TESTIMONY ON DIRECT
RENDERING EXCLUDED ILLEGALLY OBTAINED EVIDENCE ADMISSIBLE:
Offering defense testimony also raises the potential threat that same will open the door to previously excluded illegally obtained evidence, even if the area impeached was only “suggested” in direct. Harris v. New York, 401 US 222 (1971) (allowing use of a confession obtained in violation of Miranda for impeachment purposes); US v. Havens, 64 L.Ed.2d 559 (1980) (allowing evidence illegally obtained in violation of Defendant’s Fourth Amendment rights, to be used for impeachment of response elicited on cross-examination which court found was ‘reasonably suggested” by his direct examination).
See also US v. Hickey, 596 F.2d 1082, 1088-89, 444 US 853 (1979) (suppressed statements may only be used to impeach defendant as to statements volunteered during his direct testimony).
LEADING HOSTILE AND ADVERSE WITNESSES
FED. R. CRIM. P. Rule 611(c) provides that one may lead one’s own witness where he or
- a hostile witness,
- an adverse party, or
- one identified with an adverse
MODE OF INTERROGATION [FED. R. EVID. RULE 611]
SCOPE OF EXAMINATION [FED. R. EVID. RULE 611(b)]
(See Rules of Evidence Outline):
One may arguably limit the scope of cross-examination to the subject matter of the direct examination and matters affecting the credibility of the witnesses. See FED. R. CRIM. P. Rule 611 (b) (limiting the original draft which allowed cross-examination “…on any matter relevant to any issue in the case”); H.R. Rep. No. 93-650, Cong. First Sess. 12.1973; see also US v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971); Casey v. US, 413 F.2d 1303 (5th Cir. 1969), cert. denied, 3976 US 1039 (1970); US v. Evanchik, 413 F.2d 950 (2d Cir. 1969); US v. Cole, 617 F.2d 15 (5th Cir. 1980)
(permitting interrogation outside the scope of direct as to witness’ credibility). However, as a practical matter such is a dangerous adventure.
REFRESHING YOUR WITNESS’ RECOLLECTION
Where the witness has knowledge of certain facts, but fails to recall or advert to same, counsel may attempt to refresh the witness’ memory by a question suggesting the matter forgotten, or utilize any of the means which may serve to jog the witness’ memory, US v. Rappy, 157 F.2d 964, 967 (2d Cir. 1946), cert. denied, 329 US 806 (stating that anything may be used to refresh a witness’ recollection, “a song, a scent, a photograph, an allusion, even a past statement known to be false”); including hearsay, US v. Heath, 580 F.2d 1011, 1020 (10th Cir. 1978); Esperti v. US, 406 F.2d 148, 150 (5th Cir. 1960); Johnston v. Earle, 313 F.2d 686, 688 (9th Cir. 1962); and otherwise inadmissible evidence, US v. Faulkner, 538 F.2d 724, 727 (6th Cir. 1976), cert. denied, 429 US 1023; Collins v. Penn Cent. Transp. Co., 497 F.2d 1296, 1298 (2d Cir. 1974).
Even a writing prepared by another, US v. Conley, 503 F.2d 520, 522 (8th Cir. 1974); US
- Boyd, 606 F.2d 792, 794 (8th Cir. 1979); or prior testimony, US v. Tager, 481 F.2d 97, 100-01 (9th Cir. 1973), cert. denied. 415 US 914 (1974); may be used to refresh recollection, regardless when made or prepared, US v. Horton, 526 F.2d 844, 899 (5th Cir. 1976) (holding “where the issue, as here, is one of present recollection revived, the doctrine of contemptoraniety has little application”); while it was traditionally held that the witness’ recollection should in fact appear exhausted before it refreshed with a writing, US v. Morlang, 531 F.2d 183, 191 (4th Cir. 1975); same may not be there with respect to Jencks material, US v. Jiminez, 613 F.2d 1373, 1378 (5th Cir. 1980).
While using a writing to refresh a witness’ recollection does not itself render the writing admissible by the party so utilizing same, US v. Smith, 521 F.2d 957, 969 (D.C. Cir. 1975), FED.
- CRIM. P. Rule 612 expressly provides that the adverse party “is entitled to have the writing produced … to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.”
OPINION ON ULTIMATE ISSUE [FED. R. EVID. RULE 704]
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. United States v. Lueben, 816 F.2d 1032 (5th Cir. 1987) (In a Section 1001 prosecution, the District Court was obliged to consider the Defense expert’s testimony on the issue of whether the false statements made by the defendant were material, i.e., whether they satisfied an essential element of the offense charged, irrespective of the fact that this would be an opinion on an ultimate question of law).
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENT [FED. R. EVID. RULE 801(d)(1)(A)]
Where a declarant, who is subject to cross-examination about the statement, makes a statement at trial that is inconsistent with a prior statement given “under oath subject to the penalty of perjury at a trial, hearing, or other proceeding,” the prior inconsistent statement is admissible. US v. Begham, 812 F.2d 943 (5th Cir. 1987) (holding prior grand jury testimony of prison guard that he saw the defendant, fellow prison guard, strike an inmate held admissible because it was inconsistent with his trial statement that he could no longer remember what happened).
CHARTS OR SUMMARIES OF VOLUMINOUS WRITINGS, RECORDINGS OR PHOTOGRAPHS WHICH CANNOT BE CONVENIENTLY EXAMINED IN COURT MAY BE “PRESENTED” IN THE FORM OF A CHART, SUMMARY, OR CALCULATION
FED. R. EVID. Rule 1006 provided:
“The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.” (emphasis added) FED. R. EVID. 1006.
UNDERLYING DOCUMENTS MUST BE VOLUMINOUS AND IN-COURT EXAMINATION MUST BE INCONVENIENT
“There is no requirement in Rule 1006 …that it be literally impossible to examine the underlying records before a summary or chart may be utilized. All that is required for the rule to apply is that the underlying ‘writings’ be ‘voluminous’ and that in-court examination not be convenient.”
US v. Scales, 504 F.2d 558, 562 (6th Cir. ), cert. denied, 441 US 946 (1979).
NOT REQUIRED THAT UNDERLYING DOCUMENTS THEMSELVES BE RECEIVED IN EVIDENCE AS A FOUNDATION FOR THE SUMMARIES BUT ONLY THAT THEY BE “AVAILABLE”:
Although pre-rule cases often required the underlying documents to be in evidence as a foundation for use of a chart or summary, see. e.g., McDaniel v. US, 343 F.2d 785, 789 (5th Cir.) cert. denied. 382 US 826 (1965); the history and wording of Rule 1006 requires only that the underlying documents be “available.” US v. Smith, 556 F.2d 1179 (5th Cir.), cert. denied, 434 US 962 (1977).
UNDER RULE 1006, CHART OR SUMMARY MAY BE CONSIDERED AS EVIDENCE RATHER THAN A MERE JURY AID
As the Fifth Circuit has held in US v. Smith:
“Although the word “evidence” does not appear in [Rule 1006’s] text we construe the rule as treating summaries as evidence under circumstances where, in the court’s discretion, examination of the underlying documents in a trial setting cannot be done conveniently
… The court could have excluded all the underlying documents and received the summaries as evidence.” Smith, 556 F.2d at 1184.
BUT CHART STILL REQUIRED TO E ACCURATE, AUTHENTIC AND PROPERLY INTRODUCED BEFORE ADMISSION UNDER RULE 1006
Nevertheless, “even under Rule 1006, the summary or chart must be accurate, authentic and properly introduced before it may be admitted in evidence.” US v. Scales, 594 F.2d 558, 563 (6th Cir.), cert. denied. 434 US 862 (1979) and cases cited therein.
The person “who supervised” the chart or summaries “compilation” is “the proper person to attest to the authenticity and accuracy of the chart.” US v. Scales, 594 F.2d 558, 563 (citing Weinstein’s, Evidence, ¶1006). Thus, it would appear that an attorney who prepares a chart or summary in open court during examination of a witness may have the witness attest to its authenticity and accuracy because although such witness does not himself prepare same he has effectively “supervised” its “compilation.”
SUMMARY OF PURELY TESTIMONIAL EVIDENCE MAY ALSO BE UTILIZED AS A JURY AID WITH LIMITING INSTRUCTION THAT IS NOT TO BE CONSIDERED AS EVIDENCE
Moreover, although summaries of purely testimonial evidence “cannot be said to come within requirements of Rule 1006,” US v. Scales, 594 F.2d at 563; some cases allow the use of such summaries where the purpose is merely to aid the jury in its examination of evidence already admitted. See, e.g., Epstein v. US, 246 F.2d 563, 570 (6th Cir. 1957); Barber v. US, 271 F.2d 265 (6th Cir. 1959). See also US v. Scales, 594 F.2d at 563. Authority for such summaries exists under the “established tradition” of the various circuits and Federal Rules of Evidence 611 (a). US v. Scales, 594 F.2d at 563-64.
Although the danger of permitting presentation of a summary of testimony is plain [i.e. jury might rely upon alleged facts in summary as if they had already been proved; summary may be too conclusory; etc.] most summaries are routinely admitted albeit with “guarding instructions” to the effect that the chart is not itself evidence but is only an aid in evaluating the evidence.” See US v. Scales, 594 F.2d at 563-64.
CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT [FED. R. EVID. RULE 404]
(See Rules of Evidence Outline at 12-16)
CHARACTER EVIDENCE GENERALLY:
Evidence of a person’s character or a particular character trait is not admissible to prove that person acted in conformity therewith on a particular occasion, except: