Witness testimony The question and answer method (Jack Ruby essay, p. 485) 1. Free narratives are usually not permitted. 2. Leading questions are usually not permitted on direct examination. 1
Why not allow the direct examiner to say to the witness, tell us everything you know that is pertinent to this case? 2
Why are leading questions generally permitted on crossexamination but not on direct examination? 3
Tactical maxims of cross-examination Ask leading questions. Control the witness. Don t ask a question unless you know the answer. (Gilbert without Sullivan, p. 488) Don t ask the witness to explain (Mr. Whitewig and the Rash Question, pp. 459-60) 4
American model of trial Party control Bifurcated proceeding Lay decision-makers 5
Impeachment of witnesses First topic: Who may impeach (Rule 607) 6
Before we reach the Hogan case, please answer these review questions about impeachment with inconsistent statements... 7
Hypo. Defendant calls a witness who testifies that defendant was not involved in the charged drug crime. The prosecutor asks, isn t it true you told my investigator that defendant was involved in the drug deal? Objection, hearsay. What ruling? 1. Admissible 2. Inadmissible 88% 12% Admissible Inadmissible 8
Same case. Does the witness s out-of-court statement come into evidence by reason of Rule 801(d)(1)(A)? 1. Yes 2. No 78% 22% Yes No 9
Same case. Would either party be entitled to a limiting instruction? 1. Yes 2. No 96% 4% Yes No 10
Example of limiting instruction (Massachusetts) [I]f a witness s earlier statement is not consistent with that witness s present testimony, you may take that into account when you determine how much belief to give that witness s present testimony from the witness stand. The prior statement is relevant only as to the witness s credibility, and you may not take it as proof of any fact contained in it. 11
Suppose that the prosecutor called a witness, expecting the witness to testify that the defendant participated in a drug deal. To her surprise, the witness testified to facts that completely exonerated the defendant. Should the prosecutor then be allowed to put in the witness s prior inconsistent statement, even if it is admissible only to impeach? 1. Yes 2. No 93% 7% Yes No 12
Rule 607 (restyled): Any party, including the party that called the witness, may attack the witness s credibility. 13
Before trial, the defense counsel tells the judge, "My colleague is about to call a witness to the stand solely for the purpose of impeaching him with an inconsistent statement he made to the police. I object." The prosecutor responds, "That's true, but I have a right to do so. See Rule 607. " How should the judge rule? 1. for the prosecution. 2. for the defense. 38% 62% for the pro... for the def... 14
Why not allow the prosecutor to call a witness solely for purposes of impeachment? 15
United States v. Hogan, p. 490 5 th Circuit, 1985 The prosecution... may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony, for such a scheme merely serves as a subterfuge to avoid the hearsay rule. (p. 492) 16
Suppose you are the defense counsel. Your investigator has talked to the witness and you know that the witness is going to exonerate the defendant if called. But you don t want the witness to be called because you are afraid that the out-of-court statement will hurt your client. The trial hasn t started yet. What do you do? 17
Suppose the prosecutor says, "We don't know for certain what the witness is going to say. Let's put him on the stand and see. The witness has wavered back and forth in his testimony. If he testifies in our favor, no problem. If he doesn't, we'll impeach him. That's our right." What should the judge do? 1. Allow the prosecutor to put the witness on the stand in front of the jury. 2. Tell the prosecutor that the witness cannot testify 3. Hear the witness s testimony with the jury absent for purposes of ruling 88% 8% 4% Allow the prosecutor... Tell the prosecutor th.. Hear the witness s t... 18
Suppose that the prosecutor says, "In this case we're entitled to put the witness on solely to impeach him, because the impeachment material is grand jury testimony by the witness." How should the judge rule? See Fed. R. Evid. 801(d)(1)(A). 1. Permit the prosecutor to call the witness. 76% 2. Prevent the prosecutor from calling the witness. 3. Something else. 16% 8% Permit the pr... Prevent the pr... Something else... 19
Comment: If an inconsistent statement is admissible under 801(d)(1)(A): No limiting instruction is needed It can be used as substantive evidence There is no Hogan problem. 20
CEC 1235: Prior inconsistent statements of a witness are admissible as substantive evidence. (Casebook, p. 1460) 21
Suppose that in California state court the prosecution seeks to call a witness whom it knows will give testimony favorable to the defense, solely for the purpose of putting into evidence the witness s prior inconsistent statement. Would that be permissible? 92% 1. Yes 2. No 8% Yes No 22
Methods of impeachment Contradiction Inconsistent statement Bad character for truthfulness Bias Lack of capacity or opportunity to observe 23
State v. Oswalt, p. 494 Supreme Court of Washington, 1963 The crime was committed in Seattle on July 14 Alibi -- I was in Portland on July 14 W1 -- He was in Portland every day for two months W2 -- I saw him in Seattle on June 12 24
The Oswalt rule prohibits -- Contradiction with Extrinsic evidence on a Collateral matter The test of collateralness is Could the fact... Have been shown in evidence for any purpose independently of contradiction? (p. 495, final sentence) 25
According to the Oswalt opinion, the contradicting evidence was admissible to impeach the witness. 1. True 2. False 3. I didn t read the case 85% 11% 4% True False I didn t read... 26
In Oswalt, would the contradicting evidence have been admissible if the police officer had testified that, a month before the robbery, he saw the defendant walking back and forth in front of the place that was robbed? 1. Yes 2. No 96% 4% Yes No 27
Questions, pp. 496-97. Could the fact have been proven with extrinsic evidence? 1. Yes 2. No 3. It depends 76% 10% 14% Yes No It depends 28
United States v. Copelin, p. 497 U.S. Court of Appeals, D.C. Circuit, 1993 Charge: Distribution of cocaine. D s testimony on direct: It wasn t me. Another player in the craps game was making drug transactions, and I won the incriminating money from him. Cross, p. 498: Q. You didn t see any actual drugs? A. No, sir. Q. Would you know what they looked like if you saw them? A. Yes. It s advertised on TV.... Q. You see drugs advertised on TV? A. Yes... on news... Q. And that s the only time you ve ever seen drugs? A. Roughly, yes. * * * p. 499: Q. And isn t it true you tested positive for cocaine on June 13th, 1991? A. Yes. [Elsewhere D denies having used cocaine.] 29
Questions about Copelin: (The prosecutor asked, And isn t it true you tested positive for cocaine on June 13 th, 1991? ) Why isn t this character evidence? Does the question violate the Oswalt rule forbidding extrinsic evidence on a collateral matter? Should a limiting instruction have been given? Could a Rule 403 argument be made? Could any other objection have been made? 30
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