Conduct of Trial - Right to Cross-Examination of Witness
After the direct examination of a witness is completed, the adverse party is entitled to question the witness as to anything elicited on direct examination and to impeach the witness. This is called "cross-examination”.
Cross-examination of an adverse witness is matter of right in every trial of disputed issues of fact.[1]
Where a party calls himself as a witness and is examined in chief, the opposite party may go into the whole case on cross-examination, and need not confine himself to a cross-examination on the matters that were the subject of the direct examination.[2]
It is discretionary with the trial judge as to the extent to which he will permit cross-examination relating to collateral matters.[3]
If cross-examination of a witness becomes impossible, that witness’ testimony on direct examination must be stricken.[4] The denial of a motion to strike on this ground ordinarily is reversible error.[5] Where a witness refuses to answer a pertinent question on cross-examination, his testimony in chief should be stricken out.[6] The First Department has held that when a party, through no fault of its own, is deprived of the benefit of the cross-examination of a witness, a court may strike that witness's direct testimony in whole or in part.[7]
A party is entitled to considerable latitude in the examination of an adverse witness, and it is error to exclude questions to such witnesses directed to eliciting material testimony.[8]
Where the wife disputed the husband's claim in their divorce action that he had been locked out of the marital apartment, and testified that the husband had left her without justification for another woman, and at one point in the husband's cross-examination it was brought out that he had purchased furniture and had caused it to be delivered to an unidentified woman, it was held that the trial court should have permitted inquiry into the nature of the husband's relationship with that woman and should have permitted cross-examination of one of the husband's witnesses as to whether the witness knew that husband was living with another woman. [9]
In a proceeding against a former wife for custody of the parties child, the restriction of the wife's cross-examination of the husband with relation to circumstances which brought about the divorce was held to be erroneous, since the widest latitude should have been allowed in inquiring into the question as to whether the estrangement of the parents was based upon misconduct of the wife or the husband's desire to marry another woman.[10]
[1] Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892 (1st Dept., 1996).
In Waldman v. Waldman, 95 AD2d 827, 463 N.Y.S.2d 868 (2d Dept.,1983) the Appellate Division held that the parties to the divorce action could not be forced to consent to the loss of their right to confrontation and cross-examination on issues involving custody or visitation.
In re Dominic B., 138 A.D.3d 1395, 30 N.Y.S.3d 769 (4th Dept, 2016) the Appellate Division reversed an order which, inter alia, adjudged that respondent had neglected the child. It held that Family Court, in granting the petition, erred in relying on a psychological evaluation of the mother that was not received in evidence. “[I]t is a fundamental requirement of due process that the decision maker's conclusions must rest solely on legal rules and the evidence adduced at the hearing. Although the parties had expressly stipulated that the evaluation would not be used as evidence in any fact-finding hearing in this matter, or as a basis for seeking to amend the neglect petition, the court relied heavily upon the evaluation in reaching its determination. Under the circumstances of this case that a new fact-finding hearing was required based on the court's violation of the mother's right to due process. It also concluded that the court's failure to afford the mother the opportunity to cross-examine a key witness, i.e., a caseworker for petitioner, constituted a denial of her right to due process, which also required reversal.
In Middlemiss v. Pratt, 86 A.D.3d 658, 926 N.Y.S.2d 720 (3d Dept., 2011), a custody proceeding, Family Court denied the father due process by refusing him any opportunity to cross-examine a key witness, the mother, present any witnesses or even testify on his own behalf.
[2] Livingston v. Keech, 34 N.Y.Super.Ct. 547, 2 Jones & S. 547 (N.Y.Super.,1872)
[3] La Beau v. People, 34 N.Y. 223 (1866)
[4] Diocese of Buffalo v McCarthy, 91 AD2d 213, 458 NYS2d 764 (4th Dept 1983); Bartkowiak v St. Adalbert’s Roman Catholic Church Soc., 40 AD2d 306, 340 NYS2d 137 (4th Dept 1973).
In Superior Sales & Salvage, Inc. v. Time Release Sciences, Inc., 643 N.Y.S.2d 291 (4th Dept.,1996) the Appellate Division held that the trial court did not err in permitting defendant's witness to go on vacation and to conclude his cross-examination testimony by speaker phone, where the witness' testimony had been delayed by the actions of plaintiff's attorney, and the jury had ample opportunity to observe the demeanor of the witness during that portion of cross-examination conducted in the courtroom.
[5] Sturm v Atlantic Mut. Ins. Co., 63 NY 77 (1875); Gallagher v Gallagher, 92 AD 138, 87 NYS 343 (1904); Helmken v New York, 90 AD 135, 85 NYS 1048 (1904); Morley v Castor, 63 AD 38, 71 NYS 363 (1901); Goldmark v Metropolitan Opera-House Co., 22 NYS 136 (Sup 1893).
In Matter of Middlemiss v Pratt, 86 A.D.3d 658, 926 N.Y.S.2d 720 (3d Dept., 2016), during the fact-finding hearing, the mother completed her direct testimony but, due to witness availability and upon the consent of the parties, witnesses were then taken out of order, and the father was not afforded an opportunity to cross-examine the mother. The mother called several more witnesses, including the child, who testified in open court under oath. After the child testified, Family Court, sua sponte, concluded that it did not need to permit any cross-examination of the mother or any testimony from the father, or to allow the presentation of any further evidence in order to reach a decision. The court then concluded the proceeding and issued an order embodying its decision. The Appellate Division reversed on the law. It held that Family Court deprived him of his right to procedural due process. Although the father did not preserve this argument through objection, it was held to be properly before the Appellate Division, as Family Court's abrupt termination of the proceedings afforded him no opportunity to enter any objection. In a proceeding seeking modification of a prior custody order, a “‘full and comprehensive hearing' " is required. At such a hearing, due process requires that a parent be afforded a full and fair opportunity to be heard. Family Court abjectly denied the father due process by refusing him any opportunity to cross-examine a key witness, the mother, present any witnesses or even testify on his own behalf. It revered and remitted for a full hearing on the merits.
[6] In Gallagher v. Gallagher, 92 A.D. 138, 139-40, 87 N.Y.S. 343 (3d Dept 1904) at trial the defendant called the co-respondent as a witness, and his testimony proved facts from which the only legitimate inference was that the plaintiff had committed adultery with him. On cross-examination the plaintiff asked the witness whether he had intercourse with the plaintiff at the time testified to by him. The witness declined to answer. The plaintiff pressed the question and requested the court to direct the witness to answer, which the court did, and the witness still refused. The plaintiff moved to strike his direct testimony upon that point and the motion was denied. The Appellate Divison held that this was reversible error. The court should either have compelled the witness to answer, or should have stricken his testimony from the record. A party has the right to cross-examine a witness produced against him by his adversary, and to have an answer to pertinent questions relating to testimony given on direct examination. The penalty for a denial of this right is the rejection of the testimony given in chief.
In Neita W v. Canute W, 453 N.Y.S.2d 278 (Fam. Ct.,1981) the court held that where a witness, following his direct examination, unjustifiably refuses to answer material questions on cross-examination, the direct testimony of the witness should be stricken.
In Kissam v. Forrest, 25 Wend. 651, at the close of the direct examination of a witness and before the party had an opportunity to cross-examine, the court adjourned the matter. Pending the adjournment the witness died. The direct testimony was rejected, and a new trial granted.
In People v. Cole, 43 N. Y. 508, a witness fainted at the close of her direct examination and became so ill that a cross-examination was impossible. The court refused to strike out the evidence given in chief or adjourn the trial until the witness was able to be cross-examined. This was held error and the conviction was reversed.
[7] Cohen v Cohen, 120 A.D.3d 1060, 993 N.Y.S.2d 4(1st Dept., 2014) (Citing Gallagher v. Gallagher, 92 App.Div. 138, 140 [1904]; Diocese of Buffalo v. McCarthy, 91 A.D.2d 213, 220 [4th Dept 1983])
[8] Smith v. Crocker, 3 A.D. 471 38 N.Y.S. 268 (1st Dept., 1896).
[9] Walden v. Walden, 41 A.D.2d 664, 340 N.Y.S.2d 709 (2d Dept., 1973).
[10] Shuttleworth v. Shuttleworth, 255 A.D. 440, 7 N.Y.S.2d 828 (1st Dept., 1938).
After the direct examination of a witness is completed, the adverse party is entitled to question the witness as to anything elicited on direct examination and to impeach the witness. This is called "cross-examination”.
Cross-examination of an adverse witness is matter of right in every trial of disputed issues of fact.[1]
Where a party calls himself as a witness and is examined in chief, the opposite party may go into the whole case on cross-examination, and need not confine himself to a cross-examination on the matters that were the subject of the direct examination.[2]
It is discretionary with the trial judge as to the extent to which he will permit cross-examination relating to collateral matters.[3]
If cross-examination of a witness becomes impossible, that witness’ testimony on direct examination must be stricken.[4] The denial of a motion to strike on this ground ordinarily is reversible error.[5] Where a witness refuses to answer a pertinent question on cross-examination, his testimony in chief should be stricken out.[6] The First Department has held that when a party, through no fault of its own, is deprived of the benefit of the cross-examination of a witness, a court may strike that witness's direct testimony in whole or in part.[7]
A party is entitled to considerable latitude in the examination of an adverse witness, and it is error to exclude questions to such witnesses directed to eliciting material testimony.[8]
Where the wife disputed the husband's claim in their divorce action that he had been locked out of the marital apartment, and testified that the husband had left her without justification for another woman, and at one point in the husband's cross-examination it was brought out that he had purchased furniture and had caused it to be delivered to an unidentified woman, it was held that the trial court should have permitted inquiry into the nature of the husband's relationship with that woman and should have permitted cross-examination of one of the husband's witnesses as to whether the witness knew that husband was living with another woman. [9]
In a proceeding against a former wife for custody of the parties child, the restriction of the wife's cross-examination of the husband with relation to circumstances which brought about the divorce was held to be erroneous, since the widest latitude should have been allowed in inquiring into the question as to whether the estrangement of the parents was based upon misconduct of the wife or the husband's desire to marry another woman.[10]
[1] Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892 (1st Dept., 1996).
In Waldman v. Waldman, 95 AD2d 827, 463 N.Y.S.2d 868 (2d Dept.,1983) the Appellate Division held that the parties to the divorce action could not be forced to consent to the loss of their right to confrontation and cross-examination on issues involving custody or visitation.
In re Dominic B., 138 A.D.3d 1395, 30 N.Y.S.3d 769 (4th Dept, 2016) the Appellate Division reversed an order which, inter alia, adjudged that respondent had neglected the child. It held that Family Court, in granting the petition, erred in relying on a psychological evaluation of the mother that was not received in evidence. “[I]t is a fundamental requirement of due process that the decision maker's conclusions must rest solely on legal rules and the evidence adduced at the hearing. Although the parties had expressly stipulated that the evaluation would not be used as evidence in any fact-finding hearing in this matter, or as a basis for seeking to amend the neglect petition, the court relied heavily upon the evaluation in reaching its determination. Under the circumstances of this case that a new fact-finding hearing was required based on the court's violation of the mother's right to due process. It also concluded that the court's failure to afford the mother the opportunity to cross-examine a key witness, i.e., a caseworker for petitioner, constituted a denial of her right to due process, which also required reversal.
In Middlemiss v. Pratt, 86 A.D.3d 658, 926 N.Y.S.2d 720 (3d Dept., 2011), a custody proceeding, Family Court denied the father due process by refusing him any opportunity to cross-examine a key witness, the mother, present any witnesses or even testify on his own behalf.
[2] Livingston v. Keech, 34 N.Y.Super.Ct. 547, 2 Jones & S. 547 (N.Y.Super.,1872)
[3] La Beau v. People, 34 N.Y. 223 (1866)
[4] Diocese of Buffalo v McCarthy, 91 AD2d 213, 458 NYS2d 764 (4th Dept 1983); Bartkowiak v St. Adalbert’s Roman Catholic Church Soc., 40 AD2d 306, 340 NYS2d 137 (4th Dept 1973).
In Superior Sales & Salvage, Inc. v. Time Release Sciences, Inc., 643 N.Y.S.2d 291 (4th Dept.,1996) the Appellate Division held that the trial court did not err in permitting defendant's witness to go on vacation and to conclude his cross-examination testimony by speaker phone, where the witness' testimony had been delayed by the actions of plaintiff's attorney, and the jury had ample opportunity to observe the demeanor of the witness during that portion of cross-examination conducted in the courtroom.
[5] Sturm v Atlantic Mut. Ins. Co., 63 NY 77 (1875); Gallagher v Gallagher, 92 AD 138, 87 NYS 343 (1904); Helmken v New York, 90 AD 135, 85 NYS 1048 (1904); Morley v Castor, 63 AD 38, 71 NYS 363 (1901); Goldmark v Metropolitan Opera-House Co., 22 NYS 136 (Sup 1893).
In Matter of Middlemiss v Pratt, 86 A.D.3d 658, 926 N.Y.S.2d 720 (3d Dept., 2016), during the fact-finding hearing, the mother completed her direct testimony but, due to witness availability and upon the consent of the parties, witnesses were then taken out of order, and the father was not afforded an opportunity to cross-examine the mother. The mother called several more witnesses, including the child, who testified in open court under oath. After the child testified, Family Court, sua sponte, concluded that it did not need to permit any cross-examination of the mother or any testimony from the father, or to allow the presentation of any further evidence in order to reach a decision. The court then concluded the proceeding and issued an order embodying its decision. The Appellate Division reversed on the law. It held that Family Court deprived him of his right to procedural due process. Although the father did not preserve this argument through objection, it was held to be properly before the Appellate Division, as Family Court's abrupt termination of the proceedings afforded him no opportunity to enter any objection. In a proceeding seeking modification of a prior custody order, a “‘full and comprehensive hearing' " is required. At such a hearing, due process requires that a parent be afforded a full and fair opportunity to be heard. Family Court abjectly denied the father due process by refusing him any opportunity to cross-examine a key witness, the mother, present any witnesses or even testify on his own behalf. It revered and remitted for a full hearing on the merits.
[6] In Gallagher v. Gallagher, 92 A.D. 138, 139-40, 87 N.Y.S. 343 (3d Dept 1904) at trial the defendant called the co-respondent as a witness, and his testimony proved facts from which the only legitimate inference was that the plaintiff had committed adultery with him. On cross-examination the plaintiff asked the witness whether he had intercourse with the plaintiff at the time testified to by him. The witness declined to answer. The plaintiff pressed the question and requested the court to direct the witness to answer, which the court did, and the witness still refused. The plaintiff moved to strike his direct testimony upon that point and the motion was denied. The Appellate Divison held that this was reversible error. The court should either have compelled the witness to answer, or should have stricken his testimony from the record. A party has the right to cross-examine a witness produced against him by his adversary, and to have an answer to pertinent questions relating to testimony given on direct examination. The penalty for a denial of this right is the rejection of the testimony given in chief.
In Neita W v. Canute W, 453 N.Y.S.2d 278 (Fam. Ct.,1981) the court held that where a witness, following his direct examination, unjustifiably refuses to answer material questions on cross-examination, the direct testimony of the witness should be stricken.
In Kissam v. Forrest, 25 Wend. 651, at the close of the direct examination of a witness and before the party had an opportunity to cross-examine, the court adjourned the matter. Pending the adjournment the witness died. The direct testimony was rejected, and a new trial granted.
In People v. Cole, 43 N. Y. 508, a witness fainted at the close of her direct examination and became so ill that a cross-examination was impossible. The court refused to strike out the evidence given in chief or adjourn the trial until the witness was able to be cross-examined. This was held error and the conviction was reversed.
[7] Cohen v Cohen, 120 A.D.3d 1060, 993 N.Y.S.2d 4(1st Dept., 2014) (Citing Gallagher v. Gallagher, 92 App.Div. 138, 140 [1904]; Diocese of Buffalo v. McCarthy, 91 A.D.2d 213, 220 [4th Dept 1983])
[8] Smith v. Crocker, 3 A.D. 471 38 N.Y.S. 268 (1st Dept., 1896).
[9] Walden v. Walden, 41 A.D.2d 664, 340 N.Y.S.2d 709 (2d Dept., 1973).
[10] Shuttleworth v. Shuttleworth, 255 A.D. 440, 7 N.Y.S.2d 828 (1st Dept., 1938).
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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