Sample Direct Examination Questions Breach of Contract
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4.08 “Open Door” Evidence (1) a Party
4.08 “Open Door” Evidence (1) A party may “open the door” to the introduction by an opposing party of evidence that would otherwise be inadmissible when in the presentation of argument, cross-examination of a witness, or other presentation of evidence the party has given an incomplete and misleading impression on an issue. (2) A trial court must exercise its discretion to decide whether a party has “opened the door” to otherwise inadmissible evidence. In so doing, the trial court should consider whether, and to what extent, the evidence or argument claimed to “open the door” is incomplete and misleading and what, if any, otherwise inadmissible evidence is reasonably necessary to explain, clarify, or otherwise correct an incomplete and misleading impression. (3) To assure the proper exercise of the court’s discretion and avoid the introduction of otherwise inadmissible evidence, the recommended practice is for a party to apply to the trial court for a ruling on whether the door has been opened before proceeding forward, and the court should so advise the parties before taking evidence. Note Subdivisions (1) and (2) recite the long-settled “open door” principle in New York, as primarily explained in People v Melendez (55 NY2d 445 [1982]); People v Rojas (97 NY2d 32, 34 [2001]); People v Massie (2 NY3d 179 [2004]); and People v Reid (19 NY3d 382 [2012]). Melendez dealt with the issue of whether the defense had opened the door to permit the prosecutor to explore an aspect of the investigation that would not otherwise have been admissible. The Court began by noting that, when an “opposing party ‘opens the door’ on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect to explain, clarify and fully elicit [the] question only partially examined on cross-examination.” (Melendez at 451 1 [internal quotation marks and citation omitted].) Argument to the jury or other presentation of evidence also may open the door to the admission of otherwise inadmissible evidence. -
The Basic Elements of Direct Examination
The basic elements of direct examination * By: F. Dennis Saylor IV and Daniel I. Small ) February 24, 2017 In theory, at least, an effective direct examination should be one of the easiest things to accomplish in the courtroom. The witness is almost always friendly; in fact, it’s often your own client. The testimony is almost always entirely predictable. And the goal is usually pretty straightforward: telling your side of the story. Nonetheless, too many direct examinations are neither as clear nor as compelling as they ought to be. Maybe that’s because too many lawyers view direct as a simple, almost mechanical, task: Just put your witness on the stand and press “play.” But a truly effective direct examination cannot be created on the fly; it requires careful organization and planning. Moreover, it requires discipline — in particular, the discipline to ask questions carefully, without leading and without excess “noise.” In our upcoming columns, we will talk about different parts of the challenge of effective direct examination. But let’s begin at the beginning. There are six basic elements of an effective direct examination: (1) introducing the witness, (2) setting the stage, (3) telling the story, (4) showing the evidence, (5) defusing problems and (6) concluding effectively. 1. Introducing the witness Most lawyers ask a handful of questions up front to introduce and “humanize” the witness. A few questions about a witness’s background (such as residence, occupation, family or education) are normally permitted, even if technically they aren’t always entirely relevant. But be careful not to overdo this. -
Using Leading Questions During Direct Examination
Florida State University Law Review Volume 23 Issue 2 Article 4 Fall 1995 Using Leading Questions During Direct Examination Charles W. Ehrhardt Florida State University College of Law Stephanie J. Young Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Evidence Commons, and the State and Local Government Law Commons Recommended Citation Charles W. Ehrhardt & Stephanie J. Young, Using Leading Questions During Direct Examination, 23 Fla. St. U. L. Rev. 401 (1995) . https://ir.law.fsu.edu/lr/vol23/iss2/4 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. USING LEADING QUESTIONS DURING DIRECT EXAMINATION CHARLES W. EHRHARDT* AND STEPHANIE J. YOUNG"* I. INTRODUCTION ..................................................... 401 II. BEFORE ADOPTION OF FLORIDA'S EVIDENCE CODE ......... 402 A. An Exception for Leading Questions on Direct Examination ................................................ 402 B. Voucher Rule Barred Impeaching a Party'sOwn Witness ....................................................... 404 III. ADOPTION OF FLORIDA'S EVIDENCE CODE ................... 405 A. Section 90.608: Impeaching an Adverse Witness... 405 B. Section 90.612(3): Use of Leading Questions ....... 406 C. 1990 Amendment to Section 90.608 ................... 408 D. Evidence Code Amendments Make Rule Unnecessary................................................ -
Initial Draft Policy Recommendation on Expert Testimony
NATIONAL COMMISSION ON FORENSIC SCIENCE PRESENTATION OF EXPERT TESTIMONY POLICY RECOMMENDATIONS 1. Experts should be asked to identify and explain the theoretical and factual basis for any conclusion and the reasoning on which the conclusion is based — and any limitations of their conclusions. 2. Experts should present testimony in a manner that accurately and fairly conveys the significance of their conclusions, avoiding unexplained or undefined technical terms or words of art. 3. Experts should remain neutral, and attorneys should respect this neutrality. 4. Experts should not testify beyond their expertise and should also appreciate the difference between testimony that the witness may give as an expert and testimony that the same witness may give as a lay/fact witness.1 5. Experts should not testify on direct or redirect examination concerning case-specific conclusions not contained in the report(s)/documentation submitted in discovery — unless in fair response to issues raised on cross-examination. If an expert changes his or her opinion, a supplementary report should be submitted except where the change is occasioned by new information, presented during testimony and not previously available to the witness. 1 The same witness may provide testimony as both an expert or a lay witness. The two roles need to be distinguished. The Federal Rules do “not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Certainly it is possible for the same witness to provide both lay and expert testimony in a single case.” FED. R. EVID. 701 advisory committee’s note (2000). 1 6. Experts should not testify concerning conclusions that are beyond the limits of a laboratory’s testing protocols. -
New York Evidentiary Foundations Randolph N
digitalcommons.nyls.edu Faculty Scholarship Books 1993 New York Evidentiary Foundations Randolph N. Jonakait H. Baer E. S. Jones E. Imwinkelried Follow this and additional works at: http://digitalcommons.nyls.edu/fac_books Part of the Evidence Commons Recommended Citation Jonakait, Randolph N.; Baer, H.; Jones, E. S.; and Imwinkelried, E., "New York Evidentiary Foundations" (1993). Books. Book 4. http://digitalcommons.nyls.edu/fac_books/4 This Book is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Books by an authorized administrator of DigitalCommons@NYLS. New York .Evidentiary Foundations RANDOLPH N. JONAKAIT HAROLD BAER, JR. E. STEWART JONES, JR. EDWARD J. IMWINKELRIED THE MICHIE COMPANY Law Publishers CHARLOTIESVILLE, Vlli:GINIA CoPYRIGHT ~ 1H93 BY THE MICHIE COMI'ANY Library of Congress Catalog Card No. 93-77731 ISBN: 1-55834-058-0 All rights reserved. lllllllllllllllllllllllllm IIIII SUMMARY TABLE OF CONTENTS Page Table of Contents . v Chapter 1. Introduction . 1 Chapter 2. Related Procedures .. .. .. .. ... ... .. .. .. .. .. .. ..... 11 Chapter 3. The Competency ofWitnesses .......................... 25 Chapter 4. Authentication . 45 Chapter 5. Limitations on Credibility Evidence . 99 Chapter 6. Limitations on Evidence That Is Relevant to the Merits of the Case . 129 Chapter 7. Privileges and Similar Doctrines . 155 Chapter 8. The Best Evidence Rule . 199 Chapter 9. Opinion Evidence ......................................... 225 Chapter 10. The Hearsay Rule, Its Exemptions, and Its Excep- tions ......................................................... 241 Chapter 11. Substitutes for Evidence . .. .. .. .... .. .. .. .. ..... ... .. 315 Index ......................................................................... 329 iii TABLE OF CONTENTS Page Summary Table of Contents 111 Chapter 1. Introduction .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 1 · A. Introduction . 1 B. Laying a Foundation - In General . 2 1. -
Trial Witnesses, Un-Lead the Questions
Trial Witnesses, Un-Lead the Questions Prepared by: Dr. Ken Broda-Bahm Persuasion Strategies - a service of Holland & Hart LLP Published on www.lorman.com - May 2019 Trial Witnesses - Un-Lead the Questions, ©2019 Lorman Education Services. All Rights Reserved. Trial Witnesses, Un-Lead the Questions Written by Dr. Ken Broda-Bahm When testifying, there are some situations where a “less is more” rule applies. In a deposition, for example, you don’t want to aid the other side, and will often prefer conciseness. However, when undergoing cross-examination before a jury in trial, less isn’t more…it is less. That is, if you limit yourself to simple “yes” answers, then you have less control (with your adversary choosing all the words) less power (since you’re just confirming the facts that opposing counsel has selected), and less overall usefulness to the jury (since you aren’t saying much). In a courtroom cross-examination, there is a need to find ways to talk more so that you appear to be credible and, in some ways at least, so you function as a teacher for your jury. So, how do you do that if all opposing counsel is doing is giving you statements that are turned into questions by adding, “Wouldn’t you agree…” at the start, or, “Right?” at the end? What you need to do is mentally convert the language of those questions so they’re no longer leading questions. They may be asking you, “You never tested the product with actual consumers, did you?” but the question you want to answer is more like, “What did you do to test the product?” The broader version is better for ensuring that you aren’t just a rubber-stamp for your adversary’s selective claims, but instead get to share your side of the story. -
Direct Examination
Direct Examination dvocates begin the presentation of evidence by calling witnesses. The questions they ask of the witnesses they call are direct examination. A Direct examination of a witness should be the easiest part of an arbitration hearing. You have a friendly witness on the stand who generally wants to be helpful to your case. All you need do is ask the witness some simple questions and let them tell the arbitrator their story. Nothing could be easier, right? And nothing could be more perilous. Unlike cross-examination, you do not have complete control over the witness. Rather than stating facts and merely having the witness agree or disagree with those facts, as on cross, during direct it is the witness who narrates the facts. A misstatement, momentary lapse of memory or even an inappropriate emotional response and your case has suddenly become that much more difficult. Like any skill, questioning a witness is something that can be improved with practice and study. Practice not only by conducting direct examinations during your assigned arbitration hearings but also by offering to assist your fellow advocates as they prepare witnesses for arbitration. Help them conduct mock examinations of the witnesses that will testify during their assigned arbitrations. In addition, I recommend watching other advocates in action. If they’re better than you are, you’ll discover new skills or techniques you can apply to your cases. If they’re worse than you are, you’ll be reminded about mistakes that you shouldn’t repeat. Regardless of what happens, you’re almost guaranteed to learn something. -
Leading Questions: a Categorization System Scott and Steward
Leading Questions: A Categorization System Scott and Steward LEADING QUESTIONS: A CATEGORIZATION SYSTEM CLIFFORD D. SCOTT, University of Arkansas—Fort Smith MICHELLE D. STEWARD, Wake Forest University Marketing researchers agree that questionnaire design and specifically, leading questions, can be a significant contributor to total error in survey research. In challenges to research, leading questions are often a central issue. Interestingly, marketing literature on leading questions is mostly circular and lacking in a framework to identify and a process to remedy leading questions. This article focuses on: (a.) current treatment of leading questions and pitfalls of existing definitions; (b.) a synthesis of types of leading questions grounded in semiotics literature which leads to; (c.) a categorization of dimensions in which questions can be assessed to identify and remedy any leading nature of the question; and (d.) a new definition of a leading question. The value of the categorization lies in providing a framework allowing marketing researchers to better comprehend, diagnose and treat leading questions. INTRODUCTION oracle of truth, is subject to creating research to suit the interests of well-heeled contributors A leading question, or a question that “gives the (Goldberg, 2002; Crossen, 1994; Soley, 1995). respondent a strong cue or expectation as to People are deeply skeptical of reported research how to answer,” have long been recognized as a results because they fear the researchers are not significant source of error in survey research asking the right questions and may be (Burns & Bush, 2010, p. 309). Surveys are manipulating the wording of questions to get designed to understand the truth about the the responses they want (Mann & Dionne, views and the behaviors of people who can 2003). -
The Perils of Calling Your Opponent As a Witness in Your Case
OUTSIDE PERSPECTIVES The Perils Of Calling Your Opponent As A Witness In Your Case YEARS AGO, I WATCHED A PLAINTIFF’S ing on direct did not voluntarily take the stand and, attorney fail miserably in his attempts to tell his more importantly, did not have the opportunity prior to client’s story to a jury through his very first wit- examination by the opposing counsel to fully tell his or ness – one of the named her story. Many judges under these circumstances will Michael A. Stick defendants. At a recess, a allow an adverse witness greater freedom to deviate friend said to me: “This from the standard “yes or no” answers of cross exami- just proves that you are a nation and to explain their answers. This results in fool if you try to put on your case in chief through a direct examination that is often lengthier, choppier, an adverse witness.” As self-evident as my friend’s less predictable, and ultimately less compelling than a advice might seem, it is often ignored. tight, clean cross examination of the same witness in Except under unique circumstances, examining an your opponent’s case. The time to examine an unpre- adverse witness on direct during your case in chief dictable and hostile witness is during cross examina- for any extended period of time is usually a mistake. tion and not on direct during your case in chief. To begin with, using an adverse witness as your To make matters worse, juries in particular might spokesperson is simply not a compelling way to offer sympathize more with an adverse witness being exam- your evidence at trial. -
Witness Explanations During Cross-Examination: a Rule of Evidence Examined Jeffrey A
CORE Metadata, citation and similar papers at core.ac.uk Provided by Indiana University Bloomington Maurer School of Law Indiana Law Journal Volume 58 | Issue 2 Article 6 1983 Witness Explanations During Cross-Examination: A Rule of Evidence Examined Jeffrey A. Boyll Indiana University School of Law Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the Evidence Commons Recommended Citation Boyll, Jeffrey A. (1983) "Witness Explanations During Cross-Examination: A Rule of Evidence Examined," Indiana Law Journal: Vol. 58: Iss. 2, Article 6. Available at: http://www.repository.law.indiana.edu/ilj/vol58/iss2/6 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Witness Explanations During Cross-Examination: A Rule of Evidence Examined Professor McCormick prefaced the 1954 edition of his Handbook of the Law of Evidence with this observation: "That part of the law of procedure known as evidence law has not responded in recent decades to the need for . rationalization as rapidly as other parts of procedural law."' Twenty-eight years later his observation still rings true. This note considers one common law rule of evidence which has never been rationally examined: the rule which allows a witness to explain any answer during cross-examination.2 In an effort to rationally examine the rule,' considera- tion is given to the goals of the adversary system as they are affected by the current rule and by the rule proposed by this note. -
A Minimalist Approach to the Presentation of Expert Testimony
A MINIMALIST APPROACH TO THE PRESENTATION OF EXPERT TESTIMONY Edward J. Imwinkelried* Simplify. Simplify.1 Some commentators have suggested that, in the United States, trial by jury is becoming trial by expert.2 It is undeniable that the use of expert testimony is widespread. In the early 1990s, the Rand Corporation released a study on the incidence of expert testimony.3 The database included 529 civil cases tried in California Superior Court.4 The researchers found that [e]xperts testified in 86% of these civil jury trials. Overall, there were an average of 3.3 experts per trial; in the trials in which any experts appeared, there were an average of 3.8. Most trials with experts had two, three, four or five of them.5 The incidence of expert testimony would not be so high unless trial attorneys believed that jurors find that type of evidence persuasive. Yet there are indications that jurors often find that species of evidence unconvincing. For example, despite the substan- tial amount of expert testimony that the government proffered in the prosecution of O.J. Simpson, the jury acquitted. The behavior of the jury in the Simpson case is not an isolated phenomenon. In one study during the 1970s, researchers discovered that in cases where the prosecution introduced sound spectrography (voiceprint) evidence, the conviction rate was 11% lower than average.6 In another study conducted by one of the leading American legal psychologists, Dr. Elizabeth Loftus, the data suggested that lay * © Edward J. Imwinkelried, 2001. All rights reserved. Professor of Law and Director of Trial Advocacy, University of California at Davis. -
Impeachment and Rehabilitation Under the Maryland Rules of Evidence: an Attorney's Guide Paul W
University of Baltimore Law Review Volume 24 Article 4 Issue 1 Fall 1994 1994 Impeachment and Rehabilitation under the Maryland Rules of Evidence: An Attorney's Guide Paul W. Grimm Barton & Wilmer, LLP Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Grimm, Paul W. (1994) "Impeachment and Rehabilitation under the Maryland Rules of Evidence: An Attorney's Guide," University of Baltimore Law Review: Vol. 24: Iss. 1, Article 4. Available at: http://scholarworks.law.ubalt.edu/ublr/vol24/iss1/4 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. IMPEACHMENT AND REHABILITATION UNDER THE MARYLAND RULES OF EVIDENCE: AN ATTORNEY'S GUIDE Paul W. Grimmt Table of Contents I. INTRODUCTION ............................................... 96 II. O VERVIEW ....................................................... 97 III. RELEVANCE AND RELATED CONCEPTS- RULES 5-401, 5-402, 5-403 ................................... 99 IV. CHARACTER EVIDENCE AND IMPEACHMENT CONCEPTS-RULE 5-404 ................................... 102 V. PRELIMINARY QUESTIONS AND HEARSAY- RU LES 5-104, 5-806 ............................................ 103 VI. IMPEACHMENT IN GENERAL .......................... 105 A. Who May Impeach-Rule 5-607 ...................... 105 B. Mode of Interrogation-Rule5-611 .................. 107 C. Requirement of Personal Knowledge-Rule 5- 602 ............................................................ 112 VII. PRIMARY MEANS OF IMPEACHMENT-RULE 5- 6 16 ................................................................... 114 VIII. CHARACTER FOR TRUTHFULNESS OR UN- TRUTHFULNESS-RULE 5-608 ........................... 117 A. Use of Character Witnesses ............................ 118 1.