The B & G Bar and Grill


Malpractice damage action against surgeon D for the alleged negligent performance of a tonsillectomy on P on June 1, 1991, at 2 p.m. The specific negligent act alleged is operating while intoxicated. At trial, P offers W, a waitress at the B & G Bar and Grill, to testify that on June 1 at 1 P.M. D entered the bar, occupied the booth, and consumed several drinks. The cross-examination is as follows:

Q: What were the drinks that the defendant ordered?

A: Bloody Marys.

Q: How many drinks did he order?

A: A lot of drinks.

Q: What do you mean by "A lot of drinks"?

A: More than two.

Q: More than five?

A: Maybe--about that many.

Q: Did you see the drinks mixed?

A: No.

Q: Was the defendant alone?

A: No. There were people with him.

Q: How many?

A: Several--three or four.

Q: Men or women?

A: Men and women.

Q: How many men and how many women?

A: I don't know. There were some of each.

Q: Did defendant eat anything when he was there?

A: I don't know.

Q: How many customers were in the B & G while defendant was there?

A: Oh, it's a big place and very busy at that hour.

Q: How many?

A: Probably 50 or so.

Q: How many waitresses were there?

A: Well, there were just two of us on then, I think.

Q: Did you also take money and serve as a cashier?

A: Yes, except Harry at the bar took money there for drinks.

Q: So during the time defendant was in the bar you would be taking money and making change?

A: Yes.

Q: Who paid the tab for the drinks at defendant's table?

A: I can't remember.

Q: Have you ever had a disagreement with defendant over the service or anything else in the B & G?

A: Well, once he claimed to have given me a $20 bill when he had given me only a $10 bill, and we had some words over it.

What is the purpose of this cross-examination? What qualities of the witness are tested? What capacities and skills of the witness are impugned?

Consider the following from Kinsey v. State, 65 P.2d 1141 (Ariz. 1937):

What is the purpose of cross-examination? Obviously it is to convince the triers of fact, in some manner, that the testimony of the witness is untrue, for if the cross-examiner accepts it as true, there will be no need nor desire for cross-examination. How, then, may the truthfulness of the evidence of a witness be attacked through cross-examination? It seems to us that all attacks thereon must be reduced to one of three classes: (a) Upon the honesty and integrity of the witness; (b) upon his ability to observe accurately at the time the incident occurred; and (c) upon his accuracy of recollection of the past events.

If one of the purposes of cross-examination is to destroy the credibility of the witness, what are the limits of acceptable attack?

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