Trial Testimony - Cross-Examination - Impeachment Limited by Collateral Evidence Rule
The general rule concerning the impeachment of witnesses with respect to collateral matters is that “the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility.”[1] The collateral evidence rule limits the ability of the cross-examiner to contradict the witness by the introduction of extrinsic evidence. It holds that "the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility. This rule is premised on sound policy considerations for if extrinsic evidence which is otherwise inadmissible is allowed to be introduced to contradict each and every answer given by a witness solely for the purpose of impeaching that witness, numerous collateral mini-trials would arise involving the accuracy of each of the witness's answers. The resulting length of the trial would by far outweigh the limited probative value of such evidence."[2]
Even where a particular subject is proper impeachment upon cross-examination, it is collateral unless it is relevant to some issue in the case other than credibility or is independently admissible in order to impeach the witness. Such collateral matter, while proper cross-examination because relevant to the witness's credibility, may not be proved to impeach the witness by extrinsic evidence.[3] Thus, where the subject matter bears upon the witness's credibility because it shows that the witness had acted deceitfully on a prior unrelated occasion, it is collateral and, if the witness denies the conduct, the questioner is bound by the witness's answer and may not refute it with independent proof.[4] However, a negative response by the witness does not preclude further questioning of the witness on the point, "for, it if did, the witness would have it within his power to render futile most cross-examination." [5]
It was error to permit defense counsel to use a confession of judgment on cross-examination to contradict plaintiff's denial that she had received public welfare funds to which she was not entitled, for the sole purpose of impeaching plaintiff's credibility. Plaintiff's alleged prior misconduct had no direct bearing on any issue in the case other than credibility. If proven, it would have shown only that plaintiff acted deceitfully on a prior unrelated occasion. Thus, the matter was collateral and could not be pursued by the cross-examiner with extrinsic evidence to refute plaintiff's denial.[6]
Subjects of impeachment which are not collateral and with respect to which independent or extrinsic evidence may be produced are the witness's bias
[1] People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983) citing Richardson, Evidence [Prince, 10th Ed], § 491, p 477.)
[2] People v. Hudy, 73 NY2d 40, 56, 538 NYS1d 197; People v. Pavao, 59 NY2d 282, 288-289, 464 NYS2d 458 (1983); See also People v. Zabrocky, 26 NY2d 530, 535 (1970); People v. Schwartzman, 24 NY2d 241, 245, 299 NYS2d 817 (1969); People v. Ortiz, 173 AD2d 189, 190 (1 Dept. 1991); People v. Diaz, 173 AD2d 554, 570 NYS2d 149; People v. Pugh, 168 AD2d 906, 907, 565 NYS2d 652 (4th Dept. 1990); Goldman v. Goldman, NYLJ, 9/28/87, p. 13 col.5,(Sup. Ct., N.Y. Co., Glen, J.).
[3] Badr v. Hogan, 75 NY2d 629, 634, 555 NYS2d 249 (1990); People v. Schwartzman, 24 NY2d 241, 245, 299 NYS2d 817 (1969); Peo. v. Jackson, 165 AD2d 724, 564 NYS2d 259 (1st Dept., 1990); Peo. v. Israel, 161 AD2d 730, 732, 555 NYS2d 865 (2d Dept., 1990).
[4] See also, Peo. v. Pavao, 59 NY2d 282, 288, 464 NYS2d 458 (1983).
[5] People v. Sorge, 301 NY 198, 201 (1950).
[6] Badr v. Hogan, 75 NY2d 629, 555 NYS2d 249 (1990); But, see People v. Davis, 43 NY2d 17, 26, 400 NYS2d 735 (1977); see also, Nowack v. Metropolitan St. Ry. Co., 166 NY 433, 437.
The general rule concerning the impeachment of witnesses with respect to collateral matters is that “the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility.”[1] The collateral evidence rule limits the ability of the cross-examiner to contradict the witness by the introduction of extrinsic evidence. It holds that "the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility. This rule is premised on sound policy considerations for if extrinsic evidence which is otherwise inadmissible is allowed to be introduced to contradict each and every answer given by a witness solely for the purpose of impeaching that witness, numerous collateral mini-trials would arise involving the accuracy of each of the witness's answers. The resulting length of the trial would by far outweigh the limited probative value of such evidence."[2]
Even where a particular subject is proper impeachment upon cross-examination, it is collateral unless it is relevant to some issue in the case other than credibility or is independently admissible in order to impeach the witness. Such collateral matter, while proper cross-examination because relevant to the witness's credibility, may not be proved to impeach the witness by extrinsic evidence.[3] Thus, where the subject matter bears upon the witness's credibility because it shows that the witness had acted deceitfully on a prior unrelated occasion, it is collateral and, if the witness denies the conduct, the questioner is bound by the witness's answer and may not refute it with independent proof.[4] However, a negative response by the witness does not preclude further questioning of the witness on the point, "for, it if did, the witness would have it within his power to render futile most cross-examination." [5]
It was error to permit defense counsel to use a confession of judgment on cross-examination to contradict plaintiff's denial that she had received public welfare funds to which she was not entitled, for the sole purpose of impeaching plaintiff's credibility. Plaintiff's alleged prior misconduct had no direct bearing on any issue in the case other than credibility. If proven, it would have shown only that plaintiff acted deceitfully on a prior unrelated occasion. Thus, the matter was collateral and could not be pursued by the cross-examiner with extrinsic evidence to refute plaintiff's denial.[6]
Subjects of impeachment which are not collateral and with respect to which independent or extrinsic evidence may be produced are the witness's bias
[1] People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458 (1983) citing Richardson, Evidence [Prince, 10th Ed], § 491, p 477.)
[2] People v. Hudy, 73 NY2d 40, 56, 538 NYS1d 197; People v. Pavao, 59 NY2d 282, 288-289, 464 NYS2d 458 (1983); See also People v. Zabrocky, 26 NY2d 530, 535 (1970); People v. Schwartzman, 24 NY2d 241, 245, 299 NYS2d 817 (1969); People v. Ortiz, 173 AD2d 189, 190 (1 Dept. 1991); People v. Diaz, 173 AD2d 554, 570 NYS2d 149; People v. Pugh, 168 AD2d 906, 907, 565 NYS2d 652 (4th Dept. 1990); Goldman v. Goldman, NYLJ, 9/28/87, p. 13 col.5,(Sup. Ct., N.Y. Co., Glen, J.).
[3] Badr v. Hogan, 75 NY2d 629, 634, 555 NYS2d 249 (1990); People v. Schwartzman, 24 NY2d 241, 245, 299 NYS2d 817 (1969); Peo. v. Jackson, 165 AD2d 724, 564 NYS2d 259 (1st Dept., 1990); Peo. v. Israel, 161 AD2d 730, 732, 555 NYS2d 865 (2d Dept., 1990).
[4] See also, Peo. v. Pavao, 59 NY2d 282, 288, 464 NYS2d 458 (1983).
[5] People v. Sorge, 301 NY 198, 201 (1950).
[6] Badr v. Hogan, 75 NY2d 629, 555 NYS2d 249 (1990); But, see People v. Davis, 43 NY2d 17, 26, 400 NYS2d 735 (1977); see also, Nowack v. Metropolitan St. Ry. Co., 166 NY 433, 437.
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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