Scope of Cross-Examination and the Proposed Federal Rules

In analyzing the proposed Federal Rules of Evidence, the drafting work of the Advisory Committee should not be overlooked. This is easy to do when any particular rule is isolated and criticized. For the most part, the total rules package prepared by the Advisory Committee represents a commendable effort to provide a needed set of uniform rules for federal trials. The ideas contained in the new rules are almost invariably well researched. When oversights or omissions in treatment do appear, however, it is well to raise these points for discussion. Congress is reviewing the Proposed Federal Rules, and the final legislative draft can be strengthened by prudent Congressional adjustments. One area of concern is the appropriate scope of cross-examination. The tradition in federal courts and in most state courts has been to limit the scope of cross-examination to matters testified to on direct, plus matters bearing on the credibility of the witness. The Advisory Committee sought to change this. Under their proposed approach, wide open cross-examination of witnesses would have become the norm in federal trials. More recently in the draft of the rules prepared by the House of Representatives Subcommittee on Criminal Justice, the traditional rule of narrow cross-examination has been reinstated. This Article asks which of the competing approaches is preferable, and asks particularly in criminal cases whether the Advisory Committee\u27s wide open approach is even constitutional. Posing the key question directly, when an accused person takes the stand in a federal criminal trial, may the range of the questioning by the prosecutor extend beyond the scope of the direct in cross-examining the defendant