ADVANCED DIRECT AND CROSS-EXAMINATION

Module 2

Organization Of DiscussionOrganization Of Discussion

Direct examination techniques Refreshing recollection, past recollection recorded,

looping for emphasis, saving topics for re-direct examination

Cross-examination techniques Prior inconsistent statements, dealing with

improving memories, attacking character for truthfulness, impeaching with felony convictions, bringing out general bias

Rehabilitation Reviving your witness after character, bias, or

motive attacks.

Direct Examination

Refreshing RecollectionRefreshing Recollection

Steps:

First, try to see if witness can refresh him/herself.

If not, what else might help refresh his/her memory?

Basic method: Will this document help? Witness looks at it. What’s your answer now?

Mechanics of RefreshingMechanics of Refreshing

Think of the foundation as a grocery list : First establish that the witness has forgotten something. Then establish that there is something that would help

him or her remember. Ask to approach with the document. Show the witness the document. Ask the witness to read the document and then put it

down. Retrieve the document. Ask if the witness’s memory is refreshed. Repeat the question.

MechanicsMechanics, Continued

Retrieve it Ask again Interesting foundation?

Recorded RecollectionRecorded Recollection

What if the witness still does not remember? Witness’s memory cannot be refreshed The out of court statement, or hearsay, can

be admitted as a hearsay exception Past recollection recorded, C.R.E 803(5) Same foundation as refreshing recollection

except one big difference

Recorded RecollectionRecorded Recollection

Hearsay Requires a hearsay exception C.R.E. 803(5): Based on

reliability

C.R.E. 803(5)C.R.E. 803(5)

Requirements:

A memorandum or record made by, or adopted by, the witness

Witness had knowledge, but now has insufficient recollection

Adopted or made when knowledge was fresh

Recorded RecollectionRecorded Recollection

Same foundation as refreshing recollection, BUT must include questions about when

and why the document was made or adopted.

Document read into the record NOT admitted

Again, interesting foundation

LoopingLooping

Repeating an answer Instead “loop”

Example: Question: “Please describe the car.” Answer: “It was a red sports car.” “How fast was the red sports car going?”

Saving TopicsSaving Topics

Redirect: Purpose is to rehabilitate or rebut information brought

out on cross Some topics must be saved:

Rehabilitation with prior consistent statement or evidence of truthful character

Optional: Strategic use of topics that may be damaging or risky Be careful: If cross-examination is waived, there is NO

redirect. Also redirect is limited to areas that were explored in

cross examination. May not introduce new topics just because you forgot

to ask about them during your direct examination.

Cross Examination

Prior Inconsistent Prior Inconsistent StatementsStatements A common method of impeaching a

witness: That is not what you said before

Hearsay? Impeachment statements are not hearsay:

not being offered for the truth The Three Cs:

Confirm, Credit and Confront

ConfirmConfirm

Confirm Did you say on direct examination that …?

Show the jury/bench you do not believe it Body, tone and language

CreditCredit

ConfrontConfront

Impeachment requires that you confront the witness with her prior statement.

Methods for confrontation

““Improving” Testimony: Improving” Testimony: Another type of Impeachment Another type of Impeachment Problem: Problem:

Witness on the stand starts to testify to “New facts” There is no “inconsistent” statement with which to impeach Sometimes referred to as an impeachment by omission Prior inconsistent statement foundation with one addition Build up creditability of the prior statement, just as done before AND build up the importance of the new fact Showing that it is so important, no reasonable person would have

omitted it And yet, there is no evidence of it in prior statement Confrontation:

Hand prior statement to witness Ask witness to point out where new fact is included in prior

statement Witness is unable to do it.

Impeaching CharacterImpeaching Character

Character is generally inadmissible C.R.E. 404(a)

Character of a witness for truthfulness C.R.E. 404(a)(3) and C.R.E. 608

Truthful Character of Truthful Character of WitnessWitness Evidence of truthful character admissible

only after attack on truthfulness But only after attack on truthfulness Used as rebuttal evidence Opinion and/or reputation evidence C.R.E 608(b)

Impeaching With ConvictionImpeaching With Conviction

C.R.S. §13-90-101 Credibility of any witness may be attacked

with his or her felony convictions Any felony conviction can be used (not just

crimes of truthfulness) But different rules for civil and criminal

cases Civil: Can only use felony convictions that

are less than 5 years old

Business RecordsBusiness Records

C.R.E. 803 (6) Records of regularly conducted activity Witness Records made contemporaneously Kept in course of regular business

activity Regular practice to make such reports

Re-Direct Examination

Rehabilitating WitnessesRehabilitating Witnesses

Evidence of prior consistent statements: C.R.E. 801(d)(1)(B): consistent with W’s testimony and offered in rebuttal

Evidence of truthful character: C.R.E. 608(a)(2): only to rebut attack on W’s credibility.

Difficult Witnesses

Two Types Of WitnessesTwo Types Of Witnesses

The sympathetic witness: Trier of fact likely to find very credible

The uncooperative witness: The witness who will not answer the questions, or fights with you

Sympathetic WitnessesSympathetic Witnesses

Theory of the case to eliminate attack

Empathy

Be up front

Uncooperative WitnessesUncooperative Witnesses

Good Theme And Good Questions Repeating Clarifying Reversing

So The Answer Is Yes Using The Hand Asking For Help

Good QuestionsGood Questions The most important cross-examination

technique – for all witnesses – is to ask good questions. Leading questions One fact per question Build incrementally Build in a logical order Can be a declarative statement Avoid conclusions Avoid adjectives

Examples of good questions

Elicits one fact; Uses clear and precise language; Is short; Has good pace and presentation; And that you know the answer ;and You know where to find the answer. Examples:

“You made a referral in this case” “The referral was for my client, Ms. Jones” “The referral was for Ms. Jones to take urine analysis, or

UAs” “The referral was for urine analysis at Whiz Quiz” “You made this referral on October 10th”

“You made the referral by calling Whiz Quiz……”

More suggestions for dealing with difficult witnesses

Q: “Ms. Jones took a UA” Q: “And the result was negative”

A: “Yes, but she missed a UA” Then ask follow up questions about

the missed UA….

RepeatingRepeating

“Let me ask you again.” “Will the court reporter read the

last question?” “Perhaps I was not clear, what I

am asking is…”

ClarifyingClarifying

“I am not asking you about X, I am asking you…”

“We can talk about X in a moment, all I am asking you right now is…”

“You can talk about X with opposing counsel, all I am asking you right now is…”

So The Answer Is YesSo The Answer Is Yes

“So, the answer to my question is yes?”

A variation of clarifying

ReversingReversing

Using an opposite fact to get clarity

Example: “The light was red, wasn’t it” “So the light was green?”

Using The Hand

When witnesses start to talk for too long, try putting up the “stop” sign. The examiner does not have to say anything, but instead uses body language to control the witness.

Using The Hand

Asking For HelpAsking For Help

When is it okay, and how do you do it?

Making A DealMaking A Deal

Good idea? Bad idea?

Expert Witnesses

Expert Witness during the Expert Witness during the Pre-Trial PhasePre-Trial Phase How to select your own expert How to use your own expert Other strategies to use during pre-

trial when anticipating expert testimony Educating yourself about the issues

Adequate discovery

Direct ExaminationDirect Examination Qualifying the expert: C.R.E. 702 Offering the expert Bases of the opinion: C.R.E. 703 Explaining the opinion: C.R.E. 703 and

705 Offering the opinion

Qualifying The ExpertQualifying The Expert C.R.E. 702: “a witness qualified

by knowledge, skill, experience, training or education”

Qualifying The TopicQualifying The Topic C.R.E. 702: “scientific, technical

or other specialized knowledge [that will help the jury] understand the evidence or determine a fact in issue”

Qualifying The ProcessQualifying The Process NO F.R.E. 702 equivalent in

Colorado…. People v. Shreck, 2 P.3d 68 (2001)

Reliable scientific principles Witness qualifications Helpfulness to the trier of fact

OpinionOpinion Elicit the opinion from the expert Based on the education, training and

methods you have described, have you reached a conclusion (with a reasonable degree of scientific certainty)

What is that opinion

ExplanationExplanation Basis of the opinion – admissible? Elements intertwined:

Cart and horse problem Common errors with the “basis” of the opinion and inadmissible hearsay 

In order for an expert to testify to the substance that makes up the basis of his or her opinion, The basis must be independently admissible, or The probative value in understanding the expert’s opinion “substantially

outweighs” its prejudice. In other words, there is a presumption against admissibility here that is

nearly the exact opposite of the presumption of admissibility that is part of the 403 balancing test, or the basis is offered by the opponent.

The opponent of the opinion has a right to explore the bases of the opinion as part of the right of cross-examination. 

 

OpinionOpinion

Elicit the opinion from the expert again!

Technically, it has been asked and answered Most judges will allow it

Use their expert to prove or build your theory of the caseWeaken their expert by using new facts or bad facts from your case

CROSS-EXAMINATION of the Expert

Get Your Own ExpertGet Your Own Expert Trying to “out-expert” their expert is a

mistake unless you have your own Your expert helps you

Understand the topic Prepare cross-examination

questions Present opposing testimony

New And/Or Bad FactsNew And/Or Bad Facts GIGO

Garbage in, garbage out

Objections are the fun part of trial work, although they tend to be underutilized in our dependency and neglect cases. Let’s look at objections in detail.

Objections

OverviewOverview

Gotta make them Gotta refrain from overdoing

How To ObjectHow To Object

CRE 103(a)(1) Timely and specific

Basic objection Objection, hearsay.

Speaking objection Can land you in hot water

Plain English objection So the jurors understand

Making A RecordMaking A Record

Offer of Proof: CRE 103(a)(2)

Anticipating ObjectionsAnticipating Objections

Motions in limine Improper form of the question