Cross-Examining the Accused

Cross-Examining the Accused

Rule 611(b) treats a testifying defendant like any other witness. Cross-examination should not go beyond the subject matter of the direct and matters affecting credibility, and the court may allow inquiry into additional matters as if on direct.¹ The trial judge also keeps wide latitude to permit cross on issues collateral to the direct.² Everything in the preceding subsections therefore carries over to the accused: the generous reading of what the direct opened, the credibility clause, and the discretion to expand.

What the rule cannot do is answer the constitutional question a testifying defendant raises. The Fifth Amendment privilege protects the accused from being compelled to supply evidence of guilt, and Rule 611(b) is an evidence rule. The Advisory Committee said plainly that it "does not purport to determine the extent to which an accused who elects to testify thereby waives his privilege against self-incrimination."³ Two questions therefore control the scope of an accused's cross-examination, one of evidence law and one of constitutional waiver. The answers need not coincide.

Why a waiver exists. An accused may decline to testify. One who does testify gains the chance to give the jury his own account and to vouch for himself, and he cannot also claim immunity from questions about the issues his testimony raised. Brown v. United States recognized that principle.⁴ Without a waiver, a defendant could give the jury the helpful half of a story and refuse every question that tested the other half. The court in Beechum called it an inveterate principle that a defendant who takes the stand waives the privilege at least to the extent of cross-examination relevant to issues raised by his testimony.⁵

How far the waiver reaches. The statements of the waiver differ, and the question is unsettled.⁶ They fall along a line from narrow to broad:

• Narrowest. Some judicial language suggests that the Fifth Amendment limits the waiver to questions about matters mentioned on direct.⁷
• Middle. The waiver reaches at least cross-examination relevant to the issues the defendant's own testimony raised.⁸
• Broadest. Wigmore argues that the defendant waives the privilege on all relevant issues except mere credibility.⁹

The Beechum court chose none of these positions. The cross before it fell well within the accepted waiver, so the court did not decide whether cross that is purely collateral to the direct lies outside it.¹⁰

The line in practice. Beechum shows the middle of the line. The defendant took the stand to profess his innocence. Defense counsel had already asked for a ruling that the prosecutor could not question him about certain credit cards, because he would assert the privilege as to any such questions. The court denied the motion. When the prosecutor asked about the cards, the defendant invoked the Fifth Amendment, the prosecutor kept asking, and he kept invoking.¹¹ The court held the cross "clearly within the well-established scope of waiver" because the cards were relevant to the subject matter of his direct, and it rejected the claim of undue prejudice before the jury.¹²

Alibi testimony falls on the other side of the line under the narrower views. It opens the defendant's whereabouts, and the cross may follow him there but no farther.¹³ What separates the two cases is the issue the testimony put in play. Under the narrower views, the waiver tracks the same line the scope-of-direct inquiry draws, because both ask what the defendant's own testimony opened.

Narrowing the direct. Because the direct sets the boundary, defense counsel can set it deliberately. The accused may confine the direct to a single aspect of the case, such as age, sanity, or alibi, and then invoke the restrictive rule to hold the cross to that topic.¹⁴ Counsel may even announce at the outset that she will question the accused only on a specified topic, a step taken to be better placed to urge scope objections later.¹⁵ The tactic works because the defendant, who alone decides whether to testify, also decides how much to open. Each topic left unopened is a topic the prosecutor cannot reach on cross.

Here the restrictive rule does more than postpone. In an ordinary case the blocked cross-examiner may recall the witness during her own stage of the trial, so the cost is timing and control. When the restrictive practice is applied to a criminal accused, as it is in most jurisdictions that follow it, the accused can permanently preclude the prosecution from questioning him about facts outside the direct.¹⁶ The prosecution has no recall remedy, because the accused holds a privilege not to be called as a witness by the state.¹⁷ There is also authority that a prosecutor barred from a topic on cross cannot recall the accused in rebuttal to ask about it.¹⁸ A rule that elsewhere defers evidence thus removes it permanently in this setting. The arrangement has been criticized, but courts have not exempted prosecution cross-examination of the accused from the restriction.¹⁹

A broader direct reverses the analysis. Suppose defense counsel had asked whether the defendant took part in the robbery, and he had answered with a general denial. That testimony would have put identity and participation in issue, and a court would have more room to treat a question about unexplained cash as related to the denial, much as the cards related to the direct in Beechum. The breadth of the direct sets the breadth of the waiver, so the same defendant on the same facts is more exposed after one set of questions than after the other.

Contrasting state rules. Because the restrictive rule can remove evidence permanently, some states treat parties and accused persons differently. Vermont keeps the scope-of-direct limit but provides that "when the witness is a party, the scope of cross-examination includes any matter of consequence to the determination of the action."²⁰ Maryland allows an accused who testifies on a non-preliminary matter to be cross-examined on any matter relevant to any issue in the action, and it withholds the judge's discretion to expand from an accused who testifies only on a preliminary matter.²¹ In a wide-open jurisdiction the defendant cannot narrow the direct to shield other topics, because the cross reaches the whole case.²² Whether the Constitution tolerates that breadth is unsettled. If the waiver reaches only matters mentioned on direct, federal limits could make wide-open cross of an accused unconstitutional and might reach even liberal variations of the restrictive rule.²³ The opposing position holds that the accused waives the privilege on every relevant issue except mere credibility.²⁴ These state rules are contrasts to recognize, and the federal analysis stays with the restrictive rule and the Fifth Amendment waiver.

Two exam traps. The first is to assume that Rule 611(b) settles how far a testifying defendant waives the privilege, when the rule leaves that question to constitutional doctrine. The second is to assume that a prosecutor blocked on a topic can call the accused later, when the privilege makes that remedy unavailable. A complete answer applies the jurisdiction's scope rule, then asks whether the question reaches matters the defendant's own testimony put in issue.