Lichtman v. Nadler, 34 N.Y.2d 148 (1974)
Prior consistent statements are inadmissible to bolster a witness’s testimony unless there is a claim of recent fabrication; however, an error in admitting such statements may be harmless if the inconsistency being addressed is minor; furthermore, a party who opens the door to a line of questioning may not later object when the opposing party explores that area further.
Summary
The case concerns a pedestrian struck by a car. At trial, the defense presented an eyewitness. The plaintiff tried to impeach this witness with a prior statement. The defendant then introduced another prior statement to support the witness’s testimony. The plaintiff argued this was improper bolstering. The plaintiff also objected to the defendant asking a police officer if the pedestrian’s actions constituted jaywalking. The Court of Appeals held that while introducing the prior consistent statement was technically error, it was harmless given the minor inconsistency. Further, the plaintiff opened the door to the jaywalking testimony by questioning the officer about the frequency of mid-block crossings.
Facts
Plaintiff’s ward was hit by the defendant’s car while crossing a busy city street mid-block.
An eyewitness testified that the ward ran off the sidewalk into the car’s path.
On cross-examination, the plaintiff’s counsel presented a prior statement from the eyewitness indicating the ward was “crossing” the street, without mentioning speed.
On redirect, the defendant introduced another prior statement where the witness said the ward “ran off the curb.”
The defendant also asked a police officer if the ward’s actions would warrant a jaywalking summons.
Procedural History
The trial court allowed the prior consistent statement and the jaywalking question.
The Appellate Division affirmed the trial court’s decision.
The New York Court of Appeals reviewed the Appellate Division’s order.
Issue(s)
1. Whether the trial court erred in allowing the defendant to bolster the eyewitness’s testimony with a prior consistent statement.
2. Whether the trial court erred in permitting the defendant to question a police officer regarding whether the ward’s actions would have rendered her liable for a jaywalking summons.
Holding
1. No, because the error was harmless given the quibbling nature of the inconsistency.
2. No, because the plaintiff opened the door to this line of questioning by inquiring about the frequency of mid-block crossings.
Court’s Reasoning
The Court acknowledged that introducing the prior consistent statement was technically error. Citing Crawford v. Nilan, 289 NY 444, 450-451, the court stated that prior consistent statements are inadmissible unless there is a claim of recent fabrication. However, the court deemed the error harmless under CPLR 2002, emphasizing the “quibbling nature of the ‘inconsistency’ at the heart of the issue.”
Regarding the jaywalking question, the Court recognized that Vehicle and Traffic Law § 155 prohibits using evidence of a traffic violation conviction to impair a witness’s credibility in a civil suit. However, the Court emphasized that the plaintiff’s counsel initiated the line of questioning by asking the officer whether other people frequently crossed the street mid-block without being ticketed. Because the plaintiff opened the door, the defendant was entitled to ask whether the ward’s conduct violated traffic regulations, regardless of local custom.
The Court, in effect, applied a “curative admissibility” principle, allowing the defendant to address an issue improperly raised by the plaintiff, even if the defendant’s response would otherwise be inadmissible. This prevents a party from gaining an unfair advantage by introducing inadmissible evidence and then preventing the opposing party from responding.