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South Texas College of Law Houston
Wilks, William Lee

Chapter 1: Mode and Order of Presentation of Evidence

A. Control by the Court
a. The only rule without an exception is this: Irrelevant Evidence is never admissible
b. Rule 102: purpose is to secure fairness, eliminate excessive costs, promote growth of evidence law in search of truth
c. Rule 401: relevant evidence is anything that attempts to prove or disprove something in evidence
d. Rule 402: all relevant evidence is admissible with exceptions. Evidence that is not relevant is not admissible
e. Rule 403: evidence can be excluded if value is outweighed by danger of unfair prejudice
i. This is at the discretion of the judge and is rarely reversed
f. Rule 611(a): court can exercise control in order to (1) make interrogation and presentation effective for getting to truth, (2) avoid time wasting, (3) protect witnesses
g. Rule 614: court asking questions
i. Federal courts: judges participate somewhat, but they can’t be overzealous
1. They can ask questions
2. They can call witnesses. Cross examination allowed by both parties
ii. Texas: disapproval to judges asking questions because some believe that this will make the jury think the court is conveying its opinion
iii. Objections are available, but cannot be made in front of jury… must approach bench
h. US v. Reaves, 1986: Time limits can be placed on the attorneys so as to keep the case moving and avoid extra costs and wasted time. Limits can also be placed on the # of expert witnesses called to prove same point

Common Forms of Objections
p. 224 in Horn Book

Narrative Response, Too General, Indefinite, Lacks Specificity: question is indefinite in scope, making it hard for opposing counsel to anticipate if the witness with answer something that is inadmissible
Examiner would not want this either because he wants to control his witness

Nonresponsive, Narrative, Volunteered: question was not objectionable, but the witness gave an answer beyond what the question asked
Move to Strike follows, but there is a skunk in the jury box
Examiner uses “nonresponsive”
Non-examiner uses “volunteered”

Assumes a fact not in evidence: question asserts facts that have not been established and aren’t in evidence

Compound Question: single question asking multiple answers. This can be confusing and/or misleading to the jury

Ambiguous, Vague, Misleading, Confusing: not reasonable clear and specific making it confusing/misleading to jury

Asked and Answered, Repetitive: keeps something from being a waste of time because it was already established
Cross examiner can ask an identical question as the examiner

Cumulative: calling several witnesses to establish the same thing or introducing lots of similar exhibits

Misstatement of the evidence: the question inaccurately describes evidence or draws inferences the jury is to make

Argumentative: a rhetorical question attempting to assert interrogator’s meaning

Badgering the witness, Harassing the witness, Embarrassing the witness: examiner is trying to unfairly intimidate the witness

B. Form of Questions to Witness
a. Rule 611(c): Leading questions should not be used in direct examination. Exceptions: (1) to develop t

ness, or (3) to develop testimony of witness whose recollection has been exhausted.
iv. A witness is a hostile witness if his conduct is contemptuous, he refuses to answer questions, or hedges (not giving direct) answers. A witness on the examiner’s side can become hostile.
v. A witness is identified with an adverse party if among other things, when they are employed or in a relationship with the defendant.
1. In this case, is the court required to allow leading questions? No. The trial court has discretion, such as if the questions would distort the testimony of a witness. Also, even if the witness is identified with an adverse party does not mean they will be hostile.
vi. What may the trial judge do to curb abuses? Terminate the testimony of someone.
US v. McKenna, 1992: In this case, D counsel challenges the courts restriction of leading questions during cross-examination of a government witness. The court said that if the witness proved to be hostile, then leading questions could be employed to further his testimony. Defense instead chose to not cross-examine the witness and calls for a new trial. Per Rule 611, leading questions are ordinarily permitted during cross-examination, but the court has discretion as to allow, or not allow, it. New trial denied.