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. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be 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. [L 1980, c 164, pt of 1; gen ch 1985]

 

Rule 611 Commentary

 

This rule is identical with Fed. R. Evid. 611.

Subsection (a): This subsection states the common-law principle allowing the court broad discretion in determining order and mode of interrogation. 6 Wigmore, Evidence 1867 (Chadbourn rev. 1976); McCormick 5. The intent is to define broad objectives and to leave the attainment of those objectives to the discretion of the court. This subsection restates existing Hawaii law, see Lindeman v. Raynor, 43 H. 299 (1959); Flint v. Flint, 15 H. 313, 315 (1903); Mist v. Kawelo, 13 H. 302 (1901). The principle was recently reaffirmed in State v. Altergott, 57 H. 492, 506, 559 P.2d 728, 737 (1977), where the court added: "[I]n practice abuse [of discretion] is more often found when complaint is made that the judge has unduly curbed the examination than when undue extension of the discretion to permit the questioning is charged."

Subsection (b): Limiting the scope of cross-examination to the subject matters raised on direct examination plus credibility is the traditional view, in support of which the U.S. Senate Judiciary Committee wrote:

Although there are good arguments in support of broad cross-examination from [the standpoint] of developing all relevant evidence, we believe the factors of insuring an orderly and predictable development of the evidence weigh in favor of the narrower rule, especially when discretion is given to the trial judge to permit inquiry into additional matters. The committee expressly approves this discretion and believes it will permit sufficient flexibility allowing a broader scope of cross-examination whenever appropriate.

Hawaii law is to the same effect, see Yamashiro v. Costa, 26 H. 54, 60-61 (1921); Booth v. Beckley, 11 H. 518, 522 (1898).

Subsection (c): This rule conforms to the traditional common-law ban on the use of leading questions on direct examination and to the traditional exceptions for the hostile, reluctant, and unwilling witness, the child witness, the adult with communications problems, or the witness whose memory is "exhausted," as well as the customary "preliminary matters" exception. McCormick 6.

See Condron v. Harl, 46 H. 66, 81, 374 P.2d 613, 621 (1962): "The allowance of leading questions is a matter for the exercise of discretion of the trial judge, whose ruling will be reversed only for prejudicial abuse of discretion." See also State v. Yoshino, 45 H. 640, 372 P.2d 208 (1962); Ciacci v. Wolley, 33 H. 247 (1934); Territory v. Slater, 30 H. 308 (1928); Territory v. Fong Yee, 25 H. 309 (1920).

 

Case Notes

 

The trial court relied on its discretion to exercise control over the mode and order of interrogation in denying petitioner's trial counsel's objection to the directive that petitioner take the stand. While this rule grants a trial court the right to "exercise reasonable control over the mode and order of ... presenting evidence", it does not trump a criminal defendant's federal constitutional rights. 23 F. Supp. 3d 1182 (2014).

Court's allowing witnesses to supplement their answers with further clarifying responses did not constitute an abuse of discretion. 78 H. 230, 891 P.2d 1022 (1995).

Appeals court erred in determining that the trial deputy prosecuting attorney's question during cross-examination amounted to prosecutorial mistake or error because the prosecution was entitled to develop the issue that defendant broached on direct examination and again on cross-examination. 105 H. 352, 97 P.3d 1004 (2004).

Where inmate was transported to the courthouse upon being subpoenaed to testify but refused to testify, circuit court did not abuse its discretion in denying defendant's request to extract the inmate so that the inmate could refuse to testify in front of the jury. 133 H. 253, 327 P.3d 931 (2014).

Trial court properly exercised discretion to control manner in which testimony was gathered from defendant and limiting defendant's testimony during defense presentation to matters not previously covered. 80 H. 450 (App.), 911 P.2d 85 (1996).

Circuit court erred to the extent that it imposed a blanket prohibition on counsel asking witnesses whether they were lying; however, under the circumstances of this case, the error was harmless because any improper restriction imposed by the circuit court on defense counsel's cross-examination did not affect defendant's substantial rights. 134 H. 376 (App.), 341 P.3d 1176 (2014).

Where defense counsel asked for permission to recall a witness to ask a question defense counsel forgot to ask, the circuit court did not abuse its discretion in denying defense counsel's request to recall witness; based on the existing record, defendant did not establish that defense counsel's failure to ask the question constituted ineffective assistance of counsel. 134 H. 376 (App.), 341 P.3d 1176 (2014).

 

 

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