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ARE Rule 611: Mode and order of interrogation and presentation

Alabama Rules of Evidence

Article VI. Witnesses

Rule 611. Mode and order of interrogation and presentation

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination. The right to cross-examine a witness extends to any matter relevant to any issue and to matters affecting the credibility of the witness, except when a party calls an adverse party or an officer, a director, or a managing agent of a public or private corporation or a partnership or association that is an adverse party, or a witness identified with an adverse party. In those excepted situations, cross-examination by the adverse party may be only upon the subject matter of the witness’s examination-in-chief or upon the witness’s credibility.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness, except when justice requires that they be allowed. Leading questions are permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Advisory Committee’s Notes

Section (a). Control by court. As witnesses testify and evidence is presented, several procedural issues arise. These issues are to be resolved, as under pre-existing common law, through the judge’s common sense and fairness. The judge has the primary responsibility for the effective working of the adversary system. Alford v. State Farm Fire & Casualty Co., 496 So.2d 19 (Ala.1986) (recognizing that the mode of examining witnesses and the order of introducing evidence are within the discretion of the trial court). See C. Gamble, McElroy’s Alabama Evidence § 433.01 (4th ed. 1977); J. Colquitt, Alabama Law of Evidence § 6.11 (1990). Spelling out detailed rules governing those issues is neither desirable nor feasible. See Fed.R.Evid. 611(a) advisory committee’s note.

At least three goals should guide the exercise of this judicial discretion. First, the mode and order of interrogating witnesses and presenting evidence should be such as will promote the ascertainment of the truth.

Second, efforts should be made to avoid needless consumption of time. The judge’s discretion in this regard is likewise recognized in Ala.R.Evid. 403. The trial judge, for example, has the discretion to limit the number of witnesses who may be called to testify to a particular matter. Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973). See C. Gamble, McElroy’s Alabama Evidence § 10.06 (4th ed. 1991).

Third, witnesses should be protected from harassment or undue embarrassment. Compare Ala. Code 1975, § 12-21-141 (declaring a witness’s right to be protected from improper questions and from a harsh or insulting demeanor). The importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion are factors for the judge to consider in this regard. Efforts to protect the witness, of course, should by no means foreclose efforts to discredit the witness. See Alford v. United States, 282 U.S. 687, 694 (1931) (recognizing that the trial’s judge’s duty to protect a witness arises only when the questions “go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate”). See Ala. Code 1975, § 12-21-137 (giving every party the right of cross-examination, “thorough and sifting,” as to witnesses called against him or her).

Section (b). Scope of cross- examination. Rule 611(b) continues Alabama’s present position as a “wide open rule” jurisdiction regarding matters that may be inquired about on cross-examination. Questions on cross-examination are appropriate as long as they are relevant either to credibility or to any material issue in the case. Moody v. State, 267 Ala.204, 100 So.2d 733 (1957); Cooper v. State, 526 So.2d 602 (Ala.Crim.App.1986). See Ala.R.Civ.P. 43(b) (permitting cross-examination “upon all matters material to every issue of the action”); Ala. Code 1975, § 12-21-137 (declaring that parties have the right to a cross-examination that is “thorough and sifting”). See also C. Gamble, McElroy’s Alabama Evidence § 438.01 (4th ed. 1991).

The more limited “scope of direct examination” standard is adopted, as now provided under Ala.R.Civ.P. 43(b), when one calls an adverse party or a specified agent of an adverse party and that witness is then cross-examined by counsel for the adverse party. This limit on the scope of cross-examination is extended to apply to the adverse party’s cross-examination of a witness identified with the adverse party. See Rule 611(c).

Section (c). Leading questions. This section embraces the traditional Alabama position that leading questions are not permitted during direct examination. It is within the trial judge’s discretion, however, to permit leading questions “when justice requires that they be allowed.” This exception from the “no leading questions” rule retains Alabama’s preexisting statutory provision allowing such questions “when, from the conduct of the witness or other reason, justice requires it.” Ala. Code 1975, § 12-21-138 (superseded by adoption of Rule 611(c)). Rule 43(b), Ala.R.Civ.P., likewise permits leading questions on direct examination “when justice requires.”

Under Rule 611(c), leading questions should always be permitted on cross-examination.