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Examination of Witness – Open-Ended Question

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate


¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis. Stat. Rule 906.11, Wisconsin’s version of Rule 611 of the Federal Rules of Evidence. See United States v. Garcia, 625 F.2d 162, 169 (7th Cir. 1980) (“There is, of course, nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”). Absent a blurt-out in response to an open-ended question that significantly prejudices the adversary, it is rare for an open-ended question to require reversal. See State v. Jeannie M.P., 2005 WI App 183, ¶8, 286 Wis. 2d 721, 731, 703 N.W.2d 694, 699 (trial lawyer did not provide constitutionally deficient performance when he explained at a postconviction evidentiary hearing that he had a strategic reason for asking an open-ended question). Rodriguez has not shown prejudice here; much of what the officers “added” was cumulative, and, further, if Rodriguez’s trial lawyer had objected, the prosecutor could have simply reviewed his notes and asked more focused questions to each officer.


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