Questioning Flashcards
Who ultimately has discretion to control questioning?
The judge
When are leading questions allowed?
On cross-examination and sometimes on direct examination
What situations allow leading questions on direct examination?
- To elicit preliminary or introductory matter
- When W needs help because of memory, immaturity, physical or mental weakness
- When W is hostile
- When W is an adverse party or affiliated with an adverse party
What is the scope of cross-examination?
Limited to the scope of direct examination and matters that test credibility of the W
Can a W read their testimony from a prepared memo?
No it must be based on current recollection. But the memo or other record can be used in certain circumstances.
What is refreshing recollection?
A W can use any writing to refresh their present recollection.
Can a writing used for refreshing recollection be admitted into evidence?
No, it cannot be entered into evidence and cannot be read aloud
What can the adverse party do if a W is refreshing their recollection from a document on the stand?
They can have the writing produced at trial, cross-examine the W about the writing, and introduce portions of the writing relevant to W’s testimony into evidence.
What happens if a party fails to produce a writing that was used by W on the stand for refreshing recollection?
Judge can strike W’s testimony and declare a mistrial if Justice requires it
What is past recollection recorded?
Where W still has insufficient memory to testify fully and accurately, even after refreshing recollection, the record can be read into evidence if foundation is laid
What is the foundation needed to admit past recollection recorded into evidence?
- W has insufficient recollection
- W had personal knowledge when the record was made
- Record was made by the W or it was adopted by the W
- Record was made while matter was fresh in W’s mind
- Record reflects W’s knowledge and W vouches for the accuracy
