When Georgia adopted a new evidence code on January 1, 2013, it embraced the rule on scope of cross-examination which local courts have traditionally followed. This is the wide-open rule which permits the cross-examiner to range across the entire case, no matter how limited the direct exam. Subjects foreign to the direct can be freely explored, limited only by the rule of relevancy.
Commentators have associated the majority, more limited cross-examination methodology with American jurisprudence and the wide-ranging approach with English courts. Reflecting this divide, the Supreme Court of South Dakota recognized "two principal schools of thought" when it comes to the appropriate scope of final argument, essentially branding the debate as between two distinct scholarly camps.
These surface most dramatically when a defendant in a criminal case takes the witness stand. In jurisdictions like Georgia, favoring the English or British rule and wide-open cross-examination, most defense attorneys stand back and watch while a prosecutor cross-examines all over the map. Absent are objections laced with Fifth Amendment overtones. This Article suggests an innovative approach based upon the Constitution. When the accused adheres to a narrow and carefully tailored approach during his direct examination, he may leave important topics untouched in his testimony. On these subjects, he has not used the direct to advantage himself, beyond those matters delved into during his direct. Accordingly, the argument contends, it is unfair to require him to address these topics on cross-examination. Indeed, to compel him to talk on heretofore-unaddressed topics violates the defendant's privilege against forced self-incrimination.
The constitutional problem identified here is discussed in the context of the Georgia experience because Georgia is the latest state to pass federal rules, but then to vary the cross-examination formula. A large handful of other states have done the same thing. This deviation from federal principles is an effort by dissenting states to engraft a wide-open crossexamination policy on the federal pattern. This step introduces disharmony into evidentiary practice, as will be explained in Part IV of this Article, infra. It also raises deep constitutional concerns. Because some other states have used the Georgia formula, the issues discussed hereafter have broad national significance. The analysis presented in the following pages impacts Ohio and Tennessee, for example, because they are jurisdictions, like Georgia, which have embraced unlimited cross-examination.
Part II of this Article explores the nature of the privilege against self-incrimination. Both the federal and the state patterns are explained. In Part III, the Georgia rule controlling scope of cross-examination is compared to the rule which operates in federal courts. The special situation of the accused as a witness is addressed in Part IV. Decisions from the United States Supreme Court and other high profile cases which suggest that the narrow cross-examination rule has a constitutional basis are revealed. The Article concludes with a
Ronald L. Carlson and Michael S. Carlson,
Unconstitutionality and the Rule of Wide-Open Cross-Examination: Encroaching on the Fifth Amendment When Examining the Accused
, 7 J. Marshall L.J. 269
Available at: http://digitalcommons.law.uga.edu/fac_artchop/988