Introduction

Examination, in law, the interrogation of a witness by attorneys

or by a judge. In Anglo-American proceedings an examination
usually begins with direct examination (called examination in
chief in England) by the party who called the witness. After direct
examination the attorney for the other party may conduct a cross-
examination of the same witness, usually designed to cause him to
explain, modify, or possibly contradict the testimony he provided
on direct examination. It may be followed by redirect examination
and even, in some U.S. jurisdictions, by re-cross-examination.
In civil-law systems legal procedure varies from country to
country. Examination usually begins with an interrogation of the
witness by the judge. In some countries (e.g., Germany), the
witness may then be questioned by the attorneys of both parties. In
France attorneys’ questions may be put to witnesses only through
the president of the court.

Definition
An Investigation; search; interrogating.In trial practice.
The examination of a witness consists of the series of
questions putto him by a party to the action, or his
counsel, for the purpose of bringing before thecourt and
jury in legal form the knowledge which the witness has of
the facts and mattersin dispute, or of probing and sifting
his evidence previously given.In criminal practice. An
investigation by a magistrate of a person who has
beencharged with crime and arrested, or of the facts aud
circumstances which are alleged tohave attended the
crime and to fasten suspicion upon the party so charged,
in order toascertain whether there is sufficient ground to
hold him to bail for his trial by the propercourt.

Rules of examination
(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.

Subdivision (a). Spelling out detailed rules to govern the mode and
order of interrogating witnesses presenting evidence is neither
desirable nor feasible. The ultimate responsibility for the effective
working of the adversary system rests with the judge. The rule sets
forth the objectives which he should seek to attain.
Item (1) restates in broad terms the power and obligation of the
judge as developed under common law principles. It covers such
concerns as whether testimony shall be in the form of a free
narrative or responses to specific questions, the order of calling
witnesses and presenting evidence, 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.
Item (2) is addressed to avoidance of needless consumption of
time, a matter of daily concern in the disposition of cases. A
companion piece is found in the discretion vested in the judge to
exclude evidence as a waste of time.
Item (3) calls for a judgement under the particular circumstances
whether interrogation tactics entail harassment or undue
embarrassment. Pertinent circumstances include the importance of
the testimony, the nature of the inquiry, its relevance to credibility,
waste of time, and confusion. the Court pointed out that, 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. Reference to the transcript of the
prosecutor's cross-examination in serves to lay at rest any doubts as
to the need for judicial control in this area.
Subdivision (b). The tradition in the federal courts and in numerous
state courts has been to limit the scope of cross-examination to
matters testified to on direct, plus matters bearing upon the
credibility of the witness. Various reasons have been advanced to
justify the rule of limited cross-examination. (1) A party vouches for
his own witness but only to the extent of matters elicited on direct.
But the concept of vouching is discredited, and Rule 607 rejects it.
(2) A party cannot ask his own witness leading questions. This is a
problem properly solved in terms of what is necessary for a proper
development of the testimony rather than by a mechanistic formula
similar to the vouching concept. See discussion under subdivision
(c). (3) A practice of limited cross-examination promotes orderly
presentation of the While this latter reason has merit, the matter is
essentially one of the order of presentation and not one in which
involvement at the appellate level is likely to prove fruitful.
“The foregoing considerations favoring the wide-open or
restrictive rules may well be thought to be fairly evenly balanced.
There is another factor, however, which seems to swing the balance
overwhelmingly in favor of the wide-open rule. This is the
consideration of economy of time and energy. Obviously, the wide-
open rule presents little or no opportunity for dispute in its
application. The restrictive practice in all its forms, on the other
hand, is productive in many court rooms, of continual bickering
over the choice of the numerous variations of the ‘scope of the
direct’ criterion, and of their application to particular cross-
questions. These controversies are often reventilated on appeal, and
reversals for error in their determination are frequent. Observance of
these vague and ambiguous restrictions is a matter of constant and
hampering concern to the cross-examiner. If these efforts, delays
and misprisions were the necessary incidents to the guarding of
substantive rights or the fundamentals of fair trial, they might be
worth the cost. As the price of the choice of an obviously debatable
regulation of the order of evidence, the sacrifice seems misguided.
The American Bar Association's Committee for the Improvement of
the Law of Evidence for the year 1937–38 said this:
“The rule limiting cross-examination to the precise subject of the
direct examination is probably the most frequent rule (except the
Opinion rule) leading in the trial practice today to refined and
technical quibbles which obstruct the progress of the trial, confuse
the jury, and give rise to appeal on technical grounds only. Some of
the instances in which Supreme Courts have ordered new trials for
the mere transgression of this rule about the order of evidence have
been astounding.
The provision of the second sentence, that the judge may in the
interests of justice limit inquiry into new matters on cross-
examination, is designed for those situations in which the result
otherwise would be confusion, complication, or protraction of the
case, not as a matter of rule but as demonstrable in the actual
development of the particular case.
The rule does not purport to determine the extent to which an
accused who elects to testify thereby waives his privilege against
self-incrimination. The question is a constitutional one, rather than a
mere matter of administering the trial. no general waiver occurs
when the accused testifies on such preliminary matters as the
validity of a search and seizure or the admissibility of a confession.
Rule 104(d), supra. When he testifies on the merits, however, can he
foreclose inquiry into an aspect or element of the crime by avoiding
it on direct? The affirmative answer is inconsistent with the
description of the waiver as extending to “all other relevant facts”
The situation of an accused who desires to testify on some but not
all counts of a multiple-count indictment is one to be approached, in
the first instance at least, as a problem of severance under Rule 14
of the Federal Rules of Criminal Procedure. In all events, the extent
of the waiver of the privilege against self-incrimination ought not to
be determined as a by-product of a rule on scope of cross-
examination.
Subdivision (c). The rule continues the traditional view that the
suggestive powers of the leading question are as a general
proposition undesirable. Within this tradition, however, numerous
exceptions have achieved recognition: 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.An almost total
unwillingness to reverse for infractions has been manifested by
appellate courts. The matter clearly falls within the area of control
by the judge over the mode and order of interrogation and
presentation and accordingly is phrased in words of suggestion
rather than command.The rule also conforms to tradition in making
the use of leading questions on cross-examination a matter of right.
The purpose of the qualification “ordinarily” is 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, as for example the
“cross-examination” of a party by his own counsel after being called
by the opponent (savoring more of re-direct) or of an insured
defendant who proves to be friendly to the plaintiff.
The final sentence deals with categories of witnesses
automatically regarded and treated as hostile. Rule 43(b) of the
Federal Rules of Civil Procedure has included only “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.” This limitation virtually to persons whose statements would
stand as admissions is believed to be an unduly narrow concept of
those who may safely be regarded as hostile without further
demonstration. See, for example, holding despite the language of
Rule 43(b) that an insured fell within it, though not a party in an
action under the Louisiana direct action statute. The phrase of the
rule, “witness identified with” an adverse party, is designed to
enlarge the category of persons thus callable.
A witness may be cross-examined on any matter relevant to any
issue in the case, including credibility. In the interests of justice, the
judge may limit cross-examination with respect to matters not
testified to on direct examination.
The Committee amended this provision to return to the rule which
prevails in the federal courts and thirty-nine State jurisdictions. As
amended, the Rule is in the text of the 1969 Advisory Committee
draft. It limits cross-examination to credibility and to matters
testified to on direct examination, unless the judge permits more, in
which event the cross-examiner must proceed as if on direct
examination. This traditional rule facilitates orderly presentation by
each party at trial. Further, in light of existing discovery procedures,
there appears to be no need to abandon the traditional rule.
In civil cases, a party is entitled to call an adverse party or
witness identified with him and interrogate by leading questions.
The Committee amended this Rule to permit leading questions to
be used with respect to any hostile witness, not only an adverse
party or person identified with such adverse party. The Committee
also substituted the word “When” for the phrase “In civil cases” to
reflect the possibility that in criminal cases a defendant may be
entitled to call witnesses identified with the government, in which
event the Committee believed the defendant should be permitted to
inquire with leading questions.
Rule 611(b) as submitted by the Supreme Court permitted a broad
scope of cross-examination: “cross-examination on any matter
relevant to any issue in the case” unless the judge, in the interests of
justice, limited the scope of cross-examination.
The House narrowed the Rule to the more traditional practice of
limiting cross-examination to the subject matter of direct
examination (and credibility), but with discretion in the judge to
permit inquiry into additional matters in situations where that would
aid in the development of the evidence or otherwise facilitate the
conduct of the trial.
 The committee agrees with the House amendment. Although there
are good arguments in support of broad cross-examination from
perspectives of developing all relevant evidence, we believe the
factors of insuring an orderly and predictable development of the
evidence weigh in favor of the narrower rule, especially when
discretion is given to the trial judge to permit inquiry into additional
matters. The committee expressly approves this discretion and
believes it will permit sufficient flexibility allowing a broader scope
of cross-examination whenever appropriate.
The House amendment providing broader discretionary cross-
examination permitted inquiry into additional matters only as if on
direct examination. As a general rule, we concur with this limitation,
however, we would understand that this limitation would not
preclude the utilization of leading questions if the conditions of
subsection (c) of this rule were met, bearing in mind the judge's
discretion in any case to limit the scope of cross-examination.
Further, the committee has received correspondence from Federal
judges commenting on the applicability of this rule to section 1407
of title 28. It is the committee's judgment that this rule as reported
by the House is flexible enough to provide sufficiently broad cross-
examination in appropriate situations in multidistrict litigation.
As submitted by the Supreme Court, the rule provided: “In civil
cases, a party is entitled to call an adverse party or witness identified
with him and interrogate by leading questions.”
The final sentence of subsection (c) was amended by the House
for the purpose of clarifying the fact that a “hostile witness”—that is
a witness who is hostile in fact—could be subject to interrogation by
leading questions. The rule as submitted by the Supreme Court
declared certain witnesses hostile as a matter of law and thus subject
to interrogation by leading questions without any showing of
hostility in fact. These were adverse parties or witnesses identified
with adverse parties. However, the wording of the first sentence of
subsection (c) while generally, prohibiting the use of leading
questions on direct examination, also provides “except as may be
necessary to develop his testimony.” Further, the first paragraph of
the Advisory Committee note explaining the subsection makes clear
that they intended that leading questions could be asked of a hostile
witness or a witness who was unwilling or biased and even though
that witness was not associated with an adverse party. Thus, we
question whether the House amendment was necessary.
However, concluding that it was not intended to affect the
meaning of the first sentence of the subsection and was intended
solely to clarify the fact that leading questions are permissible in the
interrogation of a witness, who is hostile in fact, the committee
accepts that House amendment.
The final sentence of this subsection was also amended by the
House to cover criminal as well as civil cases. The committee
accepts this amendment, but notes that it may be difficult in criminal
cases to determine when a witness is “identified with an adverse
party,” and thus the rule should be applied with caution.

The language of Rule 611 has been amended as part of the

restyling of the Evidence Rules to make them more easily
understood and to make style and terminology consistent throughout
the rules. These changes are intended to be stylistic only. There is
no intent to change any result in any ruling on evidence
admissibility.