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Review Questions

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  1. What are the essential qualities of a competent witness? (SS9.2)
  2. Rule 603 of the Federal Rules of Evidence requires that, before testifying, a witness shall be required to declare that he or she will testify truthfully by oath or affirmation. Does this mean that the witness must declare a belief in God? What is the purpose of the oath or affirmation? (SS9.3)
  3. What part does the judge play in guiding the testimony of a witness? Is the judge's authority unlimited? Explain. (SS9.4)
  4. What is meant by "separation of witnesses?" What is the rationale for separating witnesses? (SS9.5)
  5. Why are some potential witnesses excluded from the order sequestering witnesses during the testimony of other witnesses? (SS9.5)
  6. Are police officers who have investigated a case always excluded from the courtroom as other witnesses are? Why or why not? (SS9.5)
  7. What is meant by the term direct examination of witnesses? Which party conducts the direct examination? (SS9.6)
  8. Define the term leading question. What are the rules for using leading questions on direct examination? What factors are considered in determining whether a witness is hostile? (SS9.7)
  9. There are at least four exceptions to the rule prohibiting leading questions on direct examination. Name these exceptions and give the rationale for each. (SS9.7)
  10. Distinguish between the concepts of present memory revived and past recollection recorded. Why is past recollection recorded considered a hearsay exception? When is a witness authorized to use a writing to refresh memory? (SSSS9.8, 9.9)
  11. What is meant by "hypnotically refreshed testimony?" Does this technique qualify as present memory refreshed? May such testimony be admitted in a criminal case? If so, what are the requirements? (SS9.8)
  12. Name three reasons for authorizing leading questions when examining the opposing party's witness. (SS9.10)
  13. What are the general goals or purposes of conducting cross-examination of the adverse party's witnesses? (SS9.10)
  14. Why are leading questions allowed on cross-examination but only rarely permitted on direct examination? (SS9.10)
  15. After a witness has been cross-examined by opposing counsel, the party calling the witness may ask additional questions. What is this called? What is the scope of such an examination? (SS9.11)
  16. What is the general purpose of impeaching an adverse party's witness? (SS9.12)
  17. What is the general rule concerning the impeachment of a witness? Give three approved methods of impeaching a witness. (SS9.12)
  18. In what way does every witness place his or her credibility at issue by becoming a trial witness? (SS9.12)
  19. Under what conditions may a party impeach its own witness? May the government impeach its own witness? (SS9.13)
  20. List five ways of discrediting or impeaching a witness and explain the conditions under which they may be used. (SS9.14-9.18)
  21. May the credibility of a witness be attacked or supported by opinion or reputation evidence? If so, what are the limitations? (SS9.15)
  22. May the credibility of a witness be attacked by introducing evidence that that witness has committed a crime? If so, what types of crimes may be referred to and for what purpose? Does it make any difference if the witness was pardoned? (SS9.16)
  23. May the testimony of a witness be impeached by showing that the witness gave inconsistent declarations, statements, or testimony? If such testimony is allowed, what rights are afforded the opposing party? (SS9.17)
  24. In order to be used for impeachment purposes, must a confession have been offered freely and voluntarily by the witness in order to be admitted against him or her? (SS9.19)
  25. Confessions may sometimes be used for impeachment purposes even though they may not be used for the prosecutor's evidence in chief. What is the reason for allowing the use of a confession for impeachment even though the Miranda warnings were not given? (SS9.19)
  26. May the prosecution introduce evidence at the trial that indicates that the defendant failed to give the police exculpatory statements after being arrested? Explain. (SS9.19)
  27. What is meant by rehabilitation of a witness? (SS9.20)
  28. In United States v. Drummond, the trial court refused to require the government's case agent to testify first so that he would not have the benefit of hearing all the other government witnesses give their testimony before the case agent gave his evidence. Because witnesses can be excluded from the courtroom prior to giving testimony, could the trial judge have ordered the case agent for the prosecution to leave the courtroom? Why or why not? Why not require the case agent to testify first so that he could not tailor his testimony? Would such an order have been fair to both parties? (United States v. Drummond, Part II)
  29. In Isler v. United States, in which the defendant had been accused of murder, the trial court allowed the reading of a witness's grand jury statement to the jury. There had been a prior trial at which time the witnesses, who now are without any memory of the homicide, testified. The witnesses were not subject to cross-examination at the grand jury proceeding, but were cross-examined at the first trial. Did the present trial court correctly rule that past recollection recorded could be used at a subsequent trial over the defendant's objection that he was prevented from cross-examining the witnesses? How did the appellate court rule? Would you have decided the case any differently? Why? (Isler v. United States, Part II)
  30. In United States v. Spivey, the trial court refused to allow the defendant's counsel to conduct an unlimited Sixth Amendment cross-examination of prosecution witnesses, and one witness in particular. The defense counsel attempted to bring every possible impeachment-oriented factor of one of the government's witnesses out on cross-examination and was moving methodically and slowly. Finally, the trial judge would not permit any more cross-examination. Under the circumstances, did the defendant suffer from a failure of the judge to allow additional cross-examination? What were the judge's reasons for concluding cross-examination? Do the rules of evidence regulate cross-examination? Was Spivey's conviction reversed? (United States v. Spivey, Part II)
  31. In Griffin v. Georgia, the trial court allowed the defendant's girlfriend to testify that the defendant had not beaten her, but that she had fallen in a drunken stupor and hit her head on a concrete barrier outside the apartment that she shared with the defendant. The court permitted evidence of her 911 call, in which she stated that the defendant had attacked her, and police officers were permitted to testify that she had told them that the defendant had beaten her. The defendant, Griffin, objected to the admission of the prior inconsistent statements as both impeachment devices and as substantive evidence. Should the trial court have admitted her prior inconsistent statements on the 911 tape to impeach her because she was a prosecution witness? Should her prior statements to the police who responded to the 911 call be admitted as prior inconsistent statements? What did the appellate court decide concerning the admissibility of the prior inconsistent statement evidence? (Griffin v. Georgia, Part II)