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Evidence
Temple University School of Law
Sonenshein, David A.

Evidence
 
EXAMINATION OF WITNESSES
 
Forms of Questions
–          A party may object to the form of a question on the grounds that it is:
a.       Ambiguous
b.      Argumentative
c.       Asked and Answered
d.      Assuming facts not in evidence
e.       Compound
f.       Leading
g.      Misquoting the witness
h.      Narrative
–          An ambiguous question is one that is susceptible to at least two interpretations or is so vague or unintelligible as to make it easy to confuse the jury or the witness
–          An argumentative question is one that is asked not for the purpose of obtaining information from the witness but rather to make a jury argument in the guise of a question
–          The objection applies to questions on both direct and cross-examination
–          It is appropriate where counsel attempts, in question form, to:
a.       Summarize the testimony of the witness
b.      Comment on the evidence
c.       Draw inferences from the evidence
–          The following are situations that may fall into one of these categories and ths warrant an objection:
a.       Where counsel repeats the previous answer in asking the next question
b.      When counsel summarizes the testimony of a witness in question form and attempts to draw and inference from the testimony
c.       When counsel asks a question that essentially calls for a witness to testify as to her own credibility
–          A question may be objected to as asked and answered when it calls for the repetition of testimony from a witness who has previously given the same testimony in response to a question asked by examining counsel
–          It is designed to prevent cumulative evidence by way of repetition of facts by witnesses
–          For the objection to be sustained, the question must have been asked and a response given during the examination by questioning counsel
–          The objection therefore is not applicable when a cross-examiner askes for information elicited during direct examination
–          The objection is applicable, however, on re-direct where the information was elicited during direct examination
–          A question is also objectionable where it assumes facts that have not already been proved
–          This objection should only be made when objecting counsel is confident that the witness cannot testify to the assumed fact
–          A question that asks for twp or more items of information at the same time is a compound question
–          Compound questions have a tendency to confuse the jury
–          When a witness answers “yes” to a question that asks about two items of information, it is impossible to know what the witness is responding to
–          A leading question is one that suggests the desired answer to the witness so that it puts the desired answer in the witness’ mouth or is unclear as to whether the witness or lawyer is testifying
–          Leading questions are prohibited on direct examination but permitted on cross
–          Leading is also permitted when necessary to develop testimony
–          Leading is permitted on direct examination when questioning an adverse party or someone closely aligned with an adverse party (hostile witness)
–          A hostile witness is someone who’s bias, interest, or demeanor shows that the witness is unfriendly to the questioner or the giving of testimony gnerally
–          The vice of the leading question is that in suggesting the questioner’s desired answer to the witness, the witness may be mislead into giving inaccurate testimony
–          A question may be objected to as misquoting the witness when it states, as a factual premise, that the witness has testified to certain info when in fact the witness has not
–          The objection is designed to prevent opposing counsel from shading or misstating the testimony of the witness as it had been previously given
–          A question can be objected to as calling for a narrative if it is unfocused as to particular information that is sought and calls for a mere recitation of what a witness knows without benefit of specific questions
–          Such questions make it virtually impossible for opposing counsel to interpose objections concerning potential testimony before the jury has heard it
–          A narrative question may ask something like, “Please tell us what happened that day.”
–          A form of non-objectionable question is known as refreshing past recollection
–          Where a witness has a failure of memory, the witness’ memory may be refreshed by showing the witness a document or other item that revives the witness’ memory
–          The steps in refreshing a witness’s memory are as follows:
a.       Establish the witness’s failure of memory
b.      Mark the refreshing document for identification
c.       Show the witness the refreshing document and ask him to read it to himself
d.      Ask if the witness has read it
e.       Ask the witness if his memory is now refreshed with respect to the forgotten fact
f.       Take the refreshing exhibit from the witness
g.      Repeat the question the drew the original failure of memory
–          Finally, an answer that exceed the scope of a question or fails to respond to a question may be objected to as nonresponsive
–          This objection is only available to questioning counsel
Cross-Examination
–          Cross-examination is limited to the scope of the subject matter of direct examination plus matters affecting the credibility of the witness
–          The federal rules also provide that the trial judge may allow, upon request, inquiry that exceeds the scope of direct examination
–          This avoids the necessity of a party reserving the right to recall a witness later in the case
–          The inquiry must then be conducted as if on direct examination (i.e. no leading questions)
 
Testimonial Competence: Generally [Rule 601-602, 701-702] –          FRE 601 states:
a.       Every person is competent to be a witness except as otherwise provided in these rules.
–          Thus, every witness is presumed to be competent
–          Although this rule seems to allow anybody to be a witness, without qualification, the Rule is subject to several qualifications
–          A person is competent to be a witness if he has the ability to:
a.       perceive the events about which he is about to testify
b.      remember the events about which he will te

deliberations and juror’s mental processes in the course thereof, but allows testimony regarding extraneous prejudicial information that came to the jury’s attention
–          The impermissible information must be the result of information that the jury learned through outside contact, communication or publicity or that entered the jury room through an external prohibited route (Stewart)
–          Testimony within a courtroom is not “extraneous information” (Stewart)
–          Federal courts applied the “extraneous influence” exception to allow juror testimony regarding:
a.       Statements made to a jury by a bailiff
b.      A juror’s contact with a party during trial
c.       A juror’s contact with someone who suggested that the juror could profit by bringing in a verdict for a party
–          The SC has ruled that juror intoxication or drug use does not amount to an “extraneous influence”
 
Layperson Testimony
United States v. Leroy
United States v. Cox
–          Rule 602 states:
b.      A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence of personal knowledge may, but need not, consist of the witness’ own testimony
–          A witness may testify only as to matters about which he has personal or firsthand knowledge
–          Generally,firsthand knowledge for lay witnesses is confined to testify in the “language of perception,” i.e. what they perceived from being at the scene of the crime though one of the senses
–          Generally, The language of perception is limited to those things which are perceived by the senses
–          Rule 701, the opinion rule, provides an exception to the doctrine that witnesses only testify to the facts as perceived by their senses
–          According to Rule 701, a layperson may give inferences or opinions so long as they are:
a.       Rationally based on their perception and
b.      Helpful to the jury and
c.       Not based on scientific, technical or other specialized knowledge within the scope of Rule 702
–          Oftentimes, an inference or opinion is based upon collective facts or observations
–          For instance, a statement that an individual was “in pain” or “was agitated” may be admissible because it is based upon a collection of observations that laypersons can make which gave the perception that led to the conclusion
–          This is a flexible standard. It is up to the trial judge to determine whether the observation could have been based upon collective fact