Examination of Ws & Refreshment

Question 1

Mode and Order of Examining Ws

Answer 1

The court should exercise reasonable control over the mode and the order of examining Ws and presenting evidence so as to:

• make procedures effective for determining truth
• avoid wasting time
• protect Ws from harassment or undue embarassment

Question 2

Scope of Cross-Examination

Answer 2

Cross should not go beyond the subject matter of direct examination. But remember that credibility is always within the scope.

Question 3

Leading Qs

Answer 3

Leading Qs should not be used on direct examination except as necessary to develop the Ws testimony. But the court should allow leading Qs:

• on cross-examination and
• when a party calls a hostile W, an adverse party, or a W identified with an adverse party
• Circumstances might also be permissible on direct to:
• establish preliminary background info about a W
• to jog a Ws memory
• to lay a foundation, or to facilitate a young or timid W.

Question 4

Refreshing Recollection

Answer 4

• On direct, the examiner may jog the memory of W who has some knowledge of the purported testimony, but whose memory is incomplete, upon laying a proper foundation.
• After the memory has been refreshed, the W must testify without having the refreshing evidence present.

Question 5

When a Writing is Used to Refresh Recollection (FRE 612b)

Answer 5

Unless otherwise provided by law in a criminal case an adverse party is entitled to:

• Have the writing produced at the hearing
• Inspect it
• Cross-examine the W about it
• Introduce into evidence any portion that relates to the Ws testimony (opens the door).

Question 6

Introducing Another Portion of a Writing Used to Refresh Recollection

Answer 6

• If producing party claims that the writing includes unrelated matter, the court should examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party.
• But any portion deleted over objection must be preserved for the record.

Question 7

If a Writing Used to Refresh Recollection is Not Produced

Answer 7

If the P does not comply with a court order in a criminal case, the court must strike the Ws testimony or, if justice so requires, declare a mistrial.

Question 8

When Privileged Material is Used to Refresh

Answer 8

Most courts hold that a waiver has occurred and allow inspection by the adverse party.

Question 9

Examining a W With His Prior Statement

Answer 9

When examining a W about the Ws prior statement, a party need not show it or disclose its contents to the W. But upon request, the party must show it to opposing counsel.

Question 10

Court’s Calling or Examining of Ws

Answer 10

• The court may call a W on its own or at a party’s request (each party is entitled to cross-examine the W).
• The court may examine a W regardless of who calls the W.