1) Background, Framework, and Procedure
a) Judges Instructions to the jury – six different types of instructions:
a. Admissibility – judge decides whether a piece of evidence is admissible.
b. Corroboration instructions – formally limits the jurors’ discretion in evaluating the weight of an accomplice’s testimony.
c. Cautionary instructions – directs the jury to be wary in evaluating the weight of particular testimony
d. Limiting instructions – specifies to the jury the permissible and impermissible uses of that item of evidence.
e. Sufficiency instructions – deals with the allocation and measure of the burden of proof
f. Curative instructions – directs the jurors to disregard something that they have already heard.
b) The Examination of a Witness (Chapter 4)
a. Sequestration and Exclusion of Witnesses – when a judge “sequesters, they order the witness from the courtroom. Also orders witness to not discuss their testimony with other witnesses in the case.
a. FRE 615 – Exclusion of Witnesses – At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses: Does not apply to:
1. Party who is a natural person
2. An officer or employee of a party which is not a natural person designated as its representative by its attorney, or
3. A person whose presence is shown by a party to be essential to the presentation of the party’s cause, or
4. A person authorized by statute to be present.
b. Direct, Cross, and recross examination
a. Direct Examination – first examination of a witness upon a matter not within the scope of a previous examination of the witness.
b. Cross –examination – done after the direct examination upon matter within the scope of direct examination.
1. Split of Authority-
a. Majority View – should be limited to the subject matter of the direct examination
b. Minority View – direct examination does not limit the cross examination
c. Redirect Examination – CL proponent of the witness may conduct redirect about topics the opponent broached for the first time during cross-examination
d. Recross Examination – examination of the witness by a cross-examiner subsequent to a redirect examination of the witness.
1. Rule of Completeness – FRE 106 – When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at the time of any other part or any other writing or recorded statement which ought in fairness be considered contemporaneously with it.
c. The form and examination of a witness
a. Questions by the Trial Judge – permitted to call witnesses on own motion and question the witnesses by the parties.
1. FRE 614 – Calling and Interrogation of Witnesses by Court –
a. Calling by the court – may call witnesses, and all parties are entitled to cross-examine witnesses thus called.
b. Interrogation by court – may interrogate witnesses that it or another party calls.
c. Objections – (to the calling of witnesses) must be outside the presence of the jury.
b. Questions by Jurors – allowed, but there is a proper procedure –
1. Civil Cases – done by submitting written questions.
2. Criminal cases – submit in writing as well, and parties shall review outside of court to determine if acceptable or needs modifications.
c. Excusing the Witness – two ways
1. Permanently – if permanently excused, the attorney must get leave of court to call back.
2. Subject to recall – atty has the right to recall and get more testimony.
d. The trial judge has discretionary control over the form of the examination.
1. FRE 611
a. Control by Court – the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence 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 – (follows majority rule) should be limited to the subject 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. FRE 611(b)
1. The witnesses credibility may always be attacked on cross
c. Leading Questions – A “leading question” is a question that suggests to the witness the answer that the examining party desires.
1. Not allowed on direct
a. Exceptions to the rule against leading questions: (leading questions will be allowed on direct when dealing with the following witnesses)
1. Hostile witness
2. Refresh memory
3. Preliminary matters – things not in dispute
4. To question children, retarded people, and pp not fluent in English.
2. Allowed on cross. FRE 611 c
2. Argumentative questions – an argumentative question is one which tries to get the witness to agree with counsel’s interpretation of the evidence. It is more common on cross than on direct, and usually has an element of badgering the witness.
a. two primary meanings
1. to make an argument to the jury
2. to challenge the witness to an inference from testimony already on the record. (only done when planning to impeach).
3. Misleading – a misleading question is one that assumes as true a fact that is either not in evidence or is in dispute. It usually has a trick aspect.
c) The roles of Judge, Jury and Attorneys Chapter 5
a. FRE 103 – Rulings on Evidence
a. Effect of erroneous ruling – error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.
1. Objection – in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
2. Offer of proof – in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. ***Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or bef
of Competency –every person is competent to be a witness except as otherwise provided. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
a. General Competency Requirements
1. The oath – witness at trial must make the proper oath or affirmation to testify.
2. Capacity to Observe – must be able to observe.
3. Capacity to Remember – must be able to accurately recall the data at trial.
4. Capacity to narrate – must be able to narrate or relate what she remembers about the perceived event.
b. Applications of the General Requirements
1. Minors – children who are too young to understand an oath’s significance may testify (if otherwise competent). The child must understand the difference between truth and falsehood.
2. Mentally Disordered Persons – usually allowed to testify
b. FRE 605 Competency of a Judge as a Witness – presiding judge may not testify in the trial as a witness.
c. FRE 606 – Competency of a Juror as a Witness –
a. at the trial – a member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called to testify, the opposing party may object outside of the jury presence.
b. Inquiry into validity of verdict or indictment – a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about:
1. Whether extraneous prejudicial information was improperly brought to the jury’s attention.
2. Whether any outside influence was improperly brought to bear upon any juror, or
3. Whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror is testifying.
c) Logical Relevance: Probative Value
a. The Distinction between pure logical relevance and materiality
a. Relevant Evidence – FRE 401
1. Relevant evidence means 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 without the evidence.