CHAP. 7 : DIRECT AND CROSS REVISITED

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

CHAP. 7 : DIRECT AND CROSS REVISITED

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