A-9 A-10 (9) Rule does not say when production ordered; does adopt Jencks act to extent applicable. (What about one prosecution witness reviewing statements from other potential prosecution witnesses?) (10) Some discretion in judge to determine effect of witness' failure/ refusal to produce; discretion more limited in criminal case. (11) Quaere: Can writings by introduced if otherwise objectionable? (12) Quaere: If writing introduced, is it substantive evidence, or only impeachment material or to aid evaluation of testimony? Cf. 613 (impeachment by prior statements). (13) Where part of writings introduced on cross, presumably related parts also could be introduced. 106. (1) Disclosure of court-appointment is discretionary. 706. (2) Note that court-appointment must be with consent of the witness and that both sides can cross-examine regardless of by whom (3) In civil cases compensation can be charged to parties. 706. (1) Exclusion rule mandatory on request. 615. (2) Weinstein believes experts could be exempted under 615(3). (3) Would not prevent all discussions with counsel at recesses, but should prevent disclosure to excluded witness of another's court-room testimony. (4) Quaere: Instructions to attorneys, parties, and excluded witnesses re discussions. PART B B. Pasks Jones, "What was White's statement on that occasion?" (P advises that he expects to prove a prior inconsistent statement by White, the witness previously called by P) 1. D objects to P's impeachment of his own witness, White. [607] 2. D objects to no foundation respecting the statement was laid during the examination of White. [613(b)] 3. D objects that the statement hasn't been shown to D or to White. [613(a)] 4. D objects that the inconsistent statement is on a purely colla teral matter. [403] 5. D objects that White's statement is protected by the attorneyclient privilege. [501] 6. D objects that White's statement was made during settlement talks. [408, 409] 7. D objects that White's statement was made in connection with White's tender of a guilty plea, later withdrawn, to a manslaughter charge respecting the accident. [410; F.R.Cr.P. 11] 8. D wants a limitation that the evidence be received only for impeachment purposes, not as substantive evidence. [105, 801] 9. D objects unless Jones is also to be asked about other statements made by White. [106] 10. D objects to P's stating the purpose of the question in the presence of the jury. [103, 104] EXPLANATORY NOTES B-1 B-2 B-3 (1) Now permissible to impeach own witness. 607. (2) But note some rules still appear to make distinctions between (1) Not essential to "lay foundation" during examination of witness (2) However, unless "interests of justice otherwise require", there must be opportunity given witness to explain and given to opposite party to examine thereon. Quaere: what effect upon excusal of witnesses after testifying? (3) If witness had admitted the inconsistent statement, presumably additional proof by extrinsic evidence would be disallowed under 403. (4) Note that opportunity to explain/deny not necessary re admission (5) Presumably no foundation or opportunity to explain/deny required B-4 B-5 B-6 B-7 situation where extrinsic evidence is to be introduced without having first laid predicate. (2) Witness to be impeached is not entitled to disclosure of statement before being questioned thereon. 613(a). Cf. production right under F.R.Civ.P. 26(b)(3). Judge presumably would have discre- (1) Rules don't deal specifically with problem of impeachment on (1) FRE does not resolve questions of privilege; 501, or competency, 601, in typical diversity case. (2) Quaere: Status of rejected privilege rules. (1) Common law rule of exclusion re compromise expanded to cover admissions of fact during negotiations. 408. (2) Rule applies without regard to success of negotiations or regard (5) Cf. status of statements made in connection with paying medical (1) FRE 410 superseded by new F.R.Cr.P. 11(e)(6), effective August 1, 1975. B-8 (2) Rule affects (a) withdrawn pleas of guilty; (b) nolo pleas; (c) offers to plead guilty or nolo; (d) statements made in "connec tion with, and relevant to," any of such pleas or offers. offers are admissible in criminal proceeding against such person (4) Rule applies to use of evidence only in subsequent proceedings (5) Presumably doesn't apply if guilty plea accepted. (6) Note that rule doesn't deal with evidence of the conviction (1) Prior inconsistent statement which was given under oath is (2) "Cross-exam" requirement may be unintended; perhaps should be understood merely as subject to "examination". Otherwise rule would be limited to the relatively abnormal situation where party calls unfriendly witness to stand and shows prior inconsistent statement under oath, while not allowing the cross-examiner to take advantage (as substantive evidence) of proof of prior inconsistent statements under oath. Note in case of depositions take in the case sub judice F.R.Civ.P. 32(a)(1) permits use by |