Exploring Direct and Cross Examination Techniques in Legal Practices

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

2. 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) Chap. 7 -- More On Direct and Cross

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

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

5. 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 Chap. 7 -- More On Direct and Cross

6. 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 Chap. 7 -- 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! Chap. 7 -- More On Direct and Cross

8. THE WITNESS MUST THEN TESTIFY FROM HIS REFRESHED MEMORY • OTHER SIDE IS ALLOWED TO SEE THE REFRESHMENT MATERIAL Chap. 7 -- More On Direct and Cross

9. 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 Chap. 7 -- 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 Chap. 7 -- More On Direct and Cross

11. 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 Chap. 7 -- 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] Chap. 7 -- More On Direct and Cross

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

16. 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 Chap. 7 -- More On Direct and Cross

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

18. STATUTORY LOOSENING OF “THE RULE” • FEDERAL: VICTIMS’ RIGHTS ACT 18 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 Chap. 7 -- More On Direct and Cross

19. PARENTS OF A LIVING ADULT VICTIM: ARE UNDER THE RULE Chap. 7 -- More On Direct and Cross

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

21. TEXAS CODE OF CRIMINAL PROCEDURE ART. 36.03 : • ALSO EXEMPTS CLOSE RELATIVES OF DECEASED VICTIM; • ALSO EXEMPTS GUARDIAN OF LIVING VICTIM • LIVING COMPETENT VICTIM’S PARENTS APPARENTLY ARE UNDER THE RULE Chap. 7 -- 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 Chap. 7 -- 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. 36.03(e)] Chap. 7 -- 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 Chap. 7 -- More On Direct and Cross

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