705.7Mode and Order of Testimony [Rule 611]
- The trial court has broad discretion to exercise reasonable control over the questioning of witnesses and the presentation of evidence.
- On cross-examination, a witness is subject to questioning about any matter that is relevant to the case, including the witness’s credibility.
- Leading questions are generally permitted on cross-examination.
- Leading questions are usually not permitted on direct examination, but may be allowed when dealing with hostile witnesses, adverse parties, and in other limited circumstances.
The Basic Rule
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,
(b) Scope of cross-examination. - A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.
(c) Leading questions. - Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his 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.
G.S. 8C-611 (reformatted for readability).
Control by Court
Rule 611(a) states that the court shall exercise “reasonable control” over both the manner and order of the examination of witnesses and presentation of evidence. G.S. 8C-611(a). This rule vests the trial court with wide discretion to govern the details of the trial in order to: (i) promote effective determination of the truth; (ii) avoid wasting time; and (iii) protect witnesses from undue harassment and embarrassment. See G.S. 8C-611(a)(1)-(3), Official Commentary (“The Rule sets forth the objectives the court should seek to obtain rather than spelling out detailed rules”). See generally State v. Pharr, 110 N.C. App. 430, review denied 334 N.C. 438 (1993) (after defendant asked prosecution witness on re-cross whether he was changing his testimony, trial court’s sustaining of an objection was appropriate to protect witness from harassment or undue embarrassment, while still making interrogation effective for ascertainment of truth); State v. Spangler, 314 N.C. 374 (1985) (trial judge did not abuse his discretion by limiting the cross-examination of the state's witness regarding the mental condition of the defendant at time the witness knew her, apparently in an attempt to avoid needless consumption of time, since defense counsel intended to call a psychologist and defendant herself to testify about the defendant's mental condition); State v. Dawson, 302 N.C. 581 (1981) (counsel may not ask impertinent and insulting questions that he knows will not elicit competent or relevant evidence but are designed simply to badger and humiliate witness); State v. Britt, 288 N.C. 699 (1975) (similar holding).
“Objection – badgering the witness!”
Asking tough questions is not necessarily “badgering” the witness. Criminal trials are adversarial by nature, and a vigorous cross-examination has to be expected. However, if the prosecutor feels that a particular line of questioning is going too far, he or she should object by making a specific reference to Rule 611 and pointing out why the question is improper, such as needless waste of time, harassment, or embarrassment of the witness.
For more information on the court’s general duties and powers to control the trial proceedings, see the related Trial entries addressing the Duties and Conduct of the Trial Judge: “Must Be Fair and Impartial” (221.1) and “Control of the Courtroom and Proceedings” (221.2).
For more information on the court’s control over the examination of witnesses, see the related Trial entry on Examination of Witnesses (Section A, “Order and Format of Calling Witnesses”).
Scope of Cross-Examination
Rule 611(b) states that witnesses may be “cross-examined on any matter relevant to any issue in the case, including credibility.” G.S. 8C-611(b). This rule expressly rejects the more restrictive view of cross-examination found in the federal rule, which states that “cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility.” Fed. R. Evid. 611(b). Instead, the North Carolina rule adopts a much broader “wide-open cross-examination rule,” subject only to the court’s discretion and a good faith basis for asking the question. G.S. 8C-611(b), Official Commentary. See generally State v. Davis, 349 N.C. 1 (1998) (“the bounds of cross-examination are limited by two general principles: 1) the scope of cross-examination rests within the sound discretion of the trial judge; and 2) the questions must be asked in good faith”) (internal citations omitted); State v. Singletary, 247 N.C. App. 368 (2016) ("North Carolina adheres to the 'wide-open' rule of cross-examination, so called because the scope of inquiry is not confined to those matters testified to on direct examination") (internal quotation omitted).
For more information about the permissible form and scope of cross-examination, see the related Trial entry on Examination of Witnesses: Cross-examination (Section A, “Background and Scope”).
A “leading question” means a question which, by its form, suggests what the answer should be. See State v. Smith, 135 N.C. App. 649 (1999). Leading questions are generally permitted on cross-examination and when examining a hostile witness, an adverse party, or a witness who is identified with an adverse party. G.S. 8C-611(c). See generally State v. Davis, 77 N.C. App. 68 (1985); State v. Leonard, 22 N.C. App. 63 (1974).
Leading questions are generally not permitted on direct examination, except “as may be necessary to develop [the witness’s] testimony.” G.S. 8C-611(c). For example, leading questions might be permitted on direct examination for “the witness who is hostile, unwilling or biased; the child witness or the adult with communication problems; the witness whose recollection is exhausted; and undisputed preliminary matters.” G.S. 8C-611, Official Commentary. See generally State v. Kimble, 140 N.C. App. 153 (2000); State v. White, 349 N.C. 535 (1998); State v. Stanley, 310 N.C. 353 (1984).
For more information on when leading questions are permitted, see the related Trial entry on Direct Examination of Witnesses (Section E, “Leading Questions on Direct”).
Application with Other Rules of Evidence
Rule 611(b) must be applied in conjunction with the other rules of evidence that govern witness testimony and credibility, such as Rules 401 and 403 (relevance and exclusion based on prejudice, confusion, or delay), Rules 404 and 405 (character evidence), Rules 607, 608, 609 and 610 (impeachment), and Rules 701, 702, 703, 704, and 705 (lay and expert opinion testimony).
For example, evidence that is not otherwise admissible under another rule of evidence might be independently admissible under Rule 611(b) for use in cross-examination. See, e.g., State v. Williams, 330 N.C. 711 (1992) (it was error for trial court to exclude impeachment evidence about witness’s suicide attempts, psychiatric history, and drug habit, even though that evidence would normally be inadmissible under Rule 608, because in this case it was admissible under Rule 611); State v. Bell, 338 N.C. 363 (1994) (similar ruling); State v. Page, 346 N.C. 689 (1997) (impeaching expert witness regarding his license revocation was permissible under Rule 611); State v. Alkano, 119 N.C. App. 256 (1995) (questions about witness’s drug and alcohol use on day of incident were proper under Rule 611(b), even though it would not have been allowed under Rules 404 or 608); State v. Gregory, 340 N.C. 365 (1995) (error to exclude evidence under Rule 705 on the grounds that it was not part of the basis of the expert’s opinion, since it was separately admissible to impeach the expert on cross-examination under Rule 611).
Conversely, the court’s obligation to “exercise reasonable control” over witness examinations and the presentation of evidence under Rule 611(a) means that the court may choose to limit evidence (either on direct examination or cross-examination) that interferes with the ascertainment of the truth, wastes time, or subjects the witness to undue harassment or embarrassment, even if that evidence otherwise would be admissible under another rule of evidence. See, e.g., State v. Wise, 326 N.C. 421 (1990) (trial court did not err by sustaining an objection to the question “so what you're saying earlier wasn't true?" on cross-examination, because although a witness may ordinarily be impeached with a prior statement, Rule 611 vests the court with “complete discretion to control the trial and to protect witnesses from harassment” and this question was just an “argumentative restatement of counsel's previous question”).