Trial Testimony - Calling the Adverse Party as a Witness
When an adverse party is called as a witness, it may be assumed that the adverse party is a hostile witness, and, in the discretion of the court, the direct examination may assume the nature of cross-examination by the use of leading questions. However, a party may not impeach the credibility of a witness whom he calls unless the witness made a contradictory statement either under oath or in writing. [1]
The Court of Appeals has stated that when a party calls an adverse party as a witness due to the exigencies of his case, all the rules applicable to the examination of other witnesses do not strictly apply. An adverse witness may be cross-examined, and leading questions asked by the party calling him.[2]
While the adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the discretion of the trial court. It has been held that the trial Court did not err in prohibiting the mother's counsel from asking the father, in a custody modification proceeding, several leading questions regarding the children's possession of a gun, absent a showing that the father was a hostile witness. The father had been neither reluctant nor evasive in answering non-leading questions, including several regarding the children and guns, and counsel made no effort to elicit the information being sought through non-leading questions.[3]
Counsel may show prior inconsistent statements to discredit the adverse party even though oral and not made under oath. Such statements are treated as admissions of a party.[4]
[1] Jordan v Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept.,1988)
[2] Becker v Koch, 104 N.Y. 394, 10 N.E. 701 (1887).
In Ferri v Ferri, 60 A.D.3d 625, 878 N.Y.S.2d 67 (2d Dept. 2009) the Appellate Division held that Supreme Court properly permitted the defendant to be treated as a hostile witness at the trial. Where an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross-examination by the use of leading questions. Moreover, the general rule prohibiting a party from impeaching his or her own witness does not preclude a hostile witness from being impeached by prior statements made either under oath or in writing.
In Ciaccio v. Housman, 97 Misc.2d 367, 411 N.Y.S.2d 524 (Sup.Ct., 1978) the court held that in calling an adverse party doctor as a plaintiff's witness, it must be assumed that the adverse party is a hostile witness. Therefore, questioning counsel may ask such a witness leading questions. Under that circumstance, the direct examination, in the discretion of the court, may assume the nature of cross-examination.
In W. v. D., 36 A.D.2d 455, 324 N.Y.S.2d 333 (4th Dept., 1971) the Appellate Division held that a party who calls the adverse party as witness must not be bound by latter's answers and must be permitted to lead and cross-examine him, and this is particularly so in type of case in which an examination before trial is not permitted.
[3] In Maria A.M. v Dextor N., 95 A.D.3d 578, 944 N.Y.S.2d 91 (1st Dept., 2012) the Respondent's counsel called petitioner as a witness but did not request that she be declared a hostile witness and made no showing that she was either lying or unwilling to answer his questions. As a consequence thereof, the referee properly sustained the objection to the leading questions counsel asked petitioner.
In Matter of Amanda L., 302 A.D.2d 1004, 754 N.Y.S.2d 494 (4th Dept., 2003)) the Appellate Division rejected the respondents’ contention that Family Court erred in refusing to allow leading questions of his own witness: his wife and the children's mother. That ruling was proper inasmuch as the witness was not adverse to respondent and did not otherwise appear hostile toward respondent or unwilling to answer his attorney's questions.
In Matter of Ostrander v Ostrander, 280 A.D.2d 793, 720 N.Y.S.2d 635 (3 Dept., 2001) the Court stated that while an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the discretion of the trial court. The record disclosed that respondent was neither reluctant nor evasive in answering questions posed during direct examination, including several questions regarding the children and guns. When the objections to the leading questions were sustained, petitioner's counsel made no effort to elicit the information through questions which were not leading and petitioner did not claim that such questions were not feasible or that their use would have been frustrated by respondent's hostility as an adverse party. In these circumstances, there was no reversible error in Family Court's ruling.
[4] Koester v. Rochester Candy works, 194 N.Y. 92; Hanrahan v. New York Edison Co., 238 N.Y. 194.
When an adverse party is called as a witness, it may be assumed that the adverse party is a hostile witness, and, in the discretion of the court, the direct examination may assume the nature of cross-examination by the use of leading questions. However, a party may not impeach the credibility of a witness whom he calls unless the witness made a contradictory statement either under oath or in writing. [1]
The Court of Appeals has stated that when a party calls an adverse party as a witness due to the exigencies of his case, all the rules applicable to the examination of other witnesses do not strictly apply. An adverse witness may be cross-examined, and leading questions asked by the party calling him.[2]
While the adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the discretion of the trial court. It has been held that the trial Court did not err in prohibiting the mother's counsel from asking the father, in a custody modification proceeding, several leading questions regarding the children's possession of a gun, absent a showing that the father was a hostile witness. The father had been neither reluctant nor evasive in answering non-leading questions, including several regarding the children and guns, and counsel made no effort to elicit the information being sought through non-leading questions.[3]
Counsel may show prior inconsistent statements to discredit the adverse party even though oral and not made under oath. Such statements are treated as admissions of a party.[4]
[1] Jordan v Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept.,1988)
[2] Becker v Koch, 104 N.Y. 394, 10 N.E. 701 (1887).
In Ferri v Ferri, 60 A.D.3d 625, 878 N.Y.S.2d 67 (2d Dept. 2009) the Appellate Division held that Supreme Court properly permitted the defendant to be treated as a hostile witness at the trial. Where an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross-examination by the use of leading questions. Moreover, the general rule prohibiting a party from impeaching his or her own witness does not preclude a hostile witness from being impeached by prior statements made either under oath or in writing.
In Ciaccio v. Housman, 97 Misc.2d 367, 411 N.Y.S.2d 524 (Sup.Ct., 1978) the court held that in calling an adverse party doctor as a plaintiff's witness, it must be assumed that the adverse party is a hostile witness. Therefore, questioning counsel may ask such a witness leading questions. Under that circumstance, the direct examination, in the discretion of the court, may assume the nature of cross-examination.
In W. v. D., 36 A.D.2d 455, 324 N.Y.S.2d 333 (4th Dept., 1971) the Appellate Division held that a party who calls the adverse party as witness must not be bound by latter's answers and must be permitted to lead and cross-examine him, and this is particularly so in type of case in which an examination before trial is not permitted.
[3] In Maria A.M. v Dextor N., 95 A.D.3d 578, 944 N.Y.S.2d 91 (1st Dept., 2012) the Respondent's counsel called petitioner as a witness but did not request that she be declared a hostile witness and made no showing that she was either lying or unwilling to answer his questions. As a consequence thereof, the referee properly sustained the objection to the leading questions counsel asked petitioner.
In Matter of Amanda L., 302 A.D.2d 1004, 754 N.Y.S.2d 494 (4th Dept., 2003)) the Appellate Division rejected the respondents’ contention that Family Court erred in refusing to allow leading questions of his own witness: his wife and the children's mother. That ruling was proper inasmuch as the witness was not adverse to respondent and did not otherwise appear hostile toward respondent or unwilling to answer his attorney's questions.
In Matter of Ostrander v Ostrander, 280 A.D.2d 793, 720 N.Y.S.2d 635 (3 Dept., 2001) the Court stated that while an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the discretion of the trial court. The record disclosed that respondent was neither reluctant nor evasive in answering questions posed during direct examination, including several questions regarding the children and guns. When the objections to the leading questions were sustained, petitioner's counsel made no effort to elicit the information through questions which were not leading and petitioner did not claim that such questions were not feasible or that their use would have been frustrated by respondent's hostility as an adverse party. In these circumstances, there was no reversible error in Family Court's ruling.
[4] Koester v. Rochester Candy works, 194 N.Y. 92; Hanrahan v. New York Edison Co., 238 N.Y. 194.
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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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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