TITLE SIX — WITNESSES
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
Scope of Cross-Examination.
In General. A witness is subject to cross-examination on any matter relevant to any issue in the case, including credibility and matters not elicited during direct examination. There must be a reasonable and good-faith basis for questions asked on cross-examination. The trial judge may restrict the scope of cross-examination in the exercise of judicial discretion.
Bias and Prejudice. Reasonable cross-examination to show bias and prejudice is a matter of right which cannot be unreasonably restricted.
Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
on cross-examination; and
when a party calls a hostile witness, an adverse party, or an officer or agent of an adverse corporate party.
Rebuttal Evidence. The trial judge generally has discretion to permit the introduction of rebuttal evidence in civil and criminal cases. In certain limited circumstances, a party may introduce rebuttal evidence as a matter of right. There is no right to present rebuttal evidence that only supports a party’s affirmative case.
Scope of Subsequent Examination. The scope of redirect and recross-examination is within the discretion of the trial judge.
Reopening. The court has discretion to allow a party to reopen its case.
Stipulations.
Form and Effect. A stipulation is a voluntary agreement between opposing parties concerning some relevant fact, claim, or defense and may include agreements in both civil and criminal cases to simplify the issues for trial. A stipulation as to a matter of law is not binding on the court. A judge may require a stipulation be reduced to writing. A party is bound by its stipulation in the absence of consideration unless relief is granted by the court. In order to avoid a failure of justice, a court may at any time relieve a party from its stipulation.
Essential Element. A stipulation as to a fact constituting an essential element of a crime must be signed by the defendant, defense counsel, and the prosecutor and read to the jury before the close of the State’s case. Where the defendant is absent under 6 R. Stat. § 131.501, the stipulation may be signed by counsel of record and the prosecutor and stated upon the record, the defendant’s absence not diminishing counsel’s authority to act on the defendant’s behalf; before receiving it the court shall find upon the record that counsel is authorised to bind the defendant and that the stipulation is in the defendant’s interest, and Rid. R. Crim. P. 18.4(6)(c) governs any application to be relieved from it upon the defendant’s appearance. Stipulations as to other material facts in criminal cases must be presented to the jury in some manner before the close of evidence.
Use of Exhibits During Examination.
Marking. An item to be used with a witness shall first be marked for identification by a designation stating the offering party and a number or letter. The designation, and the Bates number of the filing through which the item was filed, if any, shall be stated upon the record when the item is first used.
Disclosure to Opposing Counsel. An item shall be shown to opposing counsel before it is shown to the witness. This subdivision does not require disclosure of a prior statement of a witness before the witness is examined about it, which is governed by Rule 613(1)(c).
Foundation. The offering party shall lay the foundation required by Title Nine, and, for electronic, digital, and in-game material, by Rules 1108 and 1109, before the item is offered in evidence. A witness may be examined about an item marked for identification for the purpose of laying the foundation.
Offer; Ruling. An item becomes evidence only when offered and admitted. The court shall rule upon the offer on the record. An item marked for identification and not admitted is not evidence, shall not be published to the fact finder, and shall not be referred to in argument, but remains part of the record for purposes of review.
Publication. After an item is admitted, the court may permit it to be published to the fact finder, may regulate the manner and duration of publication, and may permit a witness to mark, annotate, or demonstrate upon a copy, in which case the copy so marked shall itself be marked and offered separately.
Custody. Admitted exhibits are in the custody of the clerk and are part of the record of the case. An exhibit consisting of a document shall be filed through the electronic filing system under the filing code for an exhibit. No document exceeding fifty (50) megabytes may be received by the electronic filing system, and an exhibit exceeding that size shall be divided among the documents of a filing or presented in another form the court directs.
Immutability; Correction. A document received by the electronic filing system cannot be altered, replaced, redacted, or withdrawn. The correction of an erroneously filed exhibit is accomplished by a corrected refiling, which bears its own later filing date and its own Bates number. The court shall note upon the record which filing constitutes the exhibit.
Documents Shown to a Witness in the Proceeding Communications.
Manner. Where the examination is conducted in the proceeding communications, an item to be shown to a witness shall be posted in the proceeding communications, or made available to the witness and to every party by a means the court directs, and shall be identified upon the record by its exhibit designation and, where it has been filed, by the case number and Bates number of the filing.
Order of Display. The offering party shall make the item available to opposing counsel and to the court before directing the witness’s attention to it. The court may direct that the examination pause until every party and the witness confirm that the item has been received and viewed.
Confirmation on the Record. The witness shall state upon the record that the witness has viewed the item and shall identify what the witness has viewed. Where the witness cannot view the item by reason of a failure of transmission or display, the court may permit its content to be read into the record, subject to Rule 1004, or may suspend the examination.
Integrity of the Item Shown. The item shown to the witness shall be the item marked for identification and shall not differ from it in any respect. A party who shows a witness an item other than the item marked, or an altered version of it, is subject to sanction, and the court may strike the testimony given upon it.
Sensitive Material. There is no sealing of an individual document and no redaction of a document within a case that is not itself a sealed matter. A party who must protect sensitive material shall not display it in the proceeding communications, and shall instead move the court for an order under Rid. R. Civ. P. 19 or Rid. R. Crim. P. 14 governing the manner of its presentation, binding the persons before the court and enforceable as a contempt.
Persistence of the Display. An item posted in the proceeding communications remains visible to those with access to the channel. The court shall consider that fact under Rule 403 before permitting the display of material whose probative value is slight, and may direct that an item be presented instead by transmission to the witness, to counsel, and to the court alone.
Repetitive, Argumentative, and Improper Questioning. On objection or on its own motion, the court shall disallow a question which:
has already been asked and answered by the witness;
is argumentative, or which puts a proposition to the witness for the purpose of argument rather than to elicit a fact;
assumes a fact not in evidence, or misstates the testimony already given;
is compound, so that an answer to it is ambiguous;
calls for a narrative so broad that the court cannot rule upon the admissibility of what is said in answer;
is unintelligible, or is framed so that the witness cannot reasonably understand what is asked; or
harasses the witness or is calculated to embarrass the witness unduly.
Cumulative Examination; Time Limits. The court may limit examination which is needlessly cumulative, under Rule 403, and may impose reasonable limits upon the time allowed for the examination of a witness or for the presentation of a party’s evidence, stated in hours or minutes and announced before the examination begins. A limit imposed under this subdivision shall be applied evenhandedly, shall be enlarged for good cause shown, and shall not operate to deny the right secured by subdivision (2)(b) or to prevent a party from developing a matter genuinely in dispute.
Number of Counsel. Unless the court permits otherwise, the examination and cross-examination of a witness shall be conducted by one attorney only for each party, as Rid. R. Civ. P. 27 and 30 provide.
Objections During Examination. An objection shall be made when the question is asked or when the answer discloses the ground, and shall state the specific ground unless it is apparent from the context, as Rule 103(1)(a) requires. The objecting party shall state only the basis of the objection, without elaboration, and shall not argue the ground unless the court calls for argument, as Rid. R. Civ. P. 27 and Rid. R. Crim. P. 22 provide. The court shall afford counsel a reasonable opportunity to present additional grounds, argument, or an offer of proof.
Recalling and Excusing a Witness. A witness may be recalled before dismissal by either party and, after dismissal, only with the permission of the court, as Rid. R. Civ. P. 27 provides. A witness summoned in a criminal proceeding shall remain available in attendance until the proceeding is adjudicated or until excused by the court, and departure without excusal is eligible for criminal contempt, as 6 R. Stat. § 131.302 provides. The court shall state upon the record when a witness is excused.
Conduct of a Witness Testifying in the Proceeding Communications or In-Game.
Own Account. A witness shall testify from the witness’s own account, identified by username, and shall not permit any other person to transmit as the witness.
No Assistance. A witness under examination shall not be assisted, coached, prompted, or supplied with an answer by any person, and shall not communicate with any person concerning the testimony while the examination is pending, including by direct message. Counsel shall not communicate with a witness concerning the substance of the testimony during a recess taken while the witness is under cross-examination, except upon leave of court.
No Consultation of Materials. A witness shall not consult a writing, record, log, or other material while testifying except as Rule 612 permits and the court allows.
Assurances. The court may require a witness to state upon the record that the requirements of this subdivision are being observed, and may repeat the requirement during the examination.
Violation. A violation of this subdivision may be developed on cross-examination, is a ground upon which the court may strike the testimony in whole or in part and instruct the fact finder to disregard it, and is punishable as a contempt under Rid. R. Civ. P. 53 and Rid. R. Crim. P. 43. Conduct within R.C.C. § 1.10 shall be reported by the court to the Attorney General.
Order of Proof. The order in which the parties present evidence is governed by Rid. R. Civ. P. 27 in a civil action and by Rid. R. Crim. P. 24 in a criminal proceeding. The court may vary the order of proof in the interest of the effective determination of the truth, and may admit evidence out of order de bene under Rule 104(2) upon the condition that the connecting proof be supplied.
Record of Proceedings. Every ruling under this rule shall be made upon the record. Where the proceeding is conducted in the proceeding communications, the record is the channel record of the proceeding, and the court shall cause any ruling made in-game or otherwise off the channel to be entered there.