Personal Injury Law
Personal Injury Law Question? Ask Personal Injury Lawyers.
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I wanted to ask you if the testimony you wanted to impeach the expert with was his own testimony. Generally, if the testimony was sworn testimony and it is the testimony of the same expert, you can use it to impeach him. Whether or not you will be allowed to play the audio for the jury is up to the judge. The judge may prefer that you just have a transcript made up and refer the expert to the portion of the transcript where he contradicts what he is saying now. That would be the more standard way of doing this. You would ask the doctor, "do you remember testifying on date X in the case of Y vs. Z that it was your opinion that the sky is blue? So how is it now your opinion that the sky is green?" you can not impeach the expert with the testimony of anyone else, however.
If the testimony is by the same expert, you are generally going to be limited to the portion of the testimony that is contradicted by the testimony in your trial. That is why the judge may not want you to play the entire recording.
Yes it is his own testimony. I know that I can get it trancribed by a court reporter (the CD needs to be sent directly to her, etc). I also know that I can impeach based on the transcript from the prior trial. The problem that the expert testimony is 200 pages long and it costs $3 per page to transcribe. This is the reason I am asking the question regarding playing audio to the jury and the court. I am looking for the precedents (case law).
or even paying just certian part of the audio depending on what we choose to cross-examine and impeach him on.
While all the case law states that what evidence gets in on impeachment is at the sound discretion of the trial judge, here is one case you may find useful where the lower court was found to have abused its discretion in not letting a recording of an earlier hearing into evidence: "Under the unusual facts and circumstances of this case - and with so much riding on the hearing officer's assessment of the credibility of the witnesses at the rehearing - this Court finds that the hearing officer erred in failing to receive into evidence and consider the audiotape of the original February 14, 2012 hearing, which included the apparent contradictory prior testimonies of C.O. Fowler and Sergeant Powers." Bickley v. Fischer, 2013 NY Slip Op 31897, 10-11 (N.Y. Sup. Ct., 2013). "After C.O. Fowler and Sergeant Powers completed their testimony at the re-hearing concluded on May 17, 2012 petitioner sought to introduce his own copy of what he described as an audiotape of the original February 14, 2012 hearing for impeachment purposes. This request was denied by the hearing officer who stated that petitioner's ' . . . last hearing [original February 14, 2012 hearing] has nothing to do with this tier hearing. This is, this is completed independently.' " Id. at 7-8. The case was sent back to the hearing commissioner.