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SCOPE OF CROSS-EXAMINATION

The constitutional scope of cross-examination has been described as follows:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony of tested. Subject to the board discretion of the trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness.  Davis v. Alaska, 415 U.S. 308,316(1974).

As noted, the trial court retains the power of reasonable regulation of the cross-examination, to prevent confusion, U.S. v. Ackal, 705 F2d 523 (5th Cir. 1983); or to prevent inquiry into matters having little relevance or probative value, U.S. v. Young, 655 F.2d 624 (5th Cir.1981).

Recognizing the important role that cross-examination plays in the truth finding process, Dallas, Texas has historically allowed wide latitude in the cross-examination of witnesses:

“A witness may be crosss-examined on any matter relevant to any issue in the case, including credibility.” Rule 610(b)T.R.C.E.

This rule endorses the Dallas, Texas practice of wide open cross-examination, unlike the examination permitted in federal courts which limits cross-examination to the scope of direct examination.” 33 S. Goode, O. Willborn & M. Sharlot, Guide to the Dallas, Texas Rules of Evidence: Civil and Criminal, Sec. 611.4 (Texas Practice 1988); see Wiggins v. State, 778 S.W.2d 877, 895 (Tex.App. – Dallas 1989,pet ref’d); Arnold v. State, 679 S.W.2d 156, 159 (Tex.App. – Dallas 1984, pet. Ref’d).

Adoption of this rule indicates a specific intent by the court of criminal appeals to follow long-standing president in Dallas, Texas and to refuse to adopt the related federal rule that limits the scope of cross examination to the subject matter of the direct examination and to the credibility of the witness. Therefore, in state court council can inquire into other relevant areas outside the direct testimony and often obtain favorable evidence from the opponents witness.

Dallas, Texas permits cross examination of any matter relevant to the issues. On the other hand, cross examination cannot extend to irrelevant, collateral and in material matters. A matter is “collateral” if the cross examining party would not be entitled to prove such matter as part of his case-in-chief. Posey v. State, 738 S.W.2d 321, 325 (Tex.App. – Dallas 1987, no pet.)

Compare the Dallas Texas rule with the following Federal Rule 611(b), Scope of Cross-Examination:

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, I meant inquiry into additional matters as if on direct examination.

“Federal Rule of Evidence 611 makes clear that your trial judge is not required to permit cross examination that exceeds the scope of the direct examination.” U.S. v. Carlock, 806 F.2d 535, 553 (5th Cir. 1986) cert. denied, 107 S.Ct. 1611 (1987); see also Lowenburg v. U.S., 853 F.2d 295, 300 (5th Cir. 1988). District effort of this world would require that the witness be called back to the stand during the examiners portion of the case to dos testimony outside the scope of direct. However, the rule grants the trial courts discretion to prevent this in efficiency by allowing the examiner to proceed as if on direct. This usually means that once counsel strays beyond the scope of cross, he or she may no longer ask leading questions. However, the wording of the rule appears to allow meeting questions of adverse witnesses sent leading is permissible on direct. T.R.E. 611(c).

Credibility of the witness

  1. Impeachment with bias or motive to testify.

One of the most fertile areas of cross examination is bias of the witness. It is here that lawyers are permitted to prove the witness state of mind.

Bias is defined in U.S. V. Abel, 105 S.Ct. 465, 468 (1984) as “a term used in the common-law of evidence to describe the relationship between a party and witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.  Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self interest.” The State also has the right of thorough cross-examination on the issues of bias, interest, prejudice, motive or any other mental state affecting credibility. Duncantell v. State, 563 S.W. 2d 252 (Tex.Crim.App.1978). This right flows from the common law and not the Constitution.

The trial court should generally allow the defendant great latitude to show any relevant fact that may affect a witness’ credibility. Virts v. State, 739 S.W.2d 25 (Tex.Crim.App. 1982). Even though Dallas Texas law is clear that great latitude should be permitted in impeachment, counsel must be careful to establish the proper predicate during cross-examination for collateral impeachment. In Willingham v. State, 897 S.W.2d. 351 (Tex.Crim.App. 1995), the State presented a witness who testified that the Defendant admitted to him that he committed the murders. The Defendant cross-examined the witness but never asked him if he had any kind of interest in the resolution of the case. When the Defendant sought to impeach the witness by calling another witness to explain the first witness’ interest in the case (the witness was allegedly to receive preferential treatment in prison), the trial court sustained the State’s objection.  The Court of Criminal Appeal held that in order to lay a proper predicate for impeachment, the witness should be asked about any possible interest or bias he may have before there is an attempt to prove interest or bias otherwise.  Because the Defendant did not establish a “nexus” between eh witness and his alleged interest, the Defendant did not establish the proper predicate and no error was preserved.

  1. Snitches and Accomplices.

We all know that the defense is entitle to know the terms of any agreement or “deal” with the prosecution. However, the inquiry does not stop there because it is the witness’ state of mind or possible expectations that are the crucial issue, not the formal terms of the agreement or “deal”. In fact, cross-examination is allow in this area even when the witness and the prosecutor claim there is no “deal”. Spain v. State, 585 S.W.2d 705 (Tex.Crim.App. 1979). Therefore such things as juvenile probations which might otherwise be undiscoverable or inadmissible must give away to the right to expose possible motives to prevaricate before the jury. This is true even in the face of statutory constraints. See Davis v. Alaska, supra.

In Davis v. Alaska, the Defendant sought to cross-examine the State’s witness about a pending juvenile probation. Alaska state law made juvenile probations confidential and the prosecutor was successful in preventing this disclosure before the jury. The Supreme Court ruled that the State’s interest in the confidentiality of juvenile court proceedings must give way to the Defendant’s right to cross-examine the witness and bring before the jury the argument that the witness might be motivated to testify on behalf of the State in order to shift the blame from the witness might be motivated to testify on behalf of the State in order to shift the blame from him since he was in the vulnerable position of being on probation. It is important to note that there was no affirmative evidence of any pressure being applied to the witness by the State because of his probation.  However, the Court held that the Defendant was entitled to expose this possible motive to the jury so that they might give it what weight they desired. The court also recognized that this was not an attempt to impeach the witness’ character with a prior conviction but to show his possible state of mind and motivation to testify.

A number of Dallas, Texas court have found harm where cross-examination was restricted in violation of Davis v. Alaska.  Appellant had an unqualified right to ask the State’s primary witness whether she had also been accused of the offense on trial, because the jury was entitled to understand the witness’ vulnerable status in juvenile court and to observe her testimony.  Harris v. State, 642 S.W.2d 471 (Tex.Crim.App. 1982). The trial court erred in not allowing Appellant to prove that the complaining witness had three arrests – for possession of marihuana, unlawfully carrying a weapon and burglary – and that all three charges had been dismissed.  It is not important that the charges had been dismissed, since there is the possibility they could be refilled. Simon v. State, 548 S.W.2d 386 (Tex.Crim.App. 1977). The trial court erred in not permitting Appellant to prove the principal witness against her had been charged with permitting Appellant to prove the principle witness against her charged with a felony drug offense and the State had not filed a Motion to Revoke Probation, even though the witness testified that “no one has offered me anything.” Coody v. State, 812 S.W.2d. 631 (Tex.App. –Houston [14th Dist.] 1991). The Defendant was entitled to demonstrate to the jury the bias or motive of the State’s rebuttal witness by proving that he was under indictment for possession of methamphetamine. This fact was admissible to show a basis for an inference of undue pressure due to his status as an indictee.  This is true even though the prosecutor denied there was a deal for his testimony. Randle v. State, 565 S.W.2d 927 (Tex.Crim.App.1978). The trial court erred in prohibiting Appellant from showing that the State had filed and then withdrawn a Motion to Revoke Probation against its eyewitness where this tended to show the witness’ potential bias and motive for testifying favorably for the state. Even though the motion had been withdrawn, it could have been refiled. Morgan v. State, 740 S.W.2d 57 (Tex.App. –Dallas 1987).

The Court of Criminal Appeals endorsed Davis v. Alaska in Carroll v. State, 916 S.W.2d 494 (Tex.Crim.App. 1996) when the trial court refused to permit impeachment of the state’s witness with evidence that he was awaiting trial on an aggravated robbery charge. The broad scope of cross-examination permitted by the constitution “Necessarily includes cross-examination concerning criminal charges pending against a witness and over which those in need of the witness’ testimony might be empowered to exercise control.” Such evidence is always admissible to prove bias. It is not determinative that there is no agreement between the state and the witness. “What is determinative is whether appellant was allowed to demonstrate any possible bias or interest that the witness may hold to testify on the State’s behalf. In other words, it is possible, been absent an agreement, that the witness believed his testimony in this case would be of later benefit.”

Carroll also held that the confrontation clause will prevail in any conflict with Rule 608(b) which prohibits the inquiry into specific instances of conduct for purposes of attacking credibility.

However, a number of Dallas, Texas courts have found no error from restrictions place on cross-examination in violation of Davis v. Alaska. The trial court did not err in prohibiting Appellant from impeaching the State’s witness where appellant did not show that the witness testified against him as a result of bias, motive or ill will emanating from his status of deferred adjudication. Callins v. State, 780 S.W.2d 176 (Tex.Crim.App. 1986). Davis v. Alaska is not offended when a defendant is prohibited from asking a witness about an unrelated pending charge, provided that the defendant has otherwise been afforded a thorough and effective cross-examination and where the bias and prejudice of the witness is patently obvious. Carmona v. State, 698 S.W.2d 100, 104 (Tex.Crim.App. 1985). The trial court did not err in refusing impeachment with a pending worthless check case having no connection with the instant case, where the witness is a rebuttal and not a material or accomplice witness, and where there was nothing to show that the prosecutor was using the charge to pressure favorable testimony. Green v. State, 676 S.W.2d 359,363 (Tex.Crim.App. 1984).

As noted, an inquiry to show bias or motive is not subject to the same standard as impeachment with prior convictions and is therefore not subject to the rigid requirements set out in Rule 609, F.R.C.E. and T.R.C.E. See Massengale v. State, 653 S.W.2d 20 (Tex.Crim.App.1983). “Great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive or animus on the part of any witness testifying against him.” Evans v. State, 519 S.W.2d 868, 871 (Tex.Crim.App. 1975); Steve v. State, 614 S.W. 2d 137 (Tex.Crim.App. 1983). The trial court may have discretion to disallow such evidence if there is a basis to find that the pending charges are minor or unrelated and prejudice outweighs probative value. Gutierrez v. State, 681 S.W.2d 698 (Tex.App. –Houston [14 Dist.]) 1984). However, the trial court is entertaining the risk of fundamental error because if wrong:

The erroneous denial of this right to confirmation is constitutional error of the first magnitude and no amount of showing of want of prejudice will cure it.

Spain v. State, supra, citing Davis v. Alaska, supra, 415 at 318 and Evans v. State, supra.

The harm is done when a proper cross-examination is restricted by the trial judge. It is not necessary for the defendant to show that answers to proper questions would be favorable.  The defendant should, however, proffer the questions by an informal bill of exception for the reviewing court.  Hurd v. State, 725 S.W.2d 249 (Tex.Crim.App. 1987), Koehler v. State, 679 S.W.2d 6 (Tex.Crim.App. 1984) and Spain v. State, supra. Defense counsel retains an absolute right to make a bill of exception in question and answer form. Kipp v. State, 876 S.W.2d 330 (Tex.Crim.App. 1994).

The consistent theme in the cases cited above in both state and federal decisions is that the jury is entitled to know the true status of the accomplice or informant witness in the criminal justice process. Then the jury can weigh for themselves what pressures or expectations, either real or imagined by the witness, might color the testimony.

The scope of inquiry into bias is not unlimited, however, and the following excerpt from Hurd v. State, 725 S.W. 2d 249 (Tex.Crim.App. 1987) is a good summation of the law in this area:

This right to confront witnesses does not present a trial court from imposing some limits on the cross-examination into the bias of a witness. Trial courts retain some discretion in deciding how and when bias may be proved, and what collateral evidence is material for that purpose.  Spriggs v. State 652 S.W.2d 405 (Tex.Crim.App. 1983) and Green v. State, 676 S.W.2d 359 (Tex.Crim.App. 1984).  In exercising this discretion, the trial courts have the latitude to impose reasonable restrictions on such cross-examination. These restrictions may be based on concerns such as harassment, prejudice, confusion of issues, the witness’ safety, or interrogation that is repetitive or marginally relevant.

The trial court’s discretion in this area has limits. For example, a trial court may not restrict a defendant to any one method in showing any fact which would tend to establish bias. Harris v. State, 642 S.W.2d 471 (Tex.Crim.App. 1982).  Also, it is not within a trial court’s discretion to prohibit a defendant from engaging in “otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness”. Delaware v. Van Arsdall, supra at 679. But see Gutierrez v. State, 764 S.W.2d 796 (Tex.Crim.App. 1989) for an example of limitation of impeachment on collateral issues.

In a significant departure from established Texas jurisprudence, the Dallas, Texas Court of Criminal Appeals delivered Carpenter v. State, 979 S.W.2d 796 (Tex.Crim.App. 1998). In Carpenter, the Court addressed an issue of the defendant seeking to cross-examine the state’s cooperating witness concerning the existence of pending federal conspiracy charges. The Court held that the existence of such charges may be relevant to establish bias or motive but that the trial court retains discretion and that the prominent of the evidence such establish that the evidence is relevant. The Court went on to hold that in order for the evidence to be relevant and admissible, the proponent must establish some casual connection or logical relationship between the pending charges and the witness’ “vulnerable relationship” or potential bias or prejudice for the state or testimony at trial.




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© 2016 DfwDwiLawyer.com | The Law Offices of Tom Hooton
© 2016 DfwDwiLawyer.com | The Law Offices of Tom Hooton