Section B, Part V:

1. Section B, Part V: Examination of Witnesses

2. Examination of Witnesses • Credibility • Most of the information upon which the jurors/judge will decide your case will come from examination of the witnesses. • The witness than gains credibility during testimony, will be the witness whose testimony is accepted by the jurors. • Goals • Build up evidence supporting your client’s position. • Tear down the evidence supporting your opponent. • “Build-up” = direct • “Tear-Down” = cross

3. Types of Questions • Narrative (Direct) a) “After seeing the collision what did you do?” b) Turns the courtroom over to the witness. c) allows the witness to have a conversation with the jury/judge. d) Jurors/Judge can size up the witness. • Define the subject of response (Direct) a) “What can you tell us about how the car looked after the collision?” b) Lawyer has little control since the subject is limited. c) Witness has ample opportunity to relate to jury/judge and gain credibility.

4. Types of Questions 3) Call for specific response (Cross) a) “What color was the car that was hit?” b) Lawyer has much more control over subject and length of witnesses answer. c) Witness has little chance to relate to jury/judge. • Suggest the response (Cross) a) “The car that was hit was green, wasn’t it?” b) Lawyer has maximum control. c) Yes or No response d) Zero chance to relate to the jury/judge. e) This is a leading question, but is allowed on cross.

5. Don’t Lead on Direct, Lead on Cross • Why this rule? • The witness must tell a story in direct examination, the jury/judge can not accept the information from the lawyer. • Direct: witness builds credibility & acceptability. • Cross: Prohibit witness from adding to credibility & acceptability. • Exceptions • Preliminary Matters • Were you on the corner of Bradway and Second at 4pm on Friday June 5th? • Transitional Questions – directs to a particular area of interest. • Did you go over to the cars? • Leads from one subject to another to help to “develop the testimony.”

6. Conducting Direct Examination • Direct Examination is the easiest trial task to do in a minimally competent fashion & the hardest to do well. • Competency has 3 levels • Good enough to get information out of the witnesses mouth. • Good enough to have the jurors/judge understand the testimony. • Good enough to persuade the jurors/judge.

7. Conducting Direct Examination • Every good direct asks these questions • Who - When - Why • What - Where - How • These questions should • Present your witness in the best light. • Present facts in a memorable pattern. • Believable Witnesses • More = open-ended questions & narrative responses • Less = short examination & specific responses

8. Conducting Direct Examination • Considerations on how to organize • Chronological Presentation: easier on the witness and easier for jury/judge to recall. • Topical Organization: examination constructed on the interesting points to be made by the witness. • Elements of a direct • Introduce the witness: very short, unless you want this person qualified as an expert. • Purpose • Put your witness at ease. • Jury/judge becomes familiar with witness.

9. Conducting Direct Examination • Elements cont… • Subjects • Name – always start here. • Address • Employment • General Job duties • Setting the Scene • Establishes the “When” & “Where” as well as demonstrates that the witness was in a position to make an observation.

10. Conducting Direct Examination • Elements cont… • Setting the Scene cont… • Call the witnesses attention to: • The first event in the story • A person who participated in the event • The date of that event • The location of the event • Ending on a high note accomplishes 2 things: • Leaves the jury/judge with lasting substance. • Makes it difficult for the cross examiner to gain good jury/judge attention for the first few questions.

11. Conducting Direct Examination • Elements cont… • Techniques: • Short questions • One idea per question • Use simple language • Restate part of the answer in the next question • Emphasis • Visuals • Refresh recollection • Conclusion • Take out irrelevancies • Give attention to the pattern of your questions • Be precise, but sparing in choosing points to emphasize

12. Conducting Cross Examination • Components • Attorney centered • The attorney chooses the words • Hope to change the emphasis or effect of the direct testimony. • Allow the witness to speak as little as possible, this shows that the lawyer is in control.

13. Conducting Cross Examination • Techniques to keeping control • Your declaration should be short • Only contain one idea • Should not be subject to misinterpretation • When the witness answers “Yes” or “No,” ask the next question, this develops a rhythm. • If the judge allows you to roam the room, stand close to the witness.

14. Conducting Cross Examination • What to question? • What holes can you punch in the direct testimony? • Cross on the testimony, not the deposition. • Where are they vulnerable • How do you determine this? • Take notes for the purpose of: • Witness saying something that helps your case. • Impeachable matters

15. Conducting Cross Examination • Impeachment • Most dramatic cross, and is the closest to a “Kill” on a cross as you can get. • How does it happen? • The witness gives you testimony that can be impeached from their direct testimony. • What do you do? • Have exact wording notes • Ask the witness the exact question again • Allow the witness to tell the story again • Find the inconsistency by leading the witness. • Watch your attitude

16. Redirect • Rehabilitate your impeached witness? • Very difficult to do in 3 questions • Items to consider?: • Can you fix it? If no, keep your mouth shut and let them get off the stand. If yes, go for it but be careful. • If you can fix it – ask the question(s) that allows the witness to give the reason; to try to persuade the jury that the wound drew no blood and is superficial.