Procedural Matters

Question 1

Mode and Order of Examining Witnesses

Answer 1

FRE 611 – The court controls the mode and order of the witnesses and the presentation of evidence. Cross examination cannot go beyond the scope of direct or witness credibility. Leading questions are allowed on cross and for hostile witnesses.

Question 2

Court’s Calling/Examining of Witnesses

Answer 2

FRE 614 – Court may call a witness on its own or at a party’s request. Each party is entitled to examine. Court may also examine any witness regardless of who calls them.

A party may object to a court’s calling at that time or at the next opportunity when the jury is not present.

Question 3

Excluding Witnesses

Answer 3

FRE 615 – At a party’s request or on its own, court must order witnesses excluded so that they cannot hear others testimony. But cannot exclude a party who is a natural person, officer, employee of a party, a person whose presence a party shows to be essential, or a person authorized by statute

Question 4

Refreshing Recollection

Answer 4

FRE 612– To refresh a witness’ recollection, the witness must say that they do not remember and that you will have to refresh their recollection. Show the writing to the witness and OPC and then hide it. Ask if it refreshed their recollection and ask an original question

Question 5

Best Evidence Rule (BER)

Answer 5

Applies when a party relies on a writing, recording, or photo to prove the content of that document. When a party attempts to prove that documents, it requires that that party introduce the original document

FRE 1002: Original document includes itself, counterpart with the same effect, or duplicate UNLESS there is a genuine question of authenticity or circumstances that make it unfair to admit

Question 6

BER Lost Documents

Answer 6

FRE 1004: If all originals were lost or destroyed, but not in bad faith, cannot be obtained through judicial process, the party was put on notice and failed to produce, or writing is not closely related to a controlling issue

Question 7

BER Public Records

Answer 7

FRE 1005: Public records are otherwise admissible, authentic or testified as to authentic

Question 8

BER Summaries

Answer 8

FRE 1006: Proponent may use a summary to prove the content of voluminous writings, recordings or photographs that cannot be conveniently examined in court. OGs or duplicates must be available if requested

Question 9

BER Opponent Admission

Answer 9

FRE 1007: Opponent of a document admits the contents by testimony, deposition, or written statement

Question 10

Rule of Completeness

Answer 10

FRE 106: If a party introduces all or part of the writing or recorded statement, an adverse party may require any or part of the document to be introduced that ought in fairness to be considered at the same time

Question 11

Preliminary Questions

Answer 11

FRE 104: Judge make a preliminary decision of law and fact (most) to see whether a witness is qualified, a privilege exists, or whether evidence is admissible.

When there is an issue where the relevance of a fact depends on using a preponderance of the evidence, judge asks would a reasonable jury be able to resolve the factual dispute in a manner that makes the evidence relevant

Question 12

Judicial Notice (JN)

Answer 12

FRE 201: A fact must not be subject to dispute because it is generally known in the jdx and readily determined. JN can be done sua sponte or when requested.

JN can occur at any state any a party may object and is entitled to be heard. Jury must accept in civil case but they may in criminal