Rule 706.Taking Testimony

Rule 706 is the courtroom rule.

Open court

At trial or an evidentiary hearing, testimony must be taken in open court unless a statute, these rules, the Idaho Rules of Evidence, or another Supreme Court rule or order provides otherwise. The court may permit testimony in open court through video conferencing — which is different from Rule 116's telephone or video appearance at a hearing. Here the witness is testifying, and the video link is a way of appearing in the open courtroom, not of avoiding it.

Rule 113 governs who may be present; Rule 117 handles a child's statement.

Oaths and interpreters

Where these rules require an oath, a solemn affirmation is sufficient. A party who, or whose witness, needs an interpreter under I.C.A.R. 52 must notify the court at least 14 days before the proceeding, or as soon as practicable for an expedited hearing.

Examination

Direct examination is by the calling party, cross-examination by the other, and direct must be completed before cross begins unless the court allows otherwise. Only one attorney on each side conducts the examination of a witness until it is complete, absent permission — so a case cannot be tag-teamed across a single witness.

The court's own role

When the court is the trier of fact — which in family law is nearly always — it may call witnesses on its own or at a party's request, and each party is entitled to cross-examine. The court may examine a witness regardless of who calls them.

And the objection provision is short and strict: a party wishing to object to the court examining a witness must do so at the time of the examination. There is no later cure.

Recalling

After a witness has been examined they cannot be reexamined as to the same matter without permission, though reexamination as to any new matter raised by the adverse party is allowed. A witness examined by both sides cannot be recalled by the same party without permission — but nothing prevents the adverse party from calling that witness as its own for direct examination.

Two more

During trial the court may order a view of any property, place, item, or circumstance relevant to the action. The view must be conducted personally by the court after notice to all parties, and attorneys have the right to be present.

And whenever a writing is shown to a witness, it may be inspected by any other party.