Term
| witness credibility determined by: |
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Definition
1. who the witness is (background)
2. what he says (content)
3. how he says it (demeanor) |
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Term
| introduce witness and develop background |
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Definition
| (who is she? why is she here? why should I believe her? show them the witness is a normal person and they'd be happy if she moved into their neighborhood; also allows then to get a "feel" for what the witness is like when she talks about herself |
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Term
| simple background questions should be asked about all witnesses |
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Definition
| because credibility is always an issue; whether it needs to be developed further depends on who the witness is and how important the testimony is |
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Term
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Definition
| issues with jury attention span and aural learning ability |
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Term
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Definition
| often chronologically is best but sometimes makes sense to change it up |
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Term
| use introductory and transition questions |
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Definition
| "now I'd like to ask you questions about..." |
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Term
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Definition
| all preliminary descriptions and info should be elicited before reaching the action part; sometimes better not to use exhibits that break up the "action" part; use 5-10 second sound bites like jury is used to |
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Term
| recreate the action - how to organize this testimony |
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Definition
after scene is set:
1. organize direct so jury "sees" it from an advantageous point of view (usually through eyes of witness)
2. pace - so jurors get a "feel" for what happened (e.g. slow down car crash sequence by describing approaching/entering intersection/before collision/during/after - or might want it quickly and can convey that by saying it all at once
3. use sensory language ("what did you hear/see/feel?" and keep language simple and in the present tense |
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Term
| most effective question technique |
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Definition
| open ended questions that elicit descriptive responses; they let the witness tell the story and minimize the presence of the lawyers |
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Term
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Definition
| usually bury in in the middle of the direct exam and make it part of the story; studies show that people are reluctant to change their initial impression when confronted with unfavorable fact; so volunteer it after witness make a good first impression |
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Term
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Definition
| should be used to highlight central facts of your case and explain important details to the jury; preferable time is after witness has substantially completed his oral testimony (using exhibits after action testimony is usually an effective way to repeat and emphasize the important facts brought out by the witness) |
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Term
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Definition
| also called a fact witness or percipient witness; essentially someone who has first hand knowledge who saw, heard, or did anything relevant to the case |
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Term
| presenting occurrence witnesses effectively |
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Definition
1. testimony must be organized
2. must be dramatized, humanized, and visualized |
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Term
| most common occurrence witness organization |
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Definition
1. background
2. scene
3. action
4. exhibits |
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Term
| laying foundation for conversations |
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Definition
foundation elements to admit into evidence a conversation:
1. when the conversation occurred
2. where the conversation occurred
3. who was present during the conversation
4. who said what to whom
NOTE: not necessary that witness participated in conversation; may testify to conversation he witnessed so long as it is otherwise admissible under hearsay rules |
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Term
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Definition
When witness knows the other person:
1. when and where conversation occurred
2. witness recognized voice
3. how witness knows other voice
4. whose voice it was
5. what other persons participated
6. who said what to whom
doesn't matter who placed call; doesn't matter if person identified themselves and is improper to bring this out until foundation is laid; |
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Term
| foundation for telephone conversations where person did not know identity of other speaker at time of conversation |
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Definition
| lay foundation for all elements then add questions about how witness now is aware who was on the phone and how witness knows that now; NOTE in cases where witness called place of business listed in phone book there is a presumption that the witness reached that listed business |
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Term
| refreshing a witnesses recollection |
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Definition
1. witness knows the facts but has memory lapse on stand
2. witness knows that some document will jog his memory
3. witness is given and reads pertinent part of his report
4. witness states his memory has now been refreshed
5. witness now testifies to what he knows, without further aid of the report |
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Term
| three rookie mistakes when refreshing recollection |
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Definition
1. fail to have docs marked as exhibit and show it to opposing counsel
2. fail to retrieve the document after witness has read it
3. fail to use the "do you remember" or "do you recall" language
REMEMBER: anything used to refresh must be made available to opposing counsel on cross-exam; usually witness statements are given over through discovery, but if not, be careful what you use |
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Term
| opinions of lay witnesses |
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Definition
under FRE 701 and 602 are permitted if based on the perception of the witness and helpful to a clear determination of a fact in issue
common facts include: speed, age, sobriety, and handwriting |
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Term
| principle functions of records witnesses |
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Definition
1. be able to establish the foundation requirements to get the exhibit admitted into evidence that maximizes weight jury will give it
2. must be prepared to read and explain the contents and explain why they are reliable and important |
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Term
| how to treat records witnesses |
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Definition
| don't present them in summary fashion; what witness has to say about records can be significant particularly when records are the primary evidence of a transaction |
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Term
| what records witness needs to testify to: |
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Definition
FRE 803(6)
1. thoroughly qualify witness; works with records on daily basis and knows storage retrieval methods well
2. how records are made, who makes them, and what primary source of info is on them
3. how records are distributed, stored, and retrieved (essential is that they are stored in a way to minimize risk of loss or destruction)
4. show what use the records have for the business creating them |
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Term
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Definition
occupy a unique niche in trials; infrequently used and usually appearing in criminal cases, are nevertheless potential witnesses in any trial
law of character evidence must be clearly understood before an intelligent decision to present such evidence at trial can be made |
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Term
| types of character evidence |
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Definition
1. evidence of specific character traits, admissible as direct or circumstantial evidence
2. evidence of truthfulness, admissible only to affect the credibility of witnesses who have testified
each is admissible in limited situations after certain foundation requirements have been met |
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Term
| evidence of specific character traits: |
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Definition
direct evidence: when it is an "essential element" of a claim or defense it is direct and can be introduced in both civil and criminal cases (this is rarely used though)
it can be shown by reputation, opinion, or specific instances of conduct |
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Term
| using specific character trait evidence as circumstantial evidence |
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Definition
| can only be initiated by defendant in a criminal case; can only by testified to in opinion or reputation form; then P can rebut with same type of proof (exception being in homicide involving self defense - can rebut with evidence of victim's good character for peacefulness) |
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Term
| using evidence of bad character for truthfulness |
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Definition
FRE 608(a) bad character for truthfulness, in reputation or personal opinoin form may be introduced by the opposing party after a witness has testified to attack the credibility of that witness
evidence is admitted solely to diminish credibility and weight of that witnesses testimony
applies to any witness (including a party) that has testified at trial |
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Term
| procedural differences between evidence of truthfulness and specific character traits |
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Definition
| where character trait as propensity is involved, D in criminal trial has exclusive right to decide whether to raise relevant trait as issue; however both sides have right to attack truthfulness of any witness |
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Term
| foundation for character evidence |
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Definition
1. must come from reliable witness (witness must establish that he knows person's reputation or knows person personally)
2. reputation must be based on a relevant community or neighborhood
3. evidence must be based on proper time period (reasonable prior time period before charged act was committed) |
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Term
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Definition
| witness who because of his position as a party or because he has a special relationship to a party will be presumed to give testimony detrimental to the other parties; in short, it is assumed he will use every opportunity to hurt you |
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Term
| when to call an adverse witness |
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Definition
1. when absolutely necessary to establish and element of the claim
2. when you know he/she will make a poor impression on the jury |
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Term
| how to question adverse witness |
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Definition
just like c/e - with leading questions; make it as brief as possible
some plaintiffs lawyers like to start by calling the defendant as an adverse witness; can be effective when you know D will make bad impression or has to admit awful facts b/c of deposition or has not been adequately prepared (busy executive syndrome) |
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Term
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Definition
one who surprises you and turns against you during his testimony at trial
same rules apply as adverse witnesses since leading questions are "necessary to develop the witnesses testimony" under 611(c) |
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Term
| what to do with hostile witness |
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Definition
1. ask enough questions to establish witness is indeed hostile
2. ask for side bar or short recess and explain to judge
NOTE: in many jurisdictions you must be surprised at trial - if you learn in advance of trial that witness intends to change testimony cannot then bring it up at trial
3. may try to conduct voir dire of witness outside jury's presence about prior inconsistent statement; if witness admits making you have demonstrated hostility |
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Term
| using depositions/transcripts |
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Definition
1. must designate which parts will be read/opponent can do the same
2. all evidentiary objections should be made and ruled on in advance
3. most effective way is to have someone take the stand and read it with you |
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Term
| purpose of judicial notice |
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Definition
| increase trial efficiency and admit indisputable evidence where formal proof would be difficult and time consuming |
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Term
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Definition
can be taken in two areas:
1. facts that are generally known about a particular geographic area
2. facts that can be accurately and easily verified from a reliable source (e.g. dept of labor actuarial tables; when a moon was full etc.) |
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Term
| procedure for judicial notice |
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Definition
(not commonly used - usually done through stipulation)
party must ask judge to take judicial notice and opposing party must have opportunity to state objections; if judge takes judicial notice then jury is informed of fact through an instruction |
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Term
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Definition
agreement between parties that certain facts are true and not in dispute
usually prepared in writing; signed by lawyers, presented to court in advance, then marked as an exhibit and read to jury at appropriate time |
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Term
| what you can do on redirect: |
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Definition
1. rehabilitate a witness who was impeached
2. ask witness to correct c/e testimony that was wrong or misleading
3. use redirect to develop new matters brought out on cross
4. if you don't have an important point, don't redirect at all |
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