Rules Governing the Basic Structure for Examining Witnesses (FRE 611, 614, 615, 613) Flashcards
FRE 611(a): Why is it important for the court to exercise reasonable control over witness examination and presenting evidence?
The court should exercise REASONABLE CONTROL over the mode and order of examining witnesses and presenting evidence FOR THE PURPOSE OF: (1) making those procedures effective for determining the truth; (2) avoid wasting time; AND (3) protect witnesses from harassment or undue embarrassment.
FRE 611(c): When should the court allow attorneys to ask leading questions when examining a witness?
Ordinarily, the court should allow leading questions (1) on cross-examination AND (2) when a party calls a HOSTILE WITNESS, an ADVERSE PARTY, or a WITNESS IDENTIFIED W/ AN ADVERSE PARTY.
FRE 611(b): What’s the scope of cross-examination–what’s an attorney allowed to question on cross-examination?
(1) Attorneys CANNOT ask a witness about topics or incidents that were not addressed during Direct Examination; however, (2) the court MAY expand the scope of cross-examination into additional matters AS IF ON DIRECT EXAMINATION; AND (3) on cross-examination, attorneys are allowed to ask questions AFFECTING THE WITNESSES CREDIBILITY–i.e., “impeaching” the witness.
FRE 614: Are Judges allowed to call and examine a witness?
Yes, The court MAY call a witness on its own or at a party’s request. Each party is ENTITLED to CROSS-EXAMINE the court’s witness. ALSO, the court MAY examine a witness regardless of who calls the witness–i.e., whether it’s a party’s witness or the court’s witness. FINALLY, a PARTY MAY OBJECT to the court calling or examining a witness at the time that witness is called/examined by the court OR at the next opportunity when the JURY IS NOT PRESENT.
FRE 615: When can a judge exclude witnesses from the courtroom?
The court MUST exclude witnesses at a party’s request, so the excluded witness cannot hear other witnesses’ testimony. The court MAY exclude a witness on its own, too.
FRE 615: When is the court NOT ALLOWED to exclude a witness?
The court CANNOT exclude (1) a party(who’s an actual person) to the case on trial; (2) a party representative; (3) a person whose present a party shows to be ESSENTIAL (i.e., an Essential Person); NOR (4) a person authorized by statute to be present.
FRE 615: Who can exclude witnesses?
FRE 615 can be invoked by either party or by the judge. However, once either party REQUESTS to exclude a witness, the judge MUST exclude them from the courtroom.
FRE 612: What type of “WRITING” can be used to “refresh” a witness’s recollection?
ANY document can be used, as long as the witness states that it’ll help them remember the necessary information. Attorneys may also use audiotapes, photos, other media, or any object to refresh a witnesses recollection.
FRE 612: What TWO statements lay the foundation for a writing being used to “refresh” a witness’s recollection?
Whatever kind of writing is used to refresh the witness’s recollection, the witness must state (1) first that they don’t remember the answer to the question being asked; AND (2) that seeing the writing will “refresh their recollection.”
FRE 612(b): What FOUR rights are entitled to an adverse party when a witness’s memory is refreshed with a writing?
The adverse party is entitled to (1) have the writing produced at trial; (2) the right to inspect any writing the witness uses to refresh their memory; (3) the right to cross examine the witness on the writing ; AND (4) to introduce the relevant portions of the writing into evidence.
FRE 607: Who may impeach a witness?
ANY PARTY, including the party that called the witness, may IMPEACH the witness–i.e., ATTACK the witness’s credibility.
FRE 613(a): When examining the witness, MUST the attorney show or disclose their prior inconsistent statement(s) to that witness?
NO– the attorney DOES NOT NEED TO SHOW NOR DISCLOSE a witness’s prior statement to them during the examination of that witness–i.e., attorneys may surprise witnesses by asking them without warning about their prior inconsistent statements.
FRE 613(a): When MUST a party show or disclose the contents of the witness’s prior statement(s)?
A party MUST, ON REQUEST, SHOW or DISCLOSE the contents of the witness’s prior statement(s) to the OPPOSING PARTY’S ATTORNEY.
FRE 613(b): When is Extrinsic Evidence of a witness’s Prior Inconsistent Statement(s) admissible?
Extrinsic Evidence of a witness’s prior inconsistent statement on/regarding a non-collateral matter–i.e., a NON-COLLATERAL MATTER proves a fact in consequence OTHER THAN impeachment; If a piece of Evidence proves BOTH (1) a fact in consequence, AND (2) impeaches a witness, then it’s a NON-COLLATERAL MATTER–IS ADMISSIBLE if the witness (1) is allowed TO EXPLAIN OR DENY the statement AND an ADVERSE PARTY’S allowed the opportunity to EXAMINE THE WITNESS about it, OR (2) if JUSTICE SO REQUIRES.
FRE 613(b): Under what circumstances might “justice so require” admission of extrinsic evidence of a prior inconsistent statement?
The “justice so requires” exception is designed for the case where the witness becomes unavailable AFTER testifying but BEFORE the introduction of the prior inconsistent statement.
