Issues In NY Criminal Law--Vol. 3, #8©
ISSUE: Admissibility of "Collateral Evidence"
A collateral matter may be the best remaining conundrum in law, a riddle wrapped in an enigma wrapped somewhere in the law of evidence. The black-letter rule is easily stated: when questioned about a collateral matter, the party cross examining the witness is bound by the witness's answer to matters solely affecting credibility. Handling a Criminal Case in New York, § 18:168 (West 2000). Unfortunately, collateral matters tend to be a tad more amorphous than the above rule suggests.
"A collateral matter is evidence solely affecting the credibility of a witness. As to collateral matters, the "rule" precludes the cross-examiner from calling other witnesses or producing documentary evidence to contradict the witness." Prince, Richardson on Evidence § 6-305 (Farrell 11th ed.). A direct matter, on the other hand, is any evidence tending to prove the proponent's case on the merits or to disprove the opponent's, even though this "direct" evidence, if believed, might also contradict, undermine or discredit a witness.
While the Court of Appeals has addressed the collateral matter rule several times, there is no "leading" New York case. In determining what is collateral, a hodgepodge of decisions delineate, within the facts of that case, exactly what are and are not collateral matters, only to be refuted by the dissent, which claims that a contrary position is mandated by the facts. See, e.g., People v Aska, 91 NY2d 979, 674 NYS2d 271 (1998).
Bias, interest, or hostility of a witness is never collateral. Prince, supra; People v Shairzai, 215 AD2d 259, 627 NYS2d 347 (1st Dept 1995). What exactly constitutes bias, interest, or hostility, however, is determined by the facts of the case. In Shairzai, the exclusion of evidence tending to show the prosecution's prime witness may have had a motive to lie was found to be reversible error. However, when testimony rebutting a victim's testimony as to the defendant's alleged motive for an assault was offered, the Court of Appeals held it was properly excluded. Aska, supra.
A dichotomy exists where the proffered rebuttal testimony relates to the credibility of a witness. The Court of Appeals seemingly settled the issue:
"We hold, therefore, that a party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity. Whether the opposing party may call witnesses to rebut the impeaching witness' statement is a question best left to the discretion of the Trial Judge for it is he who can best assess whether doing so may result in confusion or cause the trial to be unduly extended in length." People v Pavao, 59 NY2d 282, 290, 464 NYS2d 458 (1983).
However, as with other cases in this area, the Court of Appeals established no truly discernible standard. Throughout the discussion of collateral matters, the trial judge's discretion is of utmost importance.
Cases are routinely decided using the collateral evidence rule as either the reason for or against admitting evidence. In a murder and weapons possession case, the Second Department deemed old photographs of the defendant holding a handgun not to be collateral evidence, although they were used solely to rebut defendant's testimony that he never carried guns. People v Johnson, 144 AD2d 490, 534 NYS2d 207 (2nd Dept 1988). The collateral evidence rule does not bar the cross-examined witness from explaining his admissions or offering, within reason, proof from others to explain his partial admissions. People v Catalonotte, 36 NY2d 192, 366 NYS2d 403 (1975).
Rebuttal evidence elicited only to impeach defendant's testimony is inadmissible where it does not disprove any material fact in issue. People v Rivers, 96 AD2d 874, 465 NYS2d 740 (2nd Dept 1983); Handling, § 18:169.
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