Article 6: Mode & Order (611-612, 614-615)

Question 1

T/F: The judge will generally permit all exhibits that have been admitted to go to the jury room before deliberations.

Answer 1

False.

• general rule on exhibits: they can go in but they usually don’t go back to the jury room
• testimonial exhibits almost never go back to the jury room

Question 2

T/F: The trial judge may call and examine a witness sua sponge, even if both counsel object to the judge calling the witness or asking questions

Answer 2

• true
• Rule 614
• so long as the judge does not become adversarial, they are good

Question 3

T/F: It is permissible to lead a witness on direct examination, if the witness is having a difficult time recalling the facts of the case in order to refresh the witness’ recollection.

Answer 3

• true
• general rule: can’t use leading questions on direct examination
• exception: when it is necessary to develop W’s testimony (at the judge’s discretion)
• you don’t want to lead on direct examination b/c you don’t want to make it look to the jury like the attorney is testifying

Question 4

T/F: A party may require under 615 the exclusion of all witnesses from the courtroom so they cannot hear the testimony of other witnesses

Answer 4

• false
• watch for the word “all”
• rule 615: you can sequester
• general rule = you can sequester
• exception: some people get to stay by argument or a matter of right

Question 5

T/F: Courts are especially strict about enforcing the prohibition against leading questions when suggestible witnesses such as the young, the mentally retarded, or those with poor memories are testifying on direct examination, but are reluctant to testify about the subjects for which they are examined

Answer 5

• false
• see text pg. 535
• opposing counsel will object to the leading and the judge will decide if it is necessary to develop W’s testimony
• Burton case: it is very common to use leading questions with children

Question 6

Personal injury action. The highway patrolman who investigated the accident takes his report to the stand and occasionally sneaks a peek at the accident report to assist his answering questions. As a result:

A. The opponent is entitled to have the testimony of the officer stricken as not based on personal knowledge
B. The proponent is entitled to introduce the report to corroborate the officer’s testimony.
C. The opponent is entitled to see the report, to cross-examine the officer from it, and introduce the report into evidence.
D. The court has discretion in determining whether the opponent may inspect the report and cross-examine on it.

Answer 6

C. The opponent is entitled to see the report, to cross-examine the officer from it, and introduce the report into evidence.

• rule 612(b)
• so long as the judge believes W is using the report to refresh their memory
• when you refresh, the other side can look at it and introduce it if they want

Question 7

A brought an action for damage to his automobile alleged to have resulted from the negligence of the defendant, B. Upon direct examination, A was asked to describe in detail the damage to his vehicle. He stated he had forgotten the details, as the collision in question had occurred 4 years prior to the trial. His attorney then handed him a written estimate of repairs prepared a few days after the collision by a mechanic at the Acme Garage. This is:

A. Permissible to refresh A’s present memory
B. Never permitted unless the judge first examines the item and gives his discretionary permission
C. Improper because the item was not yet authenticated
D. Proper because the estimate was reliable past recollection recorded

Answer 7

A. Permissible to refresh A’s present memory

• permissible b/c (1) it is being used to refresh A’s memory and (2) it is possible to refresh A’s memory
• it does not matter that it is not A’s document
• A cannot say what is on the document b/c it might be impermissible hearsay
• before you show anything to the W, you have to show it to opposing counsel

Question 8

A brought an action for damage to his automobile alleged to have resulted from the negligence of the defendant, B. Upon direct examination, A was asked to describe in detail the damage to his vehicle. He stated he had forgotten the details, as the collision in question had occurred 4 years prior to the trial. His attorney then handed him a written estimate of repairs prepared a few days after the collision by a mechanic at the Acme Garage. Assume A testified that he recognized the estimate which included a list of all damaged parts of his vehicle and that he had been present when it was prepared. however, he admitted that he did not prepare the document. A then requested permission to read the estimate aloud. The request should be:

A. Granted under Rule 8-3(5)
B. Granted only if the judge gives a limiting instruction restricting its use for non substantive purpose
C. Granted only if there was no jury
D. Denied on grounds of hearsay

Answer 8

D. Denied on grounds of hearsay

• if W didn’t make it, cannot use 803(5) (past recollection recorded) hearsay exception
• if W’s memory is refreshed, you do not go on to 803(5)

Question 9

Except under extraordinary circumstances, the judge conducting a trial in federal district court

A. May not question a sworn witness who is one of the actual parties to the “case or controversy”
B. May not question a sworn witness regarding ultimate issues of the case
C. May not question a sworn lay (non expert) witness
D. May question a sworn witness in any of the above circumstances

Answer 9

D. May question a sworn witness in any of the above circumstances

• a judge can question all Ws at any time under 614
• have to be careful not to become adversarial
• if judge has become adversarial, wait to sidebar to object

Question 10

Civil action for personal injuries arising out of an auto accident. P calls a witness who indicates that he witnessed the event. P asks, “tell us what you saw”. This question is:

A. Objectionable as ambiguous
B. Objectionable as calling for a narrative response, but the trial judge may permit it in her discretion.
C. Objectionable as calling for a narrative, and the trial judge must sustain a “narrative” objection
D. Unobjectionable

Answer 10

B. Objectionable as calling for a narrative response, but the trial judge may permit it in her discretion

Question 11

P vs. D for breach of an oral contract. As part of her case in chief, P’s attorney calls D to the stand and asks, “would you agree that you agreed to purchase five tons of manure per month from P? This question is:

A. Improper b/c one party may not call the other party as part of her case in chief.
B. Improper b/c it is impermissible to lead a witness on direct examination except with regard to uncontroverted or preliminary matters
C. Proper b/c the subject of the question constitutes an act of independent legal significance
D. Proper b/c a party may call the adverse party and examine him as though on cross-examination

Answer 11

D.

• because you can use leading questions with an adverse party (the rule says this but some judges may not permit it)
• general rule: when you call an adverse party, it becomes like a cross examination

Question 12

Prosecution of D for burglary of an auto supply store. The prosecution calls W, the store owner. When asked what was stolen from the store, W lists a few items and then stops. The prosecutor is certain that other items were stolen, and in order to refresh W’s recollection, shows W a summary of items stolen, which W prepared shortly after the burglary. After giving W a chance to review the document, the prosecutor takes back the document and as asks if W if his memory has been refreshed W says yes. The prosecutor then asks W if any other items were stolen, and W names 15 more items. W’s testimony concerning the additional items is:

A. Admissible under 612 if the W is testifying from his memory refreshed.
B. Inadmissible b/c W has not testified that the document is an accurate listing of the stolen items
C. Inadmissible b/c to refresh a witness’ recollection, a party is not permitted to use a document which recites the very information the witness could not remember before looking at the document.
D. Inadmissible because the witness appears to be merely reciting facts he read from the document, rather than testifying based upon his refreshed memory.

Answer 12

A.

• judge will be making this decision
• if it’s from memory, it’s okay
• if it’s considered reading from the document, then it would be hearsay

Question 13

Re-direct examination of a witness must be permitted in which of the following circumstances?

A. To reply to any matter addressed during cross examination
B. Only to reply to non-collateral matter raised in cross-examination
C. Only to reiterate the essential elements of the case that the witness previously testified to on direct
D. Only to supply significant information inadvertently omitted on direct examination

Answer 13

A.

-on redirect, you can only talk about what they talked about on cross

Question 14

A boy that was playing on a railroad with his friend (who was injured in an accident with the train) testifies on direct examination that the train was stopped when he and his friend climbed aboard. On cross examination defense counsel asks whether he remembers giving a statement to the police following the accident. The W says no. Defense counsel then asks to approach to refresh memory and shows him the alleged statement. The W still states he can’t remember giving any statement to the police. If defense counsel seeks to have the W read the statement contained in a police report to the jury, the judge should

A. Sustain a hearsay objection
B. Overrule a hearsay objection on the basis of refreshing memory under Rule 612
C. Sustain a Rule 613 improper impeachment objection because he did not give the W an opportunity to admit or deny the statement
D. Sustain either or both a hearsay and a Rule 612 objection because 612 does not allow the reading to the jury of a statement then the witness does not recall making

Answer 14

D

-reading from the document would be cheating

Question 15

A boy that was playing on a railroad with his friend (who was injured in an accident with the train) testifies on direct examination that the train was stopped when he and his friend climbed aboard. On cross examination defense counsel asks whether he remembers giving a statement to the police following the accident. The W says no. Defense counsel then asks to approach to refresh memory and shows him the alleged statement. The W still states he can’t remember giving any statement to the police. Assume that when the W tells defense counsel that he cannot remember talking to the police about anything, defense counsel asks “Isn’t it true that you previously stated that the train car was moving when the P tried to get on it?” If the prosecutor objects on the grounds of improper refreshment and hearsay, the court should rule:

A. The question is proper use of 612 to refresh his memory
B. The question is an improper use of Rule 612 because Rule 103(c) prohibits suggesting to the jury the contents of an inadmissible statement, and the statement is inadmissible hearsay unless the witness indicates that his memory has been refreshed by the prior statement.
C. The question is proper under Rule 612 because if the W is testifying any prior statement made by the W is non hearsay under Rule 801(d)(1)
D. The statement is admissible for any purpose if it can be properly authenticated as his prior statement (Rush v. Illinois Central Railraod Co)

Answer 15

B

• can’t ask this question b/c they are reading from the document (hearsay)
• when refreshing memory, you can’t suggest an inadmissible statement in your question and try and get it to the jury
• you can show them the document and ask them if that’s what they said
• cannot refresh by saying what’s in the document

Question 16

A boy that was playing on a railroad with his friend (who was injured in an accident with the train) testifies on direct examination that the train was stopped when he and his friend climbed aboard. On cross examination defense counsel asks whether he remembers giving a statement to the police following the accident. The W says no. Defense counsel then asks to approach to refresh memory and shows him the alleged statement. The W still states he can’t remember giving any statement to the police. Also assume that the prior statement can be properly authenticated as having been made by the W. IF the W continues to deny making the prior statement and D offers the statement under Rule 613, the court should:

A. Sustain a hearsay objection
B. Overrule a hearsay objection because the prior statement would be admissible under Rule 613 as both impeachment evidence and for the substantive truth of the statement
C. Overrule a hearsay objection for impeachment purposes only, because the statement would be hearsay for substantive purposes
D. Overrule the objection for substantive purposes, but sustain it for impeachment purposes only unless the W admits making the prior inconsistent statements

Answer 16

C

• if you can establish properly authenticated that the kid said something, that will come in for the narrow purposes of impeachment
• if it comes in, it will be for impeachment purposes only

Question 17

A boy that was playing on a railroad with his friend (who was injured in an accident with the train) testifies on direct examination that the train was stopped when he and his friend climbed aboard. On cross examination defense counsel asks whether he remembers giving a statement to the police following the accident. The W says no. Defense counsel then asks to approach to refresh memory and shows him the alleged statement. The W still states he can’t remember giving any statement to the police. If the W admits making the prior inconsistent statement, and D offers under Rule 613 separate extrinsic evidence proving the statement was made, the court upon objection should

A. Sustain a hearsay objection
B. Sustain a Rule 613 objection b/c it the W admits making the prior inconsistent statement, extrinsic evidence is inadmissible hearsay
C. Sustain the objection on cumulative grounds
D. Sustain the objection for reasons given in either B or C

Answer 17

C

-not coming in b/c it has already been impeached

Question 18

In an aggravated sexual assault case, where prima facie case requires proof of sexual penetration, the victim on direct examination is reluctant to testify about the details of the assault. After asking several open-ended questions about what happened after the assailant had taken off her underwear, the victim refuses to talk any further and instead begins to cry. In response the prosecution asks the following unquestionably leading question: Idd his penis actually go into your vagina? The Defense angrily objects to the question as prejudicially leading. The court should:

A. Sustain the objection because the question is clearly leading on direct examination regarding a critical issue in the case
B. Overrule the objection because the question is not sufficiently leading to be objectionable
C. Overrule the objection because the court has discretion to permit leading questions where it is necessary to develop testimony regarding embarrassing information that the W is reluctant to discuss but is necessary to develop the W’s necessary testimony
D. Sustain the objection because leading questions are never allowed on the material issues of the case

(US v. Grssrope)

Answer 18

C

• if you need to lead the court will let you lead
• here, we had to lead because W didn’t want to talk about the graphic details of the rape, which you might need to do to establish the statutory elements

Question 19

In an employment discrimination case against a municipality based upon allegations that the mayor acted with political animus, the judge, over D’s objection, interrupts the P’s cross examination of the D mayor and conducts his own cross examination using leading and argumentative questions. The D on appeal objects on the basis of Rule 605 and an abuse of Rule 614(b). The court on appeal should:

A. Affirm because the judge has a right provided by Rule 614(b) to ask questions of any witness
B. Affirm unless the court on appeal determines that the court’s cross examination constitutes “serious prejudice” by becoming adversarial
C. Reverse because a judge cannot cross examine a party using leading and argumentative questions as a matter of law
D. Reverse because a judge is incompetent to testify under Rule 605

Answer 19

B

-605: if they go to far and become adversarial, they will be testifying through their questions and the judge can’t testify or give facts

Question 20

In a suppression hearing, the court interrupts defense counsel and states “you do not have to provide testimony of the speed limits and the location of the stop signs on that highway. I know it well and you are simply wasting time providing testimony on those issues” If defense counsel objects on appeal that the judge violated Rule 605 by relying on his own personal knowledge to determine relevant facts in the case, the court should

A. Overrule the objection because the court can take judicial notice of generally known facts
B. Sustain the objection because the court cannot testify under Rule 605
C. Overrule the objection because the rules of evidence do not apply in suppression hearings
D. Sustain the objection as an improper opinion under Rule 701

Answer 20

B