Three "M" Investments, Inc. v. Ahrend Co. , 63 O.B.A.J. 760 ( 1992 )

OPALA, Chief Justice,

concurring in part and dissenting in part.

The court affirms judgment on jury verdict for the plaintiff [plaintiff or Three M] in an action to recover for fraud and breach of contract. I concur in today’s pronouncement only insofar as it concludes the trial court committed no error in (a) refusing to allow the use of a 10-year-old conviction to impeach a witness, (b) refusing to give requested jury instructions and (c) giving certain jury instructions. I must recede from that part of the court’s opinion which holds that after the plaintiff had called Ahrend [defendant] to the stand as an adverse witness, his~own counsel could not—without offending § 2611¹ of the Oklahoma Evidence Code²—elicit by leading questions any of his client’s cross-examination testimony except that sought for impeachment. For today’s restrictive holding the court relies on a comment upon § 2611(B)³ appended as subcommittee note to § 2611,⁴ which states that “[t]he adverse party thus called and examined may thereafter be examined by his lawyer, but he may not [except for impeachment] employ leading questions in the interrogation.”⁵

I would not elevate this comment to a rule so rigid as to interdict all leading questions, except only those for impeachment, on cross-examination by counsel for a party who had been called by his opponent as an adverse witness. In my view, today’s inflexible construction of § 2611 lacks support either in the statute, in its legislative history, in the Rule 611⁶ federal jurisprudence, or even in the very comment invoked as the source of the court’s holding. Today’s pronouncement is also clearly inconsistent with § 2607,⁷ which abrogates the common-law “voucher rule”. That rule of yore made a party “vouch” for the veracity of his own witness.⁸ Today’s sweeping ban on leading questions—when a party stands for cross-examination after being called as an unfriendly witness for his opponent—makes “vouchable” all cross-examination testimony of every such witness except only that which is sought for impeachment. The ban on the use of leading questions is likely to become an impediment to a party’s ability to elicit critical evidence in support of his own cause or defense. The rule crafted by the court—a plain barrier to forensic ascertainment of truth—lies on a collision course with basic tenets of due process.⁹ I would hence preserve the Code’s flexibility and hold that a party called as an adverse witness by his opponent may be cross-examined by leading questions from his own counsel not just for impeachment but whenever the trial court in the exercise of sound discretion should so permit. My view would put Oklahoma on a parallel track with the Rule 611 federal jurisprudence.¹⁰

I

TODAY’S ADOPTION OF A SWEEPING RULE, WHICH PRECLUDES THE USE OF LEADING QUESTIONS ON CROSS-EXAMINATION BY COUNSEL FOR A PARTY CALLED BY HIS OPPONENT AS AN ADVERSE WITNESS, IS WITHOUT SUPPORT IN THE CODE, IN THE RULE 611 FEDERAL JURISPRUDENCE OR IN THE SUBCOMMITTEE NOTE TO OUR § 2611

A.

Section 2102¹¹ brings flexibility as the underlying principle for the Code’s application and interpretation.¹² Flexibility dictates that wide discretion be afforded.¹³ Inasmuch as the Code makes no explicit foundational requirements for admissibility, the evidentiary rules intend to invest the trial court with broad latitude. When the standard of admissibility itself accords the trial court nearly unlimited discretion, appellate review of discretionary nisi prius rulings should be tightly confined to cases of plain abuse. Discretion is the essence of the trial court’s § 2611¹⁴ control over the evidentiary process, including the manner and order in which witnesses are interrogated.¹⁵

I would not today allow rigidity to replace a statutory regime so plainly designed to serve as a mechanism for flexibility.

B.

Section 2611(B),¹⁶ which retains its pre-Code text,¹⁷ permits one to call the adverse party as a witness during the presentation of the party’s case in chief. While subsection B was designed to permit direct examination of one’s opponent, it was not intended to authorize the opponent’s own counsel to then cross-examine by putting words into the witness’ mouth through leading questions designed to bolster his own case. This understanding of § 2611(B) is plainly consistent with interrogation rules that govern on direct examination when a party presents in regular order his evidence in support of a claim or defense. Leading questions may not be used “on the direct examination of a witness except as may be necessary to develop his testimony.”¹⁸ Subsection B cannot be read separately from subsection D.¹⁹ The latter provides in part that “[l]eading questions should ordinarily be permitted on cross-examination.” ²⁰ Federal evidence law, after which our Code is patterned, makes the use of leading questions on cross-examination a matter of right, subject to the qualifying language “ordinarily.”²¹ The qualification affords “a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the ‘cross-examination’ of a party by his own counsel after being called by the opponent.”²²

In my view, the § 2611 subcommittee note²³ does not go beyond this general prohibition; it does not suggest the trial court is without discretion to allow the use of leading questions when the purpose of interrogation is either to impeach or otherwise to discredit the direct testimony of a party called as an adverse witness for his opponent.²⁴ A party may become hostile to his own case through direct examination by the opponent’s counsel. If a witness has been thoroughly discredited by the opposing party who called him, leading questions afford the only effective way to rehabilitate him. A discredited witness’ own lawyer should be permitted to rehabilitate the affected direct testimony by the use of leading questions. To allow less would impede the law’s goal to ascertain the truth.²⁵

To implement the Code’s goal of flexibility, I would today adopt for Oklahoma a construction identical to that placed on Rule 611 by extant federal jurisprudence.²⁶ Once proper foundation has been laid for permitting leading questions, the trial court should be free to exercise its discretion— not only when cross-examination is for impeachment—but also when it is for rehabilitation of a party’s direct testimony elicited by its adversary.²⁷

II

TODAY’S SWEEPING RULE AGAINST LEADING QUESTIONS IS BOTH INCONSISTENT WITH THE EVIDENCE CODE’S ABROGATION OF THE VOUCHER RULE AND OFFENSIVE TO DUE PROCESS

Section 2607²⁸ of our Code, much like Rule 607²⁹ of the Federal Rules of Evidence, abolishes the common-law “voucher rule”. By force of that rule which is of obscure medieval origin³⁰ a party calling and examining a witness unequivocally vouched for his credibility. Even before the Federal Rules of Evidence were adopted, the voucher rule came under severe criticism in Chambers v. Mississippi.³¹ There the Court concluded the voucher rule had to give way to the demands of due process whenever it posed an artificial and unreasoned barrier to the forensic process of truth-finding. Every civil litigant’s right to be heard and to offer testimony unhampered by such unreasoned restrictions is protected by due process.³² Our own pre-Code jurisprudence abounds in eloquent examples of impermissible barriers to admissibility of evidence, which, when encountered and challenged, came under the court’s axe.³³

Today’s pronouncement fashions a special rule for cross-examination of the adverse party. Nothing but a subconscious clinging to the remnants of the voucher rule could incline the court to today’s holding that cross-examination testimony of a witness “adverse” to the party who called him should be elicited by norms remarkably different from those which apply to any other cross-examination. The court’s special approach to the issue at hand, which lacks support in federal jurisprudence, transparently rests on the now unacceptable notion from the distant past that cross-examination testimony of every “friendly"witness, except only when elicited for impeachment, must be vouched,³⁴

In sum, today’s rigid obedience to the §2611 subcommittee note is contrary to the voucher rule’s abrogation in § 2607. In a real sense, the court makes all cross-examination testimony of parties called by their opponent “vouchable”, except only when sought for impeachment. Section 2607 expressly provides “[t]he credibility of a witness may be attacked by any party, including the party calling him.” I would hence give no binding effect to the subcommittee’s note upon which today’s opinion places its unequivocal imprimatur. I would rather recognize § 2607 as an absolute abrogation of the voucher rule that leaves no immortal remnants in its wake. I would hence allow cross-examination to be guided solely by the trial court’s discretion and would permit leading questions to the extent due and orderly trial process may necessitate for rehabilitation of a witness’ direct testimony.

CONCLUSION

To implement the Code’s flexibility theme, I would opt today for a § 2611 construction that would allow the use of leading questions not solely for impeachment but also to rehabilitate the adverse party’s direct testimony as a witness for the opponent. The court’s rigid ban preserves and perpetuates the now unacceptable notion of yore that cross-examination testimony of every “friendly” witness must remain “vouchable”, except only when sought for impeachment. Because I cannot countenance any residual notions of “vouchability”, I would not catapult the § 2611(B) explanatory comment to a rigid and sweeping ban, but would adopt the flexible approach followed by the Rule 611 federal jurisprudence.

1 .The terms of 12 O.S.1991 § 2611 are:

"A. Subject to subsection B of Section 611 of this Code, the court shall exercise control over the manner and order of interrogating witnesses and presenting evidence so as to:

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.

B.Any party to a civil action or proceeding may compel any adverse party or person, or any agent, servant or employee of such party or person, for whose benefit such action or proceeding is instituted, prosecuted or defended, to testify as a witness, at the trial, or by deposition, in the same manner and subject to the same rules as other witnesses, provided that any such adverse party, his agent, servant or employee called as a witness by the opposing party shall be deemed a hostile witness and may be cross-examined by the party calling him to the same extent as any opposition witness.

C. Cross-examination shall be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may permit inquiry into additional matters as if on direct examination.

D. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Leading questions should ordinarily be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, leading questions may be used on direct examination.” (Emphasis added.)

2 . 12 O.S.1991 §§ 2101 et seq.

3 . For the text of § 2611(B), see note 1 supra.

4 . The Evidence Subcommittee Note to 12 O.S. 1991 § 2611(B) states:

"Section 611(B) is taken verbatim from Okla. Stat. 12 § 383 and was included to retain the statutory law enabling a party to call the adverse party during the presentation of his case in chief. The adverse party thus called and examined may thereafter be examined by his attorney, but he may not employ leading questions in the interrogation. The witness would, of course, be subject to impeachment pursuant to Sections 607, 608 and 609." (Emphasis mine.)

5 . Evidence Subcommittee Note, supra note 4, (emphasis added).

6 . Rule 611, Rules of Evidence For United States Courts and Magistrates, as amended March 2, 1987, eff. Oct. 1, 1987, provides:

"(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (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, (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the 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 the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions."

7 . The terms of 12 O.S.1991 § 2607 provide:

"The credibility of a witness may be attacked by any party, including the party calling him.”

8 . See the Court’s discussion of the rule in Chambers v. Mississippi, 410 U.S. 284, 295-297, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973); see also Part II, infra, for my analysis of the "voucher” rule and its abrogation.

9 . See explanatory comment in note 32 infra.

10 . The § 611 federal jurisprudence allows the trial judge wide latitude in controlling cross-examination of a party who was called as a witness by his opponent. See authorities cited in note 24 infra.

11 . The terms of 12 O.S.1991 § 2102 provide: "This Code shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” (Emphasis added.)

12 . 1 L. Whinery, Oklahoma Evidence: Guide to the Oklahoma Evidence Code 9 (1985).

13 . The flexibility implicit in § 2102, supra note 11, "is essential to the interpretative process if trial judges are to continue to exercise the discretion they need to adapt the rules to the varying factual contexts in which evidentiary issues arise. This essential flexibility cannot be maintained by using doctrinal approaches to the interpretation of the Code that are unduly restrictive.” Whinery, The Oklahoma Evidence Code: Ten Years of Judicial Review, 43 Okl.L.Rev. 193, 212 (1990).

14 . See the text of 12 O.S.1991 § 2611(A), supra note 1.

15 . Whinery, supra note 13 at 229.

16 . For the text of 12 O.S.1991 § 2611(B), see note 1 supra.

17 . That text was formerly embodied in 12 O.S. 1971 § 383, repealed by Okl.Sess.L.1978, Ch. 285, § 1102, eff. Oct. 1, 1978.

18 . See the text of 12 O.S.1991 § 2611(D), note 1 supra.

19 . For the text of 12 O.S.1991 § 2611(D), see note 1 supra.

20 . 12 O.S.1991 § 261 l(D)(emphasis added). For the text of § 2611(D) see note 1 supra.

21 . For the text of Rule 611(c), see note 6 supra.

22 . Advisory Committee Notes to Federal Rule 611(c). For the text of Rule 611(c), see note 6 supra. "The right of a cross-examiner to employ leading questions is not absolute under Rule 611(c). If the witness is friendly to the examiner, there is the same danger of suggestiveness as on direct; and consequently the court may, in its discretion, forbid the use of leading questions. 3 Weinstein’s Evidence, ¶ 611[05] at 611-59 (1976).” Morvant v. Const. Aggregates Corp., 570 F.2d 626, 635 n. 12 (6th Cir.1978).

23 . For the text of the subcommittee note, see supra note 4.

24 . In Morvant v. Const. Aggregates Corp., supra note 22, the court explicitly rejected the notion that an employer cross-examining his own employees need use nonleading questions. There the court stated: "While Federal Rule of Evidence Rule 611(c) permits the use of leading questions when a party calls a witness identified with an adverse party, there is no complementary provision requiring such a witness to be cross-examined without the use of leading questions by the party to whom that witness is friendly. This matter is within the court’s traditional discretion to control the mode of interrogation,” id. at 635 (emphasis added). More recently in Downriver Internists v. Harris Corp., 929 F.2d 1147 (6th Cir.1991), the court, citing Morvant, stated that "ftjhere is no rule of evidence or case preventing cross-examination by leading questions, even when the witness and questioning party are friendly,” id. at 1151 (emphasis added). See also Ardoin v. J. Ray McDermott & Co., Inc., 684 F.2d 335, 336 (5th Cir.1982).

25 . See the text of 12 O.S.1991 § 2611(A)(1), note 1 supra.

26 . See authorities cited in note 24 supra.

27 . The subcommittee comment, supra note 4, correctly recognizes that impeachment of a witness’ credibility is an important part of the trial’s quest for truth. It overlooks the practical reality that "rehabilitating” direct testimony no less than impeaching it calls for examination by leading questions.

28 . See the text of 12 O.S.1991 § 2607, supra note 7.

29 . 12 O.S.1991 § 2607 is identical to Federal Rule 607.

30 . See Chambers v. Mississippi, supra note 8, 410 U.S. at 296, 93 S.Ct. at 1046; 3A J. Wigmore, Evidence, § 896, pp. 658-660 (Chadbourn ed. 1970); C. McCormick, Evidence § 38, pp. 82-83 (1984); M. Ladd, Impeachment of One's Own Witness—New Developments, 4 Univ. of Chicago L.Rev. 69 (1936).

31 . Supra note 8, 410 U.S. at 295-297, 93 S.Ct. at 1046. In Chambers, the application of Mississippi’s voucher rule prevented criminal defense counsel from impeaching his own witness by prior inconsistent statements. At trial, the witness testified that the defendant had committed the crime, but in earlier statements the witness had admitted his own complicity in that offense. The Court held that the use of the voucher and the hearsay rules in tandem violated the accused’s (Chambers’) due process right to a fair trial, since it drastically hampered Chambers' ability to demonstrate to the jury that another person committed the crime. Chambers holds that the exclusion of the proffered evidence violated the 6th Amendment's Confrontation Clause. "The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.’ ” Id., 410 U.S. at 295, 93 S.Ct. at 1045-1046. The right of confrontation does not depend upon whether the witness was put on the stand by the accused or by the prosecution. Id. 410 U.S. at 298, 93 S.Ct. at 1047.

32 . Unreasoned barriers to admissibility of evidence offend the due process component that protects one’s right to be heard and to offer testimony. In Ferguson v. State of Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961), the Court struck down a Georgia statute that limited a defendant's presentation at trial to an un-sworn statement as impermissibly denying the accused "the right to have his counsel question him to elicit his statement." Id. 365 U.S. at 596, 81 S.Ct. at 770. The 14th Amendment secures the “right of a criminal defendant to choose between silence and testifying in his own behalf.” Id. 365 U.S. at 602, 81 S.Ct. at 773 (Clark, I., concurring). More recently in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Court noted that

“[t]he right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ Faretta v. California, 422 U.S. 806, 819, n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty [or property] without due process of law include a right to be heard and to offer testimony: ‘A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.’ (Emphasis added.) In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948).”

Id. 483 U.S. at 51-52, 107 S.Ct. at 2708-2709. My constitutional philosophy strongly inclines me to the view that life, liberty and property must all be protected with equal vigilance. Due process shields the civil litigants’ right to be heard and to present testimony with the very same vigor as that which governs in criminal prosecutions.

33 .See, e.g., Howard v. Jessup, Okl., 519 P.2d 913 (1974). Before Howard, only declarations against proprietary interests were admissible; declarations against penal interests were not. Howard, which makes the latter declarations admissible, shows our own path toward eliminating artificial barriers to admissibility.

34 . Similar evidence-law obstacles that unreasonably impede full disclosure of the truth are an anathema to due process. See Chambers v. Mississippi, supra note 8, 410 U.S. at 295, 93 S.Ct. at 1045; Ferguson v. State of Georgia, supra note 32; Davis v. Alaska, 415 U.S. 308, 317-318, 94 S.Ct. 1105, 1110-1111, 39 L.Ed.2d 347 (1974). In Davis, supra, the Court held that a state interest in preserving the confidentiality of juvenile delinquency adjudications must give way to the defendant’s right to effective cross-examination guaranteed by the 6th Amendment’s Confrontation Clause. In foreclosing the defendant’s inquiry into the probation status of the state’s only eyewitness, the Court held that the restriction violated Davis’ right of confrontation by preventing him from probing into any bias or prejudice which might have caused the witness to fabricate his identification testimony. The Court concluded that the petitioner had been denied a fair trial because the trial court’s ruling prevented him from adequately exposing the jury to facts from which it might infer that the witness was unreliable.