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Witness Explanations During Cross-Examination: a Rule of Evidence Examined Jeffrey A CORE Metadata, citation and similar papers at core.ac.uk Provided by Indiana University Bloomington Maurer School of Law Indiana Law Journal Volume 58 | Issue 2 Article 6 1983 Witness Explanations During Cross-Examination: A Rule of Evidence Examined Jeffrey A. Boyll Indiana University School of Law Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the Evidence Commons Recommended Citation Boyll, Jeffrey A. (1983) "Witness Explanations During Cross-Examination: A Rule of Evidence Examined," Indiana Law Journal: Vol. 58: Iss. 2, Article 6. Available at: http://www.repository.law.indiana.edu/ilj/vol58/iss2/6 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Witness Explanations During Cross-Examination: A Rule of Evidence Examined Professor McCormick prefaced the 1954 edition of his Handbook of the Law of Evidence with this observation: "That part of the law of procedure known as evidence law has not responded in recent decades to the need for . rationalization as rapidly as other parts of procedural law."' Twenty-eight years later his observation still rings true. This note considers one common law rule of evidence which has never been rationally examined: the rule which allows a witness to explain any answer during cross-examination.2 In an effort to rationally examine the rule,' considera- tion is given to the goals of the adversary system as they are affected by the current rule and by the rule proposed by this note. An attempt is made to rationalize the rule, as McCormick urged, so that it best promotes achievement of the adversary system's goals. This note concludes that the current rule is inconsistent with the goals of the adversary system and advocates a rule in which the cross-examiner is able to hold a witness to a direct answer, without explanation, during cross-examination except in specified situations.' C. McCORMICK, HANDBOOK OF THE LAW OF EVIDENCE xi (Ist ed. 1954). 2 Explanation of answers is usually only a problem on cross-examination. On direct examination, counsel wants his witness to fully explain answers and to narrate his testimony. T. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES 94-95 (1980); C. MCCORMICK, sup'ra note 1, at 8. It is only on cross-examination, where the examiner has had no opportunity to talk to or coach the witness, that explanations may lead to inadmissible testimony. See infra text accompanying notes 24-28. ' The rule of evidence examined here is not so much a "rule" as a "preferred ruling." In other words, it is not automatically applied whenever a cross-examination witness seeks to explain an answer. "The trial judge is entitled to considerable latitude in determining whether a witness should be allowed to explain his answer." Bank v. Egan, 240 Minn. 192, 201, 60 N.W.2d 257, 262 (1958). Accord State v. Goodyear, 98 Ariz. 304, 327, 404 P.2d 397, 413 (1965), rev'd on other grounds, 100 Ariz. 244, 413 P.2d 566 (1966); FED. R. EVID. 611(a). However, in the absence of circumstances directing otherwise, the current preferred ruling is to allow a witness to explain himself. State v. Rouse, 256 La. 275, 280, 236 So. 2d 211, 212 (1970). In the same manner, the rule proposed by this note should not be blindly applied, but should be based on the trial judge's perception of the demeanor of both the witness and cross-examiner. See infra note 4. The rule proposed by this note differs from the current rule in that the preferred ruling in the same circumstances would be to disallow explana- tion during cross-examination. See infra text accompanying notes 30-31. ' The illustrations supporting the proposed rule throughout this note are cases in which the cross-examiner was honestly trying to elicit undisclosed testimony and the witness was trying to keep the full truth from being heard, usually by relevant but unresponsive "explanations." In these situations, it is obvious that witness explanation is undesirable. See infra text accompanying notes 55-85. However, sometimes the situation is reversed- the witness is honest but the cross-examiner tries to misconstrue his testimony. See Banks v. State, 113 Ga. App. 661, 662, 149 S.E.2d 415, 416 (1966), where the cross-examiner used INDIANA LAW JOURNAL [Vol. 58:361 THE CURRENT RULE Many state courts have responded to the question whether a witness may explain an answer during cross-examination.' The courts hold that ordinarily a witness is permitted to explain his answer." In cases discuss- ing witness explanations, the general rule varies only slightly. Where the question calls for a yes or no answer, some states require the witness to answer yes or no first, then allow the explanation.7 Others hold that as long as the explanation by its natural implications contains the answer requested, no objection will be heard.' The trial judge always has discretion to limit explanations;9 however, most courts freely allow explanation of answers during cross-examination."0 an inaccurate hypothetical question to misconstrue the witnesses' testimony. Where this is true, although opposing counsel will usually elicit the necessary explanation on redirect, the arguments supporting the proposed rule do not apply. Therefore, the trial judge should retain his discretion to control testimony under the proposed rule and may allow the witness to explain during cross-examination. Since the trial judge personally witnesses the demeanor of the witness and the cross-examiner, he should have discretion, reviewable only for abuse, to allow an explanation during cross-examination where the cross-examiner is the one trying to interfere with the search for truth. This note does not suggest that the trial judge's discretion should be limited and that the appellate court should reverse when explanation during cross-examination is allowed. See generally supra note 3 (trial judges currently have discretion over explanations). I See, e.g., Swygert v. Willard, 166 Ind. 25, 76 N.E. 755 (1906); State v. Rouse, 256 La. 275, 236 So. 2d 211 (1970); Bank v. Egan, 240 Minn. 192, 60 N.W.2d 257 (1953); State v. Marshall, 571 S.W.2d 768 (Mo. Ct. App. 1978); Commonwealth v. Dalton, 199 Pa. Super. 388, 185 A.2d 653 (1962; Adams v. State, 156 Tex. Crim. 63, 225 S.W.2d 568 (1949), modified, 229 S.W.2d 64 (1950) (sentence clarified). 6 See, e.g., cases cited supra note 5. See, e.g., Banks v. State, 113 Ga. App. 661, 661-62, 149 S.E.2d 415, 416 (1966). 8 Adams v. State, 156 Tex. Crim. 63, 225 S.W.2d 568 (1949), modified, 229 S.W.2d 64 (1950) (sentence clarified); see State v. Rouse, 256 La. 275, 236 So. 2d 211 (1970). ' Bank v. Egan, 240 Minn. 192, 201, 60 N.W.2d 257, 262 (1958); accord State v. Goodyear, 98 Ariz. 304, 327, 404 P.2d 397, 413 (1965), rev'd on other grounds, 100 Ariz. 244, 413 P.2d 566 (1966); FED. R. EVID. 611(a). 10 Admittedly, it is difficult to determine how most trial judges exercise their discretion since so few trial transcripts are printed; however, three sources suggest that most courts do freely allow explanations during cross-examination. First, articles by trial lawyers indicate that explanations are generally allowed. See, e.g., Preiser, Cross-examinationof Lay Witnesses, TRIAL, Dec. 1977, at 22, 24 ("First of all you cannot contain the witness. How many times can you really hold the witness to a yes or no answer-the judge will say, yes, you may explain your answer. You are going to get the explanation."). Second, law review articles by trial judges indicate that explanations are allowed. See, e.g., Shientag, Cross-Examination-A Judge's Viewpoint, 3 REC. 12 (1948). Third, excerpts of trial records found in appellate opin- ions indicate that most trial courts allow explanation. See, e.g., trial court record reprinted in People v. Jackson, 44 Cal. 2d 511, 518-19, 282 P.2d 898, 902 (1955) (statement by trial judge: "You know, Mr. Winters, it is the usual courtroom procedure to permit a witness to explain his answer, and you are not going to stand there and prevent this witness from explaining his answers."); Central Ind. Ry. v. Mikesell, 189 Ind. App. 478, 221 N.E.2d 192 (1966). In recent years, a few cases suggest that the current rule is being changed to the rule advocated in this note and that witnesses are being allowed to explain their cross-examination answers only on redirect examination. Carreras v. Honeggers & Co., Inc., 68 Mich. App. 1982] WITNESS EXPLANATIONS The current rule had appeared in decisions in several states by 1910.11 Explanation of the decision in most of these early cases follows a similar pattern. The opinion reprints the cross-examination dialogue to which exception was taken, followed by the explanation that was given or attempted. The court then states that a witness may explain his answers, and the exception is overruled.12 Usually no analysis supports the decision. From those few cases which have discussed the reasons for allowing explanation, it appears that the rule is predicated on notions of "natural justice [and] common sense."'3 Natural justice appears to be the idea that the best way to uncover the truth at trial is to put the witness on the stand and let him tell everything he knows about the controversy and that attempts by the cross-examiner to limit a witness' answers are therefore attempts to hide the truth.
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