Testimonial Evidence: Form of Examination of Witnesses

Question 1

What is the general rule re: judge’s ability to control examination of witnesses?

Answer 1

Judge may exercise REASONABLE CONTROL over examination of witnesses to:

1. aid the ascertainment of truth;
2. avoid wasting time; AND
3. protect witnesses from harassment

Question 2

What is the rule re: leading questions?

Answer 2

“Leading questions” - questions that suggest the answer desired

Generally improper –> on direct (but see exceptions below)

OK –>

1. Cross-examination;
2. To elicit INTRODUCTORY matter;
3. when witness needs AID to respond due to memory, immaturity, or physical or mental weakness;
4. when witness is HOSTILE

Question 3

What types of questions are improper (6) ?

Answer 3

1. misleading
2. compound
3. cumulative
4. unduly harassing or embarrassing
5. call for a narrative answer or speculation
6. assume facts not in evidence

Question 4

What is the rule re: answers that do not answer the question asked?

Answer 4

• may be stricken as non-responsive

Question 5

May witness read her testimony from a prepared memoranda?

Answer 5

No

Question 6

In general, what are the two situations in which a memoranda may be used?

Answer 6

1. Refreshing present recollection; and

2. Past recollection recorded

Question 7

What is the rule re: “refreshing present recollection”?

Answer 7

A witness may use a WRITING or THING for the purpose of refreshing her present recollection

SHE MAY NOT –> read from it while testifying bc it is not authenticated and not in evidence. Thus, it also doesn’t implicate hearsay rules

Question 8

What is adverse party’s right when other party uses a writing or thing to refresh present recollection?

What is the CA distinction?

Answer 8

If witness uses writing to refresh memory WHILE ON THE STAND:

1. adverse party is entitled to have writing produced at trial;
2. cross-examine on it
3. introduce portions relating to witness’s testimony into evidence

If memory is refreshed BEFORE taking stand –> adverse party is entitled to production and inspection ONLY If court decides that JUSTICE REQUIRES IT
__________________________

CA DISTINCTION –>

• does not matter WHEN refreshing is done.
• if opponent asks for the writing to be produced, the proponent MUST produce it (unless she can’t obtain it by subpoena or other means)
• If it is not produced, any testimony from refreshed memory MUST be stricken

Question 9

What is the rule re: “past recollection recorded” (5)?

Answer 9

If witness states that she has insufficient recollection of an event to testify fully and accurately, even after consulting a writing given to her on the stand, the WRITING ITSELF may be READ INTO EVIDENCE IF there is foundation that:

1. the witness at one time has PERSONAL KNOWLEDGE of the facts in the writing;
2. the writing was made BY THE WITNESS, or under her direction, or ADOPTED by the witness;
3. the writing was TIMELY MADE when matter was fresh in witness’s mind;
4. the writing ACCURATELY REFLECTS witness’s knowledge (witness testifies that it was accurate when made); AND
5. the witness has INSUFFICIENT RECOLLECTION to testify fully and accurately

NOTE –> although writing may be READ INTO EVIDENCE, and HEARD BY THE JURY, it cannot be entered into evidence as an exhibit UNLESS offered by the adverse party