DIRECT EXAMINATION - Building a Dramatic Story
It's been said, "A good lawyer turns evidence into fact and fact into truth." Because they bear the burden of proving the case beyond a reasonable doubt, prosecutors must call witnesses in every trial. Direct examination is the keystone in the prosecution's arch. Direct is also important to the defender who will call witnesses in support of the defensive theory.
Anyone can ask questions. Your job is to use the direct persuasively and in a manner that establishes the foundation for your jury argument. If you want to be a persuasive trial advocate, you must make the facts of your story come alive. Direct examination is the place to fluently communicate the theme of your case and establish the credibility of your witnesses.
What are the purposes of direct examination?
You can use direct examination to present evidence in a form that is (1) legally sufficient to meet the burden of proof, (2) understood and remembered, (3) convincing, (4) able to withstand cross-examination, and (5) anticipatory and contradictory of evidence that the opposition will present. Think of direct examination as your opportunity to construct persuasive arguments. The questions that your ask will subtly convey your argument. Conversely, use the arguments that you want to make at the end of the case to guide you in planning and preparing the questions you will ask on direct.
What approach should you take?
Your questions on direct examination must let the witness recreate an event. The story must be clear.You must tell the story in a way that will hold the jury's attention. How can you do this? Here are a few suggestions:
+ Visualize your case and the story you want to tell. You, as producer, director, and moderator, will use the fact witnesses on direct to paint a series of word pictures of scenes that you want the jurors to visualize. One key to a successful direct is being able to tell you story in a way that enables the jurors to see, in their minds, each relevant prior occurrence that tells your story. Many people, including some jurors, are what we call "visual thinkers." For example, if someone says "purple giraffe," what image flashes into you mind from these words? You see a purple giraffe, don't you? You bet your giraffe, you do! The point is that words prompt most of us visualize an image of a thing or event. We don't visualize the words that describe that image, e.g., you don't visualize the words "purple giraffe." We visualize the thing that the words describe, e.g., a giraffe that is purple. The purple giraffe I visualize will differ from the one you visualize, but you would recognize mine, and I would recognize yours. As the description of the purple giraffe got more explicit, each of our mind's pictures of a purple giraffe would morph into the one being described by words. The mind picture fleshes out as the word description gets more specific. With enough descriptive explanation, each of our mind pictures of the purple giraffe would look quite similar. So it is with the story of your case. The more detailed and similar the word picture you elicit on direct, the more similar the common visualization that your jurors will share.
+ You are not limited to painting word pictures of your story. You can and should involve the jurors by supplementing your witness' word pictures with tangible exhibits. For example, if you have a photo of the item, that photo will be worth a thousand descriptive words. Instead of the leaving it to the jurors to conjure up their own images, you show them an image of the thing, e.g., the real purple giraffe. My discussion on the Exhibits page may help you in telling your story on direct by means of tell and show. You may also find it helpful to read the more detailed and explanatory monograph Introducing Tangible Evidence and Establishing Foundations in Criminal Cases.
+ Think about how you want to tell your story. With your direct examination, you decide what parts of the story to tell, how to tell them, and when to tell them. In making these decisions, you decide what scenes you want the jurors to carry in their memory banks.You must organize each of the discrete scenes of the story. By your questions of witnesses on direct, you decide how to structure the story and what its substance will be. Make each important scene of your story a vivid memory for your jurors. Remember that you know much more about your case than the jury ever will. When the case starts, you are painting on blank canvas. Before it ends, you want all the pictures painted. If you leave parts blank or blurry, the jury will fill them in. Don't assume that the jurors will fill those blank or blurry spots the way you desire. Don't assume anything. If there is a cardinal rule in creating and organizing your story on direct, it is this: Look at the case through your juror's eyes.
+ Introduce your case story in opening statement. Before direct begins, the jurors typically get a bird's eye peek at the skeletal outline of your story of the case in your opening statement. By the time your direct begins, you will have told them about the testimony they will hear and, perhaps, shown them some of the exhibits they will see. You will have revealed the skeletal plot of the story of your case and introduced at least a partial list of the characters. Your jurors certainly have an idea about what you say happened or didn't happen. Though you may not have gotten specific, you should have used your opening to introduce rough sketches of key scenes.
+ Consider the nature of your audience who will hear the direct examination. You are presenting your case to a relatively small group, e.g., 6 to 12 persons. The atmosphere is almost that of an inquisitive conversation, though it is only two-sided in the sense that the jurors (the third party to the conversation) listen silently as you and your witness verbally reconstruct events. The conversation you have with the witness is solely for the benefit of the silent listeners on your jury.
+ The story you tell on direct will often be a different one, in time and space, from the story the opposition will tell. This is particularly true when for defenders who are relying on a so-called "confession and avoidance" defense. In this situation, the defense may be saying, "The prosecution's story is true, as far as it goes, but there is more to this story...." In effect, the defense admits the presence of the elements of the crime but seeks to justify e.g., the defendant intentionally killed in self-defense, or excuse, e.g., the defendant intentionally killed but was insane at the time of the killing, the otherwise criminal conduct.
+ The defense story will be influenced by the presence or absence of testimony from the accused. Will the accused testify? Whether to put your client on the witness stand is always a crucial decision. The client has the last say in this decision, but will usually be guided by your advice. In some cases, e.g., when the accused is the only witness who can provide a defense, it may be essential that the accused testify as a witness in his own behalf. In cases where the accused's testimony is not essential, the risk often outweighs the potential reward. Good lawyers caution against putting the accused on the stand in cases where the defense is "reasonable doubt," i.e., "you can't prove beyond a reasonable doubt that s/he did it." There are many factors to consider in deciding whether the defendant should testify. Will the accused's testimony add to or detract from the reasonable doubt of his guilt? Will the jury follow the law and not draw and adverse inference from the defendant's failure to testify? Is the accused impeachable, e.g., is s/he biased, does s/he have admissible prior convictions, has s/he made admissible prior inconsistent statements, will there be negative evidence of the defendant's bad character for truth-telling? Does the defendant have a pleasant or grating personality? Is the client passive or aggressive? Is the client modest or arrogant?
+ All direct leads to jury argument. Trial is argument. Let your direct contain the necessary details to give you the substance for your jury argument. Use the direct to provide your jurors with the information they will need to decide the case in your favor. You want to be the 13th juror in the case, giving the jurors the useful and favorable information they would seek if allowed to question the witness.
What are the legal requirements for a direct examination?
Competency of your witness - The first legal requirement is that your witness must be competent to testify. To qualify as competent, a witness must have: (1) Understanding of the nature and obligation of the oath or affirmation to tell the truth, (2) Perception (knowledge) of the the relevant event, (3) Recollection (memory) of the relevant event, and (4) Ability to communicate with the fact-finders (the jury or judge in a bench trial) in the common language of the court, i.e., English. There are instances when the competency of a witness may not be apparent. For example, if you call an infant or a mentally infirm person who may not understand the obligation of an oath to tell the truth, you should prepare the witness for a voir dire inquiry into competency. The voir dire inquiry may be posed to the witness either by yourself, the judge, and/or opposing counsel. If your witness does not speak English, the witness will only be competent to testify in the company of an interpreter who can translate the the witness' words into the language of the court. [Note: In cases where interpreters are necessary, as they often are in states along the Mexican border, take care to insure that the translation is correct.]
Since one of the legal requirements for testimony from lay witnesses is personal knowledge, you should ensure that the context of your questioning reveals to the court and the jury that your witness is testifying to facts within that witness' personal knowledge. See Rule 602 FRE and TRE which declares that "A witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter." Relevance of your witness' testimony - The second legal requirement for your direct examination is that your witness' testimony must be relevant. Relevant evidence is evidence that has some (any) tendency, however slight, to make the existence of a fact of consequence to the case more or less probable than it would be without it. Always remember that, even when the witness' direct examination testimony is relevant, the probative value of the witness' evidence must usually not be substantially outweighed by its unfairly prejudicial influence (affect) or by considerations of undue delay or needless presentation of cumulative evidence, See Rule 403 or the FRE and TRE. Authenticity of matters of evidence to show that the item in question is what its proponent claims it is - The third requirement for your direct examination is that matters of evidence must be authenticated. You authenticate an item of evidence by making a prima facie showing that it is genuine. Authentication or identification of the matter in question can be done in number of ways, e.g., by testimony from a witness with knowledge, by voice and handwriting identification, etc. The proponent has the burden of making a prima facie showing that the matter is authentic, i.e., that a reasonable person could believe that the item is genuine. If this showing is made, then the issue of identification or authenticity is left to the jury, the issue then becoming one of weight and not admissibility. See Rule 104 (b) FRE and TRE. Proper evidentiary foundation or predicate for the admissibility of the evidence - Certain items of evidence require special foundations to establish admissibility. For example, if your evidence is hearsay and, thus, presumptively inadmissible under Rule 802 FRE and TRE, you will be required to establish its admissibility under one of the hearsay exceptions listed in Rules 803 and 804 TRE, e.g., present sense impression; excited utterance; statement of then existing mental, emotional, or physical condition; statements for purposes of medical diagnosis or treatment; recorded recollection; record of regularly conducted activity (business records); public records; former testimony; dying declaration; etc. See the predicate questions in the monograph Introducing Tangible Evidence and Establishing Foundations. To properly prepare and conduct a direct examination, you must understand the application of the rules of evidence. That means you have to know the rules, but, more importantly, you have to know how to conform to the rules and play within their confines. You cannot even suit up for the game of trial advocacy without knowing your state's Rules of Evidence! (I've provided my students with a copy of the TRE. How can you play the trial courtroom game without knowing the rules? They are the trial lawyer's Bible. Mastery of them will allow you to part the waters.) For example, if you don't understand what hearsay is, you won't have the foggiest notion of when you are asking your witness to testify to inadmissible hearsay. If your opponent know the rules and objects to the hearsay, you'll be caught flat-footed. Even if you know what hearsay is, you must know all of the exceptions to the general rule of inadmissibility of hearsay. If you don't, you won't be able to craft your questions to conform to a particular exception to the rule against hearsay.
How do you plan and prepare your questions for direct examination?
I urge you to plan and prepare your direct to support your jury argument. In every case that you face, think about what your jury argument will be for each fact that you will ask the jury to find from the evidence. If the evidence is circumstantial and susceptible of differing conclusions, ask yourself what premise you and your opponent will ask the jurors to draw from the same circumstantial evidence. Your argument is the connection between the evidence and the fact that you want the jury to find from that evidence. Direct examination is typically the place where you will prove your factual version of the case. You can use the direct of one witness to buttress the credibility of or authenticate the testimony of one or more of your other witnesses. Direct will also teach and educate the jury, particularly when you use expert witnesses.
Let's consider some factors that you should think about in planning your direct:
+ Topics: Ask yourself, "What topics do I plan to cover in the direct examination of the witness?" In most cases you will start with the general background and then proceed to the the specific point that you want to make. It may help you as you plan your direct to think of each topic (unit) as an inverted triangle in which your inquiries of the witness start with the general and move down to the specific.
+ Sequence (order) of witnesses: Ask yourself,"What sequence (order) of witnesses will I follow?" You must plan the order in which your witnesses will testify. Although witnesses are often called in chronological order, i.e., from the beginning of the story to the end, there are other alternatives. Topical use of witnesses is one alternative; in this variation, you use witnesses to present topics, e.g., discovery of the body, cause of death, DNA evidence, prior relationships between the accused and the victim, the killing, etc., in the order you deem most persuasive. Prosecutors sometimes open their case with a witness, e.g., the detective in charge, who gives the jury a bird's-eye view of the prosecution's case. Should you construct your presentation to use your best witness(es) first, in the middle, or should you save the best witness for last? As story presenter, director, and presenter, it's your choice where to use your power witness(es).
Many considerations can factor into your choices of witness sequence. You may want to separate repetitive witnesses to avoid boredom. You may even consider the time of day in deciding when to call a key witness. Be aware that juror attention is typically on the wane shortly before and after lunch. In cases involving expert witnesses, you may choose to call lay witnesses before you call your expert because you want to have the lay witnesses' factual testimony in front of the jury when you call upon your expert to draw conclusions from such facts.
Will the defendant testify? This is a major decision for the client that deserves separate attention. We are talking here about sequence of witnesses. For purposes of this discussion, I'd like to assume a case where the defense has decided to put the accused on the stand, and consider when the defendant will testify. Obviously,the defendant's testimony will be a focal part of the case, perhaps disproportionately so. The traditional wisdom is that the defendant should be called as the last or close to last witness, although I've seen some defenders call the accused as the first defense witness, risking the hazard that the prosecution may undermine the defendant's testimony by cross-examination of subsequent defense witnesses. If the defendant has elected to testify in his own behalf, you may want to try to follow his testimony with one or more character witnesses who will testify to his good character (in the form of reputation or opinion ) for truthfulness; however, this will be possible only if the prosecution's cross-examination of the defendant sufficiently attacked the defendant's character for truthfulness. See Rule 608 TRE which makes it clear that evidence of the truthful character of a witness is only admissible after the character of the witness for truthfulness has been attacked by opinion or reputation violence or otherwise.
+ What you don't want to ask:. As you construct your questions for direct, think about what you don't want to ask. Generally these will be questions that will blur the mental picture that you want to paint for the jurors. Examples of questions that you might not want to ask might include questions that call for inconsequential detail, facts that can be easily disputed, facts that don't make sense, statements that can be impeached, facts that open the door to inadmissible evidence, etc
+ Background questions: In most cases, prior to any questioning on substantive matters, you will ask your witness some introductory background questions that acquaint the jurors with who the witness is. The goal is to introduce your witness in a way that makes him or her seem credible and trustworthy. Remember that the credibility of each of your witnesses is part of your case. As the old bromide goes, "If you can't trust the messenger, you can't trust the message." It's nice if your witness shares some of the same characteristics as the jurors who will judge his credibility. How do you establish your witness' background? Have the witness tell the jury a bit about himself. You begin with the witness' name. Instead of saying, "State your name, spelling your last name, please.", you might say, "Would you introduce yourself to the jury, sir?" or ""Tell us your name, please." Some of the additional biographical background information can include the witness' occupation, length of employment, length of residence in the county, age (a sensitive subject to some mature adults), education (no sense proving a lack of it), marital status, spouse's occupation, children, and age of children. At some point, background questions, e.g., the make and model of the witness' car, won't be legally relevant. If you try to introduce too much background to bolster or accredit the witness, the opposition will object that it is not relevant and/or is improper character evidence. After introducing a bit of background, you may want to ask your witness if he knows why he has been called to testify. If you've prepared him properly, you're safe in asking him to explain why he has been called.
+ Facts: After establishing your fact witness' background, you will turn to the relevant event about which the witness has knowledge gained by perception. In most cases you will present the witness' testimony in chronological order. This means guiding your witness through a description of the events in the order in which they transpired. The direct examination may focus on a relevant occasion; the direct examination may establish what happened prior to the event in question, what happened during the event, and/or what happened after the event. In some cases the fact witness may be asked how he came to be in court and whether there has been contact with the parties.
+ Exhibits: When displaying documents or other items during direct examination, you may find it useful to use an overhead projector, platform video or evidence camera (Document Camera), or flat panel video monitor/projector, computer and PowerPoint slide that will allow all the jurors to see the item simultaneously. With a laser pointer, the witness can "tell and show" matters of importance in the featured item. Having the witness step down off the witness stand and demonstrate with or without exhibits can spice the action. (1) See Courtroom Technology .
+ Preparing and structuring your questions for direct: Here are some suggestions that you should consider when preparing and organizing your questions for direct examination:
1. Outline. I suggest that you outline your direct examination questions first. Then, when you are happy with the dramatic order, write out each question and each anticipated answer. Your questions should be written in the lingo of the ear, not the eye. In other words, write your questions in plain natural spoken English . Place your written questions of direct examination of each witness in a section of your trial notebook. You are not wedded to your preformed questions. Listen to your witness' answers. Don't let your write out questions control. Be willing to depart from them, particularly when the witness gives an answer that demands a follow-up. Caution: At trial, keep your eyes out of your trial notebook while putting a question to your witness and while your witness is answering the question. Don't feel that you have to ask your questions verbatim as they appear in your trial notebook. Let the words be natural. If you need to consult your trial notebook for guidance in asking a question, look down at the notebook silently. Never read the question. Look up at the witness, and ask the question. Continue looking at your witness while the witness answers. Listen to the answer. Don't dive back into your notebook while the witness is answering. Remember, the jury's focus is supposed to be on your witness. If you don't pay attention to your own witness' answer, why should the jurors feel obliged to do so? 2. Clarify. To make your questions clear, add only one new fact to each question. Compound questions invite objections. So do questions that are vague and ambiguous. 3. Build evidentiary bridges. Weave you story together by having your witnesses identify and refer to one another during direct. Building a bridge from one witness to another is a good way of introducing the players and their roles to your jury. It also smoothes the segue from one witness to another. 4. Employ transitions and signposts. Use transitions and signposts to alert the jurors when you are moving from one unit of direct examination to another or simply to signal the subject of your upcoming questioning. A transition occurs when your questioning moves from one subject to the next . It's easier for the jurors to follow the direct examination if you periodically let them know where you are going with it. Use transitional phrases to herald a change from one topic to another, e.g., "Let's move from (indicate the unit/subject you are leaving ) to (indicate the unit/subject you are entering)." Use signposts to announce a topic, e.g., "I'm going to ask you about (indicate the subject)." . 5. Make repetition persuasive. When repetition is obvious to the jurors, you wind up with the inelegant "Same donkey, different saddle" effect. Repetition must be artful. To artfully use the forensic device of persuasive repetition, learn to loop your witness' favorable answers into later questions. You can do this by incorporating a favorable factual assertion in a prior answer into your next question. Learning to loop will help you avoid obvious repetition of the kind that makes jurors roll their eyes. When you loop,you undercut the opponent's opportunity to object that the question has been "asked and answered." 6. Stretch the important parts. To dramatize a key point in direct, learn how to "stretch-out" your questions. You do this by breaking the factual point you want to into several questions rather than a single cursory inquiry. You will find that this technique will result in a fuller description of the fact. It's analogous to using several detailed brush strokes to paint your fact, rather than a single broad stroke. 7. Learn to mirror. Mirror some of the good characteristics of your witness. Adopting some of the characteristics of your witness, e.g., language, smile, tone of voice, eye-contact, etc. puts you on a better conversational level with your witness. 8. Have your foundations ready. Be prepared to authenticate and lay foundations for any exhibits that you are going to introduce through your witnesses. Your goal is to have a smooth introduction of your tangible exhibits and a persuasive "tell and show" as you use the exhibits to add punch to your story. Tip: Put a Post-It note with the predicate questions for your exhibit on each of your exhibits. If you encounter a temporary case of intestinal gas on the brain, you will have your predicate (foundation) questions well at hand and won't have to fumble for them in your in your trial notebook. 9. Make your witness' personal knowledge clear. Your non-expert witness must speak from personal knowledge. Your lay witness can give lay opinion rationally based on the witness' personal perceptions, e.g., identification of a person based on having seen him. But a lay witness is not allowed to draw conclusions that call for technical, scientific, or other specialized knowledge.You must know when you are asking your witness for admissible lay opinion rather than inadmissible expert opinion. 10. Be extra ready to present your client's testimony. If the defendant, your client, will enter the minefield by testifying in his own behalf, prepare your direct examination by forming a set of questions that will allow the client to express a string of explanatory denials of the allegations. This will help you ask open-ended questions. 11. Deflate the potential cross-examination. Ask yourself, "How can I structure my direct to deflate the probable cross-examination of my witness?" Your direct must anticipate the probable cross-examination that will be conducted by opposing counsel and counter any opposition evidence and/or exhibits that are contradictory or inconsistent with your story of the case. For example, if you are calling a witness who has knowledge of a negative fact that is beyond dispute, don't dispute the fact. Instead, try to use your witness to dispell the negative aspects of the fact so that you can spin it in argument to your advantage. 12. Utilize open-ended questions for the important parts of the story. It's important to recognize the importance of open-ended questions that tell your story: Think about whether it is best to use an open-ended or close-ended (leading) question. Open-ended (non-leading) questions permit your witness to give an open, descriptive answer. They often begin with who, what, when, where, why, or how. Close-ended (leading) questions are controlling in the sense that they restrict the witness' answer and suggest the appropriate answer. As the direct examiner, you are also the director of the examination. That means that you don't go so overboard with open-ended questions that the witness is left to find his own way through the forest. You will need to prepare the witness in advance and guide him to the part of the story where open-ended questions allow him to tell it. 13. Avoid questions that suggest the answer to your witness. Rule 611(c) TRE and FRE state, "Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. 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." This requirement of the Rules is designed to help you conduct a persuasive direct. It tells you that generally you are supposed to ask open-ended, non-leading questions on direct. In certain situations, courts will allow you to ask close-ended, leading questions on direct because leading questions are necessary to develop the witness' testimony. Leading questions on direct may be allowed by the judge, for example, to establish an evidentiary foundation, to suggest a new topic with transitional phrases, to refresh the witness' recollection, to establish preliminary matters, to establish inconsequential or undisputed facts, to question those with limited capacity, e.g., a forgetful witness, a child witness, or a mentally disabled witness, and to question an adverse party, one identified with an adverse party, or a hostile witness.
Leading questions on direct are usually not persuasive because they involve the lawyer testifying through close-ended questions and the witness simply parroting "yes" or "no." to the lawyer's suggestive questions. Jurors will be more convinced if the words of the story come from the lips of the witness. My suggestion is that you should generally avoid leading questions on direct when describing the meat of your story. You may need to lead or ask closed-ended questions when suggesting topics, speeding things along, refreshing recollection, covering undisputed facts, laying a foundation, questioning a person of age or infancy, or examining an adverse witness. . Use open-ended questions when you want the juror's to focus on your witness. One of the most important things to recognize in direct-examination is the difference between open-ended and closed-ended questions. Open-ended questions encourage your witnesses to testify in their own words. If they are credible folks, this technique will make them seem more believable than if you questioned them with leading (close-ended) questions. Sometimes you need to use a closed-ended question, as when the witness has forgotten to talk about a very specific and important matter or when you are skirting around sensitive matters and trying to avoid opening the door to certain subjects. In short, you should know the difference between open-ended and close-ended questions, know how to use open questions where appropriate in direct, and always try to use open questions to balance any necessary closed questions. 14. Learn how to ask open-ended, non-leading questions. You will have to train yourself to get into the habit of asking open-ended, non-leading questions during key parts of your direct. It's not normal. Why? Because, if you have learned your case, you already know all the answers.You are anxious to have the jurors know all the answers, so anxious that you literally want to tell them yourself by leading and testifying for your witness. If you have trouble forming open-ended (non-leading) questions, try writing out the answers you would want to receive from your witness; then write the questions that would call for the desired answer. If you do this a few times, it becomes much clearer how you can tell your story through your witness. There's another forensic device that may assist you in forming non-leading questions. Try to begin each key question with a who, what, where, when, why, and how. These six short words are the key components to your story. I've always liked the way the great poet and writer Rudyard Kipling put it:
I kept six honest serving men.
They taught me all I knew.
Their names were what and why and when
and how and where and who.
How do you deal with direct examination of a hostile witness, adverse party, or a person identified with an adverse party?
A hostile witness can be as unpredictable as a wild mustang stallion. If you don't rein him in, he can do more damage than good. A witness will be considered as hostile if s/he is associated with the opposition or if s/he is openly hostile (prejudiced) against you or biased in favor of the other side. Asking "why" and "how" questions is inviting trouble. So, how do you get a lasso over a hostile witness on direct examination? Get permission from the court to lead the witness, i.e., ask closed-ended, leading questions. The rules of evidence indicate that when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. (See Rule 611 (c) TRE & FRE). In a criminal case ,the key determination for the judge is whether the witness is hostile or is identified with the adverse party. If so, you have a right to lead the witness on direct.
To raise the issue of hostility, go to sidebar before calling the witness and ask the court for permission to lead the witness on the ground that the witness is hostile to your position. Explain why you consider the witness hostile. The judge may accept your representation and grant your request. If not, you will need to make a showing of hostility. Do this by voir dire questioning out of the presence of the jury. You may be able to prove hostility by calling the witness and securing admissions of hostile feelings. You may need to show witness hostility with extrinsic third party evidence. You may have to wait until the witness acts up on direct, e.g., openly evades questions or refuses to cooperate, to obtain a court ruling allowing you to treat the witness as a hostile witness.
The fact that the witness is distant or reluctant won't necessarily make him appear sufficiently hostile in the court's opinion to allow you to lead. If you are in a situation where you have to call a witness who doesn't want to have to come to court, consider him as hostile in your planning, irrespective of whether the court will declare the witness as hostile.
What about adverse parties? The defendant in the opposing party to the prosecution, but the Fifth Amendment privilege prevents the prosecution from calling the defendant as a witness on direct. If you are a defender, the opposing party is the state, commonwealth, people, etc. These are entities and not persons. So, you will have to rely on your right to lead your witness if the witness is identified with the adverse party. Who might qualify as such a witness? The complaining witness? The law enforcement agents who conduct the investigation for the prosecution?
How do you prepare your witness for direct and cross-examination?
It is disastrous on direct examination of a friendly or neutral witness for the examiner to appear to be putting words in the witness' mouth. The way to avoid this potential disaster is to prepare your witness in advance of testimony so you and the witness each know what the other will say. If you do this, you can avoid the disaster of having to testify for your witness simply by asking non-leading questions. Preparation is the key to effective direct examination. Consider the following advice as you prepare your witness for direct and cross-examination:
+ As a general rule, you can assume that a friendly witness wants to help you on direct examination. A neutral witness simply wants to be accurate. A hostile witness wants to wound you.
+ Be extremely wary of putting a witness on the stand if you haven't interviewed him or her. You don't want to find yourself in the position of trying to throttle your own overly talkative witness. When you try to put a lid on the verbiage of your own witness in front of the jury by interrupting the witness' answer, you will appear disingenuous and manipulative. Plus, it's kind of embarrassing when the court sustains opposing counsel's objection to you cutting off your own witness' answers!
+ If possible, prepare the witness in your office. Greet the witness in your reception area and escort the witness to your office or conference room. Offer the witness refreshment. Get it yourself; don't ask someone else to do it.
+ It is your choice whether to prepare the witnesses in groups or individually, and in one or several interviews.
+ Make certain that your witness knows his role in the telling of the story or reconstructing of the event. Explain to the witness where s/he fits in your overall case. Tell the witness why you are calling him.
+ Familiarize your witness with an outline of the questions you will ask him on direct, and brief him on the anticipated cross-examination. The idea is to let the witness know what questions he can expect. Most lay witnesses will be testifying to their observations and perceptions. If the witness is called to venture opinion or reputation testimony concerning character of the defendant, alleged victim or another witness, the character witness needs to know exactly what you are going to be asking. If you are going to put the client on to testify in his own behalf, make clear how you are going to deal with the client's denial of the allegation, e.g., will you have the client deny the allegation at the very outset of the direct before any background questions are asked.
+ Determine what answers your witness will give both to your direct and to the opposition's cross. This typically takes the form of a rehearsal in which you conduct a mock interrogation of the witness. If you are rehearsing with your client, you may want to get another colleague to conduct the mock cross-examination. It may be helpful to videotape the mock interrogation. [Note: If you videotape a non-defendant witness and keep the tape, the opposing side may obtain trial discovery of the tape in Texas under Rule 615(a) & (f) (2) TRE and in federal court under Rule 26.2 F.R.Crim.P., 18 USC Section 3500 (The Jencks Act)]
+ Find out if your witness has prior experience testifying in court. To calm any pretrial jitters, you may want to take your inexperienced witness to the courtroom before trial begins.
+ Advise your witness that it is best to listen to each question on direct and cross and take one or two seconds before answering. Tell the witness that he may answer if the question is clear and you do not lodge an objection. Let the witness know that if he does not understand the question he should say "I'm not sure what you're asking" or "I don't understand the question."
+ The place to deal with possible memory lapses is always in the pretrial preparation process; however, if you are dealing with an essential witness who suffers with a fragile memory, you can tell the witness "If for some reason your mind goes blank or if you freeze up, it's perfectly acceptable to say 'I'm sorry, I'm having a little trouble remembering.' " Tell the forgetful witness that if s/he runs into a memory problem, you may try to refresh his memory about the matter of inquiry
+ One way or another, you need to provide a laundry list of advice to your inexperienced witnesses as to how to handle direct and cross. You may provide a written letter or booklet explaining what witnesses should know about testifying at the courthouse. [Note: If you provide your witness with written instructions and he reads it, the opposition will be able to get trial discovery of the writing under Rule 612 TRE and FRE. If you write such a letter, take into consideration that your opponent may be allowed to introduce your written advice to the witness into evidence. Remember that your goal is to have the witness testify truthfully and be believed.].
+ Let the witness know that you are going to do everything possible to make the witness' appearance as easy and convenient at possible.
Refreshing recollection of your forgetful witness - Using a writing or other item in aid of your witness oral testimony
If you have properly prepared your witness for testimony, it is improbable that you will need to refresh the witness'' recollection while s/he is on the stand. Still, some witnesses are so stressed that they develop a mental block or a blank mind while testifying. We have all suffered from the occasional brain cramp. So what can you show you witness to revive or refresh her/his recollection? The first thing you can try is a leading question. Most judges will allow a leading question when it is apparent that the witness has forgotten. If leading the witness doesn't work, you can refresh the witness' recollection.
You can refresh a witness' memory on the stand with anything, e.g. a phone book, a letter from someone else, a sack of manure, etc. If it is a written document, it does not have to be written by or adopted by the witness. For the purpose of refreshing or reviving a witness' recollection, it does not matter that the written document was authored by someone else. It is not necessary that the document or item be admissible in evidence. You are not introducing the item into evidence. You are just using it to revive a temporarily defunct memory, much as you might use oil to open a rusty lock, except this is brain oil and the rusty lock is the witness' rusty memory. [Note: The cross-examiner is also allowed to refresh a witness' recollection, but inconsistencies in an opposition witness' testimony are customarily used to impeach the witness.]
Note that when you use a writing or other item to refresh a witness' memory, opposing counsel is entitled to inspect the item and introduce relevant portions of it. See Rule 612 FRE and Rule 612 TRE relating to the adverse party's right to have the writing used to refresh the witness memory produced at the trial or hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. So you always want to think cautiously about the contents of any writing you use to refresh or revive recollection of your witness. Note that if opposing counsel does introduce the item that you used to refresh your witness' recollection, it is admissible only on the issue of your witness' credibility and not for the truth of the matter asserted in the item.
What are the steps in refreshing (reviving, restoring) a forgetful witness' recollection (recall, memory) with a written document or other item while the witness is on the stand?
Included below is a list of the sort of questions you can ask your forgetful witness to refresh the witness' memory when you have a document, e.g., the witness' statement, that contains information that will jolt the forgetful witness' memory. Remember though, the item you use to refresh a witness recollection on the the stand does not have to be anything written or adopted by the witness. Here, for example, it could be someone else's statement, maybe one the witness has never seen before, rather than the witness own prior statement. Remember also that you don't have to sweat the usual barriers to use of writings, e.g., authentication, original document (best evidence) rule, hearsay rule. Why? Because you are not going to introduce the writing used solely to refresh/revive the recollection of your witness. The jury doesn't see it.
Q: Did you ever make any notes (or give a written statement) when this was fresh on your mind?
A: Yes, I made some notes at the time (or a signed statement to your investigator).
Q: [Mark the notes or statement and tender them to the opposition for inspection.] Let me show you this document, marked for identification as Defense 1, and ask you to tell me if you recognize it.
A: Yes, I do.
Q: Without telling me what it says, would you tell us what it is?
A: It's my notes (or written statement) of what happened.
Q: Take a moment to look at it. Now, after looking at your notes (or written statement), has your memory been refreshed about (indicate the inquiry, e,g., what happened with regard to the event in question).
Q: Do you remember what happened well enough to put this document aside and testify from your own memory about (indicate the event).
A: Yes [Take the document back. TIP: If your opponent is skilled, s/he will be sure to require you to take the document back before the witness tries to testify from refreshed memory, unless s/he wants to sandbag the witness by taking the document away during cross-examination questioning of the witness to show that the witness' memory was not really refreshed.]
Q: What do you remember about (indicate the event)?
Recorded Recollection (Prior Recollection Recorded) -An exception to the hearsay rule. - What can you do when you have tried unsuccessfully to refresh the witness' recollection with the witness' own statement and the witness still has lack of sufficient present recall (memory) to testify fully and accurately?
On rare occasions, your witness may be faced with a witness who is so forgetful that you fail in refreshing her/his recollection. Sometimes this may be expected, as when a very long list of items is involved. If your witness does not have sufficient memory (recollection) to answer your question fully after you have tried and failed to refresh the witness' present recollection (memory), you may wish to try to establish the admissibility of your witness' prior out of court assertions of fact in the form of a memorandum or record of recollection made or adopted by the witness. Unlike refreshing recollection where you can use any writing to refresh recollection, recorded recollection covers only a prior writing authored or adopted by the witness whose memory has failed. Here you will introduce the witness' prior recorded recollection into evidence. If you are successful, the jury will hear it read to them. This record or memorandum of prior recollection comes into evidence as a recognized exception to the hearsay rule. See Rule 803 (5) FRE, Rule 803(5)TRE. The assertions of fact in the recorded recollection are admitted as probative evidence of the truth of the matters asserted in the recorded recollection. (In effect, they substitute for the the live witness who is incompetent to testify on the matter because of failure of recollection.) Note that the recorded recollection writing can only be read to the jury by the proponent; it cannot be received as an exhibit, unless offered by opposing counsel.
Here's the text of the recorded recollection exception to the hearsay rule from the FRE and TRE.
- Rule 803 (5) FRE states:(5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
- Rule 803 (5) TRE states: Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. (Note: This limitation is like that imposed on a learned treatise.)
Remember, if you face a situation that permits introduction of a recorded recollection, your witness has ceased to be a witness to the fact in question and serves only as a foundational witness who authenticates his/her previously recorded recollection. What do you need to ask your forgetful witness to introduce his prior statement as recorded recollection? Here are some sample predicate or foundational questions formulated under Rule 803(5) above. :
Q: Did you at one time know what happened with regard to (indicate the event in terms of the time, place, and people involved).
Q: Do you now have present sufficient memory (recollection) to allow you to testify accurately and completely about (indicate the event). [Have the memorandum marked for identification as a court exhibit. Remember, the recorded recollection can't be physically introduced into the hands of the jury. If admissible as an exhibit, it can only be read into evidence to the jury.]
Q: I'm showing you what has been marked for identification as Defendant's Exhibit No.__. I'll ask you to read it silently to yourself. When you've finished reading it, please let me know.
Q: Do you recognize the contents of Exhibit No. __?
Q: Without telling me what it says, will you tell us what the exhibit is?
Q: Who made it?
Q: [Attempt to refresh the witness' recollection.] After looking at Exhibit No. __, has your memory been refreshed about what happened at (indicate the time, place, location, and act, event, or condition)?
A: No. [The foundational answer is "no." If the witness says "yes, " s/he is competent to testify as a fact witness because s/he has present recollection; you don't need to introduce the record of prior recollection of a witness who has full present recollection, and the rules don't allow you to do so. If the witness says "no," indicating a lack of present recollection after you have tried to refresh her recollection, the witness is not competent to testify to the fact because s/he has no present personal knowledge of the fact at issue. If the witness answers "no," you may now proceed to try to establish the other legs of the predicate for introduction of a recorded recollection as an exception to the hearsay rule.]
Q: Do you now remember what happened well enough to allow you to put this document aside and testify from your memory about (indicate the act,event or condition)?
A: No. [Again, the answer has to be "no," indicating that the witness has insufficient present recollection to enable the witness to testify fully and accurately about the matter.]
Q: Did you make (or adopt) Exhibit No. __?
Q: At the time this Exhibit No. __ was made (or adopted) , did you have knowledge of (indicate the act, event, or condition)?
A: Yes. [The foundational answer must be "yes."]
Q: When you made (or adopted) Exhibit No. __ , was (indicate the act, event, or condition) fresh on your mind?
A: Yes [The foundational answer must be "yes." ]
Q: Does Exhibit No. __ correctly reflect your knowledge of (indicate the act, event, or condition) when you made (or adopted) it?
A: Yes [The foundational answer must be "yes."]
Q: [Offer the contents of the exhibit as evidence] Your Honor, the defense offers the contents of Defense Exhibit No. __ in evidence.
The Court: The contents of Defense Exhibit No. __ are received. The item of recorded recollection itself will not become an exhibit, but you may read it or have it read to the jury.
Q: (To the witness) Is Defense Exhibit No.__ a statement concerning (indicate the act, event, or condition you wish to prove or disprove)?
Q: [Have your witness or other person, e.g., the clerk of the court or yourself, read to the jury what the document says about the act, event, or condition at issue. Note: You can't actually introduce the tangible writing into evidence, but its contents can be read into evidence. If opposing counsel offers the actual tangible item of recorded recollection into evidence and the court receives it, the actual item of recorded recollection can go to the jury.] Would you read this record (or memorandum) of your recollection to the jury, please? [TIP: Even though the authenticating witness is not competent to testify as to the matter, s/he is the author of the writing and thus the most logical person to read the document. Just be sure that your witness can read.]
Out-of-Court Statements of Identification by a Witness Admissible in Court on Direct Examination of the Witness and Others Who Heard the Witness' Statement of Identification
Normally a witness is not allowed to bolster his testimony on direct examination by pointing to previous out-of-court statements that are consistent with his in-court testimony. Nor are other witnesses typically allowed to bolster the testimony of a witness by referring to the witness' out-of-court statements that lend credence to what the witness said in court. However, when a witness has made an out-of-court statement of identification, e.g., the witness identifies a suspected criminal at a lineup or showup, the witness and others who heard the identification witness' statement of identification are allowed to testify in court to the out-of-court identification. This statement of identification scenario comes up most commonly when a victim of crime has made a pretrial identification of the defendant as the perpetrator and is called to testify as an ID witness a the defendant's trial. It can also occur when another person who was present at the witness' pretrial identification of the perpetrator, e.g., the cop who conducted the lineup or showup, is called to testify to the witness' pretrial ID of the defendant, either to bolster the ID witness' in-court ID or, if the witness is not able to make an in-court ID of the defendant, to show that the witness made a positive pretrial identification of the defendant.
The admissibility of a witness' prior statement of identification is governed under the FRE and TRE by
- FRE 801(d)(1)(C) which states, "(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement ... (C) identifies a person as someone the declarant perceived earlier."
- TRE 801(e)(1)(C) which also states, "A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person."
The admissibility of the witness' out-of-court statement of identification of a person made after perceiving the person hinges on whether the declarant testifies as a witness. If the witness who made the out-of-court ID does not testify, third party witness testimony of the declarant's statement of identification is hearsay and not admissible. If the declarant does testify, he may testify to the out-of- court ID and anyone who heard the out-of-court ID may testify to it. Notice also that the rule declaring statements of identification as non-hearsay does not limit the proof of the declarant's out-of-court statement of identification to situations when the out-of-court statement of identification by the witness is consistent with his in-court ID. The rule refers to "statements of identification." Thus, in the event that an ID witness can swear to his out-of-court identification but is unable to make an in-court ID, a third party who heard the out-of-court ID could testify that that person whom the declarant ID'ed out-of-court is the same person now on trial. Remember that since the out-of-court statement of identification is not hearsay, it comes in as probative evidence for the truth of the matter stated. [Note: The out-of-court testimonial statement of identification by a prosecution witness is not subject to the protection of the Crawford confrontation rule because the person who made the identification must testify as a witness for this exception to the hearsay definition to come into play.The defense may cross-examine the prosecution witness; thus, there can be no denial of confrontation.]
Impeaching Your Own Witness
The common law "voucher rule" has been abolished by TRE and FRE Rule 607 which provides, "Any party, including the party that called the witness, may attack the witness’s credibility." So a witness may be impeached on direct examination, as well as on cross-examination. The direct examiner is not bound by his/her witness' testimony. All forms of impeachment would seem to be available when your witness goes rogue on the witness stand; however, it's usually prior inconsistent statements that are used to impeach the jumper. Note that the absence of a voucher rule does not mean that you can call a witness for the principal purpose of impeaching him/her. TRE and FRE Rule 403 may be employed by opposing counsel to prevent this seemingly devious and unfair tactic (1).
REDIRECT EXAMINATION - Plugging the Holes
+ Purpose of redirect: What can you accomplish with redirect examination? Your questioning can rehabilitate your witness after the witness has been impeached on cross? Cross-examination allows your opponent the opportunity to gain concessions from the witness, to destroy the witness factual version of the case, and to utilize a mode of personal impeachment, e.g. a prior inconsistent statement, a prior conviction, bias, motive, lack of perception/memory, etc., to attack your witness' credibility.
You can use redirect try to show the jury that the opposing counsel's concession-based questions presented a misleading picture of what the witness really conceded.
Concerning the destructive form of cross, you can use redirect to show that your witness got it right on direct examination; that your witness didn't make a mistake regarding his observations or misstate the facts; that your lay or expert witness didn't draw illogical inferences or conclusions; that there are additional facts that support the accuracy of the witness' testimony that was questioned on cross. In Texas (TRE 611(b) and other wide-open cross-examination jurisdictions, you can use redirect to demonstrate that new adverse subjects raised on cross-examination can be reconciled with the witness' previous testimony on direct and that new favorable facts raised on cross-examination actually corroborate and confirm your witness' testimony on direct. Concerning a cross that included impeachment attacks on your witness personal credibility by one or more of the modes of impeachment, e.g., proof of bias, motive, weakness in perception or memory, prior convictions, prior inconsistent statements, (and under FRE 608(b) specific instances of false statement and dishonesty of your witness), you can try to repair the damage, e.g., by showing on redirect that what might appear to be prior inconsistencies in your witness' testimony can be explained, that, in a case where cross-examination has expressly charged or implied that your witness had an improper motive, was improperly influenced, or recently fabricated his story on direct, your witness gave a prior consistent statement before any such motive, influence or alleged recent fabrication occurred (Rule 801(d)(1)(B) FRE and Rule 801(e)(1)(B) TRE)
+ Avoid opening door to recross: If you conduct a redirect, make every effort to avoid establishing a basis for recross. This means not opening up new areas of inquiry. The best way to do this is by conducting a complete direct.
+ Avoid leading on redirect: Even the best lawyers sometimes lead on redirect. Every rookie does it. It's natural to want to lead your witness on redirect when you are trying to repair damage done to your witness on cross. It's often damage that you did not anticipate and prepare the witness to handle. So you inject yourself as a witness to smooth over the bumps. If you lead on key points in redirect, a skilled opponent may object, "Counsel is putting words in his witness' mouth. We object to the leading question." Learn to let your witness do the explaining of vital points on redirect. This is best the way to repair damage done by cross-examination.
+ Brevity: Keep your redirect short.
+ Still sticks to original story on direct : Give your witness the opportunity on redirect to say "No" to the question: "Is there anything you would say to change or add to the substance of what you told us on direct examination?"
+ Proof of Your Witness' Prior Consistent Statement: FRE 801(d)(1)(B) and TRE 801(e)(1)(B) permit proof of your witness' prior out-of-court statement that is consistent with his in-court testimony when the declarant witness testifies at the trial or hearing and is subject to cross-examination concerning the statement and your witness has been expressly or impliedly accused on cross-examination or otherwise of recent fabrication or improper influence or motive. Such a prior consistent statement is not hearsay and is admissible as probative evidence for its truth. Note that it does not have to have been given under oath or at a trial, hearing, deposition or other formal proceeding. For example, a prior consistent statement in an offense report or an investigator's file would qualify. [Note: The out-of-court prior consistent testimonial statement of a prosecution witness is not subject to objection under the protection of the Crawford confrontation rule because the person who made the prior consistent statement must testify as a witness for this exception to the hearsay definition to come into play. The defense could cross-examine the witness; thus, there would be no denial of confrontation.] + A few of tips (1 - 2 pages), (2 - 19 pages of standard fare by a civil lawyer), (3 - 15 pages "Making the Facts Understandable"), (4 - storytelling on direct by a Canadian), (5 - direct exam of an expert) for preparing and conducting a direct examination. Help with preparing a direct examination of a victim of domestic violence. Four pages discussing how to persuade with direct examination. Using headlines in witness examinations. Lawyer-law professor Michael Tigar's article explaining how a law suit is a contest between two stories, Deciders Perceive Whole Stories. Jim McElheny's advice on storytelling in direct examination of your witness. More on storytelling (1). + Read the annotated model direct examination of surviving nurse Corazon Amurao by the late Cook County State's Attorney William Martin in the 1967 trial of mass-murderer Richard Speck for the July 14, 1966, killing of eight student nurses living in a Chicago townhouse. It's contained on the Direct Examination portion of the CCJA Criminal Trial Practice DVD and is also reprinted as part of the CCJA web site, See the red button in the masthead above. Bill Martin was a quintessential prosecutor. [Personal Note: Bill conducted the oral examination of my thesis during my LL.M. fellowship at Northwestern Law School. I got the degree, but admired his terrific skill as a questioner long before he grilled me.] He wrote an excellent 462-page book about the Speck case; it's called Crime of the Century: Richard Speck and the Murder of Eight Nurses, ISBN 0553560255; the book is out of print, but you can pick up a paperback version, published by Bantam, from Amazon. + For an example of direct examination of an adverse witness on voir dire, out of the presence of the jury, take a look at Clarence Darrow's direct of Willlian Jennings Bryan (1) in the 1925 Tennessee v. Scopes "Monkey Trial" testing the propriety of teaching evolution in the public schools.