Examination of Witnesses at Trial

Atlanta Injury Attorney Robert J. Fleming covers somes of the issues that experienced Georgia trial lawyers deal with in court. Mr. Fleming outlines important considerations related to examination of witnesses at trial including how to refresh a fact witnesses recollection, how to properly impeach a witness at trial, the admissibility of prior conviction in a Georgia civil trial, and opinion evidence from a non-expert witness.

Direct-- In order to be allowed to ask leading questions, you must call the other side's witnesses and state that is for "cross examination purposes."

Cross--Georgia follows the open cross-examination rule, i.e., cross is not limited to direct. The cross examiner may insist that a witness answer with a yes or no, and then have an opportunity to explain. Banks v. State, 149 S.E.2d 415 (Ga. App. 1966).

Refreshing a Witnesses Recollection

  1. Establish that the witness is having trouble remembering;
  2. Ask the court for permission to refresh the witnesses recollection;
  3. Hand the witness the document and ask him to review it and to see if that helps him remember;
  4. Take the item away and ask if his memory is now refreshed.

Witness Impeachment with a Writing

  1. Must call the witness's attention to the writing;
  2. If the witness denies that the writing is his, then the document must be authenticated in the normal way, both to complete the impeachment and to render the writing as substantive evidence.

Prior Convictions

GR: Any witness, other than a criminal defendant, may be impeached with competent evidence that he has been convicted of a crime involving moral turpitude.

  • However, the impeaching party must offer a certified copy of the record of conviction in order to impeach a witness. Business Records, Inc. v. General Amusements, Inc., 366 S.E. 2d (Ga. App. 1988).
  • Even with a certified record of conviction, evidence is limited to crime, time and place of conviction and sentence imposed. McCormick on Evidence Section 42 (West, 4th Ed. 1992).

Witness Impeachment with Character Evidence

  1. Ask if he has knowledge of the witnesses general reputation in the community;
  2. How is he familiar with her reputation;
  3. What is her reputation;
  4. Whether, based on her reputation, he would believe the subject under oath;
  5. Based not on personal observation, but on subject's reputation in the community.

Opinion Evidence

  • Lay witnesses always must reveal the factual basis of an opinion.
  • Expert is not required to reveal the bases for his opinion. Dimambro Northend Assoc. v. Williams, 312 S.E. 2d 386 (Ga. App. 1983); McDaniel v. Department of Transp., 409 S.E. 2d 552 (Ga. App. 1991).
  • The fact that an expert's opinion is based in part on hearsay does not render it inadmissible. When an expert's testimony is based on hearsay, the lack of personal knowledge does not mandate exclusion of the opinion, but, rather, presents a jury question as to the weight that should be assigned the opinion. Jim Ellis Atlanta v. McAlister, 198 Ga. App. 94, 400 S.E. 2d 389 (1990).
  • You can ask an expert a hypothetical question on cross.
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