18. Which of the following would be an ERROR?

Leading questions are usually permitted during cross-examination. Questions that are relevant to the witness's credibility are always regarded as within the proper scope of cross-examination. Under Federal Rule of Evidence (FRE) 611(b), «Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.» This discretion to expand the scope of cross-examination is permitted as long as the discretion is not abused.

An exception to the rule allowing for leading questions on cross-examination is when the typical relationship between the questioner and the witness is not present. If a witness is biased in favor of the cross-examiner, the trial judge has the discretion to prevent leading questions.

If a witness were permitted to observe the testimony of other witnesses for the same side, he would be able to tailor his testimony (perhaps by perjury) so that it matched this other testimony. To prevent this, nearly all courts have, and often use, the power to exclude all other witnesses from the courtroom while one witness is testifying. The trial judge's right to sequester witnesses is codified in FRE 615, which states: «At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own.» In other words, any party has the absolute right to require the judge to exclude all witnesses from hearing other witnesses' testimony. The judge does not have the discretion to deny the request.

D is correct. The call of this question requires a determination of which choice describes an improper decision by the judge, which would result in an error. Here, the only improper scenario is if the judge, despite the defendant's request for exclusion of witnesses, allows the plaintiff's eyewitnesses to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination. Under FRE 615, the judge has no discretion to deny such a request from a party to exclude witnesses.

A is incorrect. The judge may, in the exercise of discretion, permit inquiry during cross-examination into additional matters as if on direct examination. Because the court has the discretion to allow the questioning in that manner, this would not be an error.

B is incorrect. Although leading questions are ordinarily permitted on cross-examination, there is no requirement that the judge must allow the defendant's attorney to use leading questions on cross-examination of the defendant. The judge may use discretion to deny the defendant's attorney the opportunity to cross-examine the defendant.

C is incorrect. Under FRE 611(b), matters affecting the credibility of a witness can be raised on cross-examination, regardless of whether they had been asked on direct examination.