Chapter 7 - Direct and Cross Flashcards
R 611(b) - Scope of Cross Examination
Should not go beyond the subject matter of the direct examination and matters affecting the witness’ credibility. H O W E V E R the court may allow a wider scope of inquiry (and they usually do).
R 611(b) - TEXAS
NO LIMIT ON SCOPE OF CROSS - ANY RELEVANT SUBJECT
When can you lead on direct? (Four ways)
- Timid witness
- Adverse witness (associated with other side but your side is calling them or they’re just antagonistic)
- Momentary Memory Lapse
- Preliminary matters
What counts as preliminary matters
name, address, occupation, and placement at the scene
What counts as preliminary matters (Harris county)
Foundation questions are also regarded as preliminary
What other silent memory refreshment techniques are allowed?
LOOKING AT A REPORT
CHECKING A BOOK
REVIEWING NOTES
THESE ARE NOT PUTTING THE DOCUMENTS INTO EVIDENCE!
Witness must simply say that they remember and NOT talk about the documents themselves since they were not admitted into evidence
Leading on Cross - When is it allowed? Any exceptions?
Broadly allowed
Exception - YOUR client on the stand. If you are crossing YOUR client, then you can’t lead. Opposing counsel can lead on direct.
R 612 - Witness Preparation Material. Used on the stand vs used before trial
If used on the stand, the adverse party has a right to see it and to introduce parts pertinent to testimony.
If used before trial, the rule says that adverse side can seek an order to see it
General rule is that for memory refreshing, ANYTHING goes but you do need to hand it over.
Texas Rule 612
USED WHILE ON THE STAND: ADVERSARY HAS RIGHT TO INSPECT AND TO INTRODUCE PARTS PERTINENT TO TESTIMONY
VIEWED PRE-TRIAL:
CRIMINAL CASES: ABSOLUTE RIGHT TO SEE
CIVIL CASES: NEED ORDER, BUT EASY TO GET IN PRACTICE
In criminal cases, you don’t need the judge’s blessing to produce documents during pre-trial proceedings
Never show a non client witness anything that could be privileged. IF used on the stand, its hella gone.
Work-product contention will not override what?
Lawyer prepared materials seen by witness. This will have to be handed over if used under 612.
Open the door rule to 612
You can have some
things masked out—there’s no rule that an entire doc always have to be
offered (like 1 paragraph or 1 page/200)—but you open the door if you offer
than part into evidence! If you just offer to refresh, doesn’t open the door
unless judge says “justice requires’ it.
What happens if the witness flees after direct examination or refuses to complete cross, the direct will be _______
STRICKEN ON MOTION
R 615 INVOKING “the rule”
Witnesses cant be in the room when other witnesses are testifying - dont want them influence by what other witnesses say
Exceptions to R 615 (invoking the rule) (Three exceptions)
- a party who is an actual person > plaintiff v defendant > if plaintiff is a person and defendant is IBM > then plaintiff MUST stay in who is testifying
- what if its not an actual person? Officer or employees of a party that is not a person cannot be thrown out after being authorized as the party’s representative. Lawyer from IBM can designate ONE person who can be a witness and representative of IBM. EVERYONE ELSE who is expected to be a witness is KICKED OUT. But the representative STAYS.
- Person whose presence is ESSENTIAL. Usually means experts.
Federal Statutory exceptions to R 615 (invoking the rule)
Victim’s rights act.
Victims (who are going to be witnesses) is normally exempt from the rule - unless judge finds likely alteration of victim’s testimony
Also relatives of an under - 18 victim or deceased victim (who are going to testify)
