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Rutgers University, Newark School of Law
McMahon, JohnJ.

E – SPRING 2007

E – whatever the triers / finders of fact (jury or judge) gets to hear, or consider in making his/her determination of a case àmost common this is testimony from a witness who takes the stand and who takes an oath to tell the truth, can also be documents, phys E, prior statements, prior testimony, etc.
General idea – most E should be admitted, the jury should be trusted.
*most of this outline is from the text unless noted from class, E&E, Yoogin’s outline or an older outline



Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and devt of the law of E to the end that the truth may be ascertained and proceedings justly determined.

Rule 403. Exclusion of Relevant E on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, E may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative E.

Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting E 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 subj 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 w/ an adverse party, interrogation may be by leading questions.

B. Class/Book Notes, Rationale, Examples, etc.

Scope of Rule 611(a) – this permits the trial judge to allow or disallow changes in the order of proof, rebuttal E, surrebuttal E, recall of witnesses, reopening of a case once party has rested and many other requests

Rules 403 and 611(a) allow a judge to impose restrictions on the presentation of E that go beyond ruling on objections and on particular offers of E; the following objections are derived from the broad lang of Rules 403 and 611(a), which give the judge the power to exercise reasonable control over the mode and order of interrogating witnesses and presenting E so as to:
Ø make the interrogation and presentation effective for the ascertainment of truth;
Ø avoid undue delay or needless consumption of time;
Ø protect witnesses from harassment or undue embarrassment; and
Ø avoid unfairly prejudicing, confusing, or misleading the jury
Some common examples are – question calls for narrative response, nonresponsive, assumes a fact not in E, compound question, ambiguous, asked and answered, cumulative, misstatement of the E, argumentative, badgering the witness

Rationale of Rule 611(c) – (class) we typically cant ask leading ques on direct as a general rule à this is inherited from the common law – testimony should come from the witness, should not be placed in the witness’s mouth; also note that the proponent of the witness, one who calls, is the one limited to direct; wrt adverse party – you can cross the witness, why? you want to test, see whether the witness’s testimony was right

What is a leading question? A leading question is one which clearly suggests the desired response. It is a question which instructs the witness how to answer on material points, or puts into the mouth of the witness words to be echoed back. Many ques that call for yes/no answer are leading.

When are leading questions permissible (on direct)? (E&E) Typically judges permit leading questions freely when they involve topics that are not controversial or are really only preliminary to the main points of a witness’ testimony. (book)Generally courts will require a party to elicit testimony of favorable witnesses thru the use of non-leading questions, especially if the testimony being elicited relates to a controverted substantive area about which the jury will have to deliberate. Rule 611(c) carves out four express exceptions to the general rule that leading questions should not be used on direct:
Ø when necessary to develop witness’ testimony – rationale is that leading questions would expedite the trial and there is little prejudice to the opposing party if the ques relate to the preliminary matters or to matters that are collateral to the disputed issues in the case; also allowed when witness has difficulty communicating
Ø when a party calls a hostile witness – witness is hostile by contemptuous or surly conduct, by refusal to answer questions, or by consistent hedging on answers
Ø when a party calls an adverse party
Ø when a party calls a witness identified w/ an adverse party

Leading questions on cross-ex: Note that in Ardoin v. McDermott & Co., the Fifth Circuit stated that a trial judge may choose to forbid the use of leading ques on cross-ex of a friendly witness à this is considerable discretion!

Scope of cross-examination – restricted cross (American Rule) vs. wide-open cross (English Rule): most CL jurisdictions adhere to the American Rule, that the scope of cross-ex as of right does not extend beyond the scope of the subj matter testified to on direct, this is consistent w/ Rule 611(b); Congress has rejected the proposal allowing for cross-ex on any relevant subj matter about which the witness is knowledgeable, this is the English Rule; the rationale for the American Rule is that the party who calls the witness ordinarily should be allowed its own order of pf, and that cross-ex beyond the subj matter of direct would be an unwarranted disruption
EXCEPTION: the scope limitation of Rule 611(b) does not apply to impeachment of the witness’ credibility – a party can impeach a witness on cross even if the subj matter of the witness’ credibility was not addressed on direct, this is bc the witness’ credibility is always an underlying issue, independent of the subj matter of the direct
-(E&E) another way to look at this – cross-ex is limited to two areas of inquiry – (1) topics involved in the witness’ direct; and (2) topics regarding witness’ credibility

Scope of re-cross – Generally scope of re-cross will be limited to scope of re-direct

C. Cases

US v. Reaves – an application of judicial authority
Ø prosecution and defendants challenge to the authority of the Court to curtail the presentation of cumulative and time wasting E by placing time limits on various stages of the trial
Ø court says – the method of establishing time limits by a scheduling order (which basically gave the govt ten days to present its case in chief and to impose proportionate limits on the other phases of the trial) works well both from the p.o.v. of the court’s docket and also that of the case to be tried which ends up being presented more efficiently and intelligibly
Ø court holds that it has the power to impose reasonable time limits on the trial of both civil and criminal cases in the exercise of its reasonable discretion; the court must also analyze each case carefully to assure that the time limits set are not arbitrary

Straub v. Reading Co. – direct examination
Ø proof of plaintiff’s claim both wrt accident and injury was put in to a large extent by leading questions
Ø court says – regarding the leading questions, appellee asserts that the problem is w/in the control of the trial court, this is true, but where that control

sible problem and can cause the judge to instruct counsel not to mention certain E until the trial judge rules on the objection
Ø Luce v. US – Supreme Ct concluded to raise and preserve for review the claim of improper impeachment w/ a prior conviction, D must testify; this has been extended by other courts to a variety of other contexts – establishing the principle that if a pretrial ruling is D on an event occurring at trial, there is no right to appeal the ruling if the event never occurs; Ohler v. US – held that a party that introduced E of prior conviction on direct forfeited right to appeal an in limine ruling that E would be admissible at trial
Ø do pretrial objections have to be renewed at trial? Rule 103 has been amended to provide that a renewed objection or offer of proof is NOT required if the trial judge’s ruling was definitive, when the ruling is definitive a renewed objection or offer of pf at the time the E is to be offered is more a formalism than necessity, but when the trial court appears to have reserved its ruling or to have indicated that the ruling is provisional, it makes sense to require the party to bring the issue to the court’s attention subsequently

Contemporaneous Objection
Ø generally, an objection must be made at the earliest practicable opportunity for it to be considered timely
Ø procedures used by trial judge in hearing objections – sometimes judge will rule w/o hearing any arg from counsel; other times, the judge will have a sidebar conference at the end of the judge’s bench in which counsel can be heard; when more time is needed and the judge is concerned that the jury will be frustrated by a sidebar conference or that the lawyers cannot easily argue complex points at sidebar, the judge may excuse the jury
Ø different justifications for objection – when an objection made on one ground has been overruled by the trial judge, an appellate court ordinarily will refuse to consider other grounds not presented to the trial judge if later raised by the objecting party; US v. Mennuti – where a party has shifted his position on appeal and advances arguments available but not pressed below and where the party has had ample opportunity to make the point in the trial court in a timely manner, waiver will bar raising the issue on appeal; on the other hand, note that if an objection has been overruled by the trial judge, an appellate court may affirm the judge on a ground either not considered or adopted by the judge
(class) how does the failure to object at trial compromise the outcome? the failure to object at the trial level changes the std of review; an issue is raised at trial level, court has opp to rule on it, and they move along; if you object on hearsay grounds, adversary will oppose w/ its own reasoning (excited utterance); ct allows in; once you object you have PRESERVED the issue and the std of rev will be favorable to you – COULD it have affected the verdict? but if you don’t make the objection and the record goes unchallenged, and now you lose, and on appeal another lawyer is left to bring it up, the std is PLAIN ERROR; this changes everything bc – substantial likely led to verdict going the wrong way; so you go from “may have affected verdict” to “WOULD have effected verdict” à shift of the std of review, harder for appellate attorney if you don’t