34. If the man sues the neighbor for personal injury damages, which of the following actions must the trial court take if requested by the man?

If a witness were permitted to observe the testimony of other witnesses for the same side, he would be able to tailor his testimony (perhaps by perjury) so that it matched this other testimony. To prevent this, nearly all courts have the power to exclude all other witnesses from the courtroom while one witness is testifying. The trial judge's right to sequester witnesses is codified in Federal Rule of Evidence (FRE) 615, which states: «At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own.» In other words, any party has the absolute right to require the judge to exclude all witnesses from hearing other witnesses' testimony. The judge does not have the discretion to deny the request.

Under FRE 601, «every person is competent to be a witness unless these rules provide otherwise.»

Under FRE 609, a witness's character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement.

Questions that are relevant to the witness's credibility are always regarded as within the proper scope of cross-examination. Under FRE 611(b), «Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.»

Under FRE 612(a), the adverse party has options when a writing is being used to fresh a witness's recollection «while testifying» or «before testifying, if the court decides that justice requires the party to have those options.»

C is correct. This choice offers the only scenario in which the court does not have discretion to deny the man's request. Under FRE 615, when a party requests that a witness be excluded, the judge must grant the request. Therefore, if the man requested that the court exclude non-party witnesses from the courtroom during testimony from other witnesses, the court must grant his request.

A is incorrect. Under FRE 601, all witnesses are presumed to be competent. A witness can never be excluded from testifying simply because there is impeachment evidence that could be used against that witness. The man can use evidence of the witness's prior perjury conviction to impeach him. See Fed. R. Evid. 609.

B is incorrect. The court «may allow inquiry into additional matters» on cross-examination of a witness, even if the matters were not within the scope of direct examination. Fed. R. Evid. 611(b). Here, the court may allow the neighbor to cross-examine the man's medical expert on matters beyond the scope of direct examination.

D is incorrect. Although FRE 612 allows the court to order a party to produce a writing used to refresh a witness's recollection before testifying for the opposing party to examine, the court is not required to do so in all circumstances. Under the Rule, the court may order it if justice so requires.