FRE 611(a) did not authorize the exclusion of sixteen government witnesses discovered after the initial trial date; opinion also notes the interaction between FRE 611(a) and FRE 403, in United States v. Colomb, 419 F.3d 292, 298 (5th Cir. 2005)
FRE 611 generally provides the trial court with authority to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.” Three objectives are identified in the rule: “(1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” A Fifth Circuit case noted the limits of this rule to exclude otherwise admissible evidence.
The case involved a drug and firearm prosecution. The initial trial was delayed on the court’s own motion for more than three months. After the first trial date, the prosecutor received “letters or telephone calls from several individuals–almost all of whom are incarcerated–who said they had information concerning defendants’ alleged offenses and offered to testify at trial.” Colomb, 419 F.3d at 294. After interviewing these witnesses, the government informed the defense that it “intended to call additional coconspirator-type witnesses” and provided discovery. The defense then moved to continue the trial and strike the new witnesses, claiming insufficient time to prepare. The trial court denied the motion to continue the trial but excluded the new witnesses under FRE 611(a) and the court’s “‘inherent power to avoid the needless consumption of time and the Court’s ability to control its docket.” Colomb, 419 F.3d at 294-95 (footnotes omitted). The trial court encouraged the government to appeal the ruling, which it did.
The Fifth Circuit reversed the ruling concluded that FRE 611 did not authorize the exclusion of witnesses:
“The command of Rule 611(a) that ‘[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence’ does not support the decision below to exclude the sixteen government witnesses. ‘Unlike the vast majority of the other Evidence Rules, Rule 611 does not purport to regulate the admissibility of evidence. Instead, the rule gives trial courts broad powers to control the “mode and order” of what is otherwise admissible evidence.’ 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6162, at 338 (1993) (footnote omitted). Although decisions that a court makes under Rule 611 may indirectly affect whether proof is admitted, the Rule does not provide an independent ground for excluding otherwise-admissible evidence. See id. § 6163, at 344-45. ‘Thus, the key to understanding the scope of Rule 611 is that it affects admissibility only as an incident to regulating mode and order; the provision itself creates no standards for admissibility.’ Id. at 345-46. ‘Where a court excludes evidence to advance the policies specifically described in subdivision (a), it is Rule 403 and not Rule 611 that supplies the power for that action.’ Id. at 345.”
Colomb, 419 F.3d at 297. While the court may have been able to consider the exclusion of witnesses under FRE 403, this did not form the basis for the trial court’s ruling. The balancing factors under FRE 403 were not considered by the trial court. The circuit noted that the trial court on remand could consider:
“either in a pretrial hearing or during trial, whether some or all of the witnesses in question should be excluded under Rule 403 (or, for that matter, on any other proper procedural or evidentiary basis). But because Rule 403 permits the exclusion of relevant evidence only if, as pertinent here, ‘its probative value is substantially outweighed by … considerations of … waste of time, or needless presentation of cumulative evidence,’ it follows that the district court must in some manner consider the content of the witnesses’ anticipated testimony so that it can assess its probative value before deeming it inadmissible.”
Colomb, 419 F.3d at 302 (citing Swajian v. Gen. Motors Corp., 916 F.2d 31, 34 (1st Cir. 1990) (trial court erred as a matter of law by failing to fully consider probative value of evidence before excluding it under FRE 403)).
While the trial court largely has discretion to admit or exclude evidence at trial, it must do so consistent with the applicable standards under the rules of evidence. The Colomb case is instruction in noting the interplay between two common rules for managing evidence, under FRE 403 and FRE 611(a).
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