Issue: Whether an attorney who calls an opposing party as a witness may treat the party as an adverse witness and lead or cross-examine him or her as such?
| Area of Law: | Litigation & Procedure |
| Keywords: | Adverse witness, hostile witness; Opposing party; Cross-examination |
| Jurisdiction: | Federal |
| Cited Cases: | 299 N.Y.S. 497; 324 N.Y.S.2d 333; 449 N.Y.S.2d 785; 269 N.Y.S.2d 86; 15 N.Y.2d 20; 44 A.D.2d 891; 534 N.Y.S.2d 686; 144 A.D.2d 540; 104 N.Y. 394; 96 N.Y.S.2d 647; 69 A.D.2d 14 |
| Cited Statutes: | None |
| Date: | 03/01/2001 |
In In re Arlene W. (W. v. D.), 36 A.D.2d 455, 324 N.Y.S.2d 333 (4th Dep’t 1971), the petitioner complained that the trial court had been too restrictive of her attorney in the examination of the respondent and the respondent’s father (who was not a party opponent). The trial court had ruled that the petitioner’s attorney could not “lead, contradict nor cross examine these witnesses, despite their obvious hostility.” Id., 324 N.Y.S.2d at 334. The Supreme Court, Appellate Division, ruled that the trial court’s decision to prohibit this type of questioning was “error.” Id. The court stated that “a party who calls as a witness an adverse party should not be bound by the latter’s answer and should be permitted to lead and cross examine him, he being an obviously hostile witness.” Id. (citing Becker v. Koch, 10 N.E. 701, 104 N.Y. 394, 401 (1887); In re Cinque’s Estate, 25 A.D.2d 752, 269 N.Y.S.2d 86 (2d Dep’t 1966); Wolper v. New York Water Serv. Corp., 276 A.D. 1106, 96 N.Y.S.2d 647 (2d Dep’t 1950); In re Gallo‘s Will, 252 A.D. 861, 299 N.Y.S. 497 (2d Dep’t 1937); 3 Wigmore, Wigmore on Evidence ¶¶ 896B899 (3d ed.); 1 Bender’s New York Evidence § 28.04, at 397, 411). In In re Arlene W., the court was called on to determine the question of paternity on the merits of the record. The court stated that were it not determining this question on the merits, “we would reverse and […]