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

2. 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 More On Direct and Cross

3. Chap. 7 -- More On Direct and Cross
REALITY
COURTS USUALLY ALLOW EXPANDED CROSS
OTHERWISE, WITNESS NEEDS TO BE RECALLED; LENGTHENS THE TRIAL
2019
Chap More On Direct and Cross

4. Chap. 7 -- More On Direct and Cross
LEADING ON DIRECT
ALLOWED SOMETIMES –
TIMID WITNESS
MOMENTARY MEMORY LAPSE
ADVERSE WITNESS (ASSOCIATED WITH OTHER SIDE)
2019
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5. 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 More On Direct and Cross

6. 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
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Chap More On Direct and Cross

7. 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 More On Direct and Cross

8. 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 More On Direct and Cross

9. 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 More On Direct and Cross

10. 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 More On Direct and Cross

11. 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 More On Direct and Cross

12. 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
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13. Chap. 7 -- More On Direct and Cross
PROBLEMS/CASES
Baker
2019
Chap More On Direct and Cross

14. 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 More On Direct and Cross

15. 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 More On Direct and Cross

16. 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 More On Direct and Cross

17. Chap. 7 -- More On Direct and Cross
ADDITIONAL PERSONS MAY BE EXEMPTED BY STATUTE
THERE ARE SUCH STATUTES, FEDERAL AND TEXAS >>>
2019
Chap More On Direct and Cross

18. STATUTORY LOOSENING OF “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
2019
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19. Chap. 7 -- More On Direct and Cross
PARENTS OF A LIVING ADULT VICTIM: ARE UNDER THE RULE
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20. 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
>>>
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21. Chap. 7 -- More On Direct and Cross
TEXAS CODE OF CRIMINAL PROCEDURE ART :
ALSO EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM;
ALSO EXEMPTS GUARDIAN OF LIVING VICTIM
LIVING COMPETENT VICTIM’S PARENTS APPARENTLY ARE UNDER THE RULE
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Chap More On Direct and Cross

22. 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 More On Direct and Cross

23. 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)]
2019
Chap More On Direct and Cross

24. 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 More On Direct and Cross

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