A companion piece is found in the discretion vested in the judge to exclude evidence as a waste of time in Rule 403(b). Item (2) is addressed to avoidance of needless consumption of time, a matter of daily concern in the disposition of cases. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, McCormick §5, the order of calling witnesses and presenting evidence, 6 Wigmore §1867, the use of demonstrative evidence, McCormick §179, and the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances. Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. The rule sets forth the objectives which he should seek to attain. The ultimate responsibility for the effective working of the adversary system rests with the judge. Spelling out detailed rules to govern the mode and order of interrogating witnesses presenting evidence is neither desirable nor feasible. Notes of Advisory Committee on Proposed Rules (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. Ordinarily, the court should allow leading questions: Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. The court may allow inquiry into additional matters as if on direct examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. (3) protect witnesses from harassment or undue embarrassment. (1) make those procedures effective for determining the truth The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: ![]() ![]() Moving it along empowers the decision-maker-judge or jury-to focus on the witness when important questions, such as those dealing with matters in dispute, are asked.(a) Control by the Court Purposes. Yet it is also important to learn where to use leading questions to move the testimony along. ![]() Learning how to use words like “who,” “what,” “when,” “where,” and “how,” or similar words that place the witness in the driver’s seat as the storyteller, is an important skill. None of this is to say that students should not be taught how to ask non-leading questions or how to develop the skill of using prompts that turn the witness on direct examination into the storyteller. Q: Officer Smith, you were riding in the police cruiser with Officer Jones when Officer Jones pulled over my client’s vehicle?Ĭounsel: Your Honor, I am just trying to move this proceeding along this is foundational, and this is not a matter in dispute. And with court systems burdened with litigation-especially as we emerge from the pandemic-cutting to the chase is an efficiency that moves dockets.įor a new lawyer or one learning litigation skills, FRE 611 is empowering. Think about a recent conversation with a friend or relative: it is human nature to cut to the chase with a leading question. Interposing leading questions under these circumstances also makes the dialogue we call “direct examination” more natural and less formulaic. Doing so creates efficiencies it moves the case along. The rules of evidence do not categorically proscribe leading questions on direct they may be used “as necessary to develop the witness’s testimony.” Questions that are foundational or involve matters that are not in dispute are the types of questions that can be posed as leading questions. (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Yet FRE 611 is a gold mine of information because, among other things, it specifically addresses the use of leading questions. It is also a rule that is probably not taught in law school evidence classes. Federal Rule of Evidence 611 outlines the “Mode and Order of Examining Witnesses and Presenting Evidence.” It is a short and easily understood rule. ![]() Perhaps students are taught a practice without an appreciation for the source of the practice. Amidst their quandary, students find themselves perplexed when they watch demonstrations or clips from real trials and see leading questions frequently used on direct examination. For their part, students struggle to formulate lines of inquiry devoid of leading questions. Trial instructors across the country implore students not to ask leading questions on direct examination.
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