Putting a Witness on the Stand: Article VI

Question 1

To testify, a witness must:

Answer 1

1. Be competent (Rs. 601, 605, 606)
2. Have personal knowledge (R. 602)
3. Take an oath or affirmation (R. 603)
4. Have a qualified interpreter (if interpreter is necessary) (R. 604)

Question 2

Rule 601

Answer 2

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

+ Abandons common law rule prohibiting felons, atheists, and children from testifying.
+ Some states still impose age limits to govern whether children can testify.

Question 3

Rule 602

Answer 3

+ Witnesses must have personal knowledge
+ Direct, eyewitness knowledge = not required.
+ Information must be based on seeing, hearing, or otherwise sensing

Ask: What does this witness know?

Question 4

Competence and Personal Knowledge:
Four capacities to testify:

(if any one of these four is COMPLETELY lacking, a witness cannot testify in court.)

Answer 4

1. Narration
2. Understand importance of telling truth
3. Memory
4. Perception

Question 5

True or false:

Being deficient in one of the four capacities makes a witness ineligible to testify.

Answer 5

False. The capacity under consideration must be COMPLETELY lacking for the witness to be ineligible.

Law presumes that each witness possesses all 4 capacities.

Question 6

A robbery victim who suffers a stroke and therefore becomes unable to move or speak lacks the capacity of…

Answer 6

… narration.

Question 7

A witness who is a three year old child doesn’t understand what it means to tell the truth, so he…

Answer 7

… lacks the capacity to tell the truth.

Question 8

A witness who suffered a head injury and therefore can’t remember events lacks the capcity of…

Answer 8

… memory.

Question 9

A witness who was around the corner and didn’t see the events at issue lacks…

Answer 9

… the capacity of perception.

Question 10

Young v. XYZ Co.: Employment Discrimination:

Young sues boss for sex discrimination. W testifies that she frequently saw Young crying at her desk after meeting with their boss. Does W have the personal knowledge necessary to testify about Young crying?

Answer 10

Yes.

Question 11

Can a judge testify at trial?

Answer 11

No, a judge is not competent to testify as a witness at the trial. A party need not object to preserve the issue. (R. 605)

Question 12

Can a juror be called to testify before other members of the jury at the trial?

Answer 12

No. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

Question 13

D is on trial for distribution of cocaine. The marshal inadvertently allowed the juror to see D in handcuffs while being moved. D’s lawyer moved for mistrial. Does 606(a) allow attys to question juror in chambers about what juror saw?

Answer 13

Yes, as long as it’s not before other jurors at the trial, and as long as the other party has an opportunity to object outside the jury and the juror’s presence.

Question 14

Is an attorney representing a party at trial incompetent to testify in that trial?

Answer 14

No.

Question 15

FRE 601: State law determines competence in…

Answer 15

… civil cases, on elements for which state law provides rule of decision.

Question 16

(Rule 602: Personal Knowledge) + (Rule 603: Oath) =

Answer 16

Competence

Question 17

Examining Witnesses: Rules…

Answer 17

1. R. 611: Mode and order of examining witnesses and presenting evidence
2. R. 614: Court’s calling or examining a witness
3. R. 615: Excluding witnesses from court.

Question 18

Direct Examination

Answer 18

+ Introduce the witness to the jurors
+ Lay the foundation: Establish personal knowledge
+ Allow witness to tell her story

Question 19

During which situations are leading questions allowed in direct examination?

1. Never
2. When necessary to develop the witness’s testimony
3. For a hostile witness
4. In situations 2 and 3

Answer 19

4. In situations 2 (when necessary to develop the witness’s testimony) and 3 (for a hostile witness).

Question 20

In practice, when are leading questions allowed on direct examination?

Answer 20

Whenever the opponent doesn’t object.

Question 21

In practice, are leading questions usually bad strategy on direct?

Answer 21

Yes, leading questions are usually bad strategy on direct.

Question 22

Does clarifying = leading?

Answer 22

No.

Ex. of “clarifying” (not leading): Witness: Prof. Troccoli threw a piece of candy at a student.
Atty: Did you see him throw the candy?
Atty: Did the candy hit the student?
Atty: What happened after he threw the candy? Tell us what you saw.

Question 23

Cross examination is limited to…

Answer 23

… the subject of direct examination AND credibility.

Question 24

Goals of Cross-Examination:

Answer 24

1. Obtain useful details
2. Discredit the witness
3. Tell a different story
4. Do no harm

Question 25

Rule 614:

Answer 25

1. judge may call witnesses (rarely occurs); each party can cross-examine that witness.
2. Judge may question witnesses (often occurs)
3. Objections may wait until jury not present (because it might be unbecoming/indicate that they’re hiding something)

Question 26

Rule 615: Witnesses can be excluded (made to leave) the courtroom so that they can’t hear other witnesses’ testimony (at the party or the court’s request, the court may exclude them). But the following categories of persons cannot be excluded:

Answer 26

1. A party who is a natural person
2. Representatives of a corporate or organizational party
3. Witness essential for preparation
4. Person statutorily authorized to be present.

Question 27

Remedies for Violating Rule 615

Answer 27

1. Witness can be held in contempt
2. Opposing counsel can question the witness about the violation and make arguments about it to the jury.
3. Disallow the witness’s testimony.

Question 28

Rule 612(a): options are available to an adverse party when a witness uses a writing to refresh memory in these circumstances:

Answer 28

1. while testifying, or

2. before testifying, if the court decides that justice requires the party to have those options.

Question 29

Rule 612(b):Rights an adverse party has:

Answer 29

1. To examine the writing.
   + Judge may redact unrelated matter;
   + Deleted portion must be preserved.
2. To cross-examine the witness about the writing.

Question 30

Steps of Refreshing Recollection

Answer 30

1. Witness says she can’t recall.
2. Identify “memory jogger” and ask witness if that might refresh.
3. Show memory jogger to opposing counsel
4. Show memory jogger to witness
5. Take memory jogger away
6. Ask witness: “Did that refresh your memory?”
7. Ask witness to testify from memory.

Question 31

True or False: An attorney may refresh recollection only on direct examination.

Answer 31

False. An attorney may refresh recollection whenever the judge grants permission.

Question 32

True or False: Witnesses may refresh recollection from anything.

Answer 32

True. Anything.

Question 33

Who might introduce a writing used to refresh recollection?

Answer 33

An adverse party.

Question 34

The jury may use a writing introduced under 612…

Answer 34

To assess credibility

Question 35

When refreshment occurs before testifying, the adverse party may examine the materials . . .

Answer 35

. . . when justice requires.

Question 36

A classic example of a leading question is a statement followed by…

Answer 36

… a request for confirmation that the preceding statement is true.

Question 37

True or false: Any question that guides a witness’s answer is an improperly leading one.

Answer 37

False.
+ Think of questions as lying on a continuum, from completely open-ended & non-leading questions to completely closed-ended & leading questions.
+ Questions at the closed & leading end of the spectrum include those which:
* suggest a certain type of answer, or
* ask the witness to choose between different options.

Question 38

One an attorney placed specific ____ into the question, suggesting a particular _____ to the witness, the question may become a ______ one.

Answer 38

• facts
• answer
• leading

Question 39

To identify a leading question, always ask:

Answer 39

“In this context, does the question suggest a specific answer?”

Question 40

A closed question is one which…

Answer 40

… restricts the range of possible answers.

Question 41

A leading question is one which…

Answer 41

… suggests that a specific answer is correct (or at least expected).

Question 42

What are the 4 contexts in which a judge will most often allow attorneys to lead witnesses on direct examination?

Answer 42

1. To establish pedigree information.
2. To direct a witness’s attention to a relevant place and time.
3. To help a witness who is hesitant, confused, or has trouble recalling.
4. Hostile witnesses.

Question 43

What is a witness’s “pedigree?”

Answer 43

Uncontested points like educational background and occupation.

• Leading questions establish these points efficiently.

Question 44

Can a lawyer use a leading question to shit a witness’s attention to a new chapter of the testimony?

Answer 44

Yes. Leading questions are an effective and permissible way to shift the witness’s focus to a particular point in their life/the timeline of the case.

Question 45

A leading question can help get a flustered witness who is hesitant, confused, or has trouble recalling…

Answer 45

.. get back on track. Many such witnesses have trouble with the unfamiliar format of courtroom questioning.

Question 46

When the jury understands that a particular question is leading – that it suggests a particular answer to the witness – how does that affect the persuasive power of the testimony?

Answer 46

The persuasive power of the testimony will be greatly diminished.

Even though leading questions may be permissible in certain contexts, they are not always effective.

Question 47

Rule 611 explicitly recognizes that leading questions are _____ on direct examination when a party calls a witness who is likely to resist that party’s position.

A “______” witness is any witness who is evading questions or otherwise being uncooperative to such an extent that it is interfering with the eliciting of testimony.

Answer 47

• appropriate

* hostile

Question 48

Any objection to ___ _____ __ _ _______ is an objection based on Rule 611(a).

Answer 48

form of a question

• Rule 611(a) is the basis for the overwhelming majority of objections at trial, though nobody cites the actual rule as the basis.
  
  • Instead, they state the reason why the form is objectionable.
    + Ex. “Objection, compound question.”

Question 49

The two important ways in which cross-examination differs from direct examination:

Answer 49

1. Leading questions are allowed.
2. The cross-examiner may ask questions only about issues covered during the direct examination.
   - That is, the cross-examining attorney cannot ask questions that are “beyond the scope” of the direct examination.

Question 50

The primary purpose of cross examination is to…

Answer 50

… limit or discredit the story told by the witness during the direct examination.

Question 51

Rule 611(c) allows lawyers to use ______ questions because they are the most effective way to _______, as well as ________, by ________.

Answer 51

• leading
• test the bounds of the witness’s knowledge
• the witness’s credibility
• controlling the witness’s answers

Leading questions are the norm on cross.

Question 52

12 Most Common Rule 611 Objections

Answer 52

(in alphabetical order)

1. Argumentative: The attorney is drawing inferences or making conclusions that would be reserved for closing argument. These questions may also constitute harassing the witness, but not necessarily.
2. Asked and Answered: The attorney has already asked the question and the witness has already answered.
3. Assumes a Fact not in Evidence: Includes a factual assertion that is imbedded into the question.
4. Beyond the Scope: Cross-examination topic is beyond the scope of direct, OR redirect is beyond the scope of cross, OR re-cross is beyond the scope of redirect, OR subsequent rounds are broader than their preceding round.
5. Calls for Narrative: The question is too broad; the witness will tell a story instead of answering a specific question.
6. Calls for Speculation: The question asks the witness what other people may have been thinking or what might have been happening beyond the realm of the witness’s perception. This objection is based on both R. 602 (requiring witness to have personal knowledge) and R. 611 (because the form of the question calls for speculation). These questions can sometimes be rephrased so that it is clear that they are asking for information that the witness personally perceived.
7. Compound Question: The question tries to elicit more than one fact at a time.
8. Harassing/Badgering the Witness: Lawyer asks the same question repeatedly in different ways, insulting the witness for no purpose, or arguing with the witness about his answer.
9. Improper Characterization of Testimony/Misstates the Testimony; Attorney is pretending to repeat testimony back to the witness as the basis for the next question, but is altering the testimony. The attorney may use a more powerful word or change the facts themselves. This affects the witness’s testimony and can also make it difficult for the jury to remember the original testimony. The misstatement may occur immediately or much later in the trial, when it will be harder for the judge and opposing counsel to detect.
10. Leading Question: The attorney is asking a question that suggests a specific answer.
11. Non-Responsive Answer: This usually occurs on cross-examination. The attorney who asked the question can object to the witness’s answer as non-responsive, ask the judge to strike the answer, and force the witness to answer the question posed.
12. Vague: The question does not give enough detail to allow the witness to respond properly OR a term in the question has an unclear meaning.

Question 53

True or False:

For impeachment purposes, Rule 613(b) permits extrinsic evidence if it’s not ollateral, the witness is given an opportunity to explain or deny the statement, and the opposin party has an opportunity to examine the witness

Answer 53

True.