WITNESS EXAMINATIONS Flashcards
§ 760 - “Direct Examination”
“Direct examination” is the first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.
§ 761 - “Cross-Examination”
“Cross-examination” is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.
§ 762 - “Redirect Examination”
“Redirect examination” is an examination of a witness by the direct examiner subsequent to the cross-examination of the witness.
§ 763 - “Re-Cross Examination”
“Recross-examination” is an examination of a witness by a cross-examiner subsequent to a redirect examination of the witness.
§ 764 - “Leading Question”
A “leading question” is a question that suggests the desired answer to the witness.
§ 765 (a) - Court to Control of Interrogation
“The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for” ascertaining the truth and “to protect the witness from undue harassment or embarrassment.”
§ 765 (b) - Court to Control of Interrogation
“With a witness under the age of 14 or a dependent person with a substantial cognitive impairment, the court shall take special care to protect him from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. The court shall also take special care to ensure that questions are stated in a form which is appropriate to the age or cognitive level of the witness. The court may, in the interests of justice, on objection by a party, forbid the asking of a question which is in a form that is not reasonably likely to be understood by a person of the age or cognitive level of the witness.”
§ 766 - Responsive Answers
A witness must give responsive answers to questions, and answers that are not responsive shall be stricken on motion of any party.
§ 767 - Leading Questions
Generally, leading questions are only allowed on cross-examination; they are not permitted on direct examination. (Leading is permissible on direct with children and dependents in certain criminal cases.)
§ 768 - Writings
(a) In examining a witness concerning a writing, it is not necessary to show, read, or disclose to him any part of the writing.
(b) If a writing is shown to a witness, all parties must be given an opportunity to inspect it before any question concerning it may be asked of the witness.
§ 769 - Inconsistent Statement or Conduct
“In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct.”
§ 770 - Evidence of a Witnesses Inconsistent Statement
Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:
(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or
(b) The witness has not been excused from giving further testimony in the action.
§ 771 - Production of Writing Used to Refresh Memory
(a) If a witness uses a writing to refresh his memory before or during a hearing with respect to any matter about which he testifies, he must produce the writing at the hearing upon the request of an adverse party. If the writing is not produced, the witness’ testimony concerning the matter shall be stricken.
(b) If the writing is produced, the adverse party may inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.
(c) Production of the writing is excused, and the testimony of the witness shall not be stricken, if the writing:
(1) Is not in the possession or control of the witness or the party who produced the witness’ testimony; and
(2) Was not reasonably procurable through the use of the court’s process or other available means.
§ 772 - Order of Examination
(a) The examination of a witness shall proceed in the following phases: direct, cross, redirect, recross, and continuing thereafter by redirect and recross.
(b) Unless for good cause the court otherwise directs, each phase of the witness examination must be concluded before the next phase begins.
(c) The court may allow a party to interrupt his cross, redirect, or recross to examine the witness on a matter not within the scope of a previous examination of the witness.
§ 773 - Cross-Examination
(a) ”A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination . . . in such order as the court directs.”
(b) The cross-examination of a witness by any party whose interest is not adverse to the party calling him is subject to the same rules that are applicable to the direct examination.
