§ 6.08 Fighting "Fire with Fire"

• Jurisdiction: United States

§ 6.08 Fighting "Fire with Fire"

Sometimes one party introduces irrelevant or incompetent evidence.⁷⁶ Should the other side be permitted to answer "in kind"? ("Fighting fire with fire" is the metaphor often employed in this context.) "Under the rule of curative admissibility, or the 'opening the door' doctrine, the introduction of inadmissible evidence by one party allows an opponent, in the court's discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission."⁷⁷

The question then becomes whether such a response should be considered a waiver of any objection that had been raised. For example, should cross-examination on a subject to which the cross-examiner had previously objected waive that objection? If waiver results, the objecting party faces a difficult and unfair choice between preserving the alleged error for appeal or cross-examining the witness. In addition, such a rule may not serve judicial economy. To preserve the issue for appeal, a party may forgo cross-examining the witness. If the cross-examination would have succeeded in destroying the credibility of the witness, the need for an appeal might have been obviated.⁷⁸

"Opening the door." "Opening-the-door," however, may not involve impermissible conduct. For example, a general rule prohibits the prosecution from introducing evidence of the accused's character, but Rule 404(a)(1) explicitly permits the defendant to introduce evidence of her character.⁷⁹ Once the defense offers character evidence, the prosecution may offer rebuttal evidence. Here, the defense is permitted by the rule to "open the door" to character evidence.

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Notes:

^[76] The other side may have failed to object or the judge may have overruled an objection.

^[77] United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988) (citation omitted). See also United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009) ("In a criminal prosecution, the government may introduce otherwise inadmissible evidence...