Alaska Comm. R. Evid. 611

As amended through July 24, 2024

Rule 611 - Mode and Order of Interrogation and Presentation

(a)Control by Court. Subdivision (a) mirrors Federal Rule 611(a). The Advisory Committee's Note on that subdivision comprises the bulk of this comment.

Spelling out detailed rules to govern the mode and order of interrogating witnesses and presenting evidence is neither desirable nor feasible. The ultimate responsibility for the effective working of the adversary system rests with the judge. The rule sets forth the objectives which he should seek to attain.

Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, McCormick (2d ed.) § 5, the order of calling witnesses and presenting evidence, 6 Wigmore § 1867, the use of demonstrative evidence, McCormick (2d ed.) § 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 (2) is addressed to avoidance of needless consumption of time, a matter of daily concern in the disposition of cases. A companion piece is found in the discretion vested in the judge to exclude evidence as a waste of time in Rule 403.

Item (3) calls for a judgment under the particular circumstances whether interrogation tactics entail harassment or undue embarrassment. Pertinent circumstances include the importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion. McCormick, (2d ed.) § 42.

(b)Scope of Cross-Examination. Alaska authorities are in agreement with the Federal Rule limiting cross-examination to matters testified to on direct examination, along with matters concerning the credibility of the witness. In a civil case the main import of this rule is on the order of presentation of the evidence, since counsel may later, as part of his own case-in-chief, recall a witness who has previously testified and ask about matters not touched upon by his adversary. In criminal cases the privilege against self-incrimination and its policies are a special problem.

The rule of limited cross-examination promotes orderly presentation of the case and therefore contributes to jury comprehension of the issues. When comprehension would be enhanced by allowing the cross-examiner to explore matters not touched upon on direct examination, the trial judge may allow departure from the traditional order of presentation; however, any inquires beyond the scope of the direct must be non-leading questions. If no such limitations were imposed on the form of cross-examination, counsel might be tempted to question the witness on matters that properly belong in his case-in-chief, solely to take advantage of the ability to ask leading questions.

Rule 611(b) 's provision that the judge may in the interests of justice permit inquiry into new matters on cross-examination is designed for those situations in which the result otherwise would be confusion, complication, or protraction of the case, not as a matter of rule but as demonstrable in the actual development of the particular case.

(c)Leading Questions. Subdivision (c) conforms to the traditional view that the suggestive powers of the leading questions are as a general proposition undesirable. The rule recognizes the traditional exceptions to this proposition. Undisputed preliminary matters may be speedily established by leading questions. The witness whose memory has failed may be assisted by them. In the case of the witness having difficulty communicating, either because of immaturity or a disability, leading questions can be beneficial in eliciting cogent testimony. In the case of the witness who is hostile, unwilling or biased, leading questions may be necessary to get at the truth. The phrase of the rule, "witness identified with" an adverse party, is designed to enlarge the category of witnesses treated as hostile, subject to the discretion of the court.

Closely related to items (2) and (3) is item (4), which was added in response to Rule 607(a) allowing a party to impeach his own witness. Item (4) recognizes that leading questions may be a permissible method of impeaching a witness's testimony. Of course the court should be vigilant in confining the use of leading questions to true attempts to impeach. This is most easily accomplished by permitting leading questions only when they are part of an attack on testimony previously elicited from the witness by the direct examiner.

The rule presumes that leading questions are a proper part of cross-examination. The purpose of the qualification "ordinarily" in this subdivision is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the "cross-examination" of a party by his own counsel after being called by the opponent (savoring more of redirect) or of an insured defendant who proves to be friendly to the plaintiff.

Alaska Comm. R. Evid. 611