I. Mode and Order of Presentation of Evidence
A. ANATOMY OF A TRIAL
1. Preliminary Matters
a) i.e., pretrial hearings on admissibility of evidence
2. Voir Dire: selecting the jury
3. П’s Opening Statement
4. Δ’s Opening Statement
a) Criminal. Δ can wait until after Π rests.
5. П’s Witnesses (cycle repeats until judge ends)
a) direct
b) cross
c) redirect
recross
6. П Rests
7. Motions
a) Only the Δ can make motions at this time. (Δ’s motion for DV)
8. Δ’s Witnesses
a) direct
b) cross
c) redirect
d) recross
9. Δ Rests
10. Motions
a) Both sides may move for DV.
11. П’s Rebuttal Witnesses
a) Limited to testimony about new matters raised by the Δ’s case.
12. Δ’s Sur-Rebuttal Witnesses
13. Jury Instructions
14. П Closing
15. Δ Closing
16. П Rebuttal Closing
B. Control by the court
1. R102: Purpose and Construction – Rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion or growth and development of the law of evidence to the end that the truth may by ascertained and proceedings justly determined.
2. R403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time – Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; OR by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
3. R611: Mode and Order or Interrogation and Presentation – (a) Control by the 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.
C. dISCRETIONARY objections. These objections are not specifically stated in the rules of evidence, but have gained acceptance over time and are supported by the combination of rules 403 and 611.
1. “The question calls for a narrative response” – Posed when a question is indefinite in scope, making it difficult for opposing counsel to anticipate whether the substance of the witness’s answer will encompass an inadmissible matter. E.g., Q: “What happened the day of the murder?”
a) Tactics. As a tactical matter, the opposing party may choose not to make this objection to allow the witness to reveal too much information or to leave out important details.
2. “Non-responsive” – Appropriate when a witness’s response exceeds the scope of the examining attorney’s otherwise appropriate question. E.g., Q: “Did you see the defendant the night of the murder?” A: “Yes. He had a lot to drink and was very angry and abusive.”
3. “Assumes a fact not in evidence” – Appropriate when a question asserts facts not yet established at trial; the question is objectionable because it brings to the attention of the jury facts that are not in evidence. E.g., Q: “After the defendant had a few drinks, did you see the defendant leave the bar?” Objectionable when no evidence has been presented to suggest the Δ had been drinking that night.
4. “Compound question” – Appropriate when a single question seeks multiple answers; the witness’s testimony will usually be ambiguous and confusing or misleading to a jury. E.g., Q: “Did you see the defendant the night of the murder and did he seem upset?”
a) Tactics. This is not a good objection to make. If sustained, the questions will just be asked separately and it tends to emphasize the testimony that will ultimately be admissible.
5. “Ambiguous” – Appropriate when a question is not reasonably clear and specific, thus making it apt to confuse the witness’s testimony. A question is ambiguous when even the judge does not understand it. E.g., Q: “What did you or didn’t you not see if not anything when the defendant entered the bar?”
6. “Asked and answered” – Appropriate when the witness has already substantively answered the question again being posed. Under R403, the judge has the discretion to exclude evidence it considers to be a waste of time. Repeating information may fall into this proscription. This objection is only good as to the same examiner of the witness; the cross-examiner can re-ask the same question. E.g., Q: “Once again, would you tell the jury where you were the night of the murder?”
7. “Cumulative” – Calling several witnesses to testify on the same issue or introducing numerous similar exhibits may be objectionable as cumulative. E.g., Q: “Your Honor, the State moves to admit Exhibits 1 through 47 which are all autopsy pictures of the victim.”
8. “Misstatement of the evidence” – An attorney should make an objection based on a misstatement of the evidence when the interrogator inaccurately describes evidence or when he draws inferences that are for the jury to make. E.g., (Assume – the witness’s testimony was actually limited to a description of the defendant’s demeanor and swaying walk.) Q: “On direct examination you testified the defendant was drunk, didn’t you?”
9. “Argumentative” – This objection is generally made to respond to a rhetorical question that attempts to assert the interrogator’s meaning or the implication of the testimony. E.g., Q: “Now why would you, in your right mind, agree to such a stupid idea?” or “How can you say…” or “Do you really think…”
10. “Badgering the witness” – Appropriate when the examiner is unfairly attempting to intimidate the witness. Applies to asking the same question multiple times, asking the same question in different ways, raising of voice and invading the witness’ space. E.g., (Assume the attorney is a foot from the witness box and asks the question with a raised voice.) Q: “Now why would you, in your right mind, agree to such a stupid idea?”
D. LEaDING QUESTIONS
1. R611(c): Leading questions – Generally, on direct examination leading questions should not be permitted, except: (1) as necessary to develop the witness’s testimony, (2) when the witness is hostile, (3) an adverse party, or (4) a witness identified with an adverse party. Generally, on cross-examination leading questions should be permitted.
2. Leading question defined – A leading question clearly suggests the desired response. It is a question which instructs the witness how to answer on material points or puts into the mouth of the witness words to be echoed back. Questions that begin with “Isn’t true that . . . .” or ends with “. . . didn’t you?” are generally leading questions. Many questions that call for a “yes” or “no” answers are also leading. Sometimes the inflection of the questioner’s voice may make an otherwise permissible question objectionable as leading.
a) Traffic Court Hypotheticals –
(i) Isn’t it true the light was green? (leading)
(ii) Was the light green? (leading, suggests response)
(iii) Was the light green, red, or yellow? (ambiguous question that gives all available options is not typically leading; could become leading based on form of question, tone of voice, etc.)
(iv) What color was the light? (not leading)
(v) What happened? (not leading but calls for a narrative response)
3. When are leading questions permissible?
a) On Direct-examination – The following are exceptions, to the general rule that leading questions are not allowed on direct examination.
(i) Necessary to develop witness testimony –
(A) Preliminary matters not of material importance to the case – Leading questions may be allowed, on direct examination, to help expedite the trial b/c there is little prejudice to the opposing party if the questions relate to preliminary or collateral matters.
(1) E.g., there is not an important distinction between “Please state your name.” and “Is your name Prater?”
(B) Testimony of child – Leading questions may be allowed, on direct examination, to elicit the testimony of a child.
(C) Testimony of incompetent/impaired – Leading questions may be allowed, on direct examination, to elicit the testimony of a mentally impaired individual.
(D) Refresh memory – Leading questions may be allowed, on direct examination, to refresh the memory of a witness. The witness’s memory must have been exhausted and you can only ask leading questions to the extent that they get the witness back on track.
(ii) Hostile witness – Leading questions may be directed toward hostile witness on direct-examination. Witness can be found hostile by 1.surly conduct, 2. refusal to answer, 3. hesitancy to testify, and 4. Repeated hedging of answers. Hostility is matter of action rather than status (they have to do something not be someone).
(iii) Adverse party – Leading questions may be directed toward named adverse party on direct.
(iv) Witness identified with an adverse party – Leading questions may be directed toward person identified with adverse party on direct-examination (e.g. adverse party’s employee or girlfriend).
b) On Cross-examination – Leading questions are generally allowed on cross-examination, but the judge has the discretion to preclude the use of leading questions if (1). The witness is friendly (identifies with cross-examining party) and (2). has not been shown to be hostile or adverse.
E. SCOPE OF CROSS-Examination
1. R611(b): Scope of cross – Cross should be limited to (1). the subject matter of the direct and (2) matters affecting the credibility of the witness (generally, the scope of re-cross will be limited to the scope of re-direct). The court may exercise its discretion to allow questions beyond the scope as if on direct.
2. Same subject matter – The scope of cross is measured by the subject matter of direct. Thus, if on DIRECT a subject is broached, any question relating to that subject is within the scope of cross. Subject matter has been so broadly defined by some courts that a question on direct regarding liability or damages opens the witness to any questions on cross regarding liability or damages.
a) Exhibits – When exhibits are admitted on direct, cross examination questions relating to the subject matter of exhibits but not relating to specific exhibits themselves are not outside the scope of cross.
3. Impeachment – Questions which test the perception, memory or attempt to discredit a witness, are properly within the scope of cross – regardless of whether the issue of witness credibility was addressed on direct.
4. Judicial Discretion – Expansion of the scope of cross is allowed at the judge’s discretion. This is used to allow simple, quick questions for purposes of expediency and convenience.
II. Objections and Offers of Proof
A. Rulings on Evidence
1. Offering an objec
(A) What constitutes personal knowledge – The slightest possibility of actual perception is sufficient to satisfy the personal knowledge requirement. Whether the witness did indeed perceive what he purported to perceive is a creditability question. The witness need not be absolutely certain of the event related to satisfy the personal knowledge requirement. Evidence will only be excluded due to a lack of personal knowledge when no reasonable jury could conclude that the witness has personal knowledge.
e) 1. Show them Recollection –
(i) Recollection refreshed – Once the examiner establishes that the witness cannot recall the subject matter of the question he may attempt to refresh the recollection of the witness with: (1) the witnesses own writing; (2) the writing of another; (3) anything that might provoke recollection (e.g., a swatch of corduroy, the Tennessee Waltz, the police report of another officer). The memory-prompting item does not become evidence solely by its use to refresh the witness’s memory. It must be properly admitted.
(A) Must share with opposition – The opposing party must be provided with a copy of the memory-prompting item so that they may introduce it as evidence if they so desire.
(B) Operation (at trial or beforehand in deposition) – If a witness does not recall an event, the examiner may hand them a statement, let them read it, take it back, and ask them if their memory has been refreshed. Question cannot proceed until the witness says, “I now remember.”
(ii) 2. Admit any document to refresh – Recollection recorded (HEARSAY EXCEPTION) – If the witness’s memory cannot be refreshed, then any document may be introduced that correctly recorded the witness’s memory at the time of the event. Most common use is to have diary entries admitted.
(A) Admission – To admit a writing as testimony you have to establish:
(1) that the witness at one time had knowledge but cannot now recall;
(2) there is a writing or recording of some sort;
(3) the writing or recording was made or adopted by the witness
(4) the writing or recording was made while the witness’s memory was fresh;
(5) the writing or recording was accurate when written/made;
(a) adoption can be by signing
(6) it must be read into the record (jury). You do not introduce it.
(a) Must share with opposition – The opposing party must be provided with a copy of the written statement so that they may introduce it as evidence if they so desire
(B) Operation – (accomplishment of above six requirements)
(1) “Is there a writing that you made or adopted regarding your recollection of the event?”
(2) “Is this a record of the event made or adopted by you while the event was fresh in your memory?
(3) “Was the description accurate when you made it or adopted it?”
(iii) Hypnotically refreshed memory – Three possible theories:
(A) Per Se Inadmissible (MAJORITY RULE) – However, even in these jurisdictions an exception exists that will allow introduction by the Δ of the hypnotically refreshed memory of a criminal Δ on his own behalf (His or her own defense) to ensure that the Δ’s due process rights are not violated.
(B) Admissible under procedural safeguards – Must lay foundation of hypnotist certification, proof that there was not hypnotic suggestion, etc.
(1) Hypnotist testify – The hypnotist would likely testify as to what the individual said under hypnosis—hearsay exception.
(C) Per Se Admissible – Always admissible with jury to determine credibility of evidence.
(1) Hypnotist testify – The hypnotist would likely testify as to what the individual said under hypnosis—hearsay exception.
f) Communication – To be competent to testify the witness must be able to communicate with the jury directly or through an interpreter.
(i) 1. Swear the Interpreter in to make a true interpretation – Interpreter is subject to expert treatment. Foundation must be laid as to proof of the interpreter’s capability to interpret and the results must be able to be duplicated.
(ii) 2. If they cannot understand the oath
(iii) 3. Have them interpret the oath and then swear the witness in
IV. Relevance—***Always do a R401 and R403 analysis to conclusively determine relevancy.
A. TWO SEPARATE OBJECTIONS—“The evidence is irrelevant and/or unduly prejudicial…” IRRELEVANT
