direct examination ausa michael davis southern district of florida
TRANSCRIPT
Direct ExaminationDirect Examination
AUSA Michael DavisAUSA Michael Davis
Southern District of FloridaSouthern District of Florida
Be wary of “cookbook Be wary of “cookbook rules” or “instruction rules” or “instruction
manuals” for trying cases. manuals” for trying cases.
Direct Examination WillDirect Examination Will
Be The Backbone OfBe The Backbone Of
Your CaseYour Case
Use Direct Examination To Assist Use Direct Examination To Assist The Jury In:The Jury In:
UnderstandingUnderstandingRemembering, andRemembering, andCreditingCrediting
Your EvidenceYour Evidence
Subjects of this PresentationSubjects of this Presentation
Presenting your questions on directPresenting your questions on direct Ideas for enhancing the effectiveness of Ideas for enhancing the effectiveness of
your directyour direct What to do when things go awryWhat to do when things go awry The value of preparationThe value of preparation
Presenting Your Questions on DirectPresenting Your Questions on Direct
1.1. The requirement of non-leading questionsThe requirement of non-leading questions
2.2. Distinguishing between leading and non-leading Distinguishing between leading and non-leading questionsquestions
3.3. Focused, non-leading questions versus broad, Focused, non-leading questions versus broad, unguided questionsunguided questions
4.4. Tone, inflection, and eye contactTone, inflection, and eye contact
5.5. The problems with scripted questionsThe problems with scripted questions
6.6. Keeping the attention focused on the witnessKeeping the attention focused on the witness
Presenting Your Questions - The Presenting Your Questions - The Requirement of Non-Leading QuestionsRequirement of Non-Leading Questions
Apart from situations in which you have called a Apart from situations in which you have called a “hostile witness . . . or a witness identified with an “hostile witness . . . or a witness identified with an adverse party,” Rule 611(c) of the Federal Rules of adverse party,” Rule 611(c) of the Federal Rules of Evidence prohibits the use of leading questions on Evidence prohibits the use of leading questions on direct examination “except as necessary to direct examination “except as necessary to develop the witness’ testimony.”develop the witness’ testimony.”
Presenting Your Questions - Distinguishing Presenting Your Questions - Distinguishing Between Leading and Non-Leading QuestionsBetween Leading and Non-Leading Questions
A “leading” question is a question that suggests A “leading” question is a question that suggests the answer or, put differently, a question that puts the answer or, put differently, a question that puts the answer in the witness’s mouth.the answer in the witness’s mouth. ““After you left the grocery store, you next went to After you left the grocery store, you next went to
the dry cleaner, didn’t you?”the dry cleaner, didn’t you?”
- versus –- versus – ““After you left the grocery store, where did you go After you left the grocery store, where did you go
next?” next?”
Presenting Your Questions - Distinguishing Presenting Your Questions - Distinguishing Between Leading and Non-Leading QuestionsBetween Leading and Non-Leading Questions
““Yes-No” Questions andYes-No” Questions and
the Need to Let Your Witnessthe Need to Let Your Witness
Do as Much of the Talking asDo as Much of the Talking as
PossiblePossible
Presenting Your Questions - Distinguishing Presenting Your Questions - Distinguishing Between Leading and Non-Leading QuestionsBetween Leading and Non-Leading Questions
Q.Q. What sort of cars was he driving?What sort of cars was he driving?
A.A. All kinds of nice cars, Lexus, Mercedes All kinds of nice cars, Lexus, Mercedes Benz, Benz, Navigator. He start[ed] to shine.Navigator. He start[ed] to shine.
Q. Q. When you say "shine," what do you mean?When you say "shine," what do you mean?
A. A. Big life.Big life.
Q.Q. What else about his appearance caused you What else about his appearance caused you to to conclude [that] he started to shine?conclude [that] he started to shine?
A.A. A lot of jewelry, nice dresses.A lot of jewelry, nice dresses.
Presenting Your QuestionsPresenting Your Questions
Focused, Non-Leading Questions Focused, Non-Leading Questions and the Difficulty Presented byand the Difficulty Presented by
““What Happened?” QuestionsWhat Happened?” Questions
Presenting Your Questions –Tone, Inflection, Presenting Your Questions –Tone, Inflection, and Eye Contactand Eye Contact
Consider how difficult some jurors will find it to sit Consider how difficult some jurors will find it to sit passively for long periods of timepassively for long periods of time
Engage the jury and engage the witnessEngage the jury and engage the witness But be careful not to lay it on too thickBut be careful not to lay it on too thick
Presenting Your QuestionsPresenting Your Questions
The Problem with Pre-Scripted The Problem with Pre-Scripted Questions—Questions—
Listen to the witness’ answer before Listen to the witness’ answer before
You ask the next question! You ask the next question!
Presenting Your QuestionsPresenting Your Questions
The Goal of an Effective Direct is The Goal of an Effective Direct is
To Make the WitnessTo Make the Witness
the Center of Attentionthe Center of Attention
Ideas for Enhancing the Ideas for Enhancing the Effectiveness of Your DirectEffectiveness of Your Direct
Put yourself in your jurors’ seatsPut yourself in your jurors’ seats Think of things that will assist the jurors in:Think of things that will assist the jurors in:
Following the testimonyFollowing the testimony Understanding the testimonyUnderstanding the testimony Maintaining their interestMaintaining their interest Appreciating how the testimony of one witness Appreciating how the testimony of one witness
relates to other witnesses and the case as a relates to other witnesses and the case as a wholewhole
Ideas for Enhancing the Ideas for Enhancing the Effectiveness of Your DirectEffectiveness of Your Direct
1.1. Introductory/transition phrases, “looping” Introductory/transition phrases, “looping” questions, and “cueing” questions with exhibitsquestions, and “cueing” questions with exhibits
2.2. Using your earsUsing your ears
3.3. Organizing the direct and the order of your Organizing the direct and the order of your witnesseswitnesses
4.4. Using exhibits to help the jury visualize, Using exhibits to help the jury visualize, remember, and creditremember, and credit
Enhancing Your Direct – Enhancing Your Direct – Introductory/Transition PhrasesIntroductory/Transition Phrases
““Turning to August 19, 1999, where were you at Turning to August 19, 1999, where were you at approximately 6:00 that morning?”approximately 6:00 that morning?”
““Earlier in your testimony, you mentioned a safe Earlier in your testimony, you mentioned a safe that the defendant kept in your bedroom closet that the defendant kept in your bedroom closet when you were living together. I would like to when you were living together. I would like to return to that.”return to that.”
Enhancing Your Direct – “Looping” QuestionsEnhancing Your Direct – “Looping” Questions
Q:Q: What assignment did you receive in mid-June What assignment did you receive in mid-June 1997?1997?
A:A: My boss asked me to audit a series of claims My boss asked me to audit a series of claims that had been submitted by a contractor who had that had been submitted by a contractor who had provided cable TV services to a series of bases provided cable TV services to a series of bases that we were closing.that we were closing.
Q:Q: After you received the audit assignmentAfter you received the audit assignment, who , who did you contact?did you contact?
A:A: The contractor’s comptroller.The contractor’s comptroller.Q:Q: Why?Why?A:A: To set up a meeting so I could start the audit.To set up a meeting so I could start the audit.
Enhancing Your Direct – Enhancing Your Direct – Introductory/Transition Phrases and “Looping” Introductory/Transition Phrases and “Looping”
QuestionsQuestions
BUT . . . Don’t Go Overboard withBUT . . . Don’t Go Overboard with
Introductory/Transition PhrasesIntroductory/Transition Phrases
and “Looping” Questionsand “Looping” Questions
Enhancing Your DirectEnhancing Your Direct
Consider Using ExhibitsConsider Using Exhibits
to “Cue” Testimonyto “Cue” Testimony
Use Exhibits to Direct the Use Exhibits to Direct the
Flow of TestimonyFlow of Testimony
Enhancing Your Direct – Use Your EarsEnhancing Your Direct – Use Your Ears
LISTEN!! LISTEN!!
Q:Q: When you met Johnny in the parking lot, what When you met Johnny in the parking lot, what did Johnny give to you?did Johnny give to you?
A:A: Six. Six. Q:Q: What did you give Johnny in return?What did you give Johnny in return?A:A: A cookie.A cookie.
Enhancing Your Direct – Use Your EarsEnhancing Your Direct – Use Your Ears
Q:Q: When you met Johnny in the parking lot, what did Johnny When you met Johnny in the parking lot, what did Johnny give to you?give to you?
A:A: Six.Six.Q: Q: Six what?Six what?A:A: Six hundred dollars.Six hundred dollars.Q:Q: What did you give Johnny in return?What did you give Johnny in return?A:A: A cookie.A cookie.Q:Q: What is a cookie?What is a cookie?A:A: An ounce of crack cocaine.An ounce of crack cocaine.Q:Q: Why do you call it a cookie?Why do you call it a cookie?A:A: Because it is shaped like a cookie.Because it is shaped like a cookie.
Enhancing Your Direct – Organizing the DirectEnhancing Your Direct – Organizing the Direct
Consider “warming up” the witness and the Consider “warming up” the witness and the jury by starting with introductory questionsjury by starting with introductory questions
Consider chronological and categorical Consider chronological and categorical approachesapproaches
Consider where to “front” the baggageConsider where to “front” the baggage Remember that “fronting” baggage does Remember that “fronting” baggage does
not necessarily mean that it should be at not necessarily mean that it should be at the front of your directthe front of your direct
Enhancing Your Direct – Organizing the Order Enhancing Your Direct – Organizing the Order of Your Witnessesof Your Witnesses
Consider whether your evidence calls forConsider whether your evidence calls for:: ““Starting with a bang”Starting with a bang” Starting with shorter, simpler witnesses to Starting with shorter, simpler witnesses to
build into more complicated witnessesbuild into more complicated witnesses Arranging your witnesses to meet evidentiary Arranging your witnesses to meet evidentiary
predicatespredicates Consider where your cooperators fit best in Consider where your cooperators fit best in
the sequencethe sequence
Enhancing Your DirectEnhancing Your Direct
Use Exhibits to Help theUse Exhibits to Help the
Jury Visualize, Remember, andJury Visualize, Remember, and
Credit the Witness’s TestimonyCredit the Witness’s Testimony
What To Do When Things Go AwryWhat To Do When Things Go Awry
Keep your coolKeep your cool Remember that the jury is always watchingRemember that the jury is always watching
The Value of PreparationThe Value of Preparation
Be aware of your witness’s frame of mindBe aware of your witness’s frame of mind Prepare yourself before you meet with your Prepare yourself before you meet with your
witness. Know the case.witness. Know the case. Prepare your witnessesPrepare your witnesses
For the process of testifyingFor the process of testifying For the substance of their testimonyFor the substance of their testimony For the wait to testifyFor the wait to testify
Witness preparation is not a one-size-fits-all Witness preparation is not a one-size-fits-all endeavorendeavor
The Value of PreparationThe Value of Preparation
Prepare your assistant/paralegal to assist you at Prepare your assistant/paralegal to assist you at trial.trial.
Prepare yourself before you call the witness to Prepare yourself before you call the witness to the standthe stand
Where should you stand?Where should you stand? Where is your file?Where is your file? Where are the exhibits and are they pre-marked?Where are the exhibits and are they pre-marked? Is the courtroom equipment working and ready to Is the courtroom equipment working and ready to
go?go?