Collateral Damage

In the exercise of its discretion, the trial court may allow the impeachment of a witness on a collateral matter raised during direct examination, said the Second District Court of Appeal in People v. Morrison (Sept. 14, 2011, B225879), __ Cal.App.4th __ [2011 DJDAR 14014].

Defendant testified on direct examination that he worked as an auto mechanic at Vermont and 103rd Street for one year and that the van he was driving the night of the attempted robbery was his "work van" that he had been driving for four months and that he occasionally drove home.  On cross-examination he testified that he worked for Benny Watkins five days a week and that Watkins was the owner of the van.  The prosecution then called Watkins, who testified that he had not operated any business since 1999, that he had no connection to 103rd Street, that he bought the van two months before the incident,and that he parked it on the street, gave the keys to defendant and asked him to move it on street sweeping day.  Watkins said over the past ten years he had bought cars and fixed them up for resale, that defendant would help him repair the cars, and that he considered defendant to be an auto mechanic.

It was not an abuse of discretion to allow the prosecution to call Watkins to testify to impeach the defendant even though the evidence  had "no bearing on any issue in the trial and was a collateral fact."  The evidence was relevant as bearing on the defendant's credibility, said the court, and was admissible unless it should have been excluded under Evidence Code §352.  Since defendant failed to explain how the testimony consumed an undue amount of time, caused undue prejudice, or risked confusing the issues or misleading the jury, it was properly admitted.

The court found that the common law rule that a party could not call a second witness to contradict a prior witness on a collateral matter was abolished by the enactment of the Evidence Code in 1965.  Since all relevant evidence is admissible, and Evidence Code §780 provides that the trier of fact "may consider ... [t]he existence or nonexistence of any fact testified to by [the witness]," evidence on collateral matters is admissible for impeachment purposes in the discretion of the court.  When a witness testifies on a collateral matter, at least on direct examination, evidence of the untruthfulness of this testimony becomes relevant to impeach the credibility of the witness.

No Open Door Policy

In exercising its discretion the court should consider whether the party seeking to cross-examine or call a rebuttal witness is seeking to take advantage of his or her own failure to object when the collateral matter was raised in the first instance.  As the court in Morrison noted, the idea that a party may "open the door" by bringing out an otherwise inadmissible fact is a "popular fallacy" rejected by the courts.  Where a party fails to object on relevancy grounds, the court may conclude that further examination on the collateral matter, or the presentation of rebuttal evidence, should not be permitted if it would be unfair to allow the party to take advantage of their own failure to object.  See, People v. Williams (1989) 213 Cal.App.4th 1186, 1189 at n.1.

Morrison did not address the scope of the court's discretion to allow a witness to be impeached on a collateral matter when the irrelevant subject is elicited for the first time on cross-examination.  The general rule is that a party may not cross-examine a witness on a collateral matter, and then seek to impeach the testimony.  See, e.g., Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 327.  It would appear, however, that the court has ample discretion to either allow or disallow the impeachment when the party calling the witness failed to object to the questions on cross.