Manata v. Pereira, 436 N.J. Super. 330 (App. Div. 2014). In this automobile-pedestrian collision case, “plaintiff’s counsel engaged in improper cross-examination when he confronted defendant with a police report that counsel did not offer in evidence, but whose substance he communicated to the jury.” Plaintiff used the absence from that police report of certain facts to which defendant testified at trial as a weapon against defendant. Plaintiff won a jury verdict. In an opinion issued by Judge Ostrer today, however, the Appellate Division reversed that verdict, even under the abuse of discretion standard that governs appeals as to rulings about evidence.
Impeachment by omission, which uses a witness’s omission from a prior statement of facts to which the witness later testifies, is a recognized tool. But there must be a foundation for using the prior statement, and it must be admitted into evidence in order to be employed.
Plaintiff did not seek to admit the police report into evidence, and Judge Ostrer indicated that the report might not have qualified for admission into evidence. Instead, plaintiff engaged in “phantom impeachment,” by “asking defendant himself what the report stated” and bringing out in that way defendant’s alleged omission from the statement he gave to the police of facts to which he testified at trial. That was improper, as was plaintiff’s summation, which relied heavily on that “phantom impeachment” testimony. “It is improper under the guise of artful cross-examination, to tell the jury the substance of inadmissible evidence.” The case was remanded for a new trial, and Judge Ostrer directed that if plaintiff sought to introduce the police report on remand, a hearing under Evidence Rule 104 should be held on that issue.