Introduction

The Federal Rules of Evidence (FRE) and the case law interpreting them attempt to strike a balance between truth seeking and procedural protections for criminal defendants. The interaction between Rules 611(b) and 104(d) embodies this tension. Rule 611(b) is the general rule on cross-examination. It provides that “[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility,” but the rule also permits courts to “allow inquiry into additional matters as if on direct examination.”1 This reflects the Advisory Committee’s preference for “wide-open” cross-examination unconstrained by procedural rules strictly limiting it to the scope of the direct.2 Rule 104(d), however, is meant to counterbalance Rule 611(b)’s breadth in the context of criminal preliminary hearings.3 Matters decided at such hearings include, but are not limited to, the admissibility of evidence,4 the admissibility of a confession,5 and bail.6 Rule 104(d) provides that, by “testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.”7 This additional procedural protection is meant to encourage defendants’ participation in the determination of preliminary matters8 and is especially important in light of the legal burdens that attach to and disincentivize defendant testimony.9

While Rule 104(d) is designed to limit cross-examination of criminal defendants at preliminary hearings and to provide them with procedural protection from overly broad exposure on cross, it has not always been interpreted and applied this way by courts. The language of the rule is vague—nowhere do the FRE define what is meant by “preliminary question”—and the four-sentence Advisory Committee Note does little to illuminate the rule’s intended scope. Courts have ranged from narrow to broad interpretations of the rule’s language. The broader a court’s interpretation of “preliminary question,” the less it protects defendants from questioning about “other issues” in the case on cross-examination and, consequently, the more likely it is to discourage a defendant from testifying.

As a general matter, courts treat a “preliminary question” either as coterminous with the scope of the preliminary hearing itself or as requiring some degree of parsing the hearing into constituent issues. The first approach protects defendants from cross-examination into “other issues in the case” as required under Rule 104(d) by importing the “scope-of-the-direct” limitation from Rule 611(b) but without its allowance for “inquiry into additional matters as if on direct.” This in effect applies the first sentence of Rule 611(b) to the preliminary hearing context. The problem with this reading, however, is that its conflation of Rules 611(b) and 104(d) is contrary to the Advisory Committee’s intention that cross-examination on preliminary questions be narrower than general cross-examination. As a result, it leaves Rule 104(d) with very little teeth in protecting criminal defendants.

The second approach breaks down the hearing issue into component parts. While courts have been reluctant to interpret “preliminary question” as the smallest constituent unit of the matter at issue,10 they have generally defined it as narrower than the scope of the hearing.11 For example, in the suppression context, instead of treating the admissibility of a particular piece of evidence as a single preliminary question, courts following this approach might treat each of the defendant’s claims (for example, lack of a search warrant, lack of consent to a search, and lack of probable cause) or each individual legal question (for example, was there a warrant, or did a warrant exception apply?) as a separate preliminary question. This would allow the court to limit cross-examination to whether there was lack of consent, if that were the determinative question, and disallow cross on other issues implicated by the hearing. Such narrower interpretations of “preliminary question” thus provide criminal defendants with greater protection by decreasing the exposure they face in choosing to testify. Regardless of a court’s interpretation of “preliminary question,” however, defendants face another hurdle in the form of the Rule 104(d) impeachment exception, which allows cross-examination to attack credibility beyond what would otherwise be permissible under Rule 104(d).12

Given the importance of preliminary matters in the resolution of a defendant’s case and the fact that the defendant himself is often the person who “above all others may be in a position to meet the prosecution’s case,”13 clarity on the protection Rule 104(d) actually provides is extremely important. This is especially true because the very uncertainty of the legal rule can discourage defendants from testifying,14 contrary to the purpose of the rule. For this reason, this Comment provides a framework for guiding trial judges’ discretion to preserve the integrity of the text and purpose of the rule.

This Comment, which proceeds in three parts, argues for a more protective reading of Rule 104(d). Part I introduces Rules 104(d) and 611(b) and discusses the seminal Supreme Court cases that inspired the rules in their present form.15 Part II examines current differences among courts in interpreting the scope of preliminary-question cross-examination under Rule 104(d). Finally, Part III performs a close textual analysis of Rule 104(d) in the context of the FRE more generally and proposes three approaches for ensuring that the rule achieves its purpose. First, it suggests outer limits to Rule 104(d) cross-examination. Second, it suggests limiting the impeachment exception to attacks on credibility that are within the scope of the preliminary matter. Finally, it encourages judges to make preliminary rulings regarding the scope of cross-examination before a defendant decides whether to take the stand. Taken individually, these changes are modest, require no amendment to the FRE, and would not upset the current framework the Rules have established. Nonetheless, in combination, outer limits, limited impeachment, and preliminary rulings tackle the different factors that currently disincentivize defendant participation—overly broad interpretations of “preliminary question,” an expansive impeachment exception, and uncertainty as to how a judge will rule—and provide greater predictability for criminal defendants while safeguarding the truth-seeking function of the trial process.

  • 1. FRE 611(b).
  • 2. See FRE 611, Advisory Committee Note to Subdivision (b). The Supreme Court has sanctioned the practice of relying on the Advisory Committee Notes as a “useful guide” in interpreting the FRE. In Tome v United States, 513 US 150 (1995), Justice Anthony Kennedy wrote for the majority that, “[w]here . . . ‘Congress did not amend the Advisory Committee’s draft in any way . . . the Committee’s commentary is particularly relevant in determining the meaning of the document Congress enacted.’” Id at 160, quoting Beech Aircraft Corp v Rainey, 488 US 153, 165 n 9 (1988). The Court’s analysis in Tome relied heavily on the Notes to derive the “purpose” behind Rule 801(d)(1)(B), the rule at issue in that case. See Tome, 513 US at 160–61. It is true that the Court is not unanimous in its adherence to the Advisory Committee Notes—Justice Antonin Scalia believed that “they bear no special authoritativeness as the work of the draftsmen.” Id at 167 (Scalia concurring). But even Scalia regarded them as persuasive authority—“ordinarily the most persuasive”—concerning the meaning of the Rules. Id (Scalia concurring). See also generally Eileen A. Scallen, Interpreting the Federal Rules of Evidence: The Use and Abuse of the Advisory Committee Notes, 28 Loyola LA L Rev 1283 (1995) (discussing the Tome opinions and concluding that the objections to the use of traditional types of legislative history in interpreting legal texts do not apply to the Advisory Committee Notes).
  • 3. See FRE 104, Advisory Committee Note to Subdivision (d) (“The provision is necessary because of the breadth of cross-examination under Rule 611(b).”).
  • 4. See, for example, Simmons v United States, 390 US 377, 381 (1968); United States v Gomez-Diaz, 712 F2d 949, 950 (5th Cir 1983).
  • 5. See, for example, Wright v State, 9 A2d 253, 255 (Md 1939); United States v Roberts, 14 F3d 502, 509 (10th Cir 1993).
  • 6. See, for example, Ex parte Homan, 963 SW2d 543, 543 (Tex App 1996).
  • 7. FRE 104(d).
  • 8. FRE 104, Advisory Committee Note to Subdivision (d).
  • 9. For a discussion of ways in which the criminal justice system discourages defendants from testifying, see Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 NYU L Rev 1449, 1457–62 (2005) (describing “the pervasive fact of silence in the criminal justice system and how the everyday procedures and practices of litigation consistently ensure that defendants say little or nothing”); Jeffrey Bellin, Improving the Reliability of Criminal Trials through Legal Rules That Encourage Defendants to Testify, 76 U Cin L Rev 851, 863 (2008) (noting that harsher burdens have been placed on the right to testify than on the right to remain silent); Ted Sampsell-Jones, Making Defendants Speak, 93 Minn L Rev 1327, 1328 (2009) (noting that “[t]he prosecutor’s ability to cross-examine a defendant chills the latter’s right to testify” and concluding that “[t]he legal system punishes defendants too much for taking the stand, and rewards defendants too much for remaining silent”).
  • 10. See, for example, Gomez-Diaz, 712 F2d at 951–52 (refusing to define “preliminary question” as the single yes-or-no question whether the defendant signed an x-ray consent form, treating the defendant’s consent more generally as the preliminary question at issue).
  • 11. See, for example, Wright, 9 A2d at 255 (defining voluntariness as a preliminary question in deciding the admissibility of a confession); Homan, 963 SW2d at 544 (treating the defendant’s ability to make bail as a preliminary question and precluding cross-examination regarding other bail factors).
  • 12. While an impeachment exception to Rule 104(d) is universally accepted, see Part I.B.2, the scope of the exception is not well defined.
  • 13. Bellin, 76 U Cin L Rev at 854 (cited in note 9), quoting Ferguson v Georgia, 365 US 570, 582 (1961).
  • 14. See Simmons, 390 US at 392 (“[A] defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof . . . necessary . . . .”).
  • 15. See generally Johnson v United States, 318 US 189 (1943); Simmons, 390 US 377.