29th Mar 2019

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In general

Cross-examination is described by Professor Wigmore (5 Wigmore, Evidence (3rd Ed. 1940) § 1367, page 29) as “the greatest legal engine ever invented for the discovery of truth”. [People v. Reynolds (1984) 152 Cal. App. 3d 42, 46] Cross-examination has two purposes. Its chief purpose is to test the credibility, knowledge and recollection of the witness. The other purpose is to elicit additional evidence. [Fost v. Superior Court (2000) 80 Cal. App. 4th 724, 733; 3 Witkin, California Evidence (3d, 1986) § 1873, page 1827] For subjects on cross-examination of an adjuster or claims supervisor see § B2 BAD FAITH LAWSUIT – FIRST PARTY [§ B2:3.2.2 Cross-examination of adjuster]; § B3 BAD FAITH LAWSUIT – THIRD PARTY [§ B3:2.02 Bad faith refusal to settle, cross examination of adjuster].

Right as opposed to privilege

Because cross-examination relates to the fundamental fairness of the proceedings, cross-examination is said to represent an “absolute right” not merely a “privilege”. Denial or undue restriction thereof, may be reversible error. [Fost v. Superior Court (2000) 80 Cal. App. 4th 724, 733]

Discrediting a witness

Cross-examination of a witness is a matter of right. Its permissible purposes, among others, are that facts may be brought out tending to discredit the witness by showing that his testimony in chief is untrue or biased. An attorney cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory, and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. [Fost v. Superior Court (2000) 80 Cal. App. 4th 724, 734]

Prejudice

Prejudice ensues from a denial of the opportunity to place a witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. In short, cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. [Fost v. Superior Court, supra; Poeointer v. Texas (1965) 380 U.S. 400, 405]

Remedy: witness refusal to submit to cross-examination

Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witness’s testimony on direct. In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Fost v. Superior Court, (2000) 80 Cal. App. 4th 724, 736; 3 Witkin, California Evidence (3d, 1986) § 1877, page 1831] This rule applies even where the refusal to answer is based on a valid claim of privilege. [Fost v. Superior Court (2000) 80 Cal. App. 4th 724, 736 (refusal of reporter to answer question based upon the reporter’s shield law under Evidence Code § 1070)] Where striking the testimony may not suffice if incurable prejudice would result, the proper remedy may be the granting of a mistrial. [Fost v. Superior court (2000) 80 Cal. App. 4th 724, fn. 6 citing Witkin. See also Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal. App. 5th 948, 980 (invoking the 5th amendment privilege)] See § F21.01 FIFTH AMENDMENT – INVOKING OF.

References in bold are to Mr. Cornblum’s text CALIFORNIA INSURANCE LAW DICTIONARY AND DESK REFERENCE, 2018 Edition, published by ThomsonReuters (1-800-344-5008 to order 3-Volume text).

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