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Issues In NY Criminal Law--Vol. 4, #10©

Issue: Opening the door

"Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it." Cardozo, Berkey v Third Ave. Railway Co., 244 NY 84, 94 (1926).

In the law of evidence, "opening the door" is an elusive concept. If one attorney inquires into an area, opposing counsel may seek to inquire further. The justification is that the first attorney "opened the door." Are there any limits? An early Court of Appeals decision states: "There is no tenable theory of 'opening the door' which sanctions the reception of evidence neither relevant to the issue nor to facts in issue." People v Schlessel, 196 NY 476, 480 (1909).

The Court of Appeals outlined the concept in People v Melendez: "Where, however, the opposing party 'opens the door' on cross examination to matters not touched upon during the direct examination, a party has a right on redirect 'to explain, clarify and fully elicit [the] question only partially examined on cross-examination.'" 55 NY2d 45, 451, 449 NYS2d 946 (1982). See Handling a Criminal Case in New York, § 18:287 (2001-2002 edition). Melendez emphasized that the theory "must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. . .. Nonetheless, it does have its limitations. By simply broaching a new issue on cross examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect.. . ." 55 NY2d at 455.

Some prosecutors seem to invoke the concept every time a defense attorney opens his mouth, the metaphorical door somehow being opened as well. However, as was stated in People v Caserta, "Few are the criminal actions in which an attempt is not made on cross-examination to impair the credibility of key witnesses for the prosecution." 19 NY2d 18, 25, 277 NYS2d 647 (1966). In Melendez, the defense attorney elicited from a detective that someone had accused the defendant early on. This was brought out at trial to see whether the detective considered another person as a suspect. The court noted that this allowed the prosecutor to pinpoint the detective's basis for suspecting the defendant. But the prosecutor used it to explore the detective's entire scope of investigation. "In short, though defense counsel may have partially 'open the door' by asking whether Marrero was a suspect, the passageway thus created was not so wide as to admit the hearsay testimony directly implicating the defendant in the crimes so charged." The admission of the redirect testimony was reversible error.

In a sex offense trial, the defendant brought out testimony that one sodomy complainant was involved in a federal suit against the police for harassment. The defendant was apparently involved in the federal suit as well. The prosecutor used this testimony to argue that everything about the suit was admissible. In several ways the prosecutor tried to introduce evidence of the defendant's intent with a crime where intent was decidedly not the issue. Reversing the conviction, the First Department stated: "Opening the door, however, does not justify blunderbuss rejoinder. Merely by introducing a new issue, a party does not thereby run the risk that any evidence relating to it, no matter how remote or tangential, will be brought out." People v Bagarozy, 132 AD2d 225, 237, 522 NYS2d 648 (1st Dept 1987). See also People v Uriah, 261 AD2d 848, 691 NYS2d 216 (4th Dept 1999) (reference to polygraph).

Opening the door commonly happens on cross-examination, with the prosecution's evidentiary response on redirect examination. The door opening might also occur on opening statement. See People v Biondo, 41 NY2d 483, 486, 393 NYS2d 944 (1977) (dictum). While there are limits to opening-the-door, it nonetheless properly applies where defense counsel opens up areas into which the prosecution has the right to inquire. People v Sillaway, 144 AD2d 959, 534 NYS2d 615 (4th Dept 1986); People v Vandelinder, 163 AD2d 814, 568 NYS2d 343 (4th Dept 1990). Opening the door may occur where a particular defense is raised, such as entrapment, Handling § 15:73, intoxication, § 15:86, and agency, § 15:101. It also can occur Sandoval issues, § 11:78, and Molineux, § 12:26. The difficulty for courts and counsel is to determine when the theory is properly invoked; the above cases to do not offer clear guideposts. Trial courts have discretion in this area. With some evidence, such as conversations between a police officer and defendant's attorney, caution in admitting such testimony is especially appropriate. People v Lewis, 18 AD2d 277, 239 AD2d 408 (4th Dept 1963).

Speech is conveniently located midway between thought and action, where it often substitutes for both.
John Andrew Holmes


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