Cross-examination in Criminal Cases
| Publication year | 1978 |
| Pages | 1727 |
1978, October, Pg. 1727. Cross-Examination in Criminal Cases
Carroll E. Multz, Craig-Steamboat Springs, is District Attorney for the Fourteenth Judicial District. This is his fifteenth article to appear in The Colorado Lawyer.
It is undeniable that close criminal cases are won or lost on the cross-examination of the defendant, eyewitness, or other key witness. Certainly, in a one-on-one situation where the word of the defendant is pitted against that of the victim, the effectiveness of the cross-examiner is the key to the outcome of the case. Although some of the more successful cross-examiners are referred to as "natural" or "born," most, if not all, are developed through hard work and practice.
The purpose of this article is to familiarize the trial attorney with the laws governing cross-examination and to acquaint him with the techniques of effective cross-examination. Although directed primarily to the criminal law practitioner, the general rules and concepts contained herein may also be applied in civil cases. It is hoped that the following material provides an avenue to successful cross-examination.
The purposes of cross-examination are numerous and varied. Alternatively, they have been stated as follows:
1. To test the truth and reliability of what has been said on direct examination.(fn1)
2. To expose weakness and/or falsity of testimony.(fn2)
3. To overcome, qualify and/or explain testimony given on direct.(fn3)
4. To test the accuracy, recollection, knowledge and/or credibility of a witness.(fn4)
5. To impeach the witness by inconsistent conduct or prior inconsistent statements.(fn5)
6. To test motives actuating the witness' testimony, including his bias and prejudice.(fn6)
7. To develop and explain various phases of the subject of the testimony.(fn7)
8. To test competency of the witness and weight to be given to his testimony.(fn8)
9. To contradict or discredit a witness' testimony.(fn9)
10. To test the witness' accuracy, memory, skill, veracity, character or credibility.(fn10)
11. To modify, supplement, contradict, rebut or make clear facts testified to by the witness on direct.(fn11)
12. To test the witness' ability to observe accurately at the time the event occurred and accuracy of recollection of past events.(fn12)
It is to be kept in mind that a rea-
It is within the province of the trial judge to determine scope and limits of cross-examination and, except for abuse of discretion, the judge's rulings will not be disturbed on review.(fn18) As a general rule, an opposing party may cross-examine on any fact brought out during direct examination.(fn19) Moreover, cross-examination need not be confined to questions asked on direct, but may "develop and explore the various phases of the subject."(fn20)
Although cross-examination should be limited to those circumstances connected with matters inquired of in direct examination, it may delve into such matters as those tending to discredit or impeach a witness or to show his bias or prejudice.(fn21)
The defendant's constitutional privilege against self-incrimination is waived when he elects to take the stand in his own behalf.(fn22) He subjects himself to the same rules that govern other witnesses.(fn23) He may be cross-examined and impeached to the same extent as any other witness in the same situation.(fn24)
The defendant cannot refuse to testify to any fact which would be competent evidence in the case if proved by any other witness.(fn25) Also, the waiver by the defendant is not partial.(fn26) "Having once cast aside the cloak of immunity, he may not resume it at will whenever cross-examination may be inconvenient or embarrassing."(fn27)
Cross-examination of the defendant need not be confined to mere categorical review of matters, dates or times mentioned on direct examination, but may be directed to any matter which may tend to overcome or qualify the effect of the testimony on direct.(fn28)
It is improper for the prosecuting attorney, or the court, in the presence of the jury, to call upon the defendant or his counsel to furnish or produce evidence in their possession.(fn29) However, where the defendant has taken the stand and testified concerning the evidence in question, it is proper for the prosecutor to make a request for production of such evidence during the course of cross-examination.(fn30)
It is prejudicial error to cross-examine a defendant concerning a crime wholly independent of the offense for which he is on trial.(fn31) However, when evidence of other or similar transactions or conduct has been presented by the prosecutor in his case in chief, the defendant, by taking the stand and making a general denial of the offense charged, may be cross-examined as to such other or similar offenses even though he did not refer to such offenses on direct examination.(fn32)
When a defendant voluntarily becomes a witness, he may be properly required to perform particular acts or make exhibitions on the witness stand during cross-examination if otherwise relevant to the case.(fn33) Thus, where a defendant testified on direct examination that he owned a hat like the one found at the scene of the robbery but had lost it
The Miranda decision(fn35) does not bar the prosecution from using prior inconsistent statements to impeach the defendant's testimony at trial, even if such statements would be otherwise inadmissible in the prosecution's case in chief.(fn36) Therefore, where the defendant, for example, makes statements to his court-appointed psychiatrist (following a plea of insanity) upon advice of counsel and without physical coercion or intimidation, he may not take the stand at trial on the merits without the possibility of his credibility being impeached by his prior inconsistent statements to the psychiatrist.(fn37) "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances."(fn38)
When a defendant exercises his privilege to testify, all prior felony...
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