Examination, Objections, Personal Knowledge
I. Examination of Ws (FRE 611) – Mode & Order of Interrogation & Presentation
A. Control by Court – Court shall exercise reasonable control over the mode & order of interrogating Ws & presenting evidence so as to:
(1) Make the interrogation & presentation effective for the ascertainment of the truth; (2) Avoid needless consumption of time, and
(3) Protect Ws from harassment or undue embarrassment.
B. Scope of Cross Examination –cross should be limited to:
(1) Subject matter of the direct examination; & (2) Matters affecting the credibility of the W.
C. Leading Questions (court has discretion to permit inquiry into other matters) – Not used on direct, but ordinarily permitted on cross. Exceptions: when necessary to develop W’s testimony:
(1) W unable to convey information meaningfully w/ non-leading questions, ex. child, infirm, language deficiency
(2) Question related to preliminary or other undisputed matters
* Can use leading questions for background testimony; cannot do it for key facts
(3) When a party calls a hostile W, adverse party, or a W identified w/ an adverse party
– Child Vs – Alternative means of testifying: (1) by closed circuit TV – due to fear, emotional trauma, mental infirmity, conduct by the accused or his counsel, or (2) videotaped deposition
– Questioning by jurors: appeals cts unanimously conclude that a court may allow jurors to ask a W questions in some circumstances
II. Objections
A. As To Form of the Question
1. Ambiguous/confusing/unintelligible: Q may be interpreted diff ways, or so vague/unclear likely to confuse either jury or W
2. Argumentative: (a) Counsel can’t make a jury argument or attempt to summarize, draw inferences from, or comment on the evidence, and/or (b) Own Credibility – Qs that ask a W to testify as to his own credibility are improper
3. Asked & Answered: Q has already been posed & W has already answered
4. Assuming Facts not in evidence
5. Compound Q: W is asked to respond to 2+ Qs posed jointly
6. Harassing, embarrassing the W (covered by FRE 611(a))
7. Lack of foundation: failure to: (1) show that W has personal knowledge of the event to which he is about to testify; (2) authenticate the proffered exhibit; (3) establish that requirements for a particular hearsay exception have been met; (4) qualify a proffered W as an expert; or (5) show that the facts underlying an experts opinion constitute a permissible basis
8. Misleading Q or misstating testimony
9. Narrative: not per se objectionable, but w/in court’s discretion to make counsel use a more pointed question
10. Nonreponsive: goes to form of the answer, rather than the Q; many cts only allow Qing counsel to object & move to strike
11. Unduly Repetitious
12. Speculative/conjecture/calls for speculation/conjecture
B. As to the Content of the Evidence
1. 3 Steps to Objecting to Content, rather than Form:
(1) Relevance? If not, exclude.
(2) If yes, is it excludable because of an objection (below)?
(3) If not excludable, does it violate FRE 403?
III. Personal Knowledge Rule (FRE 602): W can’t testify unless evidence is introduced to support a finding that W has personal knowledge (W heard/saw/otherwise perceived). Evidence can be W’s own testimony – “I heard/saw/my opinion is…” Lack of certainty is okay – W doesn’t have to be absolutely certain, can say something like “I believe” or “I think.”Exceptions:
(a) FRE 703 – expert Ws; and (b) Admissions (FRE 801(d))
Relevance
* 3Rs – Relevant (401), Reliable, Right (403) * ON EXAM, MUST START W/ FRE 401, END W/ FRE 403!
I. Relevance
A. Def. of Relevance – FRE 401 (Logically Relevant): “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o the evidence.” 2 Requirements:
(1) The evidence must be probative of the proposition it is offered to prove, and
(2) The proposition to be proved must be one that is of consequences to the determination of the action – * whether it is of consequence to the determination of the action is governed by the substantive law
B. The fact of consequence to which the evidence is directed need not be disputed (ex. background evidence)
C. Flight, escape & other “admissions by conduct”
1. Probative value of flight as circumstantial evidence of guilt depends upon degree of confidence w/ which 4 inferences can be drawn:
(a) From the D’s behavior to flight
(b) From flight to consciousness of guilt concerning the crime charged
(c) From consciousness of guilt to consciousness of guil
eading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” * Remember that FRE 403 favors admission of evidence here.
(1) Unfair prejudice: if evidence has an undue tendency to suggest decision on an improper basis (i.e. bias, arouses horror or instinct to punish, sympathy; ex: hundreds of pictures of stabbed bodies in OJ trial)
(2) Surprise: not listed in FRE 403 but usually cited, if it can delay trial
(3) Misleading Jury: evidence jury might attach undue weight to. Ex: gov reports/findings, polygraphs, judicial findings in other proceedings, evidence that has been altered
(4) Confusion of Issues: evidence may be excluded as confusing the issues if it would tend to distract jury from proper issues
G. Subsequent Remedial (FRE 407): “When after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a produce, a defect in a product’s design, or a need for a warning or instruction.” Exceptions (OCFI acronym): Not excluded to prove:
a. Ownership
b. Control, or
c. Feasibility of precautionary measures (see below), if controverted, or
d. Impeachment (see also below on admissibility for other purposes)
(1) Remedial measure defined: one that would have reduced the likelihood that an injury or harm caused by an event would have occurred had the measure been made prior to the event that caused the injury or harm. Ex. a repair; design change; firing of or disciplinary action against an employee; change in rules or policies; new or modified warning. * Post accident analyses or studies are generally not considered subsequent remedial measures.
(2) Timing: MUST be taken after the accident
