§ 20.04 Scope of Cross-Examination

• Jurisdiction: United States

§ 20.04 Scope of Cross-Examination

There are two principal rules on the scope of cross-examination: (1) the wide-open rule and (2) the restrictive rule. Federal Rule 611(b) adopts the restrictive rule. Under that rule, cross-examination is limited to "the subject matter of the direct examination and matters affecting the witness's credibility." Credibility refers to impeachment, a subject often not raised on direct.⁴³ Determining what subjects were raised on direct examination is not always easy. The federal courts have generally taken an extremely liberal view on the scope issue, including "all inferences and implications" arising from direct examination testimony.⁴⁴ As with cross-examination generally,⁴⁵ the trial court enjoys great latitude, and the rule permits the cross-examiner to "adopt" the witness as her own, which may result in the curtailment of leading questions.⁴⁶

Wide-open rule. In contrast, the "wide open" or English rule, which has been adopted by several states, permits cross-examination on all relevant matters.⁴⁷ Even under the wide-open rule, the trial court has the authority to control and limit the scope of cross-examination.

The main difference between the two rules is the order of proof. A party foreclosed on cross-examination from pursuing a topic, because the judge ruled it beyond matters raised on direct examination (restrictive rule), may recall the witness later and elicit the desired information.⁴⁸ The right to recall a witness, however, would not apply to the prosecutor when examining a criminal defendant. The privilege against self-incrimination prohibits the prosecutor from calling the accused as a witness.⁴⁹ Therefore, in this situation, the prosecutor should be given some leeway, bound only by the extent of the Fifth Amendment waiver.⁵⁰

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Notes:

^[43] See infra chapter 22 (discussing credibility).

^[44] United States v. Arnott, 704 F.2d 322, 324 (6th Cir. 1983) ("subject matter of direct examination" for the purpose of cross-examination, is "liberally construed"). Accord Macaulay v. Anas, 321 F.3d 45, 54-55 (1st Cir. 2003) ("It is, of course, unrealistic to expect that direct examination and cross-examination will be perfectly congruent. The latter need only be reasonably related to the former, and matching the two requires the district court to make a series of judgment calls.") (citations omitted); United States v. Lara, 181 F.3d 183, 199 (1st Cir. 1999) ("It is standard fare for cross-examiners to inquire into...