Examination of Witnesses Flashcards
Who determines the mode and order of examination of witnesses (Rule 611)?
- The judge shall control the examination of witnesses and presentation of evidence to effectively ascertain the truth and prevent harassment of witnesses.
What are leading questions?
- Leading questions are questions that suggest an answer
- EXAMPLE: The car involved in the accident was red, correct?
Are leading questions allowed?
- Leading questions generally are NOT allowed on direct, though they are almost always allowed during cross-examination
Under what exceptions may leading questions be asked on direct examination?
- hostile witnesses;
- adverse witnesses;
- child witnesses;
- preliminary background information; and
- refreshing recollection of a witness.
When would a leading question not be allowed during cross-examination?
- Where the examiner and the witness are on the same side of the case, leading questions are generally NOT allowed.
- EXAMPLE: The plaintiff calls the defendant to testify as an adverse witness. Leading questions WOULD be allowed on direct. However, leading questions are NOT allowed on cross-examination where the defense attorney is questioning the defendant (attorney’s own client, as they are on the same side of the case).
How are questions asked during cross-examination limited in scope?
- The scope of cross-examination is limited to the scope of direct and matters affecting credibility (Rule 611(b)).
- EXAMPLE: On direct examination, the witness is asked what color the car was that the witness purchased from the defendant. On cross-examination, the witness is accused of rolling back the odometer on the car. While this question is beyond the scope of the car’s color, it is a matter that affects the witness’s credibility, and thus would be permitted.
Must a writing be authenticated to refresh a witness’s memory?
- Authentication of the writing used to refresh is not required.
Must the proponent use a piece of evidence to refresh the witness’s memory?
- No. In fact, the proponent may NOT introduce the writing into evidence.
If a writing is used to refresh a witness’s memory, could the hearsay rule or best evidence rule be used to exclude the writing?
- If a writing is used to refresh recollection, neither the hearsay rule nor the best evidence rule apply because the writing is not offered or admitted.
Once a proponent refreshes a witness’s memory, what is the opponent entitled to do?
- they may inspect the evidence;
- they may cross-examine with the evidence;
- they may show the writing to the jury for comparison (with witness’s testimony); and
- they may introduce relevant portions into evidence (to put the testimony in context; the doctrine of completeness).
Is an opponent allowed to inspect privileged material that was used to refresh?
- Where privileged material is used to refresh, the court will rule that a waiver has occurred and allow the adverse party to inspect the material.
- NOTE: Attorney-client or work-product privilege would then also be waived.
May the court call and examine witnesses sua sponte?
- The court (the judge) on its own motion may call witnesses, and all parties may examine any witness called by the court.
- The court may also interrogate/question any witness called by a party.
What does Rule 615 say about the sequestration of witnesses?
- At the request of a party or sua sponte, the court shall order witnesses excluded from the courtroom, so that they cannot hear testimony of other witnesses.
Why is the sequestration of witnesses required?
- Why? To preserve the integrity of the witness’s testimony and prevent fabrication or collusion.
What are some exceptions to the sequestration of witnesses?
- This rule does not authorize exclusion of:
o a party or party’s representatives;
o a person whose presence is essential (i.e., expert); or
o persons exempted by statute (victim of a crime).
