I’d also think twice about giving a judge a ruffled up three-hole-punched piece of paper as an “exhibit.” Remember those clear plastic covers from undergrad? I’m not saying they’re necessary but you’ll certainly look more professional.

Q1. Can we ask questions such as what Toby Baron means when he says that Krista “initiated” sex? My presumption is that we would be unable to do so because the information is not provided in the depositions and would be, essentially, made up by the witness.

A1. (note to readers: this question comes from the perspective of the prosecution). The key idea here is “reasonable inference.” Upon being crossed, witnesses are able to make reasonable inferences based on the facts within the packet. The rationale behind this rule is that we want to keep the trial going and it would break the mechanic if you asked a witness a simple question and he’d have to say, “sorry, I have no idea.” It’s not the case when you’re directing because you’re expected to work out the questions beforehand.

With that said, if the actual question you ask Baron is “What do you mean that she initiated sex.” It would be within his discretion to start explicitly making something up — essentially he could say anything he wants ON CROSS so long as it doesn’t contradict the facts. If he started helping his case out during the direct examination, that’s when you impeach him by omission for “failing to mention” facts relevant to the case within his deposition.

So the moral of the story: opposing counsel’s witness = reasonable inferences okay; your own witness = stick to the facts.

With all that said, remember Gildin’s advice: “never ask a question to which you don’t know the answer.”

Q2. There is a note that states that we can look up relevant case law regarding this material. Since this occurs in the state of Lone Star I was wondering what this means. My presumption with this was that it was simply a vestigial element. I was unsure of this however and felt that I should ask.

A2. My interpretation of what this means is that any outside case law is merely persuasive authority. This makes sense since the neither the defense counsel nor the judge will have notice to adequately rebut your cases.