Litigation Strategy Trial Strategy

The “Opening the Door” Fallacy

200368976-001It is a popular fallacy that if testimony is given on a subject during direct examination, this will “open the door” to unrestricted cross-examination about that matter; making evidence admissible that would otherwise be inadmissible. This is actually only true in certain limited circumstances.

The fact that the evidence introduced during direct examination was itself excludable (e.g., because it violated the hearsay rule) doesn’t give the cross-examiner license to present inadmissible evidence. As the court stated in People v McDaniel (1943) 59 CA2d 672, 677:

[L]egitimate cross-examination does not extend to matters improperly admitted on direct examination. Failure to object to improper questions on direct examination may not be taken advantage of on cross-examination to elicit immaterial or irrelevant testimony.

Similarly, failure to object to improper questions on direct examination may not be used to elicit highly prejudicial evidence on cross-examination.

There are only two special situations in which it can accurately be said that the door is opened (but even in these situations, the extent to which the door is opened to otherwise inadmissible matter is quite narrow):

  1. To offset highly prejudicial evidence, i.e., curative admissibility. Under certain exceptional circumstances, the cross-examiner may introduce otherwise inadmissible evidence to offset the effect of highly prejudicial evidence that might have been excluded on direct examination. See, e.g., Travis v Southern Pac. Co. (1962) 210 CA2d 410, 420 (in action for damages resulting from collision between car and train, car’s driver volunteered during his direct examination that he was always conscious of speed laws; to counteract prejudicial effect of this broad declaration, court held it was proper to question him during cross-examination about his prior arrests for speeding).
  2. To put evidence in proper context, i.e., rule of completeness. Occasionally, evidence presented during direct examination is distorted by being taken out of context. The cross-examiner can counteract such distortions by putting the evidence in its proper context. See Evid C §356. See, e.g., Rosenberg v Wittenborn (1960) 178 CA2d 846 (police officer called by plaintiff testified that defendant told him he had gone through intersection at 30 miles per hour during red light; court held it was proper on cross-examination to elicit from officer that defendant had also stated that he had experienced brake failure because, by introducing evidence of part of what defendant told officer as admission against defendant, plaintiff opened door to defendant’s evidence of rest of his otherwise hearsay statement).

Although you shouldn’t assume testimony on direct has opened any doors for you on cross, keep an eye out for these exceptions because you just may fall into the narrow confines of the “opening the door” exception.

For guidance on all the issues involved when cross-examination exceeds the scope of direct examination, turn to CEB’s California Trial Objections, chap 26. For expert advice on examination generally, check out CEB’s newly-updated Effective Direct and Cross-Examination.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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