Chapter 1 Structure of the Trial & Presentation of Evidence Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Structure of the Trial Opening statements P presents witnesses/evidence during their case-in- chief, while D cross-examines D presents witnesses/evidence during their case-in- chief, while P cross-examines P’s rebuttal D’s rejoinder Closing arguments Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Rule 611 Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Exercise: Ronald Ronald, the defendant, testified on his own behalf at trial. The trial court judge skeptically questioned Ronald at length during Ronald’s direct examination, and, after the plaintiff completed his thorough cross-examination, the judge followed up on the plaintiff’s questions with more of his own. On redirect, the judge repeatedly interrupted again, challenging Ronald about his assertions and other defense witnesses’ testimony. May a trial judge ask the defendant questions during trial? If so, are there any restrictions? Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Rule 601 Rule 601. Competency to Testify in General 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. Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Rule 606 Rule 606. Juror (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form. Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Rule 602 Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Exercise: Chapman The plaintiff’s case rests primarily on the testimony of one eyewitness named Chapman. Prior to trial the defense learns that Chapman habitually uses narcotics and has been hospitalized twice previously for anxiety; the latter hospitalization having occurred just one month prior to the events about which Chapman was purporting to testify as an eyewitness. Defense counsel has concerns about Chapman’s ability to recall the specific events underlying the lawsuit. What should the defense counsel ask the judge to do prior to Chapman testifying at trial? Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Exercise: Juror K.C. Kerry, a member of the Ute Mountain Ute tribe, was charged with forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon. The case proceeded to trial and the jury found Kerry guilty. The day after the jury announced its verdict, one juror — “Juror K.C.” — approached defense counsel and claimed that the jury deliberation had been improperly influenced by racist claims about Native Americans. The foreman, according to Juror K.C., told the other jurors that he used to live near an Indian Reservation and that “when Indians get alcohol, they all get drunk, and that when they get drunk, they get violent.” Several other jurors then agreed with the foreman and discussed the need to “send a message back to the reservation.” Defense counsel immediately filed a post-trial motion seeking a new trial, arguing that several of the jurors obviously lied during voir dire when asked if they harbored any bias or prejudice toward Native Americans. Juror K.C. is willing to testify at this post-trial proceeding. The government opposes the motion on the ground that Kerry’s only evidence of misconduct (namely, Juror K.C.’s testimony) is inadmissible under the Rules of Evidence. Is the government correct? Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Rule 901(a) Rule 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.

The full set of PowerPoint slides is available upon adoption The full set of PowerPoint slides is available upon adoption. Email crutan@cap-press.com for more information.