Presentation of evidence - Scope of examination

Learning Outcomes

This article explains the Federal Rules of Evidence governing the mode and scope of examining witnesses at trial, including:

• The distinct roles, strategic purposes, and substantive limits of direct, cross, redirect, and recross examination under FRE 611.
• The default prohibition on leading questions on direct, the broad permission on cross, and the major exceptions for hostile witnesses, adverse parties, and preliminary matters.
• Judicial control over the order and manner of questioning, including rulings on argumentative, compound, speculative, and “asked and answered” questions that often appear in MBE fact patterns.
• How the scope limitation on cross-examination operates in federal court, and how courts use their discretion to expand or restrict cross to keep the trial fair and efficient.
• The step-by-step procedure for refreshing a witness’s memory under FRE 612, what may be used to refresh, and how present recollection refreshed differs from past recollection recorded under FRE 803(5).
• The evidentiary status of writings and other items used to refresh recollection, emphasizing that they are not automatically admissible as substantive evidence by the proponent.
• The powerful rights granted to the adverse party when a writing is used to refresh, including inspection, cross-examination about the writing, and introduction of relevant portions into evidence.
• Common MBE traps involving misuse of leading questions, overbroad cross-examination, and improper treatment of documents used to refresh recollection, and how to spot the best answer choice.

MBE Syllabus

For the MBE, you are required to understand the rules controlling how witnesses are questioned at trial, with a focus on the following syllabus points:

• Distinguishing between direct examination and cross-examination and their respective purposes.
• Identifying the limitations on the scope of cross-examination under FRE 611(b).
• Recognizing when leading questions are permissible on direct and cross-examination under FRE 611(c).
• Understanding procedures for refreshing a witness’s recollection and the concept of present recollection refreshed.
• Analyzing objections related to the form of questions (e.g., leading, compound, argumentative, assumes facts not in evidence).
• Determining the admissibility and use of writings or objects employed to refresh recollection under FRE 612.

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.

1. During the direct examination of a witness in a federal civil trial, leading questions are generally:
   1. Permitted for all witnesses.
   2. Permitted only for expert witnesses.
   3. Not permitted, except in specific circumstances like questioning a hostile witness.
   4. Not permitted under any circumstances.
2. Under the Federal Rules of Evidence, the scope of cross-examination is generally limited to:
   1. Any matter relevant to the case.
   2. The subject matter of the direct examination and matters affecting the witness's credibility.
   3. Matters affecting the witness's credibility only.
   4. Only those specific facts testified to on direct examination.
3. If a witness uses a document to refresh their memory while testifying, what right does the adverse party have regarding that document under FRE 612?
   1. The adverse party has no right to see the document.
   2. The adverse party has the right to inspect the document, cross-examine the witness about it, and introduce relevant portions into evidence.
   3. The adverse party may inspect the document only if the judge permits it.
   4. The adverse party may only cross-examine the witness about the document but cannot introduce it into evidence.

Introduction

The presentation of evidence through witnesses is a central component of the trial process. Federal Rule of Evidence 611 gives the court reasonable control over the mode and order of examining witnesses and presenting evidence in order to:

• Make the procedures effective for determining the truth.
• Avoid wasting time.
• Protect witnesses from harassment or undue embarrassment.

That control includes regulating:

• The scope of examination (direct, cross, re-direct, and re-cross).
• The form of questions (e.g., leading, compound, argumentative).
• The use of writings and other items to assist a witness in testifying.

Key Term: Direct Examination
The initial questioning of a witness by the party who called the witness, aimed at eliciting favorable, non-leading narrative testimony based on the witness’s personal knowledge.

Key Term: Cross-Examination
Questioning of a witness by the opposing party, primarily to test the witness’s perception, memory, and credibility, and to elicit facts helpful to the cross-examining party.

FRE 611 interacts with other core rules:

• FRE 602 requires that a witness testify only from personal knowledge.
• FRE 401–403 ensure that testimony is relevant and not unfairly prejudicial.
• FRE 612 governs refreshing recollection.
• FRE 803(5) governs past recollection recorded.

Understanding how these provisions fit together is critical for analyzing MBE questions involving testimonial evidence, objections to the form or scope of questions, and the proper use of writings during testimony.

Direct Examination

Direct examination is the first stage of questioning for each witness, conducted by the party who called the witness. Its primary purpose is to present the calling party’s version of events through the witness’s own words.

Scope

The scope of direct examination is generally limited to matters relevant to the issues in the case. Testimony must be grounded in the witness’s personal knowledge (FRE 602).

On MBE fact patterns, watch for:

• A witness attempting to recount what someone else told them (potential hearsay),
• A witness testifying to speculative matters beyond observation (personal knowledge problem),
• Or counsel trying to bring in tangential issues (relevance and FRE 403 concerns).

Courts have discretion to control the order in which topics are covered and may require counsel to lay an adequate basis before moving to substantive points (e.g., establishing the witness’s ability to perceive and recall an event before describing it).

Form of Questions: Leading Questions Generally Prohibited

Key Term: Leading Question
A question that suggests the answer the examining party desires, often calling for a “yes” or “no” and embedding the factual assertion in the question itself.

Leading questions are generally prohibited on direct examination (FRE 611(c)).

• Rationale: The witness is normally friendly or aligned with the calling party; if counsel is allowed to suggest answers, the jury may hear the lawyer’s narrative instead of the witness’s memory.
• Typical non-leading direct questions are open-ended:
  • “What happened next?”
  • “Where were you standing when the car approached?”
  • “How did the intersection look as you entered it?”

FRE 611(c), however, recognizes several important exceptions.

Key Term: Hostile Witness
A witness who is either openly antagonistic to the examining party or whose relationship and interests make the witness presumptively biased against that party.

Under the Rules, leading questions are permitted on direct examination:

• To elicit preliminary or introductory matters
  • Example: “You are Officer Green with the City Police Department, correct?”
• When a witness has difficulty communicating because of age, infirmity, or limited memory
  • Example: questioning a very young child or an elderly witness with mild cognitive impairment.
• When examining:
  • A hostile witness (declared hostile by the court),
  • An adverse party, or
  • A witness identified with an adverse party (e.g., an employee of the opposing corporate party).

In those situations, the witness is not expected to be cooperative, so leading questions are allowed to keep the testimony moving and to test the witness’s version of events.

Key Term: Present Recollection Refreshed
A situation in which a witness initially cannot recall a fact but, after consulting a writing or other stimulus, regains an independent memory and then testifies from that refreshed memory.

Leading questions can also be used sparingly to “refresh” a witness’s narrative or to clarify details, so long as the judge does not find that the witness is simply adopting counsel’s script.

Worked Example 1.1

In a negligence trial, Plaintiff calls her 10-year-old son to testify about a car accident. The child seems nervous and confused. Plaintiff’s counsel asks, “You were scared when the car ran the red light, weren’t you?” Defense objects that the question is leading on direct. How should the court rule?

Answer:
The court may overrule the objection and allow the leading question. FRE 611(c) permits leading questions on direct when the witness has difficulty communicating due to age. A 10-year-old child who is nervous on the stand is exactly the type of witness for whom courts commonly relax the anti-leading rule.

Practical Direct-Examination Points for the MBE

On the exam, consider:

• Is the question open-ended or does it suggest the desired answer?
• Is there an applicable exception (hostile witness, adverse party, preliminary matters, vulnerable witness)?
• If the fact pattern describes a “hostile” or “uncooperative” witness, the best answer usually recognizes that leading questions are permitted.

Cross-Examination

Cross-examination follows direct and is conducted by the opposing party. It is a central mechanism for testing the accuracy and reliability of the witness’s testimony.

Purposes include:

• Probing the witness’s perception, memory, and narration of events.
• Exposing bias, interest, or motive to lie.
• Highlighting prior inconsistent statements.
• Clarifying ambiguities from direct.
• Eliciting facts favorable to the cross-examining party.

Scope Limitation (FRE 611(b))

Key Term: Scope of Cross-Examination
Under FRE 611(b), cross-examination should be limited to (1) the subject matter of the direct examination and (2) matters affecting the witness’s credibility, unless the court, in its discretion, permits inquiry into additional matters as if on direct.

Under the Federal Rules, cross-examination should be limited to:

• The subject matter of direct, and
• Matters affecting the witness’s credibility (impeachment).

The “subject matter of direct” is interpreted broadly. It encompasses not only the specific details elicited, but the general topics or events covered.

The court, however, has broad discretion to:

• Allow cross-examination into additional matters “as if on direct,” or
• Restrict cross-examination if it becomes repetitive, harassing, or unduly time-consuming.

On the MBE:

• If cross stays reasonably close to the events and issues discussed on direct, it will usually be deemed within scope.
• If cross wanders into entirely new events or issues that bear no relation to direct and do not involve credibility, it may be beyond the scope unless the court exercises discretion to allow it.

Worked Example 1.2

In a personal injury trial arising from a car accident, Plaintiff calls Witness 1, who testifies on direct examination only about the speed of Defendant's car immediately before the collision. On cross-examination, Defendant's attorney asks Witness 1 about the color of the traffic light at the time of the accident. Plaintiff objects, arguing the question is beyond the scope of direct. How should the court rule?

Answer:
The court should overrule the objection. Although the color of the traffic light was not explicitly discussed on direct, it is inherently part of the circumstances of the collision and thus within the “subject matter” of direct. In any event, FRE 611(b) gives the court discretion to permit additional inquiry as if on direct, and the question is clearly relevant to liability.

Form of Questions on Cross: Leading Questions Generally Permitted

Leading questions are generally allowed on cross-examination (FRE 611(c)).

• Rationale: The witness is usually adverse or at least not aligned with the cross-examining party, so leading questions are an efficient way to test the witness’s story.
• Typical cross questions:
  • “You were about 50 feet away when you first saw the car, correct?”
  • “You never mentioned the broken headlight in your earlier statement, did you?”

Cross-examiners may also:

• Challenge credibility by asking about prior inconsistent statements, bias, or prior convictions (subject to FRE 608–609).
• Use leading questions to pin the witness down on details testified to on direct.

Even on cross, however, the court can prohibit questions that are harassing, purely argumentative, or misleading.

Key Term: Argumentative Question
A question that does not seek new information but instead challenges the witness in a hostile or editorial way, often amounting to an argument with the witness.

Worked Example 1.3

During cross-examination, defense counsel asks, “What makes you think anyone should believe your story after you changed it three times?” Plaintiff’s counsel objects that the question is argumentative. How should the court rule?

Answer:
The objection should be sustained. The question does not seek specific facts; it is an argumentative challenge to the witness’s credibility. Counsel may explore the prior inconsistencies through specific, factual questions, but may not badger the witness under the guise of questioning.

Objections to the Form of Questions

FRE 611(a) authorizes the court to exercise reasonable control over the mode of questioning. Both on direct and cross, certain types of questions are improper and are fertile ground for MBE issues.

Key Term: Compound Question
A question that asks for multiple pieces of information at once, so that an answer such as “yes” or “no” is unclear as to which part is being answered.

Key Term: Assumes Facts Not in Evidence
A question that includes as a premise a factual assertion that has not yet been introduced or established at trial.

Key Term: Question Calling for Improper Conclusion
A question that invites a witness to state a conclusion or opinion that the witness is not qualified to draw (e.g., about someone else’s state of mind or legal conclusions).

Key Term: Asked and Answered
An objection that a question, or substantially the same question, has already been put to the witness and answered, making further repetition cumulative and potentially harassing.

Common objectionable forms include:

• Compound questions
  • Example: “You went to the bank, took out the money, and then went straight home, didn’t you?”
  • Problem: It seeks several facts in one question, making a “yes” unclear.
• Questions assuming facts not in evidence
  • Example: “When did you stop falsifying your reports?” (no evidence yet that any reports were falsified).
  • Problem: The embedded factual premise has not been established.
• Argumentative questions
  • Example: “What makes you think you can get away with lying to the court?”
  • Problem: It is more argument than inquiry; it harasses the witness.
• Questions calling for inappropriate conclusions or speculation
  • Example: “How did the company executives feel when they read your letter?” or “Was the driver negligent?”
  • Problem: The witness is not in a position to know others’ mental states or to give legal conclusions.
• Repetitive (“asked and answered”) questions
  • Once a witness has clearly answered, further repetition may be curtailed.

On the MBE, if the fact pattern highlights the structure or wording of a question—and especially if opposing counsel objects—focus on whether the objection is to the content (e.g., hearsay, relevance) or to the form (leading, compound, argumentative, assumes facts, speculation, asked and answered).

Refreshing Recollection (FRE 612)

Sometimes a witness cannot recall a fact that is important to the case. FRE 612 allows counsel to refresh the witness’s memory using a writing or other item so that the witness can then testify from present memory.

Key Term: Refreshing Recollection
The process of using a writing or other stimulus to jog a witness’s memory so that the witness can then testify from an independent, refreshed recollection rather than from the item itself.

Key Term: Present Recollection Refreshed
Testimony given after a witness consults a writing or other item, regains independent memory, and then relates the facts from that memory.

Procedure

The basic steps for refreshing recollection are:

• The witness indicates an inability to recall a relevant fact.
• The examining attorney shows or reads from a writing or presents some other stimulus (a photograph, a song, a physical object) to jog the witness’s memory.
• The witness silently reviews the item, puts it aside, and then testifies from the now-refreshed memory.

Important points:

• What can be used?
  FRE 612 does not limit the type of stimulus; it can be a document, a prior statement, a calendar, a map, or even a sound or smell.
• The item itself is not evidence
  Unless independently admissible (e.g., offered by the adverse party), the writing or object used to refresh is not admitted merely because it was used to refresh memory.
• The witness should not read verbatim from the item
  That would suggest past recollection recorded under FRE 803(5) rather than present recollection refreshed.

Adverse Party's Rights

If a witness uses a writing to refresh memory:

• While testifying, or
• Before testifying, if the court decides justice requires,

the adverse party is entitled to:

• Have the writing produced at the hearing.
• Inspect the writing.
• Cross-examine the witness about the writing.
• Introduce into evidence those portions of the writing that relate to the witness’s testimony.

This is explicitly set out in FRE 612.

On the MBE, if the proponent of the witness’s testimony uses a document to refresh recollection, the correct answer often recognizes that:

• The adverse party has broad rights to see and use the writing, and
• The refreshing party cannot block introduction of relevant portions by claiming hearsay; FRE 612 provides an independent route for admission by the adverse party.

Worked Example 1.4

During Defendant's trial for robbery, Witness testifies that she saw the getaway car but cannot recall the license plate number. The prosecutor shows Witness her notes, made immediately after the incident. Witness reads the notes, puts them down, and testifies, "Now I remember, the license plate was ABC 123." Defendant objects that the testimony is based on hearsay from the notes and that the notes themselves must be admitted for the license plate number to be considered.

Answer:
The objection should be overruled. The prosecutor properly used the notes to refresh the witness's recollection under FRE 612. The witness testified from her refreshed memory, not from the writing. The notes are not automatically admitted. However, Defendant, as the adverse party, has the right to inspect the notes, cross-examine the witness about them, and introduce relevant portions into evidence if desired.

Relationship to Past Recollection Recorded (FRE 803(5))

FRE 612 (refreshing recollection) must be distinguished from FRE 803(5) (past recollection recorded):

• Refreshing recollection (FRE 612)
  • Witness initially cannot recall.
  • After consulting a writing or other item, the witness now remembers and testifies from live memory.
  • The writing itself is not admitted by the proponent solely because it was used to refresh.
• Past recollection recorded (FRE 803(5))
  • Witness cannot recall even after trying to refresh.
  • The witness made or adopted a record when the matter was fresh and knew it was accurate.
  • The record may be read into evidence as a hearsay exception, but the proponent may not introduce the record as an exhibit (though the adverse party may do so).

On the MBE, a common trap is an answer that treats a refreshing document as automatically admissible substantive evidence offered by the refreshing party. That is incorrect.

Exam Warning

Do not confuse refreshing recollection (FRE 612), where the witness testifies from memory after consulting an item, with past recollection recorded (FRE 803(5)), where the item itself is read into evidence because the witness still cannot recall. The item used to refresh memory is not itself admitted into evidence by the party who used it to refresh, unless it independently satisfies some other rule or is offered by the adverse party.

Key Point Checklist

This article has covered the following key knowledge points:

• FRE 611 gives the court control over the mode and order of examining witnesses to further truth-finding, efficiency, and protection from harassment.
• Direct examination is conducted by the calling party, is limited to relevant matters within the witness’s personal knowledge, and normally uses non-leading, open-ended questions.
• Leading questions are generally prohibited on direct, but are permissible for preliminary matters, witnesses with communication difficulties, hostile witnesses, adverse parties, and witnesses identified with an adverse party.
• Cross-examination is usually limited to the subject matter of direct and issues affecting credibility, but the court may allow broader inquiry as if on direct.
• Leading questions are generally permitted on cross-examination.
• Courts may sustain objections to questions that are compound, assume facts not in evidence, are argumentative, call for speculation or improper conclusions, or are repetitively “asked and answered.”
• A witness’s memory can be refreshed using a writing or other stimulus, after which the witness testifies from a refreshed, independent recollection (present recollection refreshed).
• Under FRE 612, the adverse party has the right to inspect, cross-examine on, and introduce relevant portions of any writing used to refresh a witness’s memory while testifying (and sometimes even if used before testifying).
• The writing or object used to refresh recollection is not itself automatically admitted into evidence by the party who used it; its role is to stimulate memory, not to substitute for testimony.
• Past recollection recorded under FRE 803(5) is a separate hearsay exception that applies only when the witness cannot recall even after refreshment and permits reading the record into evidence.

Key Terms and Concepts

• Direct Examination
• Cross-Examination
• Leading Question
• Hostile Witness
• Scope of Cross-Examination
• Refreshing Recollection
• Present Recollection Refreshed
• Compound Question
• Assumes Facts Not in Evidence
• Argumentative Question
• Question Calling for Improper Conclusion
• Asked and Answered