[*] Mason Ladd Professor of Evidence, Florida State University College of Law; reporter and drafter of the Florida Evidence Code B.S., 1962, Iowa State University; J.D., 1964, University of Iowa. Return to text.

[**] Associate, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Florida. B.A., 1981, University of South Florida; J.D., 1991, Florida State University College of Law.

The authors would like to thank Kym Johnson and the Florida State University College of Law for providing research support. Return to text.

[1] See 3 JOHN H. WIGMORE, EVIDENCE 896-905 (3d ed. 1940) [hereinafter 3 WIGMORE 1940]; CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE 38 (1954). Return to text.

[2] See 3 WIGMORE 1940, supra note 1, 769-79. Return to text.

[3] 1990, Fla. Laws ch. 90-174, 1, 742-43 (codified as amended at FLA. STAT. 90.608 (1995)). Return to text.

[4] 1995, Fla. Laws ch. 95-179, 1, 1647 (codified as amended at FLA. STAT. 90.612(3) (1995)). Return to text.

[5] Erp v. Carroll, 438 So. 2d 31, 36 (Fla. 5th DCA 1983). Return to text.

[6] Id. Return to text.

[7] See United States v. Bryant, 461 F.2d 912, 918 (6th Cir. 1972); Kembro v. State, 346 So. 2d 1083 (Fla. 1st DCA 1977). Return to text.

[8] Erp, 438 So. 2d at 36. Return to text.

[9] In re Florida Rules of Civil Procedure 1967 Revision, 187 So. 2d 598, 625 (Fla. 1966). Rule 1.450(a) of the Florida Rules of Civil Procedure provides:

A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party and interrogate that person by leading questions and contradict and impeach that person in all respects as if that person had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also and may be cross-examined by the adverse party only upon the subject matter of that witness's examination in chief.

FLA. R. CIV. P. 1.450(a). Return to text.

[10] Foremost Dairies, Inc. v. Cutler, 212 So. 2d 37, 40 (Fla. 4th DCA 1968); see Erp, 438 So. 2d at 31, 36. Return to text.

[11] FLA. R. CIV. P. 1.450(a). Return to text.

[12] Id. Rule 1.450 was based on former FED. R. CIV. P. 43(b) (1974). Return to text.

[13] 3 JOHN H. WIGMORE, EVIDENCE 774 (Chadbourn rev. 1970) [hereinafter 3 WIGMORE 1970]; 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE 611[05] (1987) [hereinafter WEINSTEIN]. Return to text.

[14] Foremost Dairies, Inc., 212 So. 2d at 40 ("An adverse party would by simple definition simply be a party to the litigation who had an adverse interest in its outcome."). Return to text.

[15] Smith v. Fortune Ins. Co., 404 So. 2d 821, 823 (Fla. 1st DCA 1981); see also Botte v. Pomeroy, 497 So. 2d 1275, 1277 (Fla. 4th DCA 1986), rev. denied, 508 So. 2d 15 (Fla. 1987) (stating that employee of an adverse party who could have been named in the suit as an adverse party could be examined as an adverse party). Return to text.

[16] Poitier v. State, 303 So. 2d 409, 410-11 (Fla. 3d DCA 1974); Johnson v. State, 178 So. 2d 724, 727 (Fla. 2d DCA 1965). Return to text.

[17] 3A JOHN H. WIGMORE, EVIDENCE 898 (1970 Chadbourn rev.) [hereinafter 3A WIGMORE 1970]; WEINSTEIN, supra note 13, 607[01]. Return to text.

[18] Nelson v. State, 128 So. 1, 1 (Fla. 1930). Return to text.

[19] Section 90.09 of the Florida Statutes (1975) provided:

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness proves adverse, contradict him by other evidence, or prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such statement.

FLA. STAT. 90.09 (1975) (repealed 1976).

This statute was apparently based on a similar English statute enacted in the mid-1800s. 3A WIGMORE 1970, supra note 17, 905. Return to text.

[20] Hernandez v. State, 22 So. 2d 781 (Fla. 1945); Foremost Dairies, Inc. v. Cutler, 212 So. 2d 37, 40 (Fla. 4th DCA 1968). Return to text.

[21] Okey v. Monarch Ins. Co. of Ohio, 392 So. 2d 57, 58 (Fla. 5th DCA 1981); Foremost Dairies Inc.v. Cutler, 212 So. 2d 37, 40 (Fla. 4th DCA 1968). Return to text.

[22] FLA. STAT. 90.09 (1975). Return to text.

[23] Id. Return to text.

[24] FLA. R. CIV. P. 1.450(a). Return to text.

[25] Id. Return to text.

[26] Id. Return to text.

[27] In re Florida Rules of Civil Procedure 1967 Revision, 187 So. 2d 598, 625 (Fla. 1966). See text of Rule 1.450(a) of the Florida Rules of Civil Procedure, supra note 9. Return to text.

[28] Erp v. Carroll, 438 So. 2d 31, 36 (Fla. 5th DCA 1983). Return to text.

[29] Id. at 35. Return to text.

[30] FED. R. EVID. 607. Return to text.

[31] 1978, Fla. Laws ch. 78-361, 14, 988-99 (codified as amended at FLA. STAT. 90.608(2) (1995)). A technical amendment to section 90.608(2) provided that "a party calling a witness" could impeach a witness under certain circumstances. Id. The substitution of the word "calling" for the word "producing" was made to provide consistency between subsections (1) and (2). Id. In addition, subsection (2) was amended to provide that, if an adverse witness could be impeached pursuant to the subsection, leading questions could be used during that impeachment. Id. Return to text.

[32] Section 90.608(2) of the Florida Statutes (1977) provided:

A party producing a witness shall not be allowed to impeach his character as provided in section 90.609 or section 90.610, but, if the witness proves adverse, such party may contradict the witness by other evidence or may prove that the witness has made an inconsistent statement at another time, without regard to whether the party was surprised by the testimony of the witness.

FLA. STAT. 90.608(2) (1977) (amended 1990). Return to text.

[33] Id. Return to text.

[34] Shere v. State, 579 So. 2d 86, 91(Fla. 1991); Adams v. State, 34 Fla. 185, 15 So. 905, 908 (1894); Pitts v. State, 333 So. 2d 109, 111 (Fla. 1st DCA 1976). Return to text.

[35] Jackson v. State, 451 So. 2d 458, 462 (Fla. 1984), appeal after remand, 522 So. 2d 802 (Fla.), cert. denied, 488 U.S. 871 (1988); Mazzara v. State, 437 So. 2d 716 (Fla. 1st DCA 1983), rev. denied, 444 So. 2d 417 (Fla. 1984); Smith v. State, 547 So. 2d 281, 282 (Fla. 5th DCA 1989). Return to text.

[36] Erp v. Carroll, 438 So. 2d 31, 37 (Fla. 5th DCA 1983). Return to text.

[37] Shere, 579 So. 2d at 94; Austin v. State, 461 So. 2d 1380, 1383 (Fla. 1st DCA 1984). Return to text.

[38] Parnell v. State, 500 So. 2d 558, 561 (Fla. 4th DCA 1986), rev. denied, 509 So. 2d 1119 (Fla. 1987). Return to text.

[39] FLA. CONST. art. V, 2(a); see Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975) (explaining the difference between procedural and substantive matters). Return to text.

[40] FLA. STAT. 90.612(3) (1976 supp.) (amended 1995). Return to text.

[41] Id. Return to text.

[42] Id. Return to text.

[43] CHARLES W. EHRHARDT, FLORIDA EVIDENCE 612.1 (1995). Return to text.

[44] Shultz v. Rice, 809 F.2d 643, 655 (10th Cir. 1986) (finding the physician-witness's billing procedures and the date he sent his records to another doctor to be preliminary matters). Return to text.

[45] Rotolo v. United States, 404 F.2d 316, 317 (5th Cir. 1968); Begley v. State, 483 So. 2d 70, 72 (Fla. 4th DCA 1986) (leading questions appropriate where witness is too young and frightened to understand questions). Return to text.

[46] Roberson v. United States, 249 F.2d 737, 742 (5th Cir. 1957), cert. denied, 356 U.S. 919 (1958). Return to text.

[47] See EHRHARDT, supra note 43, 612.1; see generally 3 WIGMORE 1970, supra note 13, 776; WEINSTEIN, supra note 13, 612; MCCORMICK ON EVIDENCE 6 (John W. Strong ed., 4th ed. 1992). Return to text.

[48] 1978, Fla. Laws ch. 78-361, 14, 998-99 (codified as amended at FLA. STAT. 90.608(2) (1995)). Return to text.

[49] 1990, Fla. Laws ch. 90-174, 1, 743 (codified as amended at FLA. STAT. 90.608(1) (1995)). Return to text.

[50] Id. Return to text.

[51] EHRHARDT, supra note 43, 608.2. Return to text.

[52] 1990, Fla. Laws ch. 90-174, 1, 742-43 (codified as amended at FLA. STAT. 90.608 (1995)). Return to text.

[53] Minutes from The Florida Bar Code and Rules of Evidence Committee Meeting 1 (June 24, 1994) (on file with author); letter from Keith H. Park, member of the Florida Bar Code and Rules of Evidence Committee and committee liaison to the Civil Procedure Rules Committee, to Charles W. Ehrhardt, reporter and drafter of the Florida Evidence Code(June 6, 1995) (on file with author) [hereinafter Park Letter].

The suggestion to adopt Federal Rule 611(c) in Florida was first made in Erp v. Carroll, 438 So. 2d 31, 36 (Fla. 5th DCA 1983). Return to text.

[54] See Park Letter, supra note 53. Return to text.

[55] Minutes from the Florida Bar Code and Rules of Evidence Committee Meeting 2 (Jan. 13, 1995) (on file with author); John A. Frusciante, 1995 Report of the Code and Rules of Evidence Committee, FLA. B.J., June 1995, at 57, 60. Return to text.

[56] 1995, Fla. Laws, ch. 95-179, 1, 1647 (codified as amended at 90.612(3) (1995)). Return to text.

[57] Minutes from the Florida Bar Code and Rules of Evidence Committee Meeting 1 (Sept. 9, 1994) (on file with author). Return to text.

[58] Frusciante, supra note 55, at 57-60. Return to text.

[59] Dinter v. Brewer, 420 So. 2d 932, 934 (Fla. 3d DCA 1982); see Hall v. Oakley, 409 So. 2d 93, 97 (Fla. 1st DCA), rev. denied, 419 So. 2d 1200 (Fla. 1982); Rivers v. State, 423 So. 2d 444 (Fla. 4th DCA 1982), op. quashed on other grounds, 456 So. 2d 462 (Fla. 1984). Return to text.

[60] Federal Rule of Evidence 611(c) provides in relevant part: "Leading questions should not be used on direct examination of a witness except as may be necessary to develop the witness'[s] testimony." FED. R. EVID. 611(c). Return to text.

[61] United States v. De Fiore, 720 F.2d 757, 764 (2d Cir. 1983), cert. denied, 466 U.S. 906, and cert. denied, 467 U.S 1241 (1984). Return to text.

[62] Ellis v. Chicago, 667 F.2d 606, 613 (7th Cir. 1981) (leading case construing rule 611(c)); Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 12 (1st Cir. 1993) (trial judge's decisions concerning use of leading questions and similar matters of trial management are given the widest possible latitude). Return to text.

[63] See, e.g., Ellis, 667 F.2d at 613; United States v. Hewes, 729 F.2d 1302, 1325 (11th Cir.) (use of leading questions is well within the court's discretion afforded by rule 611(c)), cert. denied, 469 U.S. 1110 (1985); Caldwell v. United States, 469 U.S. 1110 (1985) (same); United States v. Auten, 570 F.2d 1284, 1286 (5th Cir.) (same), cert. denied, 439 U.S. 899 (1978); United States v. Brown, 603 F.2d 1022, 1025 (1st Cir. 1979) (same); United States v. Shoupe, 548 F.2d 636, 641 (6th Cir. 1977) (same); St. Clair v. United States, 154 U.S. 134, 150 (1894) (holding that, in deciding whether leading questions may be used on direct examination, "much must be left to the sound discretion of the trial judge, who sees the witness, and can therefore determine, in the interest of truth and justice, whether the circumstances justify leading questions to be propounded to a witness by the party producing him"). Return to text.

[64] St. Clair, 154 U.S. at 150. Return to text.

[65] See, e.g., Brown, 603 F.2d at 1026 (finding no abuse of discretion in the trial court's instruction to prosecutor to use leading questions on direct examination after the witness's alcohol- and drug-induced memory lapses demonstrated his failure to understand his own prior oral and written statements, as well as the questions asked).

For the standard of review in rule 611(c) decisions, see Rodriguez, 990 F.2d at 13; see also WEINSTEIN, supra note 13, 611[05]; Haney v. Mizell Memorial Hosp., 744 F.2d 1467, 1478 (11th Cir. 1984) (requiring a clear showing of prejudice to the complaining party); Ellis, 667 F.2d at 613; Miller v. Fairchild Indus., Inc., 885 F.2d 498, 514 (9th Cir. 1989) (holding that the reversal of a decision on 611(c) will result only if the court's action amounts to the denial of a fair trial), cert. denied, 494 U.S. 1056 (1990); Shoupe, 548 F.2d at 641 (finding that abuse of discretion under rule 611(c) will not be found absent a showing of prejudice or clear injustice to defendant). But cf. De Fiore, 720 F.2d at 764 (stating that the words "leading questions should not be used" are words of suggestion, not command); Miller, 885 F.2d at 514 (refusing to reverse the lower court's decision based on a violation of 611(c) where the testimony that was wrongfully elicited did not substantially expand or alter earlier testimony); Brown, 603 F.2d at 1026 ("Reversals on the basis of non-compliance with rule 611(c) will be exceedingly rare."); FED. R. EVID. 611(c) advisory committee's note ("An almost total unwillingness to reverse for infractions has been manifested by appellate courts."). Return to text.

[66] FED. R. EVID. 611(c). Return to text.

[67] Miller, 885 F.2d at 514 (citing 3 DAVID W. LOUISELL & CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE 339, at 462-63 (1979)); see, e.g., United States v. Littlewind, 551 F.2d 244, 245 (8th Cir. 1977) (involving two young girls, alleged rape victims, who each responded hesitantly to questions; one of the girls was understandably reticent). Return to text.

[68] 762 F.2d 642, 651 (8th Cir. 1985). Return to text.

[69] Id. Return to text.

[70] Id. Return to text.

[71] United States v. Grey Bear, 883 F.2d 1382, 1393 (8th Cir. 1989) (leading questions necessary to develop, in murder trial, testimony of female witness who was unusually softspoken and frightened), cert. denied, 493 U.S. 1047 (1990); FED. R. EVID. 611(c) advisory committee's note. Return to text.

[72] FED. R. EVID. 611(c) advisory committee's note. Return to text.

[73] Stine v. Marathon Oil Co., 976 F.2d 254, 266 (5th Cir. 1992) (leading questions allowed to speed examination of witnesses); Shultz v. Rice, 809 F.2d 643, 655 (10th Cir. 1986) (leading questions allowed to develop testimony and expedite entry into evidence of time-consuming foundational information); FED. R. EVID. 611(c) advisory committee's note. Return to text.

[74] FED. R. EVID. 611(c). Return to text.

[75] Id. advisory committee's note. Return to text.

[76] Oberlin v. Marline Am. Corp., 596 F.2d 1322, 1328 (7th Cir. 1979); Shultz v. Rice, 809 F.2d at 643, 654 (10th Cir. 1986)holding that mere calling of witness to stand does not "automatically open the door" to use of leading questions on cross-examination when witness is friendly with counsel, and leading questions should not have been allowed as a matter of right); see also Ardoin v. J. Ray McDermott & Co., 684 F.2d 335, 336 (5th Cir. 1982) (holding that district court has power to require party cross-examining friendly witness to use nonleading questions; rule 611(c) not intended to be blanket endorsement of leading questions on cross-examination); Alpha Display Paging, Inc. v. Motorola Communications & Elecs., Inc., 867 F.2d 1168, 1171 (8th Cir. 1989) (explicitly acknowledging that roles of parties are reversed when witness identified with an adverse party is called, hence making leading questions inappropriate on cross-examination). Return to text.

[77] Morvant v. Construction Aggregates Corp., 570 F.2d 626, 635 n.12 (6th Cir.) (explaining court's finding of no abuse of discretion in permitting use of leading questions in cross-examination of defense's own employee), cert. dismissed, 439 U.S. 801 (1978). Return to text.

[78] Rule 611(c) of the Federal Rules of Evidence provides in relevant part: "When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. FED. R. EVID. 611(c); see also Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 13 (1st Cir. 1993) (dicta). Return to text.

[79] Rodriguez, v. Banco Cent. Corp., 990 F.2d 7,13 (1st Cir. 1993); Michael H. Graham, Examination of a Party's Own Witness Under the Federal Rules of Evidence: A Promise Unfulfilled, 54 TEX. L. REV. 917, 962 (1976).

Rule 611(c) does not give a party the "unfettered right" to call an adverse party and conduct a broad, lengthy examination. The trial court retains the power to limit the mode and order of questioning to make the presentation of evidence more effective and to avoid the needless consumption of time. See Elgabri v. Luekas, 964 F.2d 1255, 1260 (1st Cir. 1992); Rodriguez, 990 F.2d at 13. Return to text.

[80] MICHAEL H. GRAHAM, HANDBOOK ON FEDERAL EVIDENCE 611.8 (3rd ed. 1991); Suarez Matos v. Ashford Presbyterian Community Hosp., Inc., 4 F.3d 47, 50 (1st Cir. 1993) (distinguishing two categories of witnesses under application of rule 611(c): "hostile in fact" and "hostile in law"); United States v. Bryant, 461 F.2d 912, 916 (6th Cir. 1972). Return to text.

[81] Suarez Matos, 4 F.3d at 50 (holding that trial court erred in automatically allowing expert to be treated as hostile, but refusing to find plain error affecting substantial rights where defendants did not object to cross-examination). Return to text.

[82] Id.; see United States v. Brown, 603 F.2d 1022, 1026 (1st Cir. 1979) (explaining that court declared witness hostile, not because witness was contemptuous or surly, but because he was evasive to government). Return to text.

[83] These witnesses are sometimes called "hostile in law." See Graham, supra note 79, at 964. Return to text.

[84] Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 13 (1st Cir. 1993). Return to text.

[85] FED. R. EVID. 611(c). Return to text.

[86] Haney v. Mizell Memorial Hosp., 744 F.2d 1467, 1477-78 (11th Cir. 1984); Perkins v. Volkswagen of Am., Inc., 596 F.2d 681, 682 (5th Cir. 1979) (stating that employee of a party is clearly identified with the party); Stahl v. Sun Microsystems, Inc., 775 F. Supp. 1397, 1398 (D. Colo. 1991) (allowing plaintiff to ask leading questions of defendant's former administrative secretary); Ellis v. Chicago, 667 F.2d 606, 613 (7th Cir. 1981) (allowing plaintiff to lead police officers who worked closely with defendant police officer); United States v. Hicks, 748 F.2d 854, 859 (4th Cir. 1984) (allowing plaintiff to lead defendant's girlfriend); Brown, 603 F.2d at 1026 (allowing prosecutor to lead witness who was close friend of defendant and a participant in crime). Return to text.

[87] See supra notes 67-73 and accompanying text. Return to text.

[88] FLA. STAT. 90.612(3) (1995). Return to text.

[89] See supra note 86 and accompanying text. Return to text.

[90] Civil Procedure Rules Committee, The Florida Bar, meeting in Orlando, Fla. (Jan. 12, 1996) (minutes on file with the author). Return to text.


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