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Often on shows like Law and Order, a lawyer might ask someone on the stand to read something aloud. An example might be an academic putting forward one opinion, being asked to read an excerpt from a journal article they authored 20 years prior that contradicts what they are currently saying (this happened in one episode).

Could the person on the stand refuse? Surely the lawyer can read it themselves or show the text on a projector to the court, and having the person read the text out loud might influence the jury and affect the outcome in a negative way for the person on trial.

Is this just TV drama, or is there a legal basis?

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Because you used the Law & Order example, I'll assume you're talking about a criminal case in the United States.

No, the witness may not refuse to answer, because yes, there is a legal basis for requiring a person to read something out loud. The point of a subpoena is that it legally compels you to appear and testify, and to testify fully and truthfully about whatever you are asked. More specifically, a criminal defendant has a Sixth Amendment right to force witnesses to appear and testify.

On a more practical note, it is not really the case that a lawyer could simply read the article into evidence. If he has the witness on direct examination, asking the question as "Doesn't your article say that x?" would be a leading question, in violation of Rule 611, and even on a cross-examination, when leading is allowed, an attorney's question about what the article says is still just a question, not evidence. The jury should not, from his question, draw a conclusion that he is correct about the contents of the article.

Moreover, there are certain instances where statements may be read to the jury but are explicitly prohibited from being submitted to the jury as an exhibit (Rule 803(18)), which really requires you to ask the witness to read it out loud.

An image projected on a wall isn't in the record. You need someone to read the words out loud so the stenographer can take them down. The person reading can't be the attorney or bailiff because they aren't under oath, meaning what they say isn't evidence, and the jury can't treat it as evidence. If you want the jury to consider it, you need the witness's testimony.

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  • Rule 611(a)(2) ("presenting evidence as to [...] avoid wasting time") contradicts your answer. Most likely it will take longer for a witness to read his document aloud than to concretely confirm or deny his authorship of that document or of relevant statements therein. Also 611(c) permits leading questions on direct examination"as necessary to develop the witness's testimony".And the issue (per context given by the OP) is not "[who] is correct about the contents of the article", but the inconsistency of the witness's statements (given the impact this could have on witness's credibility). May 9 '20 at 11:14
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    Inaki's answer is incorrect in its suggestion that prejudice is a valid basis for an objection. The entire point of the adversarial system is to present evidence prejudicial to the other side. The real issue implicated by this hypothetical is whether the risk of misleading the jury substantially outweighs the probative value of the evidence. This is a valid basis for an objection. but a weak one. I'd expect most judges to require the witness to answer and allow the other side to rehabilitate the witness on redirect.
    – bdb484
    May 16 '20 at 3:41
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    Either way, that objection belongs to the parties, not the witness. Outside of questions about privileged information, the witness herself has essentially no right to refuse to answer questions, and certainly not to avoid seeming inconsistent. If there's a problem with the question, one of the parties can object. If no one objects, or if the objection is overruled, the witness must answer, even if the answer makes her look stupid.
    – bdb484
    May 16 '20 at 3:41
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    Thank you for your answer, I am still absorbing it! Could you clarify what the legal basis is that would compel a witness to read something aloud, instead of having the attorney read it aloud, or have the bailiff read it aloud while it is showed on a projector? May 17 '20 at 14:53
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    That definition is from the 1891 edition of Black's, which I think we can agree is comically outdated. The current version reflects current usage, defining prejudice as "[d]amage or detriment to one's legal rights or claims."
    – bdb484
    May 18 '20 at 1:48
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Could the person on the stand refuse?

Yes. The witness may refuse to read it aloud, which does not mean he cannot be compelled to do so. The witness may object on grounds you mention (prejudice) only if he is the defendant. Either way, the judge will make a decision on how that evidence is to be presented to the jury.

Regardless of who reads the evidence, the witness may be ordered to answer the question of whether or not he authored that document. Defying that order could result in contempt of court or, depending on the context, the entry of an adverse inference.

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  • Indeed, having a witness read something on the stand is routinely done. I do so in the majority of trials and evidentiary hearings in which I am an attorney and there is rarely a rule of evidence that prohibits the question (unless the document read would otherwise have been inadmissible as evidence, or is irrelevant completely to the case). Once a defendant chose to testify, the defendant could not object to the question based on prejudice even in a criminal trial, and could not object in a civil trial either base on mere prejudice.
    – ohwilleke
    May 7 '20 at 21:09
  • When you say "the witness may refuse to read it aloud," what would be the legal basis for that?
    – bdb484
    May 9 '20 at 4:16
  • @bdb484 "what would be the legal basis for that?" The issue of who reads the evidence aloud does not change its relevance or admissibility, nor does it narrow the issues for trial. Thus, the witness may object on grounds of wasting time and/or unfair prejudice, which would not affect whatsoever the probative value of the document itself. See Rule 403. A court might also preclude it as repetitious evidence, as it did in Witt Properties v. Schaeffer (Apr.23, 2020) at ¶12. May 9 '20 at 10:48
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    @JakeRankin A witness may be compelled to answer under threat of being held in direct contempt of court. The judge may throw the witness in jail or fine the witness on the spot, without a trial, for conduct contrary to correct courtroom behavior that takes place in a courtroom, and refusing to answer a question from a lawyer would count as such conduct.
    – ohwilleke
    May 17 '20 at 15:53
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    @JakeRankin The point is that the witness's refusal to read aloud could be approved by the judge. But if the judge rejects witness's petition and the witness persists on his refusal, that is where the witness would be held in contempt of court. The fact that refusal was about reading aloud rather than about answering a question makes no difference on the legal outcome: contempt of court. Hence the importance for the witness to persuade the judge on why he should be excused from reading the document aloud. But all this stems from the witness's decision to object to (or deny) lawyer's request. May 17 '20 at 19:28

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