The Purpose of Direct Examination

The Overall Purpose of Direct Examination Argue Your Case to the Jury

Obviously You Cannot Argue the Whole Case Through Virtually Any Witness

You Do As Much As You Can With Each Witness

It is the Lawyer Who Must Decide Where Each Witness Fits in the Overall Argument

EFFECTIVE TRIAL ADVOCACY: DIRECT EXAMINATION

DISTRICT COURT OF THE VIRGIN ISLANDS

MID-YEAR CONFERENCE JULY 11, 2014

PROFESSOR STEPHEN A. SALTZBURG

Four Tasks of Direct Examination

1. Testimony Must Be Clear If Not It is Worthless Must Break the Testimony into Small Bites

2. Testimony Must Be Credible Clear Without Credible is Worthless

3. It Must Be Invulnerable to X-Exam Destroyed on X-Exam, Less than Worthless

4. It Must Be as Memorable as Possible Especially on the Key Points of Your Case Small Bites and Repetition Help

IT’S AN ARGUMENT

You Argue As Much as You Can Through the Witness

The Lawyer Makes the Argument by Asking Questions

The Witness Provides the Answers

The Role of the Lawyer

The Lawyer Controls Pace The Lawyer Controls Emphasis The Lawyer Chooses the Argument The Witness Just Answers Questions Most “Bad Witnesses” are Bad Because

the Direct Examiner Left Them Exposed

FRE 611 (c) Leading Questions

Generally should not be used on direct They may be used as may be necessary

to develop the witness testimony With a hostile witness, adverse party, or

witness identified with adverse party, interrogation may be by leading questions

Ordinarily leading questions should be permitted on cross-examination

More on leading questions later

Directs Should Not be Narratives

Objectionable (although savvy lawyers don’t object)

Boring Does not Break Facts into Small Bites Does not Repeat the Important Facts Witnesses Who Work Too Hard Are Not

Credible More on This in a Moment

Four Laws Always to Remember

Primacy – People Remember and Focus on What They Hear First

Recency – People Remember and Focus on What They Hear Last

Frequency – People Recall Things That Are Repeated

Vividness – People Understand Things Best When Those Things Are Vividly Portrayed

Who Uses The Four Laws?Lawyer or Witness

Primacy – It is the Lawyer Who Decides What Goes First By Questions Asked

Recency – It is the Lawyer Who Decides What Goes Last By Questions Asked

Frequency – The Right Questions Get Things RepeatedWithout Running Afoul of “Asked and

Answered” Vividness – Surprisingly, Questions that

Enable Witnesses to Provide Vivid Testimony

Witnesses and Bias

Witnesses Who Work Too Hard Appear Biased

Witnesses Are Supposed to Answer Questions, Not Argue the Case

Lawyers Make Witnesses Credible Personalize Them Allow Them to Emphasize Strong Points Allow Them to Repeat the Good Stuff

Introduce Your Witnesses

Don’t Have Your Head Down and Say to the Witness, Please State Your Name and Address for the Record

The Jury Wants to Know About the Witness His or Her Name is Not Unimportant The Jury Wants to Know Whether the Witness is

Someone They Can Trust Questions About Jobs, Family, Education,

Experience Can Therefore Be Critical

Argue Through Your Questions

You Ask Questions So that a Witness Provides the Answers that Make the Points You Want Made and that Bolster Your Theory of the Case

Only You Can Decide How Many Questions to Ask, in What Order to Ask Them, and Whether a Point is Clearly Made

As Long as the Witness Understands that He/She Need Only Answer Your Qs and Their Role in the Case, the Witness Relaxes – Like a Dance Duo in Which You Lead

Looping Enables Emphasis and Argument

By Looping, You Can Argue Your Case to the Jury and Emphasize the Things that Matter

By Combining Open Ended and Closed Ended Questions, You Can Emphasize the Things that Matter

By Having the Witness Diagram a Scene after Describing it, You Can Repeat the Good Stuff and Emphasize What Matters

An Example of Looping

Q. Did You Hear Anything Unusual? A. I Heard the Roar of an Engine? Q. Did You Hear Anything Else Near

the Time You Heard the Roar of the Engine?

A. I Heard Tires Squeal?

More Looping

Q. How Much Time Elapsed Between the Engine Roar and Tires Squealing?

A. I Heard Them About the Same Time? Where Were You Standing When You Heard the

Engine Roar and Tires Squealing? I Was a Few Feet from the Door of The School? How Far Away From the Road Were You When

You Heard the Engine Roar and Tires Squealing?

No Asked and Answered

Each Question is Different from the Preceding One

The Objection “Asked and Answered” Will be Overruled

Do You Really Care About the Details? Only to the Extent that You Are Able to

Repeat and Argue the Points that You Want to Be Sure the Jury Understands and Remembers

Transition Questions Should Be Used Liberally

Use Transition Questions Not really questions at all

They Serve Function of an Outline E.g., I want to ask you some questions about

your physical condition prior the accident I want to ask you some questions about your

physical condition after the accident Now, I want to ask you some questions that

compare your condition before and after

Written Out Questions

Should You Write Out Questions? Why Would You? Remember the Points You Want to Make?

No, You Would Write Out Answers Why Do Lawyers Write Out Questions? It is the Fear of Leading and Being

Stopped with Objections

Problems with Written Questions

Some Lawyers Practice Each Q and A with a Witness as Though It Were a Script

This May Make Witnesses More Nervous What if the Judge Sustains an Objection to Qs

and You Need the Material? What if the Witness Deviates from the Script? It is Not Necessary to Write Out Questions In Fact, You Should Focus on the Substance

You Want to Elicit, Not Specific Words

Don’t Worry So Much About Leading

Remember that You Do Not Go to Hell For Asking a Leading Question

With Some Witnesses You Will be Permitted to Lead Adverse or hostile witnesses Children Witnesses with Disabilities

There are Times When You Must Lead a Forgetful or Nervous Witness

Saving the Witness and Your Case

A Price-Fixing Case in Which the Witness is Cooperating with the Government and Describing Meetings in Which Pricing was Agreed Upon

Q. Where was the second meeting? A. Uh, Uh, I’m having a little trouble recalling. Q. Was it in Philadelphia? A. Objection! Court: Sustained. Q. Where was the second meeting? A. Philadelphia

Who Won? Who Lost?

In the Previous Example, You Might Have Tried to Refresh Recollection with a Document

You, However, Are Not Required to Do That Do You Want to Interrupt the Flow of Your Direct

or Move it Along? Yes, An Objection was Sustained. So What” Do You Think the Jury Liked the Objection? Do You Think the Jury Will Identify with the

Witness or the Objecting Lawyer?

Who Knows What is Leading Anyway?

Bank Robbery Case; Teller is the Witness Q. Was the Robber Tall?

Leading? Q. How Tall was the Robber?

Leading? Q. Was the Robber Tall or Short?

Leading? Q. What Happened Next?

Leading?

Definition of “Leading”

Defined as Suggesting the Answer But Everything is Leading to Some Extent or

Trials Would Never End Even “What Happened Next?” is Suggestive Judges Vary on Their Approaches to What is

Leading At the Outer Margins, They Agree that

What Happened Next? is Not Leading Was the Robber 6 feet, 4 inches? Is Leading

In the Middle, All Bets Are Off

Don’t Be Afraid

Usually, If You Think of the Answer You Want the Witness to Give, The Question Will Come

What Would Your Ask the Teller in the Robbery Case to Get the Teller to say:

1. The Robber Wore a Back Coat and Grey Pants 2. He Had a Bandaid on His Right Cheek 3. He Had a Gun in His Right Hand 4. He Was About 6’4” Tall 5. He Handed Me A Sack 6. He Told Me to Fill the Sack with Money or He’d Shoot

Leading Without Leading: Choices

If You Cannot Think of the Right Question, Offer a Choice

Was the Second Meeting in Philadelphia, Chicago or Somewhere Else?

Was the Robber Tall, Short or Medium? Choices Appear Not to Be Leading? Good! But Choices Enable the Examiner to Control the

Subject Matter and Focus the Witness on It. Also Good.

If All Else Fails, Lead

If You Cannot Think of a Question and You Need the Answer, then Lead

Yes You May Get an Objection Unless You Do this Repeatedly, No Judge Will Care It is Vital that You Get from a Witness What You Need It is Better for You to Lead, Suffer Having an Objection

Sustained, and the Get the Answer You Need than to Forego an Answer Because You are Fearful of Hearing “Objection Sustained”

Don’t Try to Sound Like a Lawyer

You Do Not Have to Ask Questions Like “Where, if Anywhere, Did Your Go? What, if Anything, Did You Do? Who, if Anyone Went Along?

Why Do Lawyers Ask Such Questions? They Sometimes Want to Sound Like Lawyers.

Good? No! They Want to Sound Not-Leading. Necessary?

No! Each of These Qs Can and Should Be Different

Avoid Exactitude on Direct Examination

Exactitude is the Enemy of Direct E.g., Witness Says Robber was 6’4”

Witness is Not a Human Ruler Better to ask “Approximately How Tall Was He?” “Might He Have Been a Little Taller or Shorter?” Protects the Witness from X-Exam Designed to

Attack Certainty

Witnesses are Nervous About Conversations

This is Understandable Witnesses Do Not Recall Word for Word What

Was Said & Should Not Claim To “Can You Remember Word for Word What You

Said to Him and He to You?” “But, Can You Remember the Substance of the

Conversation?” “Please Tell Us Who Spoke First?” “In Substance, What did He Say to You?”

Nervous or Wordy Witnesses

Must Tell Witnesses that You May Interrupt Them Explain This is Not Rudeness But Protection

Opposing Counsel May Object that the Witness Didn’t Finish the Answer

Judge Will Ask: “Are You Done?” Answer is “Yes” Holding Up Your Hand May Stop a

Runaway Witness

Dealing with Nerves

Should You Videotape Your Witness and Watch the Tape with Them? What are the Risks of Discovery?

Should You Write Out a Sample Script for the Witness to Practice? Again, What are the Risks of Discovery?

Should You Take a Witness Into a Courtroom to Give Them a Feel for It? Probably Little if any Risk

A Recess Can Help

When a Witness, Especially an Important One, is Very Nervous, You Might Consider Putting the Witness on to Talk About Background (Family, Work, etc.) and then Seek a Recess

Many Witnesses Relax Once They Get a Feel for the Q and A and a Sense of Being on the Stand

Exhibits

Mark Them All Ahead if Possible Know the Court’s Rules

Foundation I Show You What Has Been Marked for Identification

as _____’s Exhibit ___ Can You Identify It? What is It?

Photos or Tapes: Is it a Fair (True) and Accurate Representation of [Whatever]?

Additional Authentication

If It is Not Obvious That Your Witness Has Personal Knowledge of An Exhibit, You Might Want to Ask Additional Questions

If a Witness Says, “That’s My Hotel Bill” Further Questions Are Not Needed

If a Witness Says, “That is a Letter that the Defendant Wrote” You Might Need to Make Clear How the Witness is Able to Identify It as the Defendant’s

Moving Exhibits

Many, if not Most, Exhibits are Used to Corroborate Testimony and Have Little Independent Value

A Key Tactical Judgment is When to Offer an Exhibit

If You Are At An Important Point in Your Examination, Moving an Exhibit Into Evidence May Result in Your Adversary Asking for a “Voir Dire” in Aid of An Objection

This May Interrupt the Flow of the Examination

Voir Dire

Most Judges Will Give an Adversary a Chance to Ask Some Questions if He or She Claims it Might Aid or Avoid an Objection

Jury May or May Not Be Excused Jury Present May Hear Something Direct

Examiner Did Not Want Heard Jury Absent Gives Adversary a Chance to

Explore More Widely and May Be a Longer Interruption

If You Want to Use the Exhibit, Move It

You Must Get an Exhibit Admitted Before You Can Show It To the Jury

So If You Need the Jury to See It, You Must Move Its Admission and Take The Risk of a Voir Dire

If You Don’t Need The Jury to See It in the Moment, You Can Wait Till the End of the Examination and Move Any Exhibits Not Yet Admitted

At the End Voir Dire is Much Less Likely Because the Adversary is Anxious to X-Examine

You Can Re-Authenticate Easily if the Judge Is Unsure Whether You Laid a Foundation

FRE 607 Permits Any Party to Impeach Any Witness

You Should Consider Motions In Limine to Exclude Impeachment Evidence Directed at Your Witnesses

If the Court Rules that Impeachment is Permissible, You often Will Bring Out the Impeachment Material Yourself

Your Goal, Of Course, Is Not Really to Impeach; It is To Take the Sting Out of X-Examination and to Offer the Evidence in the Least Damaging Way

Organizing the Direct

Primacy and Recency: Start and End Strong Don’t Get to the Impeaching Material Until Close

to the End The Longer the Jury Hears and Believes the

Witness, the More It Will Excuse Deficiencies But Don’t End on the Impeaching Material

Transition Qs Permit You to Go Back and Forth in Time and Place; Choose the Most Persuasive Way to Make a Point Through a Witness