The Delaware Trial Handbook: Introduction

The Delaware Trial Handbook

By David L. Finger and Louis J. Finger

Introduction

The Delaware Trial Handbook, written by David L. Finger and Louis J. Finger, was originally published by Lawyers Cooperative Publishing in 1994. Annual supplements were provided through 1998. After Lawyers Cooperative Publishing was purchased by another publishing house, which was in turn was purchased by another publishing house, the new owners decided to cease publication of the book. The copyright was transferred to David L. Finger.

We are now pleased to be able to revive the Handbook, and make it available to all at no charge on this website. As we stated in the foreword of the print edition, although practice may vary in different courts and among different judges in the same court, we hope that the Handbook will assist both novices and experienced lawyers in recognizing and addressing procedural issues that may arises in the course of a trial. Of course, the law is not static, but one of the advantages of an online edition is that we will be able to provide quick updates when there are changes to the rules of litigation or judicial decisions further explaining those rules.

Dedication

This online edition of the Delaware Trial Handbook is dedicated to the memories of Aaron Finger (1890-1969), Louis J. Finger (1920-2008) and Dorothy K. Finger (1930-2018).

How To Use This Online Edition

Below you will see the table of contents. You can click on any section to be taken to the relevant page. Also, we have installed a search engine to allow you to conduct a word search.

Table of Contents

CHAPTER 1: THE ROLE OF THE ATTORNEY

§ 1:1. THE ATTORNEY IN THE TRIAL OF THE CASE
§ 1:2. THE ROLE OF THE ATTORNEY AS PROSECUTOR IN A CRIMINAL CASE
§ 1:3. THE RIGHT TO COUNSEL IN A CRIMINAL PROCEEDING
§ 1:4. THE RIGHT TO COURT-APPOINTED COUNSEL IN CRIMINAL PROCEEDINGS
§ 1:5. THE RIGHT TO COUNSEL IN CIVIL PROCEEDINGS
§ 1:6. THE REQUIREMENT THAT COUNSEL BE EFFECTIVE
§ 1:7. THE NEED FOR COUNSEL TO BE ADMITTED TO PRACTICE LAW
§ 1:8. ADMISSION PRO HAC VICE
§ 1:9. GENERAL CONDUCT OF ATTORNEYS IN LITIGATION
§ 1:10. DISCIPLINE OF ATTORNEYS FOR IMPROPER CONDUCT

CHAPTER 2: PRE-TRIAL MOTIONS

§ 2:1. MOTION PRACTICE – INTRODUCTION
§ 2:2. MOTION TO DISMISS
§ 2:3. MOTION FOR JUDGMENT ON THE PLEADINGS
§ 2:4. MOTION TO STAY DISCOVERY
§ 2:5. MOTION TO STRIKE
§ 2:6. MOTION FOR A MORE DEFINITE STATEMENT
§ 2:7. MOTION FOR A PRELIMINARY INJUNCTION OR A TEMPORARY RESTRAINING ORDER
§ 2:8. MOTION FOR CONSOLIDATION OF CIVIL CASES
§ 2:9. MOTION FOR SEPARATE TRIALS IN CIVIL CASES
§ 2:10. MOTION IN LIMINE
§ 2:11. MOTION FOR SUMMARY JUDGMENT
§ 2:12. CRIMINAL MOTIONS GENERALLY
§ 2:13. MOTION FOR SEPARATE TRIALS IN CRIMINAL CASES
§ 2:14. MOTION FOR A CONTINUANCE
§ 2:15. CHANGE OF VENUE IN CIVIL ACTIONS
§ 2:16. CHANGE OF VENUE IN CRIMINAL ACTIONS
§ 2:17. BILL OF PARTICULARS

CHAPTER 3: CONDUCT OF THE TRIAL

§ 3:1. CONDUCT OF THE TRIAL GENERALLY
§ 3:2. PRESENCE OF PARTIES AND COUNSEL
§ 3:3. SUBSTITUTION OF JUDGES
§ 3:4. GENERAL CONDUCT OF JUDGES
§ 3:5. RECUSAL OF A JUDGE
§ 3:6. RULING ON THE ADMISSIBILITY OF EVIDENCE
§ 3:7. RESTRICTING USE OF ADMITTED EVIDENCE
§ 3:8. TRANSCRIBING TESTIMONY
§ 3:9. THE JUDGE AS THE TRIER OF FACT

CHAPTER 4: GENERAL DEFENSES IN CRIMINAL TRIALS

§ 4:1. DOUBLE JEOPARDY
§ 4:2. RES JUDICATA AND COLLATERAL ESTOPPEL
§ 4:3. INTOXICATION AS A DEFENSE
§ 4:4. DURESS AS A DEFENSE
§ 4:5. ENTRAPMENT AS A DEFENSE
§ 4:6. IGNORANCE OR MISTAKE
§ 4:7. CONSENT OF VICTIM
§ 4:8. JUSTIFIED USE OF FORCE
§ 4:9. ALIBI
§ 4:10. SELECTIVE PROSECUTION
§ 4:11. MENTAL ILLNESS, PSYCHIATRIC DISORDER AND EMOTIONAL DISTRESS
§ 4:12. ACCIDENT

CHAPTER 5: CONTEMPT

§ 5:1. CIVIL AND CRIMINAL CONTEMPT
§ 5:2. WHAT ACTIONS CONSTITUTE CONTEMPT
§ 5:3. PROCEDURE
§ 5:4. DEFENSES
§ 5:5. SANCTIONS

CHAPTER 6: JURY SELECTION

§ 6:1. THE RIGHT TO TRIAL BY JURY IN CIVIL CASES
§ 6:2. THE RIGHT TO TRIAL BY JURY IN CRIMINAL CASES
§ 6:3. WAIVER OF THE RIGHT TO TRIAL BY JURY
§ 6:4. THE RIGHT TO AN IMPARTIAL JURY
§ 6:5. NUMBER OF JURORS
§ 6:6. SUMMONING JURORS
§ 6:7. VOIR DIRE AND CHALLENGES FOR CAUSE IN CIVIL AND NON-CAPITAL CRIMINAL CASES
§ 6:8. PEREMPTORY CHALLENGES IN CIVIL AND NON-CAPITAL CRIMINAL CASES
§ 6:9. JURY SELECTION IN CAPITAL CASES
§ 6:10. SWEARING THE JURY
§ 6:11. CHALLENGE TO THE ARRAY AND COMPLIANCE WITH JURY SELECTION PROCEDURES
§ 6:12. JURY DISCRIMINATION
§ 6:13. ALTERNATE JURORS
§ 6:14. SPECIAL JURIES
§ 6:15. JURY SELECTION IN EMINENT DOMAIN CASES
§ 6:16. JURY SELECTION IN SUMMARY POSSESSION CASES
§ 6:17. EXCUSING A JUROR DURING TRIAL

CHAPTER 7: OPENING STATEMENTS

§ 7:1. PURPOSE OF THE OPENING STATEMENT
§ 7:2. RIGHT TO MAKE AN OPENING STATEMENT
§ 7:3. CONTENTS OF OPENING STATEMENTS

CHAPTER 8: ORDER OF PROOF

§ 8:1. ORDER OF PRODUCING EVIDENCE
§ 8:2. REBUTTAL TESTIMONY
§ 8:3. SURREBUTTAL
§ 8:4. RIGHT TO INTRODUCE EVIDENCE AT A LATER STAGE

CHAPTER 9: BURDEN OF PROOF

§ 9:1. BURDEN OF PROOF GENERALLY
§ 9:2. PRIMA FACIE CASE
§ 9:3. BURDEN OF PROOF IN CIVIL CASES: PREPONDERANCE OF THE EVIDENCE
§ 9:4. BURDEN OF PROOF IN CIVIL CASES: CLEAR AND CONVINCING EVIDENCE
§ 9:5. BURDEN OF PROOF IN CRIMINAL CASES
§ 9:6. PRESUMPTIONS AND SHIFTING THE BURDEN OF PROOF

CHAPTER 10: PRESUMPTIONS

§ 10:1 PRESUMPTIONS GENERALLY
§ 10:2. USE OF PRESUMPTIONS IN CRIMINAL PROCEEDINGS
§ 10:3. PRESUMPTION OF PROPRIETY
§ 10:4. PRESUMPTIONS RELATING TO PROPERTY
§ 10:5. STATE OF MIND
§ 10:6. STATE OF BODY
§ 10:7. MAILING
§ 10:8. CONTINUITY
§ 10:9. RES IPSA LOQUITUR

CHAPTER 11: JUDICIAL NOTICE

§ 11:1. PROOF IS EXCUSED IF A FACT IS JUDICIALLY NOTICED
§ 11:2. JUDICIAL NOTICE OF LAW
§ 11:3. JUDICIAL NOTICE OF GOVERNMENT RECORDS
§ 11:4. JUDICIAL NOTICE OF FACTS PERTAINING TO LEGAL PRACTICE AND PROCEDURE
§ 11:5. JUDICIAL NOTICE OF FACTS PERTAINING TO CORPORATIONS
§ 11:6. JUDICIAL NOTICE OF GEOGRAPHIC FACTS
§ 11:7. OTHER FACTS SUBJECT TO JUDICIAL NOTICE

CHAPTER 12: WITNESSES

§ 12:1. COMPETENCY OF WITNESSES TO TESTIFY
§ 12:2. COMPELLING ATTENDANCE OF WITNESSES
§ 12:3. HABEAS CORPUS AD TESTIFICANDUM
§ 12:4. OBTAINING WITNESSES FROM OUT OF STATE
§ 12:5. CALLING THE OPPOSING PARTY’S EXPERT WITNESS
§ 12:6. CALLING AND INTERROGATION OF WITNESSES BY THE COURT
§ 12:7. SEQUESTRATION OF WITNESSES
§ 12:8. SWEARING THE WITNESSES
§ 12:9. USE OF AN INTERPRETER
§ 12:10. GIVING TESTIMONY ON TELEVISION
§ 12:11. TESTIMONY THAT TENDS TO INCRIMINATE THE WITNESS
§ 12:12. COMPELLED TESTIMONY AND IMMUNITY FROM PROSECUTION
§ 12:13. USE OF DEPOSITION IN PLACE OF LIVE TESTIMONY

CHAPTER 13: EXAMINATION OF WITNESSES

§ 13:1. DIRECT EXAMINATION OF WITNESSES
§ 13:2. COURT REGULATION OF EXAMINATION OF WITNESSES
§ 13:3. CONFERRING WITH COUNSEL DURING TESTIMONY
§ 13:4. RELEVANCY OF QUESTIONS ASKED ON DIRECT EXAMINATION
§ 13:5. ASSISTING WITNESSES BY REFRESHING MEMORY
§ 13:6. TESTIMONY REFRESHED BY HYPNOSIS OR DRUGS
§ 13:7. REDIRECT EXAMINATION

CHAPTER 14: CROSS-EXAMINATION AND IMPEACHMENT

§ 14:1. RIGHT TO CROSS-EXAMINE WITNESSES
§ 14:2. CROSS-EXAMINATION OF ONE’S OWN WITNESS
§ 14:3. SCOPE AND FORM OF CROSS-EXAMINATION
§ 14:4. IMPEACHMENT BY PROOF OF A PRIOR CONVICTION
§ 14:5. IMPEACHMENT BY EVIDENCE OF CHARACTER OR REPUTATION
§ 14:6. IMPEACHMENT OF A RAPE VICTIM BY EVIDENCE OF PRIOR SEXUAL CONDUCT
§ 14:7. IMPEACHMENT BY USE OF PRIOR INCONSISTENT STATEMENTS
§ 14:8. IMPEACHMENT BY EVIDENCE OF RELIGIOUS BELIEFS OR OPINIONS

CHAPTER 15: PRIVILEGED COMMUNICATIONS

§ 15:1. INTRODUCTION
§ 15:2. ATTORNEY-CLIENT PRIVILEGE
§ 15:3. PHYSICIAN-PATIENT & PSYCHOTHERAPIST-PATIENT PRIVILEGE
§ 15:4. HUSBAND-WIFE PRIVILEGE
§ 15:5. RELIGIOUS PRIVILEGE
§ 15:6. POLITICAL VOTE
§ 15:7. TRADE SECRETS
§ 15:8. GOVERNMENTAL PRIVILEGES
§ 15:9. IDENTITY OF INFORMER
§ 15:10. REPORTER’S PRIVILEGE
§ 15:11. ACCOUNTANT-CLIENT PRIVILEGE
§ 15:12. WAIVER OF PRIVILEGE

CHAPTER 16: HEARSAY

§ 16:1. HEARSAY: THE DEFINITION AND ITS OMISSIONS
§ 16:2. EXPRESS EXCLUSIONS FROM THE CATEGORY OF HEARSAY
§ 16:3. HEARSAY EXCEPTIONS GENERALLY
§ 16:4. HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL
§ 16:5. HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE
§ 16:6. RESIDUAL EXCEPTION
§ 16:7. HEARSAY WITHIN HEARSAY
§ 16:8. ATTACKING AND SUPPORTING THE CREDIBILITY OF THE DECLARANT
§ 16:9. USE OF HEARSAY IN CRIMINAL TRIALS GENERALLY

CHAPTER 17: ADMISSIONS AND CONFESSIONS

§ 17:1. CIVIL AND CRIMINAL ADMISSIONS GENERALLY
§ 17:2. ADMISSIONS AND CONFESSIONS BY CONDUCT OR ACQUIESCENCE
§ 17:3. ADMISSIONS BY A PARTY OPPONENT IN A CIVIL CASE
§ 17:4. ADMISSIONS AND CONFESSIONS IN CRIMINAL CASES
§ 17:5. JUDICIAL ADMISSIONS
§ 17:6. ADMISSIBILITY OF A CRIMINAL PLEA OR JUDGMENT IN A SUBSEQUENT CIVIL SUIT
§ 17:7. OFFER OF COMPROMISE OR PLEA AS AN ADMISSION

CHAPTER 18: OPINION EVIDENCE

§ 18:1. OPINION EVIDENCE – INTRODUCTION
§ 18:2. OPINION TESTIMONY BY EXPERTS
§ 18:3. ADMISSIBILITY OF EXPERT TESTIMONY
§ 18:4. EXPERT TESTIMONY OF MEDICAL PROFESSIONALS
§ 18:5. EXPERT TESTIMONY AS TO THE CREDIBILITY OF PARTIES AND WITNESSES
§ 18:6. MISCELLANEOUS AREAS WHERE EXPERT TESTIMONY IS BARRED OR PERMITTED
§ 18:7. QUALIFICATION OF EXPERTS
§ 18:8. FACTUAL BASIS OF EXPERT OPINION
§ 18:9. CROSS-EXAMINATION OF EXPERTS
§ 18:10. OPINION TESTIMONY BY NON-EXPERT WITNESSES
§ 18:11. OPINION AS TO THE ULTIMATE ISSUE
§ 18:12. COURT-APPOINTED EXPERTS

CHAPTER 19: PHYSICAL EVIDENCE

§ 19:1. REAL AND DEMONSTRATIVE EVIDENCE
§ 19:2. GENETIC TESTING IN PATERNITY CASES
§ 19:3. AUTHENTICATION OF DOCUMENTS
§ 19:4. SELF-AUTHENTICATING DOCUMENTS
§ 19:5. BEST EVIDENCE RULE
§ 19:6. THE RULE OF COMPLETENESS
§ 19:7. AUDIO RECORDINGS AND TRANSCRIPTS
§ 19:8. VIDEO RECORDINGS

CHAPTER 20: OTHER TYPES OF EVIDENCE

§ 20:1. CIRCUMSTANTIAL EVIDENCE
§ 20:2. EVIDENCE OF COMPROMISES AND OFFERS TO COMPROMISE, PLEAS, OFFERS TO PLEA AND RELATED STATEMENTS
§ 20:3. EVIDENCE OF LIABILITY INSURANCE
§ 20:4. EVIDENCE OF COURSE OF PERFORMANCE, USAGE OF TRADE AND COURSE OF DEALING
§ 20:5. EVIDENCE OF HABIT OR ROUTINE PRACTICE
§ 20:6. THE PAROL EVIDENCE RULE
§ 20:7. EVIDENCE OF CHARACTER
§ 20:8. EVIDENCE OF OTHER CRIMES, WRONGS OR BAD ACTS
§ 20:9. SUBSEQUENT REMEDIAL MEASURES
§ 20:10. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
§ 20:11. VIEW OF A SCENE
§ 20:12. NEGATIVE EVIDENCE
§ 20:13. EVIDENCE RELATING TO LIE DETECTOR (POLYGRAPH) TESTS

CHAPTER 21: OBJECTIONS TO EVIDENCE

§ 21:1. RIGHT TO OBJECT TO IMPROPER EVIDENCE
§ 21:2. NEED FOR OBJECTION TO IMPROPER EVIDENCE
§ 21:3. STATING GROUNDS FOR OBJECTION
§ 21:4. NEED FOR FORMAL EXCEPTION OR OFFER OF PROOF

CHAPTER 22: DAMAGES

§ 22:1. COMPENSATORY DAMAGES
§ 22:2. PUNITIVE DAMAGES
§ 22:3. RESCISSORY DAMAGES
§ 22:4. REMOTE, FUTURE AND SPECULATIVE DAMAGES
§ 22:5. MEASURE OF DAMAGES: TORT ACTIONS
§ 22:6. MEASURE OF DAMAGES: PERSONAL INJURY
§ 22:7. MEASURE OF DAMAGES: SURVIVAL AND WRONGFUL DEATH ACTIONS
§ 22:8. MEASURE OF DAMAGES: BREACH OF CONTRACT AND QUASI-CONTRACT
§ 22:9. MISCELLANEOUS MEASURES OF DAMAGES
§ 22:10. MITIGATION OF DAMAGES
§ 22:11. LIQUIDATED DAMAGES
§ 22:12. COLLATERAL SOURCE RULE
§ 22:13. EFFECT OF CONTRIBUTORY OR COMPARATIVE NEGLIGENCE

CHAPTER 23: TRIAL MOTIONS

§ 23:1. JUDGMENT OF ACQUITTAL
§ 23:2. JUDGMENT AS A MATTER OF LAW
§ 23:3. INVOLUNTARY DISMISSAL
§ 23:4. MISTRIAL

CHAPTER 24: CLOSING ARGUMENTS

§ 24:1. THE RIGHT TO MAKE CLOSING ARGUMENTS
§ 24:2. GENERAL RULES COVERING CLOSING ARGUMENTS IN CIVIL AND CRIMINAL CASES
§ 24:3. RULES SPECIFIC TO CIVIL CASES
§ 24:4. RULES SPECIFIC TO CRIMINAL CASES
§ 24:5. OBJECTIONS TO AND THE COURT’S CONTROL OF CLOSING ARGUMENTS

CHAPTER 25: INSTRUCTIONS

§ 25:1. PURPOSE OF JURY INSTRUCTIONS
§ 25:2. GENERAL REQUIREMENTS FOR JURY INSTRUCTIONS
§ 25:3. JUDGE MAY NOT COMMENT UPON THE EVIDENCE
§ 25:4. RULES SPECIFICALLY APPLICABLE TO CIVIL CASES
§ 25:5. RULES SPECIFICALLY APPLICABLE TO CRIMINAL CASES
§ 25:6. REQUESTING INSTRUCTIONS
§ 25:7. OBJECTING TO INSTRUCTIONS
§ 25:8. CORRECTING AND SUPPLEMENTING INSTRUCTIONS
§ 25:9. CAUTIONARY INSTRUCTIONS
§ 25:10. CURATIVE INSTRUCTIONS
§ 25:11. MANNER OF INSTRUCTING THE JURY
§ 25:12. PATTERN JURY INSTRUCTIONS

CHAPTER 26: CONDUCT OF THE JURY

§ 26:1. CONDUCT OF JURORS DURING TRIAL
§ 26:2. COMMUNICATION WITH JURORS
§ 26:3. EXPOSURE OF JURORS TO MEDIA ACCOUNTS DURING A TRIAL
§ 26:4. SEQUESTRATION OF THE JURY
§ 26:5. ITEMS TAKEN BY JURY TO JURY ROOM
§ 26:6. RULES GOVERNING ARRIVING AT A VERDICT

CHAPTER 27: VERDICT

§ 27:1. VERDICTS GENERALLY
§ 27:2. VERDICTS IN CIVIL CASES
§ 27:3. VERDICTS IN CRIMINAL CASES
§ 27:4. FORM OF THE VERDICT
§ 27:5. INCONSISTENT VERDICTS
§ 27:6. DISAGREEMENT AMONG THE JURORS
§ 27:7. POLLING THE JURY
§ 27:8. IMPEACHING A VERDICT

CHAPTER 28: JUDGMENTS

§ 28:1. FINAL AND INTERLOCUTORY CIVIL JUDGMENTS GENERALLY
§ 28:2. ENTRY OF JUDGMENT IN CIVIL CASES
§ 28:3. FINALITY OF CIVIL JUDGMENTS
§ 28:4. ENTRY OF JUDGMENT AS TO FEWER THAN ALL CLAIMS OR PARTIES
§ 28:5. RELIEF FROM JUDGMENT
§ 28:6. ENTRY OF JUDGMENT IN CRIMINAL CASES
§ 28:7. CERTIFICATION OF QUESTIONS OF LAW AND INTERLOCUTORY APPEALS
§ 28:8. COSTS AS PART OF A CIVIL JUDGMENT
§ 28:9. COSTS AS PART OF A CRIMINAL JUDGMENT
§ 28:10. INTEREST ON A JUDGMENT
§ 28:11 ATTORNEY’S FEES

CHAPTER 29: POST-TRIAL MOTIONS

§ 29:1. NEW TRIAL AND REARGUMENT IN CRIMINAL CASES
§ 29:2. ARREST OF JUDGMENT
§ 29:3. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW IN CIVIL CASES
§ 29:4. NEW TRIAL, REARGUMENT AND AMENDMENT OF JUDGMENT IN CIVIL CASES
§ 29:5. GROUNDS FOR GRANTING A NEW TRIAL IN CIVIL CASES
§ 29:6. PARTIAL NEW TRIAL
§ 29:7. REMITTITUR
§ 29:8. ADDITUR