Section 611.    Manner and Order of Interrogation and Presentation

(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.

(b) Scope of Cross-Examination.

(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 sound 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 has wide discretion to permit the introduction of rebuttal evidence in civil and criminal cases.

NOTE

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).

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).

Subsection (b)(1). 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). In criminal cases, the defendant has a right to reasonable cross-examination under the Sixth Amendment to the Constitution of the United States and Article 12 of the Massachusetts Declaration of Rights. 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). The scope of redirect examination also is within the sound discretion of the trial judge. Commonwealth v. Maltais, 387 Mass. 79, 92, 438 N.E.2d 847, 854 (1982). Cf. Mass. R. Dom. Rel. P. 43(b).

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). “This right of cross-examination may assume constitutional dimensions under the confrontation clause of the Sixth Amendment to the Constitution of the United States, and art. 12 of the Declaration of Rights of the Constitution of the Commonwealth.” Commonwealth v. Michel, 367 Mass. at 459, 327 N.E.2d at 724. 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. Dominico, 1 Mass. App. Ct. 693, 714, 306 N.E.2d 835, 850 (1974).

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).