Conduct of Trial - Voir Dire to Challenge Foundation for Introduction of Evidence
During the course of a trial the direct testimony of a witness may be interrupted, in the court's discretion, by cross-examination, known as "voir dire.” Voir dire may be requested when the opponent wishes to challenge the foundation for the introduction (or exclusion) of evidence, such as questions concerning the qualifications of an expert witness, the competency of a witness, the facts upon which a claim of privilege is based, and the authentication of evidence. If the voir dire exposes a defect in the foundation for the admission of the evidence, the inadmissible evidence will be excluded.[1]
As a general proposition, a party, who desires a voir dire hearing when the adverse party makes an offer of some matter in evidence, need not show any affirmative grounds but is entitled to attempt to elicit from the adverse party's witnesses sufficient grounds for its inadmissibility.[2]
[1] See Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 392, 393 N.Y.S.2d 341, 346, 361 N.E.2d 991, 996 (1977); Archer v. N.Y., N.H. & H.R.R. Co., 106 N.Y. 589, 603, 13 N.E. 318, 324 (1887) (accuracy of photograph); People v. Laws, 203 A.D.2d 34, 610 N.Y.S.2d 196 (1st Dep't 1994) (qualifications of expert witness); Finn v. Morgan, 46 A.D.2d 229, 235, 362 N.Y.S.2d 292, 300 (4th Dep't 1974) (basis for exception to attorney-client privilege.
[2] People v Riley, 46 Misc 2d 221, 224 (Sup Ct 1965).
During the course of a trial the direct testimony of a witness may be interrupted, in the court's discretion, by cross-examination, known as "voir dire.” Voir dire may be requested when the opponent wishes to challenge the foundation for the introduction (or exclusion) of evidence, such as questions concerning the qualifications of an expert witness, the competency of a witness, the facts upon which a claim of privilege is based, and the authentication of evidence. If the voir dire exposes a defect in the foundation for the admission of the evidence, the inadmissible evidence will be excluded.[1]
As a general proposition, a party, who desires a voir dire hearing when the adverse party makes an offer of some matter in evidence, need not show any affirmative grounds but is entitled to attempt to elicit from the adverse party's witnesses sufficient grounds for its inadmissibility.[2]
[1] See Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 392, 393 N.Y.S.2d 341, 346, 361 N.E.2d 991, 996 (1977); Archer v. N.Y., N.H. & H.R.R. Co., 106 N.Y. 589, 603, 13 N.E. 318, 324 (1887) (accuracy of photograph); People v. Laws, 203 A.D.2d 34, 610 N.Y.S.2d 196 (1st Dep't 1994) (qualifications of expert witness); Finn v. Morgan, 46 A.D.2d 229, 235, 362 N.Y.S.2d 292, 300 (4th Dep't 1974) (basis for exception to attorney-client privilege.
[2] People v Riley, 46 Misc 2d 221, 224 (Sup Ct 1965).
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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