Wide-Open Versus Restrictive Rules

Scope of Cross-Examination

Wide-Open Versus Restrictive Rules

When the direct examination ends, the opponent may cross-examine, and the question is how far that cross may reach. Federal Rule of Evidence 611(b) answers that cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility, and that the court may allow inquiry into additional matters as if on direct examination.¹ That answer is one of two competing rules, and a third, now mostly obsolete, splits the difference. A scope rule matters because many witnesses know things that help both sides, and the rule decides when that knowledge reaches the jury and who controls the order in which it arrives.

England and a few states let the cross-examiner ask about any relevant matter. Most American states, and the Federal Rules, confine her to the aspects of the merits covered on direct.² A hypothetical built on a fatal accident shows where the two versions part ways.

The plaintiff calls a neighbor who saw the accident. On direct examination, the neighbor testifies that the defendant was talking on a cell phone while driving down the road and hit the plaintiff's wife as she walked across the street.³ On cross-examination, the defendant wants to ask what the neighbor knows about the state of the plaintiff's marriage to the decedent. If allowed to answer, the neighbor would say that the couple often had violent arguments and that he had called the police on them a number of times.⁴

Assume the testimony is relevant, most plausibly to the plaintiff's damages. The question is not whether the jury may ever hear it. The question is when, and who decides. The defendant wants to raise the marriage now, with the neighbor on the stand and the jury listening. The plaintiff wants to present the case in the order he chose, with his liability story undisturbed by a dispute over the marriage. Each scope rule resolves that tension in favor of one lawyer, and the next subsection starts with the rule that favors the cross-examiner.

The Wide-Open Rule

Under the wide-open rule, followed in England and a few American states, the cross-examiner is not limited to the topics the direct examiner chose to open. She may question the witness about any subject relevant to any issue on the merits of the entire case, including facts that bear solely on her own case or affirmative defense.⁵ The witness is treated as a source of information about the whole lawsuit, so the topics the calling party chose for the first round do not set the boundary for the second. Federal Rule 611(b) rejects this approach by tying cross-examination to the subject matter of the direct and to credibility.⁶

Apply the rule to the neighbor. The direct covered liability: the defendant's cell-phone use and the collision. The defense question about the marriage reaches a different subject, plausibly damages.⁷ Under the wide-open rule, relevance to an issue ends the analysis, so the court lets the neighbor describe the violent arguments and the police calls during cross-examination, while the jury is still listening. A restrictive court would reach the opposite result, as the next subsection shows.

Two reasons support the wide-open rule, and they answer different problems.

The first is timing. It is sometimes said that the only essential formal difference between the rules is when the witness testifies to the new facts: immediately, on cross-examination, or later, when the cross-examiner calls the witness in her own case. The practical difference is larger. Getting concessions from the opponent's witness hot on the heels of the direct, while the story is fresh, is worth trying for. Calling an unfriendly witness later, when the first testimony is stale, is a chancier and less attractive option, and a cautious lawyer may drop the inquiry.⁸

The second is administrative. A scope-of-direct limit requires the judge to decide how broadly to describe what the direct covered, and that decision is elastic. Does a direct examination of a driver about the color of the light confine the cross to the light, or does it open the whole subject of the driver's care, which would license questions about speed and tire inspection?⁹ Critics say the limit breeds quibbling objections over how to characterize the subject matter, and that it keeps the cross-examiner from exploring relevant matters the witness knows while the witness is on the stand.¹⁰ A rule that asks only whether a question is relevant removes the characterization dispute, because no one has to decide what the direct was about.

The cost of that freedom falls on the party who called the witness. Each party is responsible for making its own case and should have latitude in arranging its own presentation. Wide-open cross lets the opponent break into that presentation with points of the opponent's own choosing.¹¹

Wide-open does not mean unlimited. The rule removes the scope-of-direct limit and leaves in place the requirement that a question bear on a material issue, together with the other rules of evidence.¹² The marriage question passes because it bears on an issue in the case.

Both questions reach beyond the direct. The marriage question survives because it bears on an issue in the case, and the sister's quarrel fails because it is tied to no issue at all.

The Restrictive Rule

Federal Rule 611(b), which the last subsection set against the wide-open approach, states the restrictive rule in its first sentence: cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility.¹⁴ The rule gives the cross-examiner two territories, the topics the direct opened and the witness's credibility, and a question that reaches neither is out of bounds. Most American states take this approach, and the Federal Rules adopt it, though the jurisdictions differ markedly in how rigorously they enforce it.¹⁵ This subsection works with the first territory, because that is where the restrictive and wide-open rules part ways. Credibility and the judge's power to enlarge the scope belong to the federal approach, taken up below.

Apply the rule to the neighbor. The plaintiff's direct covered liability: the defendant's cell-phone use and the collision. The defense question about the marriage reaches a different subject, so a court applying the restrictive rule strictly sustains the objection.¹⁶ The relevance that carried the question under the wide-open rule does not rescue it here, because a question can be relevant to the case and still be out of order on cross. The defense has not lost the neighbor's knowledge. It may call the neighbor during its own case-in-chief, the stage at which each side puts on its own witnesses.¹⁷

The reason for the limit lies in the order of proof, the sequence in which each side puts its evidence before the jury. The adversary system makes each party responsible for making its own case, and each should have latitude in arranging its own presentation.¹⁸ A party who calls a witness uses that witness to supply facts on topics the party chose to develop, and the scope rule keeps the opponent from using cross-examination to introduce topics the direct did not touch.¹⁹ Without the limit, the opponent could break into the calling party's presentation at its first step and put her own version before the jury through a witness the calling party had put on the stand. Cross-examination beyond the direct would be an unwarranted disruption, and the rule's answer is that the cross-examiner calls the witness in her own case.²⁰ Admittedly, the restrictive rules promote the orderly presentation of proof only to a degree, and in some cases applying them does not serve that policy.²¹

A second feature keeps the limit from operating as a gag. The cross-examiner loses the chance to ask now and keeps the chance to ask later: the restrictive rule postpones her questions until her own stage of the trial, when she can call the witness to prove the same facts.²² The cost to her is timing and control, and the information stays available. For the calling party, the delay is a tactical tool, since a lawyer who confines a witness to helpful topics can hold harmful topics back until the other side's turn.

The delay costs the party who wants the passenger's testimony about the drinking. A cross-examiner usually does best when she gets concessions right after the direct, while the witness's story is fresh. Calling an unfriendly witness later, when the first testimony has gone stale, is much chancier, and a cautious lawyer may abandon the inquiry.²³ The delay can also protect the calling party. If the defense could bring in new matter during the plaintiff's case-in-chief, that matter could arguably dictate a defense verdict, so invoking the restrictive rule can save the plaintiff from a directed verdict at the close of her case-in-chief.²⁴ In one setting the delay becomes a complete bar. When the witness has a privilege not to be called by the cross-examiner, as the accused and the accused's spouse do when the state would call them, the new facts may never come in. The chapter takes up that setting in the section on cross-examining the accused.²⁵

In practice the restrictive rule is looser than its statement suggests. A judge can read the direct generously, treating a direct about the color of the light as the opening of the driver's care generally.²⁶ Judges also hesitate to cut off a line of cross when they cannot tell where it is heading, because the cross-examiner should not have to blunt its force by revealing in advance where it is going, even if she knows.²⁷

States need not follow the federal rule. Federal Rule 611 does not bind them, and they are generally free to fashion their own rules of evidence.²⁸ Some state rules keep the scope-of-direct limit but widen cross for particular witnesses. Vermont's Rule 611(b) extends cross-examination of a party to any matter of consequence to the determination of the action.²⁹ Another rule lets an accused who testifies on a non-preliminary matter be cross-examined on any matter relevant to any issue in the action.³⁰ The federal rule itself combines the two ideas: it keeps the scope-of-direct limit and softens it with the judge's discretion to allow inquiry into additional matters.³¹ The discussion of the federal approach returns to that combination, and the section on cross-examining the accused picks up the accused's position.

A common exam error is to stop at relevance. Under the restrictive rule, relevance is necessary but not sufficient. The question is whether the cross reaches a topic the direct opened or goes to the witness's credibility. A question about a defense, damages, or any other new substantive point fails that test, and the cross-examiner's answer is to call the witness in her own case.

The Half-Open Door

Federal Rule 611(b) limits cross-examination to the subject matter of the direct and matters affecting credibility, and its text contains no special exclusion for the cross-examiner's own affirmative case.³³ A third approach, between the wide-open and restrictive rules, drew its line in exactly that place. Under the half-open door, the cross-examiner may question a witness about any matter relevant to any issue in the action, except facts that relate only to her own affirmative case, such as a defendant's affirmative defenses or cross-claims, or a plaintiff's new matter in reply.³⁴ The view is now mostly obsolete, but in some states it served as a temporary half-way house on the road to the wide-open rule.³⁵ An exam stem that describes a state's practice in these terms points at a real, if fading, category.

The middle course keeps some advantages of each neighbor. Because it widens what the cross-examiner may ask, it produces fewer scope disputes than the restrictive rule.³⁶ Because it still excludes her affirmative matter, it preserves some of the calling party's control over the order of proof, since facts that help only the cross-examiner's own case wait for her own case.

The two questions in that scene are easy to sort, but many questions are not, and sorting is the chief drawback of the middle course.³⁷ A fact such as Okafor running the signal can undercut the claim that Lindqvist was negligent and also support the comparative-fault defense, so it does not relate only to the cross-examiner's affirmative case. Modern liberal pleading rules make the sorting harder still.³⁸ The half-open door thus swaps a dispute over what the direct covered for a dispute over whose case a fact belongs to. The federal test never asks that question. Rule 611(b) asks whether a question falls within the subject matter of the direct or goes to credibility, and whether a fact helps only the cross-examiner's side plays no part in that inquiry.³⁹