Mediation Message #168


A fallacy is a false, deceptive, misleading or mistaken idea or argument. Fallacies exist in everyday affairs (for example, it’s a fallacy that a fact must be true if stated by an authoritative person). They also exist in the law. (See Redevelopment Agency of Sacramento v. Malaki (1963) 216 Cal.App.2d 480 [The “plain meaning” rule that statutory interpretation is not permissible where language is clear and unambiguous, though its “plain meaning” is contrary to probable legislative intent, is a fallacy]; MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635 [It is a fallacy that the meaning of insurance policy language is to be discovered by citing one of the dictionary meanings of the key words.];  Navellier v. Slatten (2002) 29 Cal.4th 82, 93 [It is a fallacy that the anti-SLAPP statute allows a defendant to escape the consequences of wrongful conduct]; Kruse v. Bank of America (1988) 202 Cal.App.3d 38, fn. 15 [It is a fallacy that repeated assurances that things would be “worked out” constitute a binding loan commitment]; Gay Law Students Ass’n v. Pac. Tel. & Tel. Co. (1979) 24 Cal.3d 458, 488 [It is a fallacy that a public agency has the same rights or obligations as a private employer].)

The “open the door” principle that a party who introduces an inadmissible fact or claim has, in effect, “invited” the opposing party to introduce an inconsistent theory or fact, should, under certain circumstances, be added to the above list of legal fallacies. As a general proposition, refraining from making an objection to inadmissible evidence does not create an absolute right, in response, to introduce related evidence. The test or standard for inadmissibility or admissibility of the response depends upon when the statement or evidence is made, whether it can be cured by an admonition, whether the original question or answer was admissible and the degree of prejudice created by the initial evidence.

Comments during an opening statement – A reference in the defendant’s opening statement to his willingness to take a lie detector test did not permit the plaintiff to inquire into that subject on examination of the defendant because an opening statement is not evidence and any error had been cured by an admonition to the jury to disregard the plaintiff’s subsequent questions about the lie detector test. (Rufo v Simpson (2001) 86 Cal.App.4th 573, 600–604.)

Witness Testimony – On the other hand, a witness who makes a sweeping statement on direct or cross-examination may have “opened the door” to use of otherwise inadmissible evidence for the purpose of contradicting such testimony. (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946 [Plaintiff sued the City for wrongful arrest and assault. The booking officer testified, in effect, that he was patient during the booking stage. The trial court erred in not allowing questions on cross-examination of the officer about complaints of violent and abusive behavior]; People v. Robinson (1997) 53 Cal.App.4th 270, 282–283 [After appellant’s confession had been held inadmissible, his testimony that he had not confessed to the police but instead “told them what the hell happened” allowed the admissibility of the confession].)

In analyzing the issue, the question appears to be whether the initial evidence was prejudicial and not curable by objection or a motion to strike. If so, the adverse party should be permitted to contradict it, under the doctrine of “curative admissibility.” If it is not prejudicial, there seems no reason to permit the adverse party to capitalize on the blunder by offering impeaching evidence on a collateral matter. (See 3 Witkin, Cal. Evid (4th ed. 2000) Presentation at Trial, § 352, pp. 439–440.)

The uncertainty presented by not objecting to potentially inadmissible evidence because it arguably allows the introduction of contrary facts is demonstrated by Chief Justice George’s concurring opinion in People v. Steele (2002) 27 Cal.4th 1230, 1270-1276 where the majority found no error in the prosecutor’s asking the autopsy pathologist, on redirect, whether his opinion that the fatal injuries could have been inflicted in a methodical manner was influenced by a different, uncharged killing, by the defendant after the defense attorney, on cross-examination, had asked the pathologist, without objection, whether he would agree, considering the nature of the stab wounds, that the killer was acting in a rage. In substance, the pathologist answered the prosecutor’s question that the killing appeared to have been committed in a methodical manner because the bodies of the two victims had similar injuries. The trial judge overruled an objection to this question because defense counsel had “gotten into it.”

Chief Justice George rejected the “open the door” theory as a basis for admissibility of the pathologist’s redirect testimony because, besides that the evidence was not admissible under any circumstances, “Legitimate cross-examination does not extend to matters improperly admitted on direct examination. Failure to object to improper questions on direct examination may not be taken advantage of on cross-examination to elicit immaterial or irrelevant testimony.’ [Citation.] … Only where a proper objection would not have cured the prejudice to the prosecution may the prosecutor rebut inadmissible evidence by eliciting similarly inadmissible evidence on redirect examination.”

To offset highly prejudicial evidence, i.e., curative admissibility – Under certain exceptional circumstances, the cross-examiner may introduce otherwise inadmissible evidence to offset the effect of highly prejudicial evidence that might have been excluded on direct examination. (See, e.g., Travis v Southern Pac. Co. (1962) 210 Cal.App.2d 410, 420 [in an action for damages resulting from a collision between a car and train, the car’s driver volunteered during his direct examination that he was always conscious of speed laws; to counteract the prejudicial effect of this broad declaration, the court held it was proper to question the driver during cross-examination about his prior arrests for speeding].)

The rule of completeness – Occasionally, evidence presented during direct examination is incomplete or distorted when taken out of context. The cross-examiner can correct these issues by putting the evidence in its proper context. (See Evidence Code §356; see also Rosenberg v. Wittenborn (1960) 178 Cal.App.2d 846 [police officer called by the plaintiff testified that defendant told him he had gone through the intersection at 30 miles per hour during a red light; it was proper on cross-examination to elicit from the officer that the defendant had also stated that he had experienced brake failure]; see also People v. Gombos (1970) 5 Cal.App.3d 187, 192-193 holding that the admission, without objection, of a hearsay declaration against penal interest statement by a non-witness that the heroin in the kitchen drawer belonged to her and not the defendant, did not allow the prosecutor to introduce a statement by the same witness that she knew nothing about the heroin found under the mattress because the two statements were not factually related].)

MDM’s observation – The lesson of the above authorities is that whether or not to take advantage of an opponent’s intentional or negligent missteps, which arguably have “opened the door,” should not be made quickly; instead, that decision, like many others in the law, depends on the totality of the circumstance including when, during the proceeding, the issue occurred (for example, early or late in the case); its importance to the case; whether there is any legal basis for its admissibility; whether the trier has been influenced or prejudiced by the question and/or answer and whether the potential contrary or impeaching evidence is truly inconsistent or impeaching.

Copyright Michael D. Marcus, October 2020

Leave a comment