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In an effort to insure the orderly presentation of evidence, the matter of the scope of cross-examination is squarely within the sound discretion of the trial court. That does not mean, however, that once a given area was opened up on direct examination, all matters related thereto, directly or indirectly, were admissible on cross-examination. The court recognizes some restrictions on evidence admissible in cross-examination. For example, if the question is relevant and is otherwise admissible and the information solicited is within the knowledge of the witness, it should be within the sound discretion of the trial judge to determine whether or not questions on cross-examination prevent an orderly and cogent presentation of the evidence. Thus, the evidence sought to be elicited must still be "otherwise admissible." No matter how "wide-open" cross-examination may be, there cannot be admitted evidence that is otherwise not admissible. Even if the evidence is "otherwise admissible," it still can be excluded in the discretion of the trial judge if its harmful effects on the legal process outweighs its probative value.
Defendant, Gwyn Johnson, was the incorporator of a corporation that failed to pay its employee withholding taxes. Defendant was charged with willfully violating Wis. Stat. §§ 71.20(4) and 71.11(41). On cross-examination, defendant attempted to elicit testimony from the witness regarding a conversation that he had with defendant, in which defendant indicated that he could not pay the taxes because he did not control the funds. The trial court held that this was not within the scope of cross-examination. Defendant was convicted. On appeal, he argued that he was improperly prohibited from cross-examining a witness who testified on direct examination that defendant had not paid the taxes.
Was the defendant improperly prohibited from cross-examining a witness who testified on direct examination that defendant had not paid the taxes?
The court agreed with the trial court, noting that in order to be admissible on cross-examination, the evidence had to be "otherwise admissible." The court said that the information the defendant was trying to elicit from the witness was hearsay and was neither an admission nor a statement against interest. Accordingly, the court affirmed defendant’s conviction.