Federal Evidence Review

In a civil rights case, the trial judge's sua sponte direction to plaintiff to avoid using leading questions in direct examination of law enforcement agents (who had been defendants in the case) was not an abuse of discretion under FRE 611(c); it was harmless in light of the plaintiff's ability to "sufficiently present conflicting" and "discredited testimony" given by the law enforcement witnesses at trial, including during cross-examination of those same witnesses in the presentation of the defense case, in McCabe v. Parker, __ F.3d __ (8th Cir. June 30, 2010) (Nos. 09-1185, 09-1847)

The general assumption is that a hostile witness can be properly led on direct examination if the court designates the witnesses as adverse and “identified with” the party opposing the party calling the witness. However, if the trial judge under FRE 611(c) declines to find an adverse witness as hostile, can this be remedied? In a 1999 case, the Seventh Circuit suggested that the situation was one in which the court had to review the whole course of witness examination. While not using the term "harmless error," the circuit seemed to suggest that the issue was not whether any particular question or questions should have been permitted to be leading. Rather, the issue involved whether the party conducting the examination had a full opportunity to develop the evidence, whether it came during its direct examination of the witness, or later on cross-examination of the purportedly hostile witness when called by the side with whom the witness is identified. See United States v. Hall, 165 F.3d 1095,1117 (7th Cir. 1999) ("Hall had the opportunity to fully cross-examine the witness in the government's case-in-chief, and on appeal he fails to show what information he sought to elicit through leading questions [on his direct]. Thus, we conclude that the district court did not abuse its discretion.")

The Eighth Circuit has recently examined this issue - once in 2007 and again in June 2010. In both instances, the Circuit adopted the same approach that suggests a harmless error analysis. In the most recent case of McCabe .v Parker, a civil rights suit was filed by plaintiffs McCabe and Nelson, protesters at a 2004 protest of a Republican Party rally for then-President George W. Bush. The plaintiffs contended that defendant Secret Service agent Parker and other law enforcement officers violated their Fourth Amendment rights by arresting the protesters for trespass and subjecting them to strip and body cavity searches. Their first trial ended in a verdict for the plaintiffs on the strip search claims, but the trial judge granted the defense request for a new trial on the ground that the damages awarded by the jury ($750,000) were excessive. After the second trial, the jury awarded the plaintiffs a much smaller judgment ($55,804) and the plaintiffs filed an appeal. As part of that appeal, the plaintiffs cited as error the trial judge's order that they could not ask leading questions of law enforcement witnesses whom the plaintiffs contended were hostile witnesses. McCabe v. Parker, __ F.3d at __.

The circuit noted that the evidence issue involved "the exact location" where the plaintiffs had been arrested. This involved testimony by two state troopers and arresting officers, "Busch and Bailey with respect to the sequence of events surrounding the arrests." According to the circuit:

"McCabe and Nelson called the troopers as witnesses in their case-in-chief. During the troopers' direct examination, at times when plaintiff's counsel was attempting to impeach the troopers regarding the location of the arrests, the district court instructed plaintiff's counsel to avoid leading questions and denied counsel's request to treat the first testifying trooper (Bailey) as an adverse witness. McCabe and Nelson contend these evidentiary rulings were an abuse of discretion and had a substantial impact on the jury's answer to the probable cause inquiry. We disagree."

In rejecting the plaintiff's contention, the circuit cited a "similar challenge to a district court's sua sponte instructions to avoid leading an adverse witness on direct examination." In that case, Scenic Holding, LLC v. New Board of Trustees of Tabernacle Missionary Baptist Church, Inc., 506 F.3d 656, 664 (8th Cir. 2007), the Eighth Circuit "explained that under Federal Rule of Evidence 611(c) '[t]he standard, acceptable, and preferred procedure is to permit counsel to lead an adverse or hostile witness on direct examination” but that the Rule “is permissive and must be read in context with the trial court's general authority and discretion to control the conduct of the trial.' The court concluded the impact of the district court's sua sponte instructions was 'minuscule' and did not affect the appellant's substantial rights." McCabe v. Parker, __ F.3d at __.

Curiously, the while quoting part of the Scenic case's holding, the circuit left veiled its full reasoning as to its application in McCabe. The circuit neglected to note several aspects that guided its disposition in Scenic and presumably could have had a different influence on McCabe's appeal. Unlike the situation in McCabe, the trial judge in Scenic actually did designate the witness whom the plaintiff's wished to lead as an adverse witness. Also, the court in Scenic appears not to have actually found that the trial judge erred in directing the party not to use leading questions. Rather, the circuit seemed to conclude that whatever the status of the judge's decision was, it was harmless error. "The impact of the district court's ruling ... appears minuscule," concluded the circuit as it noted that "no substantial right of Scenic was affected" and cited FRE 103(a) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...."). This was "particularly" so because the Scenic did "not allege the district judge denied any request during trial to pose leading questions to this witness." Scenic Holding, LLC v. New Board of Trustees of Tabernacle Missionary Baptist Church, Inc., 506 F.3d 656, 664 (8th Cir. 2007). The implications of this was that the party objected to the requirement to use leading questions only after they had lost their case.

In reaching the "same conclusion" in McCabe as in Scenic, the circuit indicated that its review of the trial:

"transcript indicates plaintiffs' counsel was able to adequately present the conflicting testimony regarding the exact location of the arrests, including the discredited testimony given by the two troopers, despite the district court's instruction to avoid leading questions during direct examination. Significantly, the troopers also testified during Agent Macaulay's case-in-chief, and counsel had a full opportunity to conduct cross examination using leading questions. Thus, any limitations placed on the questions during the plaintiffs' case-in-chief had little impact on the overall trial."

In McCabe, the circuit appears to have looked not to the specific questions that the trial judge limited. Rather, it assessed the overall impact of the judge's decision on how well the plaintiff was able to present its case. Indeed, the circuit also noted that even had there been "some impact on counsel's ability to discredit" the witnesses, in the end it would not be of much import, if any, to the case. As far as McCabe goes, it is not clear the limitation on the plaintiff's questioning of the witnesses was erroneous. Rather, what ever it was, it simply had no ultimate effect on the plaintiff's case - it was harmless.