1. CHAP. 7 : DIRECT AND CROSS REVISITED P. JANICKE 2012

2. Chap. 7 -- More On Direct and Cross2 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 TEX. R. 611(b)

3. 2012Chap. 7 -- More On Direct and Cross3 LEADING ON DIRECT ALLOWED SOMETIMES – –TIMID WITNESS –MOMENTARY MEMORY LAPSE –ADVERSE WITNESS (ASSOCIATED WITH OTHER SIDE)

4. 2012Chap. 7 -- More On Direct and Cross4 ALSO ALLOWED ON “PRELIMINARY MATTERS” BUT YOU HAVE TO KNOW THE LOCAL PRACTICE STRICT RULE: ONLY NAME, ADDRESS, OCCUPATION, AND PLACEMENT AT THE SCENE ARE PRELIMINARY

5. 2012Chap. 7 -- More On Direct and Cross5 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

6. 2012Chap. 7 -- More On Direct and Cross6 MEMORY REFRESHING IS ALLOWED IN LIEU OF LEADING, ANY REASONABLE MEMORY REFRESHMENT TECHNIQUE IS OK –LOOKING AT A REPORT –CHECKING A BOOK –REVIEWING NOTES THESE ARE NOT PUTTING THE DOCUMENTS INTO EVIDENCE!

7. 2012Chap. 7 -- More On Direct and Cross7 OTHER SIDE IS ALLOWED TO SEE THE REFRESHMENT MATERIAL

8. 2012Chap. 7 -- More On Direct and Cross8 LEADING ON CROSS BROADLY ALLOWED EXCEPTION: YOUR OWN CLIENT

9. 2012Chap. 7 -- More On Direct and Cross9 WITNESS PREP. MATERIAL RULE 612 ADVERSE PARTY HAS RIGHT TO SEE IT IF USED WHILE ON THE STAND FED. RULE: MAY GET ORDER TO SEE IT IF USED BEFORE TRIAL –ROUTINELY GRANTED TODAY

10. 2012Chap. 7 -- More On Direct and Cross10 TEXAS RULE 612 USED WHILE ON THE STAND: ADVERSARY HAS RIGHT TO INSPECT AND TO INTRODUCE PARTS PERTINENT TO TESTIMONY RE. MATERIAL VIEWED PRE-TRIAL: –CRIMINAL CASES: SAME AS USE ON THE STAND –CIVIL CASES: NEED ORDER, BUT EASY TO GET IN PRACTICE

11. 2012Chap. 7 -- More On Direct and Cross11 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]

12. PROBLEMS/CASES Baker James Julian 2012Chap. 7 -- More On Direct and Cross12

13. 2012Chap. 7 -- More On Direct and Cross13 CROSS-EXAM IS AN IMPORTANT RIGHT IF WITNESS FLEES, OR REFUSES TO COMPLETE CROSS, THE DIRECT WILL BE STRICKEN ON MOTION

14. 2012Chap. 7 -- More On Direct and Cross14 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

15. 2012Chap. 7 -- More On Direct and Cross15 SOME WITNESSES ARE EXEMPT, 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

16. 2012Chap. 7 -- More On Direct and Cross16 PERSONS EXEMPTED BY STATUTE –THERE IS SUCH A STATUTE >>>

17. 2012Chap. 7 -- More On Direct and Cross17 STATUTORY EXEMPTIONS FROM “THE RULE” FEDERAL: VICTIMS’ RIGHTS ACT 18 USC 3771 –COURT HAS DISCRETION TO EXEMPT VICTIM FROM THE RULE –ALSO RELATIVES OF AN UNDER-18 OR DECEASED VICTIM

18. 2012Chap. 7 -- More On Direct and Cross18 TEXAS “THE RULE” [614] EXEMPTS VICTIMS IN CRIMINAL CASES, UNLESS JUDGE FINDS PRESENCE WOULD MATERIALLY AFFECT THEIR TESTIMONY >>>

19. 2012Chap. 7 -- More On Direct and Cross19 TEXAS: CODE OF CRIMINAL PROCEDURE ART. 36.03 –EXEMPTS VICTIMS, UNLESS THEIR PRESENCE WOULD MATERIALLY AFFECT THEIR TESTIMONY –ALSO EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM, AND A GUARDIAN [PARENT NOT MENTIONED]

20. PROBLEMS/CASES 7B 2012Chap. 7 -- More On Direct and Cross20

21. 2012Chap. 7 -- More On Direct and Cross21 DISCRETIONARY EXPANSION 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

22. 2012Chap. 7 -- More On Direct and Cross22 TEXAS STATUTORY EXPANSION OF THE RULE TEXAS CRIMINAL CASES: –COURT MUST INSTRUCT WITNESSES RE. WHOM THEY CAN TALK TO ABOUT THE CASE DURING TRIAL, AND WHO NOT TEX. CODE CRIM. PROC. ART. 36.03(e)

23. 2012Chap. 7 -- More On Direct and Cross23 READING TRANSCRIPT OF OTHER WIT.’S TESTIMONY FORBIDDEN BY COURT ORDER IN SOME JURISDICTIONS; NOT IN OTHERS, UNLESS COURT HAS SPECIFIED IN AN ORDER PENALTY FOR BREACH: –DISCRETIONARY – CAN STRIKE THE OFFENDING WITNESS’S TESTIMONY

24. FILM FILM CLIP, A PLACE IN THE SUN 2012Chap. 7 -- More On Direct and Cross24