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Chapter 9- Exam of Witnesses
Building Up Your Witnesses and Attacking the Other Side’s


• Getting Started
• Control of the Exam
• Building your own case: Direct Exam
• Attacking the other side’s witnesses: Cross Exam
• Impeaching with admissions and confessions
• Impeaching one’s own witnesses
• Further exam: Redirect and Recross

Getting Started
• Every witness must take an oath or affirmation (Rule 603)
    – No set wording but must “awaken the witness’s conscience” and impress on them the duty to tell the truth.
    – Failure to object is a waiver.
• Exclusionary Order must be ordered upon request. (Rule 615)
    – Exceptions
        • Parties
        • Support persons and investigators

Control of the Exam
• Judge may exercise reasonable control over the mode and order of interrogation in order to:
    – Insure questioning is directed to learning the truth
    – Avoid needless consumption of time
    – Protect the witnesses harassment or embarassment

Building your own case: Direct Exam
• Rule #1- Witnesses must have personal knowledge of the subject on which they are testifying. (Rule 602)
• Foundation: must show that the witness had the opportunity to see or hear the event.
• Rule #2- Leading questions are not allowed (Rule 611)
     • 5 exceptions:
        – Introductory matters
        – Hostile or uncooperative witness
        – Minor uncontested corrections
        – “Special” witnesses (kids, DD adults)
        – Experts

Pr esent memory revived. (Rule 612)
(Furgettin’ aint no big thang.)
• Witness may refer to written report or other item during testimony to refresh memory.
• Foundation:
    – Difficulty remembering
    – Report made at or near the time of the events
    – Other side has had a chance to review the report
• Witness’s recollection comes into evidence, not the contents of the report

Past Recollection Recorded (Rule 803)
Putting part of the report directly into evidence
• Excerpt of report may be read to jury
• Foundation:
    – After reviewing the report, witness still does not have complete recall
    – Report made at or near the time of the events
• Relevant parts only, not entire report, are given to jury.

Attacking the other side’s witnesses: Cross Exam
• Fundamental right guaranteed by the 6th Amendment
• Limited in scope to:
    – Subjects covered on direct exam
    – Credibility of witnesses
    – Other matters with the express permission of the Court
• Five ways of impeaching opposing witnesses
    – Bias or Prejudice
    – Poor character for honesty or truthfulness
    – Prior criminal conviction
    – Prior inconsistent statement
    – Limitation of the ability to see or recollect

1. Bias or Prejudice
    • Witness is or will get something in return for testifying
        – Money
        – Reduction of charges or immunity
        – Other interest in the outcome
    • Witness is not independent
        – Family member or close friend
        – Gang buddy

2. Character for Honesty or Truthfulness
    • Either side may put on evidence of a witness’s negative reputation for veracity
        – Evidence in support is limited to opinion, not specific instances
    • Good character evidence may not be put on until the witness’s character has first been attacked
        – Exception: if the witness is the defendant, he may always put on good character witnesses.
        (Rule 404, remember?)

3. Prior Criminal Convictions (Rule 609)
    • Any felony (Fed)
        – Ca: must involve “moral turpitude”
    • A misdemeanor which directly involves dishonesty or false statements (theft, etc.)
    • Foundation:
        – Not older than 10 years since conviction or release
        – Conviction is complete (not on appeal)
        – If the witness is the defendant, the court must weigh the probative value against the prejudicial effect
    • The more similar the prior to the charged offense, the less likely the prior will come in
     • Questioner may not go into facts of the prior
        – May only ask about
            • Offense
            • Date
            • Place of conviction
            • Felony or misdemeanor

4. Prior Inconsistent Statements (Rule 613)
    • Opposing attorney must be provided with a copy
    • Witness need not be provided with a copy
    • Witness must be given an opportunity to explain or deny
        - If not asked about it while on the stand, witness must be given a chance to be called back later
    • May a prior statement be considered as proof of the facts in the earlier statement?
        – “Generally” no, but in Ca and Fed, yes.

5. Ability to perceive or recollect
    • The witness’s own limitations
        – Eye glasses, hearing aid, etc.
    • Induced impairments on physical abilities
        – Drugs or alcohol
    • External impairments beyond control
        – Distance or lighting
        – Weather
    • Memory of details

Impeaching with Admissions and Confessions
Miranda Rule
    – A statement obtained in violation of Miranda is inadmissible and may not be used
Harris exception to Miranda Rule
    – If defendant testifies inconsistent with prior unmirandized statement, it may come in as impeachment
Mincey exception to Harris exception
    – If the Miranda violation is more than just technical and the unmirandized statement is not sufficiently reliable (e.g. coerced), it can not be     used even for impeachment.

Impeaching One’s Own Witness
• May an attorney impeach a witness they have called?
    – Old common law: No, unless you showed surprise, prejudice, or adverse interest.
    – Modern rule: Yes, no showing required
• Any cross exam techniques may be used, but most common are:
    – prior inconsistent statements
    – Leading questions

Further Exam: ReDirect and ReCross
• ReDirect is the opportunity for "damage control"
    – “Rehabilitating” witness
    – Limited to those matters raised in the cross exam
• Good character witnesses
• Prior Consistent statements

Further Exam: ReDirect and ReCross
• ReCross is the opportunity to undo damage control
    – Limited to matters addressed on redirect