THE WITNESS’S TRIAL TESTIMONY THAT HE DID NOT SEE THE PERPETRATOR’S FACE AND DID NOT SEE THE DEFENDANT FIRE A GUN MERELY FAILED TO CORROBORATE OR BOLSTER THE PEOPLE’S CASE, IT DID NOT CONTRADICT OR DISPROVE ANY EVIDENCE; THEREFORE THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THE WITNESS (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the prosecutor should not have been allowed to impeach her own witness because the witness’s testimony merely failed to corroborate or bolster the People’s case, it did not contradict or disprove any evidence. The witness testified he did not see the perpetrator’s face and did not see defendant fire a gun:

” … [B]efore a party may impeach its own witness, the testimony on a ‘material fact’ must ‘tend[ ] to disprove the party’s position or affirmatively damage[ ] the party’s case'” … . “Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People’s case” … . People v Sams, 2023 NY Slip Op 02684, Second Dept 5-17-23

Practice Point: In order to impeach their own witness, the witness’s testimony must have contradicted or disproved the People’s case. Here the witness’s testimony that he did not see the perpetrator’s face and did not see the defendant fire a gun merely failed to corroborate or bolster the People’s case, it did not disprove or contradict any evidence. Even if the testimony was untrue, the People should not have been allowed to impeach their own witness.