7.8Witness Examination

“The court must 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 waisting time; and (3) protect witnesses from harassment or undue embarrassment.” MRE 611(a). Unless otherwise ordered by the court, the plaintiff must introduce its evidence first. MCR 2.507(B).¹ However, if the defendant’s answer admits facts and allegations asserted in plaintiff’s complaint to the extent that judgment should be entered in favor of plaintiff, and the defendant has advanced a defense (either as a counterclaim or affirmative defense) for which the defendant has the burden of proof, the defendant must present its evidence first. Id.

“The court must exercise reasonable control over the appearance of parties and witnesses so as to: (1) ensure that the fact-finder can see and assess their demeanor; and (2) ensure their accurate identification.” MRE 611(b). Only one attorney for a party is permitted to examine a witness, unless otherwise ordered by the court. MCR 2.507(C).²

A.Direct Examination

Leading questions are only permissible on direct examination “as necessary to develop a witness’s testimony.” MRE 611(d)(1). See, e.g., In re Susser Estate, 254 Mich App 232, 239-240 (2002), where reversal was not required when the plaintiff asked leading questions of an elderly and infirm witness only to the extent necessary to develop her testimony. However, leading questions may be asked of hostile witnesses, an adverse party, or a witness identified with an adverse party on direct examination. MRE 611(d)(1)(B).

B.Cross-Examination

“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” MRE 611(c). However, the trial court “may limit cross-examination regarding matters not testified to on direct examination.” Id. See, e.g., Beadle v Allis, 165 Mich App 516, 522-523 (1987), where the trial court did not abuse its discretion in limiting the plaintiff’s cross-examination of the defendant’s expert witness about issues that were “marginally relevant to the case as a whole but which [were] beyond the scope of the witness’ testimony on direct examination.”

Ordinarily, leading questions are permissible during cross-examination. MRE 611(d)(1)(A). However, the court is not always required to allow them. Shuler v Michigan Physicians Mut Liability Co, 260 Mich App 492, 517-518 (2004).

C.Redirect Examination

Generally, redirect examination must be limited to issues raised during cross-examination. Gallaway v Chrysler Corp, 105 Mich App 1, 8 (1981). However, “this general rule does not equate to an entitlement to elicit any and all testimony on such topics. Rather, the rules of evidence, which require that ‘questions concerning . . . the admissibility of evidence shall be determined by the court,’ continue to apply regardless of whether the questioning at issue is properly within the scope of examination.” Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 291 (2006). In other words, the scope of redirect examination is left to the discretion of the trial court. Gallaway, 105 Mich App at 8.

D.Recross-Examination

Generally, recross-examination is governed by the same rules as cross-examination. See People v Jackson, 108 Mich App 346, 348-349 (1981).

On recross-examination, the parties may inquire into new matters not covered during cross-examination where the new matters are in response to matters introduced during redirect examination. People v Goddard (Kenneth), 135 Mich App 128, 138 (1984), rev’d on other grounds 429 Mich 505 (1988).³