Scope of cross-examination

People v Smith, 2016 NY Slip Op 05061 (2016)

We often cross-examine medical professionals with all sorts of backgrounds.  Some have OPMC issues, some have criminal issues, some have been sued in medical malpractice cases.  The question has always been how much into what could be considered “collateral” matters can an attorney go into with a witness that has the above issues.  My view is as much as the Court allows, and the Court of Appeals has set forth an interesting framework that you should be aware of  when you go head to head with a professional witness.

“Given these central principles, prosecution witnesses — and indeed, even a testifying defendant — may be cross-examined on “prior specific criminal, vicious or immoral [*3]conduct,” provided that “the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility” (People v Sandoval, 34 NY2d 371, 376 [1974]). Of course, where a witness other than the defendant testifies, the court, in considering the parameters of permissible cross-examination, is not focused on protecting the rights of the accused, and on the concern that permitting evidence of bad conduct will serve merely to demonstrate a propensity to commit the crime charged (see People v Ocasio, 47 NY2d 55, 58 [1979]). After all, for a nondefendant witness, “neither conviction nor vindication, imprisonment nor freedom, hangs in the balance” (id. at 59). However, in all cases the trial court retains broad discretion to weigh the probative value of evidence of prior bad acts against the possibility that it “would confuse the main issue and mislead the jury . . . or create substantial danger of undue prejudice to one of the parties”(People v Corby, 6 NY3d 231, 234-235 [2005][internal quotation marks and citation omitted]; see also People v Harrell, 209 AD2d 160, 160 [1st Dept 1994], affd 86 NY2d 806 [1995]; see generally People v Dawson, 50 NY2d 311, 322 [1980]; People v Gissendanner, 48 NY2d at 548 [1979]; Sandoval, 34 NY2d at 374 [“(t)he nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge”]).

In Garrett, we concluded that “civil allegations” of misconduct in a federal lawsuit filed against a law enforcement agent “were favorable to defendant as impeachment evidence” (Garrett, 23 NY3d at 886), thereby necessarily determining that such allegations can bear on a law enforcement officer’s credibility as a witness. The defendant in Garrett argued in his criminal case that one detective in particular “coerced him into making a false confession” and “[t]he federal complaint made similar allegations against [the same detective]: although it did not explicitly allege that the confession [the same detective] procured was false, the complaint described coercive tactics [the same detective] allegedly used to extract a confession against the plaintiff’s will” (id.). This Court noted that the evidence “favored defendant’s false confession theory” in that case (id.). Nonetheless, in Garrett, we noted that the trial judge could have exercised discretion and precluded inquiry into this “favorable” impeachment evidence (id. at 892).

Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proven at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proven at a trial (see People v Sorge, 301 NY 198, 201 [1950]). Likewise, a police witness’s prior bad act that similarly has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination. Nor do allegations of police misconduct lose their relevance to a police witness’s credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral. Indeed, we have approved cross-examination on a defendant’s use of aliases and other suspect, but not criminal, conduct because”even where the proof falls outside the conventional category of immoral, vicious or criminal [*4]acts, it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or significantly reveals a willingness . . . to place the advancement of his individual self-interest ahead of principle or of the interests of society.” Walker, 83 NY2d at 461 [1984][internal quotation marks and citations omitted]).

As we indicated in Garrett, and emphasize here, law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination. The same standard for good faith basis and specific allegations relevant to credibility applies — as does the same broad latitude to preclude or limit cross-examination.

Where a lawsuit has not resulted in an adverse finding against a police officer, as is the case with these three appeals, defendants should not be permitted to ask a witness if he or she has been sued,^[FN1] if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court’s discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness.

From the above, the logical framework for analysis of the issue is clear. First, counsel must present a good faith basis for inquiring, namely the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a substantial risk of undue prejudice to the parties (see Delaware v Van Arsdall, 475 US 673, 679 [1986]; see People v Harrell, 209 AD2d 160, 160 [1st Dept 1994]).

A federal lawsuit alleging tortious conduct committed by law enforcement officials testifying as prosecution witnesses, provides an appropriate good faith basis for raising the issue. Even so, the specific allegations must be relevant to that witness’s credibility (see People v Garrett, supra; People v Daley, supra [where defendant was convicted of promoting prison contraband and menacing in the second degree arising out of an altercation with a correction officer, it was error not to permit the defendant to cross-examine the officer about circumstances underlying a federal lawsuit by another inmate accusing him of assault]; People v Jones, supra [where defendant was convicted of criminal possession of a weapon in the third degree, and defendant claimed he had been framed, it was error to prevent cross-examination of [*5]police witness about allegations in lawsuits of police brutality, false arrest and excessive force]); compare Andrew, supra at 618 [court properly exercised discretion not to permit cross-examination of police witness regarding acts alleged in lawsuit where complaint “did not allege, or even support an inference, that [ ] detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers.”]).

Nevertheless, whether to permit inquiry into such prior bad acts for impeachment purposes are discretionary calls “for the trial courts and fact-reviewing intermediate courts, and . . . generally no further review by this Court is warranted” (People v Walker, 83 NY2d at 458 [internal citations omitted]). “Because the trial courts have inherent power to control the scope of cross-examination and the use of prior bad acts is a generically accepted practice in that context, this Court will only intervene where the trial court ha[s] either abused its discretion or exercised none at all (id. at 459 [internal quotation marks and citation omitted]).

Applying those principles to these cases, we hold that the trial courts in Ingram and McGhee abused their discretion and effectively imposed an improper categorical prohibition against permissible cross-examination, although that error was harmless in McGhee. While it is a closer question with respect to Smith, any error in that case was likewise harmless.”