Chapter 12

• Jurisdiction: New York

CHAPTER TWELVE

CROSS-EXAMINATION

CROSS-EXAMINATION§ 12.0

231

[12.0] I. CROSS-EXAMINATION

[12.1] A. Overview

Defendants in criminal cases have, under the Sixth Amendment, the

absolute right to cross-examine witnesses who give adverse testimony.

The right to cross-examine in civil cases is based largely upon the funda-

mental right of due process to which all parties are entitled. Those rights

entitle all defendants to a full and fair opportunity to cross-examine, but

notto raise irrelevant issues, mislead the jury, or intimidate witnesses.

Those rights are so fundamental, so basic, so much a part of our juris-

prudence, that a denial of them, for any reason, may result in direct testi-

mony being stricken or a mistrial being declared. The reasons for a denial

are sufficiently complex—was the denial complete or only partial, for

example—that a discussion of that subject is beyond the scope of this

chapter.

Cross-examination, according to Wigmore, is based on the notion that

a witness will disclose on direct examination only “a part of the necessary

facts”; an adversary will, for the most part, emphasize facts that favor his

or her case. Accordingly, cross-examination serves four functions: (1)

uncover those facts left undisclosed during the witness’s direct examina-

tion; (2) develop issues of credibility that should be noted by the trier of

the facts when assessing the value of the witness’s testimony; (3) bring

out favorable facts; and (4) attack the witness himself.

Cross-examination is, perhaps, the most difficult task for a litigator. It

requires a degree of creativity, a complete understanding of the facts, a

thorough understanding of the law, insight into the weaknesses and

strengths of the case and its witnesses, as well as a sense of humor. It is

also the most confrontational stage of the trial when attorneys often will

try to disrupt and interrupt their adversary’s cross-examination.

Destructive cross-examination, when done properly, should uncover

flaws and inconsistencies in an adversary’s testimony that were not appar-

ent beforehand. Some skillful litigators, however, are able to sufficiently

confuse witnesses, and make it appear that they were not telling the truth

when they really were. In fact, some of those litigators will say, quite

frankly, that their obligation is to question the credibility of witnesses

even though they believe that they really were telling the truth.

§ 12.1FOUNDATION EVIDENCE, 5TH ED.

232

Nevertheless, always remember that the examiner must have a good

faith basis for impeachment questions—that is, a reasonable, factual

belief that the impeaching material exists. It is unethical to frame ques-

tions about matters that are not true or questionable.

In many states, and in England, the cross-examiner is not limited to the

issues raised during a witness’s direct examination, but may cross-exam-

ine that witness about all subjects relevant to any of the issues that arise

during the entire case, including the examiner’s case (the English Rule).

The cross-examiner may ask any question that is proper in the case even

though the questions may not concern the subject matter of the direct

examination.

A number of states, however, follow a more restrictive view: cross-

examination is confined to the matters addressed by the witness on direct

examination (the Federal Rule). That rule has been modified by many

courts to include, for instance, facts and circumstances related to the

direct testimony, or facts which might “explain, contradict, or discredit”

the testimony offered on direct examination.1 The proper scope of cross-

examination has been liberally construed by our courts, however, and

cross-examiners are allowed, basically, to explore almost any matter that

might destroy, explain, contradict, or rebut testimony given by the witness

during his or her direct examination. The cross-examiner will be permit-

ted to explore any subject matter that could reasonably be inferred from

the direct examination. In addition, the subject of general credibility is a

proper area to be explored regardless of whether or not the subject matter

of the questioning relates to what was presented in the direct examination.

And, even under the restrictive rules process, courts may allow a party

to ask questions that go beyond direct examination by “making the wit-

ness his own.” Rather than requiring the party to recall the witness for that

purpose, however, courts generally will allow cross-examiners to avoid

that additional step by, simply, allowing them to ask questions as if it were

a direct examination.

New York observes the Federal Rule, except that a trial court, in its dis-

cretion, may allow cross-examination on matters that might impeach the

1 Ronald L. Carlson, Cross-Examination of the Accused, 52 Cornell L. Rev. 705 (1966–1967).