Testimonial Evidence: Form of Examination of Witnesses Flashcards Preview

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Flashcards in Testimonial Evidence: Form of Examination of Witnesses Deck (9)
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1
Q

What is the general rule re: judge’s ability to control examination of witnesses?

A

Judge may exercise REASONABLE CONTROL over examination of witnesses to:

  1. aid the ascertainment of truth;
  2. avoid wasting time; AND
  3. protect witnesses from harassment
2
Q

What is the rule re: leading questions?

A

“Leading questions” - questions that suggest the answer desired

Generally improper –> on direct (but see exceptions below)

OK –>

  1. Cross-examination;
  2. To elicit INTRODUCTORY matter;
  3. when witness needs AID to respond due to memory, immaturity, or physical or mental weakness;
  4. when witness is HOSTILE
3
Q

What types of questions are improper (6) ?

A
  1. misleading
  2. compound
  3. cumulative
  4. unduly harassing or embarrassing
  5. call for a narrative answer or speculation
  6. assume facts not in evidence
4
Q

What is the rule re: answers that do not answer the question asked?

A
  • may be stricken as non-responsive
5
Q

May witness read her testimony from a prepared memoranda?

A

No

6
Q

In general, what are the two situations in which a memoranda may be used?

A
  1. Refreshing present recollection; and

2. Past recollection recorded

7
Q

What is the rule re: “refreshing present recollection”?

A

A witness may use a WRITING or THING for the purpose of refreshing her present recollection

SHE MAY NOT –> read from it while testifying bc it is not authenticated and not in evidence. Thus, it also doesn’t implicate hearsay rules

8
Q

What is adverse party’s right when other party uses a writing or thing to refresh present recollection?

What is the CA distinction?

A

If witness uses writing to refresh memory WHILE ON THE STAND:

  1. adverse party is entitled to have writing produced at trial;
  2. cross-examine on it
  3. introduce portions relating to witness’s testimony into evidence

If memory is refreshed BEFORE taking stand –> adverse party is entitled to production and inspection ONLY If court decides that JUSTICE REQUIRES IT
__________________________

CA DISTINCTION –>

  • does not matter WHEN refreshing is done.
  • if opponent asks for the writing to be produced, the proponent MUST produce it (unless she can’t obtain it by subpoena or other means)
  • If it is not produced, any testimony from refreshed memory MUST be stricken
9
Q

What is the rule re: “past recollection recorded” (5)?

A

If witness states that she has insufficient recollection of an event to testify fully and accurately, even after consulting a writing given to her on the stand, the WRITING ITSELF may be READ INTO EVIDENCE IF there is foundation that:

  1. the witness at one time has PERSONAL KNOWLEDGE of the facts in the writing;
  2. the writing was made BY THE WITNESS, or under her direction, or ADOPTED by the witness;
  3. the writing was TIMELY MADE when matter was fresh in witness’s mind;
  4. the writing ACCURATELY REFLECTS witness’s knowledge (witness testifies that it was accurate when made); AND
  5. the witness has INSUFFICIENT RECOLLECTION to testify fully and accurately

NOTE –> although writing may be READ INTO EVIDENCE, and HEARD BY THE JURY, it cannot be entered into evidence as an exhibit UNLESS offered by the adverse party