Presentation of evidence - Scope of examination

Learning Outcomes

This article clarifies the Federal Rules of Evidence governing the scope of witness examination during trial. It details the permissible boundaries of direct and cross-examination, the appropriate use of leading questions, and methods for refreshing a witness's recollection. After reviewing this material, you will be equipped to analyze MBE questions involving the presentation of testimonial evidence, including objections to the form and scope of questioning.

MBE Syllabus

For the MBE, you are required to understand the rules controlling how witnesses are questioned at trial. This includes the scope of examination and the form of questions permitted. You should be prepared to:

  • Distinguish between direct examination and cross-examination.
  • Identify the limitations on the scope of cross-examination.
  • Recognize when leading questions are permissible on direct and cross-examination.
  • Understand the procedures for refreshing a witness’s recollection using a writing or object.
  • Analyze objections related to the form of questions (e.g., compound, argumentative).
  • Determine the admissibility of evidence used to refresh recollection.

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 grants the court reasonable control over the mode and order of examining witnesses and presenting evidence to make those procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment. This involves regulating the scope of examination (direct and cross) and the form of questions, particularly the use of leading questions.

Direct Examination

Direct examination is the initial questioning of a witness by the party who called that witness. Its primary purpose is to elicit testimony supporting the calling party's version of the facts.

Scope

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

Form of Questions: Leading Questions Generally Prohibited

Leading questions are generally prohibited on direct examination. A leading question is one that suggests the desired answer to the witness.

Key Term: Leading Question A question that suggests the answer the examining party desires, often eliciting a simple "yes" or "no" response.

  • Rationale: On direct examination, the witness is typically favorable to the calling party. Leading questions might encourage the witness simply to adopt the lawyer's suggested narrative rather than testifying from their own memory.
  • Exceptions (FRE 611(c)): Leading questions are permitted on direct examination in several circumstances:
    • To elicit preliminary or introductory matters (e.g., witness's name, address).
    • When a witness has difficulty communicating due to age, infirmity, or memory problems.
    • When questioning a hostile witness, an adverse party, or a witness identified with an adverse party. In these situations, the witness is presumed not to be susceptible to the calling party's suggestions.

Key Term: Hostile Witness A witness whose relationship to the calling party is such that they are presumed to be biased against that party, or a witness who demonstrates antagonism or unwillingness to testify truthfully while on the stand.

Cross-Examination

Cross-examination follows direct examination and involves questioning of the witness by the opposing party. Its purposes include testing the witness's credibility and veracity, clarifying testimony given on direct, and eliciting testimony favorable to the cross-examining party.

Scope Limitation (FRE 611(b))

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

  1. The subject matter of the direct examination; and
  2. Matters affecting the witness’s credibility (impeachment).

The court, however, has discretion to permit inquiry into additional matters as if on direct examination.

Key Term: Scope of Cross-Examination The permissible range of topics during cross-examination, generally limited by the Federal Rules to the subject matter covered during direct examination and issues related to the witness's credibility.

  • Significance: This limitation prevents the cross-examining party from using the witness to introduce their own case-in-chief during the opponent's presentation. If a party wishes to question a witness about matters beyond the scope of direct, they generally must wait until their own case presentation and call the witness themselves (though the court has discretion to allow broader inquiry on cross).

Worked Example 1.1

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 likely overrule the objection, potentially exercising its discretion. While the color of the traffic light was not explicitly discussed on direct, it relates closely to the circumstances of the collision (the "subject matter") about which the witness testified (speed). Alternatively, the court has discretion under FRE 611(b) to permit inquiry into additional matters.

Form of Questions: Leading Questions Generally Permitted

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

  • Rationale: The witness being cross-examined is typically adverse or hostile to the cross-examining party. Leading questions are an effective tool for testing the witness's testimony and eliciting specific responses.

Refreshing Recollection (FRE 612)

If a witness cannot recall a matter about which they are testifying, their memory may be refreshed using a writing or object.

Procedure

  1. The witness must state that they cannot remember the matter.
  2. The examining attorney shows the writing/object to the witness to jog their memory. The witness reviews it.
  3. The writing/object is taken away from the witness.
  4. The witness must then testify based on their refreshed memory, not directly from the writing/object itself.

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:

  1. Have the writing produced at the hearing.
  2. Inspect the writing.
  3. Cross-examine the witness about the writing.
  4. Introduce into evidence those portions of the writing which relate to the witness's testimony.

Key Term: Refreshing Recollection The process of using a writing or object to help a witness remember details about which they are testifying, where the witness testifies from their now-revived memory, not directly from the item used to refresh.

  • Distinction from Past Recollection Recorded (FRE 803(5)): Refreshing recollection (FRE 612) is distinct from the hearsay exception for past recollection recorded (FRE 803(5)). Under FRE 803(5), if a witness still cannot remember after attempting to refresh their memory, the writing itself may be read into evidence if a proper basis is established (witness once had knowledge, record made/adopted when fresh, accurately reflects knowledge, witness cannot now recall). With refreshing recollection, the writing itself is not evidence (unless introduced by the adverse party).

Worked Example 1.2

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 to the testimony based on the notes.

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 by reading the notes into evidence. Defendant's counsel is entitled to inspect the notes and cross-examine the witness about them.

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 refreshing party.

Key Point Checklist

This article has covered the following key knowledge points:

  • The court controls the mode and order of witness examination (FRE 611).
  • Direct examination scope is generally limited to relevant matters and personal knowledge.
  • Leading questions are generally prohibited on direct, except for preliminary matters, difficult witnesses, or hostile/adverse witnesses.
  • Cross-examination scope is generally limited to the subject matter of direct and credibility (FRE 611(b)).
  • Leading questions are generally permitted on cross-examination.
  • A witness's memory can be refreshed using a writing or object (FRE 612).
  • The item used to refresh memory is not evidence (unless offered by the adverse party).
  • The adverse party has rights to inspect, cross-examine on, and introduce relevant portions of the item used to refresh memory while testifying.

Key Terms and Concepts

  • Leading Question
  • Hostile Witness
  • Scope of Cross-Examination
  • Refreshing Recollection
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