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  • Writer's pictureBrian Foley

Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series RULE 611

Woodlands Criminal Defense Attorney Brian Foley

Rule 611 is the rule that most trial objections technically fall under.

Objection leading! That's rule 611.

Objection badgering the witness! Rule 611 again.

Objection this is a waste of time! Rule 611 (although this is not likely to be sustained).

Objection asked and answered! Rule 611 (this is the same as waste of time but is infinitely more likely to be sustained).

Rule 611 is titled Mode and Order of Examining Witnesses and Presenting Evidence. It gives the trial judge broad discretion in how to conduct the examination of witnesses. Like how long the attorney will get to question, if the attorney has to move on, from where in the courtroom the attorney gets to question. This rule covers a LOT of conduct in a very short number of words.

The effect is that the standards of the county in which you practice and the tradition that the community has will play a huge role in what you are allowed and disallowed from doing in a courtroom. Every county and every judge will have different peculiarities. Some judges will never sustain a leading objection. Others will hold fast to a standard that makes it nearly impossible to interrogate a witness on direct examination.

The key here is again going to be judicial discretion judged on an abuse of discretion standard. Courts have held that "The trial judge should liberally exercise that discretion to permit both sides to fully develop their cases." Food Source, Inc. v. Zurich Ins. Co., 751 S.W.2d 596, 600 (Tex. App. -- Dallas 1988, writ denied).


The most important part of this rule for Criminal practitioners is that this is where the theory of Texas' wide open cross. The Federal rules limit cross examination to the matters about which the opposing party covered on direct examination. Texas allows you to go into any relevant subject matter on cross examination including matters not addressed by the other side. The other rules like, hearsay, and the 403 objections to evidence which has substantial risks of unfair prejudice still apply. But in general the rules in Texas allow you to unleash your best shot at a witness on cross examination. It's a good thing too. The pinnacle of western judicial proceedings is cross examination. And it is still the best method of determining truth invented so far. Rule 611 allows the judge discretion to limit interrogation somewhat in regard to time, or asked and answered objections. But in general a party must be allowed to cross. In a criminal case the 6th Amendment right to confrontation guarantees the right to cross examine government witnesses.

Justice Scalia put it this way, "Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of 'testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Crawford v. Washington, 541 U.S. 36, 68 (2004)

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should 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.

(b) Scope of Cross-Examination. A witness may be cross-examined on any relevant matter, including credibility.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.


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