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27. Should the defendant's cross-examination of the manager be permitted over the plaintiff's objection?
A plaintiff sued a defendant for injuries allegedly suffered when he slipped and fell on the defendant's business property. At trial, without asking that the defendant's property manager be declared a hostile witness, the plaintiff called him solely to establish that the defendant was the owner of the property where the plaintiff fell. On cross-examination of the manager, the defendant's attorney sought to establish that the defendant had taken reasonable precautions to make the property safe for business invitees.
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Leading questions are generally prohibited on direct examination of witnesses. However, an exception to this rule is when the witness is «unfriendly» or adverse. The opposing party in a lawsuit will almost always be deemed to be unfriendly and therefore open to leading questions. See Fed. R. Evid. 611(c).
A is correct. Inquiry into whether the defendant took reasonable precautions is inadmissible because it is beyond the scope of direct examination and does not relate to the witness's credibility, nor has the court given permission to expand the scope. If a witness is declared hostile, the examining party may be allowed to examine the witness by leading questions. But a declaration that a witness is hostile does not mean that the cross-examination can go beyond the scope of direct examination. The proper scope of cross-examination is the same for hostile and non-hostile witnesses. Here, the property manager may or may not have been a hostile witness, but either way, it is irrelevant to whether the line of questioning is proper in the first place.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the defendant's cross-examination on this subject matter should not be permitted, it is not because the witness has not been declared hostile. As explained above, whether a witness is hostile has no impact on the proper scope of cross-examination as established by FRE 611(b).
C is incorrect. This is a misstatement of the law. Although the court has the discretion to permit inquiry into matters beyond the scope of direct examination and credibility under FRE 611(b), the defendant is not «entitled» to explore matters relevant to any issue in the case.
D is incorrect. This is also a misstatement of the law. The scope of cross-examination, regardless of whether the witness is an agent of a party, is not unlimited. As explained above, the court may, in its discretion, expand the scope of cross-examination.