3.8Examination & Cross-Examination
Only one attorney for a party is permitted to examine a witness, unless otherwise ordered by the court. MCR 2.507(C).
“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 wasting time; and
(3) protect witnesses from harassment or undue embarrassment.” MRE 611(a).
“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).
1.Presentation Order
Generally, in a civil case, the plaintiff must introduce its testimony first, unless otherwise ordered by the court. MCR 2.507(B). However, a defendant must present his or her evidence first if:
“(1) the defendant’s answer has admitted facts and allegations of the plaintiff’s complaint to the extent that, in the absence of further statement on the defendant’s behalf, judgment should be entered on the pleadings for the plaintiff, and
(2) the defendant has asserted a defense on which the defendant has the burden of proof, either as a counterclaim or as an affirmative defense.” MCR 2.507(B).
Note that this rule may apply to criminal proceedings provided that it meets the criteria in MCR 6.006(D).
Committee Tip:
While unlikely to be employed in a criminal case, the court might receive the testimony of expert witnesses as in a prearranged order in civil cases, and especially in domestic cases.
2.Leading Questions
Leading questions are only permissible on direct examination “as necessary to develop a witness’s testimony.” MRE 611(d)(1).
Civil case. “[R]eversal may be predicated on the use of leading questions only where prejudice or a pattern of eliciting inadmissible testimony exists.” In re Susser Estate, 254 Mich App 232, 239-240 (2002) (finding 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) (quotation marks and citation omitted).
Criminal case. “[A] prosecutor has considerable leeway to ask leading questions to child witnesses.” People v Johnson, 315 Mich App 163, 199-200 (2016). “In order to demonstrate that reversal is warranted for the prosecution asking leading questions, it is necessary to show some prejudice or patterns of eliciting inadmissible testimony.” Id. at 200 (holding that the prosecutor’s use of leading questions was necessary to develop the victim’s testimony where the victim was six years old at the time of trial and was clearly “distraught” and frequently asked for clarification or did not understand the questions) (quotation marks and citation omitted).
“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” MRE 611(c). “A party is free to contradict the answers that he has elicited from his adversary or his adversary's witness on cross-examination regarding matters germane to the issue. As a general rule, however, a witness may not be contradicted regarding collateral, irrelevant, or immaterial matters.” People v Vasher, 449 Mich 494, 504 (1995). Impeachment may be proper when the collateral matter “closely bear[s] on defendant’s guilt or innocence[.]” Id.
1.Limiting Cross-Examination
Cross-examination may be limited under certain circumstances, MRE 611, such as to protect witnesses from harassment or undue embarrassment. MRE 611(a). Specifically, “MRE 611(a) allows the trial court to prohibit a defendant from personally cross-examining vulnerable witnesses—particularly children who have accused the defendant of committing sexual assault. The court must balance the criminal defendant’s right to self-representation with the State’s important interest in protecting child sexual abuse victims from further trauma.” People v Daniels, 311 Mich App 257, 269-271 (2015) (holding that the “trial court wisely and properly prevented defendant from personally cross-examining [his children regarding their testimony that he sexually abused them,] to stop the children from suffering harassment and undue embarrassment,” following “a motion hearing at which [the court] heard considerable evidence that defendant’s personal cross-examination would cause [the children] significant trauma and emotional stress”) (quotation marks and citations omitted). The defendant’s right to self-representation was not violated under these circumstances where the defendant was instructed “to formulate questions for his [children], which his advisory attorney then used to cross-examine them.” Id. at 269-270.
The trial court may also limit cross-examination regarding matters not testified to on direct examination. MRE 611(c). 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.” Beadle v Allis, 165 Mich App 516, 522-523 (1987).
2.Leading Questions
Generally, a court should allow leading questions on cross-examination. MRE 611(d)(1)(A).However, the court is not always required to allow them. Shuler v Mich Physicians Mut Liability Co, 260 Mich App 492, 517-518 (2004).
MRE 611(d)(1)(B) permits leading questions “when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” The adverse party statute (MCL 600.2161) allows a party to “call[] the opposite party, or his agent or employee, as a witness with the same privileges of cross-examination and contradiction as if the opposite party had called that witness.” Linsell v Applied Handling, Inc, 266 Mich App 1, 26 (2005). Neither MRE 611 nor MCL 600.2161 is violated if the court, in exercising its discretion under MRE 611(a), requires the cross-examination of the adverse party during the adverse party’s case-in-chief. Linsell, 266 Mich App at 26.
The scope of redirect examination is left to the discretion of the trial court. Gallaway v Chrysler Corp, 105 Mich App 1, 8 (1981). “In general, redirect examination must focus on matters raised during cross-examination.” Id. However, “this general rule does not equate to an entitlement to elicit any and all testimony on such topics. Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 291 (2006). Indeed, MRE 104(a) requires the court to decide any question about whether evidence is admissible, “regardless of whether the questioning at issue is properly within the scope of examination.” Detroit, 273 Mich App at 291.
Generally, recross-examination is governed by the same principles 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, 135 Mich App 128, 138 (1984), rev’d on other grounds 429 Mich 505 (1988).1
“[A]n unresponsive, volunteered answer to a proper question is not grounds for the granting a mistrial.” People v Haywood, 209 Mich App 217, 228-229 (1995) (holding that “improper comments by the victim’s father were not grounds for a mistrial” where the “witness was not in a position to know that his testimony was improper,” “the prejudicial effect of the witness’ statement was lessened because he did not refer to defendant as the cause of the victim’s injury,” and “because [the comments] were not elicited by the prosecutor’s questioning”). “A motion for mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs the defendant’s ability to get a fair trial.” People v Beesley, 337 Mich App 50, 54 (2021) (quotation marks and citation omitted). “The proper analysis for a motion for mistrial depends principally, if not exclusively, on whether a defendant has been prejudiced by an irregularity or error.” Id. at 55. “While . . . police witnesses (and all witnesses) have an obligation not to venture into forbidden areas of testimony, the key point is in regards to testimony which is ‘forbidden.’ An area of testimony is only ‘forbidden’ if the court rules it inadmissible. While many things, including a defendant’s criminal history, are generally inadmissible, there are exceptions for all such rules.” Id. at 57-58 (citation omitted) (suggesting “that it would be a good practice for a trial court ruling on the admissibility of testimony to instruct the prosecutor to inform the officer regarding what has been ruled inadmissible prior to an officer’s testimony,” and that it is error to create “a blanket assumption that a police officer will in all instances know precisely what has been ruled admissible and what has been ruled ‘forbidden’).
Committee Tip:
Seldom will a lone, stray answer compel a mistrial.
G.Correction of Witness Testimony
The prosecution has a duty to correct false testimony of witnesses. People v Smith, 498 Mich 466, 470 (2015). This duty applies “especially when that testimony conveys to the jury an asserted confession from the defendant.” People v Brown, 506 Mich 440, 446 (2020). “When credibility is a dominant consideration in ascertaining guilt or innocence, other independent evidence apart from the testimony of the defendant and the victim is particularly vital to the fact-finding process. And false testimony simply undermines the jury’s ability to discern the truth in these circumstances.” Id. at 453. Notwithstanding, “[i]n some cases, a new trial will not be warranted given the sheer strength of the truthful evidence relative to the false testimony.” Id.
In Brown, the detective, who interviewed defendant regarding the victim’s allegations of sexual assault, “asked defendant if the truth was ‘somewhere in the middle’” of the victim’s allegations and his claim of innocence, to which the defendant gave no verbal or nonverbal response. Brown, 506 Mich at 447. At trial, the detective “testified that defendant said that the truth . . . was actually ‘somewhere in the middle.’” Id. “Therefore, the prosecutor elicited false testimony from the detective on direct examination.” Id. During cross-examination, the detective “never admitted that he was mistaken,” and “simply stated that it was ‘possible’ he was wrong and agreed that his testimony ‘could be incorrect.’” Id. at 448-449. “Instead of correcting the record and having [the detective] concede that defendant never made any such admission,” the prosecutor stated he could rely on the previous testimony and the police report. Id. at 449. However, the detective’s “testimony on direct and cross-examination was contradictory, and the police report was patently false. Thus, the redirect examination did nothing to correct the record and, indeed, further suggested that the prosecutor believed that [the detective] initially told the truth and that defendant made the admission during the interview.” Id. at 449-450. “[T]he prosecutor’s failure to correct the testimony and instead rely on that testimony in questioning is especially problematic because it reinforced the deception of the use of false testimony and thereby contributed to the deprivation of due process.” Id. at 450 (quotation marks, alterations, and citation omitted). The prosecutor’s actions “left it to the jury to decide if defendant made self-incriminatory statements during the interview. Leaving this kind of false testimony for the jury to assess on its own is highly prejudicial,” and likely “affected the jury’s verdict, one ultimately resting on the credibility of the victim and the defendant.” Id. at 454 (vacating defendant’s conviction and remanding for a new trial).
In Smith, “the prosecution breached a duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government’s investigation,” where, “[g]iven the overall weakness of the evidence against the defendant and the significance of the witness’s testimony, . . . there [was] a reasonable probability that the prosecution’s exploitation of the substantially misleading testimony affected the verdict.” Smith, 498 Mich at 470. “Due process required that the jury be accurately apprised of the incentives underlying the testimony of this critical witness,” and “[c]apitalizing on [the witness]’s testimony that he had no paid involvement in the defendant’s case [was] inconsistent with a prosecutor’s duty to correct false testimony”; because “there [was] a ‘reasonable likelihood’ that the false impression resulting from the prosecutor’s exploitation of the testimony affected the judgment of the jury, . . . the defendant [was] entitled to a new trial.” Id. at 480, 483, 487.
H.Judicial Impartiality and Questioning
A trial court is vested with broad discretion over the administration of trial proceedings. People v Taylor, 252 Mich App 519, 522 (2002). See also MCL 768.29; MRE 611(a). For information on judicial bias and impartiality, see the Michigan Judicial Institute’s Judicial Disqualification in Michigan publication.
“The court may examine a witness regardless of who calls the witness.” MRE 614(b). However, “[a] judge should avoid questions that are intimidating, argumentative, or skeptical. Hostile questions from a judge are particularly inappropriate when the witnesses themselves have done nothing to deserve such heated inquiry.” People v Stevens, 498 Mich 162, 175 (2015) (citation omitted). See the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 7, and Criminal Proceedings Benchbook, Vol. 1, Chapter 12, for additional information on judicial questioning during trial.