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Supreme Court hears arguments in abortion case

To bolster or not to bolster?

If you practice in the Fourth Department, it would appear that it's probably not the best tactic.  On November 10, 2005, in Carr v. Burnwell Gas of Newark, Inc. , the Court concluded that the admission of a written statement of  the defendant over the objection of the plaintiffs' counsel constituted bolstering and was not harmless error, thus warranting reversal of the judgment.

Defense counsel sought to introduce a written statement of the defendant that had been affirmed under penalty of perjury.  In that statement, the defendant asserted that the plaintiff veered into his lane, which comported with his testimony at trial.  The plaintiffs' counsel objected on the basis of improper bolstering.  The defense also elicited testimony regarding two oral statements made by the defendant.  Neither was preserved for review because plaintiff's counsel made only a general objection to the first statement, and failed to object to the second statement.

The Court considered the admissability of only the written statement, and concluded that it did not constitute a recent fabrication simply because the plaintiffs' challenged the reliability of the defendant's recollection of the accident.  The Court clarified that recent fabrication "means...that the (plaintiffs are) charging the witness not with mistake or confusion, but with making up a false story well after the event."

The Court also held that the statement did not constitute an admissible business record, given that the defendant was under no business obligation to report the incident to the police and, further, that the statement did not constitute a party admission, as it was consistent with the defendant's trial testimony.

Accordingly, since no exceptions applied which would allow the statement to be admitted, the admission of the statement consituted improper bolstering.  The Court concluded that the error may have very likely prejudiced the plaintiffs' case, thus requiring reversal of the judgment and a new trial. 


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