A MANUAL OF JURY TRIAL PROCEDURES - 2004

The court should exercise extreme caution in limiting crossexamination in criminal cases.

Limits can be placed on repetitive cross-examination in multidefendant trials. The court should caution counsel at the onset that although there may be some repetition, exhaustion of subject matter by each counsel will not be permitted. The court may require defense counsel to designate lead counsel for a particular witness. United States v. Cruz, 127 F.3d 791, 801 (9th Cir. 1997) (where defense counsel was allowed to cross-examine as to issues particular to their clients, court did not err in asking counsel to designate one attorney to conduct "main" cross-examination into basic issues), cert. denied 522 U.S.1097 (1998), abrogated on other grounds, United States v. Jimenez Recio, 537 U.S. 270 (2003) In the absence of agreement, the court may designate the appropriate order. As a rule, repetitive cross-examination on the same subject matter should not be allowed.

The court has discretion to limit cross-examination in order to preclude repetitive questioning where it determines that a particular subject has been exhausted. "The district court . . . has considerable discretion in restricting cross-examination. United States v. Marbella, 73 F.3d 1508, 1513 (9th Cir.), cert. denied, 518 U.S. 1020 (1996). Accord United States v. Dudden, 65 F.3d 1461, 1469 (9th Cir. 1995). Cross-examination may also be limited to avoid extensive and time-wasting exploration of collateral matters. The trial court has the duty to control cross-examination to prevent an undue burdening of the record with cumulative or irrelevant matters. This general duty includes a specific duty to prevent counsel from confusing the jury with a proliferation of details on collateral matters. United States v. Weiner, 578 F.2d 757, 766 (9th Cir.), cert. denied, 439 U.S. 981 (1978).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

Allowing re-cross (or re re-cross) is within the sound discretion of the trial court except where new matters are elicited on redirect, in which case denial of re-cross violates the confrontation clause. United States v. Baker, 10 F.3d 1374, 1404 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994), overruled on other grounds, United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). What constitutes new matters should be liberally construed in criminal cases. It is reversible error to impose a blanket ban on re-cross examination when new and damaging testimony has been presented on re-direct examination. United States v. Jones, 982 F.2d 380, 384 (9th Cir. 1992).