OHare vs. Hutchinson

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OHare vs. Hutchinson

• By
• Rebeca R.
• Luisa R.
• Maria G.

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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.

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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.

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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.
  Its not relevant but it allows the Jurors to
  familiarize themselves with the witness in a
  personal level.

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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.

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• 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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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• 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.

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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.

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• 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.

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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.

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• 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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• 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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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• 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?

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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.

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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.

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• 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.

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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.

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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.