(a) Control by Court. The court shall exercise reasonable control over the manner and order of interrogating witnesses and presenting evidence on direct and cross-examination 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. The court has discretion to admit evidence conditionally upon the representation that its relevancy will be established by evidence subsequently offered.
(1) In General. A witness is subject to reasonable cross-examination on any matter relevant to any issue in the case, including credibility and matters not elicited during direct examination. The trial judge may restrict the scope of cross-examination in the exercise of judicial discretion.
(2) Bias and Prejudice. Reasonable cross-examination to show bias and prejudice is a matter of right which cannot be unreasonably restricted.
(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his or her testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or an officer or agent of an adverse corporate party, interrogation may be by leading questions.
(d) Rebuttal Evidence. The trial judge generally has discretion to permit the introduction of rebuttal evidence in civil and criminal cases. In certain limited circumstances, a party may introduce rebuttal evidence as a matter of right. There is no right to present rebuttal evidence that only supports a party’s affirmative case.
(e) Scope of Subsequent Examination. The scope of redirect and recross-examination is within the discretion of the trial judge.
(f) Reopening. The court has discretion to allow a party to reopen its case.
Subsection (a). This subsection is derived from Commonwealth v. Rooney, 365 Mass. 484, 496, 313 N.E.2d 105, 112–113 (1974); Goldman v. Ashkins, 266 Mass. 374, 380, 165 N.E. 513, 516 (1929); Chandler v. FMC Corp., 35 Mass. App. Ct. 332, 338, 619 N.E.2d 626, 629 (1993); and Albano v. Jordan Marsh Co., 2 Mass. App. Ct. 304, 311, 311 N.E.2d 568, 573 (1974). See Commonwealth v. Edward, 75 Mass. App. Ct. 162, 171 n.12, 912 N.E.2d 515, 522 n.12 (2009) (closing courtroom to the public during any portion of a trial implicates defendant’s constitutional rights and must be preceded by a hearing and adequate findings of fact). The judge’s discretion to impose reasonable limits on the length of the direct and cross-examination of witnesses does not permit the judge to impose arbitrary time limits that prevent a party from presenting its case. Chandler v. FMC Corp., 35 Mass. App. Ct. at 338, 619 N.E.2d at 629. See also Commonwealth v. Conley, 34 Mass. App. Ct. 50, 59–60 & n.4, 606 N.E.2d 940, 946 & n.4 (1993) (improper for court to systematically screen a party’s direct evidence at sidebar before witnesses are permitted to be called).
Evidence may be conditionally admitted (admitted de bene) upon the representation of counsel that additional evidence will be produced providing the foundation for the evidence offered. Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 n.4, 803 N.E.2d 735, 740 n.4 (2004). See Commonwealth v. Perry, 432 Mass. 214, 234–235, 733 N.E.2d 83, 101–102 (2000). In the event that the foundation evidence is not subsequently produced, the court has no duty to strike the evidence admitted de bene on its own motion. Commonwealth v. Sheppard, 313 Mass. 590, 595–596, 48 N.E.2d 630, 635 (1943). If the objecting party fails to move to strike the evidence, the court’s failure to strike it is not error. Muldoon v. West End Chevrolet, Inc., 338 Mass. 91, 98, 153 N.E.2d 887, 893 (1958). See Commonwealth v. Navarro, 39 Mass. App. Ct. 161, 166, 654 N.E.2d 71, 75 (1995). See Section 104(b)(2), Preliminary Questions: Relevancy Conditioned on Fact.
One appearing pro se is bound by the same rules as those that guide attorneys. International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847, 443 N.E.2d 1308, 1312 (1983). However, “[w]hether a party is represented by counsel at a trial or represents himself, the judge’s role remains the same. The judge’s function at any trial is to be ‘the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings’” (citations omitted). Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 241–242 n.4, 549 N.E.2d 116, 120 n.4 (1990), quoting Commonwealth v. Wilson, 381 Mass. 90, 118, 407 N.E.2d 1229, 1247 (1980). See also Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, The Commonwealth of Massachusetts Administrative Office of the Trial Court (2006).
Reasonable Basis for Cross-Examination. Cross-examination must have a reasonable and good-faith basis. See Commonwealth v. Johnson, 441 Mass. 1, 5 n.4, 802 N.E.2d 1025, 1028 n.4 (2004). Attorneys are not permitted to ask questions in bad faith or without any foundation. See Commonwealth v. Jenkins, 458 Mass. 791, 795, 941 N.E.2d 56, 64 (2011) (attorney had good-faith basis for questions, even where source was not called to testify).
Cross-Reference: Section 405(a), Methods of Proving Character: Reputation.
Civil Cases. This subsection as it applies to civil cases is derived from Beal v. Nichols, 68 Mass. 262, 264 (1854), and Davis v. Hotels Statler Co., 327 Mass. 28, 29–30, 97 N.E.2d 187, 188 (1951). This subsection reflects the Massachusetts practice of permitting cross-examination on matters beyond the subject matter of the direct examination. See Nuger v. Robinson, 32 Mass. App. Ct. 959, 959–960, 591 N.E.2d 1116, 1116–1117 (1992). Thus, a party can put its own case before the jury by the cross-examination of witnesses called by the opposing party. See Moody v. Rowell, 34 Mass. 490, 499 (1835).
Criminal Cases. “There are few subjects, perhaps, upon which [the Supreme] Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal” (citation omitted). Commonwealth v. Tanso, 411 Mass. 640, 650, 583 N.E.2d 1247, 1253 (1992). See also Commonwealth v. Farley, 443 Mass. 740, 748, 824 N.E.2d 797, 805 (2005); Commonwealth v. Vardinski, 438 Mass. 444, 449–451, 780 N.E.2d 1278, 1284–1286 (2003). In determining what is reasonable, the trial judge has discretion. “[T]he scope of cross-examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry” (citations and quotations omitted). Commonwealth v. Gagnon, 408 Mass. 185, 192, 557 N.E.2d 728, 733–734 (1990). Unreasonable restrictions on the defendant’s right to cross-examination in a criminal case require a new trial unless the error is shown to be harmless beyond a reasonable doubt. See Commonwealth v. Miles, 420 Mass. 67, 71–73, 648 N.E.2d 719, 724–725 (1995). See also Commonwealth v. Reynolds, 429 Mass. 388, 391–392, 708 N.E.2d 658, 662–663 (1999) (conviction reversed because scope of cross-examination of police officers too limited; “[i]t is well settled that a defendant has a right to expose inadequacies of police investigation”), and cases cited. The trial judge also has the right to limit cross-examination when necessary to protect the safety of the witness. See Commonwealth v. Francis, 432 Mass. 353, 357–358, 734 N.E.2d 315, 321–322 (2000). See also Note “Address of Witness” to Section 501, Privileges Recognized Only as Provided. The Appeals Court has observed as follows:
“Where there is no opportunity to cross-examine a witness, because, for example, he is uncooperative, fails to appear, or invokes his privilege against self-incrimination, the striking of any direct testimony by that witness may be constitutionally required. Generally, a witness’s inability to answer questions on cross-examination due to lapse of memory, however, does not require striking his direct testimony.” (Citations omitted.)
Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 221, 567 N.E.2d 943, 952 (1991). The defendant’s right to confrontation is not denied when, on cross-examination, a witness refuses to answer questions relating exclusively to collateral matters. See Commonwealth v. Dwyer, 10 Mass. App. Ct. 707, 713, 412 N.E.2d 361, 364 (1980). Compare Commonwealth v. Almeida, 452 Mass. 601, 607, 897 N.E.2d 14, 22 (2008) (defendant was not denied his right to confront a key identification witness who was unable to recall numerous details; “[i]t was entirely reasonable for the witness to have no memory of some of the information sought by many of the questions”), and Commonwealth v. Amirault, 404 Mass. 221, 234–235, 535 N.E.2d 193, 202 (1989) (lapse of memory by witness on cross-examination did not deny defendant right to confrontation), with Commonwealth v. Funches, 379 Mass. 283, 292, 397 N.E.2d 1097, 1102 (1979) (trial judge was required to strike witness’s direct testimony when witness asserted privilege against self-incrimination during cross-examination), and Commonwealth v. Johnson, 365 Mass. 534, 543–544, 313 N.E.2d 571, 576–577 (1974) (defendant denied right to confrontation when judge, concerned for safety of witness, ordered witness to not answer questions on cross-examination).
Fairness to the Commonwealth. The Commonwealth has a common-law right to reasonable cross-examination of witnesses called by the defendant. See Commonwealth v. Gagnon, 408 Mass. 185, 192, 557 N.E.2d 728, 733 (1990). See also Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 537–538, 976 N.E.2d 160, 169 (2012).
Subsection (b)(2). This subsection is derived from Commonwealth v. Martinez, 384 Mass. 377, 380–381, 425 N.E.2d 300, 302–303 (1981); Commonwealth v. Michel, 367 Mass. 454, 459, 327 N.E.2d 720, 723–724 (1975); and Commonwealth v. Russ, 232 Mass. 58, 79, 122 N.E. 176, 184 (1919).
“[W]here . . . facts are relevant to a showing of bias or motive to lie, any general evidentiary rule of exclusion must give way to the constitutionally based right of effective cross-examination.” Commonwealth v. Joyce, 382 Mass. 222, 231, 415 N.E.2d 181, 187 (1981), citing Davis v. Alaska, 415 U.S. 308, 316–318 (1974), and Chambers v. Mississippi, 410 U.S. 284 (1973). This right applies with special force whenever there is evidence that the testimony of a witness is given in exchange for some anticipated consideration or reward by the government, see Commonwealth v. Barnes, 399 Mass. 385, 392, 504 N.E.2d 624, 629 (1987); Commonwealth v. O’Neil, 51 Mass. App. Ct. 170, 178–181, 744 N.E.2d 86, 92–94 (2001), or when it concerns the subject of identification. See Commonwealth v. Vardinski, 438 Mass. 444, 450, 780 N.E.2d 1278, 1285 (2003). However, the trial judge has considerable discretion to limit such cross-examination when it becomes redundant or touches on matters of tangential materiality. See Commonwealth v. Jordan, 439 Mass. 47, 55, 785 N.E.2d 368, 375 (2003); Commonwealth v. Noj, 76 Mass. App. Ct. 194, 198–199, 920 N.E.2d 894, 897–898 (2010).
Subsection (c). This subsection is derived from G. L. c. 233, § 22; Carney v. Bereault, 348 Mass. 502, 510, 204 N.E.2d 448, 453 (1965); and Mass. R. Civ. P. 43(b). “[T]he decision whether to allow leading questions should be left for the most part to the wisdom and discretion of the trial judge instead of being restricted by the mechanical operation of inflexible rules” (citations and quotation omitted). Commonwealth v. Flynn, 362 Mass. 455, 467, 287 N.E.2d 420, 430 (1972). See Commonwealth v. Monahan, 349 Mass. 139, 162–163, 207 N.E.2d 29, 43 (1965) (rulings on whether witness is hostile and whether cross-examination of the witness by his or her proponent are permitted are within discretion of trial judge). Some judges in Massachusetts require that when the subject of the cross-examination enters material not covered on direct, the attorney should no longer use leading questions.
Although as a general rule leading questions should not be used on direct examination, there are many instances where they are permitted in the discretion of the judge. See, e.g., DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 512, 306 N.E.2d 432, 433 (1974) (refresh memory); Commonwealth v. Aronson, 330 Mass. 453, 460, 115 N.E.2d 362, 367 (1953) (witness under stress); Gray v. Kelley, 190 Mass. 184, 187, 76 N.E. 724, 726 (1906) (elderly witness); Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213, 217–218, 675 N.E.2d 1169, 1173 (1997) (child witness).
The use of leading questions on direct examination of an adverse party is authorized by statute. See G. L. c. 233, § 22 (“A party who calls the adverse party as a witness shall be allowed to cross-examine him. In case the adverse party is a corporation, an officer or agent thereof, so called as a witness, shall be deemed such an adverse party for the purposes of this section.”); Mass. R. Civ. P. 43(b) (“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, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party.”). When a party calls an adverse witness, that party may inquire by means of leading questions. See Mass. R. Civ. P. 43(b). Cf. G. L. c. 233, § 22. However, such examination is limited by G. L. c. 233, § 23, concerning impeachment of one’s own witness. See Walter v. Bonito, 367 Mass. 117, 122, 324 N.E.2d 624, 627 (1975). If a party is called as an adverse witness by opposing counsel, the trial judge may, in his or her discretion, permit leading questions on cross-examination. See Westland Hous. Corp. v. Scott, 312 Mass. 375, 383–384, 44 N.E.2d 959, 964 (1942).
Subsection (d). This subsection is derived from Commonwealth v. Roberts, 433 Mass. 45, 51, 740 N.E.2d 176, 181 (2000), and Commonwealth v. Guidry, 22 Mass. App. Ct. 907, 909, 491 N.E.2d 281, 283 (1986). A party may not present rebuttal evidence that only “supports a party’s affirmative case.” Drake v. Goodman, 386 Mass. 88, 92, 434 N.E.2d 1211, 1214 (1982). In other words, a party may not “present one theory of causation in his case-in-chief and, as a matter of right, present a different theory of causation in rebuttal.” Id. at 93, 434 N.E.2d at 1213. This is especially true when a party is aware of the evidence prior to trial and could have presented it as part of the case-in-chief. Id.
Subsection (e). This subsection is derived from Commonwealth v. Maltais, 387 Mass. 79, 92, 438 N.E.2d 847, 854 (1982) (redirect examination), and Commonwealth v. O’Brien, 419 Mass. 470, 476, 645 N.E.2d 1170, 1174 (1995) (recross-examination). Cf. Mass. R. Dom. Rel. P. 43(b).
Subsection (f). This subsection is derived from Kerr v. Palmieri, 325 Mass. 554, 557, 91 N.E.2d 754, 756 (1950) (“As a general proposition, the granting of a motion to permit additional evidence to be introduced after the trial has been closed rests in the discretion of the trial judge.”). See also Commonwealth v. Moore, 52 Mass. App. Ct. 120, 126–127, 751 N.E.2d 901, 905–907 (2001) (“We also add that the decision whether to reopen a case is one that cannot be made in an arbitrary or capricious manner. It would be a wise practice in the future for trial judges to place on the record their reasons for exercising their discretion either for or against reopening the case.”).
Criminal Cases. The constitutional rights of the defendant in a criminal case limit the discretion of the court to allow the Commonwealth to reopen. It is only within the court’s discretion
“to permit reopening when mere inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur. If the court in the exercise of cautious discretion allows the prosecution to reopen its case before the defendant begins its defense, that reopening does not violate either the rules of criminal procedure or the defendant’s right not to be put twice in jeopardy.”
Commonwealth v. Cote, 15 Mass. App. Ct. 229, 241, 444 N.E.2d 1282, 1290 (1983), quoting United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980). Compare Commonwealth v. Hurley, 455 Mass. 53, 68, 913 N.E.2d 850, 863 (2009) (where police officer had gestured at and nodded to the defendant during his testimony, but had not formally identified the defendant on the record, trial judge did not err in permitting the Commonwealth to reopen its case to offer this minimal identification evidence), with Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 779, 756 N.E.2d 29, 36–37 (2001) (trial judge committed prejudicial error in allowing the Commonwealth to reopen its case to prove an essential element of the offense, previously neglected, where the burden of proving that element was clearly the Commonwealth’s and the omission was identified by the defendant’s motion). See also Commonwealth v. Hurley, 455 Mass. at 68, 913 N.E.2d at 863, for a survey of cases.