Evidence-speak for Trial Lawyers - Stetson University College of Law

C:\MyFiles\book\Articles.311\Galleys\Ohlbaum5.drb.wpd24 Stetson Law Review [Vol. XXXIQ: Did your answer end there?A: No.Q: Please read the rest of your answer.A: [Reads additional lines]Q: Were those the lines that you began to read when counselasked you to stop reading?A: Yes.Q: Please turn to page eighty-six, lines twenty to twenty-five.Is that where you also discussed the telephone call?A: Yes.Q: In response to counsel’s question, which was, “And that wasall you discussed during the telephone call?,” please readyour answer.A: [Reads lines]Q: Did counsel ask you about this passage when he questionedyou today?A: No.Q: Please tell us what you said about your requirements in thetelephone conversation.Federal Rule of Evidence 106 puts the impeaching lawyer onnotice that the rest of the writing or statement may be introduced. 53Counsel’s “fairness” during the impeachment of a witness with aninconsistent statement is a relevant consideration and may triggeran interruption in the flow of an examination, the admission ofrebutting evidence, and perhaps most important, an examination ofcounsel’s fairness in challenging the witness. Under Rule 106,counsel may use writings, “which ought in fairness to be considered,”54 to help a witness do the following: (1) explain the acknowledgedinconsistency or support the denial of having made theinconsistency, (2) place the inconsistency in context, (3) avoid53. Id.54. Id.