“Wait, What?” Moments in Trial: Here’s Our Home Base

“Wait, What?” Moments in Trial: Here’s Our Home Base

Problem. It is easy to be confused in the courtroom. We are juggling a lot of balls in the air, building our client’s case and dismantling the adversary’s case. There are multiple variables hitting us at each moment: the testimony, the emotional atmosphere, objections, evidentiary foundations, procedural issues, stress, and ever-present time pressures. Things that we did not anticipate do happen. Things that we planned for do happen but unfold in unexpected ways. Things that we planned for were not allowed to happen. Things strike us as amorphously confusing and unfair at the same moment. The adversary is trying to stop us from doing something or is doing something we want to stop.

Building My Case

Time & Stress

Surprises

What do we do? What do we say? Where is our home base?

MRE 611 and 403. The good news is that we have two home bases to touch. Home bases are like our headquarters, places of relief and strength for when the going gets tough.

Rule 611 Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court must exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Appearance of Parties and Witnesses. The court must exercise reasonable control over the appearance of parties and witnesses so as to:

(1) ensure that the fact-finder can see and assess their demeanor; and

(2) ensure their accurate identification.

(c) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. But the judge may limit cross-examination regarding matters not testified to on direct examination.

(d) Leading Questions.

(1) When Allowed. Leading questions should not be used on direct examination except as necessary to develop a witness’s testimony. Ordinarily, the court should allow leading questions:

(A) on cross-examination; and

(B) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

(2) Intent to Ask Not Required. It is not necessary to declare the intent to ask leading questions before the questioning begins or before the questioning moves beyond preliminary inquiries.

Rule 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

The Rules in Action. Our first of the two home bases is MRE 611. This home base declares that the judge controls the courtroom. Within reason, fairness, and discretion, the judge can do anything related to the mode and order of the trial. Mode means the manner in which the trial will be done, and order means the arrangement or sequencing of the evidence.

MRE 611

• Control mode & order
• Goals:
• Find truth
• Save time
• Don’t harass or embarrass

The evidence rules do not dictate a one-size-fits-all approach to the presentation of the trial. It is common for the judge to follow the customary order used in common law, but that is not required. Questioning techniques—open-ended on direct and leading on cross—are well-established, but alternative techniques can be employed.

Quick Hits:

• The judge controls the courtroom. Together with MRE 403, MRE 611 permits all forms of trial management.
• The judge controls the scope and order of evidence. The judge can: establish time limits; allow testimony out of order; interrupting testimony to allow other witnesses to testify out of order; permit voir dire of witnesses; expand the scope of cross-examination to avoid recalling the witness; take any step to enhance understanding and to avoid prejudice, waste of time, cumulative evidence, etc.; and question witnesses directly pursuant to MRE 614.
• Voir dire is a protection against the introduction of inadmissible evidence, including inadequate foundations.
• The scope of cross-examination is broad and includes any topic, inference, assumption, or conclusion arising from the direct examination. Credibility is always at issue. The adversarial system itself requires a full and fair opportunity to challenge an opponent’s evidence, arguments, and credibility. Impeachment, however, can be controlled to prevent harassment or embarrassment.
• The judge governs the scope of redirect and re-cross (e.g., addressing topics of the prior examination to explain, develop, supplement, qualify, limit, avoid, rehabilitate, etc.). Questions deliberately omitted during a prior examination (the party’s first opportunity) may be precluded if not related to these purposes. On the other hand, questions omitted by oversight during the prior examination may be allowed on redirect or re-cross. Some repetition may be allowed, but pointless lines of questioning may be cut off.
• The judge can allow matters not addressed on the prior examination pursuant to MRE 611(a) or limit them pursuant to MRE 611(c).
• MRE 611 provides the basis for the vast majority of well-known objections that were allowed under common law but not otherwise specified in the rules of evidence (e.g., ambiguous, argumentative, asked and answered, assumes facts not in evidence, compound question, misquotes the witness, calls for a narrative, nonresponsive, etc.).
• MRE 611(a) permits the use of demonstrative aids throughout the trial, including illustrative aids during opening statement and closing argument. See also MRE 1006 (summaries of voluminous documents).
• “Leading” refers to the suggestion of a specific answer (i.e., an answer desired by the questioning attorney). Questions may be deemed leading because of the form or wording, the emphasis of a word or phrase, the tone used, or nonverbal conduct displayed during the question. Questions on direct examination that offer a choice or that suggest a topic are not leading.
• Leading questions may be used during direct examination to develop a witness’ testimony (e.g., communicative limitations, exhausted recollection, impeachment, frightened, unwilling, child, etc.) and for preliminary or insignificant matters. The judge also can allow or disallow the use of a memory aid (for refreshing recollection) or demonstrative evidence.
• Leading questions may be used with hostile witnesses or witnesses identified with the adverse party (e.g., relatives, employees, agents, etc.). The friendly side should examine the witness as if conducting redirect.

Our second of the two home bases is MRE 403. The focus here is on discretionary control and practical judgments for all trial concerns. There are lurking “dangers” and “considerations.” The dangers are unfair prejudice, confusion of issues, and misleading the jury. The considerations are undue delay, waste of time, and needless presentation of cumulative evidence.

MRE 403

•Dangers

•unfair prejudice

•confusion of issues

•misleading [jury]

•Considerations

•undue delay

•waste of time

•needlessly cumulative

Relevant evidence may be excluded to avoid prejudice and other dangers, though the objecting party bears the burden of justifying exclusion. Prejudice is the counterbalance to relevance. Harm or risk must substantially outweigh probative value.

Quick Hits:

• The judge controls the courtroom. Together with MRE 611, MRE 403 permits all forms of trial management, including the making of preliminary rulings that are not final.
• MRE 403 sets up the exclusion of almost anything and grants tremendous discretion to the judge. Any evidence that meets a trial-concern threshold is subject to exclusion even if no other rule requires exclusion. Any pragmatic judgment concerning another rule is fair game, including the form of questions.
• Relevant evidence may be excluded for a variety of reasons, including: to prevent unfair prejudice (bias, emotion, and passion), to reduce the risk of confusion and misleading the trier of fact (diversion from focal point of trial), to conserve time and resources, to avoid needlessly cumulative evidence, and sometimes, to protect privacy. Evidence that otherwise passes muster under another rule is still subject to exclusion.
• MRE 403 involves a balancing of interests and reflects that reality that life is short, and we can’t have it all. Sometimes, the whole truth is simply too impractical and inefficient. While MRE 402 releases even slightly relevant evidence down the path toward admission, MRE 403 provides checkpoints and potential roadblocks.
• Still, MRE 403 favors admission. The risks and costs must outweigh the benefits. Exclusion is warranted only when the outweighing is substantial. The burden is on the objecting party. Since the balancing test favors admissibility, the rule suggests that the judge should allow some risks of negative impact.
• The importance of the evidence corresponds to the level and weight of the danger required to exclude it.
• As opposed to proper prejudice (i.e., the relevant truth hurts), improper prejudice seeks a decision on an improper basis, usually an emotional one. Unfair prejudice presents the danger of a decision on an improper basis (e.g., sympathy, bias, strong emotional reaction, etc.) rather than on merits of the case.
• Confusion and misleading refer to dangers of distraction (e.g., interjecting new issues with new witnesses, especially on insignificant matters).
• Time issues refer to repetition and prolonged extension of facts without corresponding probative value. The judge decides the amount of testimony concerning any disputed fact.
• Unfair surprise is not included in MRE 403, but may support exclusion, especially when discovery sanctions are appropriate or when a continuance is not practical.
• Note that the balancing of interests has already been struck in some instances. Specific rules sacrifice the whole truth for interests such as privilege, insurance, subsequent repairs, character, and habit, and the like.

MRE 611 & 403

• inherent authority to control courtroom
• all forms of trial management within reasoned discretion
• scope of direct, cross, redirect & time limits
• questioning techniques & leading questions
• steps to enhance understanding & use of demonstrative aids
• use of memory aids for refreshing
• impeachment & protections for witnesses
• preliminary rulings
• well-known objections not stated in MREs
• questioning witnesses directly
• arranging & sequencing evidence
• taking testimony out of order & interrupting testimony
• voir dire of witnesses
• recalling witnesses
• balancing importance & dangers
• weighing prejudice against relevance
• weighing emotions against merits
• weighing distractions against focus of trial
• weighing “whole truth” against the impractical & inefficient
• weighing time & resources against repetition & the insignificant