1. CHAP. 7 : DIRECT AND CROSS REVISITED
Prof. JANICKE
2018

2. 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)
2018
Chap More On Direct and Cross

3. Chap. 7 -- More On Direct and Cross
LEADING ON DIRECT
ALLOWED SOMETIMES –
TIMID WITNESS
MOMENTARY MEMORY LAPSE
ADVERSE WITNESS (ASSOCIATED WITH OTHER SIDE)
2018
Chap More On Direct and Cross

4. 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
2018
Chap More On Direct and Cross

5. 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
2018
Chap More On Direct and Cross

6. 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!
2018
Chap More On Direct and Cross

7. 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
2018
Chap More On Direct and Cross

8. 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
2018
Chap More On Direct and Cross

9. 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
2018
Chap More On Direct and Cross

10. 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
2018
Chap More On Direct and Cross

11. 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]
2018
Chap More On Direct and Cross

12. Chap. 7 -- More On Direct and Cross
PROBLEMS/CASES
Baker
James Julian
2018
Chap More On Direct and Cross

13. CROSS-EXAM IS AN IMPORTANT RIGHT
IF WITNESS FLEES AFTER DIRECT EXAM, OR REFUSES TO COMPLETE CROSS, THE DIRECT WILL BE STRICKEN ON MOTION
2018
Chap More On Direct and Cross

14. 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
2018
Chap More On Direct and Cross

15. 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
2018
Chap More On Direct and Cross

16. Chap. 7 -- More On Direct and Cross
ADDITIONAL PERSONS MAY BE EXEMPTED BY STATUTE
THERE ARE SUCH STATUTES, FEDERAL AND TEXAS >>>
2018
Chap More On Direct and Cross

17. STATUTORY EXEMPTIONS FROM “THE RULE”
FEDERAL: VICTIMS’ RIGHTS ACT 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
2018
Chap More On Direct and Cross

18. 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
>>>
2018
Chap More On Direct and Cross

19. Chap. 7 -- More On Direct and Cross
TEXAS CODE OF CRIMINAL PROCEDURE ART EXPANDS THE EXEMPTIONS:
EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM;
EXEMPTS GUARDIAN OF LIVING VICTIM [PARENTS NOT MENTIONED ??]
2018
Chap More On Direct and Cross

20. 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
2018
Chap More On Direct and Cross

21. 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)]
2018
Chap More On Direct and Cross

22. 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
2018
Chap More On Direct and Cross

23. Chap. 7 -- More On Direct and Cross
FILM
FILM CLIP, A PLACE IN THE SUN
2018
Chap More On Direct and Cross