05 July 2005

An Example of "Subject to Cross"

Here's an example of "Subject to Cross":

Prosecutor: Judge at this time we would like to move into evidence [weapon].

Judge: Mr Lammers?

Me: Your Honor, may I voir dire the witness on this matter?

Judge: You may cross-examine him on it.

Me: Well, before it's introduced into evidence . . .

Judge: I'll mark it for identification subject to cross-examination.

This is another part of the transcript I'm working with today and, much like the section noted in the last post, wasn't relevant in the end because a statutory argument carried the day.


Anonymous said...

Well, if it's only marked for ID, it isn't really evidence. So it cannot be referred to or distributed to the jury. That doesn't seem too bad.

Or is it a special category - "ID subject to cross-ex"?

Tom McKenna said...

No, it cannot be published to the jury until it is admitted into evidence.

Moreover, in a jury trial a judge would certainly entertain a motion in limine or a motion outside the presence of the jury if there were an issue raised about admissibility of a lab certificate.

In the vast majority of cases, admissibility of these documents is not at issue, and therefore the courts use the shorthand of admitting "subject to cross" i.e., if a problem arises the document is out. If the document is out, the Commonwealth loses, regardless of whether the judge has peeked at it or not.

Ken Lammers said...

Sure, "subject to cross" works okay if given a very limited scope. If I've been given the lab report before hand I shouldn't even need it. However, if something's introduced, and then relied upon, getting that object thrown out on cross isn't going to undo that damage. I think it's sloppy procedure and the reason it worries me the most is good-old trial by ambush.

My personal experience has been that most prosecutors provide enough info so that I can get that motion in limine filed. However, they don't have to. If a prosecutor were to stonewall as much as he is allowed under Virginia law and then started introducing evidence I'd never seen at trial the judge's inclusion of items as "subject to cross" could be devastating.