Miss. R. Evid. 611
Miss. R. Evid. 611
Advisory Committee Note
The language of Rule 611 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Subsection (a) is a verbatim restatement of M.R.C.P. 43(b)(1). Subsection (a) gives the court the discretion to control the order of interrogation. The three principles underlying an orderly presentation of evidence are effectiveness in determining the issues, avoidance of needless waste of time, and protection of the witness from harassment and embarrassment. Subsection (a) is designed in part to give the judge the discretion to determine whether presentation of the evidence must be in question-and-answer form or whether it may be in narrative form. See FRE 611, Advisory Committee's Notes.
Subsection (b) reflects prior Mississippi practice. Subsection (b) permits a wide-open cross-examination. In this respect Mississippi follows the English rule. See Weinstein's Evidence 611[02-03]. Under this wide-open cross-examination any matter may be probed that is relevant. Nonetheless, under Rule 611(a) the judge may still limit cross-examination to serve one of the purposes therein stated.
Rule 611(c) discusses the use of leading questions. It reflects common law practice. Leading questions as a general rule should not be used on direct examination since they suggest the answers the attorney wants from his own witness. This gives an unfair advantage to the party who is presenting his case. However, the judge has some discretion in allowing leading questions. Thus, leading questions are frequently used in developing preliminary matters. See Seals v. St. Regis Paper Company, 236 So.2d 388 (Miss. 1970); Thomas v. State, 217 So.2d 287 (Miss. 1969). When determining whether a child is competent to testify, a judge might also allow leading questions. See Allen v. State, 384 So.2d 605 (Miss. 1980). Other instances may occur with the witness whose recollection is exhausted and with the witness who has communication difficulties.
The last sentence gives a party the right of cross-examination when questioning witnesses who are hostile or when questioning an adverse party or someone identified with an adverse party. The issue of who may be considered as "identified with an adverse party" was confronted in Harris v. Buxton T.V., Inc., 460 So.2d 828 (Miss. 1984).
The Advisory Committee is cognizant of the Harris decision but considers the interpretation and application of the phrase "identified with the adverse party" to be broader than that expressed in Harris.
Assuming the witness is deemed sufficiently "identified with an adverse party," the use of leading questions falls within the area of control by the judge over "the mode and order of interrogating witnesses. . . ." Accordingly, the last sentence of 611(c) is phrased in words of discretion rather than command.
The rule also conforms to tradition in making the use of leading questions on cross-examination a matter of right. The purpose of the qualification "ordinarily" 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 re-direct) or of an insured defendant who proves to be friendly to the plaintiff.
["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling.]
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