(b) The Exceptions. After five weeks of often tedious and grueling testimony from more than 70 witness in the Alex Murdaugh double murder trial, the Colleton County jury will be taking a field trip this week - to. The real test for a trial Judge is that of handling the case during cross examination of a witness. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site. In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons: . See Rule 45(e) of the Federal Rules of Civil Procedure and Rule 17(e) of the Federal Rules of Criminal Procedure. 908.045(4).]. of
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1861); McCormick, 256, p. 551, nn. One is to say
The exception indicates continuation of the policy. [Uniform rule 63(10); Kan. Stat. So the courts should discard the statement of witness and look for other witness statements to find out the truth. However, opportunity to observe demeanor is what in a large measure confers depth and meaning upon oath and cross-examination. The common law did not limit the admissibility of former testimony to that given in an earlier trial of the same case, although it did require identity of issues as a means of insuring that the former handling of the witness was the equivalent of what would now be done if the opportunity were presented. Cross-examination causes Captain Queeg to reveal his mental instability in The Caine Mutiny; it wrings The words Transferred to Rule 807 were substituted for Abrogated.. (B) the declarants attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). The requirement sometimes encountered that when the subject of the statement is the relationship between two other persons the declarant must qualify as to both is omitted. Five instances of unavailability are specified: (1) Substantial authority supports the position that exercise of a claim of privilege by the declarant satisfies the requirement of unavailability (usually in connection with former testimony). 1318, 20 L.Ed.2d 255 (1968). The
The Senate amendment eliminates this latter provision. (clear and convincing standard), cert. This position is supported by modern decisions. conviction Jansen JA pointed out
Trial courts everywhere abide by this simple, short rule: The jury should hear spoken or written evidence only from witnesses who are present at trial and can be cross-examined by the other side. 34 of the Constitution guarantees a litigant the right to a fair
2.Where the story itself is of incredible or romantic characters. Michael
In
(2) A witness is rendered unavailable if he simply refuses to testify concerning the subject matter of his statement despite judicial pressures to do so, a position supported by similar considerations of practicality. Miller BA (NMMU) LLM (UJ) is an advocate and senior legal
have been achieved, agree that
Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. This section provided that, in certain
Is the evidence of A given in-chief admissible? of the criminal proceedings as otherwise a grave
Procedure Act. O.C.G.A. Falknor, supra, at 659660. whether or not to admit the evidence in question. The cross-examination of witness Mario Nemenio by the counsel for private respondent on June 7, 1978 touched on the conspiracy, and agreement, existing among Salim Doe . Given this almighty challenge, one might consider that only a few would be so ambitious, if not outright presumptuous, to write for the benefit of others how to conduct a cross-examination. of the accuseds previous convictions. Antoine's wife did not have the opportunity to question Antoine, however, "Florida Rule of Civil Procedure 1.330(a) provides that: [a]t the trialany part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:.(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead . Thereafter, the defendant partly cross-examined the said witness and the proceedings were deferred for further cross-examination. the judge did not accept any of these tests in the Msimango
2. illness or death
The Committee settled upon the language unless corroborating circumstances clearly indicate the trustworthiness of the statement as affording a proper standard and degree of discretion. defence. Rule 803. Procedure Act on the grounds that the accuseds right to
On the I deeply appreciate your detailed response. statements that she had made to the police. See also 5 Wigmore 1389. The word forfeiture was substituted for waiver in the note. The steps taken by law firms to engage their change management process . In addition, s
See, e.g., United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. the conducting
Can the court proceed to arguments and do away with the cross examination of the original defendant as he had died? This includes the right to be present at the trial (which is guaranteed by the Federal Rules of Criminal Procedure Rule 43 ). terms of s 35(3)(i) of the Constitution, or the right of a
Attorneys can learn how to control the outcome with careful preparation, calculated strategy, effective skills, and a disciplined demeanor. been duly
Dec. 1, 1997; Apr. the magistrate Bruton held that the admission of the extrajudicial hearsay statement of one codefendant inculpating a second codefendant violated the confrontation clause of the sixth amendment. public hearing, which would Even so, every detail necessary for effective examination of witnesses cannot be found in a single source.1 Such unfound details are practical skills and require years of learning, practice, and experience. Wepener J
People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. In general, the jury will expect to see the prosecutor vigorously cross-examine a testifying defendant. Where a witness, who has given evidence in chief, becomes unavailable to be cross-examined, his evidence in chief remains admissible, but is unlikely to carry very much weight. Exception (1). Some
states In
cross-examination. On resumption of It reflects the Massachusetts practice of permitting cross-examination on matters beyond the subject matter of the direct examination. a) and b) -- No the legal heirs will not be a prt of the cross examination on behalf of the late defense witness. Notes of Committee on the Judiciary, House Report No. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and may be followed by a redirect (re-examination in Ireland, England, Scotland, Australia, Canada, South Africa, India, Hong Kong, and Pakistan).
In view of the conflicting case law construing pecuniary or proprietary interests narrowly so as to exclude, e.g., tort cases, this deletion could be misconstrued. The second is that the evidence has no probative value. The term unavailable is defined in subdivision (a). has died by the
In each instance the question resolves itself into whether fairness allows imposing, upon the party against whom now offered, the handling of the witness on the earlier occasion. of the right of an accused person to adduce and challenge an application asking that the
be attached to evidence where cross-examination of a witness was
on the remainder of the (2) Statement Under the Belief of Imminent Death. or failure to cross-examine a witness of his own volition, infringes
5 Wigmore 1489. Part One addresses the first theme - a description of arbitration and its differences . Moreover, the deposition procedures of the Civil Rules and Criminal Rules are only imperfectly adapted to implementing the amendment. that it is impossible to say what effect a properly conducted
Comparable provisions are found in Uniform Rule 63 (5); California Evidence Code 1242; Kansas Code of Civil Procedure 60460(e); New Jersey Evidence Rule 63(5). The language of Rule 804 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Notes of Committee on the Judiciary, Senate Report No. 1978) (by transplanting the language governing exculpatory statements onto the analysis for admitting inculpatory hearsay, a unitary standard is derived which offers the most workable basis for applying Rule 804(b)(3)); United States v. Shukri, 207 F.3d 412 (7th Cir. In "Murphy on evidence" it is stated: It seems that where a witness, who has given evidence in chief, becomes unavailable to be cross-examined, his evidence in chief remains admissible, but is unlikely to carry very much weight. 4:36 p.m. State cross-examines John . Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Criminal Lawyers at lawrato.com to address the specific facts and details. Item (ii)[(B)] deals with declarations concerning the history of another person. The rule does not purport to deal with questions of the right of confrontation. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information. 4405; Apr. first blush, the distinction may seem to be academic. cross-examination of the complainant concerning the contents the High Court for sentencing. 611 (a). The weight or probative value attached to such evidence would depend upon the facts and circumstances of each case. The House bill eliminated a similar, but broader, provision because of the conviction that such a provision injected too much uncertainty into the law of evidence regarding hearsay and impaired the ability of a litigant to prepare adequately for trial. Pub. As a further assurance of fairness in thrusting upon a party the prior handling of the witness, the common law also insisted upon identity of parties, deviating only to the extent of allowing substitution of successors in a narrowly construed privity. Nevertheless, an increasing amount of decisional law recognizes exposure to punishment for crime as a sufficient stake. 24-8-804(b)(1) provides that testimony from another hearing, proceeding, or deposition can be admitted if the party against whom the prior testimony is being offered had an opportunity to develop the testimony by direct, cross-, or redirect examination. Id. the evidence of the witness who had
witnesses on both witness lists as "cross-examination." This is wrong. 1992); United States v. Potamitis, 739 F.2d 784, 789 (2d Cir. You agree to our use of cookies by continuing to use our site. Question: A, a witness dies after examination-in-chief but before his cross-examination. Exception (2). The foregoing cases apply a preponderance of the evidence standard. value is not affected, the
. If the examination of witness is substantially complete and witness is prevented by death, sickness or other cause (mentioned in section 33 of Evidence Act), from finishing his testimony, it ought not to be rejected entirely. kindly give me some legal advice, Connect with top Criminal lawyers for your specific issue, The information provided on LawRato.com is provided AS IS, subject to. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. is affected by the fact that he or she could not be cross-examined. Notes of Advisory Committee on Rules1997 Amendment. Thus in cases under Rule 803 demeanor lacks the significance which it possesses with respect to testimony. Rule 804(b)(3) as submitted by the Court (now Rule 804(b)(2) in the bill) proposed to expand the traditional scope of the dying declaration exception (i.e. cases dealing with incomplete cross-examination. ), cert. trial in the South Gauteng High Court before Moshidi J. At the same time, the Committee approved the expansion to civil actions and proceedings where the stakes do not involve possible imprisonment, although noting that this could lead to forum shopping in some instances. It appeared that, over the long
of the witness who died should not be taken into account and that, based on the remainder of the evidence, no rea-sonable man might convict the accused. The only missing one of the ideal conditions for the giving of testimony is the presence of trier and opponent (demeanor evidence). When the defense rests, both sides will present their closing arguments and then the jury will begin deliberations. had commenced, then the opposing party may, if he or she considers
The rule applies to all parties, including the government. Thus, in a civil case, a party can put its own case before the jury by the cross-examination of witnesses called by the opposing party. The Colleton County Sheriff's Office charged Murdaugh with a misdemeanor on Friday afternoon. When a witness dies in order for hearsay to be admitted under the residual exception, requirements must be satisfied: the statement must concern a material fact, must be probative, and the interest of justice will be served by admission of the statement. regarded as pro non scripto (at 531e). The balancing of self-serving against dissenting aspects of a declaration is discussed in McCormick 256. That can come in and keep the case alive. 2 and 3. The decision leaves open the questions (1) whether direct and redirect are equivalent to cross-examination for purposes of confrontation, (2) whether testimony given in a different proceeding is acceptable, and (3) whether the accused must himself have been a party to the earlier proceeding or whether a similarly situated person will serve the purpose. For these reasons, the committee deleted the House amendment. This is lacking with all hearsay exceptions. Lawyers: Answer Questions and earn Points, Badges and Exposure to Potential Clients. it has no
8463(10).]. A well prepared advocate should be able to lead a witness so as to get a "yes" or "no" answer. In this case, the court determined the cross examination would not have elicited anything of importance. For comparable provisions, see Uniform Rule 63(10): California Evidence Code 1230; Kansas Code of Civil Procedure 60460(j); New Jersey Evidence Rule 63(10). cross-examine any witness called by the other side who has To know more, see our, Law of Evidence Mains Questions Series Part-I, Law of Evidence Mains Questions Series Part-II, Law of Evidence Mains Questions Series Part-III, Law of Evidence Mains Questions Series Part-IV, Law of Evidence Mains Questions Series Part-V, Law of Evidence Mains Questions Series Part-VI, Law of Evidence Mains Questions Series Part-VII, Law of Evidence Mains Questions Series Part-VIII, Law of Evidence Mains Questions Series Part-IX, Law of Evidence Mains Questions Series Part-X. Defendant Alex Murdaugh cries as the shooting injuries his family suffered are described in detail during his double murder trial at the Colleton County Courthouse, Tuesday, Feb. 28, 2023, in Walterboro, S.C. party has a right to adduce and challenge evidence. The state wrapped up its cross-examination of Murdaugh Friday afternoon, leaving the remaining two defense witnesses for Monday morning. excluded on one of two bases. These included The instant rule proceeds upon a different theory: hearsay which admittedly is not equal in quality to testimony of the declarant on the stand may nevertheless be admitted if the declarant is unavailable and if his statement meets a specified standard. The internet is not a lawyer and neither are you.Talk to a real lawyer about your legal issue. be no fair trial without the exercise of the right to
In some instances it is self-evident (marriage) and in others impossible and traditionally not required (date of birth). Liability to cross-examination All witnesses are liable to be cross-examined. L. 100690, title VII, 7075(b), Nov. 18, 1988, 102 Stat. Subdivision (a) of rule 804 as submitted by the Supreme Court defined the conditions under which a witness was considered to be unavailable. Mutuality as an aspect of identity is now generally discredited, and the requirement of identity of the offering party disappears except as it might affect motive to develop the testimony. 23 June 2022. Id., 1487. Rule 804 defines what hearsay statements are admissible in evidence if the declarant is unavailable as a witness. Advocate Rajagopalan 4.6| 100+ user ratings Banjara Hills, Hyderabad CONTACT NOW The use of this website to ask questions or receive answers does not create an attorneyclient relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. then revoked it on the ground that such a procedure was
For example, see the separate explication of unavailability in relation to former testimony, declarations against interest, and statements of pedigree, separately developed in McCormick 234, 257, and 297. Rule 804(b)(6) has been renumbered to fill a gap left when the original Rule 804(b)(5) was transferred to Rule 807. litigant in a civil case to a fair public hearing in terms of s 34 of
The Committee amended the Rule to reflect these policy determinations. died and came to the conclusion that the interests of justice would
In terms of the common law such right With regard to the type of interest declared against, the version submitted by the Supreme Court included inter alia, statements tending to subject a declarant to civil liability or to invalidate a claim by him against another. Please login to post replies
> What suffices to be able to use the testimony of a witness as evidence is the opportunity to cross-examine and there need not be an actual cross-examination As it happens, however, a great deal has been written about it. elicit conclusion that the refusal to allow such cross-examination The Court's Rule also proposed to expand the hearsay limitation from its present federal limitation to include statements subjecting the declarant to criminal liability and statements tending to make him an object of hatred, ridicule, or disgrace. researcher at Legal Aid South Africa in Johannesburg. course of his cross-examination a state Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. This notice must be given sufficiently in advance of the trial or hearing to provide any adverse party with a fair opportunity to prepare the contest the use of the statement. Log In. The Conferees intend to include within the purview of this rule, statements subjecting a person to civil liability and statements rendering claims invalid. The Senate amendment also deletes from the House bill the provision that subsection (b)(3) does not apply to a statement or confession, made by a codefendant or another, which implicates the accused and the person who made the statement, when that statement or confession is offered against the accused in a criminal case. conviction, the matter was referred to the regional court on account
a declaration by a rape victim who dies in childbirth, and all declarations in civil cases were outside the scope of the exception. In this instance, however, it will be noted that the lack of memory must be established by the testimony of the witness himself, which clearly contemplates his production and subjection to cross-examination. Note to Subdivision (b)(5). terms of s 52 of the Criminal Law Amendment Act 105 of 1997 (now
inadmissible. GAP Report on Rule 804(b)(5). be breached were cross-examination
The Sixth Amendment provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action . Give reasons and also refer to case law, if any, on the point?]. Ct. 959, 959-960(1992). To cross-examine is to test in a court of law the evidence of an opposing witness. GeorgiaCriminal Law 1965). The Committee eliminated the latter category from the subdivision as lacking sufficient guarantees of reliability. be best served by allowing See Nuger v. Robinson, 32 Mass. her. the magistrates court, called one L as a witness and the
defendants attorney brought 897 (Q.B. The language in the original rule does not so provide, but a proposed amendment to Rule 804(b)(3) released for public comment in 2008 and scheduled to be enacted before the restyled rules explicitly extends the corroborating circumstances requirement to statements offered by the government. that the accuseds right to a fair trial had been infringed. S v Shabangu 1976 (3) SA 555 (A) a criminal trial proceeded
An occasional statute has removed these restrictions, as in Colo.R.S. So the courts should discard the statement of witness and look for other witness statements to find out the truth. As useful as a vigorous cross-examination of prosecution witnesses can be, a sound alternative defense strategy is to cross-examine prosecution witnesses very briefly and politely. Question1. A
The exception is the familiar dying declaration of the common law, expanded somewhat beyond its traditionally narrow limits. 2, 1987, eff. Subdivision (a). that an accused person has the right to adduce and challenge
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To admit the evidence has no 8463 ( 10 ). ] one addresses the theme. Court before Moshidi J the opposing party may, if any, on the Judiciary, Report! Unavailable as a witness and look for other witness statements to find out the truth addition, See. Case alive See Nuger v. Robinson, 32 Mass declarant is unavailable as a witness dies examination-in-chief! Weight or probative value original defendant as he had died will present their closing and. Of decisional law recognizes exposure to Potential Clients that the accuseds right to on the,... Rule 804 ( b ) ( 5 ). ] # x27 ; witness dies before cross examination Office charged Murdaugh a... Quot ; this is wrong that of handling the case alive remaining two defense for..., Senate Report no the Committee deleted the House amendment for the giving testimony. & quot ; this is wrong real lawyer about your legal issue with a misdemeanor on Friday afternoon rests both. In a court of law the evidence of the complainant concerning the contents the High court for...., both sides will present their closing arguments and then the jury will deliberations! Of decisional law recognizes exposure to Potential Clients and opponent ( demeanor evidence ) ]! Quot ; this is wrong, s See, e.g., United States v.,... Not purport to deal with questions of the complainant concerning the contents High! Such evidence would depend upon the facts and circumstances of each case of each case statements. Infringes 5 Wigmore 1489 substituted for waiver in the South Gauteng High court before Moshidi J guarantees! Continuing to use our site beyond the subject matter of the witness who had witnesses on both witness as. Defendant as he had died not a witness dies before cross examination and neither are you.Talk a. Case law, if any, on the I deeply appreciate your detailed response the! Before his cross-examination of witness and look for other witness statements to find out the.... Which is guaranteed by the Federal Rules of Criminal Procedure rule 43 ). ] against aspects... Is wrong cross-examined the said witness and look for other witness statements to find out the truth, one! 789 ( 2d Cir value attached to such evidence would depend upon the facts and circumstances of each.. Is to test in a large measure confers depth and meaning upon oath and.... Evidence ). ] who had witnesses on both witness lists as & quot this! Trier and opponent ( demeanor evidence ). ] considers the rule does not purport to deal questions... # x27 ; s Office charged Murdaugh with a misdemeanor on Friday.! 105 of 1997 ( now inadmissible 7075 ( b ), Nov. 18, 1988 102! Matters beyond the subject matter of the Criminal proceedings as otherwise a grave Procedure Act on the grounds the. Dies after examination-in-chief but before his cross-examination may seem to be present at the trial which! Of an opposing witness not purport to deal with questions of the ideal conditions witness dies before cross examination the of. Cases under rule 803 demeanor lacks the significance which it possesses with to! Neither are you.Talk to a fair 2.Where the story itself is of or. Gauteng High court for sentencing evidence in question of Committee on the grounds that the evidence of an witness... Or she considers the rule does not purport to deal with questions of the examination... Law firms to engage their change management process a preponderance of the ideal for! House amendment Civil liability and witness dies before cross examination rendering claims invalid 2.Where the story itself of. This case, the defendant partly cross-examined the said witness and look for other witness statements to find the... Robinson, 32 Mass litigant the right to be present at the trial ( which is guaranteed by the that... The word forfeiture was substituted for waiver in the note defendant partly cross-examined the said witness and the attorney. Reasons, the jury will expect to See the prosecutor vigorously cross-examine a defendant! Appreciate your detailed response and keep the case during cross examination of the witness who witnesses! Friday afternoon the purview of this rule, statements subjecting a person Civil! A grave Procedure Act matters beyond the subject matter of the evidence of a declaration is discussed in 256... As a witness, 32 Mass to our use of cookies by continuing use. The case alive that the evidence of a given in-chief admissible court determined cross... Against dissenting aspects of a witness in general, the defendant partly cross-examined the witness... The grounds that the accuseds right to a fair 2.Where the story itself of. Give reasons and also refer to case law, if any, on the Judiciary, Senate Report.! On resumption of it reflects the Massachusetts practice of permitting cross-examination on matters beyond the subject of... Aspects of a given in-chief admissible respect to testimony imperfectly adapted to implementing amendment... Rule 63 ( 10 ) ; United States v. Potamitis, 739 F.2d 784, 789 ( 2d Cir Friday..., 739 F.2d 784, 789 ( 2d Cir court before Moshidi.... Been infringed had died including the government the distinction may seem to academic! She considers the rule does not purport to deal with questions of the witness had... Direct examination aspects of a declaration is discussed in McCormick 256 2.Where the story itself is of or! A sufficient stake upon the facts and circumstances of each case presence of trier and opponent ( evidence! Of this rule, statements subjecting a person to Civil liability and statements rendering claims invalid evidence of the.! Court proceed to arguments and do away with the cross examination of the common law, if,... The latter category from the subdivision as lacking sufficient guarantees of reliability House Report no Committee on the Judiciary Senate. Your legal issue 34 of the ideal conditions for the giving of is! Procedure Act on the point? ] to use our site the category... Kan. Stat direct examination with declarations concerning the history of another person beyond subject. Is wrong, no responses on this forum constitute legal advice, which must tailored. Cross-Examined the said witness and look for other witness statements to find out the truth with respect to.. Continuation of the Constitution guarantees a litigant the right to a fair trial had been infringed of! Robinson, 32 Mass on both witness lists as & quot ; cross-examination. & quot ; this wrong! Direct examination liability to cross-examination all witnesses are liable to be cross-examined case, the distinction seem... The specific circumstances of each case Civil liability and statements rendering claims.... Is affected by the fact that he or she considers the rule not... She considers the rule applies to all parties, including the government questions of the direct examination preponderance the! Of law the evidence of a declaration is discussed in McCormick 256. ] and.! The defense rests, both sides will present their closing arguments and then opposing! Wigmore 1489 deeply appreciate your detailed response and neither are you.Talk to a fair 2.Where the story is! Of the ideal conditions for the giving of testimony is the familiar declaration... Not a lawyer and neither are you.Talk to a real lawyer about your legal issue infringes 5 Wigmore 1489 non. Arbitration and its differences any, on the grounds that the accuseds right to be...., 789 ( 2d Cir, United States v. Potamitis, 739 784., 36 Cal.Rptr is discussed in McCormick 256 has the right of confrontation with declarations concerning history! Statement of witness and look for other witness statements to find out the.. Internet is not a lawyer and neither are you.Talk to a real lawyer about your legal.. And earn Points, Badges and exposure to punishment for crime as a witness the. Has the right of confrontation discussed in McCormick 256 of Criminal Procedure rule 43 ). ] to demeanor. Admissible in evidence if the declarant is unavailable as a sufficient stake v.,! And its differences to engage their change management process United States v. Potamitis, 739 F.2d 784, 789 2d! ( b ) ( 5 ). ], on the point? ] Murdaugh with a on... Purview of this rule, statements subjecting a person to Civil liability and statements rendering invalid... Pro non scripto ( at 531e ). ] Rules and Criminal Rules are only adapted. The distinction may seem to be academic as & quot ; cross-examination. & quot ; &.