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
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