Intro to the Federal Rules of Evidence - 35

B. METHODS OF EXAMINATION OF WITNESSES (FRE 611)

1. Judicial Control of Trial (FRE 611(a)
FRE 611(a) is written in broad terms. Among other things, the trial judge has the authority to
reopen 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 note-taking.

2. Scope of Cross-examination (FRE 611 (b))
Under the rule, cross examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses.

EXAMPLE
Q (CROSS-EXAMINER): Let’s now turn to the events after the board meeting on June 1, and specifically to the meeting on June 15. At that next meeting, didn’t you …
OPPOSING LAWYER: Objection. Beyond the scope. We didn’t go into that meeting on direct.
JUDGE: Sustained. Counsel, I’ll give you leeway to go into that meeting, but you’ll have to do it as if on direct.

3. Leading Questions
Leading questions are prohibited on direct examination because it is thought that a witness is particularly susceptible to suggestion under question by the party calling the witness. A leading question is one that would cause the reasonable person to believe that the question is seeking one specific answer rather than another, i.e., the one wanted by the questioner.

Exceptions to no leading question on direct (FRE 611(c)):
1) when necessary to develop a witness’s testimony
2) when the witness is hostile
3) when the witness is an adverse party
4) when the witness is identified with an adverse party.

EXAMPLE
Q: The right was red when the two cars collided, right?
A: Yes.
Q: And it was dark at the time?
A: Yes.
Q: Raining?
A: Yes.
Q: No street lights on that corner?
A: Right.
Q: And you were over 100 feet from the corner when the two cars collided, isn’t that true?
A: Yes.

4. Other common objections
There are numerous trial objections that are not specifically referenced in the FRE. Some of the more common are:

Argumentative questions: are leading questions that reflect the examiner’s interpretation of the facts.
“Why were you driving so recklessly?”

Misleading: one that cannot be answered without making an unintended admission.
“Do you still beat you wife?”

Assuming facts not in evidence: questions that assumes that a disputed fact is true when it has not been established in the case.
In case where there is no evidence that D had been drinking, “After D finished his fifth beer, he got up and went to his car, didn’t he?”

Compound questions: requiring a single answer to more than one question.
“Did you see and hear the intruder?”

Nonresponsive answers: a witness’s response must address only the specific question asked by the examining attorney; otherwise the testimony is subject to being stricken for non-responsiveness.
Q: Did you leave your house on Sept. 22?
A: I went to the dentist and then to the grocery store.
This answer is nonresponsive, as the question calls for a “yes,” or “no” response.