(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.

A-9

(1) Disclosure of court-appointment is discretionary.

(2)

A-10

706.

Note that court-appointment must be with consent of the witness and that both sides can cross-examine regardless of by whom called. 706.

(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 D objects that White's statement was made in connection with White's tender of a guilty plea, later withdrawn, to a manslaughter charge respecting the accident.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
direct and cross-examination: 405 and 608 (specific conduct as
bearing on character); 609 (impeachment through convictions); 612
(writings used to refresh memory); 611 (scope, leading questions).
(3) As in past, court can call witness--then each party cross-examines.
614.

(1) Not essential to "lay foundation" during examination of witness
to be impeached as a condition to extrinsic evidence of inconsis-
tent statement. 613(b).

(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
of party opponent or a hearsay declarant's statement. 806.
Deposition witness is hearsay declarant. 802. "Subsequent"
inconsistent statement.

(5) Presumably no foundation or opportunity to explain/deny required
as condition to proof of inconsistent conduct. AC 613.
(1) Opposing counsel has right, on request, to disclosure of incon-
sistent statement before examination of witness (sought to be
impeached) thereon. 613(a). Presumably right also covers

B-4

B-5

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-
tion to require such disclosure, however, under 611.

(1) Rules don't deal specifically with problem of impeachment on
collateral matters; but see 403, 611. Presumably extrinsic
evidence not permitted.

(1) FRE does not resolve questions of privilege; 501, or competency,

601, in typical diversity case.

(2) Quaere: Status of rejected privilege rules.

B-6

(1)

B-7

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
to identity of parties involved in negotiations. (Of course it
would not apply in suit to enforce an alleged settlement.)

(3)

Rule does not provide privilege against proof by other means of fact the existence of which was learned during negotiations. (4) Unclear as to use against witness of inconsistent statement made during negotiations. Rule permits use to prove "bias or prejudice of a witness" (cf. language of 411), and is directed against use to prove liability/invalidity.

(5) Cf. status of statements made in connection with paying medical expenses. 409.

(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.
(3) Statements in connection with and relevant to such pleas or

offers are admissible in criminal proceeding against such person
for perjury or false statement if statement made by him, under
oath, on record, in presence of counsel.

(4) Rule applies to use of evidence only in subsequent proceedings
"against the person who made the plea or offer." Thus, where a
non-party witness in a case, rule doesn't prohibit use of pleas,
offers, or statements as declaration against interest or for
impeachment.

(5) Presumably doesn't apply if guilty plea accepted.

(6) Note that rule doesn't deal with evidence of the conviction
itself, even where used against a party.

(1) Prior inconsistent statement which was given under oath is
admissible as substantive evidence where declarant testifies at
trial and is subject to cross-exam re statement--801(d)(1)(A).
Broader rule rejected by Congress.

(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