Does a court have authority to give an advisory ruling on cross-examination?

Whether or not an advisory ruling will be given is a matter within the discretion of the trial court. See United States v. Hart, 407 F.2d 1087 (2d Cir., cert. denied 395 U.S. 916, 89 S.Ct. 1766, 23 L.Ed.2d 231 (1969)). The scope of cross-examination is itself a matter properly left to the sound discretion of the trial court; whether the cross-examination about which the appellants were inquiring would have been proper could not have been determined until after the character witnesses testified. The court quite clearly did not abuse its discretion in its proposal as to the procedure to be followed.

Failure to call witnesses: The court instructed the jury that if a "potential witness could have been called by the government or by the defendants and neither side called the witness, then you may infer that the testimony of the absent witness might have been unfavorable either to the government or to the defendants or to both of them. But on the other hand, it's equally within your province to draw no inferences at all from the failure of either side to call a witness." That instruction is entirely consistent with the rule in this circuit. See United States v. Dibrizzi, 393 F.2d 642,

[413 F.2d 954]

646 (2d Cir. 1968): "As to whether it is permissible to draw any inference at all from a party's failure to call a certain witness when that witness is equally available to both parties there is indeed a split of authority. * * * However, the better rule * * * is the rule in this circuit * * *, namely, that the failure to produce such a witness is open to an inference against either party."

[413 F.2d 954]