A. Order of Proof

The trial begins with the impanelment of the jury or the making of opening statements in a non-jury trial.1 The general rule is that the party with the burden of proof opens first. This means the prosecution in a criminal case and the plaintiff in civil litigation make the initial statement to the jury. Courts vary as to when the defendant opens.2 In some jurisdictions, the defendant must open at the beginning of the defense case, in others the defense counsel has a choice: open either after the party with the burden of proof or at the beginning of her own case.3 One of the major advantages of opening after the party with the burden, as opposed to at the inception of one’s own case, is that by opening after the party with the burden, the defense attorney may allude to what the attorney expects to elicit on cross-examination of the witnesses called by the party with the burden of proof. If the attorney opens at the inception of the defense case, then that cross-examination has occurred and is no longer the proper subject of an opening.

After the party with the burden has presented its case-in-chief, the party‘s attorney, on the record, states "the plaintiff [or prosecution] rests." At this point, motions are ordinarily made by the opposing party challenging the sufficiency of the case of the party that has just rested. These motions, which are heard in the absence of the jury so as not to risk any impermissible inferences by the jury as to the judge’s views based on a denial of the motion, invoke distinct ground rules. All issues of credibility and all inferences are resolved against the party making the motion.

Assuming these motions are denied, the responding party then presents its case-in-chief. Such proof may consist of substantive proof supporting the party‘s position. Perez testifying he hit Calderon in self-defense is an example of such substantive proof. Or, the responding proof may be evidence tending to impeach witnesses called by the party with the burden. The FBI Agent Staedtler and inmates Dahler and Hurt were called, not because they knew anything about the underlying fight, but because their testimony tended to impeach the prosecution witness Long. Such impeaching proof must await that part of the trial when the party tendering the evidence is putting on its case. The party calling the impeaching witness cannot interrupt the opponent’s case to place such impeaching proof into evidence.

The defense ends its case by stating on the record words to the effect that it rests.

After the defense has presented its case, the party with the burden has an opportunity for rebuttal. Such rebuttal may be of a substantive nature or it may relate to the credibility of defense witnesses. When of a substantive nature, the proof cannot be repetitive of the case in chief: it must specifically rebut some claim in the defense‘s case. For example, if the defendant in a criminal case testifies as to an alibi, the prosecution in rebuttal cannot call additional eye witnesses to the crime to testify as to the defendant’s presence. The prosecution may, however, if the defendant presented proof that the defendant was in a distant city on the day of the crime, present proof that the defendant was in the city where the crime occurred on the date of the crime.

The defense then has an opportunity for sur-rebuttal. Since each case after the initial round of cases-in-chief is confined to rebutting the prior case, the duration of rebutting cases is usually small and often there is no sur-rebuttal or even rebuttal. Two considerations suggest the case will end quickly once each side has presented its case-in-chief, notwithstanding the mathematical possibility that the trial could go on indefinitely. First, the rules of rebuttal require that subsequent stages of the trial may only respond to issues raised in the stage directly preceeding it. Second there is the ever-present dynamic of the jury. By the time the jury has sat through the cases-in-chief, most juries are anxious to have the presentation of evidence come to an end and any observer of the jury, sensitive to its wishes, will feel the pressure to put an end to the fact-gathering stage. Only truly staggering proof will overcome that pressure, and if the proof is that staggering, it ordinarily will have been placed into evidence earlier.

After each party has rested, there are three processes left to the trial: closing arguments, jury instructions and jury deliberations. The usual procedure is for the court to review the proposed jury instructions after all parties have rested so that the lawyers will know, when they make their closing arguments, exactly how the judge will instruct the jury. After the final jury instruction conference, the parties make their closing arguments.

Generally, closing arguments follow one of two formats. First, and increasingly more common, the party with the burden closes first, followed by the responding party, with a brief opportunity for the party4 with the burden to rebut. Alternatively, the party not under a burden of proof goes first, followed by the party with the burden. The court then instructs the jury on the law and it then begins its deliberations.

One scenario that has not been mentioned involves multiple parties. Suppose there are two plaintiffs or two defendants. How does the order of proof work under those circumstances? The underlying judicial interest governing order of proof in multiple party situations is that the jury not be confused by an inordinate amount of switching from one party’s case to the next. Consistent with that interest, in multiple party situations, judges generally ask the multiple parties to agree to an order and then stick to it. Thus, for example, the first of two plaintiffs would present its case, to be followed by the other. Should the parties not agree as to an order, the court will decide the order at random or perhaps follow the order in which the parties‘ names appear in the pleadings.

Lastly, the picture that has been presented here is not one of iron rigidity. It may happen that a witness who will impeach the testimony of a plaintiff’s witness will not be available by the time the defense puts on its case or it may be extremely costly to have the witness in court on that later date. Often the parties agree to deviations from the normal order of proof to accommodate one another. If they do not, the court has the inherent discretion to permit a witness to be called out of turn. When exercising that discretion, judges balance the risk of confusion to the jury in proceeding out of order with the hardship and cost of not doing so. Because questions on order of proof invariably involve when evidence is received, not whether it is received, it is hard to imagine a trial court committing reversible error in ruling on requests5 to permit witnesses to testify out of turn.

B. Order of Examination of Witnesses

The larger organization of the trial forms a model for the organizational principles of the smaller aspect of the trial in the examination of witnesses. The party calling the witness conducts a direct examination that is followed by cross-examination. A redirect examination is then permitted to rebut inferences raised on cross-examination but not to reiterate the direct. For example, if an eye witness to an automobile accident has testified on direct examination while wearing glasses and acknowledged on cross-examination that she was not wearing glasses at the time she observed the accident, it would be permissible on redirect to elicit that the witness needed glasses only for reading and that her distance vision was perfect without glasses. It would not be permissible on re-direct examination, after the cross-examination on absence of glasses at the time of accident, to ask the witness to tell the jury what she saw at the time of the accident. A re-cross, limited to the scope of the re-direct examination, is also permitted.6

Multiple parties pose two issues: order of examination and form of examination. If there are two defendants in a criminal case, for example, each is entitled to conduct a cross-examination of prosecution witnesses. Once again, the court will ordinarily ask the attorneys for the two defendants to agree to an order of examination and then require that they adhere to that agreed-to order. If the attorneys cannot agree to an order, then the judge will impose one.

The presence of multiple parties does not permit each side to ask the same questions. Such repetition would be burdensome to the witness and unfair to the side calling the witness. Generally the cross-examining attorneys will agree as to areas each will cover. When one of two co-parties calls a witness, the other party is entitled to examine the witness. Whether that examination is in the form of adverse cross-examination or more confined direct examination is a discretionary question for the court, usually resolved by a determination as to whether the interests of the calling party and examining party are adverse. (Forms of examination are discussed in much detail later.)

C. The Judge and the Calling of Witnesses

Some judges will spend decades on the bench and never call a witness. Others will do so from time to time. The only rule of evidence that applies is that the court has the power to call a witness. (See Rule 614(a).) When the court does so, it must instruct the jury that the jury should not accept the testimony of a witness simply because the witness was called by the judge but rather should assess the credibility of judicially called witnesses in the same manner as it assesses the credibility of other witnesses.

Whether a judge will or will not call a witness is more often than not a function of the judge's concept of the judicial role. Some judges feel that it is up to the parties to decide what witnesses to call and under the adversary system, the court should leave it to attorneys functioning in the adversary system to make the necessary tactical decisions. Other judges feel that they have a larger obligation to the administration of justice and if they feel that the administration of justice requires that the jury hear what a particular person has to say and neither side has called the witness, the court, in the interest of justice, should do so. Neither of these philosophies precludes the influence of the other; consequently, some judges will sometimes act consistently with one view, at other times, with the other. Whether a judge is an outstanding jurist is not necessarily a function of which of these two opposing views the judge adheres to.

There are generally three instances in which judges will call witnesses as court witnesses. First, if the court feels that testimony of opposing experts leaves the jury no rational way for making a choice, the court may call its own expert. Or, the court may call an expert on the motion of a party, as may happen, for example, when an indigent defendant invokes the court's assistance. Rule 706 governs instances where the court appoints an expert although it does not set forth standards indicating when the court is to do so. Aside from the philosophical constraints to such court intervention in the trial of the case just discussed, there are fiscal constraints as well. The judiciary does not have unlimited resources to pay for experts when judges decide to call them.

Second, it may appear from the record that a particular person has important testimony to give, but neither side wants to be associated with the witness. While the common law rule of "vouching" for one's witness has been overturned by the rule permitting the impeachment of one's own witness, (Rule 607) a party may still not wish to be associated with the witness in the eyes of the jury. In such a case, the court may call the witness.7

Finally, and on very rare occasions, in a criminal case, if the court feels the defendant is receiving inadequate representation and there is a defense witness who should be called and the defense attorney has not called the witness, the court may do so. In this case, as in all instances where the court calls a witness, the court conducts the direct examination of the witness and the parties then follow-up with their own examination.8

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