05 July 2005

Subject to Cross

I was reading an unpublished case from the Virginia Court of Appeals which dealt with the introduction of evidence "subject to cross." I don't know if this exists in other jurisdictions. I know I sure as heck didn't learn anything about it in law school.

Here's how it works: A party has a witness on the stand and moves some sort of evidence into the case (physical evidence, a written confession, a report, etc.). The other party doesn't state an objection but notes that this is "subject to cross." The judge then enters the item into evidence and the questioning of the witness continues. When the witness is passed and the second party does his cross examination. During this cross examination the second party can inquire as to things such as chain of custody, validity of a test, accuracy of a report, etc. If the second party establishes some sort of error that party then moves to strike the evidence from the record. If the judge agrees it is stricken.

I don't particularly care for this procedure. It should be of very limited use, only for items which have absolutely no other effect on the evidence or testimony of the witness or case. It should never be allowed in a jury trial. Still, it seems to be the default position in a number of courtrooms for wider evidence. I know that I have stood and asked the judge to voir dire a witness as to certain evidence and been told that the evidence was being entered subject to cross and that I could address it during cross examination. Of course, the difficulty is that once that barn door is opened a whole lot of cattle might get through before you can close it again. Imagine a report coming in and an expert basing 2/3 of his testimony on it before you can get it thrown out on cross.

Is this just a Virginia procedure or does it exist out there in the rest of the country as well?


Anonymous said...

The previous comment seems to have disappeared... just to reiterate, though, I am not aware of such a procedure in my state. It is a rather troublesome procedure, given the potentially huge prejudicial impact of evidence already in the minds of the jury.

Ken Lammers said...

123txpublicdefender123 stated:

I've never heard of such a thing. Around these parts, the judge will always let you voir dire the witness through which the exhibit is being admitted before you state any objection you might have to the evidence.

Ken Lammers said...

Gideon stated:

I haven't heard of such a thing either, and frankly, I'm troubled by it for the very reasons you state.

Here, too, we are allowed to voire dire and then make an objection if we feel it shouldn't be allowed or if there is no foundation. To let it in and allow you to determine it's appropriateness only on cross seems to be a violation of 403(b).

I can only imagine the things they get in "subject to cross". I'm cringing just thinking of the prejudicial impact...

Ken Lammers said...

Our rules of evidence are common law so we have some strange things.

I think this procedure works okay if the piece of evidence stands or falls all by its lonesome and takes the case with it. For instance, a lab confirming that the white, powdery substance is cocaine stands alone in almost all cases. If I show a failure in chain of custody or the analysis then it's out and I win the case. If it's in then it's not usually the focal point of my case because I will be arguing against constructive possession (or some other defense). Still, every time I see a piece of evidence come in through this procedure it troubles me because in Virginia's trial by ambush system it could turn out to be more important than it seems.

tommy said...

What is constuctive possession?

Ken Lammers said...

Constructive possession is when something is not on your person but still under your dominion and control. For instance, if your pen is on desk but not in your hand it is still your pen.

Anonymous said...

Well, that's the thing. It may not be used regularly as an ambush tactic, but the probability makes it a dangerous procedure.

I'm assuming that this "subject to cross" does not overshadow other procedures, such as motions in limine or motions to suppress. I'd like to see what the jury instruction for an inadmissible piece of "subject to cross" evidence would look like.

Blonde Justice said...

What about "subject to connection," do you have that one? That was another one that we didn't learn in law school. I naively thought it was either you can get it in through this witness or you can't. Oh well.

Ken Lammers said...

Nope, we don't have that one. How does it work?

Anonymous said...

I think subject to connection is akin to saying "I'll tie it up, yerroner".

Although from what Blondie seems to say, the connection comes from different witnesses. I don't know if any judge here will put up with that.

Blonde Justice said...

Yeah, Gideon is right. So, this isn't a perfect example, but this is kind of what happens.

Purse snatching, for some dumb reason, the DA calls the cop to testify first. (Maybe tomorrow is his day off.)

He asks him about the purse, is this the purse you recovered? Yes, it is.

"At this time I move People's 1 for ID into evidence, subject to connection," the assumption being that it's going to be tied to the purse owner who will take the stand next.

That's one they didn't teach us about in law school.