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Service of Process Outside the United States: A Basic Overview

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written by NITA guest bloggers Tereza Horáková and Michael J. Dale

Over the last couple of decades, international commerce has experienced a dramatic boom. Such an environment quite naturally provides fertile ground for transnational litigation. For example, suppose that an American owner of a chain of sports bars visits the hidden gem of Central Europe, the Czech Republic. Stunned by the delicious taste of the local “liquid gold,” she enters into a long-term contract for shipments of Czech beer, with the intent to sell the beer in her sports bars. Regretfully, the Czech contractor, albeit experienced in the beer export trade, turns out to be an unreliable partner more interested in tasting his product than conducting business. After the American owner wires the agreed payment, the shipment of beer never arrives. The American sports bars owner decides to initiate litigation in the U.S. court against the contractor, who resides in the Czech Republic.

Leaving aside the questions of subject matter jurisdiction and personal jurisdiction, one of the first crucial issues she must resolve is the question of how to serve process on the foreign defendant outside the United States. The term service of process, of course, refers to the requirement to duly notify the defendant of the initiated litigation with a copy of the complaint (or its equivalent) filed by the plaintiff and a summons issued by the court clerk commanding the defendant’s appearance[1]. In fact, proper service of process in compliance with constitutional and statutory requirements is a necessary prerequisite to establish jurisdiction[2]. Only with proper service may the court be sure that the defendant has been made aware of the claims against it, and of the need to answer those charges in order to avoid entry of a default judgment. Accordingly, all plaintiffs must at one point or another deal with the issue of service of process.

A key question that this blog post discusses is, how do you do that? This post provides a basic overview of the most utilized methods of service of process on defendants outside the U.S. In turn, it analyzes the main issues related to each of the described methods in federal and state proceedings.

Federal Proceedings
The rules governing service of process in federal proceedings are found in Rule 4(f) of the Federal Rules of Civil Procedure. By a cross-reference, the framework set out in Rule 4(f) applies to both natural persons and legal entities[3].

The primary method of service is by any internationally agreed means of service reasonably calculated to give notice, such as that authorized by the Hague Convention on the Service of Judicial and Extrajudicial Documents[4]. In case there is no internationally agreed means, the process is to be served by a method that is reasonably calculated to give notice, such as in a manner prescribed by the law of the foreign country where the service is to be executed, or as directed by the respective foreign authority in response to a letter rogatory, or by personal delivery or by mail requiring a signed receipt, provided that such ways are not prohibited by the foreign country’s law. Lastly, Rule 4(f) allows any other means ordered by the U.S. courts which are not prohibited by international agreements.

Internationally Agreed Upon Means of Service
The internationally agreed means include two important multilateral treaties, the Hague Convention and the Inter-American Convention. As ratified international treaties, the Supremacy Clause grants them the status of the supreme law of the land[5]. Whether the respective international treaty automatically preempts all other methods of service must be determined on a case-by-case basis based on the language of the treaty[6].

The Hague Convention
Possibly the most important platform for service abroad is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter Hague Convention)[7]. Its popularity may be attributed to its efficiency, with 66 percent of the requests being executed within two months (hereinafter Outline)[8]. As of December 2015, there were sixty-nine signatories including the U.S. and the Czech Republic[9].

For the Hague Convention to be applicable, the document to be transmitted from one signatory state to another must relate to a civil or commercial matter and the address for the recipient of the service must be known[10]. U.S. courts have interpreted the language in the Hague Convention as exclusive[11]. Therefore, if all of the requirements are met the convention must be applied and preempts the use of all other methods of service[12].

The Hague Convention provides one main and several alternative channels of transmission of the documents to be served. The main channel is from the judicial officers of the requesting country (referred to as “state”) to the so-called Central Authority of the receiving country. All signatory countries must denominate a Central Authority that both receives and executes requests for service of process[13]. To make a request, one must file the Hague Convention Form USM-94 available in any U.S. Marshals Service office together with two copies of the documents to be served (hereinafter Practice Note)[14]. The request can only be forwarded to the Central Authority (in the U.S., it is the Department of Justice) from what is described in the convention as a “competent authority.”[15] In the U.S., the competent authority includes any court official or attorney[16]. The service rendered by the Central Authority is generally free of charge, but some jurisdictions require a translation of the documents to be served[17].

The Hague Convention further furnishes several alternative channels of transmission, most importantly the international postal channels and direct service through an agent of the receiving state[18]. There is a split in the U.S. courts as to whether the postal channels relate only to judicial documents such as motions or to service of process as well. Ultimately, one must be cautious to check the position of the circuit where the action is filed[19]. Service through an agent means service through the judicial officers, officials, or other “competent persons” of the state of destination[20]. The latter phrase has been construed as anyone who would be competent to serve process within the destination state under that state’s law[21].

Once the service is executed, the chosen agent is required to provide the party requesting the service with evidence of the service[22]. The party must file the evidence with the court where the litigation is pending as a proof of extraterritorial service[23]. The procedure for filing the proof is dependent on local rules of procedure and varies from state to state[24].

Inter-American Convention
The other pivotal international treaty is the Inter-American Convention on Letters Rogatory and its Additional Protocol, adopted in 1975 in Panama (hereinafter Inter-American Convention)[25]. The Inter-American Convention constitutes an important supplemental means of service in countries of the Central and South Americas, which are mostly not a party to the Hague Convention. The Inter-American Convention constitutes a non-exclusive method of effecting service between its signatories[26].

Like the Hague Convention, the Inter-American Convention applies in proceedings in civil and commercial matters[27]. However, the Inter-American Convention allows the signatories to extend its applicability to other areas as well[28]. So far, only Chile has made use of this opportunity and broadened the scope to cover criminal and administrative cases[29].

With respect to channels of transmission, the Inter-American Convention is limited to letters rogatory—in other words, official requests from one state to another to assist with the administration of justice[30]. All signatories must establish a Central Authority for receiving requests and executing the service[31]. A party wishing to make a request for service must file Form USM-272 and 272A and the documents to be served, all in three copies. The party must obtain the seal and signature of the court clerk that issues the process, as well as the signature and stamp of the Central Authority of the country in which the court sits, which poses an extra financial burden. Furthermore, all documents to be served must be translated into the language of the destination country[32].

The Inter-American Convention has been subject to criticism. Some states have failed to designate Central Authorities at all, while others claim not to receive requests transmitted by the U.S. Central Authority[33]. Moreover, the process is said to take up from six months up to a year—that is, when it actually works.

Other Means
When there is no applicable international treaty or when the treaty is non-exclusive (such as the Inter-American Convention), service may be executed by any of the procedures under federal Rule 4(f)(2) and Rule 4(f)(3), provided they are reasonably calculated to give notice of the service.

  • Law of the foreign country – Rule 4(f)(2)(A). Generally, a plaintiff cannot choose a method of service in a foreign country that violates the law of that country[34]. It is advisable to choose a method that conforms to the local practice.
  • Letter rogatory or letter of request – Rule 4(f)(2)(B). Letters rogatory are the oldest bilateral procedure for obtaining information in a foreign jurisdiction[35]. Also known as letters of request, they are formal requests from a court in which an action is pending to a court in a foreign country seeking international judicial assistance[36]. In some countries, service by letters rogatory is the only recognized method of service. Unlike the above mentioned international conventions, letters rogatory may accommodate service in criminal proceedings as well. However, letters rogatory are a time-consuming, cumbersome process and need not be utilized unless there are no other options available, given the routine time delays of up to a year or more.
  • Personal service by agent – Rule 4(f)(2)(C)(i). Provided that the foreign country’s law permits such a method, personal service by a local agent may prove to be the most expeditious way of service. Lists of persons available for service abroad are accessible at the U.S. embassies and consulates. Due to the intricacies of various foreign legal systems, it is advisable to consult with a local attorney.
  • Service by mail – Rule 4(f)(2)(C)(ii). Provided that the foreign country’s law permits such a method, service by mail with a signed receipt is a viable option in many countries in the world.
  • Court-ordered means – Rule 4(f)(3). The courts may order such methods of service that are not prohibited by international agreements even if not explicitly recognized by them.

Service in State Court Proceedings
In case the American owner of the sports bars decides to commence the action in a state court, the analysis is somewhat similar. The preemptive powers of international treaties apply to proceedings in the federal courts as well as state courts[37]. If there is no applicable treaty, the respective state law where the action is filed governs[38]. Naturally, the procedural rules regarding extraterritorial service widely vary from state to state.

For example, New York, California, and Florida laws allow process to be served outside of the state in the same manner as service is made within the state[39]. In addition, New York law allows process to be served outside the state by either a New York resident who is authorized to serve process within New York or anyone authorized to serve process under the laws of the foreign country[40]. California supplements the regular methods by service by first-class mail, postage prepaid, requiring a return receipt together with a presumption of delivery on the tenth day after such mailing[41].

Conclusion
For more detailed discussion of the methods of service of process outside the United States, further information may be found at the websites of the Department of State, Hague Convention, or the Practical Law Company Practice Note.

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Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at tereza@hotmail.cz.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

 

[1] Legal Information Institute, Service of Process, https://www.law.cornell.edu/wex/service_of_process (last visited Feb. 12, 2016).

[2] Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444-45 (1946).

[3] Fed.R.Civ.Pro. 4(h)(2).

[4] Fed.R.Civ.P. 4(f).

[5] U.S. Const. art. VI, cl. 2; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

[6] Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 640-42, (5th Cir. 1994).

[7] Hague Service Convention, Nov. 15, 1965, 20 U.S.T. 361.

[8] Outline: Hague Service Convention, https://assets.hcch.net/docs/f4ccc07b-55ed-4ea7-8fb9-8a2b28549e1d.pdf (last visited Feb. 12, 2016).

[9] Status Table of the Contracting Parties, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Feb. 12, 2016).

[10] Outline, supra, n. 8, at 1.

[11] Shenouda v. Mehanna, 203 F.R.D. 166, 170 (D.N.J. 2001).

[12] Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 470 (D.N.J. 1998).

[13] Hague Convention, supra, n. 7, at art. 2.

[14] Practical Law Company, International Litigation: Serving Process outside the US, Practice Note, http://www.proskauer.com/files/News/5b04a3dd-34ab-40f4-a64f-3bc52468277a/Presentation/NewsAttachment/db2a546c-d01c-4ce3-815a-43df368f05c8/Proskauer_122011_Practical%20Law%20Company_Scullion_Berkowitz_McNew_International%20Litigation_Serving.pdf(last visited Feb. 12, 2016), at 8.

[15] Hague Convention, supra, n. 7, at art. 3.

[16] USA Central Authority and Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=279 (last visited Feb. 12, 2016).

[17] Outline, supra, n. 8, at 2; Hague Convention, supra, n. 7, at art. 12.

[18] Hague Convention, supra, n. 7, at art. 10.

[19] Compare Brockmeyer v. May, 383 F.3d 798, 803 (9th Cir. 2004), with Bankston v. Toyota Motor Co., 889 F.2d, 172, 173-74 (8th Cir. 1989).

[20] Hague Convention, supra, n. 7, at art. 10(c).

[21] Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998).

[22] Hague Convention, supra, n. 7, at art. 6.

[23] Fed.R.Civ.P. 4(l)(2).

[24] Practice Note, supra, n. 14, at 4.

[25] Inter-American Convention on Letters Rogatory, Jan. 30, 1975, S. Treaty Doc. No. 27 (1984), reprinted at 28 U.S.C. § 1781.

[26] Hein v. Cuprum, S.A. de C.V., 136 F. Supp. 2d 63, 70 (N.D.N.Y. 2001).

[27] Inter-American Convention, supra, n. 25, art. 2.

[28] Id. at art. 16.

[29] Inter-American Convention on Letters Rogatory, General Information on the Treaty, http://www.oas.org/juridico/english/sigs/B-36.html (last visited Feb. 12, 2016).

[30] Ralph Folsom, Principles of International Litigation and Arbitration (Concise Hornbook Series), 323 (1st ed. 2015).

[31] Practice Note, supra, n. 14, at 8.

[32] Inter-American Convention, supra, n. 25, art. 5.

[33] Practice Note, supra, n. 14, at 8.

[34] David J. Levy, International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts, 6 (2004).

[35] Compulsion Over Comity: The United States’ Assault on Foreign Bank Secrecy, 12 NW. J. INT’L L. & BUS. 454, 471.

[36] Service of process, https://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html (last visited Feb. 12, 2016).

[37] U.S. Const. Art. VI, cl. 2.

[38] Practice Note, supra, n. 14, at 10.

[39] N.Y. C.P.L.R. 313; West’s F.S.A. § 48.194; West’s Ann. Cal. C.C.P. § 415.40.

[40] N.Y. C.P.L.R. 313.

[41] West’s Ann. Cal. C.C.P. § 415.40.

March 2016 Executive Director’s Letter: Advice and Democracy

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Lockwood_KarenAs ED, I am dedicated, as is NITA, to non-partisan activity and viewpoints. This letter is apolitical. It supports our stable, three-branch form of government.

I imagine that you, as am I, are meditating almost involuntarily on the following question:

“How did we get here?”

. . . to the Senate’s possible no-action in its constitutional role to “advise and consent” after a president nominates a new Supreme Court justice.

. . . to a presidential election cycle where the sparring seems abstract and “values” oriented, with not much of a nod at good governance or even the principles of a balanced, three-branch, democratic government.

. . . to the U.S. courts facing assumptions from the citizenry that judges vote their politics, whereas in truth judges and Justices apply the rule of law and guard the fact finding with rules of due process?

As I listen to the news, I reflexively return to two words. Education and Internet.

Education is good. We need more of it on the subject of how our democracy works. How else can citizens equip themselves to resist explosive campaigning about vague values du jour and exaggerated promises of surprising actions? A decade ago, Justices Breyer, Souter, and O’Connor mutually raised the alarm on the need for citizen education. They fanned out to urge lawyers to be ambassadors for the U.S. Constitution. The ABA joined them, too, with its citizen education initiatives in public schools. Lawyer groups did as well. But that education requires sustained energy, evaluation, and focus. Our national focus diverted to the recession, budgets tightened, and we swung our energy in different directions.

The Internet is a tool. But it tempts us to shop for opinions of others in places where the readers are already in agreement without a contrary voice. It teaches young learners to seek information in sound bites and summaries that do not require deep thinking. It creates seeming consensus without personal interaction by those who think they agree, and worse yet, without consideration of those who might disagree. So we create a national habit of yelling at those who do not consent to agree with our unexamined “values.” We argue to win, not to learn or to listen or to move forward.

My letter today is a call to the legal community to reach out and teach our communities about our democracy. To show that its three branches are given allocated responsibilities, each having checks and balances on the other two. If we allow each branch to work rather than halting its process, accusing it of imagined wrongs, or resorting to angry rhetoric, the government can be trusted to govern effectively.

How did we get here? I don’t really care.

How do we draw back from it? The lawyers across the state bars can make a difference. We have a few months left. Let’s do it.

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

Welcome the Newest NITA Advocates

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NITA is proud to announce the 2015 4th quarter recipients of the Advocate Designation. These designations are awarded to a person who has taken a well-rounded set of courses, proving they are serious about trial advocacy.

advocates_header copy
 

  • David Wilkerson | Van Winkle Law Firm
  • Andrew McBride | Adams & Reese LLP
  • Haven G. Ward
  • Thomas Boothe | Law Office of Thomas Boothe
  • Michael Harmon | Smith Hulsey & Busey
  • Kent Luckey | USAA
  • Carol Brockmann | Valley County Prosecuting Attorney’s Office
  • James Stone | Stone Law Firm

If you have any questions on how you can receive the NITA Advocate or NITA Master Advocate Designation, please review the information on our Advocate Designations page, or email customerservice@nita.org.

NITA Movie Review: AN ODD COUPLE AT THE SUPREME COURT

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Written by guest blogger Judge McGahey

firstMondayInOctoberLast month I reviewed The Magnificent Yankee, an autobiographical movie about Justice Holmes. Since the question of Justice Scalia’s replacement is still in the new, for this month’s review, I picked a completely fictional movie about the nomination of the first woman to the Supreme Court: First Monday in October[1] from 1981, directed by Ronald Neame and starring Walter Matthau and Jill Clayburgh.

Clayburgh plays Ruth Loomis, a younger, conservative California jurist who becomes the first woman nominated to the United States Supreme Court. This being Hollywood, we see her receive the news of her nomination at a tennis match, wearing a skimpy tennis outfit. Loomis is confirmed and joins the Court, where she immediately encounters the much older, crusty, extremely liberal Justice Daniel Snow, played by Matthau. Not surprisingly, conflict ensues. Loomis and Snow clash on almost every issue, although the main “case in the plot is one about pornography[2]. Again, this being Hollywood, Snow and Loomis develop a respect and friendship and everything works itself out.

The clash of opposites is a classic movie device. We see it in countless films, including The Odd Couple, in which Matthau played the slovenly Oscar Madison to Jack Lemmon’s net freak Felix Ungar. While Matthau’s portrayal of Justice Snow is clearly supposed to be a reference to the real-life Justice William O. Douglas, it’s hard to believe that the producers of First Monday in October weren’t hoping that audiences wouldn’t think Oscar Madison when seeing Matthau in the movie.

First Monday in October was based on a Broadway play written by Jerome Lawrence and Robert E. Lee, who also wrote the screenplay for the film[3]. The play was not a huge success, in spite of the fact that Henry Fonda played Justice Snow in the original Broadway production. The movie version wasn’t a critical smash either. It wasn’t nominated for any Oscars, although both Clayburgh and Matthau were nominated for Golden Globes.

But there is one interesting “true history” aspect of First Monday in October. Paramount had originally planned to release the movie in February, 1982. However, in July, 1981. President Reagan nominated Sandra Day O’Connor as the actual first woman on the real Supreme Court. The studio rushed First Monday in October into theaters in August, 1981, to take advantage of the publicity surrounding Justice O’Connor’s nomination.
First Monday in October isn’t great art. Its plot devices are a little obvious and its depiction of how men and women relate to one another are more than a little dated. But it has some good laughs and is a fun way to kill some time.

But it might also make you a little sad. For all the philosophical clashes between Loomis and Snow, the underlying theme is one of respect for the law, respect for the Court and, ultimately, the respect for conflicting opinions honestly held. When we look at the way that many people think and talk about the Court now, the difference is obvious. Perhaps we’ll see a return to measured discourse about this Supreme Court in the future.
But not in the near future, I’m afraid.

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[1] The title is an obvious reference to the date each year of the beginning of a new Supreme Court term.

[2] One of the problems for lawyers watching this movie is that the test applied to measure whether something is or isn’t pornography was seriously outdated even at the time this movie was released.

[3] If those names sound familiar, they should. Lawrence and Lee also wrote the play and screenplay for Inherit the Wind.

What Does It Mean to Use Extrinsic Evidence on Cross-Examination?

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written by NITA guest bloggers Andree Quaresima and Michael J. Dale

Function and Scope of Cross-Examination
Cross-examination is an important part of trial proceedings. There are several purposes connected with cross-examination, such as testing the credibility of the witness, inquiring into relevant issues and facts to build one’s case, and/or challenging the opposing party’s theory of the case. To achieve these objectives, there are different examination tools available to lawyers. The introduction of extrinsic evidence is undeniably one of them. Evidence that is not legitimately before the court is defined as extrinsic. In particular, for the scope of the following discussion, extrinsic is used to indicate evidence other than the questions asked to the witness being cross-examined; it can be a document, another witness’s testimony, a videotape, an audio recording, and so on. However, the scope of cross-examination is limited, and this fact affects the introduction of extrinsic evidence. This blog post discusses the use of extrinsic evidence at trial.

There are two approaches determining the scope of the subject matter of cross-examination. They are the American rule—the majority approach, as well as the one adopted in the Federal Rules of Evidence—and the English rule. Under the American rule, cross-examination is limited to the subject matter of the direct examination and any matters affecting the credibility of the witness. Under the broader English rule, a witness may be cross-examined on any relevant matter. Yet, even in the majority of jurisdictions following the American rule, large discretion is left to the court to allow evidence beyond the stated subject matter. The jurisdictions following the English Rule are Alabama, Kentucky, Missouri, New Hampshire, North Carolina, Ohio, and Texas. Minnesota is a peculiar example because its law represents a mix of the two approaches: the English rule applies only to criminal cases, while the American rule governs any other case. See MINN. R. EVID. 611.

The American Rule
Given the undeniable predominance of the American rule throughout the various jurisdictions in the United States, the discussion focuses on how to introduce extrinsic evidence on cross-examination given the limiting nature of the American rule. The limitation on cross-examination under the American Rule is most commonly referred to as barring questions beyond the scope of direct examination. It is based upon the proposition that the parties should develop their theory of the case by calling their own witnesses. See, e.g., Penn v. State, 574 So.2d 1079 (Fla. 1991). Evidence sought to be introduced on cross-examination that is beyond the scope of direct examination is also referred to as collateral evidence. The purpose of the American rule is to prevent undue confusion of issues and unfair surprise by extrinsic testimony. See People v. Schwartzman, 24 N.Y.2d 241 (N.Y. 1969). Under the collateral matter rule, the cross-examiner is bound by a witness’s answers to questions on collateral matters, except for the witness’s general reputation for truth and veracity. See Casa de Meadows, Inc. v. Zaman, 908 N.Y.S.2d 628 (N.Y. App. Div. 2010). In other words, counsel cannot introduce extrinsic evidence to contradict a witness’s statement concerning collateral matters. A collateral matter is one that has no relevancy to prove or disprove any issue in the action. People v. Rodriguez, 971 P.2d 618, 622 (Cal. 1999).

The boundaries of cross-examination are defined in Federal Rule of Evidence 611—mirrored, for example, in section 90.612 of Florida Codes—which states, “[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.” Therefore, the introduction of extrinsic evidence on cross-examination is not always allowed, and the discerning factor is the nature of the evidence that is sought to be introduced. In the end, the admissibility of the evidence depends on the purpose for which admission of the evidence is sought.

The Federal Rules and Examples
A common scenario in which counsel seeks to introduce extrinsic evidence, such as a document, a videotape, or the results of a drug test, is when counsel wants to impeach the witness. For example, opposing counsel may be cross-examining a witness who denies having written a letter to the defendant. The lawyer would try to introduce into evidence the letter itself to show that the witness was lying. Alternatively, even before questioning the witness about the underlying facts, counsel may seek to introduce extrinsic evidence to discredit the witness’s credibility. For such purposes, the Federal Rules of Evidence allow the introduction of extrinsic evidence on cross-examination only if it is related to the witness’s character for truthfulness. FED. R. EVID. 608. If the witness denies making a determined assertion—as in the previous example—counsel can introduce extrinsic evidence proving the prior inconsistent statement. FED. R. EVID.614. The rules also allow the use of extrinsic evidence to show prior conviction of the witness. FED. R. EVID. 610.

As a general rule, since cross-examination is limited to the scope of direct examination, extrinsic evidence cannot be introduced when it relates to collateral matters. Therefore, the court would generally consider inadmissible extrinsic evidence to rebut a witness’s statement on a collateral matter.

Of course, a basic exception to this rule of limiting cross-examination to that covered on direct is when the witness himself opens the door for questioning beyond the scope of the direct examination. A witness opens the door by making a specific assertion unrelated to the case at bar; at that point, counsel on cross-examination may introduce extrinsic evidence—that would otherwise be collateral and hence not admissible—to contradict such factual statement. Nonetheless, the limitations impose on the scope of cross-examination are still subject to the court’s discretion. See Wilson v. State, 72 So.3d 331, 334 (Fla. App. 2011).

Examples from the States
It is worth briefly examining several major jurisdictions’ approach to the issue. The analysis will focus on Florida, California, and New York.

Florida
In theory, the law in Florida is slightly different from the Federal Rules, but the results are almost the same. Indeed, even though section 90.609 of the Florida Statutes is the equivalent to Federal Rule 608, there is no mention of the use of extrinsic evidence. Rather, sections 90.610 and 614 of the Florida Statutes allow extrinsic evidence of prior convictions and prior inconsistent statements, mirroring the content of the Federal Rules almost without any change. Additionally, the collateral matter rule applies in Florida as well. The test for determining whether a matter is collateral and not admissible is whether the impeaching evidence would be admissible for any purpose other than the witness’s contradiction.

There are two kinds of evidence that pass this test in Florida: 1) evidence that is relevant to independently prove a material fact or issue, and 2) evidence that would discredit a witness by pointing out the bias, corruption, or lack of competency of the witness. An example of the first category is when a defendant is charged with a certain crime where the intention to defraud is a crucial element (grand larceny, for example), and the prosecutor on cross-examination of the defendant tries to introduce documentary evidence of prior convictions. Where the documents proving previous crimes tend to prove defendant’s intent to defraud, the court would allow them into evidence.

As for the second category, it concerns cross-examination as to bias regardless of whether the subject has been mentioned on direct examination. Therefore, the admission of extrinsic evidence of this second type is broader than the first type. Indeed, bias is considered always material and never collateral. However, it is necessary to make the following distinction. If the witness denies bias on cross-examination, counsel may introduce extrinsic evidence contradicting the witness’s statements. If the witness admits the facts as to bias, counsel is prohibited from introducing extrinsic evidence of bias. FLA. STAT. § 90.608(2). There is a further limitation: evidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact. Breedlove v. State, 580 So.2d 605, 609 (Fla. 1991). When counsel seeks to introduce exhibits during cross-examination, some level of discretion is left to the court. However, courts are not always “generous” because, in some cases, they refused to allow counsel to introduce exhibits on cross-examinations. See King v. State, 89 So.3d 209 (Fla. 2012).

Sometimes the admissibility of extrinsic evidence in Florida has been described as a pure relevancy issue. Such an approach seems closer to the English rule, at least nominally. For example, one appellate court has stated that every time material is offered into evidence to attack witness’s credibility on a material issue, such evidence is relevant according to section 90.401 of the Florida Statutes. Special v. Baux, 79 So.3d 755, 759 (Fla. App. 2011). On the other hand, when the trial court in Special considered such evidence as collateral impeachment, the appellate court interpreted such language as “another way of saying that the line of questioning was irrelevant,” and based its reasoning on the relevancy issue. Id.

California
The California rules of evidence are organized differently from the Federal Rules. The numbering and the titles are distant from the language used in the Federal Rules. However, the following overview of these state systems shows that regardless of the formal organization of the rules, courts tend to follow the federal principles and the results do not considerably differ.
California’s legislation, notwithstanding the formal organization and naming of the rules, mirrors the federal system. California is stricter than Florida in limiting the scope of cross-examination. Even though section 773 of the California Evidence Code states: “A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs,” the courts’ interpretation restricts this delineation of the scope of cross-examination. The questions on cross-examination are still subject to a relevancy check: only relevant issues are admitted. Even though irrelevant evidence was presented on direct examination because of the failure to properly object, the door is not open to questioning into such matters on cross-examination. See, e.g., People v. Smithey, 978 P.2d 1171 (Cal. 1999); People v. Johnson, 40 Cal. Rptr. 105 (Cal. App. 1964).

The collateral matter rule applies in California as well. Here, the test for relevancy on cross-examination is whether the question calls for a response that might have been proved as an independent fact. However, collateral matters are questionable for the purpose of impeachment. The most common situation in which the issue of extrinsic evidence arises is when counsel seeks to impeach the witness in reply to the witness’s denial of some facts or previous statements and introduces evidence proving that the witness is lying. Section 770 of the California Evidence Code allows the introduction of a witness’s prior inconsistent statement when 1) the witness was examined and was given the opportunity to explain or deny, 2) the witness has not been excused from giving further testimony in the action.

New York
The layout of the rules of evidence in New York is different from the other states and the Federal Rules. Interestingly, the New York rules of evidence are included in the rules of procedure and, therefore, are divided between civil and criminal. Notwithstanding this structure, courts tend to apply the same principles governing the federal system and operation of evidence rules, and refer to the Federal Rules to interpret the matters.

Generally, when a witness is testifying to a fact material to the case, the adverse party may challenge the witness either during cross-examination or by introducing other evidence. New York follows the typical collateral matter rule—the introduction of extrinsic evidence is allowed only to reply to the witness’s answers on non-collateral matters. See Casa de Meadows, Inc. v. Zaman, 908 N.Y.S.2d 628 (N.Y. App. Div. 2010). A matter is deemed collateral when 1) the issue is not relevant to some issues in the case other than credibility; 2) proof of the issue is not independently admissible to impeach the witness, and if proven, the issue would show only that the witness had acted deceitfully on a prior unrelated occasion. Beyond these two clear cases of collateral matters, the determination of what evidence can be introduced for the purpose of impeachment lies within the discretion of the trial court. In New York, courts allow extrinsic evidence on collateral matters for impeachment purposes when it relates to the witness’s general reputation for truth and veracity.

Keeping an Eye on the Hearsay Problem
Once the admissibility of the extrinsic evidence has been determined, there may still be an issue of hearsay that may lead to the exclusion of the evidence. For instance, on cross-examination of a plaintiff in a motor vehicle accident, defendant’s counsel seeks to introduce the accident report to prove his case and/or contradict the plaintiff. In such cases, the accident report may be admitted because it may contain an admission of a party opponent. See McCoy v. Gorenstein, 282 A.D. 984, 125 N.Y.S.2d 683 (3d Dep’t 1953). Otherwise, the evidence would be excluded because of the hearsay rule. This example is a simple reminder of the necessity to take into consideration hearsay, even though the extrinsic evidence is otherwise admissible because it is non-collateral, relates to bias, or is aimed at proving the witness’s character for truthfulness.

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Andree Quaresima is a graduate of Roma Tre University in Rome, Italy, and is a dual degree student at Nova Southeastern University College of Law. She can be reached at aq91@nova.edu.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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