Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER IV: Competency, Examination, and Credibility of Witnesses
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B. Form and Scope of Examination of Witnesses (360)

Problem - Direct Examination: Accident (361)

Answer and Analysis:

The problem with this examination is that no foundation has been laid identifying the witness. The examiner should first establish that the witness is the plaintiff in the action, that the witness is acquainted with D, the defendant in the action, and that the witness is familiar with the scene of the accident. In addition, "Where were you on June 1?" is vague because it is not sufficiently specific as to time. The witness was at many different places on June 1.

The problems with "Did defendant drive his car into you on June 1?" is that there is no foundation showing first-hand knowledge and the question is leading. The most difficult technical aspect of direct examination is to elicit the witness's story without leading, on the one hand, and without asking questions which call for a narrative on the other. Typical non-leading nonnarrative questions are of the who-what-when-where variety.

A better examination might go something like this:

"What is your name?"

"Where do you live?"

"Where were you on June 1, at approximately 2:30 p.m?"

"What were you doing, then?"

"Where were you going?"

"What did you do as you approached the roadway?"

"What did you do next?"

"What happened as you stepped into the road?"



Problem - Direct Examination: Car Theft (362)

Answer and Analysis:

The question is leading. A leading question might be permissible at the outset of an examination dealing with matters which are not crucial for purposes of setting the stage. But on the crucial points of a direct examination leading questions are objectionable.

Proper questions would be:

"What happened when you returned from the store?"

"What did you see."



Problem - Direct and Cross-Examination: High Sticking (362)

The point:

The rules regarding the form of examination are guidelines only. Sometimes leading is allowed on direct and not on cross.

Answer and analysis:

(1) "Mr. D. struck you with this didn't he?"

Ordinarily this question would be objectionable because it is leading. However FRE 611(c)'s rule against leading on direct examination is suggestive rather than absolute. The trial judge has a wide range of discretion and control over this area. The advisory Committee's Note lists many exceptions to the general rule against leading on direct including situations where the witness's recollection is exhausted. Once a witness's recollection is exhausted or he otherwise gets stuck counsel may be permitted to lead but he should do so only after asking permission and then only to the minimum amount necessary to get the witness unstuck.

(2) "It was the defendant, D, who struck him wasn't it?"

Boor is the first defense witness. (Ignore his also being the second witness at D's trial.) Ordinarily, as cross-examination the question would be completely permissible. However in this case Boor as a local may be a hostile witness or a witness identified with an adverse party (FRE 611(c)) permitting the defense to treat Boor as if on cross but requiring the prosecution to question him as if on direct. The point is that proponents of witnesses should not be allowed to shield their witness's infirmities behind carefully constructed leading question. Leading questions are not objectionable because they suggest the answer (although that is a way to recognize them); most direct examinations are done with witnesses whom the lawyer has prepared and thus to whom all sorts of suggestions may have been made. Rather the purpose of the rule is to have the witness tell the story in a manner that exposes the witness's testimonial capacities. This is best done when the witness has to formulate an answer to an open-ended question.

More acceptable would have been:

"Who struck O'Casey?"

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