Magistrate in relying on documents not in evidence in making its determination as to the father's credibility was harmless because that credibility determination was supported by admissible evidence.
[12] People v. Ramistella, 306 N.Y. 379, 384, 118 N.E.2d 566.
[13] See People v. Braun, 158 N.Y. 558, 567-569, 53 N.E. 529; Matter of Friedel v. Board of Regents, 296 N.Y. 347, 351, 73 N.E.2d 545.
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.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. 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.
|