Witnesses - Examination Flashcards
A narrative question is impermissible because
it is overly broad, and simply invites violations of the rules of evidence. Breaking testimony up ensures evidentiary rules are followed.
Leading questions are generally impermissible EXCEPT when
1) On cross-examination;
2) Dealing with preliminary/mundane questions;
3) Having difficulty eliciting testimony;
4) Dealing with a truly hostile witness or questioning an adverse party
Misleading/Compound/Argumentative questions are impermissible because
they assume as true something in controversy, and are prejudicial as a result.
The two situations in which a writing may be employed during a witness’s testimony are:
Refreshing Recollection and Recorded Recollection
Refreshing Recollection is when
a witness’s memory fails, and anything is used to jog the witness memory.
The only foundation needed to trigger the Refreshing Recollection process is for
the witness says something to the effect of “I don’t remember.”
What can be used to Refresh the Witness Recollection?
ANYTHING. A bowl of pasta, even!
Can a document used to refresh recollection be objected to under a hearsay argument?
No! The item used to refresh the witness recollection isn’t evidence, it is simply an aid to help the witness with their testimony, which IS the evidence.
Is the article used to refresh recollection put into evidence?
Not unless opposing counsel requests that it be introduced into evidence after having a chance to investigate.
What is Recorded Recollection?
When a witness is unable to remember specific or exhaustive details, the witness’s own writing may be admitted as evidence in place of testimony.
The Foundation for Recorded Recollection requires:
1) At one time the witness had personal knowledge;
2) The writing was made by, at the direction of, or adopted by the witness;
3) The writing must have been timely made by the witness;
4) The accuracy/reliability of the writing must be verified by the witness;
5) It must actually be necessary to use the writing.
How is the writing used in Recorded Recollection?
It is admitted into evidence by being read to the jury, but they do not get to see the writing.
Is Recorded Recollection Hearsay?
No, it is an exception to hearsay.
