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OHare vs. Hutchinson

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1. Q: Ms. Hutchinson, how are you employed?IS THIS AN ACCEPTABLE BACKGROUND QUESTION? RELEVANT, WHY? Yes, this is an acceptable background question. – PowerPoint PPT presentation

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Title: OHare vs. Hutchinson


1
OHare vs. Hutchinson
  • By
  • Rebeca R.
  • Luisa R.
  • Maria G.

2
FACTS OF THE CASE
  • Civil suit for damages for personal injuries
    suffered by OHare as a result of having been
    struck on September 22 by a car driven by
    Hutchinson. OHare claims that he was in a
    crosswalk at the intersection of Main and Peach
    Streets when Hutchinson negligently made a left
    turn into Main, striking and injuring OHare.
    During OHares case-in-chief, OHare called a
    witness who testified that she observed what
    happened because she was stopped on Main waiting
    for the light to change to green. She testified
    that Hutchinson was traveling along Peach at
    30-35 m.p.h., that Hutchinson did not slow down
    as she made a left turn onto Main, that she
    appeared to be looking at something on the seat
    next to her rather than at the street, and that
    Hutchinson struck OHare in the crosswalk. OHare
    also testified that he was in the crosswalk when
    struck. Hutchinson contends that she was driving
    carefully, and that OHare was struck not in the
    crosswalk, but about 25 yards up the block when
    he suddenly ran out from between two parked cars.

3
Direct Examination by Defense Counsel
  • 1. Q Ms. Hutchinson, how are you employed?
  • A Im a building contractor.
  • Q How long have you been a contractor?
  • A For about 12 years now.

4
1. Q Ms. Hutchinson, how are you employed?IS
THIS AN ACCEPTABLE BACKGROUND QUESTION? RELEVANT,
WHY?
  • Yes, this is an acceptable background question.
    Its not relevant but it allows the Jurors to
    familiarize themselves with the witness in a
    personal level.

5
2. Q Have you worked on any well-known
projects?IS THIS AN ACCEPTABLE BACKGROUND
QUESTION? IS EVIDENCE OF GOOD CHARACER RELEVANT?
AT THIS TIME?
  • The question being asked to the witness is
    relevant because it has gone beyond expectable
    background evidence. Digging into her
    professional accomplishments directs the Jury to
    evidence of good character.

6
  • Q Have you worked on any well-known projects?
  • A Well, Im proud to say that the Sewer Sludge
    Reclamation Plant was my project. And a couple of
    years ago, I received our industrys customer
    satisfaction award.
  • Q All right, let me turn your attention to the
    events of September 22, at about 300 in the
    afternoon. What were you doing at about that
    time?
  • A I was on my way to a construction project over
    on Main and 3rd, about 6 blocks away from where
    the accident took place.
  • Q Where were you coming from?
  • A A small remodeling job over on Elm, a couple
    of miles away.
  • Q What type of vehicle were you traveling in?
  • A A company pickup truck.

7
3. A Well, Im proud to say that the Sewer
Sludge Reclamation Plant was my project. And a
couple of years ago, I received our industrys
customer satisfaction award.RECEIPT OF THE AWARD
- IS THIS RELEVANT, WHY OR WHY NOT?
  • Any award or accomplishment is plainly irrelevant
    to the case due to character evidence making it
    inadmissible at this stage.

8
4. Q What route did you take to get to Main
3rd?IS THIS RELEVANT, WHY OR WHY NOT ? WHAT DOES
THE EVIDENCE OR "RECALL" HAVE TO DO WITH THIS
TRIAL?A The most direct route, up Elm to
Peach, then its about a mile over to Main.
  • Yes, it is relevant to ask the route that the
    witness took. It allows her to recall events
    before and after the moment of substantive
    importance. This will allow the Jurors to give
    credibility that her mind state was aware of her
    surroundings.

9
5. Q How fast do you usually drive when youre
going from one job to another?USUALLY DRIVE? IS
THIS RELEVANT, OR NOT, WHY, OR WHY NOT, WHAT DOES
IT PROVE, OR NOT, IF ANYTHING?A No more than
30 m.p.h. in the city.
  • The speed that the witness usually drives is
    irrelevant due to the fact that different
    situations differ on her state of mind and cannot
    logically connect to how she was driving on the
    date of the accident.

10
6. Q 30 m.p.h.IS "ECHOING" THE PREVIOUS ANSWER
IN 6, BY SAYING "30 MPH?", WHAT IF ANYTHING IS
WRONG WITH THAT, WHY OR WHY NOT, IS IT
RELEVANT?A No more than 20 m.p.h.
  • Echoing the previous statement that the witness
    made could be highly object able but remain
    relevant

11
7. Q Was there any particular reason that you
were driving 20 m.p.h. on this occasion?IS THIS
A RELEVANT QUESTION, WHY OR WHY NOT. WHAT DOES IT
TEND TO ENHANCE ABOUT THE PERSON MAKING THE
STATEMENT?A Yes. I had picked up expensive
kitchen cabinets earlier in the day, and though
they were tied down I did not want to bump them.
  • This statement is irrelevant due to it allows
    the witness to further explain the reason why she
    was being couscous as she was driving 20mph.

12
Q In the year prior to this incident, about
how many times per month wouldyou say you drove
through the intersection of Peach and Main?8.
A On the average, at least 8-10 times.WHAT IS
THIS RELEVANT TO SHOW? WHY?
  • Yes, this is relevant as it allows the witness to
    show how familiar she is with the location which
    the incident occurred.

13
9. Q Please describe what happened as you were
driving along Peach and approached Main.DOES
THIS QUESTION CALL FOR A "NARRATIVE" - WHAT DOES
THAT MEAN, WHAT IS GOOD ABOUT THIS QUESTION? A
I went into the left turn lane and slowed down to
turn left. I made the turn onto Main, and had
straightened out and was starting to pick up a
bit of speed when suddenly he pointing to
OHare ran into the street. I never saw him
until then. I tried to stop and swerve, but it
was too late.
  • Yes, this allows the witness to explain the
    incident in her own words calling for a
    narrative.

14
  • Q So you at no time saw Mr. OHare in the
    crosswalk?
  • A No.
  • Q Have you ever seen Mr. OHare in the vicinity
    of Peach and Main before?
  • A Im pretty sure I have.
  • Q What happened on that occasion?
  • Pl. Att Your Honor, I ask permission for brief
    voir dire going to the witness personal
    knowledge.
  • The Court Be very brief.
  • Pl. Att I also ask that the jury be excused for
    the voir dire.

15
10. Q So you at no time saw Mr. OHare in the
crosswalk?WHAT IS WRONG WITH THIS QUESTION, AND
WHY?
  • The question being asked is going past what the
    witness has already answered in her testimony.
    Although in some circumstances there are Judges
    that will allow the witness to continue.

16
  • The Court Counsel, I see no need to take the
    time to excuse the jury. Please proceed.
  • Voir Dire Examination by Plaintiffs Attorney
  • Q Ms. Hutchinson, on this earlier occasion that
    you may have seen Mr. OHare in the vicinity of
    Peach and Main, about how far away from him would
    you say you were?
  • A Id say about 50 feet.
  • Q And as of that time, you had never seen Mr.
    OHare before, correct?
  • A As far as I know, that's right.
  • Q And you saw him only from the side, isnt that
    correct?
  • A That's true.
  • Q And you cant be certain it was Mr. OHare who
    you saw, can you?
  • A No, but from seeing him run out from between
    the cars, I think it was him I saw earlier.

17
11. The Court Counsel, I see no need to take the
time to excuse the jury. Please proceed.IS THE
RULING OF THE COURT CORRECT? IS IT WITHIN THE
JUDGE'S DISCRETION UNDER FRE 104 (C)
  • Yes, Under FRE 104, (c) Hearing of jury. Hearings
    on the admissibility of confessions shall in all
    cases be conducted out of the hearing of the
    jury. Hearings on the other preliminary matters
    shall be conducted when the interests of justice
    require, or when an accused is a witness and so
    requests.

18
  • The Court I merely have to decide whether the
    jurors could reasonably believe that the witness
    had personal knowledge. Based on the testimony,
    Ill overrule your objection. Defense counsel may
    proceed.
  • Direct Examination by Defense Counsel
  • Q Ms. Hutchinson, what happened on that
    occasion?
  • A Well, it was about a week before the accident.
    I was coming out of the little market on Main
    just north of the intersection with Peach. I saw
    a man crossing Main at just about the same spot
    that OHare ran out from between the two cars. Im
    pretty sure the man I saw was OHare.
  • Pl. Att Objection, Your Honor, irrelevant and
    unduly prejudicial under Rule 403. Move to
    strike.
  • The Court Will both counsel approach the bench.
    (At the bench) Plaintiffs counsel, on what basis
    do you claim the testimony is irrelevant?
  • Pl. Att Your Honor, there is just no connection
    between Mr. OHare allegedly having crossed Main
    away from the crosswalk one week earlier, and his
    having done so on the date he was struck.
  • The Court Defense counsel, any response?
  • Def. Att Your Honor, we offer the evidence of
    the earlier incident not to prove that OHare
    failed to use the crosswalk on the date in
    question. Rather, I make an offer of proof that
    Ms. Hutchinson will testify that she was paying
    very careful attention to this location on the
    date in question because of having seen a
    jaywalker there just a week earlier.

19
12. The Court I merely have to decide whether
the jurors could reasonably believe that the
witness had personal knowledge. Based on the
testimony, Ill overrule your objection. Defense
counsel may proceed.IS THE COURT'S STATEMENT OF
THE LEGAL RULE CORRECT? SEE FRE 104(B) IS THE
FOUNDATION SUFFICIENT FOR A FINDING OF PERSONAL
KNOWLEDGE? WHY OR WHY NOT? IS THE THRESHOLD FOR
SUCH A FINDING, LOW OR HIGH, WHY OR WHY NOT?
  • Statement of legal rule is correct Under FRE
    104,(b) Record of offer and ruling. The court may
    ad any other further statement which shows the
    character of the evidence, the form in which it
    was offered, the objection made, and the ruling
    thereon. It may direct the making of an offer in
    question and answer form. The witness is to
    clarify that she is paying very careful attention
    to this location on the date in question as she
    had seen a jaywalker a week before.

20
13. The Court Under Rule 403 I grant the request
to strike the answer. It has some probative
value, but I think the jury might use if for the
inadmissible purpose of inferring that because
OHare jaywalked on an earlier occasion, he did so
on the date he was hit.IS THE COURT RULING
CORRECT? WHY OR WHY NOT? IS IT WITHIN THE TRIAL
JUDGE'S DISCRETION? IS IT RELEVANT HOW O'HARE
MIGHT HAVE BEHAVED ON A SINGLE OCCASION IN THE
PAST? WHAT ABOUT "IM PRETTY SURE" IS THAT ENOUGH
FOR "PERSONAL KNOWLEDGE" WHY OR WHY NOT.Def.
Att Would Your Honor consider "sanitizing" the
evidence? In otherwords, allow my client to
testify that she was driving especiallycarefully
because she had seen a jaywalker at the same
location a weekearlier, but remove any reference
to OHare in her testimony.
  • The witnesses prior statement, Im pretty sure,
    is considered enough for personal knowledge.
    Although, UNDER FRE 403, and comparable state
    evidentiary rule against unfair prejudice may be
    used by counsel to keep out evidence admissible
    for one purpose, but admissible for another.
    Being said the actions made by OHare days prior
    to the accident is irrelevant to his actions on
    the date of the accident.

21
14. The Court No, Ill deny that request as well.
(In open court) Jurors, I have ruled that any
evidence pertaining to an earlier incident, if
any,involving Mr. OHare is inadmissible. I
instruct you not to considerthat testimony for
any purpose.DOES THE COURT HAVE DISCRETION TO
GRANT THIS REQUEST? NOTE THAT JURORS ARE ASKED TO
FORGET INFORMATION? IS THIS REALLY POSSIBLE, WHY
OR WHY NOT ?Q All right, Ms. Hutchinson, lets
go back to the point when you're turningoff
Peach into Main. Did you notice anything unusual
on the northeast corner of that
intersection?Pl. Att Objection. The question
is vague.
  • Yes, there are some cases that ask the Jurors to
    forget statements already heard from the
    witnesses. Although there are occasions that the
    Jury has difficulty doing so.

22
15. The Court Overruled. The witness may
answer.CORRECT RULING BY THE COURT? ISNT
"ANYTHING UNUSUAL" PRETTY VAGUE? HOW DOES THAT
COMPARE WITH A LEADING QUESTION, LIKE "DID YOU
NOTICE 3 CHILDREN ON THE CORNER?A Yes, as I
was making the turn I saw 3 young children
roughhousing a biton the corner. Its a busy
intersection, and I was afraid that someone would
get hurt.Pl. Att Objection, Your Honor,
irrelevant.
  • Even though the questions were unusual the court
    did rule correctly by allowing the witness to
    continue further with detail of what happened
    prior to the accident.

23
16. The Court Overruled.CORRECT RULING? CAN A
GENERALIZED PREMISE CONNECT CIRCUMSTANTIAL
EVIDENCE TO THE ULTIMATE FATS, OR TO "FACTUAL
PROPOSITIONS"? WHAT DOES IT MEAN OUTWEIGHED BY
403 CONSIDERATIONS?
  • Although the courts ruling was correct, the
    counter-generalization on evidence will always
    outweigh the admissibility as long as Defense
    counsels premises is a reasonable and relevant.

24
17. Q Could you tell the approximate ages of the
children?WHAT IS THIS RELEVANT TO SHOW?
  • Yes, this allows the witness to show her memory
    of detail.

25
18. A Id say about 8, 6 and 3.ARE OPINIONS
ABOUT AGES PROPER, WHY OR WHY NOT?
  • Pursuant to FRE 701. Opinion Testimony by Lay
    Witnesses, If a witness is not testifying as an
    expert, testimony in the form of an opinion is
    limited to one that is (a) rationally based on
    the witnesss perception (b) helpful to clearly
    understanding the witnesss testimony or to
    determining a fact in issue and (c) not based on
    scientific, technical, or other specialized
    knowledge within the scope of Rule 702. An
    opinion on ones age is always allowed.

26
  • Q Ms. Hutchinson, were you issued a traffic
    ticket of any kind based on this incident?
  • A No.
  • (remainder of testimony omitted) Cross
    Examination by Plaintiffs Attorney
  • Q Ms. Hutchinson, prior to striking Mr. OHare,
    had you consumed any alcoholic beverages that
    day?
  • Def. Att Objection, lack of foundation. There's
    no evidence that my client had had anything to
    drink.
  • The Court Any response?
  • Pl. Att I'm allowed to ask the question, Your
    Honor. The witness can tell us what the truth is.

27
19. Q Ms. Hutchinson, were you issued a traffic
ticket of any kind based on this incident?IS
THIS RELEVANT A QUESTION, WHY OR WHY NOT?
  • Irrelevant, for the Defense attorney is trying to
    show good character that she did not receive a
    traffic ticket for the incident that occurred.

28
20. The Court Ill allow it. Witness may
answer.CORRECT RULING. WHY OR WHY NOT?A
Absolutely not.Q Well, are you addicted to any
narcotic drugs?Def. Att Objection, objection!
Lack of foundation.The Court Counsel?Pl.
Att Same response, Your Honor. The witness can
affirm or deny.
  • Although the ruling was correct the council may
    take a risk by asking the question. The Jury may
    believe that there is evidence showing the
    witness drinking prior to the accident.

29
21. The Court Well, Ill allow it, but then move
on.WHY IS THIS AN INCORRECT RULING OF THE COURT?
DOES IT RELATE TO A "CHARACTER-RELATED DEFECT? DO
YOU THINK A "GOOD FAITH" BELIEF. EG. BASED ON
DOCUMENTATION OR ANOTHER WITNESS IS REQUIRED
HERE, WHY OR WHY NOT?Def. Att I also object on
the ground that whether or not my client is at
present addicted to narcotic drugs is irrelevant.
  • The ruling was incorrect. Most all courts will
    allow minimum requirements of a council to have
    of good faith belief that based on proper
    documentation and credible witness.

30
22. The Court On that ground, the objection is
sustained.THIS SHOWS HOW A JUDGE MANY TIMES RULE
ONLY ON THE SPECIFIC OBJECTION THAT IS MADE. IS
THE RULING CORRECT? IS THIS A RELEVANT QUESTION?
WOULD THIS OBJECTION AND ARGUMENT BE BETTER MADE
OUT OF THE "HEARING" OF THE JURY, WHY OR WHY
NOT?Q Then Ill rephrase my question. At the
time of this accident, September22, were you
addicted to any narcotic drugs? Def. Att
Objection, irrelevant.
  • The ruling is correct but the evidence of
    addiction is irrelevant due to a lack of having
    any ties of narcotic use. This objection would be
    better off out of the hearing for it may confuse
    the Jury.

31
23. The Court Ill still sustain the
objection.CORRECT RULING, WHY OR WHY NOT? DOES
EVIDENCE OF ADDICTION HAVE ANY PROBATIVE VALUE,
IF SO WHAT AND WHY?
  • Although the ruling was correct, without having
    any proof of evidence that the Defendant was
    under the influence of drugs at the time of the
    accident. Will have no probative value to the
    case.

32
24. Q Ms. Hutchinson, you are the sole owner of
your contracting business, correct?ISNT THIS A
LEADING QUESTION. WHY IS IT ALLOWED ON
CROSS-EXAMINATION, BUT NOT ON DIRECT
EXAMINATION?A That's true.
  • It is okay for a leading question to be asked on
    cross examination to show the relevance for any
    financial interest that is based on the case.

33
25. Q These children that you saw on the
sidewalk, can you remember what they were
wearing?A Im sorry, I cant.IS IT PROPER TO
TEST MEMORY FOR DETAILS. WHY OR WHY NOT? WHY IS
IT RELEVANT?
  • It is good to test memory. This question allows
    to collect any additional evidence or any
    information that could be relevant to resolve the
    case.

34
26. Q Pretty selective memory you have, wouldnt
you say?WHAT OBJECTION TO YOU MAKE HERE? A I
dont know what you mean.Q Ill move to
something else. At the time you struck Mr. OHare,
you wereon your way to a construction project at
3rd and Main, correct?Def. Att Objection,
asked and answered. I asked this question on
direct.
  • As Defense counsel, Objection your honor,
    harassing the witness, by stating that she has
    selective memory states that the witness only
    wants to remember to what might be beneficial to
    herself.

35
  • The Court Overruled. You may answer.
  • A That's correct.
  • Q And the reason you were going to that job is
    that an inspection had been missed, correct?
  • A Yes.
  • Q A missed inspection can delay work, right?
  • A That's possible.
  • Q You were upset, weren't you, that the
    inspection had been missed?
  • A Not too much, it happens.
  • Q But you were thinking about the missed
    inspection as you drove towards
  • Main and 3rd, weren't you?

36
27. The Court Overruled. You may answer.CORRECT
RULING? CAN A QUESTION BE ASKED A SECOND TIME?
WHY OR WHY NOT? IS IT OK IF IT IS ASKED BY
DIFFERENT COUNSEL IN THIS CASE?
  • The court gave a proper ruling. As an attorney
    they may ask the same question twice as they are
    the one who develop their own questions. In many
    cases there will be objections if the question is
    indeed asked twice.

37
28. The Court What ruling?WHAT RULING? WOULD
YOU GRANT THE MOTION TO STRIKE? WHY IS IT
"NON-RESPONSIVE" IN THIS CASE? WHAT DOES IT MEAN
THAT IT IS A "GRATUITIOUS REMARK" AND NOT AN
EXPLANATION. WHY STRIKE IT?
  • Gratuitous remark Dictum A statement, comment or
    opinion, an abbreviated version of obiter dictum.
    A remark, by the way, which is a collateral
    opinion stated by a judge in the decision of a
    case concerning legal matters that do not
    directly involve the facts or effects that
    outcome of the case. Such as a legal principle
    that is introduced by way of illustration,
    argument, analogy or suggestion.

38
  • Q So your testimony is that even though you were
    annoyed by the missed inspection, you were
    concentrating on your driving?
  • A That's correct.
  • Q Mr. OHare appears to be of Hispanic descent,
    isn't that true?
  • A That appears to be the case.
  • Q And isn't it a fact that you've never hired a
    person of Hispanic descent to work for you?
  • Def. Att Objection, Your Honor, irrelevant.

39
29. Q So your testimony is that even though you
were annoyed by the missed inspection, you were
concentrating on your driving?DOES THE QUESTION
CORRECTLY QUOTE THE WITNESS, DID THE WITNESS SAY
SHE WAS 'ANNOYED'? WHAT MUST YOU DOES AS COUNSEL
TO PRESERVE THE RECORD HERE?
  • As council we must always protect and set the
    records straight as to what the witness has said.
    At no point did the witness state she was
    annoyed, otherwise such statement could count
    against evidence and confuse jurors.

40
30. The Court What ruling?IS THE QUESTION
RELEVANT? IS IT RELEVANT TO SHOW "BIAS" IF SO,
WHY OR WHY NOT? WHAT MAY JUDGE REQUIRE AS AN
ADDITIONAL SHOWING TO DEMONSTRATE BIAS? HINT
JOBS?
  • The fact that she never hired a person of the
    Hispanic descent does not prove she is bias,
    pursuant to FRE 403 Rule, comparable state
    evidentiary rules against unfair prejudice.
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