Trial Testimony - Cross - Examination - Impeachment of Witness by Prior Inconsistent Statement and Questions for Introduction
As a general rule, the credibility of any witness can be attacked by showing an inconsistency between his testimony at trial and what he has said on previous occasions.[1]
The prior inconsistent statement can be written or oral, and it need not have been under oath.[2]
Counsel may also show prior inconsistent statements to discredit the adverse party though oral and not made under oath. Such statements are treated as admissions of a party.[3]
Any oral or written statement of a witness made out of court, which contradicts a material part of his testimony, may be, if properly proven, introduced in evidence, as tending to discredit him, rather than as proof of the truth of the statement. [4]
If evidence of the statement of a witness is intended to prove that he gave an opinion inconsistent with the testimony, it is sufficient if the opinion is so incompatible with the facts he testified to that an honest mind knowing the facts would not be likely to entertain the opinion. It is sufficient if the testimony and the statements are inconsistent and tend to prove differing facts.[5]
A witness cannot be impeached by inconsistent statements that he made before or after he has testified unless he has been adequately warned by the cross-examiner that those statements will be later offered against him.[6] There must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his testimony at trial and his previous statements, he must first be questioned as to the time, place and substance of the prior statement.[7]
Where the statements are oral, the warning is given as follows:
(By Counsel)
Q. Did you on (date) at (place) in the presence of (name) or to (name of the person(s) state (alleged contradictory statements)? [8]
Where the statements are in writing the paper must be shown or read to the witness and marked for identification.
Where the paper is signed, the signature, and (if the witness requests it the paper) must be shown to him.
The statements may be proved by the admissions of the witness when it is shown to him. If he admits that he made them further proof is unnecessary. His admission that he signed the written statements proves them. [9]
If the witness does not admit that he signed the statements, the genuineness of the signature must be proved in any legal way. [10]
Proof of the written statement enables the impeaching party to properly offer the paper in evidence as a part of his case or, with the permission of the court, at any other stage of the trial. The signature of the witness is some evidence that he made the statements or authorized them to be made for him, and testimony by him that he did not read the statements or hear them read or make them is to be given such force and effect, in connection with the subscription and other relevant evidence, as the jury see fit to accord it.[11]
In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath.[12]
[1] People v. Sorge, 301 N.Y. 198, 202, 93 N.E.2d 637, 640.
[2] See generally Barker & Alexander, Evidence in New York State and Federal Courts § 6:49-6:52 (2001).
[3] Koester v. Rochester Candy works, 194 N.Y. 92; Hanrahan v. New York Edison Co., 238 N.Y. 194; Prince, Richardson on Evidence, 11th Edition (Farrell), § 6-411. Blossom v Barrett, 37 NY 434; Hayes v Henault 131 AD2d 930
[4] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[5] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[6] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[7] People v. Weldon, 111 N.Y. 569, 575-576, 19 N.E. 279, 280-281; Richardson, Evidence (10th ed, Prince), § 502); People v. Duncan, 46 N.Y.2d 74, 80, 385 N.E.2d 572, 576 (1978)
[8] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912) Patchin v. Astor Mut. Ins. Co., 13 N. Y. 268 citing Sloan v. New York Central R. R. Co., 45 N. Y. 125; Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854.
[9] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[10] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[11] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[12] CPLR Rule 4514. Impeachment of witness by prior inconsistent statement
As a general rule, the credibility of any witness can be attacked by showing an inconsistency between his testimony at trial and what he has said on previous occasions.[1]
The prior inconsistent statement can be written or oral, and it need not have been under oath.[2]
Counsel may also show prior inconsistent statements to discredit the adverse party though oral and not made under oath. Such statements are treated as admissions of a party.[3]
Any oral or written statement of a witness made out of court, which contradicts a material part of his testimony, may be, if properly proven, introduced in evidence, as tending to discredit him, rather than as proof of the truth of the statement. [4]
If evidence of the statement of a witness is intended to prove that he gave an opinion inconsistent with the testimony, it is sufficient if the opinion is so incompatible with the facts he testified to that an honest mind knowing the facts would not be likely to entertain the opinion. It is sufficient if the testimony and the statements are inconsistent and tend to prove differing facts.[5]
A witness cannot be impeached by inconsistent statements that he made before or after he has testified unless he has been adequately warned by the cross-examiner that those statements will be later offered against him.[6] There must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his testimony at trial and his previous statements, he must first be questioned as to the time, place and substance of the prior statement.[7]
Where the statements are oral, the warning is given as follows:
(By Counsel)
Q. Did you on (date) at (place) in the presence of (name) or to (name of the person(s) state (alleged contradictory statements)? [8]
Where the statements are in writing the paper must be shown or read to the witness and marked for identification.
Where the paper is signed, the signature, and (if the witness requests it the paper) must be shown to him.
The statements may be proved by the admissions of the witness when it is shown to him. If he admits that he made them further proof is unnecessary. His admission that he signed the written statements proves them. [9]
If the witness does not admit that he signed the statements, the genuineness of the signature must be proved in any legal way. [10]
Proof of the written statement enables the impeaching party to properly offer the paper in evidence as a part of his case or, with the permission of the court, at any other stage of the trial. The signature of the witness is some evidence that he made the statements or authorized them to be made for him, and testimony by him that he did not read the statements or hear them read or make them is to be given such force and effect, in connection with the subscription and other relevant evidence, as the jury see fit to accord it.[11]
In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath.[12]
[1] People v. Sorge, 301 N.Y. 198, 202, 93 N.E.2d 637, 640.
[2] See generally Barker & Alexander, Evidence in New York State and Federal Courts § 6:49-6:52 (2001).
[3] Koester v. Rochester Candy works, 194 N.Y. 92; Hanrahan v. New York Edison Co., 238 N.Y. 194; Prince, Richardson on Evidence, 11th Edition (Farrell), § 6-411. Blossom v Barrett, 37 NY 434; Hayes v Henault 131 AD2d 930
[4] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[5] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[6] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[7] People v. Weldon, 111 N.Y. 569, 575-576, 19 N.E. 279, 280-281; Richardson, Evidence (10th ed, Prince), § 502); People v. Duncan, 46 N.Y.2d 74, 80, 385 N.E.2d 572, 576 (1978)
[8] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912) Patchin v. Astor Mut. Ins. Co., 13 N. Y. 268 citing Sloan v. New York Central R. R. Co., 45 N. Y. 125; Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854.
[9] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[10] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[11] Larkin v. Nassau Electric R. Co., 205 N.Y. 267 (1912)
[12] CPLR Rule 4514. Impeachment of witness by prior inconsistent statement
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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