In Re: Order Amending Pennsylvania Rules of Evidence 611 ( 2014 )

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should 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) Scope of Cross-Examination. Cross-examination of a witness other than a
party in a civil case should be limited to the subject matter of the direct
examination and matters affecting credibility, however, the court may, in the
exercise of discretion, permit inquiry into additional matters as if on direct
examination. A party witness in a civil case may be cross-examined by an
adverse party on any matter relevant to any issue in the case, including
credibility, unless the court, in the interests of justice, limits the cross-examination
with respect to matters not testified to on direct examination.
(c) Leading Questions. Leading questions should not be used on direct or redirect
examination except as necessary to develop the witness’s testimony. Ordinarily,
the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party. A witness so examined should usually
be interrogated by all other parties as to whom the witness is not
hostile or adverse as if under redirect examination.
Comment
Pa.R.E. 611(a) is identical to F.R.E. 611(a).
Pa.R.E. 611(b) differs from F.R.E. 611(b). F.R.E. 611(b) limits the scope of
cross-examination of all witnesses to matters testified to on direct and matters bearing
on credibility, unless the court in its discretion allows inquiry into additional matters as if
on direct examination. This has been the traditional view in the Federal courts and
many State courts. The cross-examiner does not lose the opportunity to develop the
evidence because, unless the witness is the accused in a criminal case, the cross-
examiner may call the witness as his or her own. Therefore, the introduction of the
evidence is merely deferred.
Pa.R.E. 611(b), which is based on Pennsylvania law, applies the traditional view
in both civil and criminal cases to all witnesses except a party in a civil case. Under
Pa.R.E. 611(b), a party in a civil case may be cross-examined on all relevant issues and
matters affecting credibility. See Agate v. Dunleavy, [398 Pa. 26,] 156 A.2d 530 (Pa.
1959); Greenfield v. Philadelphia, [282 Pa. 344,] 127 A. 768 (Pa. 1925). However, in
both of those cases, the Court stated that the broadened scope of cross-examination of
a party in a civil case does not permit a defendant to put in a defense through cross-
examination of the plaintiff. The qualifying clause in the last sentence of Pa.R.E. 611(b)
is intended to give the trial judge discretion to follow this longstanding rule.
When the accused in a criminal case is the witness, there is an interplay between
the limited scope of cross-examination and the accused's privilege against self-
incrimination. When the accused testifies generally as to facts tending to negate or
raise doubts about the prosecution's evidence, he or she has waived the privilege and
may not use it to prevent the prosecution from bringing out on cross-examination every
circumstance related to those facts. See Commonwealth v. Green, [525 Pa. 424,] 581
A.2d 544 (Pa. 1990). However, when the accused's testimony is limited to a narrow
topic, there is some authority that the scope of cross-examination may be limited as
well. See Commonwealth v. Camm, [443 Pa. 253,] 277 A.2d 325 (Pa. 1971);
Commonwealth v. Ulen, [414 Pa. Super. 502,] 607 A.2d 779 (Pa. Super. 1992), rev'd
on other grounds, [539 Pa. 51,] 650 A.2d 416 (Pa. 1994).
Pa.R.E. 611(c) differs from F.R.E. 611(c) in that the word “redirect” has been
added to the first sentence. This is consistent with Pennsylvania law. See
Commonwealth v. Reidenbaugh, [282 Pa.Super. 300,] 422 A.2d 1126 (Pa. Super.
1980). Additionally, the last sentence of Pa.R.E. 611(c)(2) includes a clause
providing that when the court gives permission to use leading questions to a
party who has called a hostile witness, an adverse party or one identified with an
adverse party, the court should not extend that permission to other parties to
whom the witness is not hostile or adverse.
A party who calls a hostile witness, adverse party or one identified with an
adverse party may use leading questions because these witnesses are
“unfriendly” to the party calling them and there is little risk that they will be
susceptible to any suggestions inherent in the questions. The risk of
susceptibility to suggestion is present, however, when a party to whom the
witness is “friendly” (i.e. to whom the witness is not hostile, an adverse party or
one identified with an adverse party) interrogates the witness. The last clause of
Pa.R.E. 611(c) restricts the use of leading questions by a party to whom the
witness is “friendly.” The word “usually”, however, was included to give the
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court discretion to permit leading questions in an appropriate case. For example,
leading questions may be appropriate when the testimony of a witness who was
called and examined as a hostile witness by one party substantially harms the
interest of another party with whom the witness is neither friendly nor unfriendly.
Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January
17, 2013, effective March 18, 2013; amended September 18, 2014; effective
immediately.
Committee Explanatory Reports:
Final Report explaining the January 17, 2013 rescission and replacement
published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013); Final Report
explaining the September 18, 2014 amendment published with the Court’s Order
at 44 Pa.B. __ (____________, 2014).
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