MODE OF INTERROGATION [FED. EVID. RULE 611]
SCOPE OF CROSS-EXAMINATION [FED. R. EVID. RULE 611(b)]
Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses limiting the original draft which allowed cross- examination “…on any matter relevant to any issue in the case”, H.R. Rep. No. 93-650, Cong. First Sess. 12.1973.
See also U.S. v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971);
Casey v. U.S., 413 F.2d 1303 (5th Cir. 1969), cert. denied, 397 U.S. 1039 (1970);
U.S. v. Evanchik, 413 F.2d 950 (2d Cir. 1969);
U.S. v. Cole, 617 F.2d 151 (5th Cir. 1980) [permitting interrogation outside scope of direct as to witness’ credibility].
Limitation on cross-examination held violative of confrontation guaranteed by Sixth Amendment. U.S. v. Lewis, 447 F.2d 134 (2d Cir. 1971); U.S. v. Wolfson, 437 F.2d 862 (2d Cir. 1970); U.S. v. Dickens, 417 F.2d 958 (8th Cir. 1969).
Limitation on cross-examination held not to violate of confrontation clause. U.S. v. Lara--Hernandez, 588 F.2d 272 (9th Cir. 1978).
Sixth Amendment guarantees a criminal Defendant the right to “confront” and “cross- examine” adverse witnesses.
“In all criminal prosecutions, the accused shall enjoy the right to …be confronted with the witnesses against him.”
The Sixth Amendment guarantee of confrontation includes the right to cross-examine.
“[A] major reason underlying the Constitutional Confrontation Rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” Pointer v. Texas, 380 U.S. 400, 406-07 (1965).
Applicable to States through Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400 (1965) [error to admit testimony at preliminary hearing where defendant not represented by counsel); Parker v. Gladden, 385 U.S. 363 (1966) (holding right to confront Bailiff who made disparaging remarks while escorting jury].
State “Voucher Rule” denied Defendant his Sixth Amendment right of cross-examination. Chambers v. Mississippi, 410 U.S. 284 (1973) [defense counsel entitled to cross-examine witness regarding statements against interest even though hearsay].
Right to full and unfettered cross-examination.
Chambers v. Mississippi, 410 U.S. 284 (1973);
Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974) [right to cross- examine key fact witness as to pending juvenile probation to show bias and motive];
U.S. v. Miranda, 510 F.2d 385 (9th Cir. 1975);
Snyder v. Coiner, 510 F.2d 224, 225 (4th Cir. 1975).
The defendant’s Sixth Amendment right to confront witnesses was denied where testimony by police officers that a non-testifying co-defendant had given them specific names as those of defendant’s accomplices. Admission of such testimony was held not to be plain error because none of the information was crucial to the State’s case. Clark v. Maggio, 737 F.2d 471 (5th Cir. 1984).
Likewise, the State denied defendant who was charged with illegal transporting of aliens, the right of confrontation by admitting into evidence videotaped depositions of two aliens released at the Mexican border. U.S. v. Guardian-Salazar, 824 F.2d 344 (5th Cir. 1987).
But, the defendant has no Sixth Amendment right to attend a witness competency hearing where his attorney is permitted to be present, at least in a child-molestation case where witnesses are children. Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
LEADING QUESTIONS [FED. R. EVID. RULE 611(c)]
Rule 611(c) restricts “leading questions” to cross-examination unless “necessary to develop” the witness’ testimony, “a hostile witness, an adverse party, or witness identified with an adverse party”.
PRIOR STATEMENTS OF WITNESSES [FED. R. EVID. RULE 613]
“Statement need not be shown nor its contents disclosed” to witness when examining him concerning a prior statement, “but on request the same shall be shown to disclose to opposing counsel.” [This applies to impeachment of witness with prior inconsistent statement.]
Extrinsic evidence of prior inconsistent statement of witness is not admissible unless the witness is afforded the opportunity to explain or deny same and the opposite party is afforded an opportunity to interrogate him thereon. U.S. v. DiNapoli, 557 F.2d 962 (2d Cir.), cert. denied, 434 U.S. 858, 98 S.Ct. 181 (1977). See also Ex parte Adams, 767 S.W.2d 438 (Tx.Cr.App. 1989)
[state’s failure to disclose prior inconsistent statements by witness whose testimony placed defendant at murder scene deprived defendant of fair trial as disclosure of inconsistent statement took place after conclusion of witness’ testimony and both sides had rested].
Caveat: Rule 613 deals with impeachment of a witness with a prior inconsistent statement. 40 ALR Fed. 629 (1978).
The statement would be admissible as substantive evidence of the truth of the matter therein contained, where it satisfies either:
- 801(d)(1) Prior statements by a witness [see hereinafter], or
- 801(d)(2) Admission by party opponent [see hereinafter].
See Hall v. State, 764 S.W.2d 19 (Tex.App.-Amarillo 1989) [holding that a video tape of a three year old victim of sexual molestation, that was admitted as excited utterances, was also properly used to impeach the child’s credibility].
But see U.S. v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986) [prosecutor’s calling of witness for sole purpose of testimony about witness’s previous statement that implicated defendant which was not otherwise admissible was found to be improper].
“There is no authority, in the Federal Rules of Evidence or elsewhere, suggesting that a party may on rebuttal call a witness-who the party knows will not offer any relevant evidence – and then impeach that witness by introducing under FED. R. EVID. 613(b), an earlier, hearsay statement favorably to that party’s case. Indeed, the case law is to the contrary. Impeachment evidence is to be used solely for the purpose of impeachment, and it may not be ’employed as a mere subterfuge to get before the jury evidence not otherwise admissible’.” U.S. v. Johnson, 802 F.2d at 1466.
BIAS, MOTIVE OR PREJUDICE
A witness may be impeached by showing that his testimony may be motivated by reasons other than telling the truth:
Prior arrests or pending indictment against prosecution
U.S. v. Musgrave, 483 F.2d 327 (5th Cir.), cert. denied, 414 U.S. 1023;
U.S. v. Croucher, 532 F.2d 1042 (5th Cir. 1976);
U.S. v. Garrett, 542 F.2d 23 (6th Cir. 1976);
U.S. v. DeLeon, 498 F.2d 1327 (7th Cir. 1974) [no indictment];
U.S. v. Garcia, 531 F.2d 1303 (5th Cir. 1976), cert. denied, 429 U.S. 941; Hart v. U.S., 585 F.2d 1280 (5th Cir. 1978) [“although the mere existence of an arrest is not admissible to impeach the credibility of a witness, this court has recognized that arrests may be admissible to show that an informer might falsely testify favorably to the Government in order to put his own cases in the best light possible”].
Pending probation against prosecution witness;
Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974).
No “agreement” or “deal” for the witness’ testimony need by shown;
Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir. 1982);
U.S. v. Mayer, 556 F.2d 245, 249 (5th Cir. 1977);
Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir. 1980).
“Whether or not a deal existed is not crucial. What is important is whether the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.” Greene v. Wainwright, 634 F.2d at 276.
Davis v. Alaska, 415 U.S. 308, 315-316 (1965) [holding Sixth Amendment right of confrontation and cross-examination violated by prohibiting cross-examination of prospective witness regarding pending juvenile probation];
U.S. v. Cervantes-Pacheco, 800 F.2d 452 (5th Cir. 1986) [testimony by informant whose fee was in part dependant on ultimate outcome at trial was impermissibly tainted].
Prior false testimony by prosecution witness against another defendant in a parallel prosecution;
- Johnson v. Brewer, 521 F.2d 556 (8th 1975).
Extraneous offenses (uncharged misconduct):
However, such other crimes, wrongs, or acts are not admissible to prove the character of a person in order to show that he acted in conformity therewith. Rather for other purposes, such as proof of: MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, OR ABSENCE OF MISTAKE OR ACCIDENT, under FED. R. EVID. Rule 404 (b).
Even if extraneous offense fits within exception it may be excluded where trial court determines unfair prejudice from admission outweighs probative value. FED. R. EVID. Rule 403.
- Present living arrangements to show reason for fabricating rape story;
Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988).