EXAMINATION OF WITNESSES: FRE 611
The examination of witnesses raises a host of issues: (1) judicial control of the proceedings, (2) direct examination, (3) cross-examination, (4) redirect and recross examination, (5) leading questions, and (6) "coaching of witnesses."
Rule 611(a) is written in broad terms. Among other things, the trial judge has the authority to re-open the case, alter the order of proof, permit the recall of a witness, and grant continuances. In addition, the judge may authorize special methods to deal with child witnesses and set time limits for the presentation of evidence. The court’s control also extends to jury issues, such as the use of exhibits in the jury room, jury questioning, and jury notetaking.
Narrative testimony. Testimony may be elicited by specific interrogation (question and answer) or by free narrative.
Leading questions are prohibited on direct examination because it is thought that a witness is particularly susceptible to suggestion under questioning by the party calling the witness. A leading question is one that suggests the answer.
Exceptions. Rule 611(c) recognizes several exceptions to the prohibition against leading questions on direct examination. They are permitted (1) when necessary to develop a witness’s testimony, (2) when the witness is “hostile,” (3) when the witness is an adverse party, and (4) when the witness is identified with an adverse party.
There are two principal rules on the scope of cross-examination: (1) the wide-open rule and (2) the restrictive rule. Federal Rule 611(b) adopts the restrictive rule. Under that rule, cross-examination is “limited to the subject matter of the direct examination and matters affecting the credibility of the witness.”
In theory, redirect examination is limited to new matters raised on cross-examination, and recross is limited to new matters raised on redirect. Because trials are rarely this neat, the trial court has discretion to permit the elicitation of new matters on redirect and recross-examination.
There are numerous trial objections that are not specifically referenced in the Rules of Evidence. Some of the more common are: (1) argumentative questions, (2) asked and answered, (3) assuming facts not in evidence, (4) misleading questions, (5) compound questions, and (6) nonresponsive answers.
Under the adversary system as practiced in this country, counsel is allowed to interview witnesses prior to trial. Nevertheless, an attorney cannot ethically assist in the fabrication of testimony. Model Rule 3.4(b) states that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law."