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Editor: Colin Miller

The Difference Between the Federal & South Carolina Rules on the Scope of Cross-Examination

By Colin Miller

Today, I was teaching Federal Rule of Evidence 611 and was reminded of the difference between subsection (b) in the federal rules and its South Carolina counterpart. Federal Rule of Evidence 611(b) states that

Cross-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.

Conversely, South Carolina Rule of Evidence 611(b) states that

A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.

So, does this difference matter?

Not really. Assume that Dana is on trial for burglary and Carla testifies for the defense as a character witness. Thereafter, the prosecutor, who has a good faith reason to believe that Carla assisted Dana in the burglary. Under South Carolina Rule of Evidence 611(b), the prosecutors could ask Carla questions about her role in the burglary because “[a] witness may be cross-examined on any matter relevant to any issue in the case.”

Conversely, under Federal Rule of Evidence 611(b), the prosecutor’s “[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.” Therefore, the prosecutor could question Carla about her character testimony and impeach Carla’s credibility. But the prosecutor could not go “beyond the scope” of direct examination by asking Carla about her involvement in the crime.

That said, as the second sentence of Federal Rule of Evidence 611(b) makes clear, “[t]he court may allow inquiry into additional matters as if on direct examination.” Therefore, the prosecutor would simply need to ask the judge for leave to question Carla about the crime based upon the good faith belief that she was involved.

Thus, the result is the same, but the prosecutor would need to ask for leave under the federal rule but would not need to ask for leave under the South Carolina rule.

-CM