CHAPTER 4 "DIRECT EXAMINATION"
I. THE ROLE OF DIRECT EXAMINATION
Direct examinations are the heart of your case. During your directs, you present your witnesses’ testimony through questions and answers, you develop your persuasive trial story and the evidence that supports that story.
Every other aspect of the trial is derivative of direct examination. Opening statements and final arguments are simply the lawyer’s opportunity to discuss what the witnesses have to say; cross examination exists solely to allow the direct to be challenged or controverted.
Direct examination should be designed to accomplish one or more of the following basic goals:
A. Introduce the Undisputed Facts
In any mock trial, there are likely to be undisputed facts that establish one or more elements of your case. Although not controverted by the parties, these facts cannot be considered by the judge or jury until and unless they are placed in evidence through a witness’s testimony.
Assume, for example, that you represent the prosecution in a murder case, and that the defendant is claiming self-defense. Even if the question of who killed the victim is not in dispute, the death of the victim is still an element of your case and must be proved through testimony on direct examination.
B. Enhance the Likelihood of Disputed Facts
The most important facts in a trial will normally be those in dispute. Direct examination is your opportunity to put forward your client’s version of the disputed facts and persuasively introduce evidence that supports that version. The true art of direct examination is establishing the certainty of facts that the other side claims are uncertain or untrue.
C. Lay Foundation for the Introduction of Exhibits
Documents, photographs, writings, tangible objects, and other forms of evidence will often be central to your case. With some exceptions, it is necessary to lay the foundation for the admission of these exhibits through the direct testimony of witnesses.
D. Reflect upon the Credibility of Witnesses
The credibility of a witness is always in issue. Thus, every direct examination, whatever its ultimate purpose, must also attend to the credibility of the witness’s own testimony. For this reason, direct examinations usually begin with background information about the witness. What does she do for a living? Where did she go to school? How long has she lived in the community? Even if a witness’s credibility will not be challenged, this sort of information helps to humanize her, adding weight to what she has to say.
You can expect the credibility of some witnesses to be attacked on cross examination. In these situations you can blunt the assault by bolstering the witness’s believability during direct examination. You can strengthen a witness by eliciting the basis of her knowledge, her ability to observe, or her lack of bias or interest in the outcome of the case.
You may also use the witness’s direct examination to reflect adversely on the credibility of another witness’s testimony buy introducing negative character or reputation evidence concerning that witness. Alternatively, you may use a witness’s direct examination to provide evidence of the bias or motive of another witness’s or simply to contradict the other’s testimony.
E. Hold the Attention of the Trier of Fact
No matter which of the above purposes predominates in any particular direct examination, it must be conducted in a manner that holds the attention of the judge or jury. In addition to being the heart of your case, direct examination also has the highest potential for dissolving into boredom, inattention, and routine. Since it has none of the inherent drama or tension of cross examination, you must take extreme care to prepare your direct examination so as to maximize its impact.
II. THE RULES OF DIRECT EXAMINATION
As Chapter 2 (“Case Preparation”) explained, the rules of evidence used in your mock trial govern the content of your direct examinations. In short, the testimony you elicit from your witnesses must be admissible. Of course, whether a particular piece of evidence is admissible is ultimately determined by the presiding judge. Thus, whenever you have a reasonable theory of admissibility for a piece of evidence, you should attempt to offer that evidence on direct.
In addition to limiting your direct examination to elicit evidence that you believe to be admissible, there are other specific rules of direct examination that set forth the manner in which you may present your witnesses’ testimony. Once you understand these rules, you can begin to plan your direct examinations.
Remember to stand near the jury when conducting direct examinations so that your witnesses can easily be heard, and make eye contact with, the members of the jury. Also, remember that reliance on notes will prevent you from making eye contact with the witness and from watching and evaluating the jurors’ reactions to the testimony. Direct examinations should sound like a conversation between two friends, where the lawyer prompts the testimony and the witness explains his testimony; your position relative to the members of the jury is crucial to achieving this effect.
Additionally, keep in mind that the use of visual aids can greatly improve witnesses’ testimony. Whether this means making a list of important points as a witness testifies or having a witness use a map, diagram, or picture to illustrate the witness’s testimony, the information will be better retained by the fact-finder if it is laid out visually. This concept also applies to physical and vocal demonstrations; if the fact-finder sees and hears specific facts as they are explained, they are more likely to remember them.
A. Ask Only Nonleading Questions
The principal rule of direct examinations is that the attorney may not “lead” the witness. Leading questions are those that contain or suggest their own answers. These questions are prohibited during direct examination to ensure that the testimony is truly the witness’s and not simply dictated by the lawyer.
Whether a particular question is leading is frequently an issue of tone or delivery, as much as one of form. The distinction, moreover, is often finely drawn. For example, there is no doubt that this question is leading:
QUESTION: Of course, you crossed the street, didn’t you?
Not only does the question contain its own answer, its format also virtually requires that it be answered in the affirmative.
On the other hand, this question is not leading:
QUESTION: Did you cross the street?
Although the question is highly specific and calls for a “yes or no” answer, it does not suggest the witness’s response.
Finally, this question falls in the middle:
QUESTION: Didn’t you cross the street?
If the examiner’s tone of voice and inflection indicate that this is meant as a true query, the question probably will not be considered leading. If the question is stated more as an assertion, however, it will violate the leading question rule.
There are some exceptions to the rule against leading questions on direct examination. A lawyer is generally permitted to lead a witness to lay foundation and make a transition in the testimony. An example of a leading question intended to lay foundation is: “You have done extensive research in psycho-cybernetics, isn’t that right, Doctor?” An example of a leading question intended to make a transition is: “Will you tell the jury about your work in psycho-cybernetics, Doctor?”
B. Avoid Questions That Elicit “Narrative” Responses
Another general rule is that witnesses on direct examination may not testify in narrative form. The term narrative has no precise definition, but it is usually taken to mean an answer that goes beyond responding to a single specific question. Questions that invite a lengthy or run-on reply are said to call for a narrative answer. An example of a non-narrative question is: “What did you do next?” The objectionable, narrative version would be, “Tell us everything that you did that day.” In mock trials there is an added incentive to avoid questions that elicit narrative responses: they take up too much time.
Rather than narrative questions, it is best to keep witnesses on track with short, incremental questions. The line of questions that follows uses short, incremental questions to demonstrate the accuracy of an identification:
QUESTION: Were you able to get a good look at the robber, Ms. Kearney?
ANSWER: Yes, I was able to see him clearly.
QUESTION: How tall was he?
ANSWER: About six feet tall.
QUESTION: How heavy was he?
ANSWER: He was heavy like a football player, broad shoulders and a
thick torso. He must have weighed over 200 pounds.
QUESTION: What race was he?
ANSWER: He was white.
QUESTION: And his complexion?
ANSWER: His complexion was fair.
QUESTION: What color was his hair?
ANSWER: He didn’t have any hair – he was bald.
QUESTION: Did he have any facial hair?
ANSWER: Yes, he had a goatee.
QUESTION: Could you see his eyes?
ANSWER: Yes, he came right up to me.
QUESTION: What color were they?
Depending on the witness’s knowledge, further questions could inquire into other facts. Could the witness see the robber’s shirt? What color was it? His trousers? His shoes? Any jewelry? Glasses? Tattoos?
As you can see, this line of questioning drives home the accuracy of the witness’s identification without allowing the witness to get lost in a narrative answer.
C. Obey the Nonopinion Rule
Witnesses are expected to testify as to their sensory observations. What did the witness see, hear, smell, taste, or do? Witnesses other than experts are generally limited to giving opinions that are rationally based upon their own perceptions; they may not characterize the events. Thus, witnesses will usually be permitted to draw conclusions on issues such as speed, distance, volume, time, weight, temperature, and weather conditions. Similarly, lay witnesses may characterize the behavior of others as angry, drunken, affectionate, busy, or even insane, so long as you lay foundation that demonstrates the witness’s ability to interpret the other person’s behavior.
D. Refresh the Witness’s Recollection When Necessary
Even in mock trials, where the roles are played by student actors, witness memory is not perfect. Thus, you should be comfortable refreshing witness recollection as a safeguard in the event one of your witnesses forgets an important piece of information during trial.
In most cases, you will be refreshing a witness’s memory using her own prior testimony. In any case, first confirm with the witness that her memory is exhausted concerning the specific issue or event by asking, “Is your memory about this fact exhausted?” Then ask, “Is there anything that might refresh your recollection?” When the witness identifies her statement, follow the same steps you would follow if you were offering the exhibit into evidence: show the document to opposing counsel, ask for the judge’s permission to approach the witness, hand the exhibit to the witness and describe your actions verbally for the record. Ask the witness to identify the exhibit and authenticate it (usually by identifying her signature at the end of the statement). Next, ask the witness to review the document and to signal you when her memory is refreshed. You should also direct the witness’s (and the court’s) attention to the particular page or line number where the forgotten fact appears. At this point you should either step to the side of the jury box or return to your position at the end of the jury box; standing over the witness and pointing out her testimony will give the appearance that you are coaching the witness’s testimony. When the witness has indicate that her memory is refreshed, retrieve the document from the witness and re-ask your initial question.
Here is an example that takes you through those steps:
QUESTION: Were you able to get a good look at the robber, Ms. Kearney?
ANSWER: Yes, I saw him clearly as he exited the building and climbed into
a blue sedan.
QUESTION: How tall was he?
ANSWER: I really don’t remember now.
QUESTION: Was there a time when you did remember this information?
ANSWER: Yes, I gave the police a complete description when I gave my
QUESTION: Is your memory as to the robber’s appearance exhausted now?
ANSWER: Yes, I’m sorry, it is.
QUESTION: Would looking at the statement you gave to the police immediately
after the robbery refresh your recollection?
ANSWER: Yes, it would.
TO COUNSEL: I’m going to show the witness her statement, marked as Exhibit 3
TO JUDGE: Permission to approach the witness, Your Honor?
QUESTION: Ms. Kearney, I’m handing you what has been marked as Exhibit 3
for identification. Do you recognize that?
ANSWER: Yes, that is the statement I gave to the police right after the
QUESTION: How do you know that is your statement?
ANSWER: Because I signed the back page.
QUESTION: Please take a moment to look over the second page of that
statement beginning at line 12 and signal me when your memory
about the robber’s appearance is refreshed.
ANSWER: (pause) Oh yes, now I remember.
QUESTION: (retrieving documents) Ms. Kearney, please tell the jury how tall
the individual you saw was.
ANSWER: He was about six feet tall.
The more fluently you perform this procedure, the less damaging it will be on your witness’s credibility. If you act shocked and confused at the witness’s failure to remember an important fact, you will only highlight her inadequacy for the trier of fact. It is better to quickly and calmly refresh the witness’s recollection.
E. Have the Appropriate Witness Identify the Defendant (Prosecution Only)
In-court identifications can be very powerful when done correctly. Indeed, it is a necessary step for the prosecution in a criminal case, in order to establish for the record that the person sitting in the courtroom is the same person who was accused of the crime.
To enable a witness to properly identify the defendant in court, first establish her relationship to the defendant. Is she a relative of the defendant? A good friend? The arresting officer? The victim or eyewitness to the crime? Whatever her relationship, you need to show the fact-finder that the witness is qualified to identify the defendant. Once you have done so, direct the witness to identify the defendant in the courtroom by pointing to him and briefly describing him physically. Note the in-court identification for the record to complete the process. Below is an example of an effective in-court identification:
QUESTION: Did you get a good look at the robber, Ms. Kearney?
ANSWER: Yes. As I said, I saw him clearly as he left the building and
climbed into a blue sedan.
QUESTION: Do you see him in the courtroom today?
ANSWER: Yes I do.
QUESTION: Please point to him and identify an item of clothing he is wearing.
ANSWER: He’s right there (pointing) and he’s wearing a blue suit with
TO JUDGE: Your Honor, let the record reflect that the witness has identified
the defendant, Mr. Larry Scelfo.
F. Use Stipulations When Helpful
Stipulations are often included in mock trial case files. Where included, you have the option of incorporating these agreements between the parties into your presentation of the evidence. Stipulations, by their very nature, are the best way to prove a particular fact. Thus, when a stipulated fact becomes most relevant during your case in chief, you should read it aloud for the trier of fact. For example, say that the parties in the fire truck case stipulated that the plaintiff’s medical treatment following the collision cost a total of $4,500. Plaintiff’s counsel might establish this fact during the direct examination of the plaintiff as follows:
QUESTION: How many medical visits did you have following your initial
treatment after the accident?
ANSWER: I went to see a doctor and physical therapist at least ten times
following myinitial treatment.
QUESTION: Was this expensive?
ANSWER: Yes, it most certainly was.
TO JUDGE: Your Honor, at this time I would like to read a stipulation aloud
for the jury.
COUNSEL: (to defense counsel) I’m going to read Stipulation 4 on page 12.
(to jury) “The plaintiff and the defendant agree that the plaintiff’s
medical treatment following the collision cost a total of $4,500.”
(to defense counsel) So stipulated, counsel?
DEFENSE: So stipulated.
Not only are the jurors now aware of the plaintiff’s medical costs, but they also know that the total amount was agreed to by the parties. From this point on, there can be no disputing that the collision cost the plaintiff $4,500 in medical bills.
If the fact-finder in your trial is a judge, you may want to simply direct the court’s attention to the particular stipulation rather than reading it. Judges, unlike juries, are aware of the stipulations made between counsel since they have access to the documents filed by the parties. There is no need to read fact to the judge if he is already familiar with them. Thus, counsel would instead state:
TO JUDGE: Your Honor, at this time I would like to direct the court’s attention
to Stipulation 4 on page 12 of the case file, which gives the total
cost of the plaintiff’s medical bills following the accident.
JUDGE: Yes, I have that… you may proceed.
III. PLANNING DIRECT EXAMINATIONS
Your principal tool in presenting a persuasive direct examination is, of course, the knowledge of your witness. If the underlying content of the examination is not accurate and believable, its organization is unlikely to make any noticeable difference. Your first concern, then, must be content – the existence of the facts that you intend to prove.
Recall that direct examination provides your best opportunity to prove your case. To do so effectively, the examination must establish some aspect of your theory or contribute t the persuasiveness of you theme. Preferably, it will do both.
In considering the content of a direct examination, return to the summary you created in Chapter 2 (“Case Preparation”) and pick up where you left off by prioritizing those facts that are most helpful to your case and eliminating those that are extraneous. This is a ruthless process. In direct examination, length is your enemy. You must work to eliminate all nonessential facts that are questionable, subject to impeachment, cumulative, distasteful, implausible, distracting, or just plain boring.
1. What to include
First, go through a process of inclusion. Taking your summary of the helpful facts the witness adds to your case, determine which ones are necessaryto the establishment of your theory. What is the single most important thing that the witness has to say? What are the witness’s other facts that will make the central information more plausible? What is the next most important part of the testimony? What secondary facts make that testimony more believable? Continue this process for every element of your case.
For example, assume that our fire engine case one of your witnesses saw the defendant driver at an automobile repair shop just a few days before the accident. The witness indicated in her statement that the defendant was advised that his brakes were in poor repair, but that he left without having them fixed. This is a fact of central importance (since it shows recklessness), and you will no doubt present it in the direct examination of the witness. The facts that support this testimony include corroborative details such as the time of day, the witness’s location during the crucial conversation about the brakes, and why the witness can identify the defendant. These details, while not strictly relevant to your theory, give weight and believability to the crucial testimony.
You must also be sure to include those thematic facts that give your case moral appeal. Returning to the fire truck case, remember that at the time of the collision the defendant was already late for an important meeting. How can your theme, “Too busy to be careful,” be developed in the testimony of the auto shop witness described above? The answer is to look for supportive details in the witness’s statement. Was the defendant curt or abrupt with the repairperson? Was he constantly looking at his watch? Was he trying to read important-looking papers while discussing the brakes? Did the defendant rush out of the shop? In other words, search for details that support your image of the defendant as busy, preoccupied, and unconcerned with safety.
In addition to central facts and supporting details, your “content checklist” should include reasons and explanations whenever possible. Remember, stories are more persuasive when they include reasons for the way people act. A direct examination usually should include the reasons for the witness’s own actions and, with qualified witnesses, reasons for the action of another. Likewise, when a witness’s testimony is not self-explanatory, or where it raises obvious questions, consider whether you can ask the witness to explain. In the above repair shop scenario, it may not be immediately apparent that a casual observer would recall the defendant’s actions in such detail. Thus, ask the witness for an explanation:
QUESTION: How is it that you can remember seeing and hearing what the
defendant did that morning?
ANSWER: I was at the shop to have my brakes fixed, and it really made an
impression on me that he was leaving without taking care of his.
This explanation is logical and believable and will bolster the witness’s testimony against the defendant.
Additionally, as we explained above, some part of every direct examination should be devoted to establishing the credibility of the witness. You can enhance credibility in numerous ways. Show that the witness is neutral and disinterested. Demonstrate that the witness had an adequate opportunity to observe. Allow the witness to deny any expected charges of bias or misconduct. Elicit the witness’s personal background of probity and honesty.
2. What to exclude
Having identified those facts that most support your theory and most strengthen your theme, you may now begin the process of elimination. Unless you have an extraordinary compelling reason to include them, you will need to consider discarding all facts that fall into the categories discussed below.
Clutter may be the single greatest vice in direct examination. Details are essential to the corroboration of important evidence, and they are worse than useless virtually everywhere else. Aimless detail will detract from your true corroboration. In the auto shop example, for instance, the witness’s proximity to the service counter is an essential detail. The color of the paint in the waiting room is not.
It is usually better to pass up a line of inquiry than to pursue it and ultimately have it rejected. This is not, however, a hard and fast rule. Many true facts will be disputed by the other side, and your case will virtually always turn upon your ability to persuade the jurors that you version is correct. Sometimes your case will depend entirely upon the testimony of a single witness who, though certain and truthful, will come under massive attack. Still, you must be willing to evaluate all of the potential testimony against the standards of provability and need. If you can’t prove it, don’t use it – especially if you don’t need it.
Next, exclude any implausible facts. You will know an implausible fact when you see it does not need to be disputed in order to collapse under its own weight. It might be true, it might be useful, it might be free from possible contradiction, but it may still not fly. Return to the auto shop witness and assume that she said in her statement that she recognized the defendant because they had once ridden in the same elevator fifteen years previously. You may have no reason to disbelieve the witness, and it is certainly unlikely that anyone could contradict or disprove her testimony. The testimony might even add some support to your theme, say, if the defendant rushed out of the elevator in an obvious hurry to get to work. Nonetheless, the testimony is simply too far-fetched. If offered, it will give the trier of fact something unnecessary to worry about; it will inject a reason to doubt the other testimony of the witness.
Note, however, that implausibility must be weighed against importance. If the case involved a disputed identification of the defendant, then proof of an earlier encounter might be of sufficient value to risk its introduction.
Direct testimony that opens the door for inquiries on cross examination that otherwise would not be allowed should also be left out. The reason door openers are dangerous is because fairness requires that the cross examiner be allowed to explore any topic that was deliberatively introduced on direct. For example, in the intersection case the defendant almost certainly would not be allowed to introduce the fact that the plaintiff had been under the care of a psychiatrist. On the other hand, assume that the plaintiff testified on direct that the accident had forced her to miss an important appointment with her doctor, and that the appointment could not be rescheduled for a week due to the nature of the doctor’s schedule. In these circumstances the door would be opened, at a minimum, to a cross examination that covered the mature of the appointment and the reason that it could not be rescheduled; in other words, that the plaintiff was on her way to see her psychiatrist.
Organization is the tool through which you translate the facts include in a witness’s statement into a coherent and persuasive story. A trial lawyer does not simply ask a witness to “tell us everything you know,” but instead uses the placement and sequence of the information to heighten and clarify its value. In Chapter 3 (”Communication Techniques”) we discussed a number of methods you can employ when organizing your direct examination, including repetition and duration, reflective questioning, apposition, headlines, and enumeration. Be sure to refer back to that chapter often as you compose your direct examination.
Although there is no set pattern for the structure of a direct examination, the following guidelines should be loosely followed.
1. Start strong and end strong
a. The overall examination
Every direct examination no matter how else it is organized, should strive to begin and end on strong points. The definition of a strong point will differ from trial to trial. It may be the most gripping and dramatic aspect of the entire examination, the single matter on which the witness expressed the greatest certainty, the most hotly disputed issue of the case, or it may be a crucial predicate for other testimony. Whatever the specifics, the strong points of your overall examination should have some or all of these features:
Admissibility: There is little worse than having an objection sustained right at the beginning, or end, of a direct examination. You must be absolutely certain of the admissibility of your opening and closing points.
Theory value: The very definition of a strong point is that it makes a significant contribution to your theory. What does the witness have to say that is most central to the proof of your case?
Thematic value: Ideally, your strongest points will reinforce the moral weight of your case. Try to phrase them in the same language you use to invoke your theme.
Dramatic impact: Dramatic impact at the beginning of an examination will keep the judge or jury listening. Dramatic impact at the end of the examination will help fix the testimony in their memories.
Undeniability: Choose strong points in the hope that they will be vividly remembered. It will do you little good if they are remembered as being questionable or controverted.
In most cases, of course, it will be necessary to use the opening part of the direct examination to introduce the witness and establish some of her background. Thus, the actual “beginning” of the examination should be understood as the beginning of the substantive testimony.
b. The sub-examinations
Each full direct examination is actually a combination of many smaller sub-examinations. As you move from topic to topic you are constantly concluding and reinitiating the sub-parts of the direct testimony. The start strong/end strong rule should not be applied only to the organization of the full direct; it should also be used to structure its individual components.
In our intersection case you might wish to begin and end the substantive part of the plaintiff’s examination with evidence about the fire truck. In between, however, you will cover may other issues, including the plaintiff’s background, the scene of the collision, and the plaintiff’s damages. Each of these component parts of the direct should, if possible, begin and end on a strong point.
In something as simple as setting the scene, consider what elements of the description are most important to your case. Then begin with one and end with another. In the intersection case you might want to lead off with the clarity of the weather conditions in order to establish visibility. Perhaps you would then conclude the scene-setting portion of the examination with this description of the traffic:
QUESTION: Of all of the cars that were present, how many stopped for the
ANSWER: All of them, except the car driven by the defendant.
2. Use topical organization
Chronology is almost always the easiest form of organization. What could be more obvious than beginning at the beginning and ending at the end? In trial advocacy, however, easiest is not always best. In many cases it will be preferable to utilize a topical or thematic form of organization. In this way, you can arrange various components of the witness’s testimony to reinforce each other, you can isolate weak points and you can develop your theory in the most persuasive manner. The order in which events occurred is usually fortuitous. Your duty as an advocate is to rearrange the telling so that the story has maximum logical force.
Even in a matter as simple as our fire truck case, a strictly chronological examination of the plaintiff could fail to be either dramatic or persuasive. A chronological examination regarding the day of the accident would set forth these facts in this order: the time that the plaintiff left home that morning; her destination and her estimated travel time; the weather and traffic conditions; her route from street to street until she arrives at the fateful intersection; the appearance of the fire truck; the plaintiff’s reaction; and finally the collision. After slogging through this series of details, some important and some not, the direct examination finally arrives at the most important event – the accident itself. But is the fact-finder still interested?
It would be more dramatic to (1) begin with the collision, (2) explain why the plaintiff had stopped her car, (3) describe the fire truck, (4) describe the response of the surrounding traffic, and (5) contrast that with the actions of the defendant. This leads us directly to our next point.
3. Get to the point
A direct examination is not a treasure hunt or murder mystery; there is seldom a reason to keep the jurors in suspense. The best form of organization is often to explain exactly where the testimony is headed and then to go directly there. For example:
QUESTION: Please introduce yourself to the members of the jury.
ANSWER: My name is Len Rubinowitz. I’m a law professor at Northwestern
Law School here in Chicago.
QUESTION: Professor Rubinowitz, I want to ask you this right up front so the
jurors know – why is it that you are here today?
ANSWER: I’m here because you asked me to testify about the bank robbery
I witnessed last August first.
4. Tell the story
Once the trier of fact knows why the witness is testifying, they will be anxious to hear the witness’s story of what happened. While you may need to revert back to the witness’s background, as in the example above, keep that portion brief and then proceed directly to the witness’s story using a headline to alert the fact-finder to where you’re going. For example:
QUESTION: Let’s go directly to the armed robbery you witnesses on
August first last year, Professor. Where were you when you
witnessed the robbery?
ANSWER: I was inside the bank, standing at the adjacent teller window.
QUESTION: Tell the jury what you saw.
ANSWER: I saw a man with a mask approach the next teller window. He
gave a slip of paper to the woman working at the window and
as soon as he did he pulled out a gun.
QUESTION: Then what happened?
And so on until the story has been told.
5. Do not interrupt the action
Every direct examination is likely to involve one, two, or more key events or occurrences. The witness may describe physical activity such as an automobile accident, an arrest, the failure of a piece of equipment, or a surgical procedure. Alternatively, the witness may testify about something less tangible, such as the formation of a contract, the effect of an insult, the making of a threat, the breach of a promise, or the existence of pain following an injury. Whatever the precise subject, it will always be possible to divide the testimony into “action” on the one hand and supporting details and descriptions on the other.
As the witness describes an event such as the armed robbery of a bank above, a cardinal rule for the organization of a direct examination is never to interrupt the action. Do not disrupt the dramatic flow of the description of crucial events in order to fill in minor details. For example, it would be unwise to stop in the middle of Professor Rubinowitz’s testimony about the bank robbery to ask him how many other people were in the bank at the time or what the lighting conditions were like inside the bank. While these details may be important, they cannot possibly be more important enough to justify fracturing the natural flow of occurrence testimony.
The best way to cover supporting details is to go back through the witness’s testimony and fill in that information. For example:
QUESTION: Now that we’ve heard what you saw and heard that day, I need
to take you back through your description to fill in some details,
QUESTION: How many other people were in the bank when you entered?
ANSWER: Four or five. It was early in the morning – the bank had just
QUESTION: What were the lighting conditions like inside the bank when you
saw the defendant approach the teller window?
ANSWER: It was bright. There were windows on the east side and the
morning sun was beaming in through blinds, which were open.
Also, all of the lights inside the bank were on.
This method has the added advantage of allowing you to repeat much of the witness’s crucial testimony since you are now seeking the clarification.
6. Affirm before rebutting
Witnesses are often called to testify to give both affirmative evidence and to refute the testimony of others. In such cases it is usually best to offer the affirmative evidence before proceeding to refutation. In this manner you will accentuate the positive aspects of your case and avoid making the witness appear to be a scold. As a general organizing principle it is useful to think about building your own case before destroying the opposition’s.
7. Draw the sting
It is often advisable to bring out potentially harmful or embarrassing facts on direct in order to blunt their impact during cross examination. The theory here Is that the bad information will be less damaging if the witness offers and explains it herself rather than giving opposing counsel the satisfaction of bringing it out on cross examination. Be careful only to draw the string when you are sure that the information will be admissible if offered by the other side – otherwise, asking about it on direct “opens the door” for the cross examiner.
Assuming that you have decided to being out damaging information on direct, be sure not to do it at the beginning or end of the examination. Remember that under the principles of primacy and recency, bad facts cannot possibly be the strong points of your case, so you will always want to bury them in the middle of the direct examination.
It is best to allow the jurors to get to know your witness before you introduce harmful information. It is a normal human tendency to want to believe the best of people whom you like. Thus, you should give the trier of fact every possible reason to like your witness before offering anything that might have a contrary effect.
8. End with a clincher
Every examination should end with a clincher – a single fact that capsulizes your trial theory or theme. To qualify as a clincher a fact must be (1) absolutely admissible; (2) reasonably dramatic; (3) simple and memorable; and (4) stated with certainty. Depending upon the nature of the evidence and the theory on which you are proceeding, the final question to the plaintiff in our automobile case might be any of the following:
QUESTION: How long was the fire engine visible before the defendant’s car
ANSWER: It was visible for at least ten seconds because I had already seen
it and stopped for a while when the defendant ran into me.
QUESTION: Did the defendant begin talking on the phone before or after he
checked on your injuries?
ANSWER: He started his call without even looking at me.
QUESTION: Do you know whether you will ever be able to walk again without
ANSWER: The doctors say that they can’t do anything more for me, but I am
9. Ignore any rule when necessary
By now you have noticed that the above principles are not completely consistent with one another. In any given case you will probably be unable to start strong, organize topically and affirm before refuting while still getting to the point without interrupting the action. Which rules should you follow? The answer lies in your own good judgment and can only be arrived at in the context of a specific case. If you need another principle to help interpret the others, it is this: apply the rules that best advance your theory and theme.
IV. THE ETHICS OF DIRECT EXAMINATION
The two most common ethical issues counsel face when preparing for direct examination are discussed below:
A. Asking Objectionable Questions
As we discussed in Chapter 2 (“Case Preparation”) , assessing the likely admissibility of evidence is an essential component of trial preparation. There is no question that counsel may offer any evidence that she believes is either clearly or probably admissible. What about evidence that is probably inadmissible? Is it ethical to offer such testimony in the hope that opposing counsel will fail to object or that the judge will make an erroneous ruling?
It is ethical to offer any evidence for which you have a reasonable theory of admissibility. Our adversary system calls upon each attorney to make out the best case possible, and relies upin the judge to rule on disputed issues of law. Valuable evidence should not be preemptively excluded on the basis of counsel’s assessment, so long as there is a reasonable basis in the law for its admission.
When does counsel have a reasonable basis as to the admissibility of evidence? An appropriate rule for answering this question is to consider it improper to offer evidence that cannot be supported by an articulatable theory of admissibility. Counsel should be able to complete, with specific and recognizable legal arguments, the sentence that begins, “This evidence is admissible because…” If the only conclusion for the sentence is “Because it helps my case,” then there is not a reasonable basis for the offer.
In summary, on direct examination counsel may attempt to elicit any information that is certainly or probably admissible but should refrain from attempting to elicit information that has no reasonable basis of admissibility.
B. Eliciting Unreasonable Inferences
This rule is unique to mock trials due to the “canned” nature of case files. Oftentimes, there will be important facts missing from a case file – facts that you could elicit in a real trial since the witness would have actual knowledge of the events. In mock trials, however, the witnesses are played by actors who are merely reciting the contents of the witness statements and who did not actually participate in the events they are explaining. As a result, mock trial witnesses are limited to testifying about the content of their statements and reasonable inferences from the facts therein.
What is a reasonable inference? Unfortunately, there is no formula for answering this question. Suffice it to say that an inference is probably reasonable if it is supported by the facts contained in the statement, it is logical and believable, and it does not itself constitute a material fact. Of course, the more facts that support an inference, the more reasonable it is. :Likewise, the reasonableness of an inference is also correlated with the logic it employs and its overall believability. Finally, a reasonable inference cannot itself constitute a material fact in a mock trial since all the material facts intended for the trial are included in the case file.
To test an inference for reasonableness, ask yourself these questions: Are there facts in the case file that support this inference? Does it make sense that this witness would know this information? If I were a juror, would I believe this inference from the witness’s testimony? If I were cross examining this witness, would I decline to challenge this witness for not including this fact in his statement? If the answer to all of these questions is affirmative, your proposed inference is probably reasonable.