Transcript OHare vs. Hutchinson

OHare vs. Hutchinson
By:
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 3035 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 would
you 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 other
words, allow my client to testify that she was driving especially
carefully because she had seen a jaywalker at the same location a week
earlier, 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 consider
that 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 turning
off 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 bit
on 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, September
22, 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 CROSSEXAMINATION, 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 were
on 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.