Term
| questions to ask before cross examination |
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Definition
1. has the witness hurt your case? (if he hasn't damaged your position c/e is not essential)
2. is the witness important?
3. was the witness' testimony credible?
4. did the witness give less than expected on direct? (is opponent sandbagging and withholding info? maybe consider not crossing)
5. what are your realistic expectations on cross?
6. what risks do you need to take? |
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Term
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Definition
1. eliciting favorable testimony
2. conducting a destructive cross |
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Term
| have c/e establish as few points as possible |
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Definition
preferably three or four point that support your theory of the case;
ask yourself: what will I say about this witness during closing arguments? if point is not important enough to discuss during closing, probably not worth raising on cross. |
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Term
| make your strongest points at the beginning and end of your cross exam |
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Definition
| principles of primacy and recency |
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Term
| vary the order or your topics |
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Definition
successful cross sometimes based on indirection making it less likely witness will anticipate your question
but don't jump around too much and confuse the jury |
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Term
| don't repeat the direct exam! |
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Definition
most commonly violated maxim of good c/e
don't have witness "tell it again" in hopes that testimony will fall apart |
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Term
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Definition
1. start and end crisply (no "I'd like to ask you a few questions")
2. don't ask a question you don't know the answer to
3. listen to the witness' answer
4. don't argue with the witness
5. don't ask the witness to explain (open ended questions)
6. don't ask the one question too many (ask only enough questions to establish the points you intend to make during closing) |
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Term
| only time you can ask a nonleading question |
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Definition
| when you know the witness is previously committed to an answer and you can impeach him if he gives a different one |
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Term
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Definition
1. leading
2. make a statement of fact and have witness agree to it
3. use short, clear questions, bit by bit
4. keep control over the witness (don't let witness hurt you; force witness to obey evidentiary rules particularly those involving nonresponsive answers) |
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Term
| how to discredit or limit the testimony |
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Definition
| attack perception, memory, and ability to communicate (i.e. descriptions, times, and distances are inaccurate or unreliable) |
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Term
| how to discredit the conduct |
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Definition
| emphasize inconsistency between the testimony and the conduct (e.g. person in car accident says he was not negligent but he left scene of accident w/o reporting it) |
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Term
| basic impeachment techniques |
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Definition
1. bias, interest, motive
2. prior convictions
3. prior bad acts
4. prior inconsistent statements
5. contradictory facts
6. bad character for truthfulness
7. treatises
NOTE FRE 607 allows any party to impeach any witness |
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Term
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Definition
(note: these are common law. FRE largely silent on impeachment procedure)
1. must have good faith belief that impeaching fact is true
2. must raise on cross-exam
3. must prove up when required |
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Term
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Definition
depends on two things
1. if witness denies the impeachment (equivocations like "I don't know or I'm not sure" are denials) you may be required to
2. and if impeaching matter is collateral or noncollateral - all noncollateral means is that it is important to the case and is largely in judge's discretion to determine whether non or collateral. e.g. if witness said she was 20 feet away but previous said 200 is probably noncollateral, but if discrepancy is 20 to 30 feet, probably not |
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Term
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Definition
can only call them when you have opportunity to call witnesses
so if D impeaches on cross exam, must wait until after P's case in chief is over to call prove up witness; and vice versa (P must wait to call rebuttal witness) |
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Term
| impeachment by bias, motive, or interest |
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Definition
1. no FRE
2. ALWAYS considered noncollateral |
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Term
| impeachment by prior conviction |
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Definition
FRE 609 - always noncollateral
two rules:
1. any felony within 10 years or conviction involving dishonestly or false statement can be used to impeach any witness
2. a balancing test applied in criminal cases when conviction is more than ten years old |
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Term
| prior bad acts impeachment |
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Definition
admissible under FRE 806(b) if acts are "probative of truthfulness"
ALWAYS collateral so must take the witness's answer |
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Term
| impeachment by prior inconsistent statement |
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Definition
1. commit - the witness to facts he asserted on direct
2. credit - build up importance of impeaching testimony, date time, place etc.
3. confront with inconsistent statement |
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Term
| impeachment with prior testimony |
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Definition
same as prior inconsistent statement
can be any prior sworn testimony |
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Term
| impeaching with written statements |
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Definition
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Term
| impeaching with oral statements |
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Definition
commit, credit, confront
keep in mind can't say "Didn't you say in Officer Smith's report.." because the report is not the witnesses - have to word it carefully: "Didn't you tell detective smith in the presence of his partner that the robber was 24 years old?" |
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Term
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Definition
| particularly useful with people like police officers who know how to fill out reports; the buildup is critical |
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Term
| impeachment with contradictory facts |
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Definition
e.g. "did you drink alcohol that day?" A: "no" - this does not assert a fact
but: "didn't you have three double martinis at O'Malleys one hour before the accident?" A: "No"
form implies drinking happened and you may be required to prove it up if noncollateral |
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Term
| bad character for truthfulness |
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Definition
FRE 608(a) can attach any witnesses character for truthfulness - ALWAYS an issue
character must be attacked before it can be supported; must call witnesses to testify to opinion or reputation testimony about prior witness
remember must show basis for opinion before testifying to what it is |
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Term
| hearsay and prove up of prior inconsistent statements |
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Definition
| is NEVER a proper objection because you are offering only to prove witness made statement, not that it is true |
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Term
| bias, interest, motive ALWAYS noncollateral |
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Definition
| meaning you always must prove up |
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Term
| proving up prior testimony |
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Definition
| should call court reporter who was present and person who swore the witness - this is usually handled by stipulation between the parties (e.g. were reporter here she would testify that...) |
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Term
| proving up written or oral statements |
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Definition
| simply call someone who saw them write or sign it or heard them say it |
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Term
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Definition
1. make a motion to strike the cross examiner's question and answer and ask judge to instruct jury to disregard
2. consider not making the motion for tactical reasons if failure to prove up is not important |
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Term
| impeaching out of court declarants |
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Definition
FRE 806
can introduce extrinsic evidence to impeach out of court declarant whenever impeachment is noncollateral |
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Term
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Definition
don't attempt to squeeze good answers out of him; instead continue in same vein, extract as many "I can't remember" responses as possible and try to get evasive answers to the same questions asked on direct;
ask the witness "that didn't answer my question did it?"
ask the witness "are you having trouble hearing or understanding my questions?" |
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Term
| problem: argumentative or explaining witness |
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Definition
one approach: "we'll get to that in a minute, but right now my question is: you were standing on the corner?"
avoid asking judge to strike nonresponsive answer or order witness to answer; instead patiently repeat question until you get responsive answer
another approach: make contract with the witness: Before I begin I'd like to agree with you how to go about it. I'm going to ask questions as clearly as I can. Okay. If my questions are clear, you'll answer them simply and clearly, alright? Yes. Can we agree on this? Yes. That's fair, isn't it? Yes. |
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Term
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Definition
not required, but jury will expect something
can ask basic collateral questions (who asked him to be a witness? did he talk to lawyers to prepare? does he know parties or witnesses?)
or can get YOUR version of facts before jury even though he will deny it |
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Term
| cross examining records witness |
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Definition
1. first approach is to keep records from getting admitted, so attack relevance, foundation or multiple hearsay
otherwise:
2. First purpose always to look for favorable material in records and have witness point it out
3. look for inconsistencies and have witness point them out
4. have witness admit he is merely custodian and has no firsthand knowledge of contents
5. stress that no one is infallible and people make mistakes |
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Term
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Definition
may inquire into specific instances of conduct, inconsistent with the type of reputation testimony involved - is a legit inquiry into knowledge and credibility of the witness
may ask about prior acts, arrests, convictions of the person relevant to and inconsistent with the claimed reputation - but witness may not be used to establish truth of such reports
common approach is to show he has limited knowledge on which he based his opinion
also may be asked about specific rumors and reports, provided there is a good faith basis |
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Term
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Definition
1. must I cross examine this witness?
2. what favorable testimony can I elicit?
3. what discrediting c/e can I conduct?
4. what impeachment can I use? |
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