making your case through effective direct examination

TitleMaking Your Case Through Effective
Direct Examination Paul K. Sun, Jr. & Kelly Margolis Dagger
© Ellis & Winters LLP 2018
What is direct examination?
The examination of a witness you have called in the defense case. The witness could be your client, an expert, a law enforcement officer, a percipient witness, etc.
Right to Present Witnesses “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. amend VI.
Remember to request trial subpoenas per Fed. R. Crim. P. 17, and do so early if you are asking the marshals to serve.
Direct Examination—Overview
A. Mechanics of Direct Examination B. Preparing Yourself for Direct Examination C. Preparing Your Witness for Direct
Examination D. Conducting a Direct Examination
MECHANICS OF DIRECT EXAMINATION
Procedural Considerations—Rule 611 Fed. R. Evid. 611—Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.
Procedural Considerations—Rule 611 (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) 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.
Leading and Non-leading Questions “The essential test of a leading question is whether it so suggests to the witness the specific tenor of the reply desired by counsel that such a reply is likely to be given irrespective of an actual memory. The evil to be avoided is that of supplying a false memory for the witness.” United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963).
Leading and Non-leading Questions
Leading Non-leading
Isn’t it true that you saw Ms. Defendant that night?
Did you see Ms. Defendant that night?
You saw Ms. Defendant that night, didn’t you?
Whom did you see that night?
defense expert, friends, family members, employers, others sympathetic to your client.
• “Neutral” witnesses. Percipient witness with no interest in the outcome, records custodian.
• Unfriendly witnesses. Law enforcement officer, victim, cooperating co-defendant, informant, others sympathetic to the prosecution.
as necessary to develop testimony.
“Neutral” witnesses Non-leading questions, except as necessary to develop testimony.
Unfriendly witnesses Leading and non-leading questions. *You may impeach a witness you call. Fed. R. Evid. 607.
Court’s Discretion
Controlling the examination of witnesses is part of the district court’s trial management function. See United States v. Woods, 710 F.3d 195, 200-01 (4th Cir. 2013).
Preparing Yourself—Overview • Selecting witnesses
– Special rule for the defendant • Using the Rules of Evidence • Structuring your examination • Practicing your examination
Why call the witness? Why not? • What you are trying to prove, or cause the jury
to doubt? How can this witness help? • List the facts you hope to elicit from the
witness. • Is the witness credible? • What does the witness know that can hurt your
case?
Why call the witness? Your client Your client has the constitutional right to testify in her defense. See Rock v. Arkansas, 483 U.S. 44 (1987): • Opportunity to be heard—“No person shall . . . be deprived of
life, liberty, or property, without due process of law.” U.S. Const. amend V.
• Necessary corollary to right against compelled testimony— “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend V.
• Inherent in Compulsory Process Clause—”In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.” U.S Const. amend VI.
Defendant’s Testimony Counsel your client about the risks and benefits, including what information (e.g., prior convictions) will be admissible if she chooses to testify.
Defendant’s Testimony—Waiver
Defendant’s Testimony—Continued • What do you do if you reasonably believe your client
is going to give false testimony? – The client has the right to testify. – You remain obligated to conduct the examination and elicit
the testimony. N.C. R. Prof’l Conduct 3.3(a)(3); see id. cmt. 9.
Defendant’s Testimony—Continued • What do you do if you know your client is going to
give false testimony? – The client has the right to testify. – You are precluded from eliciting testimony you know to be
false. – “[T]he lawyer should seek to persuade the client that the
evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence.” N.C. R. Prof’l Conduct 3.3 cmt. 6 (excerpt); see also id. cmt. 10 (remedial measures).
Using the Rules of Evidence • You cannot effectively prepare for direct examination
(or trial at all) unless you know the Rules of Evidence.
• Formulate questions that seek admissible evidence. • Anticipate objections:
– Lay the foundation to avoid them (personal knowledge, authentication, hearsay exceptions).
– Be prepared to argue objections. – Be prepared to make a proffer of evidence ruled
inadmissible.
Structuring the Examination • Make an outline:
– What facts do you need to elicit? In what order? – Beginning, middle, end (example: detention hearing)
• Taking into account who the witness is (friendly, neutral, unfriendly), consider the form of questions (Leading versus non-leading; “What happened?” versus “Do you remember what happened?”).
• Ask questions, in substance and form, to make the witness credible: – Don’t use the witness as an advocate. – Let the jury get to know the witness. – Preempt harmful admissions.
Structuring the Examination—Third- Party Custodian
• Please state your name. • Where do you live? • Do you work? What do you do for work? • Are you related to Ms. Defendant? How? • Did Ms. Defendant grow up in your home? • Do you understand that Ms. Defendant has been charged
with a drug trafficking felony? • Do you understand that we are here for a detention
hearing in Ms. Defendant’s case? • You know that Ms. Defendant is asking to be released
from custody pending trial, right?
Third-Party Custodian—Continued • What kind of home do you live in? • Does anyone else live there with you? Who else? • Are there any children in your home? • Are there any firearms in your home? • Would you allow a firearm in your home? • Are there any illegal drugs in your home? • Would you allow illegal drugs in your home? • Do you have a criminal record? • Does [other resident] have a criminal record?
Third-Party Custodian—Continued • Are you willing to have Ms. Defendant live with you if
the Court allows her to be released? • Do you understand that Ms. Defendant will have some
court dates in the future? • Do you understand that one of your responsibilities will
be to ensure that she appears for those court dates? Are you willing to do that?
• Will you find out when the court dates are? Will you put them on your calendar?
• Do you have access to a car? Do you have a valid driver’s license? If needed, will you drive Ms. Defendant to court?
Third-Party Custodian—Continued • Do you understand that if she is released, Ms. Defendant
will have to comply with some court-ordered conditions? • Will you familiarize yourself with those conditions? • Will you ensure that Ms. Defendant complies with the
conditions? • If Ms. Defendant fails to comply any condition, will you
report that failure to the Probation Office? • Do you understand that Ms. Defendant may go back to
jail if you report a violation of the conditions? • Knowing that Ms. Defendant may go to jail, are you
willing to report any violation that she may commit?
Structuring the Examination—Continued • If the witness knows relevant, harmful information,
will you elicit it on direct examination? – How likely is the Government to ask on cross? How likely
is the witness to blurt it out? – How bad is it? Is there an explanation? – How good is your witness?
Witness Preparation • Is this a witness you can meet with in advance?
– Client/defense expert—yes – Defense-friendly witnesses—maybe – “Neutral” witnesses—maybe – Unfriendly witnesses—maybe *Always determine whether the witness is represented by counsel, and related rules, e.g., healthcare provider.
• If so, should you?
Witness Preparation—Pros and Cons • Benefits of meeting with a witness
– Understanding their language – Fostering trust and comfort in the courtroom – Avoiding surprise testimony – Preparing your overall case
• Drawbacks of meeting with a witness – Perception of influence/bias – Revealing information to the Government
Preparing a Witness • Remind the witness whose lawyer you are, and
whose lawyer you are not. • Instruct the witness to tell the truth. Don’t tell
the witness what to say. • Make the witness comfortable: Familiarize
witness with court procedure; address areas where the witness feels vulnerable.
• Listen! Learn the witness’s language; avoid miscommunication.
Preparing a Witness—Continued • Exhaust the witness’s knowledge; avoid
surprises. • Help the witness anticipate cross-examination.
Remind them not to look at you for help on a hard question.
• Tell the witness how to dress for court, where to go, and when.
• Consider attorney-client privilege/work product.
If you do not prepare a witness • Use all available opportunities to find out what
the witness will say – Prior statements to police or others – Internet/social media – Professional considerations – Talk to the witness’s lawyer; consider whether to
tell the lawyer what questions you will ask. • Think conservatively about questions and have
a backup plan.
CONDUCTING A DIRECT EXAMINATION
Order of Witnesses • Who has already testified, and to what? • How does that affect the order in which you will call
witnesses? • How does that affect your planned questions? • Other considerations:
– How much time is left in the court day? – How bored are the jurors and the judge? – Will the witness be on the stand overnight?
Conducting Your Direct Examination • Sit at counsel table; check the microphone;
Make sure the judge, jury, and witness can hear you.
• Be aware of the judge and jury—how are they reacting to your questions and the witness’s answers?
• Know how to offer exhibits and present them to the jury.
• Respond to objections—rephrase your question if needed, argue evidentiary issues, make a proffer.
• Manage the witness’s emotions? • LISTEN TO THE ANSWERS!
Defending Cross-Examination • Your job is not over after direct examination. • LISTEN TO THE QUESTIONS AND
ANSWERS! Take notes. • Make objections. • Pay attention to the judge and jury.
Don’t celebrate early!
Redirect Examination • Purpose:
“Examining counsel is normally expected to elicit everything from a witness, so far as possible, at the first opportunity.” United States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979).
• Should you do it? • Scope of redirect examination • Consequences of redirect examination? Re-
cross examination.
What is direct examination?
Right to Present Witnesses
“as necessary to develop testimony”
Court’s Discretion
Slide Number 16
Preparing Yourself—Overview
Defendant’s Testimony
Structuring the Examination
Third-Party Custodian—Continued
An Unprepared Witness
Preparing a Witness
Slide Number 40
Order of Witnesses
Defending Cross-Examination

making your case through effective direct examination

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