Common Evidentiary Mistakes
| Publication year | 1989 |
| Pages | 1129 |
| Citation | Vol. 06 No. 1989 Pg. 1129 |
1989, June, Pg. 1129. Common Evidentiary Mistakes
The CBA Young Lawyers Division recently sponsored a writing contest. This article was selected as best of the group. The Young Lawyers Division encourages writers of all levels of experience to submit articles of general interest to young or newly admitted lawyers. Article ideas or submissions can be discussed with the Column Editor at the telephone number below, or sent to Arthur W. Porter, Thomas & Porter, P.C., 128 S. Tejon, Ste. 402, Colorado Springs, CO 80903.
Rule 102 of the Colorado Rules of Evidence ("Rules") provides that the Rules shall be construed to secure fairness in administration and promotion of the growth of the law of evidence so that the truth may be ascertained. However, trial lawyers and occasionally judges make incorrect evidentiary objections or rulings by applying the Rules in a literal, superficial manner, rather than in accordance with Rule 102. This article examines several areas in which the Rules are sometimes applied incorrectly, in order to help young lawyers and experienced attorneys alike avoid these common evidentiary mistakes.
C.R.E. Rule 611(c) provides in part: Leading questions should not be used on the direct examination of a witness, except as may be necessary to develop his testimony. Leading questions should be permitted on cross-examination.
Although the Rule expressly states that leading questions are to be permitted on
The following are situations in which leading questions are often mistakenly considered proper:
1. At trial where party A calls party B as an adverse witness, party B's own counsel will frequently ask party B leading questions, under the guise of cross-examination. At trial, some courts would overrule an objection to the questions as being leading on the grounds that the lawyer is "cross-examining" and, hence, leading questions are proper.
2. After party X's lawyer has examined party Y at a deposition, party Y's lawyer will then proceed to ask a series of leading, self-serving questions. When party X's lawyer notes an objection to such questions, opposing counsel will frequently remark that it is cross-examination.
Situations such as these technically appear to be cross-examinations. However, under closer scrutiny, they are actually instances of cross-examination in form only, and should not merit the use of leading questions. Leading questions are inappropriate when the witness is called by an opponent, treated as hostile pursuant to Rule 611(c) and then cross-examined by his or her own or friendly counsel.(fn3) Cross-examination under such circumstances is, in reality, redirect examination.(fn4) The same situation would exist in the case of co-defendants.(fn5) In these instances, counsel should object continuously to leading questions by the party's own lawyer.
In fact, any party partial to the cross-examining counsel should not be subject to cross-examination by leading questions. The court has discretion to prohibit their use in order to avoid the danger of the witness responding to counsel's suggestions.
Rule 611(c) differs slightly from the comparable federal rule. Federal Rules of Evidence ("F.R.E.") Rule 611(c) provides that "[o]rdinarily, leading questions should be permitted on cross-examination." The preface word "ordinarily" is left out of the Colorado Rule. There is no Colorado Committee Comment to explain why this change was made.
The Colorado Advisory Committee's Note to F.R.E. Rule 611(c) provides that the term "ordinarily" meant that such word was 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. One example mentioned was the "cross-examination of a party by his own counsel after being called by the opponent (savoring more of a re-direct) or of an insured defendant who proves to be friendly to the plaintiff."
In Schultz v. Rice,(fn6) a Tenth Circuit case applying this Rule, the court held that the trial court erred in allowing the lawyer to cross-examine his own client by leading questions pursuant to F.R.E. Rule 611(c) after the client was called as an adverse witness. However, the court held that allowing such questions was
Since the word "ordinarily" is not available in the Colorado...
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