Cross-Examination

4. Cross-Examination

1. Necessity for Cross - Examination

Cross - examination of adverse witness is a matter of right in every trial of a disputed issue of fact. It is recognized as the most efficacious truth - discovering device. The principal basis for excluding hearsay is that the declarant whose testimony is offered cannot be subjected to the test of cross - examination. If adequate cross - examination is prevented by the death, illness, or refusal of a witness to testify on cross - examination, the direct examination is rendered incom­petent and will be stricken.
 

2. Scope of Cross - Examination

Although a party is entitled as of right to some cross - examination,the extent or scope of cross - examination, like the order of calling witness, is frequently a matter of judicial discre­tion. Cross - examination is hedged about by far fewer rules than is direct examination. On cross - examination, leading questions are permissible, as are, obviously, efforts at impeachment. The most significant restriction is that the scope of cross - examination cannot range beyond the sub­ject matter of the direct examination. This restriction does not apply to inquire directed toward impeachment of the witness.

5. Credibility—Impeachment

Impeachment means the casting of an adverse reflection on the veracity of the witness. The primary method of impeachment is by cross - examination of the witness under attack, although witnesses are often impeached by extrinsic proof that casts doubt on credibility. In terms of rele­vance , any matter that tends to prove or disprove the credibility of the witness should be admit­ted here.

Impeachment on Collateral Matter

Where a witness makes a statement not directly relevant to the issues in the case,the rule against impeachment ( other than by cross - examination) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by a prior inconsistent statement. The purpose of the rule is to avoid the possibility of unfair sur­prise, confusion of issues,and undue consumption of time resulting from the attempt to prove and disprove facts that are not directly relevant.

6. Objections, Exceptions, Offers of Proof

1. Objections

Unless an objection is made by opposing counsel, almost any kind of evidence will be ad­mitted. Failure to object is deemed a waiver of any ground for objection. The trial judge need not raise grounds for objection on his own,but may take notice of plain errors affecting substan­tial rights(e. g. ,admission of coerced confession not objection to by defense).

1. Objections to Trial Testimony

Objections should be made after the question,but before the answer,if it is apparent that the question calls for inadmissible matter(e. g. , hearsay) or that the question is in improper 222 H-³ A Comprehensive Course in Legal English  form(e. g. ,leading). Otherwise,a motion to strike must be made as soon as the witness’s an­swer emerges as inadmissible.

2. Objections to Deposition Testimony

Objections to the form of question(e. g. ,leading) are waived unless made during the depo­sition, thereby affording counsel an opportunity to correct the form of his question. An objection based on a testimonial privilege should also be made then,lest it be deemed waived. However, objection going to the substance of a question or answer(e. g. ,relevance,hearsay) can be post­poned until the deposition is offered in evidence.

3. Specificity of Objections

An objection may be either general(" I object" ) or specific (" Object,hearsay" ).

4. "Opening the Door"

One who introduces evidence on a particular subject thereby asserts its relevance and can­not complain, expect on grounds other than relevance, if his adversary thereafter offers evidence on the same subject. And counsel need not" stand" on his overruled relevance objection;he can offer counterevidence without thereby abandoning his relevance objection.

2. Exceptions

The common law rule requiring a party to" except" from an adverse trial court ruling in or­der to preserve the issue for appeal has been abolished in most jurisdictions. In some states, however, a writing motion for new trial, specifying the grounds, may be required.

3. Offers of Proof

On some occasions, error cannot be based on exclusion of evidence unless there has been an" offer of proof" that disclose? the nature,purpose,and admissibility of the rejected evidence.

I. Testimonial Privileges

Testimonial privileges,which permit one to refuse to disclose and prohibit others from dis­closing certain sorts of confidential information in judicial proceedings, have two basic reasons for their existence;(i)practicality,and(ii)society’s desire to encourage certain relationships by ensuring their confidentiality, even at the high price of losing valuable information.

Some of the testimonial privileges are frankly grounded on hardheaded practicality. The particular kind of disclosure could not be obtained,as a practical matter,even if there were no privilege. No priest, even when confronted by a contempt of court citation, would breach the priest - penitent confidential nature even at the expense of the loss of information relevant to the issues of a law suit. These relationships will be encouraged if confidentiality, when desired, is assured. To put it more concretely, persons might forgo needed medical attention or be less than candid with legal counsel were there no guarantee that communications made during the physi­cian - patient and attorney - client relationships would be accorded confidential status in legal proceedings.

1. Attorney - Client Privilege

The first testimonial privilege ever established was the attorney - client privilege. It is a common law privilege, although in some jurisdictions it has now been codified by statute. It car­ries with its fewer exceptions than any other privilege.

Essentially, communications between an attorney and client, made during professional con­sultation, are privileged from disclosure. In other words,a client has a privilege to refuse to dis­close, and to prevent others from disclosing confidential communications between herself (or her representative) and her attorney (or her attorney’s representative). Objects and preexisting doc­uments are not protected.

1. Attorney - Client Relationship

The Attorney - client privilege required that the attorney - client relationship exist at the time of the communications. The client, or his representative, must be seeking the professional services of the attorney at the crucial time. Retainer negotiations, involving disclosures made be­fore the attorney at the crucial time. Retainer negotiations, involving disclosures made before the attorney has decided to accept or decline the case, are covered if the other requirements of the privilege are present.

2. Confidential Communication

A communication is" confidential" if it was not intended to be disclosed to third persons, other than those to whom disclosure would be in furtherance of the rendition of legal services to the client or those who are necessary for the transmission of the communication. Communica­tions made in the known presence and hearing of a stranger are not privileged.

3. Duration of Privilege

The attorney - client privilege applies indefinitely. Termination of the attorney - client re­lationship does not terminate the privilege. The privilege even continues to apply after the client’s death. Rationale; Knowing that communications will remain confidential ever after death encourages the clients to communicate fully and frankly with her attorney.

2. Physician - Patient Privilege

The physician - patient privilege is a statutory privilege, which has not been adopted in all jurisdictions. However,in a substantial number of jurisdictions, a physician (and, in some juris­dictions^ dentist or nurse) is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessa­ry to enable the physician to act in his professional capacity.

1. Elements of Physician - Patient Privilege

1. Professional member of relationship must be present;
2. Information must be acquired while attending patient;
3. Information must be necessary for treatment.

2. Nonapplicability of the Privilege