Examining Witnesses

The examination of witnesses will show up frequently in Evidence questions on the MBE. It's difficult to narrow down this topic in a post but here I'll focus on a few of the issues that could show up on the exam:

Leading Questions:  Leading questions (those questions that suggest the desired answer) are generally improper on direct examination. Such questions, however, are permitted on cross examination. They are also permitted to elicit preliminary or introductory matters and when necessary to assist a witness who might need help due to loss of memory, immaturity, or physical/mental weakness. An attorney is also permitted to ask leading questions of a hostile witness.

Improper Questions & Answers:  Questions are improper if they are misleading, compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, or unduly harassing. Also improper are questions that call for a narrative answer or call for speculation. Questions must also not assume facts that are not in evidence. As to answers, they must not lack foundation (for example, if the witness has insufficient knowledge but answers regardless), and must not be unresponsive to the question asked. All of the above will allow for sustained objections.

Cross Examination:  There's an art to cross examination, but on the MBE, we need only know the basics. Cross examination of adverse witnesses is a matter of right but is limited to the scope of direct examination (including all reasonable inferences that may be drawn from the direct examination) as well as testing the credibility of witnesses (through the use of impeachment). The cross examiner is generally bound by the answers of the witness to questions concerning collateral matters. In other words, if a question concerning a collateral matter is asked, the cross examiner generally must accept the answer and may not refute the answer by other extrinsic evidence. An important exception applies to impeachment: certain recognized avenues for impeaching a witness such as bias, convictions of crimes, etc., may be developed through extrinsic evidence beyond cross examination.