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Jury is Deliberating; They Now Want to Read the Doctor's Pretrial Testimony He gave Two Years Earlier in this Case. Can They Get It?

It's a medical malpractice case.

Trial lasted three weeks.

The jury has asked for all of the trial exhibits that were introduced into evidence.

During trial the doctor who was being sued testified.

The jury learned that the doctor gave pretrial testimony two years earlier in his lawyer's office.

The doctor was asked questions and gave answers about this case.

That pretrial testimony was put into a booklet called a transcript.

During cross examination of this doctor, the attorney representing the injured victim, known as the plaintiff's attorney, cross examined the doctor using his pretrial testimony.

The plaintiffs attorney showed that there were inconsistencies and contradictions between what the doctor testified to years earlier compared to what he said here in court during trial.

Some of the jurors now want to see and read the pretrial testimony the doctor gave.

The jury sent a note to the court officer who then handed it to the judge.

The judge then showed the note to the plaintiff's attorney and the defense attorney.

He then asked whether the pretrial testimony transcript, also known as a deposition transcript, was ever introduced into evidence.

“No judge, it was not introduced into evidence nor is it ever introduced into evidence.”

The defense attorney agreed and said that "Since the doctor was in court testifying, there was no reason to introduce testimony that he'd given two years earlier when he was being asked virtually the same questions he was asked during his pretrial questioning.”

The judge agreed.

If there is a document that was not introduced into evidence, then at the end of the trial when the jury is deciding on a verdict, they will not be allowed to see that document.

The only thing the jury is to consider is testimony and evidence that was admitted. If an attorney tried to get in a piece of evidence that the judge felt was not appropriate, the jury will be unable to see that document.

Pretrial testimony is often used to cross-examine a witness to highlight inconsistencies between something the witness said years earlier compared to what he said at trial.

The booklet that the questions and answers were put into, known as a transcript, is not and would not ever be introduced into evidence.

That means that if the jury asks to see that booklet of the doctor's pretrial testimony, the judge will advise them that the material contained in that pretrial testimony was never introduced into evidence.

You should know, that there are some instances where an attorney will actually read sections of pretrial testimony into the record in order to get those questions and answers given years earlier into evidence.

This is a great tool to get specific testimony into evidence without having a witness on the witness stand who can now object or give an explanation about that testimony. If certain segments or pages of pretrial testimony had been read to the jury by one of the attorneys and transcribed into the trial record, then the jury would in fact be allowed to see that part of the testimony that was read.

However, going back to the original question raised in this article, since the transcript of the pretrial testimony was never admitted into evidence the jury will not be allowed to see or read that transcript.

To learn even more about the jury requesting a document that was never admitted into evidence, I invite you to watch the video below... 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer