(vii) If, during direct examination, you intend to question a witness about a group of documents, avoid delays by providing all documents to the witness at the beginning of the examination. Most litigators have lived this dream or a variation of it at some point in their careers. The fear of trial never subsides to some extent, even with the experience and comfort in the courtroom. There is so much to worry about. Despite the myriad of concerns – logistics, witnesses, judge, adversary – trials and their outcomes usually boil down to the rules of evidence. The rules are scary and difficult, and they continue to cause consternation and, yes, nightmares for young and experienced lawyers. For each witness, give a very concise description (maximum 2 or 3 sentences) of the witness and the role of the witness in the case. The reasons given in 1983 for extending rule 26.2 to a suppression trial are equally convincing with respect to other hearings of the opponent`s type, which ultimately depend on accurate and reliable information. That is, there is an ongoing need for information that affects the credibility of witnesses who testify. And this need exists regardless of whether the witness testifies at a preliminary hearing, a main hearing or a follow-up trial. The part of the 403 analysis that attracts less attention is the reference to the application of the balancing test for confusion of issues, deception of the jury, unnecessary presentation of cumulative evidence, or waste of time. Almost every judge I know focuses on time.
Is the jury waiting too long? Are the sidebars too long? Does this legal argument need to be resolved now? Will the presentation of this marginally relevant evidence take an undue amount of time? Is the live too long? Is cross-examination too long? Lawyers will not help their clients if they do not consider the 403 Rule 403 objection of wasted time. Prejudice is almost exclusively a verdict left to the discretion of the court. It requires the classic balancing test. Does the risk of unfair disadvantage far outweigh the probative value of the evidence? Although the issue is most often expressed in terms of unjust prejudice, other considerations also apply. Evidence may be excluded if confusion of issues, jury deception, undue delay, or loss of time come into play. Under paragraph (a) of the rule, the request for production may be made by “a party who has not called the witness”. Thus, it also requires disclosure of statements in the possession of one of the parties if the witness is not called by either the prosecution or the defence, but by the court in accordance with the federal rules of evidence. The current law does not address this situation, the consistency of which requires that it be treated in the same way as the disclosure of witness statements summoned by a party to the dispute. The majority of the literature assumes that experts testify only in the form of expert opinions. The hypothesis is logically unfounded.
The rule thus recognizes that an expert may make a thesis or presentation of scientific or other principles relevant to the case in the gallery, leaving it to the trier of fact to apply them to the facts. Given that much of the criticism of expert testimony has focused on the hypothetical issue, it seems wise to recognize that expert opinion is not indispensable and to encourage the use of expert testimony in the form of a non-expert opinion if defence counsel believes that Trier himself can draw the necessary conclusion. However, the rule does not abolish the use of opinions. Experts will continue to be allowed to take the next step and propose conclusions to be drawn from the application of the expert opinion to the facts. See Articles 703 to 705. Finally, Section 602 is extremely effective in fending off attempts to turn factual witnesses into experts. How does this happen? Nothing convinces jurors more than witnesses who appear to be well-trained, open and knowledgeable. This, of course, happens easily when a witness receives the imprimatur of the court and is considered an expert. My scenario contemplates a case in which a witness who is not officially considered an expert witness attempts to testify definitively in a way that is essentially opinion. The witness could be asked, “What is your opinion of X?” or “Would you have allowed X to happen?” These are all valid concerns, but for starters, my most fundamental advice is to throw caution to the wind. Be prepared to appeal at any time if a witness remembers to the jury what they have already said or heard and are currently telling on the witness stand.
If you are not willing to act, you may lose your objection. Over time, you will learn that apart from offensive hearsay, there will be hearsay that, although offensive, you will choose not to contradict and admit the evidence. Undoubtedly, recognizing and distinguishing such nuances will come one day, but if you are reading this article, that day may not have come yet. Article 1006 states that “the contents of voluminous writings, records or photographs that cannot be conveniently examined by a court may be presented in the form of a table, summary or calculation.” What is the value of a summary? This creates the possibility of constructing evidence to present extensive or substantial evidence in a form that you control and that can convince.