PRINCE GEORGE S COUNTY BAR ASSOCIATION LAW 101 March 1, 2012, 4:00p.m. Courtroom M1404 ASK A PROPER QUESTION - FACTUAL AND EXPERT WITNESSES

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1 PRINCE GEORGE S COUNTY BAR ASSOCIATION LAW 101 March 1, 2012, 4:00p.m. Courtroom M1404 ASK A PROPER QUESTION - FACTUAL AND EXPERT WITNESSES Speakers: Honorable Krystal Q. Alves, Circuit Court Honorable John Morrissey, District Court Moderator: Erik H. Nyce, Sources of law. Maryland Rules of Civil Procedure Method of making objection Maryland Rules of Evidence Relevancy, et seq RELEVANCY AND ITS LIMITS Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence Character evidence not admissible to prove conduct; exceptions; other crimes. cf: motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident. (See annotations) Page -1-

2 5-406 Habit: routine practice Competency WITNESSES Lack of personal knowledge Evidence character of witness for truthfulness or untruthfulness - evidence by character witness (impeachment or rehabilitation) - impeachment of witness re: prior conduct not resulting in conviction Impeachment by evidence of conviction of crime - established by public record - crime was infamous or relevant to credibility - 15 year limit Mode and order of interrogation - Control by court - Scope of cross-examination - Leading questions Should not be allowed on direct except as may be necessary to develop the witness s testimony Should be allowed on cross-examination or direct of hostile witness, adverse party, witness identified with an adverse party Writing or other item used to refresh recollection Prior statements of witnesses Exclusion of witnesses (Rule on Witnesses) Page -2-

3 5-616 Impeachment & rehabilitation - Generally - Impeachment by inquiry of the witness - Extrinsic impeaching evidence - Rehabilitation OPINIONS AND EXPERT TESTIMONY Opinions by lay witnesses Testimony by Experts - Assist the trier of fact - Qualified by knowledge, skill, experience, training, or education - Appropriateness on the particular subject - Sufficient factual basis Basis of opinion testimony by experts Opinion on ultimate issue Disclosure of facts or data underlying expert opinion Hearsay HEARSAY Statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to the truth of the matter asserted Hearsay exceptions - Prior statements of witness at trial - Prior inconsistent statement Not prior consistent statement Page -3-

4 Courts & Judicial Proceedings Title 9 Witnesses, et seq. Title 10 Evidence, et seq Admissibility of writings of health care providers Admissibility of bills for goods and services Maryland Pattern Jury Instructions - civil and criminal Elements of crime, cause of action, etc. 2. Foundations and relevance inextricably linked Personal knowledge - senses - hear, see, feel, mind (if applicable) Relevance - Conclusion? - Opinion? - Speculation (how would this witness know that?) - Why did you ask that? - Tends to prove a fact. - Which issue or jury instruction? Chart of testimonial evidence Admissible Not admissible Facts < > Opinion Logical inferences conclusory speculation 3. Ask a proper question Do not - suggest an answer Page -4-

5 i.e, what color was the red light? Do - use facts in evidence i.e, as you approached the intersection, was there a traffic control device? You said there was a light controlling the intersection, what color was it. Interrogation - tell the story. Sequential. Can always ask: - taking you back to the date, time and place of the accident... - and then what happened? - what did you do? - what did you see? - why did you do that? Flaw - trying to prove every element of the case through every witness Cross-exam - Do not rehash direct 4. Miscellaneous - Use known facts - medical records, deposition, irrefutable evidence - Perceived cross-exam - does not establish anything but looks good - Know why you are asking the question and what you want Crawford - USSC - admissibility of 911 calls Testimonial vs. Excited Utterance 5. Trial preparation and organization To go file on the law. Rules, jury instructions, statutes, cases. Page -5-

6 Separate files for each witness - documents, Answer to discovery, depositions, questions No fumbling Always win every objection know the rule or rules which support the objection know why you asked the question I:\Common\WP\L3\EHN\LAW 101\2012 Law 101 materials.wpd Page -6-

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