CHAP. 7 : DIRECT AND CROSS REVISITED

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CHAP. 7 : DIRECT AND CROSS REVISITED Prof. JANICKE 2019

Chap. 7 -- More On Direct and Cross SCOPE OF CROSS FED. RULE 611(b): CROSS IS 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) 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross REALITY COURTS USUALLY ALLOW EXPANDED CROSS OTHERWISE, WITNESS NEEDS TO BE RECALLED; LENGTHENS THE TRIAL 2019 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) 2019 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 2019 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 -- MUCH BROADER EXAMPLES : AUTHENTICITY OF A DOCUMENT AS A BUSINESS RECORD GOOD EYESIGHT 2019 Chap. 7 -- More On Direct and Cross

MEMORY REFRESHING IS ALLOWED PROMPTING BY LEADING (A LITTLE) IS OK ALSO OK: ANY REASONABLE SILENT MEMORY REFRESHMENT TECHNIQUE LOOKING AT A REPORT CHECKING A BOOK REVIEWING NOTES THESE ARE NOT PUTTING THE DOCUMENTS INTO EVIDENCE! 2019 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 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross LEADING ON CROSS BROADLY ALLOWED EXCEPTION: YOUR CLIENT ON THE STAND HERE THE RULES ARE REVERSED; ADVERSARY LEADING ON DIRECT IS OK, BUT YOU CAN’T LEAD ON CROSS 2019 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 2019 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 2019 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] 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross PROBLEMS/CASES Baker 2019 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 2019 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 THE NORM IS FOR SOMEONE TO MAKE THE REQUEST 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross LOOSENING: SOME FUTURE WITNESSES ARE EXEMPTED FROM “THE RULE,” i.e., CAN STAY IN COURTROOM INDIVIDUAL PARTIES e.g. JONES v. SMITH ONE CORPORATE WITNESS CAN STAY FOR EACH CORPORATE PARTY PERSONS SHOWN TO BE “NECESSARY” TO PRESENTATION OF THE CASE – USUALLY EXPERTS 2019 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 >>> 2019 Chap. 7 -- More On Direct and Cross

STATUTORY LOOSENING OF “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 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross PARENTS OF A LIVING ADULT VICTIM: ARE UNDER THE RULE 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross TEXAS “THE RULE” [Tex. R. 614] EXEMPTS VICTIMS IN CRIMINAL CASES, UNLESS JUDGE FINDS PRESENCE WOULD MATERIALLY AFFECT THEIR TESTIMONY >>> 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross TEXAS CODE OF CRIMINAL PROCEDURE ART. 36.03 : ALSO EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM; ALSO EXEMPTS GUARDIAN OF LIVING VICTIM LIVING COMPETENT VICTIM’S PARENTS APPARENTLY ARE UNDER THE RULE 2019 Chap. 7 -- More On Direct and Cross

TIGHTENING OF “THE RULE” IS DISCRETIONARY MAY ADD PRETRIAL ORDER NOT TO DISCUSS EXPECTED TESTIMONY WITH OTHER WITNESSES ALSO BIND LAWYERS NOT TO INFORM RE. WHAT OTHER WITNESSES SAY ORDER NORMALLY ISSUED ONLY TO FACT WITNESSES COULD ALSO ISSUE TO EXPERTS 2019 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)] 2019 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: IS DISCRETIONARY; CAN STRIKE THE OFFENDING WITNESS’S TESTIMONY 2019 Chap. 7 -- More On Direct and Cross

Chap. 7 -- More On Direct and Cross PROBLEM 7A – DAILY TRANSCRIPTS FILM CLIP, A PLACE IN THE SUN 2019 Chap. 7 -- More On Direct and Cross