Learning Outcomes
After reading this article, you will understand how courts control the mode and order of presenting evidence in civil and criminal trials. You will be able to identify the judge’s powers to regulate the sequence of witnesses, the use of leading questions, and the exclusion of witnesses from the courtroom. You will also know the key rules and exceptions tested on the MBE.
MBE Syllabus
For MBE, you are required to understand how evidence is presented and managed during trial. This includes the judge’s authority over the order of proof and the conduct of witnesses. You should be able to:
- Recognize the court’s discretion to control the mode and order of presenting evidence.
- Identify when leading questions are permitted.
- Understand the rules for excluding witnesses from the courtroom.
- Apply the rules regarding the sequence of witness testimony.
- Distinguish between direct and cross-examination procedures.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
Which of the following is within the trial judge’s discretion regarding the presentation of evidence?
- Requiring all witnesses to testify in alphabetical order
- Controlling the sequence of witnesses to improve efficiency and truth-finding
- Allowing only the plaintiff to call witnesses
- Mandating that all evidence be presented before opening statements
-
When are leading questions generally permitted on direct examination?
- Never
- Only when the witness is hostile or adverse
- Always
- Only if the opposing party consents
-
Under the Federal Rules, which witness may NOT be excluded from the courtroom upon a party’s request?
- The plaintiff in a civil case
- A party’s expert witness
- A person essential to a party’s case presentation
- A party’s spouse
Introduction
The mode and order of presenting evidence at trial are governed by rules that give the judge broad discretion to ensure fairness, efficiency, and effective fact-finding. This includes the power to determine the sequence of witness testimony, the use of leading questions, and the exclusion of witnesses from the courtroom. Understanding these rules is essential for answering MBE questions on trial procedure.
Judicial Control Over Presentation of Evidence
The trial judge has authority to regulate how evidence is presented. This includes deciding the order in which witnesses testify, the manner of questioning, and the exclusion of witnesses to prevent them from hearing others’ testimony.
Key Term: Mode and Order of Presentation
The set of rules and judicial powers that govern how evidence and witness testimony are introduced and sequenced during trial.
Purposes of Judicial Control
The court exercises control to:
- Make the trial effective for truth-finding.
- Avoid wasting time.
- Protect witnesses from harassment or embarrassment.
The judge may alter the normal sequence of witnesses or evidence if it will help clarify the issues or prevent confusion.
Key Term: Judicial Discretion
The authority of the trial judge to make decisions on the conduct of the trial, including the order and manner of presenting evidence.
Sequence of Witnesses and Evidence
The usual order is:
- Plaintiff/prosecution presents evidence first.
- Defendant presents evidence next.
- Rebuttal evidence follows, if needed.
However, the judge may change this order to ensure fairness or efficiency.
Leading Questions
A leading question suggests its own answer. Leading questions are generally not allowed on direct examination but are permitted:
- On cross-examination.
- When necessary to develop the witness’s testimony (e.g., for background or undisputed facts).
- When the witness is hostile, adverse, or identified with an adverse party.
- When the witness has difficulty communicating due to age or infirmity.
Key Term: Leading Question
A question that suggests the answer desired by the examiner, often answerable by "yes" or "no".
Exclusion of Witnesses (Sequestration)
Upon request by any party, or on its own, the court must order witnesses excluded from the courtroom so they cannot hear the testimony of other witnesses. This is to prevent witnesses from shaping their testimony to match others.
There are exceptions. The following may not be excluded:
- A party who is a natural person.
- A designated representative of a party that is not a natural person (e.g., a corporate officer).
- A person essential to a party’s claim or defense (such as an expert whose presence is necessary to advise counsel).
- A person authorized by statute to be present.
Key Term: Exclusion of Witnesses
The process of ordering witnesses to remain outside the courtroom during the testimony of others to prevent collusion or tailoring of evidence.
Direct and Cross-Examination
- Direct examination: The party who calls the witness questions them first, usually without leading questions.
- Cross-examination: The opposing party questions the witness, generally allowed to use leading questions and limited to matters covered on direct and issues of credibility.
Worked Example 1.1
During a civil trial, the plaintiff calls a witness to testify about an accident. The plaintiff’s attorney asks, “Isn’t it true that you saw the defendant run the red light?” The defense objects that this is a leading question. Should the objection be sustained?
Answer: Yes. On direct examination, leading questions are generally not permitted unless the witness is hostile or the question is for background information. Here, the question is leading and the witness is not shown to be hostile, so the objection should be sustained.
Worked Example 1.2
In a criminal trial, the prosecution requests that all witnesses be excluded from the courtroom. The defense objects to excluding the defendant’s expert witness, arguing that the expert’s presence is essential to the defense. What should the judge do?
Answer: The judge should allow the expert to remain if the expert’s presence is essential to the party’s case. The rules specifically permit essential persons to remain even when other witnesses are excluded.
Exam Warning
On the MBE, do not assume that all witnesses can be excluded. Parties, essential persons, and statutory representatives cannot be excluded even if a party requests it.
Revision Tip
Remember: Leading questions are allowed on cross-examination and when dealing with hostile or adverse witnesses. On direct, avoid leading unless an exception applies.
Key Point Checklist
This article has covered the following key knowledge points:
- The judge controls the mode and order of presenting evidence to ensure fairness and efficiency.
- The court may alter the sequence of witnesses and evidence as needed.
- Leading questions are generally barred on direct but allowed on cross and for hostile or adverse witnesses.
- Witnesses may be excluded from the courtroom, but parties, essential persons, and statutory representatives cannot be excluded.
- Direct examination is limited to non-leading questions; cross-examination allows leading questions and is limited to the scope of direct and credibility.
Key Terms and Concepts
- Mode and Order of Presentation
- Judicial Discretion
- Leading Question
- Exclusion of Witnesses
