§ 20.02 Judicial Control of Trial

• Jurisdiction: United States

§ 20.02 Judicial Control of Trial

Under Federal Rule 611(a), the trial judge may exercise reasonable control over the conduct of the trial, including the mode and order of examining witnesses and presenting evidence. In exercising this control, the court is to be guided by several objectives: (1) ascertaining the truth, (2) avoiding wasting time, and (3) protecting witnesses from harassment and undue embarrassment.³

Rule 611(a) is written in broad terms and covers the form of questioning (free narrative vs. specific questions), the order of calling witnesses, the use of demonstrative evidence, and "the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances."⁴ As discussed in chapter 3, rebuttal and surrebutal fall into this category, including the authority to reopen a case after a party has rested.⁵ The trial court also has authority to alter the order of proof,⁶ such as changing the sequence in which witnesses testify⁷ and determining whether a witness may be recalled.⁸

The court's authority to consider motions in limine is encompassed by Rule 611.⁹In addition, authorizing special methods to deal with child witnesses (e.g., sitting on a parent's lap),¹⁰ and setting time limits on the presentation of evidence¹¹ come within the purview of the rule. The court's control also extends to jury issues, such as the use of exhibits in the jury room,¹² jury questioning,¹³ and jury notetaking.¹⁴

[A] Harassment and Undue Embarrassment

Rule 611(a) authorizes the trial court to protect witnesses from harassment and undue embarrassment. The exercise of this authority "calls for a judgment under the particular circumstances. . . . Pertinent circumstances include the importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion."¹⁵ Nevertheless, "while the trial judge should protect the witness from questions which 'go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate,' this protection by no means forecloses efforts to discredit the witness."¹⁶

[B] Testimony in Narrative Form

Counsel may elicit testimony by specific interrogation (question and answer) or by free narrative.¹⁷ Several advantages may be gained by a narrative presentation—the testimony may seem more natural and may be more accurate. Further, leading questions are avoided.¹⁸ On the other hand, specific interrogation may be more complete, save time, and provide initial confidence to a timid witness. The most cogent objection to free narrative is that there may be no opportunity to interpose objections.¹⁹ Often counsel combine both methods, using specific questions on preliminary matters, followed by a narrative, and then followup questions. The trial court has discretion to preclude free narrative.²⁰

[C] Continuances

The trial court has discretion to grant continuances. However, in...