15.1 Parties, Participants & Types of Witnesses
Key Takeaways
Parties have a stake in the outcome: plaintiff and defendant in civil cases, petitioner and respondent in many family and administrative matters, and the government versus the defendant in criminal cases.
Under FRE 611(c), leading questions are generally allowed on cross-examination and when a party calls a hostile witness, an adverse party or a witness identified with an adverse party.
An expert witness may give opinion testimony under FRE 702 if qualified by knowledge, skill, experience, training or education.
A corporate designee under FRCP 30(b)(6) testifies on the organization's behalf about matters listed in the deposition notice.
Blueprint topics 40302 to 40304 ask you to identify the roles of the parties, the roles of the people involved in a proceeding, and the different types of witnesses.
Parties
A party is a person or entity whose rights are being decided.
| Setting | Party that brings the case | Party that responds |
|---|---|---|
| Civil lawsuit | Plaintiff | Defendant |
| Petitions (family, probate, some administrative, habeas) | Petitioner | Respondent |
| Criminal case | The government: United States, State, People or Commonwealth | Defendant |
| Appeal | Appellant (or petitioner) | Appellee (or respondent) |
| Arbitration | Claimant | Respondent |
| Bankruptcy | Debtor; creditors; trustee |
Other party roles: third-party defendant (brought in by a defendant), intervenor (joins an existing case), cross-claimant and counterclaimant, real party in interest, and pro se parties who represent themselves.
Transcript impact: the caption, the appearances (For the Plaintiff:), witness headings in the index (WITNESSES FOR THE PLAINTIFF) and the oath line (PLAINTIFF'S WITNESS, SWORN) all use these roles. Criminal defendants who speak are THE DEFENDANT in colloquy.
People in the proceeding
| Participant | Role | Speaker ID |
|---|---|---|
| Judge (or magistrate judge) | Presides and rules | THE COURT |
| Clerk / courtroom deputy | Calls cases, swears witnesses, marks exhibits | THE CLERK |
| Bailiff / marshal / court officer | Keeps order, escorts jurors and defendants | THE BAILIFF (Scalini key) |
| Court reporter / digital reporter (ECRO) | Makes the record | THE REPORTER if they speak on the record |
| Interpreter | Interprets for a witness or party | THE INTERPRETER |
| Attorneys | Prosecutor, defense counsel, plaintiff's and defendant's counsel, public defender | MR./MS. + last name |
| Witness | Testifies under oath | A., or THE WITNESS in colloquy |
| Jurors / prospective jurors | Decide facts / questioned in voir dire | THE FOREPERSON; PROSPECTIVE JUROR NO. 12 |
| Videographer | Records video depositions | THE VIDEOGRAPHER |
| Also present | Paralegals, client representatives, observers | Listed as Also Present on the appearances |
The Guide to Judiciary Policy (§ 520.40.10(f)) requires every speaker to be identified, initially by full name and thereafter by the standard designation.
Types of witnesses
| Type | Description | Transcript clues |
|---|---|---|
| Lay (fact) witness | Testifies to what they personally saw, heard or did | Everyday vocabulary |
| Eyewitness | A fact witness who saw the event | Descriptions, gestures (indicating) |
| Expert witness | Qualified by "knowledge, skill, experience, training, or education" to give opinions (FRE 702) | voir dire on qualifications; technical terms; Your Honor, I offer Dr. Patel as an expert in... |
| Character witness | Testifies to reputation or opinion about a person's character | reputation for truthfulness |
| Adverse or hostile witness | The opposing party, someone identified with it, or a witness who proves hostile; leading questions allowed (FRE 611(c)) | Permission to treat the witness as hostile? |
| Rebuttal witness | Called after the other side's case to contradict it | Oath line may say RECALLED for returning witnesses |
| Party witness | A party who testifies | Criminal defendants testify only if they choose |
| Corporate designee | Testifies for an organization under FRCP 30(b)(6) on topics listed in the notice | 30(b)(6) witness; designated to testify on topics 1 through 5 |
| Impeachment witness | Called to attack another witness's credibility | prior inconsistent statement |
| Alibi witness | Supports a defendant's claim to have been elsewhere | Dates and times |
Leading questions
FRE 611(c): leading questions (questions that suggest the answer, such as You were at home, weren't you?) should not be used on direct examination except as necessary to develop testimony, but "ordinarily, the court should allow leading questions (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party." The objection Leading is common on direct examination. Transcribe it as colloquy, and note that cross-examination questions are often statements delivered as questions (Chapter 6).
Scope of cross-examination
FRE 611(b): cross-examination "should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility," though the court may allow more. The objection Beyond the scope follows from this rule.
Why roles matter for the CET
- Speaker IDs must reflect the actual role. The Scalini key uses THE BAILIFF because the court officer spoke on the record.
- Headings and index: witnesses are grouped by calling party.
- Oath lines name the party calling the witness.
- Exam items often ask which party a role belongs to, or which witness may be asked leading questions.
Who is who in the Scalini hearing
AAERT's practice transcript is a compact example of roles:
| Person | Role | How the transcript shows it |
|---|---|---|
| State of Vermont | Prosecuting party | Caption: STATE OF VERMONT, Plaintiff; the State in speech |
| Anthony Scalini | Defendant | Caption; (Defendant present; jury not present.) |
| Alison Flowers | Presiding judge | BEFORE THE HONORABLE ALISON FLOWERS, SUPERIOR COURT JUDGE; THE COURT: |
| Emerson McHenry | Prosecutor | Appearances For the Plaintiff; MR. McHENRY:; BY MR. McHENRY: |
| Pauline Jefferson | Defense counsel | Appearances For the Defendant; MS. JEFFERSON: |
| Court officer | Bailiff | THE BAILIFF: |
| Margaret Heller | Plaintiff's (State's) witness, a police lieutenant | LIEUTENANT MARGARET HELLER, PLAINTIFF'S WITNESS, SWORN; A. |
| Sarah Smith | Court reporter who recorded the hearing | Court Reporter: Sarah Smith, CER |
| People named in testimony (Corporal Dundee, Chief Scherer) | Not participants | Spelled correctly in the answers; no speaker IDs |
Note the last row: people mentioned in testimony are not speakers. Their names still need verified spellings (Chapter 12).
Under FRE 611(c), when should a court ordinarily allow leading questions?
On direct examination of any friendly witness
Only during voir dire of prospective jurors
On cross-examination, and when a party calls a hostile witness, an adverse party or a witness identified with an adverse party
Never; leading questions are always prohibited
In a divorce action, the spouse who filed the petition is usually called what?
The appellant
The petitioner
The claimant
The intervenor
A company is ordered to produce a witness to testify about topics listed in a deposition notice. What type of witness is this?
A character witness
A rebuttal witness
An alibi witness
A corporate designee under FRCP 30(b)(6)
Sections you finish are checked off in the contents.