Trial Testimony - Cross Examination - Impeachment - Reputation for Veracity
Where the cross-examiner does not seek to contradict specific answers given by a witness but attempts only to show that the witness has a bad reputation in the community for truth and veracity, the rule is that other qualified witnesses may be called to testify with respect to the witness' reputation for untruthfulness.[1]
The use of extrinsic impeaching testimony is limited to a general statement that the witness' reputation in the community for truth and veracity is bad. A party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity. Whether the opposing party may call witnesses to rebut the impeaching witness' statement is a question best left to the discretion of the Trial Judge for it is he who can best assess whether doing so may result in confusion or cause the trial to be unduly extended in length.[2] A “trial court must allow such testimony, once a proper foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity”.[3]
Reputation in one’s community is not restricted to “one's residential neighborhood”. [4] “A reputation may grow wherever an individual's associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability.” [5] For example, a witness' bad reputation for truth and veracity at his place of employment “can be probative and reliable”. Family and family friends can constitute a relevant community for purposes of introducing testimony pertaining to an opposing witness' bad reputation for truth and veracity.[6]
[1] People v Hinksman, 192 NY 421, 432; Prince, Richardson, Evidence (10th Ed), § 494, p 479; Fisch, New York Evidence, § 452, p 259; 65 NY Jur, Witnesses, § 75, p 238. People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983).
[2] People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983).
[3] People v Bouton, 50 NY2d 130 (1988); People v Hanley, 5 NY3d 108, 112 (2005).
[4] People v Fernandez, 17 N.Y.3d 70 (2011).
[5] People v Bouton, 50 NY2d 130 (1988); People v Hanley, 5 NY3d 108, 112 (2005).
[6] People v Fernandez, 17 N.Y.3d 70 (2011) (reputation testimony of a biological aunt admissible on ground the family was a community for purposes of reputation testimony).
Where the cross-examiner does not seek to contradict specific answers given by a witness but attempts only to show that the witness has a bad reputation in the community for truth and veracity, the rule is that other qualified witnesses may be called to testify with respect to the witness' reputation for untruthfulness.[1]
The use of extrinsic impeaching testimony is limited to a general statement that the witness' reputation in the community for truth and veracity is bad. A party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity. Whether the opposing party may call witnesses to rebut the impeaching witness' statement is a question best left to the discretion of the Trial Judge for it is he who can best assess whether doing so may result in confusion or cause the trial to be unduly extended in length.[2] A “trial court must allow such testimony, once a proper foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity”.[3]
Reputation in one’s community is not restricted to “one's residential neighborhood”. [4] “A reputation may grow wherever an individual's associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability.” [5] For example, a witness' bad reputation for truth and veracity at his place of employment “can be probative and reliable”. Family and family friends can constitute a relevant community for purposes of introducing testimony pertaining to an opposing witness' bad reputation for truth and veracity.[6]
[1] People v Hinksman, 192 NY 421, 432; Prince, Richardson, Evidence (10th Ed), § 494, p 479; Fisch, New York Evidence, § 452, p 259; 65 NY Jur, Witnesses, § 75, p 238. People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983).
[2] People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983).
[3] People v Bouton, 50 NY2d 130 (1988); People v Hanley, 5 NY3d 108, 112 (2005).
[4] People v Fernandez, 17 N.Y.3d 70 (2011).
[5] People v Bouton, 50 NY2d 130 (1988); People v Hanley, 5 NY3d 108, 112 (2005).
[6] People v Fernandez, 17 N.Y.3d 70 (2011) (reputation testimony of a biological aunt admissible on ground the family was a community for purposes of reputation testimony).
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.
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Joel R. Brandes Consulting Services, Inc.
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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.
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