(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, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. A witness may be cross-examined on any relevant matter.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be permitted on cross-examination. A party may interrogate an unwilling, hostile or biased witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party or a witness whose interests are identified with an adverse party and interrogate that person by leading questions. The witness thus called may be interrogated by leading questions on behalf of the adverse party also.
Comment
Paragraph (a) gives the trial court broad discretion in the conduct of a trial. The trial court has the discretion to determine whether to allow surrebuttal testimony,[1] whether to allow re-examination of a witness,[2] whether to allow a party to recall a witness,[3] whether to allow a party to reopen its case,[4] and how and in what order to receive testimony and exhibits.[5] It also has the discretion to prohibit questions not effective for the ascertainment of the truth,[6] that would result in the needless consumption of time,[7] that are argumentative,[8] or that may harass or embarrass the witness.[9] A party will be able to obtain a reversal on appeal only upon a showing that the ruling of the trial court resulted in either the admission of inadmissible evidence or the exclusion of admissible evidence, and that this evidence was material and caused prejudice. The use of the phrase "shall exercise reasonable control" imposes an affirmative duty on the trial court to control the litigation process rather than to react only to objections of counsel,[10] which includes the authority to control a witness who is unwilling to cooperate.[11]
Paragraph (b) gives the trial court discretion in the scope of cross-examination.[12] Even though Arizona allows a broad scope of cross-examination,[13] and a defendant in a criminal case has a constitutional right to cross-examine witnesses, the trial court still has the power to limit this to relevant evidence.[14] If a defendant in a criminal case testifies, the defendant waives the constitutional privilege against self-incrimination, and must answer all relevant questions, even though the answers may be incriminating.[15]
Paragraph (c) gives the trial court discretion to allow the use of leading questions on direct examination.[16] In making this determination, the trial court should consider such things as the age of the witness, the complexity of the issues or facts, whether the questions are foundational, and whether the questions are necessary to develop later testimony.
Cases
611.010 An argumentative question is a question that seeks no factual testimony, but requires instead that the witness acquiesce in inferences drawn by counsel from prior testimony.
State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995) (question "But you thought you would take a gun and a shovel out into the desert to kill somebody about whom you knew virtually nothing?" may have been argumentative, but not so egregious that it permeated entire trial and probably affected outcome).
611.020 A compound question is a question that contains two or more questions, and is not permissible because it is likely to invite an ambiguous answer.
State v. Fodor, 179 Ariz. 442, 880 P.2d 662 (Ct. App. 1994) (question "Has anybody ever suggested that you give that type of evidence to [the attorney] so that the state could not get it?" was a compound question).
611.030 A leading question is one that suggests an answer, not one whose answer is obvious.
State v. McKinney, 185 Ariz. 567, 917 P.2d 1214 (1996) (after prosecutor received negative response to question whether witness had seen anything in trunk of car, asking whether witness had seen co-defendant's rifle when he looked into trunk was not leading).
State v. McKinney, 185 Ariz. 567, 917 P.2d 1214 (1996) (asking whether co-defendant was more aggressive towards witness or another person was not leading).
State v. Agnew, 132 Ariz. 567, 647 P.2d 1165 (Ct. App. 1982) (court held that "Had you known that the trust was not insured would you have invested?" was not a leading question).
611.040 Only the party asking a question has the right to object on the grounds the answer is not responsive to the question.
Moschetti v. City of Tucson, 9 Ariz. App. 108, 449 P.2d 945 (1969) (testimony about source of funds to pay condemnation award was irrelevant, but this came in non-responsive answer to appellant's question, and only appellant had right to object on that basis; once this evidence was before jurors, appellee had right to introduce evidence to rebut it.).
Paragraph (a) - Control by the court.
611.a.010 The use of the term "shall" in this rule means that the trial court should not be merely a passive observer in the trial process, but instead has an affirmative duty to conduct the trial in such a way as to carry out the goals of the Rules of Evidence.
State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993) (court noted that trial judges are not merely "referees at prize fights," but are instead "functionaries of justice," and thus have authority to prohibit improper questions, even when other party does not object).
Pool v. Superior Ct., 139 Ariz. 98, 677 P.2d 261 (1984) (trial judge acted properly in sustaining proper objections and ultimately granting mistrial).
State v. Barr, 183 Ariz. 434, 904 P.2d 1258 (Ct. App. 1995) (trial court properly directed defendant to answer only questions asked when he repeatedly gave long, narrative answers).
611.a.020 A trial court has discretion to determine the manner of the proceedings, the manner of questioning, and the order of presentation of evidence.
State v. Martin, 139 Ariz. 466, 679 P.2d 489 (1984) (trial court had discretion to admit statements to co-conspirator prior to and subject to evidence establishing conspiracy).
State v. Maldonado, 181 Ariz. 208, 889 P.2d 1 (Ct. App. 1994) (although usual method to determine whether witness will refuse to testify on basis of privilege against self-incrimination is for trial court to question witness personally, by asking defendant's attorney what questions he would ask witness, asking witness's attorney what reasons witness would give for refusing to answer those questions, and asking state's attorney to give details of interview with witness, trial court obtained sufficient information to determine that witness would have valid basis for invoking privilege against self-incrimination and refusing to answer questions).
611.a.030 The trial court has discretion to accept a stipulation in lieu of the evidence itself, and is encouraged to do so to narrow the issues and promote judicial economy.
State v. West, 176 Ariz. 432, 862 P.2d 192 (1993) (trial court properly accepted stipulation that defendant had previously been convicted of voluntary manslaughter, a fact state could have easily proved).
611.a.040 The trial court has discretion in admitting exhibits or allowing testimony of witnesses not listed or not properly identified prior to trial.
State v. Littles, 156 Ariz. 5, 749 P.2d 914 (1988) (after both sides rested, defendant moved for directed verdict on issue of dangerousness because state had not proved weapon admitted in evidence was operable; court held that trial court did not abuse discretion in allowing state to reopen its case and present witness not previously disclosed, who testified he had test-fired weapon and found it was operable).
Grant v. Arizona Pub. Serv. Co., 133 Ariz. 434, 652 P.2d 507 (1982) (because defendant brought problem to attention of trial court before trial and trial court imposed specific corrective measures for plaintiff to take, and because defendant made no showing it was prejudiced by admission of exhibits, trial court did not abuse discretion in admitting exhibits).
Lynn v. Helitec Corp., 144 Ariz. 564, 698 P.2d 1283 (Ct. App. 1984) (because party may not know until presentment of evidence exactly what it will need for impeachment, trial court should allow impeachment unless other party is unfairly prejudiced by such impeachment).
611.a.050 If one party has listed the name of a person in its list of witnesses and exhibits, the trial court must allow the other party to call that person as a witness even if the other party has not listed that person in its own list of witnesses and exhibits.
State v. Schaaf, 169 Ariz. 323, 819 P.2d 909 (1991) (trial court did not abuse discretion in allowing state to call as its witness a fingerprint expert defendant had listed, and to question witness about his analysis of certain evidence).
Eloy Indus. Engines v. R.B. Enters., 158 Ariz. 545, 764 P.2d 30 (Ct. App. 1988) (by listing person as witness, party avows it will use that person as a witness at trial, and therefore that party cannot be prejudiced if other party calls that person as witness).
611.a.060 The trial court may prohibit...
