Michael J. Hutter

A common occurrence in the trial of an action is a party, compelled by the exigencies of the party’s case, calling as a witness a person who has knowledge of facts favorable to the party’s case but whose testimony regarding the matter in issue may be contrary to what was expected and harmful to the calling party’s case.

Such a situation may occur where the witness is an adverse party or a non-party witness who may be unfriendly. Such a witness may provide damaging testimony. For discussion of this concern, see Barker & Alexander, Evidence in New York State and Federal Courts (2d ed) §6:32. How may the attorney neutralize or minimize such testimony?

In the federal courts, the answer is readily available. The calling party may control such a witness through leading questions pursuant to Federal Rule of Evidence 612(c), and if, in fact, damaging testimony is given, the witness may be impeached through any available impeachment technique pursuant to Federal Rule of Evidence 607. However, the answer is not so clear under New York law. While direct examination may take the form of cross-examination by the use of leading questions, when that may be permitted is subject to various rules. As to impeaching the witness, New York law broadly proclaims impeachment of one’s own witness is generally not permitted, but exceptions abound.

This column will explore New York’s rules governing the questioning, including impeachment, of adverse parties and hostile witnesses on a party’s direct case. It will seek to clarify them to provide guidance to the bench and bar.

Examining the Adverse Party and Hostile Witness

New York law had long recognized that a trial court has broad discretion to control the form of a question employed in the examination of witnesses. See, e.g., Downs v. New York Central R.R. Co., 47 N.Y. 83, 88 (1871); People v. Mather, 4 Wendell 229, 247 (Supreme Court of Judicature, 1830). One form of examination is to question the witness through the use of leading questions. Notably, the use of leading questions is not flatly prohibited. Wallis v. Randall, 81 N.Y. 164 (1880). However, the courts have adopted the view that leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. This view was embraced due to the Court of Appeals’ recognition of the danger of the witness accepting the version of the events put forth by the attorney to the exclusion of what the witness may have or have not actually perceived. See generally Barker & Alexander, supra, at §6:70.

As to the exception pertinent here, the Court of Appeals in Becker v. Koch, 104 N.Y. 394, 401 (1887), held: “An adverse witness may be cross-examined and leading questions may be put to him by the party calling him, for the very sensible and sufficient reason that he is adverse and that the danger arising from such a mode of examination by the party calling a friendly or unbiased witness does not exist.” The rule as developed permits, but does not mandate, the use of leading questions on the direct examination of a witness when the witness is “an adverse party or closely identified with an adverse party or has indicated hostility to the party or counsel calling [the witness].” Martin, Capra & Rossi, N.Y Evidence [2d ed], §6.12.3, at p. 544.

With respect to an adverse party as the witness, the Second Department in Fox v. Tedesco, 15 A.D.3d 538, 539 (2d Dep’t 2005), observed that “[w]here … an adverse party is called as a witness, it may be assumed that such party is a hostile party, and in the discretion of the court, direct examination may assume the nature of cross-examination by the use of leading questions.” Notably, an adverse party does not become hostile merely because the party is adverse. Rather, the trial court retains discretion to determine whether the adverse party is in fact “hostile,” as the Second Department in Fox indicated. Other Appellate Division departments have adopted the same view. For example, the Third Department in Matter of Ostrader v. Ostrader, 280 A.D.2d 793 (3d Dep’t 2001), held Family Court in the underlying custody proceeding did not abuse its discretion in refusing to allow the petitioner-mother to use leading questions in examining the respondent-father regarding the children’s possession of a gun. The reason was respondent was neither evasive or reluctant in answering questions regarding the children and guns before the request to treat him as hostile was made. The Fourth Department in Matter of Arlene W. v. Robert D., 36 A.D.2d 455 (4th Dep’t 1971), similarly held that while an adverse party should ordinarily be presumed to be hostile, a trial court retains discretion to find otherwise.

This same view extends to witnesses who are closely identified with the adverse party. Thus, an adverse party’s spouse or employee can be viewed as “hostile.” See People v. Rozanski, 209 A.D.2d 1018, 1018-1019 (4th Dep’t 1994) (defendant’s wife); Myers v. New York City Tr. Auth., 50 A.D.3d 263 (1st Dep’t 2008) (defendant’s employee).

With respect to other witnesses, a witness may be known to be unfriendly before being called or the witness’s hostility becomes evident when being examined. Whether that witness can be viewed in fact as “hostile” is a determination to be made by the trial court in the exercise of its discretion. See People v. Dann, 14 A.D.3d 795, 797 (3d Dep’t 2005); People v. Marshall, 163 A.D.2d 826, 826-27 (4th Dep’t 1990). Among the factors the trial court will take into consideration are the witness’s demeanor, any prior relationship with the calling party or adverse party, reluctance to answer questions, claimed inability to recall facts, and overall evasiveness. Id.

In sum, when a party may have to call as a witness on the party’s direct case the adverse party or a potentially hostile witness in order to established an element of a claim on a defense or because of a perceived tactical advantage, there is always the risk of that witness providing testimony harmful to the calling party’s case. A means of minimizing such potential is the use of leading questions as they enable “the examiner to exercise much greater control over the witness by limiting the scope and content of that witness’s answers.” Haig, Commercial Litigation in New York State Courts (4th ed.) §41.20 With respect to the adverse party or a witness closely aligned with the adverse party, permission to treat such witness as a hostile witness, allowing the use of leading questions, should be sought when the examination starts. With other witnesses, such permission should be asked once the hostility becomes apparent.

Impeaching the Adverse Party and Hostile Witness

When the witness or non-party witness testifies to a version of the matter in issue which is damaging to the calling party’s case, it will generally become necessary to neutralize or minimize the damage. the calling party may want to attempt to impeach the witness by: (1) attacking the witness’s general credibility; or (2) proving the facts testified to are other than as testified to by the witness. Whether these two courses of action are permissible turns on the application of New York’s rule governing impeachment of a party’s own witness.

New York follows a common law evidentiary rule which precludes a party in civil and criminal actions from impeaching the party’s own witnesses upon any credibility ground, except as that rule has been statutorily modified by CPLR 4514 and CPL 60.35(1). These statutes permit impeachment of a party’s witness by certain types of statements which are inconsistent with the witness’s testimony. See Guide to NY Evidence Rules 6.11(3) and 6.15(4). The common law rule, as noted by the Court of Appeals in People v. Minsky, 227 N.Y. 94, 99-100 (1919), is based upon a policy which recognizes a “party should not be permitted, after having unsuccessfully taken a chance to secure favorable testimony, to attack his own witness and ask the jury to infer the contrary of what has been sworn to, because the falsity of the evidence is to be presumed from the general character of the witness.” The statutory modifications of the common law rule were enacted, as observed by the First Department in People v. McCormick, 278 App. Div. 410, 413 (1st Dep’t 1951), affd. 303 N.Y. 403 (1952), “to correct the inequities occasioned by … the inability to impeach unreliable witnesses upon whom they were compelled to rely.” See Miller v. Galler, 45 A.D.3d 1325, 1326 (4th Dep’t 2007); Barker, supra, §6:32. The modifications, however, did not go that far.

Thus, to the first course of action, under present law a party may not impeach a witness called by the party by showing a motive for the witness to falsify; the witness’s criminal history; or the witness’s bad reputation for truthfulness. See Cammarota v. Drake, 285 A.D.2d 919, 920-21 (3d Dep’t 2001); Williams v. Brosnhan, 295 A.D.2d 971, 972 (4th Dep’t 2002). While there are some decisions which seem to hold otherwise with respect to the adverse party witness, these decisions involved “impeachment” by the presentation of contradictory evidence proving or disproving a material fact in issue, which, as discussed infra, is permissible. Of note, evidence of the witness’s impaired perception or memory abilities does not fall within the rule. People v. Marks, 41 N.Y.2d 36, 48 (1976).

While the common law rule also precludes impeachment by showing the witness made a prior statement that is inconsistent with the witness’s trial testimony, statutes have modified this bar. See Barker, supra, §6:33, at pp. 516-21. In civil actions, CPLR 4514 permits impeachment of a party’s own witness by the witness’s prior inconsistent statement that was either in a writing subscribed by the witness or made under oath. In criminal actions, CPL 60.35 also permits impeachment by the witness’s prior inconsistent statement, provided the witness gave testimony upon a “material” issue, the statement was either a “written statement signed by the witness” or an oral statement under oath,” and the testimony was such that it “tends to disprove the calling party’s position.”

Three additional points must be made with respect to a witness’s prior inconsistent statement. First, where the adverse party is called, a prior inconsistent statement made by that party will be admissible for its truth under the party admission exception to the hearsay rule, and thus not barred by the common law rule. See Kelly v. Wasserman, 5 N.Y.2d 425, 428-29 (1959). Second, where the prior inconsistent statement cannot qualify for impeachment purposes under CPLR 4514 or CPL 60.35, examination of the witness concerning the statement is permitted for the purpose of inducing the witness to recant the testimony or refresh the witness’s recollection. See Bullard v. Pearsall, 53 N.Y. 230, 231 (1873). (In criminal actions, CPL 60.35(3) precludes use of the statement to refresh the witness’s recollection “in a manner disclosing its contents to the trier of facts.”) Third, the use of a prior statement to impeach must not be made in bad faith, which will occur when the calling party knows the witness will not testify in accordance with a prior statement made by the witness, and the witness is called anyway. See People v. Mitchell, 57 A.D.3d 1308, 1310 (3d Dep’t 2008); People v. Smith, 150 A.D.3d 1664, 1665 (4th Dep’t 2017). This “surprise” element has been imposed to prevent the calling party from using the impeachment as a means of having the jury hear the statement and use the statement not for impeachment but for substantive evidence purposes.

As to the second course of action, it is well settled that the common law rule does not prohibit the calling party from contradicting the witness’s testimony by other proof where that testimony relates to a material issue in the action. Becker v. Koch, 104 N.Y. 394, 403 (1887). Although the necessary effect of the proof is to impeach the witness, permitting such contradiction is required as otherwise the calling party would be bound by the witness’s version of the acts on a material issue, an undesirable result.

While New York’s common law rule barring a party from impeaching a witness called by the party survives today, unlike in the federal courts, it is not as broad as one might think.

Michael J. Hutter is a professor of law at Albany Law School, and is special counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence, which is being prepared by the United Court System’s Guide to NY Evidence Committee. The Guide is accessible to the bench and bar at www.courts.state.ny.us/JUDGES/evidence.