See also: BIAS; CONFRONTATION
IMPEACHMENT; INCONSISTENT STATEMENTS; RECROSS-EXAMINATION
REDIRECT EXAMINATION.

1.  Generally

Wigmore described cross-examination as "the greatest legal engine ever invented for the discovery of the truth."{footnote}5 Wigmore, Evidence § 1367 (Chadbourn rev. ed. 1974).{/footnote}  While in criminal cases the right of a defendant to conduct cross-examination is protected by the Constitution (§ 4),  there is no constituional right to cross-examination on the part of the prosecution in a criminal case{footnote}United States v. Gary, 74 F.3d 304, 309 (1st Cir. 1996); United States v. Pardo, 636 F.2d 535, 542 n.21  (D.C. Cir. 1980).{/footnote} or civil litigants.{footnote}But see Francis v. Clark Equip. Co., 993 F.2d 545 (6th Cir. 1993) (prejudicial error to allow plaintiff’s expert to testify as to feasibility of restraint but bar cross-examination on that subject).
But see Mont. R. Evid. 611(e) (“a witness can be heard only in the presence and subject to the examination of all the parties . . . . “);Minns v. Piotrowski, 904 S.W.2d 161 (Tex. Ct. App. 1995) (“Cross-examination is a valuable right, and it is error to so restrict it so as to prevent the cross-examining party from going fully into all matters connected with the examination in chief.”) {/footnote}  

2.  Scope of Cross-Examination

2(a).  Generally

The federal rules and most states restrict cross-examination to the subjects covered on direct examination,{footnote}Cohen v. Brown Univ., 101 F.3d 155, 185 (1st Cir. 1996); United States v. Hoyos, 3 F.3d 232, 236 (7th Cir. 1993).{/footnote} and to impeachment.{footnote}FRE 611(b); United States v. Southers, 583 F.2d 1302 (5th Cir. 1978); Cal. § 761.
See also IMPEACHMENT.{/footnote}  FRE 611(b) and its state counterparts provide:

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.  The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Trial courts are quite liberal, however, in finding that testimony on direct has "opened the door" to cross-examination on a specific question.{footnote}United States v. Wolfson, 573 F.2d 216 (5th Cir. 1978).
See also Burlington Northern Railroad Company v. Hood, 802 P.2d 458, 466 (Colo. 1990) (holding that appellate court construed Colo. R. Evid. 611(b) too narrowly).
See also COMPLETENESS, RULE OF.{/footnote}  Cross-examination will be allowed, not just as to the matters expressly testified to, but also as to inferences that could be drawn from the direct examination,{footnote}United States v. Tomblin, 46 F.3d 1369, 1386 (5th Cir. 1995).
108 A.L.R. 160.{/footnote} and matters indirectly related to the testimony on direct.{footnote}Babcock v. Chesapeake & Ohio Ry Co., 83 Ill. App. 3d 919, 404 N.E.2d 265 (1st Dist. 1979).{/footnote}  Matters affecting the credibility of the witness are never deemed collateral,{footnote}People v. Bott, 651 N.Y.S.2d 207 (1996); White v. Sullins, 917 S.W.2d 158 (Tex. Ct. App. 1995) (during cross-examination “any matter relevant to any issue including credibility [is] fair game.”; citing Tex. R. Civ. Evid. 611(b)).{/footnote} although the court may restrict the impeachment of witnesses in the exerise of its discretion.{footnote}People v. Bott, 651 N.Y.S.2d 207 (1996).{/footnote}

Some states allow cross-examination as to any relevant matters whatsoever,{footnote}N.C. R. Evid. 611(b) (“witness may be cross-examined on any matter relevant to any issue in the case, including credibility."); Tex. R. Civ. Evid. 611(b) (same); Minns v. Piotrowski, 904 S.W.2d 161 (Tex. Ct. App. 1995) (applying Tex. R. Civ. Evid. 611(b)). Neely v. State, 272 N.W.2d 381 (Wis. 1978) [check Wis. R. 611].{/footnote} while others permit cross-examination as to the subjects covered on direct and any matters relating to a defendant’s denials of the allegation of the plaintiff (excluding any of the defendant’s affirmative defenses and counterclaims).{footnote}Dietsch v. Mayberry, 47 N.E.2d 404 (Ohio 1942).{/footnote}

2(b).  Exceeding Scope of Direct Examination

Trial courts may in the exercise of their discretion allow a cross-examiner to exceed the scope of the direct examination,{footnote}FRE 611(b) (“The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”).
But see Lis v. Robert Packer Hospital, 579 F.2d 819 (3d Cir. 1978) (trial court erroneously allowed cross-examination beyond the scope of the direct examination; held harmless error).{/footnote} but the questions must be in the same form as direct examination.{footnote}FRE 611(b).
See LEADING.{/footnote} The party may be bound by any testimony given at this point in those jurisdictions which do not allow parties to impeach their own witnesses.  See IMPEACHMENT–Impeaching One’s Own Witnesses.

2(c).  Collateral Issues

Courts may in their discretion control the cross-examination of witnesses as to collateral issues, issues which are not material to the decision of the case.{footnote}Alford v. United States, 282 U.S. 687 (1931); United States v. Sanchez, 361 F.2d 824 (2d Cir. 1966); Southern Farm Bureau & Casualty Ins. Co. v. Mitchell, 312 F.2d 485 (8th Cir. 1963); Rizzo v. United States, 295 F.2d 638 (8th Cir. 1961).{/footnote}

2(e).  Cross-Examination of Criminal Defendant

Where a criminal defendant takes the stand to testify on his own behalf as to only a narrow issue, he may generally be cross-examined as to matters relevant to that issue,{footnote}United States v. Brantley, 786 F.2d 1322 (7th Cir.), cert. denied, 106 S. Ct. 3284 (1986) (prosecution properly allowed to cross-examine defendant regarding codefendant’s business, since direct examination implied that the business was legitimate); United States v. Jones, 913 F.2d 1552 (11th Cir. 1990) (prosecution properly cross-examined defendant about employment history to counter false impression left by defendant’s direct testimony as to promotion he received); United States v. Pilcher, 672 F.2d 875 (11th Cir.), cert. denied, 459 U.S. 973 (1982).
Contra N.C.G.S. § 8C-1, Rule 611(b) (1986) (when a defendant chooses to testify in his own defense he subjects himself to cross-examination "on any matter relevant to any issue in the case, including credibility."); State v. Freeman, 356 S.E.2d 765 (N.C. 1987).{/footnote} or as to matters offered as impeachment.{footnote}But see MaGahee v. Massey, 667 F.2d 1357 (11th Cir.), cert. denied, 459 U.S. 943 (1982) (defendant may not use the privilege against self-incrimination as a sword by “selectively” testifying).{/footnote}

3.  Form of Questions

Leading questions are allowed on cross-examination of a witness, with some exceptions.{footnote}FRE 611(c) (“Ordinarily leading questions should be permitted on cross-examination.”)
Cal. Evid. Code § 767.{/footnote}  Cross-examination of "friendly" witnesses (one’s own witnesses called by the other side) must generally be done without leading questions,{footnote}FED. R. EVID. 611(c) Advisory Committee Notes (trial court may deny the use of leading questions “when the cross-examination is cross-examination in form only and not in fact, as for example the "cross examination" of a party by his own counsel after being called by the opponent . . . . “)

.

Cal. Sec. 776(b)(1).{/footnote} though this left to the court’s discretion.{footnote}Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir. 1978).
See also LEADING QUESTIONS–When Leading Questions Allowed on Direct.{/footnote} 

4.  Criminal Defendants’ Right to Cross-Examine Witnesses

4(a).  Generally

In criminal cases, the defendant’s right to cross-examine is guaranteed by the Confrontation Clause of the Sixth Amendment.{footnote}Delaware v. Van Arsdall, 475 U.S. 673 (1986) ("the main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination."); Davis v. Alaska, 415 U.S. 308 (1974); Smith v. Illinois, 390 U.S. 129, 131 (1968) (denial of cross-examination without waiver is constitutional error); Douglas v. Alabama, 380 U.S. 415, 418 (1965) (primary interest by confrontation clause is right of cross-examination); Pointer v. Texas, 380 U.S. 400, 404 (1965); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934); Alford v. United States, 282 U.S. 687 (1931); Dowdell v. United States, 221 U.S. 325, 330 (1911); Kirby v. United States, 174 U.S. 47, 55 (1899); Mattox v. United States, 156 U.S. 237, 244 (1895).
Pigg v. State, 603 N.E.2d 154 (Ind. 1992) (also applying Indiana Constitution); State v. Crooker, 122 A. 865, 866 (Me. 1923) (confrontation right does not mean merely that accused sees witness but includes right to cross-examine).
See also United States v. Jones, 982 F.2d 380 (9th Cir. 1992, amended 1993) (reversing drug smuggling conviction because trial court would not allow recross-examination, even though new matter brought out on redirect).{/footnote}  The right to cross-examine adverse witnesses is not absolute, however.{footnote}Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir.), cert. denied, 493 U.S. 831 (1989).
State v. Balisbana, 924 P.2d 1215, 1220 (Hawaii 1996); State v. Desantis, 456 N.W.2d 600, 609 (Wis. 1990) (cross-examination of sexual assault victim as to sexual history).
But see United States v. Bright, 630 F.2d 804, 817 (5th Cir. 1980) (discretionary authority to limit cross-examination available only after defendant permitted sufficient cross-examination to satisfy sixth amendment right of confrontation).{/footnote} The right to cross-examine and confront witnesses may be waived by either the defendant or the defendant’s attorney.{footnote}Check Brookhart v. Janis, 384 U.S. 1 (1966) (must be intentional relinquishment of a known right); Wilson v. Gray, 345 F.2d 282 (9th Cir. 1965). {/footnote}

4(b).  Unavailability or Refusal of Witness  to Testify on Cross-Examination

Where a witness dies or otherwise becomes unavailable before there has been an opportunity to cross-examine, it is generally held that the witness’ testimony on direct must be stricken (provided the adverse party is not responsible for the witness’ unavailability).  Similarly, where a witness claims the privilege against self-incriminaotion to avoid answering questions on cross-examination, the court may be required to strike the direct testimony,{footnote}28 Charles A. Wright & Victor J. Gold, Federal Practice And Procedure § 6167, at 414-15 & n.20 (1993); Charles R. Nesson & Michael J. Leotta, The Fifth Amendment Privilege Against Cross-Examination, 85 Geo. L.J. 1627, 1666-69 (1997).
CHECK See also United States v. Seifert, 648 F.2d 557, 560 (9th Cir. 1980) (witness refused to answer on cross-examination for fear of his life).{/footnote} whether the witness is testifying for the prosecution{footnote}United States v. Coven, 662 F.2d 163 (2d Cir. 1981); Dunbar v. Harris, 612 F.2d 690, 692-93 (2d Cir. 1979); United States v. Smith, 342 F.2d 525, 527 (4th Cir. 1965), cert. denied, 381 U.S. 913 (1965); United States v. Phillips, 664 F.2d 971, 1027-28 (5th Cir. Unit B Dec. 1981), cert. denied, 457 U.S. 1136 (1982);.
But see United States v. Nunez, 668 F.2d 1116 (10th Cir. 1981) (trial court not required to strike testimony where defendant had full opportunity to explore the witness’ motives in testifying).
Annotation, Propriety of a Court’s Failure or Refusal to Strike Direct Testimony of Government Witness Who Refuses, on Grounds of Self-Incrimination, to Answer Questions on Cross-Examination, 55 A.L.R. Fed 742 (1981).{/footnote} or the defense.{footnote}Lawson v. Murray, 837 F.2d 653, 655 (4th Cir. 1988) (“The defendant’s right to present witnesses in his own defense, however, does not carry with it the right to immunize the witness from reasonable and appropriate cross-examination.”; upholding trial court’s striking entire estimony); United States v. Doddington, 822 F.2d 818, 820-22 (8th Cir. 1987) (affirming trial court’s striking of defense witness’ entire testimony where assertion of privilege gave prosecution "no opportunity to cross examine him on any matters testified to on direct examination"); United States v. Lord, 711 F.2d 887, 892 (9th Cir. 1983).
 State v. Pew, 593 P.2d 1198 (Ore. 1979)
But see United States v. Pardo, 636 F.2d 535, 542 & n.21 (D.C. Cir. 1980) (courts should be more reluctant to strike the testimony of a defense witness because the prosecution’s right to cross-examine witnesses is not as essential as the defendant’s right of confrontation).{/footnote}  The direct testimony need but not where the subject matter as to which the privilege was asserted is “collateral” to the witness’ direct testimony,{footnote}United States v. Brooks, 82 F.3d 50 (2d Cir. 1996) (If a witness asserts the privilege on cross-examination regarding "collateral" matters, the witness’s direct testimony need not be stricken); Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988); United States v. Gullett, 713 F.2d 1203 (6th Cir. 1983), cert. denied, 104 S.Ct. 973 (1984) (defendant’s right to cross-examination not violated where assertion of privilege on cross-examination did not relate to matters which were the subject of witness’ direct examination);{/footnote} or relates only to the witness’ credibility.{footnote}Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926 (1991); United States v. Calvente, 722 F.2d 1019, 1024 (2d Cir. 1983) (arrest for unrelated offense), cert. denied, 471 U.S. 1021 (1985); United States v. LaRiche, 549 F.2d 1088, 1096-97 (6th Cir.) (other crimes), cert denied, 430 U.S. 987 (1977); United States v. Williams, 626 F.2d 697, 702 (9th Cir.) (whether witness had stolen car used in robbery), cert. denied, 449 U.S. 1020 (1980); {/footnote}  Moreover, the court may strike all of the direct testimony or only part.{footnote}Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988):

…[S]triking only portions of the testimony may be the more reasonable remedy if that can avoid the unfairness created by the avoidance of full cross-examination, but the purpose of cross-examination is to test the credibility of the witness and the truthfulness of his earlier testimony. Striking all of the testimony of the witness may be the only appropriate remedy when refusal to answer the questions of the cross-examiner frustrates the purpose of the process.
Id. at 656 (dictum; upholding trial court’s striking of entire estimony):{/footnote}

The Supreme Court has held that a defendant’s right to confronation is not violated where a prosecution witness cannot remember the basis for their testimony{footnote}United States v. Owens, 484 U.S. 554, 564 (1988); Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (expert witness could not remember basis for opinion).{/footnote} or for their out-of-court statement, as long as the defendant has the opportunity to put before the jury the witness’s inability to answer.{footnote}United States v. Owens, 484 U.S. 554, 559 (1988); Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985) (expert witness could not remember basis for opinion).{/footnote}

4(c).  Restrictions on Cross-Examination

The defendant must be permitted to elicit sufficient testimony for the trier of fact to adequately determine the credibility of the witness.{footnote}Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1980); United States v. Burke, 738 F.2d 1225 (11th Cir. 1984).
See also SEXUAL HISTORY.{/footnote}  Otherwise, trial courts have wide discretion to limit the cross-examination by the defense.{footnote}United States v. Conley, 92 F.3d 157, 169 (3d Cir. 1996); United States v. Brown, 946 F.2d 1191, 1195 (6th Cir. 1991); Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir.), cert. denied, 493 U.S. 831 (1989). United States v. Akinrinade, 61 F.3d 1279, 1284 (7th Cir. 1995); United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997) (standard on review is “clear abuse of discretion”).
Ebb v. State, 671 A.2d 974 (Md. 1996).
But see United States v. Foster, 982 F.2d 551 (D.C. Cir. 1993) (reversing conviction for drug possession where defense cross-examination of key prosecution witness undult restricted).{/footnote}  For example, the right of confrontation does not require the court to permit cross-examination that is merely repetitive or marginally relevant.{footnote}United States v. Johnson, 25 Fed. Rules Evid. Serv. 1444 (4th Cir. 1988) (per curiam).
Ebb v. State, 671 A.2d 974 (Md. 1996).{/footnote} A defendant is not necessarily entitled to elicit a witness’ name and address, or an alleged rape victim’s sexual history.{footnote}See ADDRESSES; SEXUAL HISTORY.{/footnote} The Confrontation Clause requires only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."{footnote}Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (internal quotation marks omitted).{/footnote} A restriction does not arise to the level of a Sixth Amendment violation unless the restriction was unreasonable.{footnote}United States v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996).{/footnote}

A trial court’s ruling limiting cross-examination of a witness will constitute reversible error only where (1) the trial court has abused its discretion;{footnote}United States v. Conley, 92 F.3d 157, 169 (3d Cir. 1996); United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997) (standard on review is “clear abuse of discretion”){/footnote} (2) the restriction violates the defendant’s rights under the Confrontation Clause;{footnote}United States v. Conley, 92 F.3d 157, 169 (3d Cir. 1996); United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997).{/footnote} and (3) the error is prejudicial.{footnote}United States v. Conley, 92 F.3d 157, 169 (3d Cir. 1996).

{/footnote}  Even erroneous limitations on a defendant’s right to cross-examine may be held harmless error.{footnote}United States v. Gambler, 213 App. D.C. 278, 662 F.2d 834 (D.C. Cir. 1981).
Check United States v. Haro, 573 F.2d 661 (10th Cir. 1978).{/footnote} 

Bibliography

Charles R. Nesson & Michael J. Leotta, The Fifth Amendment Privilege Against Cross-Examination, 85 Geo. L.J. 1627 (1997).