Navigating Federal and Texas Cross-Examination Rules: Insights from Janicke (2010)

1. CHAP. 7 :DIRECT AND CROSS REVISITED P. JANICKE 2010

2. SCOPE OF CROSS • FED. RULE 611(b): GENERALLY LIMITED TO SCOPE OF DIRECT + ISSUES OF WIT. CREDIBILITY • COURT CAN ALLOW WIDER SCOPE • OFTEN DOES, TO SAVE TIME OF RECALLING THE WITNESS • TEXAS: NO LIMIT ON SCOPE OF CROSS TEX. R. 611(b) Chap. 7 -- More On Direct and Cross

3. LEADING ON DIRECT • ALLOWED SOMETIMES – • TIMID WITNESS • MOMENTARY MEMORY LAPSE • ADVERSE WITNESS (ASSOCIATED WITH OTHER SIDE) Chap. 7 -- More On Direct and Cross

4. ALSO ALLOWED ON “PRELIMINARY MATTERS” • BUT YOU HAVE TO KNOW THE LOCAL PRACTICE • STRICT RULE: ONLY NAME, ADDRESS, OCCUPATION, AND PLACEMENT AT THE SCENE ARE PRELIMINARY Chap. 7 -- More On Direct and Cross

5. IN HARRIS COUNTY STATE COURTS, ALL FOUNDATION QUESTIONS ARE REGARDED AS PRELIMINARY • EXAMPLES : • AUTHENTICITY OF A DOCUMENT • FAMILIARITY WITH A PERSON’S CHARACTER OR REPUTATION Chap. 7 -- More On Direct and Cross

6. MEMORY REFRESHING IS ALLOWED • IN LIEU OF LEADING, ANY REASONABLE MEMORY REFRESHMENT TECHNIQUE IS OK • LOOKING AT A REPORT • CHECKING A BOOK • REVIEWING NOTES • THESE ARE NOT PUTTING THE DOCUMENTS INTO EVIDENCE! Chap. 7 -- More On Direct and Cross

7. OTHER SIDE IS ALLOWED TO SEE THE REFRESHMENT MATERIAL Chap. 7 -- More On Direct and Cross

8. LEADING ON CROSS • BROADLY ALLOWED • EXCEPTION: YOUR OWN CLIENT Chap. 7 -- More On Direct and Cross

9. WITNESS PREP. MATERIALRULE 612 • ADVERSE PARTY HAS RIGHT TO SEE IT IF USED WHILE ON THE STAND • FED. RULE: MAY GET ORDER TO SEE IT IF USED BEFORE TRIAL • ROUTINELY GRANTED TODAY Chap. 7 -- More On Direct and Cross

10. TEXAS RULE 612 • USED WHILE ON THE STAND: ADVERSARY HAS RIGHT TO INSPECT AND TO INTRODUCE PARTS PERTINENT TO TESTIMONY • RE. MATERIAL VIEWED PRE-TRIAL: • CRIMINAL CASES: SAME AS USE ON THE STAND • CIVIL CASES: NEED ORDER, BUT EASY TO GET IN PRACTICE Chap. 7 -- More On Direct and Cross

11. WORK-PRODUCT CONTENTION WILL NOT OVERRIDE THE FOREGOING • LAWYER-PREPARED MATERIALS SEEN BY WITNESS: • WILL HAVE TO BE HANDED OVER • WORK-PRODUCT IS FLIMSY EVEN IF NOT SHOWN TO WITNESS! [EXPLAIN] Chap. 7 -- More On Direct and Cross

12. CROSS-EXAM IS AN IMPORTANT RIGHT • IF WITNESS FLEES, OR REFUSES TO COMPLETE CROSS, THE DIRECT WILL BE STRICKEN ON MOTION Chap. 7 -- More On Direct and Cross

13. INVOKING “THE RULE”(RULE 615) • RULE SEPARATING WITNESSES SO THEY CAN’T HEAR EACH OTHER’S TESTIMONY • THE RULE IS MANDATORY ON REQUEST OF ANY PARTY • CUSTOM IS TO MAKE THE REQUEST Chap. 7 -- More On Direct and Cross

14. SOME WITNESSES ARE EXEMPT, i.e., CAN STAY IN COURTROOM • INDIVIDUAL PARTIES • ONE CORPORATE WITNESS CAN STAY FOR EACH CORPORATE PARTY • PERSONS SHOWN TO BE “NECESSARY” TO PRESENTATION OF THE CASE – USUALLY EXPERTS Chap. 7 -- More On Direct and Cross

15. DISCRETIONARY EXPANSION • PRETRIAL ORDER NOT TO DISCUSS EXPECTED TESTIMONY WITH OTHER WITNESSES • ALSO BINDS LAWYERS NOT TO INFORM RE. WHAT OTHER WITNESSES SAY • NORMALLY ISSUED ONLY TO FACT WITNESSES • COULD ALSO ISSUE TO EXPERTS Chap. 7 -- More On Direct and Cross

16. READING TRANSCRIPT OF OTHER WIT.’S TESTIMONY • FORBIDDEN IN SOME JURISDICTIONS; NOT IN OTHERS, UNLESS COURT HAS SPECIFIED IN AN ORDER • PENALTY FOR BREACH: STRIKE THE OFFENDING WITNESS’S TESTIMONY Chap. 7 -- More On Direct and Cross