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Evidence
University of Mississippi School of Law
Weems, Robert A.

Evidence – Weems – fall 2010
 
 
– – – Sequestration & Competency of Witnesses – – –
 
Rule 615 – Exclusion of Witnesses (“the Rule”)__________________________________
–          Involves the removal of witnesses from the courtroom during other witness testimony in order to
o   Prevent witnesses from “tailoring” their testimony to previous witnesses’
o   Aids in detecting testimony that has been less than candid
–          May be invoked by either side, or sua sponte by the judge
–          Exceptions:
o   (1) A party that is a natural person (i.e. the plaintiff or defendant – although they may testify, they may also stay in the courtroom while others testify)
o   (2) Representatives of Corporations
o   (3) Persons whose presence is “essential to the case.” (this is applicable when someone else needs to remain in the courtroom to interpret or explain witness testimony to the lawyer – e.g., an expert)
o   (4) Persons authorized to be present by statute
–          This rule also applies to rebuttal witnesses, not just the case-in-chief. Douglas v. State. So if there is a chance that a witness may testify on rebuttal, it is best to make sure they are not in the courtroom as well.
–          It is also a violation of this rule to tell witnesses (1) what other witnesses are going to testify to, or (2) what other witnesses have testified to
o   It is possible to prepare witnesses without violating this rule, although lawyers violate it all the time
–          Ultimately, courts are reluctant to tell people they cannot testify for whatever reason. It is an extreme remedy that should only be granted if the other party is prejudiced and the violation was intentional. Also, there are other things the judge can do besides preventing the testimony outright:
o   They might allow the aggrieved party to conduct a “full-bore” cross examination of the witnesses who did not leave the courtroom, asking statements like, “The DA told you to say that, didn’t he?”
o   A party can also request jury instructions to the effect that violation of “the rule” should be considered in evaluating witness credibility
 
Competency of a Witness: Two Types
–          (1) General Competency: whether a witness is competent to testify at all
–          (2) Specific Competency: whether a witness is competent to testify to a particular matter
 
Rule 601 – General Rule of Competency________________________________________
–          Everyone is generally competent as a witness except
o   Spouses (if they are divorced, they are not spouses), unless
§ (1) both consent or
§ (2) the controversy is between them or
§ (3) it is a criminal case where the offense is against any child
o   Person appointed by the court to make appraisal for eminent domain proceeding
–          The competency of a witness is determined according to applicable state law in federal diversity cases
–          Competency of Children to Testify
o   The judge has a conversation with the child in front of the jury to see if he or she is mature, has the necessary intellect, can recollect events, appreciate the truth, etc. Moore v. State.
o   Nothing in the MRE precludes small children from testifying in divorce actions as long as the judge finds them to be competent
 
Rule 602 – Lack of Personal Knowledge (specific competency)___________________
–          A person cannot testify to a matter unless he has personal knowledge of that matter
–          Applies to lay witnesses
–          As such, the propounding attorney should lay a foundation showing that the witness has personal knowledge of the matter at issue; otherwise, opposing council could object under this rule
o   However, this rule is not waived by failing to object; objections can be made after the fact (are original inadmissible statements stricken from the record in this instance [where attorney fails to object promptly]?)
 
Other Competency Rules______________________________________________________
–          Rule 603 – Oath or Affirmation
o   Witness must take oath or affirmation to be competent to testify in order to awaken their conscience and subject them to penalty of perjury; however, religious beliefs may not be inquired into
o   However, persons formerly convicted of perjury can testify
–          Rule 604 – Interpreters
o   Witnesses are not incompetent because they do not speak English; interpreters are subject to the oath and affirmation requirement
–          Rule 605 – Competency of Judge as Witness
o   Presiding judge in a trial may not testify as a witness; no objection must be made to preserve this point; judges have an obligation to remain impartial in front of the jury (juries can sense judges’ leanings); if a judge must testify, he must recuse himself from the trial
–          Rule 606 – Competency of Juror as Witness
o   Juries cannot testify or sign affidavits as to how they arrived at a verdict
o   The deliberation process is imperfect, but it cannot be called into question every time there is a questionable verdict; jurors are incompetent to testify as to any matter or statement that occurred during the course of deliberations
o   Exceptions – Jurors can testify as to extraneous prejudicial information or threats or bribery
–          There is no rule against lawyers testifying in cases. Generally, however, it is imprudent for a lawyer to take on a case which might require his testimony. See Ivy v. State. However, ethical rules and evidence rules are two different things.
–          Conviction of a crime is no longer a bar to testifying, but prior convictions of perjury can be presented in the context of impeachment
–          Dead man statutes? Repealed in MS
 – – – Proceeding with the Trial: Direct Examination – – –
 
Rule 611 – Mode and Order of Interrogation and Presentation__________________
–          Gives the judge tremendous discretion in how to conduct the trial in order to
o   Make interrogation and presentation effective for determining the truth
o   Avoid needless consumption of time
o   Protect witnesses from undue harassment or embarrassment
–          On direct examination, narrative or specific questions can be used, but there are strategy considerations
o   Narrative questions are good because they allow the witness to “tell his story” with autonomy, which is generally more relatable and credible to a jury
o   However, narrative questions can sometimes result in irrelevant or objectionable testimony
o   Therefore, lawyers should be prepared to move to a more specific type of questioning if necessary
o   Specific questions may also be necessary for a witness who is unintelligent or an inarticulate speaker (e.g., small children)
–          Leading Questions and Direct Examination
o   Definition of Leading Question – a question which is so framed that a person hearing the question can tell what answer the person asking the question wants to get (e.g., “isn’t it true that,” etc.)
§ However, there is lots of room for argument regarding what constitutes a leading question; not every yes or no question is leading
§ For rephrasing a leading question into a non-leading question quickly, one tactic is to start the question with “who, what, when, where, why or how”
o   One limit on the judges’ discretion on cross-examination is the availability of leading questions. Generally, judges are not supposed to permit them, and cases have been reversed because judges allowed too many.
§ Sometimes, however, such questions are necessary to develop witness testimony, especially in situations where witnesses are incompetent verbal communicators. In its discretion, the judge can say “that’s just too bad,” or he can permit some leading questions on the grounds that they are necessary to develop the testimony. The most common examples of this involve young children as witnesses.
o   Further there is a presumption that, unless the contrary is shown, there is a friendly relationship between the direct examiner and the witness
§ As such, leading questions are not appropriate in these situations
§ On cross-examination, the presumption is the contrary, so leading questions are permissible
§ The most effective guideline for determining when leading questions are appropriate is to examine the relationship between the attorney and the witness
·         This is more effective than basing their appropriateness on whet

e gets in without objection and it was actually invalid, the jury can consider it, so it is important for lawyers to pay attention (“once it’s in, it’s in”). Further, admitted evidence can be restated and relied upon in closing arguments. It can effectuate an amendment of the pleadings as well.
§ Nonetheless, a lawyer can still object when he realizes the line of questioning is inappropriate, but anything that has been admitted up until that point cannot be stricken (i.e. lawyers can object to further bad questions in a line of questioning that never should have started)
§ Failure to notice it at first will not constitute a waiver of objection; but see “The Law of the Case & Opening the Door,” infra (discussing the introduction of evidence similar to the type objected to)
o   Also, lawyers can enter a “continuing objection to all questions about this matter.”
o   If the judge sustains an objection that prevents the admission of evidence, in order to sustain his objection on appeal, the aggrieved lawyer must enter an offer of proof
–          Offers of Proof
o   If an appellate court does not know what excluded evidence would have conveyed (i.e. no offer of proof was given), it will not consider the argument
o   Making an Offer of Proof
§ (1) Trial judge sustains the objection (Note: you can argue with the judge minimally and in a respectful manner that the evidence is admissible)
§ (2) “Your honor, at this time, we would like to make an offer of proof”
·         There are generally no legitimate reasons why a trial judge would not allow a proffer
§ (3) The jury is excused (if offer is to extensive to be handled by sidebar)
§ (4) The witness remains on the stand, and the (inadmissible) questioning continues. Or, the attorney simply says, “Your honor, if the witness had been permitted to testify, he would testify as follows”
·         If the witness is sitting there, he can help or correct the attorney
·         Ask the judge which method he prefers
§ (5) “Your honor, this completes our offer of proof.” “Further, we renew our contention that this is admissible evidence.” It is possible that the judge may then change his mind.
§ Proffers not only preserve your appeal, but help convince the trial judge to change his ruling
–          Realistically, trials cannot be perfect, so erroneous rulings on evidence do not constitute reversible error unless the ruling affected a substantial right of the party (i.e. affected the outcome of the case) and
o   (1) A timely and specific objection was made in the case of admitted evidence
o   (2) An offer of proof was made in the case of excluded evidence
o   (3) Rarely, there is plain error where the error is so prejudicial that the court will take cognizance as to its grounds for reversal even though the attorney failed to object timely (more likely to occur in criminal contexts where constitutional rights are affected)
–          Motions in Limine
o   Motions in limine generally cannot be used for all evidentiary questions that may come up in a case; too much depends upon how evidence develops at trial
o   Motions in limine are granted for special occasions, requiring two conditions
§ (1) It is clear that the evidence in question is inadmissible under the rules of evidence
§ (2) And the very mention or reference to such evidence will tend to prejudice the jury