Trial Testimony - Prior Testimony - Necessity of Foundation for Admission of Prior Testimony
A proper foundation must be laid for the introduction of the prior testimony into evidence. The prior testimony is admitted into evidence for purposes of impeaching or contradicting the witness by:
(a) questioning the witness as to whether he made a prior statement and then reading portions of the prior testimony into evidence which contradict or impeach his current testimony; or
(b) presenting the testimony of a witness who was at the prior trial when the witness testified and heard the prior testimony.[1]
There is no provision in Civil Practice Law and Rules 4517 for admitting into evidence the entire transcript of the witness prior testimony at a prior trial. The admission of the prior testimony is only permitted “so far as admissible” under the rules of evidence.” The prior testimony is subject to any and all objections under the rules of evidence, such as leading, irrelevant, incompetent, immaterial, failure to lay a proper foundation and hearsay. For that reason, it would appear that the entire transcript of the witness prior testimony at a prior trial may not be admitted into evidence, over objection, unless nothing in the transcript is objectionable.
The admission into evidence of portions of the transcript of a witness's prior testimony, for purposes of impeachment, can only be accomplished during the trial, where the witness is under oath on the witness stand and is questioned on cross-examination where objections may be raised. There is no provision in CPLR 4517 for the admission of prior testimony into evidence after both sides have rested.
[1] Harmon v. Matthews, 27 N.Y.S.2d 656 (1941).
A proper foundation must be laid for the introduction of the prior testimony into evidence. The prior testimony is admitted into evidence for purposes of impeaching or contradicting the witness by:
(a) questioning the witness as to whether he made a prior statement and then reading portions of the prior testimony into evidence which contradict or impeach his current testimony; or
(b) presenting the testimony of a witness who was at the prior trial when the witness testified and heard the prior testimony.[1]
There is no provision in Civil Practice Law and Rules 4517 for admitting into evidence the entire transcript of the witness prior testimony at a prior trial. The admission of the prior testimony is only permitted “so far as admissible” under the rules of evidence.” The prior testimony is subject to any and all objections under the rules of evidence, such as leading, irrelevant, incompetent, immaterial, failure to lay a proper foundation and hearsay. For that reason, it would appear that the entire transcript of the witness prior testimony at a prior trial may not be admitted into evidence, over objection, unless nothing in the transcript is objectionable.
The admission into evidence of portions of the transcript of a witness's prior testimony, for purposes of impeachment, can only be accomplished during the trial, where the witness is under oath on the witness stand and is questioned on cross-examination where objections may be raised. There is no provision in CPLR 4517 for the admission of prior testimony into evidence after both sides have rested.
[1] Harmon v. Matthews, 27 N.Y.S.2d 656 (1941).
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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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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