Post on 24-Feb-2016
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CHAP. 7 :DIRECT AND CROSS
REVISITED
P. JANICKE2011
2011 Chap. 7 -- More On Direct and Cross
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SCOPE OF CROSS
• FED. RULE 611(b): GENERALLY LIMITED TO SCOPE OF DIRECT + ISSUES OF WIT. CREDIBILITY
• COURT CAN ALLOW WIDER SCOPE– OFTEN DOES, TO SAVE TIME OF
RECALLING THE WITNESS• TEXAS: NO LIMIT ON SCOPE OF
CROSS TEX. R. 611(b)
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LEADING ON DIRECT
• ALLOWED SOMETIMES – – TIMID WITNESS– MOMENTARY MEMORY LAPSE– ADVERSE WITNESS (ASSOCIATED
WITH OTHER SIDE)
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• ALSO ALLOWED ON “PRELIMINARY MATTERS”
• BUT YOU HAVE TO KNOW THE LOCAL PRACTICE
• STRICT RULE: ONLY NAME, ADDRESS, OCCUPATION, AND PLACEMENT AT THE SCENE ARE PRELIMINARY
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• IN HARRIS COUNTY STATE COURTS, ALL FOUNDATION QUESTIONS ARE REGARDED AS PRELIMINARY
• EXAMPLES :– AUTHENTICITY OF A DOCUMENT– FAMILIARITY WITH A PERSON’S
CHARACTER OR REPUTATION
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MEMORY REFRESHING IS ALLOWED
• IN LIEU OF LEADING, ANY REASONABLE MEMORY REFRESHMENT TECHNIQUE IS OK– LOOKING AT A REPORT– CHECKING A BOOK– REVIEWING NOTES
• THESE ARE NOT PUTTING THE DOCUMENTS INTO EVIDENCE!
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• OTHER SIDE IS ALLOWED TO SEE THE REFRESHMENT MATERIAL
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LEADING ON CROSS
• BROADLY ALLOWED
• EXCEPTION: YOUR OWN CLIENT
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WITNESS PREP. MATERIALRULE 612
• ADVERSE PARTY HAS RIGHT TO SEE IT IF USED WHILE ON THE STAND
• FED. RULE: MAY GET ORDER TO SEE IT IF USED BEFORE TRIAL– ROUTINELY GRANTED TODAY
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TEXAS RULE 612• USED WHILE ON THE STAND:
ADVERSARY HAS RIGHT TO INSPECT AND TO INTRODUCE PARTS PERTINENT TO TESTIMONY
• RE. MATERIAL VIEWED PRE-TRIAL:– CRIMINAL CASES: SAME AS USE ON
THE STAND– CIVIL CASES: NEED ORDER, BUT EASY
TO GET IN PRACTICE
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WORK-PRODUCT CONTENTION WILL NOT
OVERRIDE THE FOREGOING
• LAWYER-PREPARED MATERIALS SEEN BY WITNESS:– WILL HAVE TO BE HANDED OVER
– WORK-PRODUCT IS FLIMSY EVEN IF NOT SHOWN TO WITNESS! [EXPLAIN]
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CROSS-EXAM IS AN IMPORTANT RIGHT
• IF WITNESS FLEES, OR REFUSES TO COMPLETE CROSS, THE DIRECT WILL BE STRICKEN ON MOTION
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INVOKING “THE RULE”(FED. RULE 615/TEXAS RULE 614)
• RULE SEPARATING WITNESSES SO THEY CAN’T HEAR EACH OTHER’S TESTIMONY
• THE RULE IS MANDATORY ON REQUEST OF ANY PARTY
• CUSTOM IS TO MAKE THE REQUEST
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SOME WITNESSES ARE EXEMPT, i.e., CAN STAY IN
COURTROOM
• INDIVIDUAL PARTIES• ONE CORPORATE WITNESS CAN
STAY FOR EACH CORPORATE PARTY
• PERSONS SHOWN TO BE “NECESSARY” TO PRESENTATION OF THE CASE – USUALLY EXPERTS
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• PERSONS EXEMPTED BY STATUTE
– THERE IS SUCH A STATUTE >>>
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STATUTORY EXEMPTIONS FROM “THE RULE”
• FEDERAL: VICTIMS’ RIGHTS ACT 18 USC 3771
– COURT HAS DISCRETION TO EXEMPT VICTIM FROM THE RULE
– ALSO RELATIVES OF AN UNDER-18 OR DECEASED VICTIM
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TEXAS
• “THE RULE” [614] EXEMPTS VICTIMS IN CRIMINAL CASES, UNLESS JUDGE FINDS PRESENCE WOULD MATERIALLY AFFECT THEIR TESTIMONY
>>>
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• TEXAS: CODE OF CRIMINAL PROCEDURE ART. 36.03
– EXEMPTS VICTIMS, UNLESS THEIR PRESENCE WOULD MATERIALLY AFFECT THEIR TESTIMONY
– ALSO EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM, AND A GUARDIAN [PARENT NOT MENTIONED]
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DISCRETIONARY EXPANSION OF THE RULE
• PRETRIAL ORDER NOT TO DISCUSS EXPECTED TESTIMONY WITH OTHER WITNESSES – ALSO BINDS LAWYERS NOT TO INFORM RE.
WHAT OTHER WITNESSES SAY• NORMALLY ISSUED ONLY TO FACT
WITNESSES• COULD ALSO ISSUE TO EXPERTS
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TEXAS STATUTORY EXPANSION OF THE RULE
• TEXAS CRIMINAL CASES:– COURT MUST INSTRUCT WITNESSES
RE. WHOM THEY CAN TALK TO ABOUT THE CASE DURING TRIAL, AND WHO NOT TEX. CODE CRIM. PROC. ART. 36.03(e)
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READING TRANSCRIPT OF OTHER WIT.’S TESTIMONY
• FORBIDDEN BY COURT ORDER IN SOME JURISDICTIONS; NOT IN OTHERS, UNLESS COURT HAS SPECIFIED IN AN ORDER
• PENALTY FOR BREACH: – DISCRETIONARY – CAN STRIKE THE
OFFENDING WITNESS’S TESTIMONY