In this article, Davis LLP's Brendan Clancy canvasses recent caselaw on the rule in Browne v. Dunn. The rule provides that if Party A intends to lead evidence that conflicts with the testimony of Party B, Party B should be given advance notice of that conflicting evidence prior to or on the occasion of his or her cross-examination. This is so that the witness is given "an opportunity to explain what might otherwise appear to be contradictions in the witness' evidence."
Recent caselaw suggests that though the rationale behind the rule remains intact, the rule has been relaxed. Specifically, Party B need not be cross-examined on the conflicting evidence if there is reason to believe that Party A gave reasonable notice of the conflicting evidence by other means. Brendan further clarifies,
This article originally appeared in the December 5, 2014 issue of The Lawyers Weekly.
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