Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER IV: Competency, Examination, and Credibility of Witnesses (329)
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C. Cross-Examination and Witness Credibility (363)

Problem - The B&G Bar and Grill (363)The point:

One of the primary purposes of cross-examination is to destroy the credibility of the witness by suggesting that the witness did not perceive correctly, does not remember what he saw, is not communicating accurately what he remembers, or is lying.

Answer and Analysis:

A witness's credibility is always a legitimate subject of crossexamination. The concept of credibility is typically broken down for analytic purposes into the four basic testimonial capacities: perception, memory, clarity and sincerity. Sincerity is the most complex, and is itself often broken down into bias, prejudice, interest, and corruption.

The cross-examination in the problem proceeds through questions that probe the witness's clarity (e.g., what do you mean by "A lot of drinks?"), memory (e.g., How many men--?), perception (e.g., So during the time the defendant was in the bar you would be taking money and making change [suggesting distractions]), and sincerity (bias)(e.g., Have you ever had a disagreement with defendant . . .?).

Note that although the subject matter of the cross examination probes at the witness's perception and sincerity, the form of the questions in the problem is not the classic leading form of cross examination. The lawyer takes some risk in asking the witness to characterize the number of drinks consumed by the defendant, and uses a number of open questions which the witness could answer in unexpected and startling ways. An additional realm of discussion would be to rephrase the questions in leading form to make the same points with less risk to the cross-examiner.



Berger v. United States, 295 U.S. 78 (1935)(365)

This case illustrates abuses of cross-examination by an overzealous prosecutor. Some of the ethical and advocacy issues raised by this examination include:

  1. Needless harassment of the witness;
  2. Unfair twisting of the witness's answer to give it a meaning other than as obviously intended.
  3. Inserting the prosecutor and the prosecutor's credibility into the examination.
  4. Asking questions without any good faith basis.
  5. Asking questions to confuse the fact-finder.
  6. Referring to facts not in evidence in argument and inserting the prosecutor's personal knowledge in the argument and the questioning.

This is a good place to stress the responsibilities placed on a prosecutor to maintain complete fairness in every presentations, regardless of the prosecutor's personal belief in the guilt of the defendant.



Problem - Cross-Examination: Charles Atlas (367)

Answer and Analysis:

Objection sustained. The question does not seek to elicit any new facts. Rather counsel is attempting to make a speech to the jury before the time allowed for such speeches (closing argument). Thus the question is argumentative. Such questions are common on television shows about lawyers. Similar questions are also commonly asked by English barristers when concluding cross-examination: "I put it to you that . . . ."

The effectiveness of this form of examination is doubtful.



Problem - Cross-Examination: "When Did You Stop Beating...?"(368)

Answer and Analysis:

(1) "What had your husband done to cause you to kill him?

Objection sustained. Although leading questions are generally permitted on cross-examination this question is objectionable because it forces the witness to assume a fact in issue. (Like "when did you stop beating your wife?". It is designed to trap the witness into an inadvertent admission;

(2) "Did you have any reason for taking that man's life that you said you loved? "

Objection sustained. Same reason -- another trick question. Also these questions are calculated to abuse and degrade the witness through repeated expression by the prosecutor of his personal belief in defendant's guilt.

(3) "Can you give the jury any reason why you shot your husband and killed him?"

Objection sustained. Same reason.

(4) "Did he threaten you?"

Objection overruled. No problem. This goes to the possible reasons why the accused might assault the victim. Hence it is relevant to motive and is not impermissible in form.

(5) "Did he draw a gun? Just answer yes or no . . . "

Objection sustained. The witness is entitled to formulate her own answer to the question. Counsel is not entitled to force the witness to answer in a set mold.

If a witness has been non-responsive or long-winded such constraints may be permitted but a witness is always free to explain his answer. The witness may need some protection from opposing counsel in her efforts to do so.



Problem - Opium (368)

The point:

Non responsiveness is not grounds for objection by the non-examining party.

Answer and analysis:

Objection overruled. The answer is not responsive to the question but it is not otherwise inadmissible in form or content. Ordinarily nonresponsiveness is an objection available only to the examining counsel not to the opposing counsel. The reason for this is that the interest protected by the objection for non-responsiveness is the coherence of the examining counsel's examination.

In this particular example, defense counsel might base his objection on lack of evidence showing J.J.'s personal knowledge (FRE 602). If this occurs the court will require the proponent to connect up the testimony by laying a proper foundation showing J.J.'s first-hand knowledge.

A motion to strike the answer by the prosecutor -- the examining counsel -- should be granted if requested.

Problem - Hostile Witness (368)

Answer and Analysis:

(1) Objection overruled. The direct examination of S was limited to showing that S was D's agent. The purpose of this cross-examination is to show that although S was D's agent, he was on a frolic of his own at the time of the accident. This is within the scope of cross-examination because it deals, as did the direct, with the issue of agency at the time of the accident. FRE 611(b).

(2) Objection sustained. This deals with the issue of fault, not of agency, and hence is not within the scope of cross-examination.

FRE 61 I(b) adopts a loose form of the rule of restrictive crossexamination. Cross is limited to "the subject matter" of the direct examination and matters affecting the credibility of the witness. However, the rule is framed in suggestive terminology rather than as a command, providing great latitude to the trial judge and little scope for appellate scrutiny.

The rule proposed by the Supreme Court was the "wide-open" rule of cross-examination that permits cross-examination on any matter relevant to any issue in the case with the limitation that in the interest of justice the court may restrict cross-examination with respect to matters not testified to on direct. The House Committee substituted for this version the restrictive rule that was in the original Advisory Committee version of the rules and which was the prevailing federal rule and the rule in effect in most jurisdictions. The House Committee also added the language that when the judge permits examination outside the scope of the direct, the examination should be "as if' on direct. This means "no leading", subject, as the Senate Committee pointed out, to the exceptions in FRE 611 (c) permitting leading on direct examination in certain exceptional situations. A compromise between the restrictive and the wide-open rules of cross-examination proposed by some commentators and judges is the "half-open" rule of crossexamination. Under this approach cross-examination is permissible on all matters in the case except matters that are part of the cross-examiner's affirmative case. This rule is even more difficult to apply than the restrictive rule. The problem of defining what is part of the cross-examiner's affirmative case compound the problem of what is the subject matter of the direct. See Problem - Death at the Awahnee below.

(3) Objection sustained. This deals with the plaintiffs contributory negligence; the issue is not only one which was not dealt with in the direct examination but is not even an issue which is part of the plaintiffs case. Thus if allowed the defendant would be proving his case out of order.



Problem - Death at the Awahnee (369)

Answer and Analysis:

P has examined C on facts relating to proving that V died within the period of the life insurance policy. D would like to elicit from C facts that relate to D's defense that V died by suicide. Since this examination is beyond the scope of the direct examination, D has two choices. He can wait until P rests his case; then D, as part of its case, can recall C to the stand and elicit the desired facts. Or D, after cross-examining C with respect to the issue about which he testified on direct, can ask the judge for permission to take the witness on direct with respect to the issue of suicide. Depending on the judge's view as to how disruptive this would be to the orderly presentation of proof and whether it would promote or reduce efficiency, P might then be permitted to cross-examine C with respect to the issue of suicide.



Problem - The Powder-Puff Killer (369)

Answer and Analysis:

(1) The basis of the prosecutor's objection is that the question goes beyond the scope of the direct examination. This demonstrates the problem under the restrictive rule of cross-examination of determining what the "subject matter" of the direct examination is. In this case, is it spider venom in the blood or, more broadly, cause of death?

The objection should be overruled. The toxicologist's testimony fairly relates to the issue of cause of death. So does the question about Demerol. Moreover the DA's case is not disrupted by the question. The DA has raised the question of what was found in Mrs.. D's blood. Moreover it makes little practical difference whether the toxicologist is asked the question in leading or non-leading form. There is no problem of suggestibility with this witness. Whether Dr. T will testify that Demerol was found in the blood is not likely to be affected by whether the witness is responding to a leading or to an open-ended question. However, if the judge excluded the question as not within the scope of the direct and the defense were forced to ask the question on recall of the witness during the presentation of its case, the court is not likely to be reversed.

(2) The objection should be overruled. The question does not relate to the subject matter of the direct but it bears on the bias of the witness. Examination which relates to credibility is never beyond the scope of direct. A wide scope is given to developing such evidence. See Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1930).



Problem - Showdown at the W-Q Ranch (370)

Answer and Analysis:

Former students of Professor Chadboum may recognize this problem. The key to the problem is that the question relates to delivery of the deed, which was the subject matter of P's direct testimony, but not of M's testimony, which goes to execution of the deed.

How does the restrictive rule of cross-examination work when the cross-examiner wants to cross-examine a second witness on the subject matter testified to by a prior witness on direct?

(1) Objection sustained. Once counsel has opened up an issue with one witness, cross-examining counsel generally should be given permission readily to examine subsequent witnesses on those issues, the only question being whether the examination should be conducted by non-leading questions. On the question of the non-delivery of the deed, M is a crucial witness and should be required to present the story of his seeing the document on the desk in his own words. Thus while D should be able to go into this issue with Mr. M the form of examination should be more like:

"Were you in Mr. Quarrel's study on January I?"

"What did you observe there?"

"Did you see any papers?"

"Where? "

"What were they?"

(2) D's request to examine the witness as if on direct examination should be approved. D's examination must then be by non-leading questions. P may cross-examine on the issue of delivery and all issues of credibility.

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