CHAP. 7 : DIRECT AND CROSS REVISITED Prof. JANICKE 2016

Chap. 7 -- More On Direct and Cross 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 – ANY RELEVANT SUBJECT TEX. R. 611(b) 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross LEADING ON DIRECT ALLOWED SOMETIMES – TIMID WITNESS MOMENTARY MEMORY LAPSE ADVERSE WITNESS (ASSOCIATED WITH OTHER SIDE) 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross ALSO ALLOWED ON “PRELIMINARY MATTERS” BUT YOU HAVE TO KNOW THE LOCAL PRACTICE ON WHAT IS PRELIMINARY STRICT RULE: ONLY NAME, ADDRESS, OCCUPATION, AND PLACEMENT AT THE SCENE ARE PRELIMINARY 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross 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 2016 Chap. 7 -- More On Direct and Cross

MEMORY REFRESHING IS ALLOWED IN LIEU OF LEADING, ANY REASONABLE SILENT MEMORY REFRESHMENT TECHNIQUE IS OK LOOKING AT A REPORT CHECKING A BOOK REVIEWING NOTES THESE ARE NOT PUTTING THE DOCUMENTS INTO EVIDENCE! 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross THE WITNESS MUST THEN TESTIFY FROM HIS REFRESHED MEMORY OTHER SIDE IS ALLOWED TO SEE THE REFRESHMENT MATERIAL 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross LEADING ON CROSS BROADLY ALLOWED EXCEPTION: YOUR OWN CLIENT HERE THE RULES ARE REVERSED; ADVERSARY LEADING ON DIRECT IS OK, BUT YOU CAN’T LEAD ON CROSS 2016 Chap. 7 -- More On Direct and Cross

WITNESS PREP. MATERIAL: FEDERAL RULE 612 USED WHILE ON THE STAND: ADVERSE PARTY HAS RIGHT TO SEE IT, AND TO INTRODUCE PARTS PERTINENT TO TESTIMONY USED BEFORE TRIAL: FED. RULE: MAY SEEK AN ORDER TO SEE IT ROUTINELY GRANTED TODAY 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross TEXAS RULE 612 USED WHILE ON THE STAND: ADVERSARY HAS RIGHT TO INSPECT AND TO INTRODUCE PARTS PERTINENT TO TESTIMONY VIEWED PRE-TRIAL: CRIMINAL CASES: ABSOLUTE RIGHT TO SEE CIVIL CASES: NEED ORDER, BUT EASY TO GET IN PRACTICE 2016 Chap. 7 -- More On Direct and Cross

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] 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross PROBLEMS/CASES Baker James Julian 2016 Chap. 7 -- More On Direct and Cross

CROSS-EXAM IS AN IMPORTANT RIGHT IF WITNESS FLEES AFTER DIRECT EXAM, OR REFUSES TO COMPLETE CROSS, THE DIRECT WILL BE STRICKEN ON MOTION 2016 Chap. 7 -- More On Direct and Cross

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 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross SOME WITNESSES ARE EXEMPTED FROM “THE RULE,” 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 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross ADDITIONAL PERSONS MAY BE EXEMPTED BY STATUTE THERE ARE SUCH STATUTES, FEDERAL AND TEXAS >>> 2016 Chap. 7 -- More On Direct and Cross

STATUTORY EXEMPTIONS FROM “THE RULE” FEDERAL: VICTIMS’ RIGHTS ACT 18 USC 3771 [in packet] VICTIM IS NORMALLY EXEMPT FROM THE RULE UNLESS JUDGE FINDS LIKELY ALTERATION OF VICTIM’S TESTIMONY ALSO RELATIVES OF AN UNDER-18 OR DECEASED VICTIM 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross TEXAS “THE RULE” [614] EXEMPTS VICTIMS IN CRIMINAL CASES, UNLESS JUDGE FINDS PRESENCE WOULD MATERIALLY AFFECT THEIR TESTIMONY >>> 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross TEXAS CODE OF CRIMINAL PROCEDURE ART. 36.03 EXPANDS THE EXEMPTIONS: EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM; EXEMPTS GUARDIAN OF LIVING VICTIM [PARENTS NOT MENTIONED ??] 2016 Chap. 7 -- More On Direct and Cross

DISCRETIONARY TIGHTENING 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 2016 Chap. 7 -- More On Direct and Cross

TEXAS STATUTORY TIGHTENING OF THE RULE TEXAS CRIMINAL CASES: COURT MUST INSTRUCT WITNESSES RE. WHO THEY CAN SPEAK WITH ABOUT THE CASE DURING TRIAL, AND WHO THEY CANNOT SPEAK WITH [TEX. CODE CRIM. PROC. ART. 36.03(e)] 2016 Chap. 7 -- More On Direct and Cross

FURTHER DISCRETIONARY TIGHTENING OF “THE RULE” READING TRANSCRIPT OF OTHER WIT. TESTIMONY FORBIDDEN BY COURT ORDER IN SOME JURISDICTIONS; NOT IN OTHERS PENALTY FOR BREACH: DISCRETIONARY – CAN STRIKE THE OFFENDING WITNESS’S TESTIMONY 2016 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross FILM FILM CLIP, A PLACE IN THE SUN 2016 Chap. 7 -- More On Direct and Cross