Cross-Examination and Evidentiary Challenges in Court Proceedings
10.18.2024
In courtroom proceedings, the mastery of legal procedures related to cross-examination and evidence admissibility is crucial, as they can pivotally influence the proceeding’s outcome. Attorneys face the complex challenge of adapting to the specific rules of the jurisdiction in which they are litigating. The scope of cross-examination, for instance, varies by jurisdiction, dictating how an attorney should prepare a direct examination. Additionally, the introduction of sworn statements during evidentiary hearings without the witness present invokes the issue of hearsay, which can be a contentious point. These procedural nuances underscore the necessity for strategic planning, timely objections and comprehensive knowledge of the jurisdiction’s rules to craft an effective strategy and ensure robust advocacy.
Case Spotlight: Darwish v. TD Bank
The case of Darwish Auto Group, LLC v. TD Bank, N.A. is a pivotal example that demonstrates the intersection of the scope of cross-examination and hearsay exclusions at an evidentiary hearing in the Commercial Division of the Supreme Court of the State of New York, Albany County. In this recent litigation, the court was faced with an issue testing the scope of cross-examination. Defendant’s counsel did not call any of his own witnesses at the evidentiary hearing yet attempted to question the plaintiffs’ witness about matters that were outside the scope of direct examination. Plaintiffs’ counsel properly objected to this mode of questioning, which was sustained by the court. If plaintiffs’ counsel had not objected, defendant’s counsel could have introduced testimony during cross-examination that was not covered in the direct examination. This would have allowed defendant’s counsel to present a case-in-chief without calling any witnesses.
At the same evidentiary hearing, plaintiffs’ counsel made another timely objection to avoid the admissibility of otherwise inadmissible hearsay evidence. Prior to the evidentiary hearing, the defendant witness submitted an affirmation without prior court authorization, without being present to testify and without any reason for the absence.[1] Plaintiffs’ counsel capitalized on this by making a timely oral objection and a motion to strike the inadmissible hearsay from the record.[2] The court granted plaintiffs’ oral objection and motion to strike inadmissible hearsay from the record during an evidentiary hearing.[3] Had the inadmissible affirmation not been objected to, the court may have considered the evidence, and plaintiffs’ counsel would not have had the opportunity to cross-examine the defendant’s witness.
Without a thorough understanding of common issues that arise in legal proceedings, such as the scope of cross-examination and the admissibility of evidence, the court may have allowed testimony and questioning into the hearing that otherwise would have been objectionable. However, the nuances of the scope of cross-examination and the admissibility of hearsay evidence are not black and white and are worth further discussion.
Cross-Examination: Majority vs. Minority Rules
In court proceedings, cross-examination is generally limited to the scope of direct examination. Most jurisdictions adhere to the rule established in New York, which confines the scope of cross-examination to the subject matter of the direct examination. However, it is important to note that a minority of jurisdictions, including Massachusetts, follow a different rule, which does not limit cross-examination to the scope of direct examination.
The majority rule, exemplified by New York and followed by most jurisdictions, sets specific boundaries for cross-examination by confining it to the subject matter of the direct examination.[4] Like other jurisdictions that follow the majority rule, New York law gives the court discretion to restrict cross-examination on topics not covered during the witness’s direct examination.[5] “The rule that the scope of cross-examination must be limited to that of the direct examination exists chiefly to prevent the cross-examiner from cluttering up the direct examiner’s case with unfavorable and extraneous facts when he could make the witness his own.”[6] This majority rule closely mirrors Rule 611(b) of the Federal Rules of Evidence, which provides: “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.”[7]
There is a minor exception to this rule, however. In New York and many other jurisdictions that follow the majority rule, if during cross-examination opposing counsel delves into entirely new areas not covered on direct examination, they may effectively “adopt the witness as their own.”[8] This approach can have significant implications, such as limiting the ability to challenge the witness’s credibility and restricting the use of leading questions.[9]
In jurisdictions that confine cross-examination to the scope of direct examination, it is crucial for attorneys to raise timely and appropriate objections to any questions that stray from the subject matter of the direct examination. If the opposing counsel asks questions during cross-examination that fall outside the scope of the direct examination, the attorney conducting the direct examination should be ready to raise a proper and timely objection. Failing to do so could adversely impact their case, especially if the opposing party does not call their own witnesses and seizes this opportunity to present their case during the other side’s case-in-chief. By objecting, counsel can prevent any testimony that strays from direct examination from entering the record.
To effectively limit the opposing counsel’s line of questioning and prevent inadvertently opening the door to unfavorable testimony during cross-examination, attorneys must plan their direct examination with precision. If the opposing counsel does not intend to call any of their own witnesses, the attorney conducting the direct examination might consider limiting certain topics. This strategy limits the opposing counsel to asking questions only on topics covered in the direct examination, thereby reducing their chances of eliciting favorable testimony.
It is also important to remember that if the cross-examination goes beyond the scope of direct, the attorney performing the cross-examination potentially can turn the witness “into their own.” In such scenarios, attorneys should be ready to object to any inappropriate questioning methods. Once the witness becomes the opposing counsel’s “own” witness, the attorney should object to any leading questions or attempts to challenge the witness’s credibility, as these “benefits” of cross-examination no longer apply. This proactive approach can help maintain control over the proceedings and protect the interests of their client.
Unlike other jurisdictions and the Federal Rules of Evidence, Massachusetts permits cross-examination that extends beyond the scope of direct examination.[10] Massachusetts operates under this approach based on the rationale that it avoids the need for the court to continually decide during a witness’s examination what constitutes a new matter for which the opposing party can ask leading questions.[11] This approach purportedly helps prevent confusion and delays in court proceedings.[12] A minority of states follow this rule.
The minority rule can be interpreted to mean that a witness – even if called by one party for a specific purpose – can be cross-examined by the opposing party on any matter that is relevant to the case.[13] The only limitation on the scope of this cross-examination is that it should not unfairly prejudice a party, either by being too restrictive or too broad in its line of inquiry.[14]
Like New York and other jurisdictions that follow the majority rule, courts in Massachusetts have discretion over the subject matters discussed on cross-examination.[15] However, in jurisdictions that follow the minority rule, judges may be less likely to sustain an objection to questioning that exceeds the scope of direct examination.[16] It is important for attorneys to be aware that not all jurisdictions adhere to the rule of limiting cross-examination to the scope of direct examination.[17] This understanding is crucial for effective legal practice across different jurisdictions.
Under the minority rule, a party in a court in Massachusetts, or any other jurisdiction adhering to the minority rule, can introduce evidence that bolsters their case, even during the cross-examination of a witness brought forward by their opponent. Attorneys practicing in jurisdictions following the minority rule may choose not to restrict their topics during direct examination, as the cross-examiner is not bound by these topics. Furthermore, attorneys practicing in these jurisdictions should be cognizant that objections to questions that go beyond the scope of direct examination may not be as readily upheld as in jurisdictions following the majority rule.
Before determining the scope of a witness’s cross-examination, attorneys must determine what evidence is and is not admissible in court proceedings such as evidentiary hearings. In general, the principle of hearsay exclusion reinforces the legal tenet that evidence must be not only reliable, but its source must be subject to scrutiny through cross-examination.
Navigating Sworn Statements in Evidentiary Hearings
Lawyers frequently seek to introduce evidence in the form of sworn statements during an evidentiary hearing. But not so fast. When seeking to introduce evidence during an evidentiary hearing, lawyers should not assume they can use a sworn statement such as an affidavit, declaration or affirmation without the witness present to testify. Seeking to introduce this type of evidence without the witness present to testify would likely be inadmissible hearsay.
On the other side, a lawyer seeking to exclude such evidence must be prepared to make a timely objection and motion to strike when opposing counsel attempts to admit a sworn statement at an evidentiary hearing without the witness present to testify – or risk waiving the right to make an objection down the road.
Under New York law, an affidavit, affirmation or other sworn statement filed in advance of a court hearing – where the declarant does not then testify at the hearing – is inadmissible hearsay. Hearsay is an out-of-court statement, verbal or written, that is offered for the truth of the matter it asserts.[18]
In New York, hearsay is admissible only if it falls within an exception recognized by New York and is permissible under the Federal or New York constitutions.[19] Courts recognize a narrow exception to hearsay’s general inadmissibility where the declarant is unavailable due to death or other circumstances.[20] However, the burden of establishing that a hearsay exception applies lies with the party seeking to admit the statement.[21]
It is essential that lawyers are ready to make a timely objection and motion to strike when the opposing party seeks to admit sworn statements such as affidavits into evidence where the witness of the statement is not present to testify. If the witness of the statement is not present to testify the opposing lawyer will not have an opportunity for cross-examination. More important, if a lawyer fails to object to inadmissible hearsay when it is introduced, they may waive the right to do so.[22] Otherwise, inadmissible hearsay evidence may be considered by the court where there is no objection or motion to strike by the opposing party.[23]
Navigating Sworn Statements in Practice
The Darwish case discussed above highlighted the importance of: (1) ensuring the source of a sworn statement will be present at the court hearing; and (2) opposing counsel’s diligence in making objections and motions to strike when inadmissible hearsay is presented. However, the importance of a timely objection and motion to strike is not limited to those practicing in New York. The court’s decision in Darwish closely follows the decisions in cases outside of New York.
In Versatile v. Johnson, the United States District Court for the Eastern District of Virginia granted the defendant’s motion to strike one of the plaintiff’s submitted affidavits as inadmissible hearsay.[24] In granting the motion, the court noted that the witness whose affidavit plaintiff sought to admit was not present to testify.[25] Further, the court noted that the plaintiff failed to show the witness was unavailable and, even if the witness were unavailable, that any exceptions applied.[26] Similar to Darwish, had the timely motion to strike not been made, the court may have allowed the plaintiff to present the affidavit as evidence in their case although the defendant would not have had the opportunity to cross-examine the witness.
In Spivey v. United States, the United States Court of Appeals for the Fourth Circuit vacated an award of damages in excess of the plaintiff’s Tort Claims Act claim because its reasoning was based on inadmissible hearsay.[27] The trial court prior heavily relied on a post-trial affidavit by the plaintiffs’ lawyer when assessing the damages in excess of the plaintiffs’ claim.[28] However, the Fourth Circuit vacated this finding of damages partially because the post-trial affidavit relied on was inadmissible hearsay.[29] The Fourth Circuit reasoned that because the declarant did not testify at a trial or hearing and was thus not subject to cross-examination regarding the statements in the affidavit, and no exceptions – such as consistent prior statements – were met, the affidavit was inadmissible hearsay.[30] Had the defendant failed to timely object to the admissibility of the post-trial affidavit, the court may not have vacated the award of damages in excess to the plaintiff.
Takeaways
Mastery of cross-examination and evidence admissibility is crucial in courtroom proceedings, as they significantly impact proceeding outcomes. Attorneys must adapt to the specific rules of their jurisdiction, with variations in cross-examination scope influencing how an attorney may prepare for direct examination. The use of sworn statements in evidentiary hearings raises hearsay issues, highlighting the need for strategic planning, timely objections and thorough understanding of local rules to ensure effective courtroom strategy and strong advocacy for their client.
Michael S. Cryan, a partner of ArentFox Schiff, focuses on complex commercial litigation, domestic and international arbitration and bankruptcy litigation. He was counsel for plaintiffs in Darwish Auto Grp., LLC v. TD Bank, N.A. He thanks summer associates Darien Hubert from Harvard Law School and Elizabeth McLaughlin from Suffolk University Law School for their contributions in the preparation of this article.
This article appears in a forthcoming issue the Commercial and Federal Litigation Section Newsletter. For more information, please visit NYSBA.ORG/COMFED.
Endnotes
[1] Darwish Auto Grp., LLC v. TD Bank, N.A., No. 905851-22, 2024 N.Y. Misc. LEXIS 5911 (Sup. Ct., Albany Co. June 26, 2024).
[2] Id.
[3] Id.
[4] See Goff v. Paul, 8 A.D.3d 971, 972 (4th Dep’t 2004) (concluding court did not abuse its discretion by limiting the cross-examination that exceeded the scope of the direct examination); People v. James, 56 Cal. App. 3d 876, 887 (Cal. Ct. App. 1976) (“[i]t is established law in California that, apart from matters affecting credibility, cross-examination of a witness is limited to the scope of the direct examination”); Hackett v. United States, 92 A.2d 766, 767 (D.C. 1952) (“[t]he general rule is that cross-examination is restricted to particular matters which have already been raised on the examination in chief”).
[5] See Grcic v. City of New York, 139 A.D.2d 621, 626 (2d Dep’t 1988) (noting court has discretion to limit the scope of cross-examination, particularly when it pertains to issues not addressed during the direct examination); accord Lucas v. United States, 240 A.3d 328, 351 (D.C. 2020) (“it is not improper for the trial court to limit the scope of the cross-examination to matters raised on direct-examination”) (quoting Guzman v. United States, 769 A.2d 785, 794 (D.C. 2001)).
[6] People v. Hadden, 95 A.D.2d 725, 725–26 (1st Dep’t 1983).
[7] See Fed. R. Evid. 611(b). See also Lidle v. Cirrus Design Corp., 505 Fed. App’x 72, 76 (2d Cir. 2012) (“[g]enerally, cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility”) (internal quotations and citations omitted).
[8] See Tarulli v. Salanitri, 34 A.D.2d 962, 963, 312 N.Y.S.2d 55, 57 (2d Dep’t 1970) (“[b]y cross-examining the [witness] as to matters not brought out on direct examination . . . counsel made the witness his own”); accord People v. Landers, 31 Cal. App. 5th 288, 322 (Cal. Ct. App. 2019), as modified (Feb. 7, 2019) (concluding party who wished to propound questions on subjects outside the scope of direct must “call the witness as [their] own” subject to “the same rules as a direct examination”).
[9] See Bennet v. Crescent Athletic-Hamilton Club, 270 N.Y. 456, 458 (1936) (“plaintiffs had made the witness their own…[t]hey could not impeach him”); People ex rel. Phelps v. Ct. of Oyer & Terminer of New York Cnty., 83 N.Y. 436, 459 (1881) (denying the right to utilize leading questions “while seeking to elicit new matter[s]” during cross-examination because “[a]s to the new matter the witness becomes his own, and in substance and effect the cross-examination ceases”); accord People v. James, 56 Cal. App. 3d 876, 887 (Cal. Ct. App. 1976) (prohibiting use of leading questions when cross-examination went beyond scope of direct).
[10] See Wynne v. Baystate Mary Lane Hosp., No. 20-P-200, 2021 WL 2588904, at *3 (Mass. App. Ct. June 18, 2021) (“a witness ‘may be cross-examined without regard to the scope of his testimony on direct’”) (quoting Mass. R. Civ. P. 43(b)). See also Edward M. Swartz, Trial Handbook for Massachusetts Lawyers § 14:7 (3d ed. 2023) (“[t]he attorney may cross-examine a witness as to all aspects of the case . . . [t]his rule is contrary to that in various other jurisdictions and in the Federal court system . . . where the scope of cross-examination is limited to matters raised on direct examination”).
[11] See Nuger v. Robinson, 32 Mass. App. Ct. 959, 959 (Mass. App. Ct. 1992) (“a different rule, by making it necessary for the court, during the examination of a witness, constantly to determine what is or is not new matter upon which the opposite party has the right to put leading questions, leads to confusion and delay in the progress of trials”) (internal quotations and citations omitted).
[12] See id.
[13] See id. (“the opposing counsel may cross-examine the witness as to all relevant aspects of the case”).
[14] See Com. v. Chicas, 481 Mass. 316, 320 (Mass. 2019) (“[t]he right to cross-examination, however, is not without limits, and it must be accommodated to other legitimate interests”) (internal quotations and citation omitted).
[15] See Com. v. Bibby, 35 Mass. App. Ct. 938, 940 (Mass. App. Ct. 1993) (“[w]hat is permissible scope of cross-examination is within the sound discretion of the trial judge”); Com. v. Williams, 456 Mass. 857, 873 (Mass. 2010) (“a judge may limit the scope of cross-examination as long as he or she does not completely bar inquiry into a relevant subject”).
[16] Compare Com. v. Miles, 320 Mass. 67, 72 (Mass. 1995) (holding judge’s determination as to the proper scope of cross-examination will not be overruled unless the moving party demonstrates that the judge “abused his discretion and that the [party] was prejudiced thereby”), with Guzman v. United States, 769 A.2d 785, 790 (D.C. 2001) (“[i]t is well-settled that a trial judge is vested with wide discretion in controlling the cross-examination of witnesses, and does not abuse that discretion by limiting cross-examination to those matters that are raised by the direct examination”) (internal quotations and citation omitted).
[17] Georgia is another jurisdiction that follows the minority rule. See R.C. Acres, Inc. v. Cambridge Faire Prop., LLC, 331 Ga. App. 762, 768–69 (Ga. Ct. App. 2015) (“[t]he trial court erred in ruling that defendant could not seek this information on cross-examination simply because it had not been brought out during direct”) (internal quotations and citations omitted).
[18] See Nucci ex rel. Nucci v. Proper, 95 N.Y.2d 597, 602 (2001) (defining hearsay). The rule against hearsay is not limited to New York State and is similarly recognized by federal and other state courts. See Fed. R. Evid. 801, 802; accord 31 Cal. Jur. 3d Evidence § 225 (citing Evid. Code § 1200; Young v. United States, 63 A.3d 1033, 1044 (D.C. 2013)); Com. v. Keizer, 385 N.E.2d 1001, 1004 (Mass. 1979).
[19] See Guide to New York Evidence § 8.01(a) (citing Nucci, 95 N.Y.2d at 602).
[20] See generally Fleury v. Edwards, 14 N.Y.2d 334 (1964).
[21] See Tyrrell v. Wal-Mart Stores Inc., 97 N.Y.2d 650, 652 (2001).
[22] See Brooklyn Union Gas Co. v. Arrao, 100 A.D.2d 949, 950 (2d Dep’t 1984); accord United States v. Whimpy, 531 F.2d 768, 771 (5th Cir. 1976); Seibert v. City of San Jose, 247 Cal. App. 4th 1027, 1057 (Cal. Ct. App. 2016), as modified (June 10, 2016), as modified on denial of reh’g (June 30, 2016); Faircloth v. Framingham Waste Material Co., 190 N.E. 609, 611 (Mass. 1934).
[23] See Faircloth, 190 N.E. 609 at 611.
[24] No. 3:09CV120, 2011 WL 1167440, at *4 (E.D. Va. 2011).
[25] See id. at 2.
[26] See id.
[27] 912 F.2d 80, 86 (4th Cir. 1990).
[28] See id. at 84.
[29] See id.
[30] See id.
