On a motion arising within a wrongful conviction action, the moving parties sought leave to file a responding record after cross-examining the defendant on his summary judgment affidavit.
The court applied the flexible Rule 39.02(2) test and held the proposed evidence was relevant to credibility and to the nature of the defendant's investigative role, responded to issues raised on cross-examination, and was not shown to cause non-compensable prejudice.
The court declined to finally determine admissibility at this stage, holding that issue should generally be left to the summary judgment judge.
Leave was granted with terms requiring advance particulars of the alleged contradictions and permitting a responding affidavit.
