W.Va. R. Evid. 611

As amended through January 31, 2024

Rule 611 - Mode an Order of Examining Witnesses and Presenting Evidence

(a)Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b)Scope of Cross-Examination.

(1)Party Witness. A party may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interest of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.

(2)Non-Party Witness. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the non-party witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c)Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(d) on cross-examination; and

(e) when a party calls a hostile witness, an expert witness, an adverse party, or a witness identified with an adverse party.

W.va. R. Evid. 611

COMMENT ON RULE 611

Rule 611(a) is taken verbatim from the federal counterpart. The revised provisions are substantively the same as the current state rule. The only change is stylistic.

Rule 611(b) was taken verbatim from the current state rule. The federal counterpart is not adopted because it differs materially. The federal counterpart limits cross-examination of a party and non-party to testimony given on direct examination; however, the existing state rule allows a party to be cross-examined on any relevant matter, and only limits cross-examination of a non-party to testimony given on direct examination. The state approach is the better way handling cross-examination.

The limitation of cross-examination to the 'subject matter of direct examination" in Rule 611(b)(2) is not intended to restrict cross-examination only to those facts elicited during cross examination. "The subject matter of direct [examination] does not mean literally the precise facts developed on direct. It means the subject matter opened up[.]" State v. Deitz, 182 W.Va. 544, 551, 390 S.E.2d 15, 22 (1990) (quoting F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 3.3(D)(3) (2d ed. 1986) (emphasis omitted).

Rule 611(c) is taken verbatim from the federal counterpart, except that expert witnesses are included in Rule 611(c)(2), which is consistent with the existing state rule.