585 A.2d 425 | N.J. Super. Ct. App. Div. | 1990
Under what circumstances may an adverse party in a matrimonial action be called as a witness and to what extent shall that testimony be binding? This court holds not only that an adverse party may be called as a witness, but that such witness shall be deemed “hostile per se,” thus triggering all concomitant means of examination permissible under the law.
In lay terms, “hostile” is “of or pertaining to an enemy; antagonistic.” The American Heritage Dictionary 624 (2 Coll, ed. 1985). A witness is hostile or adverse when there is a manifestation of “so much hostility or prejudice under examina
The complaint for divorce was filed on May 24, 1987, and the matter was finally reached for trial on May 31, 1990. In the interim, while plaintiff had been represented by four different attorneys, considerable discovery took place, including examination of the books and records of defendant’s business by plaintiff's retained accountant. Also, several trial dates were
It has been generally held that in the absence of a statute or rule of procedure providing otherwise, the calling of an adverse party as a witness binds the calling party as to the credibility and conclusiveness of the testimony unless same is contradicted. 32A C.J.S., Evidence, § 1040(2). In the past, New Jersey courts also followed this premise. Krafte v. Belfus, 114 N.J.Eq. 207, 168 A. 755 (Ch.1933). Many jurisdictions have adopted statutes or rules which serve to modify or abrogate the harshness of the obvious result when, in a case such as this hotly contested matrimonial action, the information solicited is known solely by the other spouse. See Conn. Gen. Stat.Ann. § 52-178 (West 1960) (amended 1982) (Adverse parties may be compelled to testify); Fla.Stat.Ann. §§ 90.608(2) (Who may impeach); 42 Pa.Cons.Stat.Ann. § 5935 (Purdon 1978) (Exami
The Federal Rules of Evidence state that when “a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” Fed.R.Evid. 611(c). This rule is an exception to the traditional proposition that leading questions are improper. The rule also deals with categories of witnesses to be automatically regarded and treated as hostile. See Fed.R.Evid. 611(c) advisory committee’s note. It is clear that a party to a divorce action would be considered a hostile witness under the federal rules. However, New Jersey has not adopted this federal rule as its own. New Jersey law states that “[ejxcept as otherwise provided by law, when any party is called as a witness by the adverse party he shall be subject to the same rules as to examination and cross-examination as other witnesses.” N.J.S.A. 2A:81-11. Thus, based only on a reading of the statute, an adverse party called as a witness by the other side cannot be asked leading questions. Yet case law has recently given broader discretion to the court and has brought New Jersey closer to the more liberal federal rules. See Application of Howard Savings Bank, Newark, Essex County, 143 N.J.Super. 1, 362 A.2d 592 (App.Div.1976); State v. Rajnai, 132 N.J.Super. 530, 334 A.2d 364 (App.Div.1975).
Attention is called to N.J.S.A. 2A:81-6, which states that parties in all civil actions “shall be sworn and shall give
This is not to say that when an adverse party is called to the stand that party may not claim any of those privileges afforded to all witnesses under the New Jersey rules of evidence. Evid.R. 23-38. Had defendant refused to testify as to certain facts which would directly, inferentially or indirectly
Thus, it is well within the discretion of this court to permit the procedure where a party to a divorce action may be called by the opposition. Generally, a witness may not ordinarily be labeled as “hostile” merely because he is adverse when he has not been uncooperative nor testified in an unexpected manner. State v. Dwyer, 229 N.J.Super. 531, 552 A.2d 200 (App.Div.1989). However, divorce actions do not reach trial unless and, in fact, no agreement can be attained without the intervention of the court. The parties are as “adversarial” and as “hostile” as the non-legal definitions of those terms would import. The litigants clearly would not testify for the other on a purely voluntary basis. Under such circumstances, in a divorce action a court may declare the adverse party witness “hostile per se” and may grant the other party the “broad latitude” to examine the witness through the use of cross examination, and, as such, will not be bound by such testimony.