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University of Baltimore School of Law
McLain, Lynn

A) Direct→ Cross→ redirect→ re-cross
1) In all jurisdictions, the scope of redirect examination is limited to the scope of cross.
B) Scope of Cross-Examination: Objection, Beyond scope of direct Rule 611(b)
1) Two principles approach
(a) In limited scope jurisdictions the cross-examiner is entitled to cross-examine only two areas(FRE and MD)
(1) Substantive evidence (to prove what happened in the case at hand) pertaining only to topics about which the direct examiner elicited testimony from this witness and
(2) Impeachment of witness
(b) Court has discretion to permit counsel to exceed scope
2) RULE 611
A) Definition
1) Most basic rule of evidence is the requirement that admissible evidence be relevant EITHER
(a) Substantive evidence, relevant to an issue in the cases as to who did what OR
(b) As impeachment or rehabilitation evidence, relevant to the credibility of a witness who has given substantive evidence
(c) 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
B) Direct v. Circumstantial evidence
1) Direct → of a fact is provided only by eyewitnesses to that fact
2) Circumstantial → is all other evidence, from which one or more inferences must be made in order to prove the fact at issue in the case.
(a) Inferences (holding a bloody knife next to a stab victim)
C) Conditional Relevance
1) When the relevancy of evidence depends upon fulfillment of a condition of fact the court shall admit it upon or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition
D) Exclusion of evidence rule 403
1) Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusing misleading the jury, undue consumption of time
A) First-hand knowledge
1) A witness may not testify unless evidence is introduced sufficient to support a finding that the witness ahs personal knowledge of the matter.
2) A lay witness has to have knowledge of what they speak. The proponent of the lay witness must elicit evidence to show the witness has first hand knowledge
(a) I saw D stab V
B) Opinion rule
1) Common law premise was that lay witnesses should avoid all opinions and testify only to facts
2) Modern Rule 701
(a) Lay witnesses may be helpful to the jury and the line between fact and opinion is not a bright line rule
(b) Lay opinions will be admissible if
(1) Rationally based on the perception of the witness AND
(2) Helpful to a clear understanding of the witness’ testimony or the
(3) Incorporates first-hand knowledge and excludes
(i) Mere guesses, speculation, conjecture or other irrational opinions
(4) The most important issue of admissibility of all opinion evidence is “is it helpful to the fact finder:
(5) In evaluating ask
(i) Is the witness in a better place position than the jury or judge to form the opinion?
(ii) Is the witness speculating (this includes whether the witness would need to be an expert in order to reach a rational conclusion
1. if yes opinion OUT
(iii)Would having the witness’s testimony be more concrete be both possible and more helpful to the fact finder
(6) Test for lay witnesses
(i) Is the opinion rationally based on the perception of the witness and helpful to the trier of fact.
IV) OBJECTIONS TO Forms of Questions
A) Narrative Questions 611(a)
1) Asking the witness to give a narrative, tell a story “tell the jury about the morning of X”
B) Asked and Answered 611(a)
1) When counsel for one party has already asked the same witness the same question and received a responsive answer to it but the same counsel then asks it again
C) Leading 611(c)
1) One that suggests to the witness the answer that counsel desires, allowed on cross not on direct or redirect
(a) The trial Court does have wide discretion to permit leading on direct “as necessary to develop witnesses testimony. Generally permitted when
(1) To refresh the witness’s memory, if it is shown to be exhausted
(2) To bring the witness to the appropriate subject matter
(3) Background information
(4) Preliminary matters such as laying foundation
(5) Other matters not really in dispute; and
(6) As necessary when the witness is very young, or inarticulate
(7) Also may lead an adverse party on direct
D) Assuming a Fact not in Evidence 611(a)
1) That assume the truth of an underlying fact not yet proved in evidence “When did you stop beating your wife” when no evidence he ever struck wife
E) Compound Question 611(a)
1) Double questions, ambiguous, provide witness with alternative choice, or double negative “Are you married or single”
F) Harassing or Badgering the Witness 611(a)
1) Usually also subject to asked and answered
G) Argumentative Rule 611(a) and 701-702
1) When counsel is arguing with witness and second when counsel is asking witness to draw a legal question→ this violates opinion rule of 701 and 702
H) Not a question 611(a)
1) Can not make statements of their own (counsel)
I) Objections at Deposition; Cure by rephrasing
1) Objections must be made at time of questioning
J) Motion to strike on Ground that Answer was non-responsive
1) Only the counsel who asked the question may move to strike the witness’s answer, or part of it on the ground that it was non-responsive to the question
A) Three prerequisites for Finding Reversible Error
1) The trial judge committed error
2) Counsel preserved the error
3) The error was so substantial as to be reversible rather than harmless
B) Need for the trial court to have ruled on the question
1) The MD rules provide that an appellate court will n

(1) Sincerity- the cross-examiner may try to delve into whether the declarant was lying or otherwise insincere because they were joking, being sarcastic, or speaking tongue in cheek
(2) Narration- what did the declarant mean to say? Did they mean what it sounds as if they meant? A witness who heard the declarant speak may have misunderstood the Declarant
(3) Perception- cross-examine the declarant as to whether they accurately perceived the facts they were reporting. Did the declarant have firsthand knowledge? Even if they did, did the declarant have weakness in the ability to perceive
(4) Memory- could the declarant’s memory have been faulty? How much time elapsed between the declarant’s perception of the event and their utterance of the statement?
(5) Sincerity and Narration → Declarant’s belief
(6) Perception and Memory→ Declarant’s accuracy
C) Analysis of whether proffered evidence is hearsay or nonhearsay
1) Identify the evidence that is being offered
2) Ascertain whether the OCS was made by a person
3) What relevant substantive fact is the evidence being offered to help prove
4) How does the evidence help the case of the party offering it
5) How does the evidence tend to prove the relevant fact
6) Is the proponent asking the fact finder to rely on the Declarants accuracy?
A) Legally Operative Facts
1) Verbal acts or parts of acts
(a) Verbal acts → substantive law regarding the particular type of claim or defense requires that an OCS have been made in order for the type of claim, charge or defense to exist
(b) Verbal parts of Acts → giving a particular legal effect by virtue of the substantive law, to an otherwise legally ambiguous nonverbal a
B) Statement offered to prove their Effect on their Hearer or reader
1) Statements putting the hearer or reader on notice or statements affecting the reasonableness of the hearer or readers subsequent are probative for that purpose regardless of either the declarant’s sincerity or accuracy
C) Statements offered as Circumstantial Evidence of the Declarant’s consciousness, ability to talk, ability to speak a particular language
1) Neither sincere belief nor accuracy of the Declarant is need,
D) Statements offered as Circumstantial – not direct- evidence of the Declarants emotion, state of mind knowledge, belief, intent, sanity, or insanity