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No Foundation Provided for Use of a Notarized Statement for Impeachment (As a Prior Inconsistent Statement)

The Second Department determined the trial court had properly prohibited the defense from cross-examining a complaining witness about a notarized statement the witness denied signing.  The court explained the foundation-requirements for admitting a prior inconsistent statement:

The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” … . “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” … . Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence'” … . People v Haywood, 2015 NY Slip Op 00555, 2nd Dept 1-21-15

 

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