Topics: Appellate Review



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STATE V. ELMALEH 7 Haw.App. 488, 782 P.2d 886 (1989) R 615
[FACTS: during a recess in the arresting officer's testimony (between direct and cross examination) the prosecutor talked with the officer in the presence of the complaining witness who had not yet testified. It was not clear from the trial record whether R 615 had been invoked.] ...
At trial, the defendant did not raise any objection of a possible violation of a witness exclusion or sequestration order. However, on the next day after both parties had rested and jury instructions had been settled in chambers, Defendant moved for a mistrial….
Hereafter, if an issue on appeal involves HRE Rule 615 and the record on appeal does not include the facts as to who invoked the rule, when it was invoked, and what orders or instructions the trial court gave regarding witness sequestration, we will disregard that issue….
We disagree with the State's assertion that “there was no violation of the exclusionary [sic] rule,” and hold that what occurred in this case was a clear circumvention of HRE Rule 615. There was nothing wrong with the prosecuting attorney conferring with Officer Hoopii before the commencement of his cross-examination. However, Reuther should not have been permitted to be present at the conference where she overheard the entire conversation between the prosecuting attorney and Officer Hoopii..”
The rule is silent regarding the appropriate penalty in case of noncompliance with a sequestration order. See Commentary to HRE Rule 615. However, the supreme court has stated that “the sanctions which a court chooses to attach to the violation of its [sequestration] order is a matter within the discretion of the court.”
Here, Defendant has failed to show that he was prejudiced or that the trial court abused its discretion. A review of the record discloses that Reuther did not shape her testimony to conform to that of Officer Hoopii. The inconsistencies in the testimony of those two witnesses which defense counsel highlighted to the jury in his opening statement remained after both witnesses testified. The jurors heard Reuther's testimony on cross-examination about the conference between the prosecuting attorney and Officer Hoopii in the presence of Reuther. Also, although the closing arguments to the jury were not transcribed, we may reasonably presume that defense counsel discussed the alleged connivance of the prosecuting attorney and the State witnesses which he unveiled through cross-examination.
Accordingly, we hold that the violation of the sequestration order under HRE Rule 615 was harmless and the trial court did not abuse its discretion in denying Defendant's motion for mistrial and motion to strike Reuther's testimony....
Affirmed.

WITNESS EXAMINATION PROBLEMS

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1-5 Omit
6A When Billy Boy is asked on direct examination about the time of day of the accident, he states that it was 1:00 p.m. (instead of 4:00 p.m). As counsel for Billy Boy, what options are available to you to correct this error?


7. In the Hawaii Liquor Commission we used for witness examination, refresh Officer Bier's memory from his report, assuming that Bier forgets that Watkins stumbled crossing 7th Street. Prepare questions to refresh the memory in class. Is this a hearsay problem? You probably don't know yet. But it's not hearsay!! I'll explain why.
8B ---

9B Sheila is a prosecution witness against Charlie. Although she was present on the first day of trial when the judge told all witnesses to remain in the hall until called to testify, she forgot and sat in the courtroom on the morning of the second day of the trial. Her presence was not discovered by a lawyer for either side until she was called to testify that afternoon. Charlie now objects to Sheila testifying at all. As the trial judge, discuss your options for this situation and give us your most thoughtful ruling.



WITNESS EXAMINATION SIMULATION

DIRECT EXAMINATION

Add McHenley - theory of the case

The purpose of direct examination is to prove all of the necessary factual elements to establish a prima facie case for your client's claim. This is done by presenting the relevant witness testimony and exhibits favorable to your theory of the case. If you can't prove a prima facie case, the trial judge can direct a verdict against your client.


HELPFUL SUGGESTIONS FOR DIRECT EXAMINATION
-Prepare an outline of the key facts each witness will testify to.
Organize the key facts in a logical, coherent manner either chronologically or topically in a narrative form.

Organize your direct examination so it is brief and simple.


Questions you ask of any witness should be short, clear and direct.
Use short, simple action words in your questions. Use language that can be understood by any person.
The witness is there to tell a specific story, so use open-ended questions to allow the witness to freely tell the facts in their own words.
Emphasize the details of critical and crucial testimony. Control the pace of the testimony. Sometimes you will use many minutes of testimony to cover just a few seconds of real-time action.
Move the direct examination along at a brisk pace. When you come to the point of critical testimony, slow down the tempo so that important details and facts are clearly and directly understood in the witness testimony.
Use topical sentences to announce the transition of the testimony to another topic, (i.e. “Let me now ask you some questions about what happened inside the store.”)
Listen to the witness' answer. Don't be reading your next question when you should be listening.
Whenever possible, use diagrams, charts, exhibits, or any other visual evidence to tie in with the witness's testimony.
When it is appropriate and relevant, bring out any harmful matter on direct examination. Minimize your weaknesses before the cross examiner exposes them.
If a witness can't recall important facts, help to refresh the witness's memory with supporting documentary evidence to recall those facts. Or, ask a leading question, but expect the witness' credibility to slip.
End strong. Plan the conclusion of each witness's testimony to end with an important question and answer.
When you are through with the witness, STOP. (i.e. “I have no further questions.”) If you have no further questions and opposing counsel has finished with cross examination, excuse the witness.
If there is a real need for redirect examination, be brief. The primary purpose of redirect examination is to rehabilitate the witness by allowing the witness to clarify or explain any inconsistent matters raised by cross examination.
If you can't hear a witness, ask the witness to talk loudly and clearly so that the jurors can hear the testimony.
THE DON'Ts

Don't ask leading questions on direct. (Do ask leading questions on cross).



Don't start your questions with distracting mannerisms such as “I see,” “OK,” etc.

Don't use complex, technical, or overly formal language. Make your questions understandable. Use “after,” not “subsequent.” Use “got out of your car,” not “exited your vehicle.”

Don't interrupt the witness's answer to a question. Allow the witness to finish answering the question before asking another.

Don't ask irrelevant questions. Get to the point.
A simple organization for direct examination is:

Who am I?

When did I know what I know?

Where was I when I first knew of it?

How or why do I know what I know?

What do I know?

Conclusion
Another approach:

Who am I?

When did it happen?

Where did it happen?

Where was I when it happened?

What happened?

How did it happen?

Conclusion

CROSS EXAMINATION
First ask yourself whether you should cross examine a particular witness or not. Consider the goal to be accomplished by your cross examination. Affirmative purposes of cross examination should be to elicit and stress by repetition the favorable portions of direct examination testimony or to develop new matters not covered on direct which are favorable to your theory of the case. A negative purpose is to meet unfavorable testimony and to conduct a destructive type cross examination to impeach the witness or show how the witness can be mistaken. Cross examination should accomplish either or both of these purposes. If it doesn't, why cross examine at all? Very often the best cross examination is no cross examination.
In preparing for your cross examination, first make a list of the probable key facts you expect the witness to testify to. Next determine your purpose for cross examining each witness. Consider whether the witness is really all that important and relevant to the outcome of the case; whether the witness has substantially damaged your case and whether the witness's testimony is credible. Finally, you should assess your realistic expectations for your cross examination and what kinds of risk you need to take to achieve a successful cross examination of the witness.
When you plan your cross, think about whether:

1. You have a prior statement from the witness which is favorable to your case.

2. The witness may testify on direct examination inconsistently with prior statements (oral or written statements, answers to interrogatories, depositions, or statements from another witness.)

3. You will have a more credible witness who will contradict this witness's testimony and present your theory of the case.

4. The testimony of this witness will not be consistent with common experience or with other external evidence presented.
If you are going to confront unfavorable testimony by discrediting the witness, concentrate your questions on areas which will show that the witness may be mistaken, biased or prejudiced. If you are going to challenge a witness's testimony, ask questions that will demonstrate that the witness's testimony just doesn't make sense with common experience, is in conflict with other established facts of the case, or seems to be the produce of faulty perception, memory or communication.
If you are going to impeach a witness, first get any favorable testimony that this witness can provide before going forward with your impeachment. Once you impeach, the witness will usually be hostile. Before impeaching the witness, have the witness repeat the inconsistent statements or testimony from the direct examination. You can repeat the answer in the very words the witness used to add dramatic effect. Then go forward with the impeachment questions. Once the witness has been impeached, STOP. Don't ask the witness if he or she is a liar.

Professor Irving Younger in his lecture on “The Ten Commandments of Cross Examination” (available in the U.H. Law Library on video tape) suggests:


1. Be brief. Don't try to make more than three points on cross examination.
2. Use short questions with plain words.
3. Never ask anything but leading and suggestive questions.
4. Never ask a question to which you don't know the answer. If you don't know, don't ask.
5. Listen to the answers given by the witness.
6. Don't quarrel with the witness.
7. Never permit the witness to repeat what was said on direct examination (unless you want it repeated).
8. Never permit the witness to explain anything away.
9. Avoid the “one too many” question.
10. Save the ultimate point for your closing argument.

Note:
In a civil case, the plaintiff can call an adverse party to the witness stand and ask leading questions like cross examination. Often the plaintiff will call the defendant.

SOME COMMON LEGAL OBJECTIONS
“Objection, your Honor,”
Ambiguous

Argumentative

Assumes facts not in evidence

Beyond the scope of direct examination


Calls for a conclusion

Calls for a narrative answer

Calls for an opinion the witness is not qualified to give Confusing

Cumulative


Hearsay

Immaterial.

Incompetent

Irrelevant


Leading and suggestive of the answer

Misleading

Misstates the evidence

Misstates the witness

Multiple question
No authentication

No probative value

No proper foundation

Not the best evidence


Not responsive to the question

Prejudicial

Privileged communication

Repetitive


Self-serving

Speculative

Vague and Ambiguous




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