Leading not allowed on cross when exam is in form not fact cross of party by his own counsel E.g., FRE 106 Rule of Completeness – If a party introduces a adverse party can require writing or recording, introduction, of any other evidence that in fairness should be at that time, considered at the same time To apply, the portion of must be misleading the statement itself wrote letter describing theory of crash and indicating Beech Aircraft: Π decedent was tired and tried to cancel flight, and that the plane made evasive maneuvers during the flight lawyer asked only about the two indications, on could discuss Δ cross Π his theory of the letter under 106 for completeness FRE 615 Sequestering Witnesses – the court order witnesses excluded so they hear must At party’s request, can’t other witness testimony party who is a natural person, (b) officer/employee of a Can’t exclude (a) party who a natural person, (c) any person whose presence is essential to isn’t a claim/defense, (d) person authorized to be present by statute Policy: Discouraging fabrication, intimidation, avoiding W changing testimony to conform to others, privacy, distracting the jury FRE 614 Questioning by Judge – (a) Court can call/examine witnesses, both parties can cross (b) Court can examine any witness called (c) Party can object to court calling/questioning NOTE: Reversible error if judge reveals his views/opinion concern is opinion – towards witnesses, not towards attorneys question witness in critical capacity in a close case Tilghman – Can’t Questions by Jury Jurors ask questions orally Submit to judge, allow opportunity for can’t – objection, then judge/attorney can ask it Specific procedure depends on jurisdiction WITNESS COMPETENCE Analysis Witnesses are to testify (FRE 601) assumed competent Issues are most often about weight/credibility (for jury), not competence If they have of the facts they are testifying about (FRE 602) personal knowledge Assumes capacity to recall the facts; can testimony alone prove with W’s And they are (FRE 603) willing, and do, take an oath Understand duty to be the exact words are less truthful (“awaken conscience”) – important, but attempt to manipulate/circumvent the oath (1st Am.) (Ward) can’t Judge can allow limited questioning to determine competence (Allen J.) But hearing is not necessary in camera
Leading not allowed on cross when exam is in form not fact E.g., cross of party by his own counsel FRE 106 – Rule of Completeness If a party introduces a writing or recording, adverse party can require introduction, at that time, of any other evidence that in fairness should be considered at the same time To apply, the portion of the statement itself must be misleading Beech Aircraft: Π wrote letter describing theory of crash and indicating decedent was tired and tried to cancel flight, and that the plane made evasive maneuvers during the flight Δ lawyer asked only about the two indications, on cross Π could discuss his theory of the letter under 106 for completeness FRE 615 – Sequestering Witnesses At party’s request, the court must order witnesses excluded so they can’t hear other witness testimony Can’t exclude (a) party who is a natural person, (b) officer/employee of a party who isn’t a natural person, (c) any person whose presence is essential to a claim/defense, (d) person authorized to be present by statute Policy: Discouraging fabrication, intimidation, avoiding W changing testimony to conform to others, privacy, distracting the jury FRE 614 – Questioning by Judge (a) Court can call/examine witnesses, both parties can cross (b) Court can examine any witness called (c) Party can object to court calling/questioning NOTE: Reversible error if judge reveals his views/opinion – concern is opinion towards witnesses, not towards attorneys Tilghman – Can’t question witness in critical capacity in a close case Questions by Jury Jurors can’t ask questions orally – Submit to judge, allow opportunity for objection, then judge/attorney can ask it Specific procedure depends on jurisdiction WITNESS COMPETENCE Analysis Witnesses are assumed competent to testify (FRE 601) Issues are most often about weight/credibility (for jury), not competence If they have personal knowledge of the facts they are testifying about (FRE 602) Assumes capacity to recall the facts; can prove with W’s testimony alone And they are willing, and do, take an oath (FRE 603) Understand duty to be truthful (“awaken the conscience”) – exact words are less important, but can’t attempt to manipulate/circumvent the oath (1st Am.) (Ward) Judge can allow limited questioning to determine competence (Allen J.) But in camera hearing is not necessary
Evidence%20Murphy%20Fall%202013.docx