January 2011 - National Labor Relations Board

10394 WITNESSES10394.5 ObjectionsCounsel for the General Counsel should be well versed in the Federal Rules ofEvidence, so that objections can be raised at suitable times and argued with authority.Objections should be used to keep improper evidence from being considered and to makea record for Board and appellate review. Counsel for the General Counsel should showrestraint in raising technical objections, avoiding those that serve little useful purpose.On the other hand, objections should be raised when the testimony or proffered exhibitsare incompetent. Failure to object on grounds of incompetence, such as hearsay, may befound to be a waiver of the defect and could allow as probative what would otherwise beincompetent testimony. Rule 103(a)(1) of the Federal Rules of Evidence; 1 Wigmore onEvidence § 18 (3d ed. 1940). Sec. 5033 Federal Practice and Procedure, Wright & Miller(1977); U.S. v. Fuentes, 432 F.2d 405 (5th Cir. 1970); and Diaz v. U.S., 223 U.S. 442,450 (1912).Objections should be made in a timely manner. They should be addressed to theALJ and stated crisply with a specific ground, e.g., “I object, hearsay.” Questions by theAdministrative Law Judge are as subject to objection as questions by other parties.If the ALJ overrules an objection to a question that is one of a series, counsel forthe General Counsel may ask to note objection to the entire line. This approach can besuggested to opposing counsel in similar circumstances.Voir dire is an examination into the authenticity of an exhibit proffered by anopposing party and the competence of the witness to authenticate such exhibit or to be anexpert witness. Voir dire is used to explore whether an objection should be made andmay be conducted by leading questions. Voir dire must be conducted at the time anexhibit is offered into evidence and is untimely after the exhibit is accepted into therecord. Moreover, voir dire must not expand into general cross-examination; it must belimited to the specific purposes noted above.10394.6 Use of Statements or AffidavitsCounsel for the General Counsel should use affidavits and other statements fromthe investigation to prepare witnesses for trial. At trial, statements may be used to refreshrecollection, to impeach a witness’ testimony and, in certain circumstances, may beintroduced as substantive evidence in the form of an admission or in the absence of thewitness. See generally Federal Rules of Evidence 612, 613, 801, and 803(5) as well asAlvin J. Bart & Co., 236 NLRB 242 (1978).Secs. 102.117 and 102.118(a), Rules and Regulations govern access to statementsand other materials from the case file. Express consent must be obtained under Sec.102.118(a) for a party’s access to file materials and statements under the GeneralCounsel’s control not otherwise required to be produced. When opposing a party’srequest for material not required to be produced, counsel for the General Counsel shouldnot solely rely upon the fact that consent was not obtained pursuant to Sec. 102.118.Counsel for the General Counsel should also set forth the reasons that nonproduction isappropriate. See Secs. 11820–11828 for subpoenas seeking Board agent testimony anddocuments in the Board’s or General Counsel’s possession.Revised 01/11