Spring 2005, Prof. Weems
EVIDENCE (just what he talked about)
Order of Trial: Voir Dire; Opening; “What says the plaintiff” (are you ready?); “Rule invoked?”
– P’s case in chief: Direct, tender-Cross, redirect (only new stuff from cross), re-cross
o On direct,Пmust ask of each witness everything he wants to get, can’t wait for re-direct to ask the “Million Dollar Question.” (note, D must object)
– After П rests, D moves for directed verdict (P gave no prove as to essential element).
– D’s Case in chief: Same, except now the defendant has direct. After, П may move Dir. V.
– P’s Rebuttal: ONLY if new issues were brought up in D’s case in chief.
o P can’t wait to call a great witness that he could have called earlier
R 615 (p.4): Judge or attorney may “invoke the rule.”
– A witness that is going to (may) testify may not listen to testimony of others (can after).
o Purpose-Witness may conform to testimony of other witnesses.
– 3 Exceptions:
o Party who is a “natural person” may stay (i.e.-P/D).
o Corporate party may designate a representative to sit in for them.
o Expert – Someone “Whose presence is shown to be essential to the party’s case.”
§ Must notify judge that expert will use info to help in his testimony.
– Violation: (usually a violation is inadvertent)
o Extreme: Ct can exclude the witness’s testimony (usually, only if intentional).
§ L can’t tell witness how others testified. Violates rule. Thin line-prep OK.
o Usual (i.e.-inadvertent): Opposing allowed a “very stringent” cross.
§ Let jury know Wit shouldn’t have been there. Ok to raise inferences.
COMPETENCY: R 601-606 (P. 1-6)
General: Is Wit competent to testify at all? Not-can’t even give name.
Special: Is Wit competent to testify on a certain subject (i.e.-does he have personal knowledge?)
Fed. R 601: Everyone is competent to testify EXCEPT as provided for by rules (602-606).
– In a civil case where state law controls, Fed Ct looks to state law regarding competency.
– Therefore, Diversity Case, Judge looks to MRE 601-606. 602-606 are the same.
MR 601: All Wit are competent EXCEPT:
– Spouses of parties. П or D’s spouse may not testify w/out consent of both parties.
o NOTE, this isn’t the spousal privilege. In criminal suit, S Ct has said that the spouse of the defendant may declare the privilege, but defendant can’t invoke it.
– 3 Exceptions:
o Party may introduce spouse even if spouse doesn’t consent. (Seems crazy to do)
o Hubby may be Wit against wife if it is a controversy between them. (broad).
§ Crim. Pros-if wife is “mad” at hubby, she can testify. If not, both consent.
o Spouse may be compelled to testify against other in crim pros for:
§ Crime against child, child neglect, desertion, or abandonment.
R 602: Personal Knowledge: Wit must “actually perceive w/ his senses” to testify. (Special).
R 603: Every Wit must swear/affirm testimony or is incompetent. Wake conscience; penalize.
R 604: Interpreter-Can’t speak English, doesn’t make you incompetent.
R 605: Judge can’t testify in case he’s presiding over.
R 606(a): Juror can’t testify in case where he’s a juror. (never happen b/c voir dire).
(b): Inquiring into validity of the verdict: Juror can’t give testimony/sworn affidavit to cast doubt on verdict (i.e.-jury talked about improper things-D’s $/residency).
EXCEPTIONS: 1) Can testify to tell of improper conduct (bribes/threats); 2) Extraneous prejudicial information was brought to the jury’s attention (i.e.-going to see wreck scene).
Children: Not automatically competent. Judge Qs in front of jury. Usually allowed & up to jury.
Allowed if: 1) child can perceive/remember facts, 2) answer intelligently, 3) comprehend truth
ading Qs)-preliminary Qs (name, etc)
o Adverse/hostile witness: Supra.
o Development of Testimony: Leading allowed on direct to develop testimony.
§ Children: “And then he hit you?” Leading may be the only way to get testimony. (Up to the Ct).
· Reason: Personal knowledge is important. We would like it w/ non-suggestive Qs, but if not possible®leading OK.
§ Elderly: Same.
§ Refreshing memory of a witness. Ask Judge
o Laying a foundation for physical evidence (photos): “Is this a fair and accurate representation of real life?” Uses exact words req’d to be admissible®still OK.
Argumentative & Misleading Questions:
– Misleading: Q requires the Wit to assume something that he has not answered.
o I.e.-“How long has the rd been open to the public?” When Wit hasn’t said it was ever open to the public.
– Argumentative: Instead of trying to get new evidence, L challenges what Wit said earlier.
o Usually comes up on cross. “Do you really expect people to believe that?”
R 614: Judge Calling: Rare, but the Judge can call and question witnesses.
Refreshing Memory of Witness: Often, a Wit may simply forget something. He can’t testify if he can’t remember.
– The law usually permits you to refresh the Wit (no “hard line” against it). HOW?
1) Leading Qs (ask the Judge if you may develop testimony).
2) Show the Wit something to refresh memory.
Inadmissible refresher: Judge will allow you to use an object (i.e.-photo) to refresh the Wit. Memory even if it object is inadmissible. (Livingston).