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How do you keep a defense attorney from alluding to, hinting at, and flashing notes of the conversation he had with the witness on the stand over the phone two days before trial??

I always object to hearsay, but my judge will always let in a witness's out of court statements--he doesn't consider them hearsay because the witness is now on the stand. I disagree, but that objection never wins, so I'm trying to plan for the next time this occurs.

I know there is an ethical issue with an attorney commenting on credibility from personal knowledge, but that's not an evidence objection.

I'm not talking about prior inconsistent statements, I mean that the whole cross starts with questions about the fact that they had a conversation and that the attorney took notes....and then the "didn't you tell me?" questions. I know that the attorney can just ask them a question and cross them if their phone conversation answer was different--but I would like to keep to a minimum the ability to imply that the witness is lying based upon notes I don't get to see and a conversation where I can't talk to the other participant (the attorney) to rehabilitate or explain. And then the attorney has managed to place their credibility above that of my witness--which is an ethical issue, but not an evidence objection...

How have you all handled this line of cross questions?
 
Posts: 526 | Location: Del Rio, Texas | Registered: April 17, 2006Reply With QuoteReport This Post
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I think it's improper to do that at all, unless there IS a prior inconsistent statement. Object to the form of the question and improper impeachment. Why can't the attorney just repeat the questions he asked on the phone, rather than saying "didn't we have a conversation and you said X"? If he asks the same questions, and the answers are different, then I think he can properly challenge those answers based on the conversation. At that point, I would also ask the witness if there was anyone at their end of the line who heard that end of the conversation. If it was in person, whether anyone else was in the room. In either circumstance, under what circumstances the remarks were made (I had a case in which the victim in a family violence case called the defense attorney and gave him a story, but told me that the defendant was sitting right next to her on the bed "intimidating" her into making the call).
 
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004Reply With QuoteReport This Post
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