20 - Examination of Witnesses

Question 1

Issues -

Answer 1

1. Extent of judicial control over the trial
2. proper methods of eliciting testimony on direct examination
3. scope of cross-examination
4. purpose of redirect and recross exam
5. use of leading questions
6. “coaching” of Ws
   There are many others

Question 2

Judicial Control of Trial

Answer 2

611(a) - Judge may exercise reasonable control over trial including mode and order of examining Ws and presenting evidence
- In exercising, court is guided by several objectives: 1. ascertaining the truth 2. avoiding wasting time and 3. protecting witnesses from harassment and undue embarrassment

• 611(a) covers form of questioning, order of calling Ws, use of demonstrative evidence, motions in limine, altering order of proof. Rebuttal and surrebuttal and reopening cases after party has rested fall in this category.

Question 3

611 authorizes

Answer 3

A. Harassment and Undue Embarrassment
B. Testimony in Narrative Form
C. Continuances

Question 4

Leading questions

Answer 4

Leading in direct examination is PROHIBITED

Exceptions -
Preliminary Matters - when eliciting “undisputed prelim matters” like W’s name, address etc
Necessity - often with child witnesses, adult with communication problems, W whose recollection is exaused, and non-english speaking through translator, disability, or nervous
Hostile Witness - W must be evasive, reluctant, or unwilling to testify
Adverse party and associates - adverse party and a W identified with an adverse party are automatically considered “hostile” Ws.

In Cross-Exam - PERMITTED

Question 5

Scope of Cross-Exam

Answer 5

1. Wide-open rule - adopted by some states - permits cross-exam on all relevant matters - even here the trial court has authority to control and limit scope of cross
2. Restrictive rule - 611(b) adopts 2 - cross-examination is limited “the subject matter of the direct examination and matters affecting the witness’s credibility

Main difference is the order of proof

Question 6

Redirect and Recross-Exam

Answer 6

No rules in FR but in theory -
Redirect ex - limited to new matters raised on cross-exam
Recross - limited to new matters raised on redirect

Question 7

Preparation “Coaching” of Witnesses

Answer 7

• counsel allowed to interview witnesses prior to trial
  Limitations - an attorney cannot ethically assist in the fabrication of testimony. Attorney can be sanctioned if they influence the witness to alter testimony in a false or misleading way