Evidence - In Tennessee when does the "cancellation rule" apply to exclude testimony of a witness who provided inconsistent testimony?

Posted on Jan 29 2013 9:21AM by Attorney, Jason A. Lee

Brief Summary:  The “cancellation rule” is a narrow rule and only applies to bar inconsistent testimony of a witness in limited circumstances.  The rule can exclude the testimony of a witness when the testimony is clearly contradictory (is not open to different interpretations or explanation) and there is no corroborating evidence for either version of the testimony.


Analysis:  The recent Tennessee Court of Appeals decision of Norman Hill v. Danny Tapia, Jr., No. M2012-00221-COA-R3-CV, 2012 WL 6697308 (Tenn. Ct. App. December 21, 2012) discussed when the "cancellation rule" applies to bar testimony from a physician who provided inconsistent testimony.  This issue came up because one party contended that the entirety of a physician's testimony should be "stricken from consideration because it is vague, contradictory, and unclear."  Hill at 5.  The court noted that "Dr. Hampf's testimony first tends to establish causation, then tends to weaken that conclusion."  Hill at 4. 


The court noted that Tennessee has adopted the "cancellation rule".  The Tennessee Court of Appeals stated "Tennessee follows the rule that contradictory statements by the same witness regarding a single fact cancel each other out.   If determined by the trial court to be contradictory, the statements by the witness are considered to be ‘no evidence’ of the fact sought to be proved.”  Hill at 5.  The court went on to state:


The question here is not one of the credibility of a witness or of the weight of evidence; but it is whether there is any evidence at all to prove the fact. If two witnesses contradict each other there is proof on both sides, and it is for the jury to say where the truth lies; but if the proof of a fact lies wholly with one witness, and he both affirms and denies it, and there is no explanation, it cannot stand otherwise than unproven. For his testimony to prove it is no stronger than his testimony to disprove it, and it would be mere caprice in a jury upon such evidence to decide it either way.


Hill at 5.  (citing Johnston v. Cincinnati No. & T.P. Ry. Co., 240 S.W. 429, 436 (1922)).  In this particular case the court went on to hold that the cancellation rule was not applicable to exclude the testimony in question.  Hill at 6.  This was because the questions asked of the doctor that led to seemingly contradictory responses were slightly different and therefore the alleged contradiction was not clear.  Additionally, another physician provided testimony that corroborated one of the physician’s statements. Hill at 6.  The court therefore summed up the “cancellation rule” by stating:


[t]he cancellation rule only applies, ‘when the inconsistency in the witness's testimony is unexplained and when neither version of his testimony is corroborated by other evidence

Hill at 7.  (citing Taylor v. Nashville Banner Publ'g Co., 573 S.W.2d 476, 483 (Tenn.Ct.App.1978)).  As a result, it is important to carefully consider the conflicting testimony when trying to exclude it based on the “cancellation rule”.  If there is other material evidence to support the testimony or the testimony is susceptible to multiple interpretations then it is very unlikely the testimony will be excluded.  Instead the Court will allow the testimony to be presented to the jury for consideration.

TAGS: Evidence
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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