Trial Testimony - Prior Testimony - Use of Answers to Interrogatories
Interrogatories may relate to any matters embraced in the disclosure requirement of CPLR 3101. The answers to interrogatories may be used to the same extent as the depositions of a party.[1]
At the trial or upon a hearing of a motion, part or all of answers to interrogatories, so far as admissible under the rules of evidence, may be used as follows:
(1) by any party, for the purpose of contradicting or impeaching the testimony of the deponent as a witness; [2]
(2) the answers to interrogatories a party, [3] may be used for any purpose by any party who was adversely interested when the answers to interrogatories were given or who is adversely interested when the answers to interrogatories are offered in evidence;[4]
(3) the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition provided the court finds that the witness is unavailable or there are exceptional circumstances.[5]
The general rule under CPLR 3117 (a) (2) subject to the exceptions set forth in subdivision (a) (3) of the statute, is that answers to interrogatories may be introduced only by an adverse party and not by the party responding to the interrogatories. While CPLR 3131 provides that interrogatories may be utilized to the same extent as depositions, a party serving interrogatories is not 'present' or 'represented' at the time the answers are given as required by CPLR 3117 (a) (3) and does not have the opportunity to impeach or inquire into self-serving responses rendered by the party interrogated or its agent. The adversary, therefore, is effectively deprived of the right to cross-examine. [6]
The self-serving answers of a party to written interrogatories which are not subject to the scrutiny of cross-examination may not be introduced by that party under CPLR 3117 (a) (3).[7]
CPLR 3117 (a) articulates the fundamental rule that depositions and interrogatories may be introduced only so far as the rules of evidence permit and the basis for this rule is the fact that matter contained in these discovery devices constitutes hearsay and is admissible as evidence-in-chief only insofar as a hearsay exception is available. Where the party who served the interrogatories is the proponent, the hearsay problem is eliminated because the answers are admissible under the admissions exception to the hearsay rule, but where the party responding is the proponent, the hearsay rule presents a barrier to admission. CPLR 3117 (a) (3), referred to as the 'deposition exception to the hearsay rule', permits any party to introduce answers to interrogatories if certain conditions are met but does not provide an exception to the hearsay barrier where the adversary does not have the opportunity to cross-examine the declarant’s who responded to the interrogatories, an essential requirement for the application of the exception. [8]
[1] CPLR 3131.
[2] CPLR 3117 (a) (1)
[3] This provision also applies to any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party.
[4] CPLR 3117 (a) (2)
[5] CPLR 3117 (a)
[6] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
[7] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
[8] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
Interrogatories may relate to any matters embraced in the disclosure requirement of CPLR 3101. The answers to interrogatories may be used to the same extent as the depositions of a party.[1]
At the trial or upon a hearing of a motion, part or all of answers to interrogatories, so far as admissible under the rules of evidence, may be used as follows:
(1) by any party, for the purpose of contradicting or impeaching the testimony of the deponent as a witness; [2]
(2) the answers to interrogatories a party, [3] may be used for any purpose by any party who was adversely interested when the answers to interrogatories were given or who is adversely interested when the answers to interrogatories are offered in evidence;[4]
(3) the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition provided the court finds that the witness is unavailable or there are exceptional circumstances.[5]
The general rule under CPLR 3117 (a) (2) subject to the exceptions set forth in subdivision (a) (3) of the statute, is that answers to interrogatories may be introduced only by an adverse party and not by the party responding to the interrogatories. While CPLR 3131 provides that interrogatories may be utilized to the same extent as depositions, a party serving interrogatories is not 'present' or 'represented' at the time the answers are given as required by CPLR 3117 (a) (3) and does not have the opportunity to impeach or inquire into self-serving responses rendered by the party interrogated or its agent. The adversary, therefore, is effectively deprived of the right to cross-examine. [6]
The self-serving answers of a party to written interrogatories which are not subject to the scrutiny of cross-examination may not be introduced by that party under CPLR 3117 (a) (3).[7]
CPLR 3117 (a) articulates the fundamental rule that depositions and interrogatories may be introduced only so far as the rules of evidence permit and the basis for this rule is the fact that matter contained in these discovery devices constitutes hearsay and is admissible as evidence-in-chief only insofar as a hearsay exception is available. Where the party who served the interrogatories is the proponent, the hearsay problem is eliminated because the answers are admissible under the admissions exception to the hearsay rule, but where the party responding is the proponent, the hearsay rule presents a barrier to admission. CPLR 3117 (a) (3), referred to as the 'deposition exception to the hearsay rule', permits any party to introduce answers to interrogatories if certain conditions are met but does not provide an exception to the hearsay barrier where the adversary does not have the opportunity to cross-examine the declarant’s who responded to the interrogatories, an essential requirement for the application of the exception. [8]
[1] CPLR 3131.
[2] CPLR 3117 (a) (1)
[3] This provision also applies to any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party.
[4] CPLR 3117 (a) (2)
[5] CPLR 3117 (a)
[6] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
[7] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
[8] United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 360 N.E.2d 943, 392 N.Y.S.2d 265 (1976).
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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