Hon. WILLIAM L. HUNGATE,

Chairman, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, U.S. House of Representatives, Washington, D.C.

DEAR CONGRESSMAN HUNGATE: Herb Hoffman called me late last week and requested that I provide additional information regarding the posture of state authorities supporting the approaches I suggested to you in my letter of February 27 concerning (1) competency of jurors to impeach a jury verdict and (2) scope of cross-examination.

RULE 606(b). COMPETENCY OF JUROR: INQUIRY INTO VERDICT

The final draft of any enlightened evidence code should embrace an approach which allows inquiry into quotient verdicts and the like (see my letter of February 27). Our state (Iowa) has had such a rule for over 100 years, with salutary results. Dean Mason Ladd's favorance of such an approach is demonstrable from his oral comments as well as the written comments he has incorporated in his evidence casebooks spanning almost 30 years. The Comment in 53 Iowa Law Review 1366, 1367 (1968) lists the following states as adhering to the approach which I have suggested, a rule which would permit jurors to testify to objective jury misconduct which does not inhere in the verdict: Florida, Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio, Oregon, Tennessee, Texas, Washington, and Wisconsin. Id. at 1367 n. 3. To this list a most prestigious addition came in 1969. Chief Justice Traynor aligned California with the view I have advocated in People v. Hutchinson, 455 p. 2d 132 (Cal. 1969) (proof of overt acts of misconduct allowed; proof of subjective reasoning processes of jurors which cannot be corroborated disallowed). In his opinion, Justice Traynor stated that the new rule allowing proof of objective misconduct by juries either within or without the jury room "has been advocated by the commentators. and has been the basic limitation on proof set by the leading decisions allowing jurors to impeach their verdicts." He based this extremely well-reasoned California decision on the original Iowa case in this line of authority, Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 (1866).

RULE 611(b). SCOPE OF CROSS-EXAMINATION

In his September 1972 speech at the University of Iowa, Solicitor General Griswold posited this question: "Should not the scope of cross-examination be restricted to what has traditionally been its limitation in the Federal courts and numerous state courts, namely, the subject matter of direct examination, and credibility?" The limited Federal rule of cross-examination had its genesis in an 1840 decision of the Supreme Court, Philadelphia and Trenton R.R. v. Stimpson, 39 U.S. (14 Pet.) 448 (1840), and the rule spread rapidly to all Federal courts and four-fifths of the state courts. See Carlson, "Cross-Examination of the Accused," 52 Cornell Law Quarterly 705 (1967) (collecting the authorities). In the 1972 edition of McCormick's Handbook on Evidence, the following relevant point is made in § 21, setting forth the posture of the authorities today:

The Federal courts generally and the majority of the states have agreed in the view that the cross-examination must be limited to the matters testified to on the direct examination.

The McCormick Handbook indicates that England and about one-fifth of the states follow the opposing wide-open approach to cross-examination. If we eliminate the jurisdictions listed by McCormick as adhering to the wide-open

view, the following jurisdictions would appear to remain, falling into the majority rule of narrow cross-examination which I favor:

I believe the Federal Advisoy Committee has in several areas made excellent suggestions for a much-needed set of evidence rules in federal trials. Where their work can be improved upon, you are picking these spots up, strengthening their work, and the final result will be an excellent product. Best regards as you proceed. I hope that my references concerning the position of the various states on certain matters as above outlined is of assistance to you.

Sincerely,

RONALD L. CARLSON, Associate Dean and Professor of Law.

CORNELL LAW QUARTERLY, VOLUME 52, SPRING 1967

CROSS-EXAMINATION OF THE ACCUSED

(By Ronald L. Carlson†)

A rule of cross-examination long operative in federal criminal trials limits the permissible scope of cross-examination to matters opened up by the defendant in his direct testimony. A competing rule employed in some states permits wide-open cross-examination of the accused. The author traces the history of the more limited federal rule and examines its constitutional basis. The question of whether the limited rule is required by the fifth amendment is explored, as well as the implications of this question for states conducting criminal prosecutions under the wide-open rule. Finally, the author considers the problem of unsettling prior convictions should the fifth amendment impose a constitutional limitation upon cross-examination.

"There is no higher nor more important duty resting upon the courts than to see that the citizen is fully afforded the rights and immunities guaranteed to him by the Constitution."

An important consideration in criminal trials is the extent to which the accused may be cross-examined once he takes the stand. Whether this examination is limited to matters raised in the examination in chief, or whether the scope of cross-examination extends broadly to the entire case can be critically significant in defense counsel's decision to call the accused as a witness.

There are two major views on this problem of cross-examination. The American (or federal) rule limits cross-examination of the defendant to matters stated in the direct examination. Another view, termed the Massachusetts (or English) rule by many writers, allows cross-examination on all relevant phases of the case. Several jurisdictions follow this broad interrogation rule and require an accused to answer cross-examination questions which inquire into matters foreign to the defendant's testimony in chief.1

†Assistant Professor of Law, University of Iowa. The author gratefully acknowledges the research assistance of Leon Shearer of the College of Law.

*Tucker v. United States, 5 F. 2d 818, 824 (8th Cir. 1925).

1 Apparently the rule permits cross-examination by the prosecution on the whole case, the only limitation being that the inquiries direct themselves to relevant matter. 4 Jones, Evidence § 928, at 1742-43 (5th ed. 1958); McCormick, Evidence § 26, at 50 (1954) (hereinafter cited as McCormick]. See e.g., Clarke v. State, 78 Ala. 474 (1885); State v. Domino, 714 La. 950, 102 So. 2d 227 (1958); Commonwealth v. Smith, 163 Mass. 411, 40 N.E. 18 (1895); Rush v. State, 254 Miss. 641, 182 So. 2d 214 (1966); State v. Huskins, 209 N.C. 717, 184 S. E. 480 (1936); State v. McGee, 55 S.C. 247, 33 S. E. 353 (1899); Brown v. State 33 Tex. Crim. 597, 44 S.W. 176 (1898).

The competing rules have received independent evaluation and rest upon different theories.2 The Massachusetts rule was brought from England, where it is still in use. In both civil and criminal cases this rule is based on the philosophy that when a witness testifies, he should present all the facts unrestricted by technical rules of evidence. Court and counsel are relieved of the duty of determining when questions are within the proper scope of cross-examination and when they are without. This ease of application was a major factor in winning Wigmore's support for the rule.3

An argument often advanced on behalf of the more limited federal rule is that it makes for orderliness of trial. A party may not develop a major portion of his case out of normal order through the vehicle of cross-examination. It has also been suggested that there is an element of basic fairness in preventing the crossexaminer from using a witness called by the opposition to establish his own case through the device of leading questions. The Supreme Court's solicitude for the

2 It is beyond the purview of this article to resolve the extended debate over which rule is preferable as a rule of trial procedure, and the major contentions advanced for the two rules are adverted to only briefly The purpose of this article is to inquire whether one of the rules operates in violation of the privilege against self-incrimination.

36 Wigmore, Evidence § 1888, at 544-45 (3d ed. 1940) (hereinafter cited as Wigmore]. Wigmore is critical of the federal rule and objects to its appellation as the American rule, despite its operation in the vast majority of American jurisdictions. The advantages and disadvantages of the Massachusetts rule, the federal rule, and the variations of each have been well and fully set forth. As summarized in Smith, Rules Relating to the Examination of Witnesses 219 (1948):

And so each rule has its advocates. The virtue of the Massachusetts rule lies in the simplicity of its application as originally pointed out by Chief Justice Shau. A Massachusetts lawyer will also remind his listener of the oath taken by all witnesses to tell the truth, the whole truth, and nothing but the truth. This he does not do under the Federal rule in cases where he is not later recalled as a witness.

The Federal practitioner will emphasize the fact that the rule in his court makes for a more orderly presentation of the case and prevents or minimizes the danger of a confusion of issues, because in theory at least, the jury hears only one party's case at a time.

4 In 4 Jones, Evidence § 903, at 1700 (1958) a spirited defense of the federal rule is presented:

The rule limiting the cross-examination to the general subject matter of the direct examination is certainly more conducive to the systematic and orderly trial of causes; and it has the further merit that it prevents the cross-examiner from proving, by lea ling questions, independent facts by a witness who is friendly to him and whom the a lverse party is obliged to call. This rule clearly applies where the attempt is made to draw out, by cross-examination, facts having no connection with the matters which have been stated in the direct examination, but which constitute the substantive defense or claim of the cross-examiner. [Footnotes omitted.]

The United States Supreme Court made this relevant comment regarding the limited rule in Wills v. Russell, 100 U.S. 621, 625-26 (1879):

Authorities of the highest character show that the established rule of practice in the Federal courts and in most other jurisdictions in this country is that a party has no right to cross-examine a witness, without leave of the court, as to any facts and circumstances not connected with matters stated in his direct examination, subject to two necessary exceptions. He may ask questions to show bias or prejudice in the witness, or to lay the foundation to admit evidence of prior contra lictory statements....

It has been twice so ruled by this court, and is undoubtedly a valuable rule of practice, and one well calculated to promote regularity and logical order in jury trials.... In accord. Note, "The Scope of Cross Examination," 30 Ky. L.J. 317 (1942), wherein four major reasons are advanced for the majority rule. Contra, 6 Wigmore § 1887; McCormick § 27: Carroll, "The Extent of the Cross-Examination to Which an Accused May Be Subjected When He Offers Himself as a Witness in His Own Behalf," 11 Va. L. Rev. 249 (1925); Comment, "Scope of Cross-Examination in Louisiana," 10 Tulane L. Rev. 294 (1936). See generally McKelvey, Evidence 585-86 (5th ed. 1944); Maguire, Evidence: Common Sense and Common Law 44-49 (1947); Morgan, Basic Problems of Evidence 65-67 (1962).

It may be argued that the continued retention of the restricted rule in the great majority of states lends credence to proponent's claims that it operates as a salutary tool of trial procedure. It is sometimes urged that since the accused may not be called as a witness for the prosecution in the first instance, the order of trial justification advanced for the majority rule fails in criminal cases. However, other objectives of the rule remain, including constitutional considerations and the shielding of the accused from unlimited cross-examination. That the scope objection is frequently interposed is evidenced by the number of federal and state appellate decisions dealing with the proper limits of cross-examination.

The manner of application of the federal rule is importa it for states which employ it. Two interpretations have been suggested:

First, cross-examination is limited to the precise facts testified to on the direct; or, second, cross-examination includes questions concerning facts which it was the purpose in examining on direct to prove. Although these two interpretations bothered the courts for a number of years, it appears that all courts following the federal rule have now adopted the latter interpretation.

Note, "The Scope of Cross Examination," 24 Iowa L. Rev. 564, 568 (1939). The cross-examination may search the full details of matters within the scope of the direct exa niuation. Branch v. United States, 171 F. 2d 337 (D.C. Cir.1948).

In courts following the federal rule, new matter may be inquired into on cross-examination for the purpose of Impeaching the witness. See, eg., United States v. Fontana, 231 F.2d 807, 800-812 (3d Cir. 1956). It is not difficult in theory to square the departure allowed in impeachment with the federal rule itself. The explanation is that since such cross-examination does not deal with substantive matter it does not really open new matters: it deals with testimony brought out on direct by weakening what was there said. See Note, "The Scope of Cross Examination," 24 Iowa L. Rev. 564, 574 (1939).

limited rule is evidenced by its rejection of a proposed provision for the Federal Rules of Civil Procedure which would have permitted cross-examination on every material matter in the case regardless of the scope of direct examination.5

The limited federal rule had its genesis in an 1840 decision wherein the Supreme Court indicated "that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matter stated in his direct examination." The rule spread rapidly and was applied fully in federal criminal

The Court struck down the concluding sentence from the Advisory Committee's 1937 draft of Rule 43(b) which read: "Except as stated in the last preceding sentence, any witness called by a party and examined as to any matter material to any issue may be cross-examined by the adverse party upon all matters material to every issue of the action." In proposing amendments to the Rules in 1946 the Advisory Committee did not recommend any amendment to Rule 43. The Committee commented that the rule was working better than the commentators had expected. 5 Moore, Federal Practice 43.01[7] (2d ed. 1966).

The rejection of the wide-open rule by the Supreme Court was discussed in Bell v. United States, 185 F.2d 302, 310-11 (4th Cir. 1950):

This rule (limited cross-examination] has been the subject of some attack; and an attempt was made by Advisory Committee when formulating the Rules of Civil Procedure in 1936 and 1937 to change the rule to allow cross examination upon all the material and pertinent issues of the action. The Supreme Court in rejecting these proposals and in adopting Rule 43(b) of the Federal Rules of Civil Procedure, . . . as it now stands, indicate that "the historic limitation upon the scope of cross examination to the subject matter of the direct examination is still to be enforced in the federal courts."

See also Special Committee on Evidence, Judicial Conference of the United States, "Preliminary Study of the Feasibility of Developing Uniform Rules of Evidence for the Federal Courts," 30 F.R.D. 79, 97–98 (1961).

On the subject of freedom of federal courts from state rules covering the scope of cross-examination, see generally Hendrey v. United States, 233 Fed. 5, 15 (6th Cir. 1916). See also Callahan & Ferguson, "Evidence and the New Federal Rules of Civil Procedure," 45 Yale L.J. 622, 634 (1936); Orfield, “The Reform of Federal Criminal Evidence," 32 F. R.D. 121, 141 (1961).

It now seems well settled that in the Federal courts a party has no right to cross-examine as to any facts or circumstances not brought out in direct examination. This rule is applied both in civil and criminal cases. See Northern Pac. R. R. v. Urlin, 158 U.S. 271 (1895); Houghton v. Jones, 68 U.S. (1 Wall.) 702 (1863); United States v. Spatuzza, 331 F.2d 114 (7th Cir. 1964); Dixon v. United States, 303 F.2d 226 (D.C. Cir. 1962); Wegman v. United States, 272 F.2d 31 (8th Cir. 1959); United States v. Kretzke, 220 F.2d 785 (7th Cir. 1955); United States v. Skidmore, 123 F.2d 604 (7th Cir. 1941); Leche v. United States, 118 F.2d 246 (5th Cir. 1941); Union Elec. Light & Power Co. v. Snyder Estate Co., 55 F.2d 297 (8th Cir. 1933); De Soto Motor Corp. v. Stewart, 62 F.2d 914 (10th Cir. 1932); Farley v. Norfolk & W. Ry., 14 F.2493 (4th Cir. 1926).

Philadelphia & Trenton R. R. v. Stimpson, 39 U.S. (14 Pet.) 448 (1840). This Supreme Court decision was preceded by a Pennsylvania opinion of major import wherein Chief Justice Gibson of the Pennsylvania Supreme Court adopted the limited rule of cross-examination. Ellmaker v. Buckley, 16 S. & R. 72 (Pa. 1827). See 6 Wigmore § 1885. The rule of restricted cross-examination was a feature of English chancery procedure. The practice in England prior to the Stimpson and Ellmaker decisions is summarized in Hinton, Cases on Evidence 267 n.71 (2d ed. 1931):

In Dean of Ely v. Stewart, 2 Atk. 44 (1740), the following statement was made by Lord Hardwicke: "Where at law a witness is produced to a single point by the plaintiff or defendant, the adverse party may cross-examine as to the same individual point, but not to any other matter; so in equity, if a great variety of facts and points arise, and the plaintiff examines only as to one, the defendant may cross-examine to the same point, but can not make use of such witness to prove a different fact." This statement is probably correct as to the chancery practice of that period, when the written cross-interrogatories were almost as a matter of necessity based on the direct interrogatories. It seems, however, that Lord Hardwicke may have been mistaken as to the actual practice at law. In Dickenson v. Shee, 4 Esp. 67 (Nisi Prius, 1801), it was ruled by Lord Kenyon that a witness called by the plaintiff to prove one of the elements of his case was subject to cross-examination on a distinci matter of defense. The editor has been unable to find a ruling by a court in banc on the point.

McCormick's findings indicate that the American rule prevails in about four-fifths of the states. MeCormick § 21, at 43. For the state of the law in various jurisdictions, see Chamberlayne, Trial Evidence §340 (1936); 2 Conrad, Modern Trial Evidence § 1186 (1956); 4 Jones. supra note 1, § 928; 3 Wharton, Criminal Evidence 8889 (12th ed. 1955); 2 Underhill, Criminal Evidence § 504, at 1246-50 (5th ed. 1956); 6 Wigmore § 1890. It is interesting to note that in Missouri, where the wide-open practice prevails in civil cases, the accused in criminal matters is shielded from cross-examination except upon matters referred to in the examination in chief. See Mo. Ann. Stat. §§ 491.070, 546.260 (1952).

Wigmore sought to group all jurisdictions into three categories, including in addition to the two crossexamination rules already discussed the so-called "Michigan rule. This would permit broad crossexamination of the witness as to everything save the cross-examiner's affirmative case. 6 Wigmore § 1889. Morgan, however, notes that what Wigmore called the Michigan rule does not exist in Michigan. 1 Morgan, supra note 4, at 66; see Comment, "Cross-Examination: Permissible Scope in Michigan," 36 U. Det. L.J. 162 (1958). See also Annots., "Right To Cross Examine Witness in Respect of Facts Not Included in His Direct Examination," 108 A.L. R. 167 (1937); "Cross Examination of Witness Called To Testify on Particular Point or Under Order of Court," 7 A.L. R. 1116, 1125 (1920) (developing the minority rule and listing Georgia, Massachusetts, Michigan, and Mississippi thereunder); 58 Am. Jur. "Witnesses" § 629; 98 C.J.S. “Witnesses" § 378(b) (1957).

Although attempts at classification of jurisdictions have been criticized because of the various approaches employed in the several states using the federal rule, such classifications continue. See Maguire, Weinstein, Chadbourn & Mansfield, Cases on Evidence 283-84 (5th ed. 1965); Note, "The Limiting Effect of Direct Examination Upon the Scope of Cross Examination," 37 Colum. L. Rev. 1373 (1937).

cases. Significantly, certain decisions treating the ruie ln criminal prosecutions suggested that its application was not merely appropriate trial procedure, but had a basis in the Constitution. Important judicial language to this effect, not heretofore analyzed for the point explored in this article, indicates that an accused who takes the stand waives his fifth-amendment privilege against self-incrimination only as to matters covered in the direct examination. 8

Is the federal cross-examination rule constitutionally oriented? Is cross-examination beyond the scope of the direct examination prohibited by the federal privilege against self-incrimination? In 1964 the federal privilege against self-incrimination was extended to the states in Malloy v. Hogan. Following this extension, the privilege was applied to limit stringently pretrial interrogation of suspects by state officers,10 and to prohibit comment on the accused's refusal to testify at trial." It must now be considered whether this extension of the fifth amendment imposes limits on cross-examination of the accused in state prosecutions.

This problem has obvious ramifications for those jurisdictions which permit wide-open cross-examination; if a rule of restricted cross-examination is constitutionally required, such wide-open interrogations of the accused may be directly violative of his fifth amendment rights. Moreover, the issue is important even in the majority of states which apply the limited rule of cross-examination. The limited rule is more difficult to apply in practice, and more likely to lead to error and resultant appeals. Hence, if it is constitutionally required, the "harmless error" doctrine may not be available to cure its misapplications, and there will be a significant increase in the number of cases holding trial court rulings to be reversible error. These considerations raise a serious question for the administration of criminal justice: may a state properly apply the broad rule of cross-examination when the accused takes the stand.

DECISIONAL GUIDELINES

The answer to the inquiry just raised turns on whether the limited federal rule was adopted only as a rule of trial procedure, or whether it was required by the constitutional privilege against self-incrimination. Resolution of this issue necessitates examination of case language bearing on the point.

After the adoption of the fifth amendment in 1789, the federal courts were faced with the task of making its written protections meaningful. In implementing the self-incrimination clause, the courts prohibited comment on an accused's failure to testify in federal criminal cases.12 Paralleling this development was the evolution of the rule restricting the permissible scope of cross-examination in federal trials. Early decisions had no occasion to consider whether the limited cross-examination rule was required by the fifth amendment in criminal cases. The question of the extent of a defendant's waiver of his constitutional privilege

It should be noted that the question of the scope of cross-examination and that of the scope of waiver of the privilege are separate and distinct. See 1 Morgan, supra note 4, at 179-80. Although both may serve to limit cross-examination, the former operates by virtue of statutory or decisional authority, whereas the latter expresses a constitutional concept. The interaction of the two principles occurs when the accused takes the witness stand. If the scope of waiver is limited, i.e., if the privilege is waived only as to matters testified to on direct examination, the rule of limited cross-examination may operate as an ancillary procedural device to implement such a concept of waiver and prevent cross-examination offensive to the constitutional privilege. Of course, a jurisdiction can apply a broad waiver rule and deem the privilege destroyed as to every matter relevant to the merits, yet employ the limited cross-examination rule as a procedural device. But the converse does not appear equally true. A jurisdiction applying a narrow waiver rule may be prohobited by privilege considerations from applying a rule of wide-open cross-examination of the accused since such interrogations, exceeding the boundaries of the waiver, delve into matter respecting which the privilege has not been waived. See Note, 5 U. Chi. L. Rev. 116 (1937). Applying the wide open cross-examination rule in this situation and requiring the defendant to respond may compel him to speak in derogation of his privilege of silence.

Intimations that a limited cross-examination rule may be required by the fifth amendment do no elevate the federal cross-examination rule as such to the level of a constitutional standard. What is implied is that the operative rule governing the scope of cross-examination must not be inconsistent with the applicable waiver rule.

See, e.g., Brown v. United States, 356 U.S. 148, 154–55 (1958); Powers v. United States, 223 U.S. 303, 315 (1912); Fitzpatrick v. United States, 178 U.S. 304, 315-16 (1900); Ziegler v. United States, 174 F.2d 439, 446-47 (9th Cir. 1949); Madden v. United States, 20 F.2d 289 (9th Cir. 1927); Tucker v. United States, 5 F.2d 818 (8th Cir. 1925); Wilson v. United States, 4 F.2d 888 (8th Cir. 1925); Harrold v. Territory of Oklahoma, 169 Fed. 47, 51 (8th Cir. 1909); United States v. Barker, 11 F.R.D. 421, 422 (N.D. Cal. 1951).

* 378 U.S. 1 (1964).

10 Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478( 1964).

Griffin v. California, 380 U.S. 609 (1965).

12 The history of the no comment rule is traced in Note, "Griffin v. California," 70 Dick. L. Rev. 98 (1965). See also Friendly, "The Bill of Rights as a Code of Criminal Procedure. ' 53 Calif. L. Rev. 929, 938-40 (1965), wherein the author develops the position that the no comment rule, with its statutory base, emerged in federal practice as a result of legislative mandate rather than constitutional prohibition. But compare Justice Harlan's concurring opinion in Griffin v. California, supra note 11, at 615.