PastPaperHero | Presentation of evidence

Learning Outcomes

This article explains the mode and order of presenting evidence at trial under the Federal Rules of Evidence, including:

How judges exercise discretion under FRE 611 to structure the sequence and manner of witness examination and proof to promote truth‑finding, efficiency, and protection of witnesses from harassment or undue embarrassment
When leading questions are permitted or restricted on direct, cross, redirect, and recross examination, and how exceptions for hostile, adverse, or vulnerable witnesses commonly appear in bar exam fact patterns
The default and expanded scope of cross-examination under FRE 611(b), including coverage of subject matter from direct, attacks on credibility, and judicial authority to allow wide‑open cross in appropriate cases
How courts manage improper question forms—such as compound, argumentative, speculative, or asked-and-answered questions—and the standards appellate courts use to review these rulings for abuse of discretion and prejudice
When witnesses must be excluded from the courtroom under FRE 615, which categories of parties and essential persons cannot be sequestered, and what sanctions are available for violations of sequestration orders
How these mode-and-order doctrines are likely to be framed in multiple-choice questions, including common distractors that misstate judicial discretion, leading-question rules, or the mandatory nature of witness exclusion on request

MBE Syllabus

For the MBE, you are required to understand presentation of evidence, with a focus on the following syllabus points:

The court’s power to control the mode and order of examining witnesses and presenting proof (FRE 611)
Scope of examination on direct and cross-examination
Limits on the form of questions (especially leading questions)
The rule on exclusion (sequestration) of witnesses (FRE 615) and its exceptions
Judicial calling and questioning of witnesses and conferences outside the jury’s hearing

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is within the trial judge’s discretion regarding the presentation of evidence?
1. Requiring all witnesses to testify in alphabetical order
2. Controlling the sequence of witnesses to improve efficiency and truth-finding
3. Allowing only the plaintiff to call witnesses
4. Mandating that all evidence be presented before opening statements
When are leading questions generally permitted on direct examination?
1. Never
2. Only when the witness is hostile or adverse
3. Always
4. Only if the opposing party consents
Under the Federal Rules, which witness may NOT be excluded from the courtroom upon a party’s request?
1. The plaintiff in a civil case
2. A party’s expert witness
3. A person essential to a party’s case presentation
4. A party’s spouse

Introduction

The Federal Rules of Evidence give trial judges broad authority over how evidence comes in and when particular witnesses testify. This is captured in the phrase “mode and order of presenting evidence,” mostly governed by FRE 611 and 615.

Key Term: Mode and Order of Presentation
The set of rules and judicial powers that govern how evidence and witness testimony are elicited, structured, and sequenced during trial.

These rules cover:

Who questions a witness and in what order
The form of those questions (e.g., whether they may be leading)
The scope of direct, cross, redirect, and recross
Whether witnesses may remain in the courtroom for other testimony

Understanding the court’s control over these issues is essential for spotting when an evidentiary ruling is within the judge’s discretion (and thus usually upheld on appeal) and when it violates a mandatory rule (and thus is error).

Key Term: Judicial Discretion
The authority of the trial judge to make case-specific decisions about how the trial is conducted, including the manner and sequence of presenting evidence, so long as the judge stays within the Federal Rules and constitutional limits.

Judicial Control Over Presentation of Evidence (FRE 611(a))

Under FRE 611(a), the court “should exercise reasonable control” over the mode and order of examining witnesses and presenting evidence to:

Make the procedures effective for determining the truth
Avoid wasting time
Protect witnesses from harassment or undue embarrassment

This gives the judge wide latitude to:

Decide the order in which parties present their cases
Rearrange the sequence of witnesses
Limit repetitive or cumulative evidence
Require counsel to rephrase improper questions
Hold sidebars (conferences) outside the jury’s hearing to argue objections

The judge may even call witnesses and question them, provided each party is given a full opportunity to cross-examine.

Key Term: Direct Examination
The initial questioning of a witness by the party who called the witness, typically using non-leading questions and focused on the witness’s personal knowledge.

Key Term: Cross-Examination
Questioning of a witness by the opposing party, generally using leading questions and limited (under the FRE) to the subject matter of direct examination and matters affecting credibility.

Purposes of Judicial Control

The court exercises control to:

Facilitate accurate fact-finding
Improve efficiency and avoid needless delay
Prevent unfairness, confusion, and harassment of witnesses

Examples of uses of this control:

Cutting off cumulative questioning once a point is clearly established
Reordering witnesses so an out-of-town witness can testify and be excused
Instructing counsel not to badger or repeatedly ask the same question
Allowing a reluctant or fragile witness to testify in a different format (e.g., more narrative testimony) to aid comprehension

These controls are reviewed on appeal under an “abuse of discretion” standard. To reverse, the appellant usually must show both abuse of discretion and that a substantial right was affected.

Sequence of Witnesses and Evidence

The usual order of trial is:

In a civil case:
- Plaintiff’s opening statement
- Defendant’s opening statement (sometimes reserved)
- Plaintiff’s case-in-chief
- Defendant’s case-in-chief
- Plaintiff’s rebuttal; defendant’s surrebuttal (if permitted)
- Closings and jury instructions
In a criminal case:
- Prosecution’s opening, then defense opening
- Prosecution’s case-in-chief
- Defense case
- Prosecution rebuttal, defense surrebuttal

The judge may depart from this “standard” order when necessary to:

Avoid prejudice (for example, to separate inflammatory evidence)
Accommodate witnesses’ serious scheduling constraints
Clarify issues for the jury

For example, the court may allow a defense witness to testify during the plaintiff’s case-in-chief if the witness is unavailable later that day. As long as each side retains a fair opportunity to present its case and cross-examine, altering the sequence is ordinarily permissible.

The Court’s Ability to Call and Question Witnesses

Judges are not passive. Under the rules:

The court may call witnesses on its own or at a party’s request.
All parties are entitled to cross-examine such witnesses.
The judge may question any witness, whether called by the court or by a party.

At the same time, the judge must not appear to favor one side. Leading or argumentative questions by the judge, or commentary that signals disbelief of a witness, can rise to reversible error if they significantly influence the jury.

Every party must also be given a meaningful opportunity to object to evidence, usually outside the jury’s hearing if the matter is sensitive or potentially prejudicial.

Scope of Direct, Cross, Redirect, and Recross

FRE 611(b) provides the default rule on the scope of cross-examination:

Key Term: Scope of Cross-Examination
The range of topics that may be explored on cross. Under the Federal Rules, cross is generally limited to the subject matter of direct examination and matters affecting the witness’s credibility, unless the court permits broader inquiry.

Direct examination
- Conducted by the party who called the witness
- Focuses on relevant facts within the witness’s personal knowledge
- Leading questions are generally prohibited (subject to exceptions below)
Cross-examination
- Conducted by the opposing party
- As of right, may cover:
  - Matters raised on direct
  - Credibility (bias, perception, prior inconsistent statements, etc.)
- The judge may allow “wide-open” cross that goes beyond the scope of direct if it will aid truth-finding and does not unfairly prejudice the witness or opposing party.

On redirect and recross, the scope is narrower:

Redirect is limited to matters raised on cross.
Recross is limited to matters raised on redirect.

The court can permit some expansion, but parties do not have an automatic right to introduce entirely new subject areas at these later stages.

Leading Questions

A leading question suggests its own answer, often answerable by “yes” or “no.”

Key Term: Leading Question
A question that suggests the specific answer desired by the examiner, rather than simply asking for the witness’s recollection (e.g., “Isn’t it true that you saw the defendant run the red light?”).

The general rule under FRE 611(c):

Leading questions are not ordinarily allowed on direct examination.
Leading questions are ordinarily allowed on cross-examination.

However, there are important exceptions on direct where leading questions are permitted because they help develop testimony or protect efficiency:

To elicit preliminary background or undisputed information
- Example: name, occupation, location of an incident.
When the witness has difficulty communicating due to age, infirmity, or language issues.
When the witness is hostile, adverse, or identified with an adverse party:
- A hostile witness is one who is openly resistant or adverse to the examining party, as determined by the judge.
- An adverse party (or someone identified with an adverse party, such as a current employee of the opposing party) may be questioned by leading questions as if on cross.

In practice, once the court formally designates a witness as “hostile,” leading questions on direct become permissible.

Worked Example 1.1

During a civil trial, the plaintiff calls a witness to testify about an accident. The plaintiff’s attorney asks, “Isn’t it true that you saw the defendant run the red light?” The defense objects that this is a leading question. Should the objection be sustained?

Answer:
Yes. On direct examination, leading questions are generally not permitted unless an exception applies (hostile/adverse witness, background information, communication difficulties). Here, the question suggests its answer on a contested point, and the witness has not been shown to be hostile or adverse, so the court should sustain the objection and require counsel to rephrase.

Refreshing a Witness’s Recollection

Sometimes a witness has difficulty remembering details. The rules governing refreshing relate to mode of examination.

Key Term: Refreshed Recollection
A witness’s present testimony after reviewing a document or other item that has temporarily refreshed the witness’s memory; the testimony comes from the witness’s current memory, not from reading the item aloud.

Key points:

Any item (notes, a photograph, a song) can be used to refresh, on direct or cross.
The witness reviews the material, says their memory is refreshed, sets it aside, and then testifies from present memory.
The refreshing material itself does not automatically become evidence, but:
- The adverse party is entitled to inspect it,
- Cross-examine the witness about it, and
- Introduce relevant portions into evidence if fairness requires.

If the witness still cannot remember after refreshing, a separate hearsay exception—past recollection recorded—may apply. That exception is about admissibility of the writing; refreshed recollection is about the mode of questioning.

Exclusion of Witnesses (Sequestration) – FRE 615

To protect the integrity of testimony, the court may keep witnesses from hearing each other’s testimony.

Key Term: Exclusion of Witnesses
The process of ordering witnesses to remain outside the courtroom so they cannot hear other witnesses’ testimony, minimizing the risk of tailoring or collusion.

Key Term: Sequestration
Another term for exclusion of witnesses under FRE 615; it refers to keeping witnesses separate so that each testifies based on independent memory.

Under FRE 615:

On the request of a party, or on its own, the court must order witnesses excluded so they cannot hear the testimony of other witnesses.
This applies to “witnesses” who are expected to testify; it does not cover jurors or counsel.

However, certain people cannot be excluded:

A party who is a natural person (e.g., the plaintiff or defendant in a civil case, the criminal defendant).
An officer or employee of a non-natural-person party who has been designated as the party’s representative (e.g., a corporate representative).
A person whose presence is shown to be essential to presenting a party’s claim or defense (often the lead case agent in a criminal case or an expert who must hear other testimony to give opinions).
A person authorized by statute to be present (commonly a crime victim under victims’ rights statutes).

Attempting to sequester someone in one of these categories is error. On the MBE, answer choices that exclude a party or a properly designated representative are incorrect.

If a witness violates a sequestration order, the court has discretion to:

Hold the witness in contempt,
Limit or strike the witness’s testimony, or
Give a jury instruction about the violation.

Sanctions focus on preserving fairness, not punishing innocently uninformed witnesses.

Worked Example 1.2

In a criminal trial, the prosecution requests that all witnesses be excluded from the courtroom. The defense objects to excluding the defendant’s expert witness, arguing that the expert’s presence is essential to the defense. What should the judge do?

Answer:
The court should allow the expert to remain if the defense makes a reasonable showing that the expert’s presence is essential to presenting the case (for example, to hear other expert testimony necessary for forming opinions). Under FRE 615, an “essential” person is one of the categories exempt from sequestration, even though other witnesses must be excluded.

Worked Example 1.3

On cross-examination of a plaintiff’s eyewitness, defense counsel asks about an unrelated prior car accident in which the witness injured someone. The accident was never mentioned on direct. Plaintiff objects that the question is beyond the scope of direct and improper. How should the court rule?

Answer:
The question is permissible if it is genuinely aimed at credibility. Under FRE 611(b), cross may address both the subject matter of direct and matters affecting credibility. The prior accident has no connection to the events of this case, so it is beyond the subject matter of direct, but it may still be allowed if it is relevant to bias, perception, or another credibility factor. If the only relevance is general character for carelessness (not credibility for truthfulness), the court should likely sustain the objection as both beyond the scope of direct and not aimed at credibility.

Worked Example 1.4

In a criminal assault trial, the prosecution moves to exclude “all witnesses, including the victim,” from the courtroom. A state statute gives crime victims the right to attend trial proceedings. The defense joins the sequestration request, arguing that hearing other testimony may influence the victim’s account. What should the court do?

Answer:
The victim cannot be excluded. Under FRE 615, a person “authorized by statute to be present” is one of the categories exempt from sequestration. Because a statute grants the victim a right to attend, that statutory right overrides the ordinary sequestration rule, even if both parties would prefer the victim to be excluded.

Exam Warnings and MBE Traps

Do not assume the court has unlimited power to exclude anyone from the courtroom. Parties, designated representatives, essential persons, and statutory designees are protected.
Do not treat every evidentiary ruling as reversible error. If the rule uses discretionary language (e.g., “the court may”), the standard is abuse of discretion plus prejudice.
Distinguish between:
- Leading questions (form of question) and
- The substance of the testimony (hearsay, relevance, etc.)
On cross, remember the FRE rule: scope limited to direct plus credibility, but the court can allow more. If a question is clearly outside both direct and credibility, the objection should be sustained.

Revision Tip

Remember:

Non-leading on direct is the default; leading is the default on cross.

The judge can re-order witnesses and evidence for truth and efficiency.

Sequestration is mandatory on request, but four categories of people cannot be excluded.

Key Point Checklist

This article has covered the following key knowledge points:

FRE 611 gives the judge broad discretion over the mode and order of presenting evidence to facilitate truth-finding, efficiency, and protection of witnesses.
The court may call and question witnesses; all parties may cross-examine those witnesses.
The usual order of proof (plaintiff/prosecution case, defense case, rebuttal) can be altered by the judge as long as fairness is preserved.
Direct examination is conducted by the calling party, usually without leading questions; cross-examination is conducted by the opposing party and may use leading questions.
Under the Federal Rules, cross-examination is limited by right to the subject matter of direct and matters of credibility, though the court may allow broader inquiry.
Leading questions are generally barred on direct, but allowed for background, communication difficulties, hostile or adverse witnesses, and witnesses identified with an adverse party.
Judges may disallow improper question forms such as compound, argumentative, asked-and-answered, speculative, or those assuming facts not in evidence.
A witness’s recollection may be refreshed with almost any item; the testimony comes from present memory, and the adverse party may inspect and use the refreshing material.
Upon request or on its own, the court must exclude witnesses from the courtroom, except for parties, designated representatives of non-natural parties, essential persons, and statutorily authorized persons.
Violations of sequestration may be sanctioned, but sanctions are chosen in light of fairness and the substantial rights of the parties.

Key Terms and Concepts

Mode and Order of Presentation
Judicial Discretion
Direct Examination
Cross-Examination
Scope of Cross-Examination
Leading Question
Refreshed Recollection
Exclusion of Witnesses
Sequestration

Presentation of evidence - Mode and order