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46. Which one of the following areas of questioning is most likely to be held beyond the proper scope of cross-examination?
At trial in an action for personal injuries suffered in a traffic accident, the plaintiff first calls the defendant as an adverse party. The plaintiff then calls a witness who was a passenger in the plaintiff's car but who also happens to be the defendant's former employer. On direct examination, the witness testifies to how the accident occurred and also expresses his opinion that the defendant is not a truthful person.
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Questions that are relevant to the witness's credibility are always regarded as within the proper scope of cross-examination. FRE 611(b) states: «Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.»
For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Under the FRE, an inconsistent statement may be proved on either cross-examination or by extrinsic evidence. To prove a statement by extrinsic evidence, certain requirements must first be met: (i) a proper foundation must be laid; and (ii) the statement must be relevant to some issue in the case (i.e., cannot be a collateral matter).
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid.
C is correct. This is most likely to be held to be beyond the proper scope of cross-examination because it does not fall within the two primary areas that are proper for cross-examination: (i) subject matters covered on direct examination; and (ii) the credibility of the witness. The witness testified about how the accident happened and the defendant's character, not the seriousness of the plaintiff's injuries. Therefore, cross-examination about the plaintiff's injuries would be outside the proper scope.
A is incorrect. The witness testified on direct that his opinion of the defendant was that he was not a truthful person. The defense may impeach the witness with prior inconsistent statements made about the defendant. This was an area addressed on direct examination, and therefore is within the proper scope of cross-examination.
B is incorrect. A witness's bias, interest, partiality, or corruption is always relevant for impeachment. Bias may exist where there is a special relationship between the parties, either favorable or hostile. In this case, if the defendant has a pending action against the witness, the witness may have a bias against the defendant. Therefore, this information would be in the scope of cross-examination as impeachment by bias.
D is incorrect. Under FRE 608, any witness who testifies places his character for truthfulness at issue. Typically, such evidence is only admissible as reputation or opinion testimony, however, the court may allow extrinsic evidence of specific instances of conduct on cross-examination if they are probative of the witness's untruthfulness. Falsifying tax documents would speak to the witness's character for untruthfulness and may be allowed within the scope of cross-examination as impeachment for his untruthful character.