OHare vs. HutchinsonBy:Rebeca R.Luisa R.Maria G.

FACTS OF THE CASE: Civil suit for damages for personal injuries suffered by

O’Hare as a result of having been struck on September 22 by a car driven by Hutchinson. O’Hare 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 O’Hare. During O’Hare’s case-in-chief, O’Hare 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 O’Hare in the crosswalk. O’Hare also testified that he was in the crosswalk when struck. Hutchinson contends that she was driving carefully, and that O’Hare was struck not in the crosswalk, but about 25 yards up the block when he suddenly ran out from between two parked cars.

Direct Examination by Defense Counsel

1. Q: Ms. Hutchinson, how are you employed?

A: I’m a building contractor.

Q: How long have you been a contractor?

A: For about 12 years now.

1. Q: Ms. Hutchinson, how are you employed?IS THIS AN ACCEPTABLE BACKGROUND QUESTION? RELEVANT, WHY?

Yes, this is an acceptable background question. It’s not relevant but it allows the Juror’s to familiarize themselves with the witness in a personal level.

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.

Q: Have you worked on any well-known projects?

A: Well, I’m proud to say that the Sewer Sludge Reclamation Plant was my project. And a couple of years ago, I received our industry’s customer satisfaction award.

Q: All right, let me turn your attention to the events of September 22, at about 3:00 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.

3. A: Well, I’m proud to say that the Sewer Sludge Reclamation Plant was my project. And a couple of years ago, I received our industry’s 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.

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 Juror’s to give credibility that her mind state was aware of her surroundings.

5. Q: How fast do you usually drive when you’re 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.

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

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.

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.

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 O’Hare] 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.

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.

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.

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.

Pl Att: Your Honor, I object to any testimony as to the earlier incident based on lack of personal knowledge. The witness is simply creating an earlier incident based on the later one.

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.

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.

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.

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, “I’m 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 O’Hare days prior to the accident is irrelevant to his actions on the date of the accident.

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.

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.

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 court’s ruling was correct, the counter-generalization on evidence will always outweigh the admissibility as long as Defense counsel’s premises is a reasonable and relevant.

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.

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 witness’s perception; (b) helpful to clearly understanding the witness’s 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.

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.

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.

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.

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.

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.

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.

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.

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.

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 want’s to remember to what might be beneficial to herself.

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?

A: Maybe a little. But I am certain that your client was not in the crosswalk.

Pl. Att: Move to strike the last remark as nonresponsive, Your Honor.

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.

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.

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.

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.

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.