Because of the constitutional aspects of the right of cross-examination, a certain threshold level of cross-examination must be permitted.15 There is a presumption in favor of cross-examination which requires the court to permit inquiry into any acts, relationships or motives reasonably likely to show bias on the part of the witness.16 Thus, it is said that counsel has wide discretion in conducting cross-examination to test the credibility of a witness, as well as the witness’s ability to observe, remember and relate.17
Nonetheless, the right of cross-examination is not unlimited, and a court has wide discretion in determining the permissible scope of cross-examination.18 Within constitutional limits, trial courts may impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.18.1 The trial court, in its discretion, may exclude testimony on cross-examination if it is outside the scope of direct testimony and unrelated to testing the credibility or recollection of a witness.18.2 Trial judges are not required to allow cross-examination on topics of marginal or minimal relevance solely on the conjecture that bias or prejudice might be disclosed. 18.2
In determining whether to limit or exclude a line of cross-examination, a court should consider (1) whether the cross-examination serves any purpose other than to harass, degrade or humiliate the witness;19 (2) whether the testimony of the witness under attack is critical or unimportant; (3) the nearness or remoteness of the alleged misconduct bearing on credibility to the trial; and (4) whether permitting cross-examination will result in time-consuming explanation upon immaterial factual issues.20
Generally, however, a decision by a court to limit a line of cross-examination will not be deemed an abuse of discretion provided that the jury was exposed to facts sufficient to allow it to draw inferences as to the reliability of the witness and provided that counsel had an adequate record from which to argue why the witness might have been biased.21
The propriety of cross-examination depends on its purpose. The cross-examination may take in at least as much ground as the testimony it is designed to challenge.22 Conversely, cross-examination should be limited to matters raised in direct examination, along with matters affecting the bias or credibility of the witness, although a court has discretionary authority to permit inquiry into additional matters.23 This will ordinarily be permitted where the additional matters have a direct bearing on the testimony in chief of the witness. Although bias is always relevant as discrediting the witness and affecting the weight of the witness’s testimony,24 a court is not required to allow cross-examination on topics of marginal or minimal relevance merely because bias or prejudice might be disclosed.25 A court may require an offer of proof to determine whether the evidence is sufficiently probative.26
Cross-examination of a witness may address specific incidents of misconduct which bear on the witness’ credibility or reputation for truthfulness.26.1 The decision to admit or bar this type of cross-examination is within the discretion of the trial judge, However, it is deemed an abuse of discretion to cut off this type of cross-examination if, as a result, the jury is denied sufficient information to make a fair appraisal of the witness’s motives and bias. In determining whether or not to permit such cross-examination, the trial judge must consider (i) whether the testimony of the witness being impeached is crucial, (ii) the logical relevance of the specific impeachment evidence to the question of bias, (iii) the danger of unfair prejudice, confusion of issues and undue delay, and (iv) whether the evidence is cumulative.26.2
A court may prevent counsel from attempting to impeach a witness by reference to inadmissible facts27 and from impeaching a witness or laying the groundwork for later impeachment of another witness by reference to events as to which counsel has no proof. In such circumstances, a court may require counsel to make a proffer of the impeaching evidence. If such a proffer cannot be made, a court may refuse to permit that line of questioning.28
Cross-examination may also be limited if it is being used merely to develop a repetition of what came out on direct.29
Although counsel are generally afforded wide latitude in the manner they question witnesses, there may be some limitations. For example, references to the testimonial oath when questioning a witness are not per se impermissible. However, context, repetitiveness of reference, voice inflection and other circumstances may make it objectionable.29.1
16. Michael v. State, 529 A.2d 752, 759-60 (Del. 1987); Van Arsdall v. State, 486 A.2d 1, 6 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Weber v. State, 457 A.2d 674, 682 (Del. 1983).
17. Jensen v. State, 482 A.2d 105, 116 (Del. 1984); Casalvera v. State, 410 A.2d 1369, 1374 (Del. 1980); Thompson v. State, 399 A.2d 194, 202 (Del. 1979); Martin v. State, 346 A.2d 158, 160, 3 A.L.R.4th 1005 (Del. 1975); Zutz v. State, 160 A.2d 727, 731 (Del. 1960).
18. Garden v. Sutton, 683 A.2d 1041, 1043 (Del. 1996); Hamann v. State, 565 A.2d 924, 928 (Del. 1989); Jensen v. State, 482 A.2d 105, 116 (Del. 1984); Styler v. State, 417 A.2d 948, 950 (Del. 1980); Thompson v. State, 399 A.2d 194, 202 (Del. 1979); McCarthy v. State, 372 A.2d 180, 184 (Del. 1977); Dc Jarnette v. State, 338 A.2d 117, 118 (Del. 1975); Wallace v. State, 211 A.2d 845, 848 (Del. 1965); Lewis v. State, No. 397, 1990, slip op. at 2-3, Christie, J. (Del. Oct. 1, 1991) (ORDER), disposition reported at 604 A.2d 417 (Del. 1991) (TABLE).
18.1. Holder v. State, 692 A.2d 882 (Del. 1997); Hamann v. State, 565 A.2d 924, 928 (Del. 1989).
18.2. Binaird v. State, 967 A.2d 1256, 1260 (Del. 2009); Snowden v. State, 672 A.2d 1017, 1025 (Del. 1996).
18.3. Allen v. State, 970 A.2d 203, 215 (Del. 2009); Wright v. State, 513 A.2d 1310, 1314 (Del. 1986).
19. Van Arsdall v. State, 486 A.2d 1, 6 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Wallace v. State, 211 A.2d 845 (Del. 1965).
20. Garden v. Sutton, 683 A.2d 1041, 1043-44 (Del. 1996); Snowden v. State, 672 A.2d 1017 (Del. 1996); Weber v. State, 457 A.2d 674, 681 (Del. 1983); Wallace v. State, 211 A.2d 845, 848 (Del. 1965). See also Wei v. State, No. 510, 1988, slip op. at 4-5, Holland, J. (Del. Dec. 20, 1989) (ORDER), disposition reported at 571 A.2d 788 (Del. 1989) (TABLE).
21. Michael v. State, 529 A.2d 752, 760-61 (Del. 1987); Lovett v. State, 516 A.2d 455, 471 (Del. 1986), cert. denied, 481 U.S. 1018 (1987); Van Arsdall v. State, 486 A.2d 1, 6 (Dcl. 1984), vacated on other grounds, 475 U.S. 673 (1986); Weber v. State, 457 A.2d 674, 682 (Del. 1983); Rash v. State, No. 85, 1992, slip op. at 4, Holland, J. (Del. July 30, 1992) (ORDER), disposition reported at 612 A.2d 159 (Del. 1992) (TABLE); Slater v. State, No. 166, 1991, slip op. at 7, Holland, J. (Del. Apr. 8, 1992) (ORDER), disposition reported at 610 A.2d 727 (Del. 1992) (TABLE); Smart v. State, No. 242, 1985, slip op. at 4, Walsh, J. (Del. Sept. 12, 1986) (ORDER), disposition reported at 515 A.2d 398 (Del. 1986) (TABLE); Dalton v. State, No. 405, 1985, slip op. at 4-5, Walsh, J. (Del. July 29, 1986) (ORDER), disposition reported at 514 A.2d 413 (Del.) (TABLE), cert. denied, 479 U.S. 991 (1986).
22. De Jarnette v. State, 338 A.2d 117, 118 (Del. 1975). See also Keys v. State, 337 A.2d 18, 22 (Del. 1975).
23. D.R.E. 611(b); Hamann v. State, 565 A.2d 924, 928 (Del. 1989).
24. Michael v. State, 529 A.2d 752, 754 (Del. 1987); Van Arsdall v. State, 486 A.2d 1, 6 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Weber v. State, 457 A.2d 674, 680 (Del. 1983); Williams v. Warren Bros. Constr. Co., 412 A.2d 334, 336-37 (Del. 1980); Wintjen v. State, 398 A.2d 780, 782 (Del. 1979); Ward v. State, 395 A.2d 367, 369 (Del. 1978); Rash v. State, No. 85, 1992, slip op. at 4, Holland, J. (Del. July 30, 1992) (ORDER), disposition reported at 612 A.2d 159 (Del. 1992) (TABLE); Slater v. State, No. 166, 1991, slip op. at 6-7, Holland, J. (Del. Apr. 8, 1992) (ORDER), disposition reported at 610 A.2d 727 (Del. 1992) (TABLE).
25. Michael v. State, 529 A.2d 752, 760 n.16 (Del. 1987); Wright v. State, 513 A.2d 1310 (Del. 1986); Weber v. State, 457 A.2d 674, 682 (Del. 1983); Lewis v. State, No. 397, 1990, slip op. at 2-3, Christie, J. (Del. Oct. 1, 1991) (ORDER), disposition reported at 604 A.2d 417 (Del. 1991) (TABLE); Wei v. State, No. 510, 1988, slip op. at 5-6, Holland, J. (Del. Dec. 20, 1989) (ORDER), disposition reported at 571 A.2d 788 (Del. 1989) (TABLE); Smart v. State, No. 242, 1985, slip op. at 4, Walsh, 3. (Del. Sept. 12, 1986) (ORDER), disposition reported at 515 A.2d 398 (Del. 1986) (TABLE).
26. Wright v. State, 513 A.2d 1310, 1314 (Del. 1986).
26.1. D.R.E. 608(b).
26.2. Binaird v. State, 967 A.2d 1256, 1260 (Del. 2009); Garden v. Sutton, 683 A.2d 1041, 1043-44 (Del. 1996); Snowden v. State, 672 A.2d 1017, 1025 (Del. 1996).
27. Hamill v. Miller, 476 A.2d 161, 162 (Del. 1984).
28. Wallace v. State, 211 A.2d 845, 848 (Del. 1965).
29. Martin v. State, 346 A.2d 158, 160 (Del. 1975).
29.1. Estate of Krieger v. AmGuard Insurance Co., C.A. No. K17C-11-003, slip op. at 7-8, Clark, J. (Del. Super. Feb. 25, 2021).
© 2010 David L. Finger