Witness Examination

Question 1

Direct examination

Answer 1

The questioner may not ask leading questions unless the witness is “hostile.” A leading question is one that is framed to suggest the desired answer.

Question 2

Cross examination

Answer 2

Leading questions are usually permitted, and cross examination is limited to the subject matter of the direct examination.

Question 3

Re-direct examination

Answer 3

is limited to the subject matter of the cross examination.

Question 4

Re-cross examination

Answer 4

is limited to the subject matter of the re-direct examination.

Question 5

Competency

Answer 5

A witness must have personal knowledge of the matter about which he is to testify, and must declare that he will testify truthfully.

Question 6

Role of the judge

Answer 6

1. The trial judge may call witnesses and may ask questions of any witness.
2. CEC: A judge presiding at a trial is incompetent to testify at that trial, provided a party objects (same for a juror).

Question 7

Objections to the form of the question (or answer)-NUCALF

Answer 7

1. Narrative
2. Unresponsive
3. Compound
4. Argumentative
5. Leading (on direct)
6. Facts: Assumes facts not in evidence

Question 8

Narrative

Answer 8

Questions calling for a narrative are too broad (e.g., “So, what happened?”).

Question 9

Unresponsive

Answer 9

The witness answer is unresponsive to the question. a. CEC: A motion to strike can be made by either party, not just the examining party.

Question 10

Compound

Answer 10

Two questions are contained in one question (e.g., “Did you beat your wife and steal your neighbor’s money?”).

Question 11

Argumentative

Answer 11

The question is unnecessarily combative (e.g., “Do you really expect the jury to believe this nonsense?”).

Question 12

Leading (on direct)

Answer 12

The question itself suggests the answer the questioner desires (e.g., “Isn’t it true that Ace’s has been fixing prices?”).

Question 13

Facts: Assumes facts not in evidence

Answer 13

Assumes facts not in evidence (e.g., “When did you make your will?” when there is no evidence the witness ever made a will).

Question 14

Present recollection refreshed

Answer 14

Present recollection refreshed is a technique that allows any item (photo, document, etc.) to be used to refresh a witness’s memory where the witness’s recollection is currently uncertain. Once shown the item, the witness must then testify from his refreshed memory.

Question 15

Additional Rules Present recollection refreshed

Answer 15

1. Not evidence: The item used to refresh is not considered evidence and may even be otherwise inadmissible evidence.
2. Right to inspect: The adversary has a right to inspect the item, cross examine, and introduce pertinent portions into evidence.
3. CEC: Whether the refreshing is done before or during trial by means of a document, the writing must be produced or testimony is stricken unless the document is unavailable.

Question 16

Lay opinion

Answer 16

Lay opinion is admissible if rationally based on the witness’s perceptions and is helpful to the trier of fact. These are not legal conclusions, but opinions (e.g., estimating driving speed, identity of a person, value of property, familiarity of handwriting, physical condition, etc.).
FRE only: Lay opinion may not be based on scientific or specialized knowledge.

Question 17

Expert opinion Requirements for an expert opinion to be admissible

Answer 17

1. Specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact;
2. The witness must be qualified as an expert by knowledge, skill, experience, training, or education;
3. The testimony must be based on sufficient facts or data;
4. The testimony must be the product of reliable principles and methods; and
5. The witness must have applied the principles reliably to the facts of the case.

Question 18

Basis for the expert’s opinion

Answer 18

Basis for the expert’s opinion may be based on:

1. The expert’s firsthand knowledge;
2. The expert’s observation of prior witnesses; or
3. A hypothetical question posed by counsel.

Question 19

Reliable principles and methods (FRE Daubert/ Kumho)

Answer 19

FRE: The Daubert/ Kumho standard requires:

a. Peer reviewed and published in scientific journals,
b. Tested and subject to retesting,
c. Low error rate, and
d. Reasonable level of acceptance.

Question 20

Reliable principles and methods (CEC The Kelly/ Frye )

Answer 20

CEC: The Kelly/ Frye standard requires that:

a. The proponent must prove that the underlying scientific theory and the instruments it uses,
b. It has been generally accepted as valid and reliable in the relevant scientific field.
c. Exception: The standard does not apply to medical and nonscientific testimony.

Question 21

Exclusion and Sequestration of Witnesses

Answer 21

Upon a party’s request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion. The judge, however, may not exclude:

1. A party or a designated officer or employee of a party;
2. A person whose presence is essential to the presentation of a party’s case; or
3. A person statutorily authorized to be present.