CHAP. 7 : DIRECT AND CROSS REVISITED Prof. JANICKE 2015

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) Chap More On Direct and Cross2

2015 LEADING ON DIRECT ALLOWED SOMETIMES – –TIMID WITNESS –MOMENTARY MEMORY LAPSE –ADVERSE WITNESS (ASSOCIATED WITH OTHER SIDE) Chap More On Direct and Cross3

2015 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 Chap More On Direct and Cross4

2015 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 Chap More On Direct and Cross5

2015 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! Chap More On Direct and Cross6

2015 THE WITNESS MUST THEN TESTIFY FROM HIS REFRESHED MEMORY OTHER SIDE IS ALLOWED TO SEE THE REFRESHMENT MATERIAL Chap More On Direct and Cross7

2015 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 Chap More On Direct and Cross8

2015 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 Chap More On Direct and Cross9

2015 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 Chap More On Direct and Cross10

2015 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] Chap More On Direct and Cross11

PROBLEMS/CASES Baker James Julian 2015Chap More On Direct and Cross12

2015 CROSS-EXAM IS AN IMPORTANT RIGHT IF WITNESS FLEES AFTER DIRECT EXAM, OR REFUSES TO COMPLETE CROSS, THE DIRECT WILL BE STRICKEN ON MOTION Chap More On Direct and Cross13

2015 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 Chap More On Direct and Cross14

2015 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 Chap More On Direct and Cross15

2015 ADDITIONAL PERSONS MAY BE EXEMPTED BY STATUTE –THERE ARE SUCH STATUTES, FEDERAL AND TEXAS >>> Chap More On Direct and Cross16

2015 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 Chap More On Direct and Cross17

2015 TEXAS “THE RULE” [614] –EXEMPTS VICTIMS IN CRIMINAL CASES, UNLESS JUDGE FINDS PRESENCE WOULD MATERIALLY AFFECT THEIR TESTIMONY >>> Chap More On Direct and Cross18

2015 TEXAS CODE OF CRIMINAL PROCEDURE ART EXPANDS THE EXEMPTIONS: –EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM; –EXEMPTS GUARDIAN OF LIVING VICTIM [PARENTS NOT MENTIONED ??] Chap More On Direct and Cross19

2015 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 Chap More On Direct and Cross20

2015 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 (e)] Chap More On Direct and Cross21

2015 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 Chap More On Direct and Cross22

FILM FILM CLIP, A PLACE IN THE SUN 2015Chap More On Direct and Cross23