MISCHARACTERIZATION OF THE EVIDENCE (M)
FRE 611
Questions that elicit testimony which incorrectly purport to state or summarize testimony or other evidence are objectionable as mischaracterization of the evidence. Additionally, testimony that misstates the law is also objectionable as mischaracterization. Frequently, counsel will preface a question with a reference to how the witness testified on direct examination. The reference must always be accurate. Otherwise, the witness’s answer may assume the truth of the false preface, which prejudices the opposing party and misleads the jury.
Examples
- “On direct examination, you claimed your plan to escape was to run back down the stairs, but instead, you ended up jumping over the balcony, right?”
- “In light of Ms. Hale’s testimony on direct that she aided and abetted the killing of the President, how would you describe her character for truthfulness?”
- “On direct, you testified that you used a single shot Derringer because you knew the blue smoke would give you cover, right?”
FRE 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 should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) 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:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Summary
Rule 611 deals generally with the scope of a trial judge's authority to exercise reasonable control over the trial proceedings, including the mode of interrogating witnesses and presenting evidence. The rule contemplates flexibility and discretion so that the truth will be ascertained and the interests of the public and the parties promoted. In short, the three main objectives of Rule 611 are to discover the truth in an efficient manner, avoid wasting time, and protect the witnesses from improper examination questions.
Possible Objections under Rule 611: Argumentative, Compound, Narrative, Leading, Mischaracterization, Nonresponsive, Asked & Answered, Vague, Facts not in Evidence
Case Law (Mischaracterizes the Evidence)
- U.S. v. Donato, 99 F.3d 426 (D.C. Cir. 1996) (prosecutor’s error in mischaracterizing evidence)
- U.S. v. Haldar, 751 F.3d 450 (7th Cir. 2014) (trial counsel is not permitted to misstate evidence or misquote a witness’s testimony)
- U.S. v. Watson, 171 F.3d 695 (D.C. Cir. 1999) (same)
- U.S. v. Gonzalez-Montoya, 161 F.3d 643 (10th Cir. 1998) (trial counsel is not permitted to misstate the law or state it in a manner calculated to confused the jury)