Evidence, Spring 2010
Carlson
Evidence: Teaching Materials for and Age of Science and Statutes
Chapter 4, The Examination of a Witness
I. Direct, Cross, Redirect and Recross
A. Questions by trial judge allowed
i. FRE 614(b) Interrogation by the court. The court may interrogate witnesses, whether called by itself or by a party.
ii. Under above rule, judge may also call witnesses.
B. Trial judge must be objective and impartial
i. US v. Hickman, p.72: There was a mistrial here, b/c the trial judge hijacked the testimony, essentially doing the prosecutor’s job.
ii. Test in GA to win appeal on these grounds: Do the actions of the court show a reasonable probability of judicial bias?
II. Scope of Examination of a witness
A. Direct – includes any evidence logically relevant to any material fact of consequence in the case.
i. caveat – the scope of direct during the case-in-chief is greater than during rebuttal
B. Cross-Examination, p.80
i. FRE 611(b) Scope of cross-examination. Cross-examination 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.
a) This is the majority, restrictive view.
ii. A minority of states, including Georgia, follow a non-restrictive, wide-open rule.
iii. There is a constitutional right to cross-examine. If cross-examination is denied (the witness refuses to answer questions on cross, or becomes sick or dies, etc.), the direct examination may be struck from the record.
C. Redirect (p.85)
i. as of right
ii. may redirect on any matters brought up on cross
D. Recross (p.86)
i. as of right, may recross on topics mentioned for the first time on redirect
ii. but may not re-examine otherwise
E. Rule of completeness (p.86): If one side introduces part of a document, the other party can talk about another part of the document relevant to the same subject matter.
i. FRE 106: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other party or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
ii. Rule of completeness may trump hearsay objection, prob. 4-8, p.87.
III. Form of examination of a witness
A. FRE 611(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence . . .
B. Leading questions, (90)
i. Defined: a question that suggests to the witness the answer that the examining party desires.
ii. FRE 611(c): Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
iii. Summary
a) generally not allowed on direct
b) allowed on cross
c) allowed for
· hostile witness
· adverse party
· witness identified with AP
· witness whose memory is “exhausted” (n.3, p.91)
· children, retarded persons, people non fluent in English (n.4, p.91)
C. Questions calling for a narrative are often disallowed (though there is no rule against them).
D. Argumentative questions are disallowed on cross.
IV. Objections to questions
A. Objections covered in class for problems 4-9 through 4-11 (88):
i. compound question
ii. asked and answered
a) Examining counsel has the right to ask something once, even if it was asked by the opponent. The same party may not ask the question more than once (asked and answered).
iii. vague
B. Objections for prob. 4-14, p.93:
i. Q1 compound question
ii. Q7 leading question
iii. Q9 argumentative
iv. Q10 argumentative
v. Q11 asked and answered
vi. Q13 compound question
C. Other objections
i. question assumes a fact not in evidence
ii. counsel is misquoting the witness/a prior witness
iii. counsel is making a statement, not asking a question
D. Motion to strike when the question is proper, but the answer is not.
i. Witness says, “Devitt ought to be shot!” = Move to strike.
ii. Objection – unresponsive (not answering the question asked). Move to strike on the basis that the answer was prejudicial. (If the answer was bad enough, you could move for a mistrial.)
Chapter 5, Roles of Judge, Jury and Attorneys
I. Pretrial
A. Motion to suppress (102) – Defense in a criminal case may use a motion to suppress regarding evidence obtained in a way that violates 4th, 5th or 6th amendments.
B. Motion in limine (97)
i. In criminal cases, non-constitutional, evidence law objections may be raised as motion in limine.
ii. In civil cases, it may be used regarding highly charged evidence, for example, when the evidence would be prejudicial. (It may also be done orally at trial before a witness takes the stand.)
iii. If motion is denied, it is not necessary to renew the objection at trial to preserve the issue for appeal
C. Offer of proof: If the judge sustains an objection, the other party may make an offer of proof to preserve the issue for appeal.
D. Example: Patterson v. Devitt, motion in limine by Devitt to exclude his 2-year-old prior for forgery for which he served 2 years. Arguing for Patterson, you bring up FRE 609(a)(2) (impeachment by evidence of conviction of a crime of dishonesty). Judge grants motion in limine b/c the evidence of the prior conviction would be too prejudicial. What do you do? Do you then need to make an offer of proof? Yes. (See p.130 of Elements.) An offer of proof will preserve the issue for appeal. The offer of proof does not need to be brought up again at trial.
i. What would your offer of proof look like? Let the record show that if allowed, the prior conviction for forgery would have impacted his credibility and had a strong influence on the outcome of the trial. (Also see p.149 of Elements.) Forgery is a dishonesty and false statement crime. Prejudice should not be taken into account for a dishonesty crime, rule 609. You tell the judge this = educative purpose of the offer of proof. Judge should reverse this ruling.
II. Trial
A. Exhibits, (99)
hen the relevancy of evidence depends upon the 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.
b) Huddleston v. US (116).
· Issue: whether judge or jury should decide the factual issue of the defendant’s identity as the perpetrator of other crimes.
· Holding: This situation falls under 104(b). The jury decides.
· Reasoning: If jurors decide that the defendant did not commit the alleged crime, common sense will lead the jurors to disregard the testimony about the crime.
c) Ex., If the defendant is currently on trial for forgery, you may ask him about falsification of documents that took place 3 years ago b/c that has to do with a pattern of behavior that includes forgery.
d) Ex., You can also show prior offenses if they were done in preparation for the offense in question. For example, the defendant stole a car an hour before a robbery, in preparation for the convenience store robbery for which he is on trial.
· The judge first decides whether a reasonable jury could decide, by a preponderance of the evidence, that the fact exists.
· The jury would then need to find by a preponderance of the evidence that the offense was committed in preparation for the crime.
· The jury shares in deciding whether to receive such evidence.
D. Role of the Jury (119)
i. Judge’s role screening the evidence in 104(b) situations. The judge decides only whether the evidence is legally sufficient to support a finding by the jury that the fact exists. (20, #3)
Differences Between State and Federal Rules
I. Georgia’s rules of evidence are drawn from a mix of statutes, which are located primarily in Title 24 of the Georgia Code, as well as case precedents
II. Example case, criminal case
A. Direct
i. Forfeiture by wrongdoing
a) FRE 804(b)(6) – if a witness is killed to prevent him from testifying, his hearsay statements are admissible. Three-part test for admissibility:
· D engaged in wrongdoing that killed the witness
· wrongdoing intended to procure witness’s unavailability
· wrongdoing did in fact procure witness’s unavailability
· The judge has to be satisfied by a preponderance of the evidence.
b) Georgia? Need statutory clarification.
B. Cross
i. Objection – outside scope of cross
a) Rule 611(b) = narrow view. Objection sustained
b) Georgia = wide open rule. Objection overruled.
C. Hearsay & self-quotations
i. FRE 801: Party self-quotation is not allowed.
