Examination of Witnesses
The presentation of evidence begins with the calling of witnesses by the attorney. The attorney does the initial questioning of the witness and this is commonly called the direct examination. A successful direct examination can be accomplished by controlling the witness without hampering his/her ability to testify freely, truthfully, and honestly. This balance can only be reached by thoroughly preparing for the questioning. The purpose of direct examination is to get the witness to testify about facts that support the plaintiff’s case.
Since there is no set method for asking questions, certain latitude should be allowed in the form of asking questions to witnesses. The judge has control over an attorney’s examination of a witness and dictates the form of questions presented to the witness. The judge has wide latitude to impose reasonable limits on questioning at trial based on concerns regarding harassment, prejudice, confusion of issues, a witness’s safety, and conservation of the court’s time.
The following are some frequently made objections:
- Leading question;
- Compound question;
- Vague question;
- Argumentative question;
- Asked and answered or repetitive;
- Assuming facts not in evidence or hypothetical; and
- Non-responsive questions.
The judge has discretion to stop repetitive or annoying questioning. Variations on a theme, however, are permissible, so long as the identical information is not endlessly repeated. If the questions are not asked and answered then it can be brought to the notice of the judge and the manner in which it differs pointed out.
Questions which are so indefinite, vague, or which leave it almost entirely to the discretion of the witness as to what matters the witness will elucidate, are improper[i]. If a timely objection is made, the judge shall sustain such objections and the witness shall not be allowed to answer.
Even though questions that lead to a narrative statement are generally improper, the trial court shall be vested with wide discretion to permit a witness to testify. Generally, a case will not be taken from the jury or a judgment reversed because an improper question is propounded to a witness where such question is unanswered.
Generally, a witnesses cannot state opinions or give conclusions unless they are experts or are especially qualified to do so. Witnesses qualified in a particular field as an expert witnesse may give their opinion based on the facts in evidence and may give the reason for that opinion. The witness is not allowed to testify that a legal standard has or has not been met. Therefore, questions which call for conclusions of law should be avoided; especially an opinion on the ultimate issue for the jury. This is improper and should be avoided.
Questions which require a witness to comment upon the testimony of another witness should be excluded. It is not competent for a witness to state merely that another person knew a thing[ii]. A witness shall state an opinion as to the credibility of a child witness’s general competence and ability to understand some specific things. Compound questions which involve several questions are improper and objectionable and such objections shall be properly sustained.
Questions assuming facts and hypothetical questions are generally improper. The trial courts are afforded wide discretion to determine the adequacy of hypothetical questions presented to witnesses during the course of a trial. An ALJ has discretion in framing hypothetical questions as long as they are supported by substantial evidence in the record.
However, an affirmative answer to a hypothetical question does not constitute substantial evidence when the hypothesis fails to conform to the facts. For a vocational expert’s opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record and it must be in response to proper hypothetical questions which fairly set out all of claimant’s impairments[iii].
A leading question is a question that suggests the answer or contains information which the examiner is looking for. Although leading questions are generally not permitted on direct examination, there are certain exceptions to this rule. Depending on the circumstances, leading questions shall be objectionable or proper. Leading questions may be used during a direct examination in the following situations:
- Preliminary matters such as a person’s name, address, and background;
- Undisputed facts, for example: “I would like to direct your attention to October 13, 2005, on that day you were in Paris, were you not?”;
- An adverse or hostile witness;
- When a witness has difficulty in speaking;
- When necessary to refresh a witness’s recollection; and
- When encountering an unwilling, reluctant, or recalcitrant witness.
It is the duty of a witness to answer questions truthfully during examination. It is common for witnesses to unexpectedly volunteer inadmissible statements. Improper responses shall be stricken. A witness shall be required to answer all relevant questions, even if the witness is a party and the witness’s testimony might further the opposing party’s case. When a question calls for an answer of either yes or no, the witness is ordinarily permitted to explain the answer[iv].
Voluntary statements or non-responsive answers by law enforcement officers shall be particularly problematic when such remarks are made by an experienced police officer. However, such voluntary statements made by police officers at criminal trials create prejudicial error, depending on various factors. A prosecutor has the duty to guard against statements by the prosecution’s witnesses containing inadmissible evidence. If the prosecutor believes that a witness may give an inadmissible answer during his examination, the prosecutor should warn the witness to refrain from making such a statement. The admission of a law enforcement officer’s hearsay testimony is harmless or not a prejudicial error, where the statement or answer is cumulative with respect to other compelling evidence in the record or if it is cured by admonition.
The redirect examination of witnesses rests largely in the discretion of the trial court. The general principle that in order to warrant a reversal the error must have been prejudicial to some substantial right of the appellant applies to rulings of the trial court on matters relating to the redirect examination of witnesses. The main purpose of redirect examination is to clarify the subject matter of the direct examination and any new matter elicited on cross-examination. A witness can clarify certain relevant matters in his/her testimony through redirect examination.
When a witness forgets things, the attorney can refresh his/her memory[v]. In such circumstances, the attorney may attempt to refresh the witness by asking a leading question, showing the witness a document, which can be prepared by the witness him/herself, using any other object or prop to refresh.
The Federal Rules of Evidence entitle an adverse party to discovery of any writing, even one subject to privilege, used to refresh a witness’s memory for the purpose of testifying, whether his memory is refreshed while testifying, or before testifying, if the court in its discretion determines it is necessary in the interests of justice[vi]. The Maryland rule, unlike the Federal rule, retains the rule’s original formulation and allows access only to documents actually used to refresh recollection while testifying[vii].
Therefore, although documents used to refresh a witness’s memory while testifying must be produced, the rule leaves it up to the court’s discretion whether to require production of documents reviewed to refresh a witness’s memory in preparation for testifying. In exercising discretion under the rule, a court balances the need for disclosure, in order to examine the witness fully, against the need to protect work product, in order to encourage careful preparation[viii].
There is a distinction between refreshing recollection and a past recollection recorded. In the former situation, the notes or memoranda used by the witness are not placed in evidence, but are used to trigger his psychological mechanisms of recognition and recollection, enabling a witness to then testify from the witness’s own memory.
Once attempts are made to refresh the memory of a witness, the witness is expected to testify the matter substantially from memory and not by reading from any document. A written memorandum can be used to refresh a witness’s memory and the witness may be required to use the same. This may be done at any stage of the examination of the witness.
If the attempt to refresh memory is unsuccessful, the document itself is not independently admissible unless it satisfies a hearsay exception. Foundation requires proof that the document was made or adopted by the witness while the event was fresh in the witness’s memory and that the record is remembered to be accurate.
[i] Southwest Metals Co. v. Gomez, 4 F.2d 215, 218 (9th Cir. Ariz. 1925).
[ii] Slaughter v. Heath, 127 Ga. 747 (Ga. 1907).
[iii] Colevas v. Barnhart, 2003 U.S. Dist. LEXIS 3960 (W.D. Va. 2003).
[iv] Fulgium v. State, 4 S.W.3d 107 (Tex. App. Waco 1999).
[v] USCS Fed Rules Evid R 612.
[vi] USCS Fed Rules Evid R 612.
[vii] Coryn Group II, LLC v. O.C. Seacrets, Inc., 265 F.R.D. 235 (D. Md. 2010).
[viii] USCS Fed Rules Evid R 612.