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Burlington Northern Railroad Co. v. Hood12/10/1990
ss testified. Huddleston, 485 U.S. at 690. 1 Louisell & Mueller, Federal Evidence ยง 32, at 231.
Here, the deposition testimony presented to the trial court at the in -limine hearing was such as to permit a reasonable finding by the jury that Mrs. Hood satisfied the personal knowledge requirement of CRE 602 with respect to the "acre-of-land" conversation. Mrs. Hood, during her first deposition, acknowledged that she was actually present on the "acre-of-land" with her husband. During her second deposition, she admitted that she recounted to her sister-in-law, Dorothy Lunbery, as well as to other persons, Hood's statement to her that the accident was staged and his injuries were feigned. Although at one point in her second deposition Mrs. Hood stated that she had described the "acre-of-land" conversation to Lunbery in the context of a dream, at another point she testified that she was unsure whether it was a dream, and at yet another point she could not recall telling Lunbery or any other person that the conversation might only have been a dream. Moreover, Lunbery testified in her deposition that Mrs. Hood described the "acre-of-land" conversation as having actually occurred and not as the product of a dream. Finally, Mrs. Hood, again in her second deposition, admitted that she first became confused over whether the conversation actually took place after her husband had made repeated threats to kill her due to her telling others about the conversation. The trial court ignored this evidence in prohibiting Burlington from cross-examining Mrs. Hood about the "acre-of-land" conversation. Instead of analyzing the issue of Mrs. Hood's personal knowledge under CRE 104(b), the trial court improperly resolved that issue by crediting and weighing a very isolated part of her deposition testimony to the exclusion of other parts and also to the exclusion of the deposition testimony of Lunbery.
Because the probative force of the evidence relating to the "acre-of-land" conversation is dependent on the condition that the conversation actually took place, the very same deposition testimony which was sufficient to support a reasonable finding by the jury that Mrs. Hood's testimony about the "acre-of-land" conversation with her husband satisfied the personal knowledge requirement of CRE 602 also was adequate to support a reasonable finding by the jury that, for purposes of satisfying the conditional relevancy requirement of CRE 104(b), the "acre-of-land" conversation between Hood and his wife, in which Hood admitted that his accident was staged and his injuries were feigned, actually occurred. See Huddleston, 485 U.S. at 690; 478.34 Acres of Land, 578 F.2d at 159-160; People v. Lyle, 200 Colo. 236, 239, 613 P.2d 896, 898 (1980). Burlington, therefore, should have been permitted to cross-examine Mrs. Hood about her husband's alleged admission to her.
D.
The court of appeals was of the view that, because Mrs. Hood testified only on the issue of the effect of the injuries on her husband and "did not testify concerning the admission allegedly made to her by Hood, nor as to any statements about the accident and its causes," the "acre-of-land" conversation between Hood and his wife was not inconsistent with Mrs. Hood's direct testimony and thus was not within the scope of proper cross-examination by Burlington. In so holding, the court of appeals misconstrued the permissible scope of cross-examination.
The scope of cross-examination encompasses the subject matter of the direct examination and "matters affecting the credibility of the witness." CRE
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