OVERVIEW OF RULES OF FORM

1. Evidence has procedural rules as well as substantive ones. We have already encountered one - the foundation requirement. The proponent of a business record must PROVE that the document is a business record by laying a very specific foundation. The party moving the gun into evidence must lay a specific foundation that it is authentic and in unchanged condition. Evidence can be objected to and excluded for violation of a procedural rules just as it can if it violates a substantive rule.

2. Even if relevant, non-hearsay evidence is presented by a competent witness with personal knowledge, an objection may be made and the evidence excluded if it is not presented in the proper form.

3. The basic procedural principle of evidence is that it must be presented in question & answer format:
a. The attorney asks questions.
b. The witness supplies answers.

4. The second basic principle, of course, is that the trial judge has broad discretion in controlling the interrogation of witnesses so as to make it fair and effective for eliciting full, complete and honest testimony.

5. Several rules flow from the first part of the basic principle - that the attorney is supposed to ask questions, not supply the evidence him/herself.
a) The attorney must ask a question and not make a statement. If the attorney makes a remark, such as "That's very odd, considering it was pitch dark outside," you may object that "This is a statement, not a question."
b) The problem is not cured by adding a question mark at the end of the statement. E.g., "It was pitch dark outside?" You may object that the question is "Leading."
c) Nor is the problem cured by adding "isn't that right?" at the end of the statement. E.g., "It was pitch dark outside, isn't that right?" You may object that the question is "Leading."
d) Nor is the problem solved by imbedding the statement in the middle of a question, e.g., "It was pitch dark outside, so how well could you actually see?" This, too is leading.

6. Leading questions are generally prohibited on direct examination, although there are several traditional exceptions: examining children, asking about preliminary or uncontested matters, laying foundations, questioning hostile or adverse witnesses, and refreshing recollection. They are generally allowed on cross-examination.

7. Questions may include factual references and not violate the rule against leading, as long as the existence of the reference point has already been established by the evidence. For example, after the witness testifies that it was dark outside, the attorney may ask "What did you do when you discovered it was dark and you had no flashlight?" even though it asserts that it was dark. However:
a) If the reference fact has not yet been proved, the objection is "Assuming a fact not in evidence."
b) If the reference fact differs from what has been proved, the objection is "Misstating the evidence."
c) If the reference fact differs from what this witness said earlier, the objection is"Misquoting the witness."

8. If question contains not just a factual assertion but an argumentative conclusion, you may object that the attorney is being "argumentative." For example: "It was so dark, you couldn't possibly have seen anything, could you?" Argumentative questions are not allowed when examining children, asking about preliminary or uncontested matters, laying foundations, questioning hostile or adverse witnesses, refreshing recollection, or cross-examining.

Examples (all from actual cases):
a) Would it surprise you to know that the victim had a substantial blood alcohol level that day?
b) Did you know that the defendant injected people with drugs, performed abortions on women, had an illegitimate child, killed a woman during an abortion, was charged with a sex offense against his daughter.
c) You're telling this jury you can recognize a man wearing a beard and moustache 5 years after seeing him, when you saw him before only as a boy?
d) If the lawyers can't figure out how she wanted to dispose of her property, how do you suppose she was mentally competent?
e) The truth is that you have no recollection, do you?
f) [after witness expressed uncertainty whether the robber had a moustache] Surely you know what a moustache is?

9. Questions must also be reasonably clear. You can object to questions that are:
a) Compound - involving two or more separate issues
b) Ambiguous, vague, or incomprehensible.

10. Questions must be asked in a professional manner and the witness treated with respect. You can't embarrass, browbeat, harass, yell at, or insult a witness. That's called badgering.

11. The second principle is that witnesses are supposed to answer questions, not take over running the examination. Two rules flow from this principle:
a) The witness may not testify in a narrative - extended testimony moving from topic to topic, without any guidance from the attorney.
b) The witness must answer the question asked, and may not give nonresponsive answers or volunteer testimony that was not asked for.

12. Once a question has been asked and answered, the process of eliciting that item of evidence is completed. If the attorney attempts to go back over the same evidence, you may object that it has been asked and answered. This rule applies only within one phase of the examination of one witness. Testimony that was brought up on direct examination of a witness may be brought up again during cross and again during redirect, and again when the next witness is called.

13. Witnesses forget things. When that happens, you may refresh their memory. A foundation is required.
a) The witness must have forgotten something. Incomplete or uncertain memory is not enough. If the witness denies that the event happened, denies saying it happened, or adopts feigned loss of memory, the remedy is impeachment of the witness, not refreshing recollection.
b) The witness had personal knowledge of the matter.
c) You then may attempt to refresh memory by asking a leading question or showing the witness a document
d) The witness must then be able to testify to the matter substantially from memory, and not merely by reading from a document.
e) If a document used, it is not admissible as an exhibit on direct, but may be put into evidence by the opponent.

14. If the attempt to refresh memory is unsuccessful, the document itself is not independently admissible unless it satisfies a hearsay exception. The usual exception is 803(5) for records of past recollection. The foundation requires proof that the document was made or adopted by the witness while the event was fresh in the witness's memory, and that the record is remembered to be accurate.