In my last column,1 I discussed New York’s collateral evidence rule which bars the contradiction of a witness’s answers concerning collateral matters by the introduction of extrinsic evidence for the sole purpose of impeaching credibility. This discussion was made in the context of two different situations: an effort to establish the witness’s commission of a “bad act” which the witness has denied committing; and to contradict the witness, e.g., establish a factual error in the witness’s testimony, which error does not relate to a material issue in the action. This discussion generated many thoughtful comments about the collateral evidence rule as well as questions regarding its application in specific situations. Gauged by this response, there is considerable interest in this topic, and thus this column will address some of the comments and questions I received.
Refreshing Recollection
A question raised by several readers is whether the collateral evidence rule bars an attorney from using a writing, which contains information contradicting the witness’s denial or lack of memory of the charged bad act or factual error, to refresh the witness’s recollection about the matter. It does not.
