Chapter 7: Direct Examination

Direct examination is the primary source of evidence in our justice system: the advocate's questions must let the witness recreate events so the fact finder can see, feel, hear, and perceive them — producing testimony that is legally sufficient, credible, compelling, and resistant to cross-examination.

Chapter 7

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7.1 Introduction

A. Purposes

B. Testimonial Evidence

7.2 Evidence Considerations

A. Competent

B. Relevant

C. Foundation

D. Reliable

7.3 Preparation

A. Overall Preparation

B. Evidence/Witness Chart

C. Specific Preparation

D. Practice/Rehearsal

7.4 Witness Preparation

A. Obtaining Information

B. Methods of Preparation

C. Preparation for Direct Examination

D. Preparation for Cross-Examination

E. Client Guidelines

F. Sequence of Witnesses

7.5 Attorney Presentation

A. Practical Location

B. Approaching the Witness

C. Procedural Preferences

7.6 Structure of Direct

A. Beginning of Direct Exam

B. Organizational Choices

7.7 Proper Question Form

A. Leading Questions

B. Permissible Leading Questions

C. Narrative Questions

D. Improper Question Forms

7.8 Question and Answer Techniques

A. Portraying the Characters

B. Establishing Foundation

C. Setting the Scene

D. Describing the Action

E. Detailing Conversations

F. Asking Persuasive Questions

G. Developing Factual Details

7.9 Redirect Examination

A. Limited Scope

B. Foregoing Redirect

C. Question Format

D. Correcting Testimony

E. Reserving Evidence

7.10 Direct Examination Situations

A. Former Testimony

B. Past Recollection Recorded

C. Witnesses with Communication Issues

D. Character Evidence

E. Habit Evidence

7.11 Improper Direct Examination

A. False Testimony

B. Soliciting Inadmissible Responses

C. Inadvertent Witness Misconduct

D. Disruptions

E. Confusing Identification

7.12 Completion of Direct Examination

—————

ReflectinG on Advocacy

Any fact is better established by two or three good testimonies than by a thousand arguments.

—Nathaniel Eramens

If you can’t be direct, why be?

—Lily Tomlin

Introduction

A. Purposes

Testimony is a primary source of evidence in our justice system. An advocate asks questions of witnesses and their answers reveal the facts, describe what happened, and tell the story. The focus of attention—the spotlight—is on the witness and the account that is being depicted.

Direct examination requires an advocate to present evidence that:

• Is legally sufficient to survive a motion for a directed verdict, a judgment as a matter of law, and a motion to dismiss.
• Meets or exceeds evidentiary admissibility requirements.
• Convinces the fact finder of the truth of the story being told.
• Is easily understood and remembered by the fact finder.
• Resists cross-examination.
• Anticipates, counters or contradicts opposition evidence.
• Provides the decision maker with evidence to support victory.

The direct examiner asks questions that permit the witness to recreate an event so the fact finder will see, feel, hear, sense, and perceive the event as experienced by the witness. The facts described by the witness must be clear, credible, interesting, compelling, and persuasive. It is the prime responsibility of the direct examiner to ask questions to develop this story and enable the witness to communicate effectively.

An effective direct examination may sound and appear easy. The witness describes the events in an understandable and interesting way while sounding and looking believable. The fact finder is engrossed in the compelling story. There are no interruptions while the persuasive examination flows. The opposing attorney can make no objections that would be sustained. The credible, convincing evidence needed to prove the case is introduced. All that is the ultimate goal of a successful direct. And all that takes a lot of preparation and effort—as well as faith and hope—on the part of the advocate.

The testimony of witnesses, along with exhibits, constructs the evidentiary pathway to victory. Our advocacy system mandates relevant direct examination questions and answers and allows thorough cross-examination enquiries and responses. These two examination cornerstones form the framework for opening statements and summation.

It may appear that a good direct examination depends on an effectual witness, an easy case, or just plain luck. In actuality, the success of a direct examination depends upon the considerable abilities of the direct examiner. The advocate provides the structure and orchestrates the telling of an appealing and cogent presentation through a reliable and sincere witness who has been properly prepared to testify.

Direct examination skills are not generally acquired and enhanced outside of trials and hearings. The ability and talent needed to ask relevant and non-objectionable questions is not commonly developed through other life experiences. Advocates learn direct examination proficiency in the crucible of advocacy proceedings. We can accelerate the learning process by visualizing an event and bringing that story to life through questions and imagined answers – followed by simulated practice and real experiences.

B. Testimonial Evidence

The taking of the verbal testimony of witnesses in trials and hearings follows well-established procedures. The process begins with the judge, arbitrator, administrative law judge (ALJ), or clerk calling a witness forward or asking counsel to call a witness, or counsel saying: “The plaintiff calls Agatha Christie as our first (next or last) witness.” This individual, who is at counsel table, or in the room or outside in the waiting area, comes forward and stands by the witness box or the witness chair. Witnesses are asked to raise their right hand, and in some jurisdictions, may place their left hand on a Bible or other holy book such as the Torah or Quran. An oath or affirmation is administered. A witness may swear to an oath that includes the word “God” or affirm to tell the truth under penalty of perjury. Then, the witness is ready to testify.

The witness is commonly directed to: “Please state and spell your full name.” A witness may also be asked to give some other identifying information. The decision maker may state: “Counsel, you may proceed,” or counsel may automatically begin questioning. The direct examiner need not have witnesses repeat their name and can begin with a welcoming or relevant question.

Not all witness testimony is presented in person. In some cases, a previously recorded video or a transcript that includes both direct and cross-examination substitutes for live statements. In arbitration and administrative hearings, witnesses may testify by internet streaming or satellite transmission, by phone or other communication means.

Evidence Considerations

Four primary evidentiary considerations apply to direct examination:

1. The witness must be competent to testify.

2. The testimony must be relevant.

3. Foundation must be established.

4. The evidence must be reliable.

See Chapter 4 on Evidence and Objections, Sections 4.6 through 4.20.

A. Competent

There are four competency requirements. A witness must:

• Give an oath or an affirmation,
• Perceive something,
• Remember what was perceived, and
• Communicate this information.

The judge, arbitrator, or ALJ decides whether a witness meets these requirements. A witness who fails to satisfy these four factors is incompetent to testify.

1. Oath or Affirmation

A witness must agree to tell the truth either in response to an oath (I do) or an affirmation (I affirm that I will tell the truth under penalty of perjury). The witness must appreciate and understand the meaning of an oath or affirmation. This ability of a witness is usually obvious and typically goes unchallenged.

Witnesses may be challenged if they do not understand what it means to tell the truth. See § 4.11(A). Such witnesses include young children or people with mental, learning, memory, or communication issues. It may be necessary for the direct examiner to ask a series of questions that demonstrate the ability of the witness to understand and tell the truth.

Example:

Lawyer Examining Young Child:

Q: Sandy, how old are you?

A: Seven.

Q: What does it mean when someone asks you to tell the truth?

A: It means I shouldn’t lie.

Q: What is a lie?

A: It’s when I don’t tell the truth about something.

Q: What happens to you when you don’t tell the truth?

A: Ah . . . I can’t play on my computer, or I can’t do something that I really want to do.

Q: Has that happened to you?

A: Yea.

Q: What will you tell us today?

A: About Scarlett Overkill. . .and the others.

Q: Will it be the truth?

A: Yes.

In jury trials, it may be necessary to conduct a hearing outside the presence of the jury for the judge to determine whether a witness is competent. An attorney who plans to conduct a direct examination of a questionable witness may ask the court to rule on the competency of the witness before that witness takes the stand to avoid the opposing party objecting to a witness in front of the jurors. The direct examiner may ask questions of the witness to lay a foundation to establish competency. A judge may prefer to meet the witness in chambers and talk with the witness to determine competency.

2. Perception

The degree to which a witness must perceive something to be competent depends upon the nature of the testimony. A witness is competent if the witness has personal knowledge of the matters about which the witness is to testify. The rules of evidence properly exclude testimony about matters the witness did not observe or had no opportunity to observe. See Fed. R. Evid. 602. Witnesses acquire personal knowledge through any of their senses. For example, witnesses who hear or see something can testify to what they heard or saw. See § 4.11(B).

Witnesses can testify to opinions within the realm of common experience that help the fact finder understand an issue. Common lay witness opinions include speed, time, distance, emotions, feelings, age, health, and sobriety. A lay witness can testify to an opinion if it is rationally based on the perception of the witness and if it is helpful to an understanding of the testimony or the determination of a factual issue. See § 4.12(B).

A witness may be qualified to testify as an expert witness if the testimony is not generally within the knowledge of the fact finder and the testimony will assist the fact finder in understanding the case or will help establish a factual issue. Expert testimony includes scientific, technical, or other specialized knowledge outside the scope of common experiences. A witness is qualified as an expert when the witness has sufficient knowledge, skill, experience, training, or education to render a helpful opinion. Chapter 10 explains the use of expert witnesses.

3. Recollection

A witness must recall what they perceived. A witness whose memory may have been affected between the time of observing an event and the testimony may be challenged as incompetent. For example, witnesses who suffer an injury adversely affecting their memory may be challenged. See § 7.3(C).

4. Communication

A witness must obviously be able to communicate. Witnesses testify through their own words or as translated by an interpreter. An individual with communication issues may be assisted by the direct examiner who can ask leading questions to assist the witness in testifying. See § 7.7(B). This tactic must be limited in use to avoid highlighting the inability of the individual to testify independently of the attorney.

Examples:

Q: Please describe for us what you saw…[or, heard, felt, tasted, touched, smelled, sensed, or perceived].

Q: What you did see…[or, hear, feel, taste, touch, smell, sense, or recognize]?

Q: What else did you view…[or, observe, find, handle, gather, learn, realize, contact, notice, perceive, identify, consider, understand, or know], Professor Encyclopediae?

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B. Relevance

Testimony must be relevant before it may be considered by the fact finder. Relevant evidence has a tendency to make more or less probable facts and opinions of consequence to the case. Fed. R. Evid. 401 & 402. If the testimony is relevant, it’s admissible. If the evidence has no logical relationship to events, it’s not relevant and not admissible. See § 4.9.

While relevant testimony is commonly admissible, there are some exceptions. If the prejudicial value of the evidence unfairly outweighs its probative value, or if the testimony confuses the issues, is misleading, causes undue delay, or is a needless presentation of cumulative facts, the evidence will not be permitted even though relevant. Fed. R. Evid. 403. In addition, there are other types of unfairly prejudicial evidence described in Section 4.9(B) that will not be permitted for important public policy reasons even if relevant: improper character evidence (Fed. R. Evid. 404 & 405), improper habit evidence (Fed. R. Evid. 406), subsequent remedial measures (Fed. R. Evid. 407), offers of compromise (Fed. R. Evid. 408), payment of medical expenses (Fed. R. Evid. 409), plea bargains ( Fed. R. Evid. 410), and liability insurance (Fed. R. Evid. 411).

C. Foundation

Foundation consists of the facts that establish the reliable basis of the evidence. Before evidence of “Y” can be introduced, evidence of “X” must be established—which is the factual foundation. See § 4.11(C). Evidence based on unknown, untrustworthy, or undependable sources is not admissible.

Example:

Examining Attorney:

Q: What happened when you arrived home?

A: Someone was in the kitchen with Dinah.

Q: Who was it?

Objecting Lawyer:

Objection: Lack of foundation.

Judge:

Sustained.

Examining Attorney:

Q: What did you do when you got home?

A: I went into the kitchen.

Q: What did you see?

A: I saw someone in the kitchen with Dinah.

Q: What did you see this person doing?

A: Strummin’ on the ol’ banjo.

Q: What else was this person doing?

A: He was singing “Fee Fi Fiddley I Oh.”

Q: Did you recognize this person?

A: Oh, yea.

Q: How?

A: I had seen and heard him strum his banjo and sing this song at the Grand Ol’ Opry.

Q: Who was he?

A: J.H. Cave.

D. Reliable

Direct examination evidence must be reliable. The following factors determine satisfactory and suitable reliability:

• Does the witness have personal knowledge of the matter? Fed. R. Evid. 602.
• Has a sufficient foundation been laid to establish the source of the information? Fed. R. Evid. 901.
• Is the opinion testimony rationally based on the perception of the witness? Fed. R. Evid. 701.
• Is the out-of-court statement not hearsay? Fed. R. Evid. 801.
• Is the testimony admissible based on an exception to the hearsay rule? Fed. R. Evid. 803 & 804.

If these are answered in the affirmative, the evidence is admissible. The following examples illustrate reliable and admissible testimony:

Example (Personal Knowledge of an Event):

Q: Did you see what happened?

A: Vividly.

Q: Where were you?

A: Standing on the foredeck.

Q: What were you doing?

A: Watching and waiting for the harpoon to be unleashed.

Q: What happened with the harpoon?

A: The harpoon was launched, striking the whale.

Q: What did the whale do?

A: The stricken whale flew forward and dove beneath the sea.

Q: What happened with the harpoon line?

A: With igniting velocity the line ran through the groove until it ran afoul.

Q: What happened after the line ran afoul?

A: Captain Ahab stopped to clear it, but the flying line caught him around the neck.

Q: Then what happened to Captain Ahab?

A: He was shot out of the boat, voicelessly as warriors bowstring their victim.

Q: What did you see?

A: He was gone. He disappeared into the depths of the sea.

Q: What did you see next?

A: After a while, the whale breached, bursting out of the water.

Q: Did you see Captain Ahab?

A: Yes.

Q: Where was he?

A: He was strapped to the whale, bound by the harpoon lines.

Q: How did he look?

A: Peaceful. His arm was waving at us, beckoning us to follow.

Example (Description of Sensations):

Q: Before you saw the fire, did you smell anything, Ms. Nero?

A: Yes.

Q: What did you smell?

A: I smelled smoke.

Q: Did you hear anything shortly before you saw the fire?

A: Yes.

Q: What did you hear?

A: A violin being played in the palace.

Example (Identification of a Voice):

Q: Did you know Jessi Combs?

A: Yes, I did.

Q: How?

A: We had been friends for years.

Q: Had you spoken to her in person?

A: Oh, yes.

Q: How often?

A: About, monthly.

Q: And, did she telephone you?

A: Sure.

Q: How frequently?

A: Couple of times a month.

Q: Did you have caller ID?

A: Yes.

Q: And, did you speak to her over the phone?

A: Yes.

Q: Did you recognize her voice?

A: Of course.

Q: How?

A: She had a distinctive and pleasant way of speaking that I would easily recognize.

Q: Did she call you during the Rally?

A: Right after.

Q: And did she talk to you then about the speed record?

A: Yes.

Q: What did she say?

A: She said, “I’m thrilled to hold the land speed record.”

Example (Opinions Based on Observation):

Q: What did Norma Rae do?

A: I saw her run over to the foreman and shake her fist at him.

Q: How far away from them were you?

A: About ten feet.

Q: Did you see how Ms. Rae looked?

A: Yes.

Q: How did she look?

A: She was quite flushed and a bit angry.

Q: What did she do next?

A: She yelled loudly at the foreman.

Q: Then what did you see?

A: She grabbed a placard, wrote on it, and held it up.

Q: How long did you see Ms. Rae do all this?

A: For a few minutes.

Q: How would you describe her actions?

A: She was excited and very determined.

Example (Explanation of an Incident):

Q: What did you see, Mr. Frost?

A: Two roads diverged in a yellow wood.

Q: What were you thinking?

A: Sorry I could not travel both and be one traveler.

Q: What happened next?

A: Long I stood.

Q: What did you see as you were standing there?

A: I looked down one as far as I could see.

Q: What did you do?

A: I took the one less traveled by.

Q: Why?

A: Because it made all the difference.

Example (Explanation of an Event):

Q: What were you attempting to code, Dr. Hopper?

A: A programmable text file with an open source code.

Q: Why?

A: We were exploring whether it’s more efficient for a computer to run a program directly or indirectly.

Q: What did you conclude?

A: That it depends upon the computer language. Some languages permit direct runs, while other languages have programs run indirectly.

Q: And which computer run did you prefer to use?

A: That depended on the code selected to tell the computer what to do.

Q: What preference did you have for a code?

A: The one with the most accessible operating language available to the public.

Preparation

A. Overall Preparation

The preparation of direct examination begins with a review of the evidence needed to establish the theories, evidence, and issues of the case.

1. Legal Theories

The elements of each claim or defense must be reviewed to ascertain what direct examination testimony is needed to prove the legal issues. In a jury trial, the substantive jury instructions provide these factors. In other trials and hearings, the elements of a cause of action or defense provide this information.

2. Factual Story

A direct examination must introduce those facts and opinions the witness knows or asserts that are part of the overall story of the case, including the foundation for the admissibility of exhibits. The direct examiner must anticipate the cross-examination of the witness and introduce evidence that reduces the effectiveness of the anticipated cross. The advocate must also evaluate the facts and opinions of the opposing party’s case and determine what evidence should be introduced that contradicts or rebuts these matters.

An LLM can organize and present the factual story, highlighting key facts and opinions that align with the case’s narrative and suggesting ways to introduce these facts effectively. The LLM can also predict potential cross-examination questions based on the opposing party’s case, helping the lawyer prepare preemptive responses to mitigate their impact.

3. Significant Issues

The direct examiner must review the significant issues in a case to determine which witnesses should be asked questions regarding those topics. A witness who has information about important facts, offers convincing opinions, buttresses the credibility of another witness, provides information from which the fact finder may draw favorable inferences, or has any other helpful responses, should testify to this persuasive evidence.

4. The Complete Story

The ultimate preparation goals for direct examination are to: gather the evidence, prepare the witnesses, and provide the decision maker with all the information necessary to favorably decide the case. After completing preparation for these tasks, the advocate should ask: what else does or may the fact finder need to know about the story? Questions may be crafted to produce that additional information.

5. Scope of Direct Examination

The scope of direct examination determines the scope of cross-examination. Inquiring into topics on direct will “open up” those topics for cross. Lawyers need to consider what matters need to be avoided on cross and perhaps on direct, especially if the issues are marginal or collateral to the case. This tactic may reduce the scope of permissible cross and perhaps forestall the opposing attorney from inquiring into unfavorable matters. A direct examiner may not be able to preclude a cross-examination regarding facts not specifically addressed on direct, as the scope of cross is typically quite broad. See § 9.2.

B. Evidence/Witness Chart

Form 7.1 provides an analytical framework to prepare an effective direct examination.

C. Specific Preparation

The presentation of a successful direct examination requires the preparation of written or printed materials. These materials may be an outline of topics, a list of questions, or a combination of topics and questions. A written outline provides an organized and structured approach to the examination and includes the major topics about which the witness will testify. A printed list of questions acts as a script for the direct examination and contains the sequence of questions to be asked. The materials should be organized and composed on paper or on a tablet or laptop with large, easy to read font, and with important words, phrases, and questions highlighted. Presentation software can create content, slides, and screen shots that contain questions and answers.

A combination outline/script provides the advantages of both while reducing the disadvantages of each. An outline may be effective for easy questions and simple topics, but may be inadequate for complex or difficult matters. A detailed script contains the questions to be asked, but may not permit sufficient flexibility and may encourage the advocate to read questions instead of asking questions in a conversational manner. A well-structured outline/script contains a comprehensive list of topics to be covered and specific questions to be asked in certain areas. This preparation ensures that the direct is complete and comprehensive and provides an easy-to-follow format.

To effectively prepare direct examination materials, an advocate can:

• List all the topics that need to be covered.
• Organize related topics together.
• Identify the best witnesses.
• Compose questions for topics that need prepared questions.
• Review the lists and sequence topics appropriately.
• Organize exhibits to supplement or enhance testimony.
• Edit and supplement the materials during case preparation.
• Anticipate possible objections and responses.
• Consider other sources to prove the evidence.

Example: Auto Accident Eye Witness

Background

Family

Spouse

Children

Education

High school

College

Hobbies

Job

Present

Prior Work

Day of Accident

Date—March 15, 20XX

Location—294 Wild Flower Lane, Green Acres

Before accident

Where

When

From—to

At accident

Where standing

Lighting

Weather conditions

Other vehicles

Intersection

Other witnesses

Arrival of police

Scene

Intro diagram: fair and accurate representation

NE corner—corner where standing—gas station

SE corner—opposite corner— fence

NW corner—corner to left—grocery store

SW corner—diagonal opposite—ballfield

Action

Blue Chevy going west—right to left on Wild Flower Lane

Red Ford going east—left to right on Wild Flower Lane

Foundation for speed of Chevy

How long in view

From what distance

From where to where

Drove car for 20 years

Estimated speed of own car and other cars

Opinion: 35 m.p.h.

Collision

Standing on corner

Waiting to cross street

Watching traffic

Saw collision

Describe collision

Front end of Chevy hit driver’s side of Ford

After collision

Ran over to Chevy

Driver opened car door and got out

How did driver appear?

Who spoke first? Next?

What else did driver say?

“Where did that car come from?”

“I’m dizzy. My body aches.”

Anything further?

Talk with Ford driver? — No

Gave info to police

Left scene

Went home

D. Practice/Rehearsal

An effective way to prepare for a direct examination is to practice asking the questions out loud, following the prepared outline/script. There is no need initially to have a witness provide the answers, although that can be done. Verbalizing the questions familiarizes the advocate with the direct, makes the lawyer more comfortable with the questions, and increases the attorney’s level of confidence. Changes can be made after this rehearsal.

The direct examination can be structured in segments. The advocate can practice the segments rather than rehearsing the entire examination or can easily move the segments around to increase their effectiveness. For example, for an eyewitness in an accident case, the direct examiner can:

• Start the examination with an overview of the accident,
• Describe the sequence of the accident,
• Move to the events before the accident,
• Cover information about the eyewitnesses,
• Discuss the accident in detail, including statements, and
• Conclude with an explanation of the observed injuries.

As noted previously, GenAI and LLM can help attorneys with practice and rehearsal. For example, GenAI tools can record and analyze their rehearsal, identifying frequent pauses or filler words and suggest alternative phrasing or pauses for emphasis. For instance, if the AI detects numerous “ums” during a critical part of the statement, those tools can suggest practicing that section until the delivery is smooth. See § 1.1[C]. Additionally, the AI tool might recommend varying the intonation to keep the audience engaged, suggesting specific words to emphasize to make the presentation more compelling. This continuous feedback loop ensures that by the time of the trial, the attorney can deliver a polished and persuasive direct examination. GenAI tools can also act as the witness, providing a realistic “sparring partner,” especially if the tool is given the content of the actual witness’s likely responses (e.g., earlier deposition testimony). See 1.10[E].

Successive rehearsals allow the attorney to experiment with timing, pacing, voice, gestures, and exhibits. Practice should continue until the lawyer knows the material and is comfortable and confident with the direct questions and anticipated answers. The extent of counsel’s preparation before or during witness prep depends on various factors described below.

Witness Preparation

Advocates need a plan and a system to ensure that all witnesses who will testify on direct examination have been contacted and subpoenaed. All witnesses, even friendly witnesses, should be subpoenaed a reasonable time before testifying to assure attendance as well as reflect neutrality. Form 7.2 provides a checklist for witness selection and preparation.

Witnesses need to be prepared and familiar with the testimony they will give. Factors to be considered include:

• Who conducts the preparation? Does the witness feel comfortable with the examining lawyer?
• When does preparation occur? Will the witness be more comfortable if the preparation occurs at a convenient time?
• Where does the preparation occur? The location and physical layout may affect the comfort of the witness.
• Why is preparation so extensive? Do the witnesses understand the significance of their testimony in the case?
• Are there are particular problems or difficulties that may arise and that need to be addressed and resolved?

A. Obtaining Information

The gathering of information from witnesses occurs before the initiation of the action and continues through all case proceedings. The extent of preparation depends upon their importance to the case and their prior witness experience. Every contact with a witness is an opportunity to obtain information about:

• Facts the person knows,
• Opinions the individual has,
• Exhibits the person possesses or can identify,
• Prior statements the individual has made, and
• Topics that may be covered by the cross-examiner.

!

After the advocate learns what a witness knows and the evidence to be introduced, the advocate can plan the examination by considering:

• What does the witness contribute to the case?
• How important is this witness to the case?
• What are the strengths and weaknesses of this witness?
• What are the abilities of the witness to observe, perceive, remember, and communicate?
• How vulnerable is this witness on cross-examination?

B. Methods of Preparation

The examining lawyer must meet with the witness in order to fully and properly prepare that person for direct examination. The type and extent of preparation varies from case to case, from attorney to attorney, and from witness to witness. Areas to be covered with the individual include the legal theories, factual summary, and significant issues. The more crucial the witness is, the more thorough this explanation must be.

There are a variety of ways advocates prepare witnesses. Many prefer to prepare a direct examination of a key witness as a “dress rehearsal,” complete with questions and answers, and the probable cross-examination conducted by the attorney or a colleague. Many lawyers video record rehearsals so the witnesses can view their answers and their demeanor. Other attorneys prefer to prepare an experienced witness by outlining the structure of the examination without rehearsing specific answers to specific questions. Advocates need to decide the best way to prepare each individual person to make them as effective and comfortable as possible.

Attorneys can take the witness to the courtroom or hearing room where the case will be tried. When the court is in session, the individual can observe the proceedings. When the room is available, the person can sit in the witness chair and become more comfortable with the surroundings. If available, a video of the trial or hearing room or a similar trial or hearing may be shown to a witness.

The appropriate method depends upon the type of case, nature of the evidence, time available, skill of the advocate, and ability and experience of the witness. Witnesses may be prepared individually, in groups, during one interview or several interviews. Some individuals may have problems that require special consideration. Children, persons with communication issues, and extremely anxious people may need special care during preparation. Interpreters or therapists may assist attorneys with these witnesses. Some individuals may be rambling, defensive, arrogant, or sarcastic, and the advocate must discuss these problems with the witness to reduce or eliminate their negative impact.

The goal of witness preparation is to prepare the individual to testify truthfully and credibly. When attorneys prepare a person by “sandpapering” and “sanitizing” their testimony, the witness looks over- rehearsed and is not believable. All witnesses have some weaknesses and problems that need to be dealt with in a forthright manner. An attorney can adjust the preparation to deal with these issues.

In addition to personally meeting with an individual, the attorney may communicate with the witness through email, by sending a note, or providing a booklet or a video recording. These communications can provide general information about the proceedings, the role of a witness, and what the person may expect as well as specific information about the case. If the witness is a client, this information will be protected by the attorney/client privilege and will not be discoverable by the opposing lawyer, except to the extent the information refreshes the recollection of a witness. If the witness is not a client, the communications can likely be discovered by the opposing lawyer.

Before the trial or hearing, the attorney should remind witnesses to keep the attorney informed of their whereabouts and of any new information about the case, and to bring along their individual subpoena.

C. Preparation for Direct Examination

Several areas need to be explained to witnesses, so they know what to expect at the trial or hearing, including explanations about procedures, truthfully answering questions, and witness demeanor.

Procedural matters that need to be explained are:

• The stages of the trial or hearing.
• The role of the judge, jury, arbitrator, ALJ, witnesses, attorneys, and other participants.
• Objection procedures, including the meaning of the words “overruled” and “sustained.”
• Practical matters such as location of and transportation to the trial or hearing, complying with a subpoena, when to appear, the place to meet counsel, the area to wait, and what to do after testifying.
• Preparation and use of diagrams or demonstrative evidence.
• What counsel may do if the witness forgets something, such as using leading questions and refreshing recollection.

Instructions about testifying truthfully include:

• Approach the witness stand or witness chair confidently and say “I do” to the oath or affirmation.
• Speak clearly and loudly. Do not talk softly or mumble.
• Tell the truth.
• Answer the question asked.
• Testify only to what you saw, did, said, or heard.
• Do not ramble nor add more than the question asks.
• Avoid speculation, guesses, and assumptions.
• Avoid overly memorizing responses.
• Think about the event and the details. Picture the scene, the people present, what happened, and what was said.
• Answer with positive, definite answers. Avoid saying “I think,” “I believe,” or “I’m not real sure,” when you actually know the facts. But if you are uncertain about an answer, you may say so.
• Listen carefully to the questions and understand them before answering. If for some reason you don’t understand, ask for the question to be repeated or rephrased until you understand it.
• If your answer was incorrect or unclear, you may correct it then or wait until re-direct examination when you may be asked more questions. If you misspeak, it may be appropriate to say: “I need to clarify something.”
• Use your own words and language, not the language of the lawyer or someone else’s words.
• When testifying, talk as you normally do in a conversation.
• Be aware of and address the fact finder when testifying.
• Do not ask or second-guess why the question was asked.
• Immediately stop when an attorney objects or when the judge or arbitrator or hearing officer interrupts.
• If there is an objection to the question, listen to the objection and what is said. You may learn something about the question and how it should be answered.

Descriptions of proper demeanor include:

• Dress neatly and appropriately for a serious event.
• Be aware of body posture, sit comfortably, and don’t slouch.
• Do not bring any written notes or material unless told to.
• Be courteous, don’t disagree with the lawyers or make jokes.
• Do not ask the judge, arbitrator, or hearing officer for help answering. Your attorney will assist you.
• Don’t make distracting gestures or facial expressions.
• Anticipate being nervous; it’s normal and expected.
• If you feel ill or overly fatigued, ask for water or a break.

An advocate may need or wish to provide witnesses with additional information. If the witness is a client, obviously that person will need to be involved in all aspects of the case and know everything about it.

D. Preparation for Cross-Examination

Directions for cross-examination answers and responses include:

Instructions about witness answers:

• Answer leading questions directly and simply, with a “Yes” or “No,” if appropriate.
• If you cannot truthfully answer a question “yes” or “no,” say so. Not all questions asked of you can be answered that way.
• Do not volunteer information or attempt to explain an answer. You may be asked to explain something on redirect examination if necessary.
• Take your time and do not rush to answer a question.
• If you don’t understand a question, say so. Never answer a question you do not fully understand or before you have thought your answer through.
• If your answer is complete and truthful, stop talking. Do not continue talking even if the cross-examiner looks at you as if expecting you to say more. If the examiner asks you if that is all you recall, say “Yes” if that is the truth.
• Testify to only what you have personally seen, done, said, or heard. Do not speculate, guess, or assume anything. If you do not “know” something because you have not seen, done, said, or heard it, your answer should be, “I don’t know.”
• Testify only to your best recollection. If you do not recall something, say so, even if this makes you appear uncertain.
• Do not exaggerate, and avoid unnecessary superlatives such as “never” or “always.”

Directions regarding how to respond:

• Do not allow the cross-examiner to put words in your mouth. Don’t necessarily accept the lawyer’s characterization of events. If a question is inaccurate, state “I can’t answer that question” even if the lawyer tries to force you into agreeing or disagreeing or saying yes or no.
• If information is contained in a document and you are uncertain of an answer, state you don’t recall the contents or say you need to see the document.
• If you are asked a question which was asked during a deposition or a prior statement, answer the question if you recall the answer. Otherwise, say you don’t recall.
• If you say something that is inconsistent with your prior testimony, don’t panic. Mistakes happen. If you make a misstatement, you may correct it.
• Expect the cross-examiner to obtain some information that may weaken your story. Every case has more than one side, and opposing counsel is trying to tell the other side’s story.
• If the cross-examiner seems confused, don’t attempt to help.
• Answer trick questions properly:

“Your lawyer told you to say that, right?

Say:* “*My lawyer told me to tell the truth.”

“Who else besides your lawyer told you what to say?”

Say: “I’m telling what really happened.”

“Have you talked to anyone about this case?”

If there is no objection, mention individuals you have talked with about the case. It’s normal and expected to have conversed with lawyers and others.

“Are you being paid to testify in this case?”

Say “No.” You are not being paid to testify (unless you are an expert being paid for your time and not testimony). You may be receiving some reimbursement for your travel and expenses.

E. Client Guidelines

A client who sits throughout the case at the counsel table may need to be advised about certain procedures, including:

• You will be periodically watched by the decision maker and should always be aware of being observed.
• Periodically maintain eye contact with the fact finder. This helps personalize you.
• Do not interrupt your attorney unless necessary or when counsel seeks advice. You can write your lawyer a note.
• Pay attention throughout the case, focus on the evidence and arguments, and watch the participants, opposing counsel, and other witnesses. You may be able to observe something your lawyer missed.

F. Sequence of Witnesses

The sequence in which witnesses testify in a case can be a critical aspect of case presentation. Factors such as the best order of witnesses and the most effective timing of evidence must be determined by the advocate.

Order of Witnesses

• Chronology. Witnesses can testify in the way the story unfolds.
• Topical Order. Witnesses may testify as issues are presented.
• First and Last Impression. The witness providing the best first or last impression should be called accordingly.
• Overview. A witness who provides a general overview of important events should be called initially or early on.

Type of Witness

• Party Witness. This critical person should be called when the testimony will have the most impact.
• Foundation Witness. Someone who has information needed to establish the foundation for the introduction of other evidence should be called before that evidence is offered.
• Critical Exhibit Witness. In a case involving important exhibits, it may be necessary to introduce some exhibits at the outset of the case and to call individuals necessary to lay the foundation for the introduction of the vital exhibits.
• Corroborating Information Witness. A witness who corroborates another may follow that person.
• Adverse Witness. If a party calls the opposite party as an adverse witness to testify to damaging admissions, this evidence should be presented at a compelling time.
• Weak Witness. Someone who has credibility problems or who may have difficulty testifying should be called when the negative impact is at a minimum.
• Concluding Witness. The last witness in a case should serve one or more purposes, such as: highlighting the case theory, emphasizing important facts, and providing compelling evidence. The concluding witness should not be vulnerable on cross-examination. In a case with expert witnesses, a strong expert may make an effective final witness.
• Rebuttal Witness. An important witness should not be saved for rebuttal. If the opponent chooses not to present the anticipated information needed for this person to rebut, the individual may not be allowed to testify. See § 3.6(G).

Timing of Witness

• Effective Sequence. Strong witnesses should be called in the beginning and at the end, interspersed with weak witnesses.
• Lay Before Expert Witnesses. Lay witnesses who establish facts that support expert opinions should be called first.
• Availability of Expert Witnesses. Experts may only be available at predetermined times, limiting when they can be scheduled. Sometimes, they will appear in recorded videos.
• Deposition Testimony. In civil cases, when individuals are unavailable to testify in person, their deposition transcript may be read or their deposition video shown. The advantage is that the testimony can be edited to provide concise and relevant evidence. The disadvantage is that this method is often not as interesting or persuasive as live testimony.
• Time of Day/Place in Case. The time of the day when witnesses testify and the place they testify in a multi-day trial or hearing may affect the impression they make on the fact finder. Important or complex evidence may be better received when the fact finder is more alert or interested in paying attention. The period before or after a lunch or recess may be less productive because the fact finder may be thinking about lunch, the need for a break, or going home.

Whatever order of witnesses is selected, the lawyer must be prepared to change that sequence. Flexibility will likely be needed because witnesses may be late or become unavailable on a scheduled day. And, the estimates made regarding the time needed to introduce evidence may be inaccurate, requiring the planned sequence of witnesses to be adjusted. The attorney may request a recess in the case, but it is unlikely that it would be granted because of other scheduling priorities.

Attorney Presentation

A. Practical Location

Many tribunals have established rules or practices that restrict the location and movement of the advocate in the court or hearing room during direct examination. Some require the attorney to stand behind or be near a lectern while questioning, permitting movement only a short distance on either side of the lectern, unless an exhibit is being introduced. Others require counsel to remain seated at the counsel table during questioning. Still others offer some freedom of movement, and the lawyer, if physically able, may choose to stand, sit or move about.

An attorney who is in a jurisdiction that restricts location and movement may ask permission to ask questions from a different position. Permission should be sought if there is a tactical advantage in conducting the examination the way the lawyer prefers. Such requests may be summarily denied or readily granted. Counsel can suggest why the witness will be better able to testify or how the fact finder will be better able to see and hear the evidence. The introduction of exhibits or the use of visual aids will allow the examiner to approach the witness.

The examiner should consider selecting a position that works best for the witness, fact finder, and reporter. The place from which the attorney conducts the direct examination should be a place that permits the fact finder to easily hear the witness and see exhibits and allows the reporter to hear and see what is said to ensure a complete and accurate record.

In jury trials, some direct examiners prefer to place the jury between the witness and the direct examiner. This placement encourages both the witness and the advocate to speak loud enough so that the jurors can hear easily, focuses the attention of the jury on the witness because counsel is out of their line of sight when they look at the witness, and encourages the jurors to move their heads periodically back and forth between the witness and the lawyer, keeping them more alert.

B. Approaching the Witness

Attorneys can approach the witness when exhibits need to be shown to the witness. The decision maker, especially if restrictive in permitting movement, may require counsel to ask for permission before approaching a witness. See § 3.5(D).

Example:

Examining Attorney:

Q: What did you do with the gold medal, Ms. Didrikson-Zaharias, when you picked it up?

A: I etched my initials on the back of it.

To the Court:

Your Honor, may I approach the witness with the exhibit that has been marked for identification as Exhibit No. 1932?

Judge:

Yes, you may.

Many judges do not require the attorney to ask for permission to approach the witness. Most arbitrators and ALJs presume that if the lawyer approaches the witness, it is for a good reason. Those that do require permission may only expect the request to be made the first time counsel approaches the witness. See § 3.5(D).

C. Procedural Preferences

Local and informal rules and idiosyncratic preferences by individual decision makers may affect how a direct examination proceeds. If unsure, counsel can ask the judge, arbitrator, or ALJ about specific procedures.

Structure of Direct

Direct examinations need to be organized in a manner that most effectively presents an interesting, persuasive, and credible story.

A. Beginning of Direct Exam

A common and effective way to begin a direct examination is to establish the background of the witness. Another way used by many direct examiners is to begin an examination with a few preliminary questions and promptly proceed to the relevant event and weave background information into the questioning as these supportive facts apply to the evidence. Background questions accomplish several examination goals. They:

• Relieve some of the initial anxiety and nervousness, putting a witness somewhat at ease. Questions regarding family, employment, and hobbies are relatively easy to answer.
• Build confidence in the witness to provide longer and more detailed answers as the examination proceeds.
• Help establish personality and credibility and humanize witnesses by reflecting the way they naturally talk.
• Identify similarities between the witness and the fact finder, especially jurors. Similarities can enhance credibility because the fact finder unconsciously or consciously may identify with witnesses, reinforcing their integrity and sincerity.
• Establish a foundation to support a witness statement or opinion in the case. Statements should be sought about the backgrounds or capabilities of witnesses that strengthen their ability to testify. For example, if a person testifies to detailed facts, there may be some prior work or other experiences the individual has had which favorably affect the ability of the witness to observe or remember detailed facts.

The extent to which an attorney can develop the background of a witness depends on the type of case, the relevance of the testimony to a legal issue in the case, the kind of decision maker, the number of reasonable questions allowable, and the tactical decision by the opposing lawyer to object to unnecessary questions. Some cases may focus on specific, limited issues to which the background of the witness is irrelevant. Some preliminary questions are not legally relevant to a case. For example, whether an eyewitness to an event has a family or is employed may be legally irrelevant to the issues in the case, but helpful to develop credibility.

Most decision makers allow a reasonable number of background questions, even though the questions may be technically irrelevant, as long as they provide useful information about the person or help establish credibility. The more important an individual is in a case, the more likely extensive background questions will be permitted. For example, a civil party or criminal defendant may offer more detailed background than other witnesses. Opposing counsel may object to inquiries that are too numerous or go beyond reasonable information. Objections may be overruled if the direct examiner can establish a link between the question and an issue in the case.

Personal background questions typically begin a direct examination, unless the case is an administrative hearing or a business arbitration where these questions may not be necessary. Valuable background questions with many witnesses may be more effectively asked at a later stage of the direct. For example, the hobbies of a crash victim may have more impact on damages when explained by the witness after that person has related the injuries suffered which prevent that individual from pursuing the hobbies. Answers to questions that relate to a specific issue should be delayed until the witness testifies regarding the issue.

Example:

In this example, the background of this person is directly applicable to the ability of the witness to identify a defendant in a robbery case.

Examining Lawyer:

Q: Then what happened?

A: He came right up to me and demanded all my money.

Q: What do you do for a living, Ms. Pritchett?

A: I’m a personal appearance consultant and life coach.

Q: How long have you been doing this?

A: Fifteen years.

Q: What are some of the things that you do on your job?

A: One of the most important things I do is to analyze the appearance of a person.

Q: Why?

A: In order to make the correct decisions about what’s best for a client.

Q: What have you done to help you with your job?

A: Actually, I study people’s faces. Sometimes I’m embarrassed because I get caught staring at people.

Q: When you were robbed, Gloria, what did you do?

A: I stared at the man so I’d be able to remember his face.

Q: Describe his facial features.

A: He had light brown hair, brown eyes, a bent nose, thin lips, a small triangular shaped chin, a jeweled nose ring, a black mole on his left cheek, and a scar on his right cheek.

B. Organizational Choices

The following are optional ways to construct a direct examination:

1. Chronology

The witness can describe the events in the order they occurred.

2. Elements of Claim or Defense

Testimony can be ordered to reflect the elements of a claim or defense. For example, in civil cases, a witness can first discuss the facts that establish liability and then explain the facts that support damages. In a criminal case, the witness can establish facts that show a conspiracy and then describe events that prove the criminal act.

3. Flashback

The witness can summarize an event and then describe it in detail. The direct examiner can ask the witness short narrative questions that provide an overview of an entire incident and then ask detailed questions that explain what happened step by step. These subsequent specific questions present additional details and are not repetitious.

Example:

Examining Lawyer:

Q: Ms. Daae, please tell us what you did at 8:00 p.m. on November 2.

A: I attended a play.

Q: What play?

A: Phantom of the Opera.

Q: What happened after the play?

A: A man came into the box where I was seated.

Q: What did you notice about the man?

A: He was wearing a mask.

Q: Then what happened?

A: He grabbed me and carried me away through a trap door in the stage.

Q: Where did he take you?

A: To the pit.

At this point the direct examiner can have the witness describe the incident in detail.

Q: I want to take you back to that night and have you tell us the details of what happened one step at a time. When did the play end?

A: Around 10:00 p.m.

Q: What is the very first thing you saw immediately after the play ended?

A: I saw. . . .

Proper Question Form

A witness may answer direct examination questions that are properly phrased but not those that violate the rules of evidence. The following analysis helps determine whether questions are proper as to their form.

• Does the question suggest and contain the answer? If so, it is a leading question. Fed. R. Evid. 611(c).
• Does the question call for a lengthy narrative response? If so, it may be overly broad and improper. Fed. R. Evid. 611.
• Is the question a multiple question? If so, it may result in an improper compound answer. Fed. R. Evid. 611.
• Is the question vague or ambiguous? If so, it may be confusing or unintelligible. Fed. R. Evid. 403.
• Is the question repetitious? If so, it may produce cumulative, unnecessary evidence. Fed. R. Evid. 403 & 611.
• Does the question contain misleading evidence? If so, it is improper. Fed. R. Evid. 403 & 611.

GenAI and LLM tools can be used to help identify objectionable questions. If that LLM-backed system includes the applicable rules of evidence and examples of objectionable questions, the GenAI tool can analyze questions in real-time, flagging those that may be improper. See § 1.10[E].

A. Leading Questions

A leading question is a question that suggests and contains the answer. Every question is leading to some extent in that it suggests a topic or a fact. Pure non-leading questions are: Where? Who? Why? When? How? Direct examinations would be confusing and unwieldly if only broad based, undirected questions were allowed such as “What might you do?” instead of “What is your job?” A direct examination question may suggest something happened, may refer to a topic, may ask whether someone spoke, and may propose a conclusion, as long as it does not contain the answer.

B. Permissible Leading Questions

The general rule that “leading questions are not permitted on direct examination” is a rule of limitation and not an absolute prohibition. Proper leading or specifically directive questions can:

• Help a witness testify by suggesting familiar topics.
• Speed up the presentation of information.
• Provide variety to the examination.
• Demonstrate honesty by bringing out negative information.
• Reveal the attorney’s knowledge of the evidence.
• Make the testimony more interesting and compelling.

Federal Rule of Evidence 611(c) and similar state rules permit leading questions when they are necessary to develop testimony. Rule 611(c) has been interpreted to allow leading questions that:

• Introduce preliminary matters.
• Reduce anxiety and help the witness become comfortable.
• Elicit non-controversial or undisputed facts.
• Explain inconsequential evidence.
• Suggest new topics.
• Act as a transition.
• Bring out negative information.
• Examine an adverse witness.
• Question a hostile witness.
• Lay the foundation for exhibits.
• Establish complex foundations.
• Assist a person who has difficulty communicating because of age or unfamiliarity with language.
• Refresh the recollection of an individual, or establish past recollection recorded (see § 7.10(B)).
• Ask a witness to disagree or agree with relevant statements made by another person.

Not all decision makers in all tribunals recognize these exceptions. Some will only permit leading questions in limited situations. Judges in bench trials, arbitrators, and administrative judges may be more inclined to permit leading questions because they believe it is a faster way to introduce evidence. Some of them will encourage advocates to lead witnesses, to save time. The advocate should resist this suggestion if the witness and not the attorney is the better source of the evidence.

The following examples illustrate permissible leading questions recognized by most decision makers in most cases:

1. Preliminary Matters

Example:

Examining Lawyer:

Q: Madame Solis, you served as Secretary of Labor?

A: I did.

Q: Were you the first Latina to have served in that position?

A: Yes. I was the first to serve in a presidential cabinet.

2. Witness Background

Example:

Examining Lawyer:

Q: On August the 5th, at noon, you were at Millennium Park?

A: Yes.

Q: Where had you been?

A: At work.

Q: Now, you work for the city, don’t you?

A: Yes.

Q: What do you do?

A: I am the mayor of one of the greatest cities in the world.

Q: Why were you at the Park Pavilion?

A: I was there to give a talk on “Historical and Hysterical Election Reforms” sponsored by the Humanities Festival.

3. Eliciting Non-Controversial or Undisputed Facts

Assume the example below involves a vehicular accident in which the issue is fault and not the identity of the driver.

Example:

Examining Lawyer:

Q: Mr. Joker, you were driving a vehicle owned by Bruce Wayne?

A: Oh, yes.

Q: It was a Batmobile, wasn’t it?

A: Yes, indeed.

4. Establishing Inconsequential Facts

Example:

Examining Lawyer:

Q: You were visiting the Great Wall of China, Ms. Buck?

A: Yes.

Q: So, much of your conversation was about the Wall?

A: Yes.

5. Suggesting a New Topic

Example:

Examining Lawyer:

Q: Dr. Ezekiel, what was your occupation?

A: I was the medical examiner for the county of Galilee.

Q: How long were you a medical examiner?

A: Fifteen years.

Q: What do you do now?

A: I’m retired.

Q: Before you retired you performed an autopsy on the body of Lazarus, didn’t you?

A: Eventually. Yes, I did.

6. As a Transition

Example:

Examining Lawyer:

Q: Mr. Enron, what did you do on Monday?

A: I happily destroyed documents in my office using my portable shredder.

Q: Now, on Tuesday you stayed home with your kids?

A: Yes.

Q: What did you do on Wednesday?

A: I was at the office cheerfully deleting electronic documents.

7. Bringing out Negative Information

Example:

Examining Lawyer:

Q: What did you see?

A: I saw a munchkin run right down the middle of the road.

Q: You don’t know who the munchkin was?

A: No, I don’t.

Q: Did you see where the munchkin went?

A: Yes.

Q: Where?

A: Straight down the yellow brick road.

Q: Out of sight?

A: Yes.

Q: And you have seen the munchkin since that day?

A: Never.

8. Examining an Adverse Witness

Occasionally, a witness who has information necessary to prove a critical element in a case is the opposing party or a person closely identified with the opposing party, such as an employee or agent. The theory behind direct examination is that witnesses called by one side cooperate with the direct examiner and give information candidly and truthfully, but this is not necessarily true with opposing witnesses. An adverse party is not usually willing to cooperate, and an adverse witness likely favors the other party. Both may attempt to provide answers that damage the direct examiner’s case. The advocate may examine an adverse party or witness using leading questions as if the witness were being cross-examined.

Example:

Examining Lawyer (To the Court):

Your Honor, may I call the defendant, Mr. Andretti, as an adverse witness?

Judge:

You may.

Examining Lawyer:

Q: You are a successful NASCAR and Formula 1 race car driver, aren’t you?

A: Yes I am.

Q: On April 17, you were riding in a new Aeromobile car, correct?

A: Yes.

Q: That auto is a self-driving vehicle?

A: Yes. It’s what is known as autonomous.

Q: It operates as a hovering transport with a top speed of 150 miles per hour?

A: It has those capabilities, yes.

Q: That transport collided with a vehicle guided by the plaintiff, Giselle Yashar, correct?

A: Yes.

Q: It was embarrassing for you to be in an accident?

A: Of course.

Q: So, that’s why you told the constabularies that plaintiff backed into the Aeromobile at a speed of 20 miles per hour?

A: I’m afraid so.

9. Questioning a Hostile Witness

An independent witness who demonstrates a reluctance to testify or who reveals hostility toward a party or otherwise becomes uncooperative may be a hostile witness. It is within the discretion of the judge, arbitrator, or ALJ to permit the direct examiner to examine a hostile witness using leading questions. It may be clear before testifying that the individual is hostile, or the person may become hostile during testimony. Counsel may timely request to treat the witness as hostile and ask leading questions.

Example:

Examining Lawyer (To the Court):

Your Honor, this witness is a hostile witness. She is angry with the police and my office for prosecuting her friend. While she initially said she would not testify about how much the defendant had to drink, she is now willing to do so but with much reluctance. I’m uncertain what she’ll say. I request the opportunity to use leading questions during the direct examination under the provisions of Rule 611(c).

Judge:

You may do so.

Examining Lawyer:

Q: Ms. Triffon, you are a sommelier friend of the defendant?

A: Yes.

Q: It’s fair to say you are a good friend?

A: I believe so.

Q: You’re angry with the police for arresting him for drunk driving?

A: Yeah. He was just being his usual self.

Q: You want to help the defendant?

A: If I can.

Q: You don’t want to be here to testify for the prosecution, do you?

A: Nope.

Q: You initially told the police you wouldn’t tell anybody about how much you saw him drink?

A: Maybe . . . yeah.

Q: It’s true that you saw the defendant drink an entire bottle of wine and then speed away in his pick-up truck?

A: Yes, that’s all true, but it was an exquisite 1991 California Meritage with extraordinary clarity and a wonderful bouquet with just a hint of jasmine infused berries. . . .

10. Foundation for Exhibits

Example:

Examining Lawyer:

Q: Mr. Noah, I have just handed you a photo that has been marked for identification as Exhibit 2. Do you recognize it?

A: Yes, I do.

Q: What is it?

A: It is a lovely picture of our miraculous Ark.

Q: How do you know?

A: Well, it looks just like we left it when we joyfully beached it on Mount Ararat.

Q: Is Exhibit 2, marked for identification, a fair and accurate representation of how your Ark looked after the flood?

A: Indeed, it is.

11. Establishing Complex Foundation

Example:

Examining Lawyer:

Q: As a laboratory analyst, Dr. Curie, based on your education, training, experience, and the testing of this substance, do you have an opinion to a reasonable degree of scientific certainty what this stuff is?

A: Yes.

Q: What is your opinion?

A: It is law school vending machine mystery food.

12. Examining a Witness Who Has a Difficult Time Communicating Because of Age or Disability

Example:

Examining Lawyer:

Q: How old are you, Gretel?

A: Nine.

Q: What happened to your older brother last summer?

A: He went looking for a house in the woods.

Q: Was he trying to find a newly patented smart home stove?

A: That’s what he told me he was doing.

Q: Did you follow him?

A: I followed him into the forest to a scary looking house.

Q: Did you go into the house?

A: I did.

Q: This may be difficult. . .What did you see?

A: I saw an old woman trying to put Hansel into an oven.

13. Refreshing Recollection

A witness may have a memory lapse on the stand. A previous statement or a leading question may help the witness recall the answer. It is not unusual for a witness under the stress of an examination to forget something and need help to remember something specific.

The examining lawyer may show a document or anything to the witness to refresh memory. The lawyer must first establish that the witness now has no memory of the answer about which the witness is being questioned. The witness may review the statement or item and then must set it aside before answering, since the answer must not be from the document itself but must be from actual refreshed memory.

The witness should not read from a document for two reasons. First, it is improper and objectionable. If the witness reads a prior statement, that statement is actually being introduced as past recollection recorded and not a present memory. Federal Rule of Evidence 803(5) requires a specific foundation for the introduction of a document as a previously recorded recollection. See § 4.16(D). In practice, the difference between refreshing recollection and past recollection recorded is often ignored and witnesses are frequently permitted to review their notes while testifying. Second, if the witness reads from a document, the witness becomes vulnerable to cross-examination questions that highlight that the witness has no independent recollection of what occurred and may not be believable.

Documents used to refresh recollection do not need to be marked, because they are not offered as evidence, unless the decision maker requires them to be marked. The cross-examining attorney has a right to see the statement used to refresh, and can use it during cross-examination. See Fed. R. Evid. 612. The opposing attorney may have it marked and introduced into evidence for impeachment or as an admission.

In appropriate cases and situations, witnesses may bring notes with them to help refresh recollection. Police officers, inspectors, custodians, and some experts often bring a report with them to the witness stand and use it to refresh their memory during testimony. The opposing lawyer may insist that the report be used properly. That is, the lawyer may either ask that the witness put the materials away and testify independently without reference to them or have the examining attorney lay the proper foundation for their admissibility.

Example:

Use of Leading Question:

Q: Mr. Chase, when you loaded up the car for your cross-country vacation, what did you pack?

A: Picnic gear, clothes, suitcases, Wally World map, Aunt Edna . . . oh, I think that’s it.

Q: Do you remember putting anything else in the trunk?

A: That’s all I can remember.

Q: Did you pack five sets of scuba gear and five pairs of snow skis?

A: How silly of me, of course.

Alternative Example:

Use of Document:

Q: Mr. Chase, do you recall putting anything else in the trunk?

A: That’s all I can remember. There may have been more.

Q: Is there anything that would help refresh your recollection as to what else you might have put in the trunk?

A: Yes, I had made a list of the trunk contents.

Q: I have just given you a list. Do you recognize it?

A: Yes, it’s my notes about the trunk contents.

Q: Read it to yourself please.

A: All right.

Q: Does reading that list refresh your recollection as to what else you put in your trunk?

A: Yes.

Q: May I have it back, please?

A: Sure (hands it over).

Q: Do you now remember what else you put in the trunk?

A: Yes.

Q: What?

A: Five sets of scuba equipment and five pairs of snow skis.

14. Asking a Witness to Disagree or Agree with a Statement Made by Another

Example:

Examining Lawyer:

Q: Ms. Jedrzejczyk, you heard your daughter testify that the noisy argument took place out on the patio deck, didn’t you?

A: Yes, I heard that.

Q: Is that what you recall about the argument?

A: No, it isn’t.

Q: Do you agree with your daughter where the argument occurred?

A: No, I don’t.

Q: Where did the argument take place?

A: The argument occurred in the UFC ring with Cyborg.

C. Narrative Questions

A narrative question may be proper or improper, depending upon the scope and timing of the question, the capability of the witness to answer, and the ability of counsel to control the witness. A narrative question is improper if:

• The witness would respond with a long, uncontrolled story, or
• The narrative response denies the opposing attorney the opportunity to anticipate objectionable evidence and the ability to make a timely objection, or
• The narrative question reduces the ability of the examining lawyer to control the direction or scope of the examination.

Decision makers have broad discretion in permitting or limiting the use of narrative questions. In determining whether to allow their use, the judge, arbitrator, or ALJ:

• Assesses the capabilities of the witness to properly testify and the abilities of the examiner to control the examination.
• Is likely to permit narrative questions asked by a skilled examining advocate or if the witness appears to be able to respond without rambling.
• Will allow narrative responses to establish background or foundation, or to complete the description of an event.
• Is unlikely to allow a witness to answer a narrative question if the witness may be unable to provide a concise response or tends to introduce objectionable testimony.
• Will not permit a narrative response if the witness is unprepared or counsel is insufficiently experienced to interrupt and control the witness who begins to ramble.

Specific forms of narrative questions are commonly asked during direct examinations. Narrative questions that are limited in scope or that act as transition questions are usually appropriate, such as “What happened next?” or “Then what happened?” A proper narrative question avoids allowing the witness to tell the entire story, but acts as a focused question directing the witness to continue telling part of the story.

Example:

Examining Lawyer:

Q: Senator, what happened in the voting booth on the second Tuesday in November?

A: I voted for Alfred E. Neuman.

Q: Then what happened?

A: I lost the election.

Q: Please explain how that changed your life.

D. Improper Question Forms

1. Vague or Ambiguous Questions

All questions must be reasonably clear and specific so that the witness knows what is being asked, the other side knows whether to object, and the fact finder can understand the testimony. It may happen that the attorney’s mind is thinking ahead and what is asked makes little sense, or that counsel uses the wrong words. Vague, ambiguous, confusing, unintelligible, and misleading questions must be avoided.

Example:

Examining Lawyer:

Q: Did you, subsequent to your verbal exchange with the prolific novelist, affix or otherwise impress your distinctive signature to an authentic testimonial publication report satisfying the statute of frauds?

A: Well . . . Huh?

Q: Let me rephrase the question. Did you sign the book agreement with Agatha Christie?

A: Oh! For sure, I signed it.

2. Repetitious Questions

Questions may be asked during direct examination to clarify prior responses, add descriptive details to a story, and emphasize testimony. An advocate is not permitted to gain unfair advantage by repeating favorable testimony. The questions need not be identical to be repetitious. The key is to avoid asking questions that sound repetitive or produce answers that are monotonous. A witness is permitted to describe in detail what happened.

Example:

Examining Lawyer:

Q: After he approached you, what happened to you and your purse, Ms. Goyard?

A: I held on to the strap of the purse, and he had hold of the other end pulling it away from me. I tried to pull it back from him, and he yanked hard pulling it out of my grasp.

Q: How did you try to pull it away from him?

A: I held my smart phone in my left hand, and my right hand gripped the purse strap. I tried to pull my right arm towards my body, but he was trying to yank the purse off my arm.

Q: How did he yank the purse from your arm?

A: He was pulling it real hard, as I tried holding onto it.

Q: How did he pull it away from you?

A: He pushed me away with one of his hands, and then grabbed the bottom of the purse with both hands, and I fell back.

The more crucial the evidence, the more likely multiple witnesses may testify regarding the details. When more than a few witnesses provide the same relevant information, it may become cumulative. While it is certainly permissible for witnesses to corroborate each other, it is within the discretion of the decision maker to place limits on the extent of the cumulative testimony. Marginal witnesses may be limited in scope and peripheral evidence may be restricted in duration.

3. Multiple Questions

Multiple or compound questions are difficult to understand and create a jumbled record. It is often unclear what part of the multiple question the witness answered. Compound questions should be withdrawn and rephrased.

Example:

Examining Lawyer:

Q: When did you wake up, and what did you see? Excuse me. I’ll withdraw the question and rephrase it. What day did you wake up, Mr. Van Winkle?

Question and Answer Techniques

The primary goal of the advocate is to establish a believable story told by a credible witness. Believability and sincerity can be established and enhanced through a detailed factual narrative. This section presents a variety of questioning techniques that can be utilized to produce persuasive and convincing direct examination testimony.

A. Portraying the Characters

Storytelling involves the description and depiction of the characters who bring the story to life. Witnesses are those characters in trials and hearings. Questions can establish who they are and how and why they are involved.

1. Putting a Witness at Ease

Easy to answer questions can be asked to help put the person at ease as well as establish that the witness is competent.

Example:

Examining Lawyer:

Q: What is your name?

A: Luke.

Q: How old are you, Luke?

A: I am going to be eight.

Q: When are you going to be eight?

A: When my birthday comes.

Q: Who are your Mom and Dad?

A: They’re over there.

Q: What is your Dad’s name?

A: Phil.

Q: And Mom’s name?

A: Claire.

Q: Do you have any brothers or sisters?

A: Haley and Alex.

Q: What do you like to do most of all?

A: Play with my laptop.

Q: What is your favorite computer game?

A: I love Lawyer Hunt.

2. Establish the Background of the Witness

Information about witnesses helps explain their relevant background.

Example:

Examining Lawyer:

Q: Mr. Sajak, what is your occupation?

A: I am the host of a television game show.

Q: What does that involve?

A: I dress smartly and have contestants spin a wheel and select letters.

Q: Is that it?

A: Pretty much.

Q: How did you get into that business?

A: When I finished college, I moved to California for the fun of it. I later auditioned for the job and got it.

Q: When did you move to California?

A: More than forty years ago.

Q: Where did you go to college?

A: The University of Linguistics.

Q: What did you get your degree in?

A: I received a degree in etymology.

3. Demonstrate Credibility

Life experiences help establish the credibility of a person. Information that establishes a connection between the experiences of a witness and important evidence should be established.

Example:

Examining Lawyer:

Q: Mr. Chan, were you asked to investigate an automobile accident in which April Woo was involved?

A: Yes, I was.

Q: What did you do to investigate this accident?

A: I immediately went out to the accident site and inspected Ms. Woo’s sports utility vehicle and the other SUV. I also photographed and video recorded the scene from many different vantage points.

Q: What else did you do?

A: I noticed skid marks on the street, used a laser to measure their length, and made a video recording of the marks. I also took close-up photos of both damaged vehicles.

Q: Anything else?

A: I used Google Earth to map the area and the accident site.

Q: Then what?

A: I composed a report on my observations including the photos and videos, all of which I provided the client.

Q: Describe the training that you have had in accident reconstruction and particularly in analyzing accident scenes.

A: I worked as a member of a highway patrol accident team for over 20 years until my retirement 8 years ago. Since then, I’ve had my own business, Fu Manchu Investigative Services. I’m board certified as an accident reconstructionist with the American Society of Accident Investigators.

Q: Can you estimate how many accident scenes you have investigated over the last twenty-eight years?

A: Yes.

Q: How are you able to do that?

A: When I started my business, I knew it would be important to be able to provide that information to show my experience in the field. I went back to the highway patrol office and went over all my reports through the use of the computer and storage files and was able to determine how many accidents I had investigated. Since I started my own business, I have kept careful electronic records.

Q: How many accident scenes have you investigated over the course of your professional career?

A: More than 1,810.

4. Display the Sincerity of the Witness

When witnesses are given the opportunity to talk about their lives, jobs, friends, and acquaintances, in their own words, they can demonstrate they are honest and sincere persons.

Example:

Examining Lawyer:

Q: Mr. Cassidy, as a bank robber, what kinds of things do you do?

A: I’m the guy that plans every robbery, buys the masks, feeds the horses, keeps track of the expenses, and maps an exit strategy.

Q: What details do you plan?

A: We must plan each robbery with great care. We need to know how many people are working in a bank and how many guards are on duty. We must determine how long we can be in a bank before the sheriff shows up. And, of course, we have to know when the payroll arrives at the bank.

Q: How often do you rob banks?

A: Quite regularly. In the winter we head south. In the summer we head north.

Q: Do you take any breaks between bank robberies?

A: We need to.

Q: How do you take these breaks?

A: Well, every robbery is a little bit different, and so are the breaks. We often take a weeklong break between banks, oftentimes longer, especially if we get chased.

Q: Where do you usually go?

A: To Hole-in-the-Wall.

Q: Are these breaks important?

A: Yes.

Q: Why?

A: There is some stress and strain in robbing banks and to relieve tension, Sundance, the boys, and I take regular breaks to relax and to help us keep our skills sharp.

5. Identify Similarities Between the Witness and the Fact Finder

It can be helpful to identify similarities between witnesses and a decision maker. In this example, the witness and fact finder have similar interests.

Example:

Examining Lawyer:

Q: Tell us your name?

A: Mr. Spock.

Q: Where do you live?

A: Live?

Q: Yes, where are you from?

A: I see. I am from the Planet Vulcan and that is where I make my home when I am not working.

Q: Where do you work?

A: I am assigned to the Starship Enterprise.

Q: And where is the Enterprise now?

A: In the United Federation of Planets spaceport.

Q: What is your assignment on the Enterprise?

A: I am the first officer.

Q: Do you have any time for hobbies?

A: Yes, I do.

Q: Tell us please what your hobbies are.

A: Well, I do like to travel. I enjoy camping. One of my favorite places is Yosemite. I like sports, especially playing ultimate flying discs. I enjoy reading, especially 21st century history.

B. Establishing Foundation

1. Establish Perception

Facts must be established to show that the witnesses saw or heard what they say they saw or heard.

Example:

Examining Lawyer:

Q: What happened next?

A: I saw this woman walk up to the movie ticket window where I was working and stand right in front of me.

Q: What were the lighting conditions like at that time?

A: There were bright lights on both sides of the ticket window, and there was a light outside above the ticket window.

Q: Describe the ticket window you were looking through when you saw the person standing in front of you.

A: It’s a clear plate glass window, about 2 feet wide and 3 feet high with a 6-inch opening to pass money and tickets.

Q: What condition was it in on that day?

A: It was clean, and there was nothing blocking my view.

Q: Describe the woman you saw, Ms. Grauman.

2. Enhance Foundation

Foundation questions should be asked that enhance the reliability and accuracy of the story told by the witness.

Example:

Examining Lawyer:

Q: Mr. Fife, where were you at 3:10 p.m. last April 23?

A: I was at the northeast corner of the intersection of Lexington and Grand Avenues in our city.

Q: What were you doing?

A: I was working as a crossing guard, watching traffic.

Q: What is the most important part of your job?

A: Keeping a careful watch for cars and children.

Q: What did you see?

A: I saw a collision between a VW van and a Harley Livewire.

Additional foundation questions further enhance the reliability and accuracy of the story told by the witness.

Example:

Examining Lawyer:

Q: Since high school, what further education have you had?

A: I graduated from the Mayberry Police Academy, with honors.

Q: Since graduation what has been your police experience?

A: I have been a Deputy here in town for 8 years with Sheriff Andy Taylor.

Q: Have you had any official assignments?

A: Yes, I’m the Guard in Charge of the Mount Airy Elementary School crossing.

Q: What are your responsibilities?

A: It’s my duty to make sure that all the children get across the street safely, and that means I must watch the traffic and the kids very carefully.

Q: Have you had any special training for this assignment?

A: Yes.

Q: What?

A: Well, I attended traffic training programs where I learned the most modern methods of school crossing techniques. And when the kids are in school, I go to the crossing to practice making traffic stop and go.

Q: Describe what you saw at the intersection of Lexington and Grand Avenues at 3:10 p.m. on April 23 last year.

3. Establish Foundation for Opinions

Before a witness can render an opinion, questions need to be asked to show that the person perceived events that support the conclusion.

Example:

Examining Lawyer:

Q: Were you in the room when John Greystoke attempted to sign the will?

A: I most certainly was.

Q: Did you see what he was doing before he signed the will?

A: Yes, I did.

Q: What was he doing?

A: He was chattering like a baboon, swinging from the chandelier, and yelling for Jane.

Q: How long had you known Mr. Greystoke?

A: About ten years.

Q: How often had you seen him?

A: Pretty much weekly over that time.

Q: Why so often?

A: I brought him fresh fruit most every week.

Q: Had you ever seen him swing from the chandelier before?

A: Too many times.

Q: How did he sign the will?

A: He first tried to write with his banana.

Q: Then what?

A: His butler gave him a pen and he made a “T” on the will.

Q: Do you have an opinion if Mr. Greystoke knew what he was doing when he initialed the will?

A: Yes.

Q: What is that opinion?

A: He had no idea what he was doing.

4. Develop Facts to Bolster Conclusions

It is critical to provide fact finders with evidence to support positions. The key is to establish facts that lead them to the correct conclusion.

Example:

Examining Lawyer:

Q: Ms. Payne, where were you when your laptop was taken from you?

A: It was noon, and I stopped in front of the restaurant entrance to wait for my friend.

Q: As you stood there, how far could you see?

A: I could see down the block.

Q: How far down the block could you see?

A: Well past the intersection, quite a distance.

Q: What else could you see down that block?

A: Store fronts, signs, parked cars, parking meters.

Q: Describe how your laptop case was taken.

A: I heard someone running up to me, and I turned and saw the defendant who tried to wrestle the case from my shoulder. I immediately grabbed the laptop and pulled the case toward my body, and he sort of came along with it.

Q: Then what did you see, Doris?

A: I saw his face. He was right there in front of me.

Q: How far away from you was his face?

A: About a foot and a half, maybe less.

These questions allow the fact finder to conclude that the victim got a very good look at the robber. If she could see far down the block ahead, she could very clearly see 18 inches away. These questions contrast with asking the witness: “Did you get a real good look at him?” That question requires the fact finder to focus on the credibility of the witness. The former questions lead fact finders to conclude on their own that the witness got a good look. They reach their conclusion based on the facts and not on the opinion of the witness. This tactic can be successful in enhancing witness believability.

C. Setting the Scene

Stories, plays, movies, and re-creations of actual events are placed in a setting that the audience can visualize. The same is true with a direct examination. The scene can be established initially during the trial or hearing so the case events make sense. Once that setting has been developed by preliminary witnesses, subsequent individuals can be placed at the scene to confirm the accuracy of what has been established and to describe the action from their perspective. The extent to which a person establishes the scene depends on the order of witnesses, the importance of the witness, and the relationship to other witnesses. The direct examiner must determine what can be left to the imagination of the fact finder and what must be carefully described verbally or through exhibits.

1. View of the Witness

The direct examiner should select and describe the view which is the most comprehensible, compelling, and convincing for the fact finder. A setting may generally be described from two perspectives: from the view of the witness or from an overview. The first has the witness act as an active storyteller and uses phrases “I saw” and “I could see,” and is more complete by including details. The second has the person act like a passive geographer and describe a broad scene that can be more difficult to picture. The ideal goal is for everyone to see and experience the actual scene from the same viewpoint and involvement as the witness. Specific action questions and step by step directions help individuals portray scenes and engage fact finders as if they were there when it all happened.

Example:

Examining Lawyer:

Q: Where were you going?

A: I was on my way home, to Tara.

Q: As you were walking up the cobblestone drive, what did you see directly in front of you?

A: I saw large, old oak trees and magnolia trees lining both sides of the path.

Q: As you were looking around, tell us what was to your right.

A: I could see a neighboring house with white columns and ivy growing on the brick walls.

Q: And what did you see to your left as you were walking?

A: I saw the burned-out shell of a barn that was destroyed by an explosion and fire.

Q: As you continued walking toward your home, please describe what you saw, Ms. O’Hara.

This technique draws the fact finder into the scene. It is as if the fact finder is walking along with the witness and is there at the scene when the event unfolds. Further questions can enhance this notion that the fact finder is not being told what happened but is experiencing what occurred.

2. Detail

The determination of what to describe and what to leave to the imagination of the fact finders should not be left to chance. The fact finders should be told the details necessary to accurately understand the scene as counsel wants them to understand it and to satisfy their reasonable curiosity. Specific captivating facts need to be elicited that complete the enthralling portions of the compelling story. That’s the hopeful goal.

Example:

Examining Lawyer:

Q: What kind of neighborhood was it, Ms. Valdez?

A: It was mostly a residential neighborhood.

Q: Describe the buildings at the intersection.

A: There were large old wooden homes on two corners, an empty lot on one, and a modern brick building on the other corner. There was a coffee shop, the Coffee Cantata, on the lower floor of that building and three floors of condominiums, where Aria Liesgen lived on the top floor.

Fact finders may interpret this response differently. What does “residential neighborhood” mean to a twenty-year-old college student juror, a sixty-five-year-old judge, or an architect arbitrator? What do “large old wooden homes” mean to an administrative law judge who lives in a rural area, an inner-city juror who grew up in a five-room flat, or a judge who grew up in a suburban house? Is the “coffee shop” one of a chain of stores or an independently owned store located in the condo building? How accurately will the fact finders picture the scene in their minds compared to the real scene? The details necessary for the fact finder to get an accurate depiction can be included in the examination when relevant and necessary to prove facts. Exhibits and visual aids can be used to augment testimony.

D. Describing the Action

A witness can describe events as they happened. The direct examiner should ask questions in a structured way so it’s easy for the witness to explain events enabling the fact finders to clearly visualize what occurred. A chronological order can be simple to follow. Most people describe an event the way it happened and may expect a story to be told the same way.

1. Detailed Description of a Person

Example:

Examining Lawyer:

Q: After you came downstairs and went into the living room, what did you see?

A: I saw a man standing by the fireplace.

Q: How were you able to see him?

A: The table light and all the Christmas tree lights were on.

Q: What was he wearing?

A: A red outfit.

Q: Please be more specific.

A: He was dressed in fur, from his head to his foot.

Q: Were his clothes clean or dirty?

A: They were all tarnished with ashes and soot.

Q: Describe his general build for us.

A: He was chubby and plump.

Q: What did his face look like?

A: His eyes twinkled. He had dimples and appeared merry.

Q: Go on.

A: His cheeks were like roses, his nose like a cherry.

Q: What was his mouth like?

A: He had a droll little mouth drawn up like a bow, and he had a beard on his chin that was as white as the snow.

Q: Did he have anything in his mouth?

A: Yes.

Q: What?

A: Well, he had a stump of a pipe held tight in his teeth.

Q: Was he carrying anything?

A: Yes.

Q: What?

A: He had a bundle of toys that he had flung on his back.

Q: What did he look like?

A: He looked like a peddler just opening his pack.

Q: What else can you remember about this man?

A: He had a broad face and a round little belly that shook when he laughed, like a bowl full of jelly.

Q: Is there anything else that he did besides laugh?

A: Yes, he winked at me and twisted his head.

Q: What did you feel when he did that?

A: I felt that I had nothing to dread.

2. Detailed Description of an Event (Criminal Case)

A detailed examination is important to provide sufficient information so the fact finder has a clear understanding of what happened. An effective story can be told through a short question/answer format.

Example:

Examining Lawyer:

Q: What is your name please?

A: Endeavor.

Q: Where do you work?

A: For the City of Oxford.

Q: What do you do for the City?

A: I am a police officer.

Q: How long have you been a police officer?

A: Three years.

Q: Were you working on May 1st this year?

A: Yes.

Q: At 11:15 p.m. that evening were you on duty?

A: Yes, I was.

Q: Where were you?

A: At the corner of Stone Canyon Way and Mockingbird Lane.

Q: Were you on foot or in a car?

A: In a police car.

Q: What did you see?

A: I saw a bright red Tesla Model T.

Q: Which way was it traveling?

A: North to south on Mockingbird Lane.

Q: What did you notice about the car?

A: It was traveling down the center of the road and appeared to be moving very fast.

Q: What did you do?

A: I began to follow the car.

Q: What was the car doing?

A: It was weaving wildly from side to side. Twice it jumped up over the curbs and bounced back down on the road.

Q: Were you able to determine how fast the car was traveling?

A: Yes.

Q: How?

A: I sped up and got behind the car, and I was able to match my speed with the car for about a block. I stayed about four car lengths behind because of its weaving from side to side. My speedometer indicated 60 miles per hour.

Q: Do you know what the posted speed limit is on Mockingbird Lane where you were?

A: Yes, I do.

Q: What is it?

A: Thirty miles per hour.

Q: What did you do?

A: I turned on my overhead lights and siren and the in-car video camera.

Q: What happened?

A: The car kept going on the left side of the street for a block, and it finally stopped on the wrong side of the street.

Q: What did you do?

A: I called in the car license plate and then walked up to the driver.

Q: What did you see when you approached the car?

A: I saw an elderly man sitting behind the wheel. He was wearing a black suit coat, black shirt, black bow tie.

Q: What else did you notice?

A: When the man rolled down the window of his car, I could smell a strong odor of alcohol coming from inside the car.

Q: What did you do next?

A: I asked him to get out of the car and he did. I asked if he had a driver’s license.

Q: Did he give you a license?

A: No.

Q: Did he say anything to you?

A: Yes, he did.

Q: What?

A: He said that he didn’t have a license, never had one, and didn’t need one.

Q: How did he speak?

A: His speech was very slurred. It was hard to understand.

Q: Could you see his face?

A: Yes.

Q: How?

A: I had my flashlight shining near his face and we were standing directly under a streetlight.

Q: Describe his face for us.

A: His face was flushed and reddish. He appeared to be sweating, and his eyes were bloodshot, glassy, and watery.

Q: Could you smell his breath at that time?

A: Yes.

Q: How close were you when you could smell his breath?

A: About two feet.

Q: What could you smell?

A: I could smell the strong odor of an alcoholic beverage.

Q: What did you do next?

A: I asked him to take what are called “field sobriety tests.”

Q: Why do you ask a person to take field sobriety tests?

A: To determine a person’s ability to coordinate movements, follow simple directions, and perform balance tasks.

Q: What is the first test that you asked him to perform?

A: I asked him to stand erect with his feet together and arms outstretched. I told him to close his eyes and touch the tip of his nose with his right index finger and then with his left.

Q: How did he do when he tried to touch his nose?

A: He started to fall over and I caught him and stood him up. However, he didn’t open his eyes. He then touched the middle of his forehead with his index finger and slid it down along his nose to the tip.

Q: How did he perform with his left hand?

A: He touched his lips and his finger slipped down his chin.

Q: Did you ask him to perform another test?

A: Yes, I did.

Q: What?

A: I asked him to say the alphabet.

Q: How did he do?

A: He did fine until he got to the letter “K” and he then said “K” eight or nine times and finally said, “That’s all, eh.”

Q: Did you ask him to take any more tests?

A: Yes.

Q: What test?

A: To walk a straight line, one foot in front of the other.

Q: Did he take that test?

A: No.

Q: Did he tell you why?

A: Yes.

Q: What did he say?

A: He said, “I’m as drunk as a skunk. You’ve got me now.”

Q: How did you respond? I asked him to blow into a breathalyzer. And he said: “I ain’t taking no more tests.”

Q: Were these tests recorded on the in-car camera?

A: Yes, everything.

Q: What did you do then?

A: I placed him under arrest for driving while under the influence and for reckless and dangerous driving. I then drove him to the jail and again asked him to take a breath test.

Q: How did he respond?

A: He refused to take a breath test. I then offered him a chance to provide a urine or blood sample.

Q: Did he give you any samples?

A: No.

Q: What did you do then?

A: I left him at the jail with the county sheriff and went back on patrol.

Q: Did he ever tell you his name?

A: Yes, he said his name was Bacchus.

Q: Just Bacchus?

A: That’s right. He said that was the only name he had.

Q: In the years on the police force have you arrested people for driving under the influence of alcohol?

A: Yes, hundreds of times.

Q: Do you drink alcoholic beverages?

A: Yes, I do, on occasion.

Q: Have you seen other people drink?

A: Yes.

Q: Have you seen some of these people come under the influence of alcohol?

A: Yes, I have.

Q: Based upon your own experience, your observations of others, and your observations of Mr. Bacchus, do you have an opinion whether he was under the influence of alcohol the night that you arrested him?

A: Yes, I do.

Q: And what is that opinion?

A: He was very much under the influence of alcohol.

Q: Officer, did you bring the in-car video recording to show the jury?

A: I did.

3. Detailed Description of an Event (Civil Case)

Example:

Examining Lawyer:

Q: What did you do on that Thanksgiving holiday?

A: My daughter, Molly, and I were going to be alone that day, and we were invited to go to the country for an organic dinner at the home of some work friends.

Q: What is their name?

A: Mr. and Mrs. Baskerville.

Q: How old was Molly at the time?

A: She was six.

Q: What time did you arrive?

A: We were invited for dinner at five p.m., and we arrived a few minutes after that as we got lost on the way.

Q: Had you ever been to the Baskerville home before?

A: No, I had not.

Q: What did you do when you got there?

A: Their farm is a long way off the county road. We drove up the driveway by the barn and parked in front of the house.

Q: Where is the barn located in relation to the house?

A: It is across the driveway.

Q: How far is the barn from the house?

A: About 100 feet.

Q: How far from the house did you park?

A: About 30 feet. There is a fence around the front yard, and we parked right by the gate.

Q: What did you do?

A: I got out of the car and waited for Molly.

Q: What happened?

A: As Molly was walking in front of the car, I saw something out of the corner of my eye from the direction of the barn.

Q: What did you do?

A: I turned my head to see what it was.

Q: What did you see?

A: An enormous brown dog sprinting towards Molly.

Q: Did it make any noise?

A: No, it was running really fast and wasn’t barking.

Q: How big was this animal?

A: It was massive. It had a gigantic head and a huge mouth. I could see its large, sharp teeth.

Q: What did you do?

A: I yelled and ran towards Molly.

Q: What happened?

A: I grabbed her and started to pick her up. The animal leapt at Molly viciously biting her on the back of her neck.

Q: Go on.

A: We fell hard to the ground, and the dog was gnawing and mauling us. We were both screaming and crying for help. Molly was bleeding. . .there was blood…

Q: What was the next thing that happened?

A: I heard a woman shouting.

Q: What did she say?

A: I heard something like, “Down Hound! Back off! Stop that!”

Q: What did the hound do?

A: It let go of us and sat down, barking, and snarling at us.

Q: Did you see who the woman was?

A: Yes, Ms. Baskerville.

Q: What did the hound look like?

A: It was a huge filthy beast, with long, shaggy, matted hair covered with dirt. It smelled just awful. Its head was enormous with big yellow eyes. It was growling, drooling, and quivering as it sat there.

Q: What happened next?

A: Ms. Baskerville took us inside the house and tried to stop Molly’s bleeding while Mr. Baskerville called an ambulance.

Q: Did she say anything to you?

A: She apologized and said the “darn dog too often attacked people” and they “should have locked the dog in the barn.”

Q: Had anyone ever said anything to you about that attacking animal before you came to the house that day?

A: Never! I didn’t even know that they had a hound.

E. Detailing Conversations

The foundation needed to admit a relevant conversation is fairly easy when the conversation occurs face-to-face and the witness can identify the person making the statement. Foundation is more difficult with phone conversations, as the witness has to be able to identify the voice in order to establish that the conversation relates to a person and the case.

Example (Prior Familiarity with Voice):

Examining Lawyer:

Q: Did you investigate the collapse of the ski lift gondola?

A: Yes, I did.

Q: What did you do?

A: I called Anika Eriksson, the owner of the resort, on the phone.

Q: Had you ever spoken to Anika Eriksson before?

A: Yes, several times.

Q: Did you recognize her voice when you called her?

A: Yes.

Q: How?

A: I recognized the sound of her voice and her accent.

Q: Did she identify herself to you?

A: Yes.

Q: How?

A: When she answered the phone she said, “Allo, dis is Anika Eriksson speking.”

Q: Then what did she say?

A: She said, “I sure vish I’d told Stein to fix da dern cable car.”

Example (Subsequent Identification of a Voice):

Examining Lawyer:

Q: What did you do on the fifth of January?

A: I asked SIRI on my cell phone to call the JDML agency from my contact list to talk about my hosting the variety show.

Q: Did someone answer the call?

A: Yes.

Q: Did you know who it was?

A: I wasn’t sure.

Q: Did you recognize the voice?

A: Not at first.

Q: What did he say?

A: The person told a joke.

Q: Then what happened?

A: I laughed and said: “You haven’t changed!”

Q: Why did you say that?

A: I recognized the very distinctive voice.

Q: How so?

A: From his talk show, which I watched with delight many times.

Q: Have you heard his voice since that conversation?

A: Yes.

Q: Where?

A: In the courtroom today when he testified for the plaintiff.

Q: How else can you recognize his voice?

A: It’s quite unique, with an idiosyncratic sound.

Q: What is the name of the man whose voice you heard?

A: Jay Leno.

Q: What did he tell you about the show when you phoned him?

A: That it was about time a female comedian became the host.

Example (Extrinsic Sources of Identification):

Examining Lawyer:

Q: Had you ever spoken to Liz Lemon before March 3, last year?

A: No.

Q: Have you spoken to her since?

A: No.

Q: On March 3, what did you do?

A: First, I went online and looked up the phone number of the Second City Comedy Club.

Q: Then what?

A: I called the number and someone answered, “Comedy Club.”

Q: What did you do?

A: I asked to speak to Ms. Lemon.

Q: What happened?

A: First, music played, then the phone rang, and a woman answered saying, “What character do you want to talk to?”

Q: What did you say?

A: Liz Lemon.

Q: What did she say?

A: She’s talking to you.

Q: Then what happened?

A: I asked her whatever happened to Leslie Knope.

Q: What did she say?

A: She’s working at Parks and Recreation.

F. Asking Persuasive Questions

The direct examiner should ask understandable questions that develop an interesting story using the following techniques.

1. Use Simple Words

Words that reflect the language of fact finders should be used. Simple, everyday, easy to understand conversational words are generally more effective, especially for jurors. Complex, multi-syllable words or legalese sound snobbish and can be confusing. The ordinary language used in the community is most effective, excluding vulgar or crude language, unless such language is relevant to the case. More sophisticated language can be used with professional decision makers such as a judge, arbitrator, or ALJ.

Example:

Examining Lawyer:

Simple:

Q: Before taking the test, where were you?

Complex:

Q: Prior to your beginning starting to take the exam, where were you situated in relation to the front of the room?

Simple:

Q: Did you see something?

Complex:

Q: Did you have occasion to observe anything material at all?

Simple:

Q: Then what happened?

Complex:

Q: Did anything unusual occur then that you can recall now?

Simple:

Q: What happened on December 14?

Complex:

Q: Calling your attention to the date of December 14, what, if anything, occurred on that date?

2. Utilize Impact Words

Selected impact words can influence the effect of testimony. Impact words are graphic nouns and adjectives that vividly describe an image, scene or event depicted by a witness. See § 1.5(H).

Example:

Examining Lawyer:

Neutral Word:

Q: What was the *speed *of the bicycle?

Impact Words:

Q: How slowly were you riding the e-bike?

Q: How fast was the racing bike moving?

Neutral Word:

Q: What was the distance between you and the wall?

Impact Words:

Q: How close were you to the brick wall?

Q: How far away were you?

Neutral Word:

Q: How much liquid was in the glass?

Impact Words:

Q: How full of water was the glass?

Q: How empty was the glass?

3. Explain Terms

The attorney should make sure the witness explains terms that have specialized or multiple meanings.

Example:

Examining Lawyer:

Q: What was the man like?

A: He was big and menacing.

Q: Describe what you mean by big.

A: He wore a full metal suit, that looked like armor.

Q: And describe what you mean by menacing.

A: His face was covered by a mask with slits showing his eyes, and he had a lighted arc reactor on his chest.

Q: Did you recognize him?

A: Of course.

Q: Who was he?

A: Iron Man.

4. Clarify Answers

The direct examiner needs to ask follow-up questions that clarify unclear or ambiguous answers. This can be difficult because the advocate knows the case better than the fact finder and may assume that a fact is obvious and need not be discussed. The testimony should be descriptive, assumptions should not be carelessly made, and necessary details should be presented. The advocate must view the answers from the perspective of a fact finder who is hearing the evidence for the first time.

Example:

Examining Lawyer:

Q: Ms. Jennings, what were you creating?

A: Instructional materials for plugboards in the ENIAC Project.

Q: What are plugboard instruction materials?

A: These are flat boards with holes that connect wires which are plugged into electrical circuits that run computer programs.

Q: What is ENIAC?

A: It’s the name for the Electronic Numerical Integrator and Computer.

Q: What was its function?

A: It was the first programmable electronic digital computer.

Q: Please explain what that means.

5. Listen Carefully

The advocate must listen carefully to every response. Witnesses may misunderstand a question, make mistakes, or presume that counsel wants an answer not called for by the question. The examining attorney may be preoccupied with other thoughts, such as the next question or problems that may arise. Or the attorney may expect certain answers and not pay close attention when the witness says something different.

When a witness makes a mistake or does not answer the question precisely, the lawyer needs to intervene. There will be occasions when the witness has made a factual error, or is rambling, or has added improper comments and counsel must interrupt. Controlling the witness demonstrates that the attorney seeks only proper, responsive answers, bolstering the credibility of the attorney and the witness.

Example:

Examining Lawyer:

Q: What did you see, Dr. Seuss, after you took the medication?

A: (At a very rapid pace.) I took the Comphlexana pill, as prescribed, and then laid down. I began envisioning these bizarre looking cartoon creatures with outlandish features and various colors of rainbow hair who were yelling at me. . .I may have been dreaming…or having a nightmare…

Q: I have to stop you. We need to take it slower. I’m going to ask simple questions that you can easily answer. Okay?

A: Oh, yes.

Q: After you took the pill and laid down, what did you experience?

A: I saw a number of strange looking creatures. . .

Q: Please describe the first one you saw.

A: It was Thing One, who appeared out of nowhere. . . .

Q: What was the next thing you saw?

A: Thing Two, who had blue hair and a red outfit.

6. Introduce Exhibits

Exhibits constitute evidence, enhance the testimony of a witness, and assist the fact finder in understanding the case. Chapter 8 focuses on the proper and effective use of a large variety of exhibits.

G. Developing Factual Details

Effective advocacy storytelling involves the development of sufficiently compelling and convincing evidence. The following techniques provide alternative ways to establish detailed persuasive facts.

1. Asking Short Questions

Short questions make it easier for the lawyer to control testimony and to direct a witness to provide suitable detail. Long, drawn out questions can be confusing, delay the introduction of testimony, and waste time.

Example:

Examining Lawyer:

Q: Ms. Granger, what were you doing at that Hogwarts event?

A: I was the scorekeeper at the quidditch match.

Q: Where were you?

A: I was sitting at mid-field at the scorer’s table, about four meters back from the sideline.

Q: Who was playing?

A: Gryffindor and Slytherin.

Q: What did you see?

A: I saw a student wearing a Gryffindor scarf jump out of the bleachers and run up and punch the captain of the Slytherin team on the jaw.

2. Using Narrative and Specific Questions

The following examples demonstrate three comparative approaches to the development of a story: a story elicited with a narrative question, with specific questions, and with a combination of the two.

a. Narrative Example

Example:

Examining Lawyer:

Q: Tell us what you remember about that March afternoon.

A: When the kids got home from school and had their snack, I sent them out to play. They were wearing light jackets and boots. The golf course across the street has a pond. The kids ice skate there all winter. After some time passed, Maggie returned screaming they fell through the ice. I ran to the pond. I first got Bart on the shore and then went back into the icy water to get Lisa. I grabbed her and pulled her out. I saw she was blue and yelled for help.

b. Specific Question Example

Example:

Examining Lawyer:

Q: What is the first thing that happened when your kids came home from school on February 2?

A: They had a snack—their favorite mac ’n’ cheese.

Q: After the snack, what did they do?

A: They put on their play clothes and jackets to go outside.

Q: What kind of jackets?

A: Light jackets, because it was mild.

Q: Where do the children play?

A: They like to play on the golf course because there are hills for sliding and a pond they skate on.

Q: Where is the golf course?

A: Right across the road.

Q: On that day, did you say anything about the pond?

A: Yes.

Q: What?

A: I told them to stay off the ice because it was unsafe.

Q: After the children got dressed, what did they do?

A: They went outside.

Q: What happened next?

A: Some time passed, and then I heard Maggie rush into the house screaming that Bart and Lisa fell through the ice.

Q: What did you do?

A: I ran as fast as I could to the pond.

Q: What did you see when you got there?

A: I saw there was open water and floating ice.

c. Combination Narrative and Specific Example

An effective direct examination employs a mix of questions that call for short, narrative responses combined with concise, directed questions that elicit appropriate details. This mix of questions guides the witness in telling the story, permits the attorney to control the direction of the story, provides clarifying details, and holds the interest of the fact finder.

Example:

Examining Lawyer:

Q: What did you first do when you got to the pond?

A: I tried to compose myself. I first saw that Bart was floundering in the icy water. I took my sweater off and held one its arms and swung it out to him so that he could grab the other arm. He did, and I pulled him out. Then I saw Lisa.

Q: Where was she?

A: She was floating with her head in the water. I was so scared.

Q: What did you do?

A: I flipped off my shoes and jumped in the open water and swam over to her as fast as I could and lifted her head.

Q: What happened next?

A: I grabbed her by the shoulders and quickly pulled her over the ice to shore. She had turned blue, and I screamed for help.

3. Developing a Detailed Sequence

A story may be told in various stages. The witness may first provide a short summary of what happened and subsequently explain the details of the events. This format allows the witness to highlight and emphasize the critical facts. The advocate can structure the questions from the general to the specific and follow up with further relevant questions.

Example:

Examining Lawyer:

Q: What did you do after touring the condo, Ms. Sejima?

A: I decided to buy it! I loved the architectural style, and was excited but also anxious. I drove to the agent’s office, where Marwa al-Sabouni gave me some papers to sign.

Q: How long a time were you in her office?

A: About half an hour.

Q: What was the first thing that happened there?

A: She said I would really enjoy living in that neighborhood, and handed me some papers she had prepared.

Q: What did she say when she handed you the papers?

A: She showed me where to sign, and I said I had some concerns.

Q: I want you to answer my next questions carefully. What did you ask her?

A: I asked about the nearest elementary school to the house.

Q: How did she respond?

A: She said it was four blocks away.

Q: Why did you ask her about a school?

A: I told her it was important to us to have a school within walking distance.

Q: What was the next question you asked her?

A: I asked about neighboring parks, and then a nearby mall for. . . .

Q: Before you go on, what did she tell you about neighborhood parks?

4. Using Double Direct

“Double direct” is a technique in which part of a previous answer is used as a preface to the next question. This tactic emphasizes critical information so the fact finder hears the information more than once, and should be reserved for important evidence.

Example:

Examining Lawyer:

Q: When you finished studying what did you do, Ms. Owens?

A: I went out to jog around the stadium.

Q: Which way did you go to jog to the stadium?

A: I headed down Arapahoe and ran toward the track.

Q: As you jogged to the track, what time was it?

A: Around 6:00 p.m.

Q: What happened next?

A: I jogged towards the stadium. When I got about 100 feet from the stadium, I passed a large hedge on my right. I heard branches scraping and twigs snapping.

Q: When you heard those noises, what did you do?

A: I ran faster towards the stadium, and I felt someone running up behind me.

Q: As you were jogging faster, what happened next?

A: I heard running steps and then my arm was grabbed from behind and was twisted hard behind my back.

Q: As your arm was being twisted, what happened to you?

A: I lost my balance and fell onto the edge of the track.

Q: As you fell onto the track, what happened?

A: This man attacked me.

Q: How did this man attack you?

A: He put a knife to my throat.

Q: As the man put a knife to your throat, what did you see?

A: I saw a violet rose tattoo on his neck.

Q: The tattoo on his neck, please describe it.

A: It was the size of a small rose. The petals were blue violet.

Q: How well could you see the tattoo rose?

A: The stadium lights lit up the track and his neck tattoo.

5. Completing a Sequence

Sometimes during an examination, the direct examiner realizes that something has been left out of an earlier part of the examination. Important information may need to be timely added to the event.

Example:

Examining Lawyer:

Q: What were you doing in the computer room, Ms. Skully?

A: I was trying my best to hack into the S.H.I.E.L.D. password protected website.

Q: Were you successful?

A: Not at first, I needed the password.

Q: How did you plan to discover it?

A: From the Clairvoyant.

Q: I didn’t ask earlier what time you arrived at the computer room. When did you get there?

A: About 4:30 p.m.

Q: And when did you discover the password?

A: It took a while. Around 5 p.m.

6. Volunteering Weaknesses

Problems with witnesses or flaws in their testimony may need to be addressed during direct to minimize adverse reactions and to enhance the integrity of the examination. Negative information that is first exposed on cross-examination can be more detrimental. Unfavorable information that is voluntarily revealed demonstrates that neither the attorney nor the witness has anything to hide, reducing the harmful effects. Further, the witness can attempt to explain away a problem with as little embarrassment or concern as possible.

The decision to admit weaknesses can be difficult. If damaging facts cannot be excluded by the rules of evidence, and the cross-examiner is expected to reveal a significant weakness, then it may well be wise to address the issue on direct. It’s possible to deal with a weakness on redirect in the hope that the cross-examiner will not bring up the matter or that the explanation will be so good that the cross will appear foolish. This, however, is a defensive position to assume and can backfire.

Another option regarding a weakness is to avoid it altogether on direct or re-direct. The advocacy notion is that devoting any time to it only highlights the problem more, and it’s better to ignore it. This tactic prevents more time being unnecessarily spent on the matter. And, if damaging information cannot be effectively muted or refuted, this may be a viable approach.

Example:

Examining Lawyer:

Q: What color were the fireworks?

A: Red, white, and blue.

Q: Did you talk with Lt. Columbo the day of the accident at the hospital?

A: Yes.

Q: Did he write up a statement?

A: Yea, on some scrap of paper.

Q: Did that statement say the firework colors were fuchsia, vanilla, and cobalt?

A: Yes.

Q: Did you sign that statement?

A: Yeah.

Q: Please explain why you did that.

A: When he was taking the statement, I was in a lot of pain from my burns. I didn’t read it. I just signed it to get rid of him. He was always around asking lots of silly annoying questions.

Redirect Examination

The direct examiner may conduct a redirect examination after the completion of the cross-examination. Redirect provides the advocate with the opportunity to have the witness clarify, explain or correct points raised on cross-examination and to cover material raised by the cross that was not dealt with on direct.

With proper preparation, counsel can predict the areas of cross-examination and may cover those areas on direct examination and limit the effectiveness of a cross. In addition, a redirect examination can be planned in advance so that the anticipated areas of vulnerability can be clarified or explained. Important testimony and significant issues need to be addressed on direct, and a direct examiner should not usually reserve vital evidence for redirect.

A. Limited Scope

The general rule is that redirect examination may only cover material raised by the cross-examination. Redirect should not be used to go over the same information covered by the direct examination or raise new areas not covered by either the direct or cross-examinations. If this occurs, an objection will likely be sustained that the redirect examination is repetitious or beyond the scope of the cross. Some decision makers permit a broad scope for redirect, while others are more restrictive.

Example:

Cross-Examination of an Eyewitness:

Q: Is it fair to say, Ms. Sybil, that you have seen someone on the street you thought you recognized only to realize the person was a complete stranger?

A: Yes, that has happened to me.

Q: It was embarrassing to have that happen, wasn’t it?

A: Well, yes it was.

Q: I have no further questions.

Redirect Examination of the Same Witness:

Q: Ms. Sybil, when you thought you recognized a stranger, did that person stand two feet in front of you, face-to-face and demand all your money as the defendant did in this case?

A: Never. The only time I’ve been robbed is by that defendant.

B. Foregoing Redirect

A well-prepared case and a good direct examination may make a redirect examination unnecessary. In making the decision whether to conduct redirect, the following factors should be considered:

• The witness may not have been prepared for certain redirect questions and should not be asked surprise questions.
• The witness may not understand the point the attorney wants to make and misspeak, compounding the mistake.
• Continuing with redirect examination may bore or bother the fact finder and add nothing worthwhile to the evidence.
• Closing argument may be a better time to emphasize the important parts of the case, and not redirect.
• Redirect examination gives the opponent the opportunity for a recross-examination.

C. Question Format

The same rules of evidence apply to redirect and direct examination, with restrictions applying to the use of leading questions. There may be a greater latitude allowed for leading questions to be asked during redirect to permit the advocate to focus on matters within the scope of the cross-examination and to speed the redirect to completion. Since the witness has testified on both direct and cross-examination, the redirect examiner may refer to previous answers and lead the witness to a specific topic through the use of this prior testimony. The opposing attorney might not object because the cross consisted of leading questions, and leading questions on redirect may not sound improper.

D. Correcting Testimony

Redirect examination may be used to correct, amend, revise or change testimony if the witness has misstated or forgotten information during the cross-examination. See Fed. R. Evid. 612.

Example (Redirect Examination):

Examining Lawyer:

Q: During the cross-examination you told us that you rode The Top Thrill Dragster Roller Coaster three times on July 5.

A: Oh my, did I say July 5? I didn’t mean that. It was July 4th.

Q: How do you know that?

A: Because we were there for the holiday parade that day.

E. Reserving Evidence

Direct examination evidence should not usually be withheld for later presentation during redirect examination, as explained earlier. An attorney who reserves important evidence runs the risk of not being able to present it because the opposing lawyer may not cross-examine at all or may not cover that particular area, rendering some topics beyond the scope of the cross. It can be dangerous to run the risk of delaying the introduction of critical evidence during redirect for the tactical purpose of having the last word or outwitting the opponent.

There are some occasions where delaying the introduction of information is worth this risk. If the direct examination is structured in such a way so that the cross-examiner is very likely to cross-examine on the topic and damage will not be done to the case if the evidence is not dealt with, evidence may be reserved for redirect.

Example:

During the direct examination, the main eyewitness to a robbery has identified the defendant as the robber and has said that she looked carefully at the defendant for about a minute during the course of the robbery. The witness testified that when she was seen staring at the defendant, he told her to knock it off, but she kept staring. He then struck her, knocked her down, and kicked her.

During her direct and cross examinations, she testified that she was scared, that the robbery happened quickly, and that she was concerned for other people in the store. She testified she was angry a lot of money was being stolen. She also testified that she had never seen the robber before the robbery and the only other time was in court during the trial. She testified further that she had seen photos of the defendant before the trial, but did not view any line-up identification.

Redirect Examination:

Q: Ms. Van Brittan-Brown, we have asked you several details about the robbery, but one of the questions that neither I nor the other attorney has asked you is this: Why did you keep staring at the robber even after you were told to stop?

A: I never wanted to forget the face of the man who stole from us. I hoped that I could help catch him someday.

Q: I have no further questions.

If a topic was not covered either on the direct or the cross-examination, some courts will permit the direct examiner to reopen the direct examination to permit the witness to be recalled to cover the new topic. The decision to permit the reopening of a direct examination of a witness falls within the discretion of the decision maker.

Direct Examination Situations

This section presents several direct examinations of specific types of witnesses involving special considerations.

A. Former Testimony

In civil trials, the testimony of a witness may be introduced through former testimony given at a deposition or another trial or hearing. This testimony is either read to or by the fact finder, or if video recorded, shown during the case. Former testimony is admissible in lieu of live testimony if the previous testimony was given under oath, the witness is unavailable to testify, and the party against whom the testimony is offered had the opportunity to previously examine the witness, or if another party with substantially the same interest or similar motive had that opportunity. See Fed. R. Evid. 804(b)(1)(B).

The most common use of former testimony in a civil case involves the introduction of deposition testimony because the witness is unavailable. Many civil cases include this type of evidence. Depositions are often taken to preserve testimony when the offering attorney anticipates that witnesses will be unavailable at the trial, arbitration, or hearing. The deposition of these witnesses is taken and their testimony is commonly video recorded or stenographically preserved. It is very common that the testimony of expert witnesses, who are unavailable because of their professional schedules, is presented in this way.

The procedure to introduce the former testimony is similar to the introduction of live testimony. The video recorded testimony can be shown to the fact finder. If there is only a transcript available, a judge, arbitrator, or ALJ can read the testimony. In jury trials, the transcript can be read to the jury, usually with the attorney reading the questions and another person sitting in the witness stand supplying the answers. The offering attorney should select a person to read the answers who looks credible, is interesting to listen to, and sounds persuasive to gain as much impact as possible from the reading.

Prior to the showing of the video or reading of the transcript, the opposing attorney may object to questions or answers contained in the former testimony. The decision maker rules on each of the objections and, if sustained, the inadmissible question or answer is deleted. If a deposition transcript is read, the portions of the transcript ruled inadmissible are not read. If the video recording is used, the portions ruled to be inadmissible are not shown to the fact finder.

There are a number of technical ways this can be done. If evidentiary rulings are made a reasonable time before the recording is shown, an edited copy of the original recording can be made and that revised version shown. Otherwise, the recording can be advanced to eliminate the inadmissible portions, or the monitor turned off, or the sound muted while the recording continues to play. In jury cases, neither the written deposition transcript nor a recording of the deposition usually goes with the jury to the jury room for deliberations. This is to avoid the jurors giving recorded evidence more weight than oral evidence from live witnesses.

Example (Deposition Transcript):

Examining Attorney:

Your Honor, Paul Winchell, an eyewitness, is unavailable to testify. Mr. Winchell testified at a deposition. Both opposing counsel and I were present and examined him. We now request permission to read his edited deposition transcript to the jury.

Opposing Counsel:

We have reviewed those parts of his former testimony that the plaintiff plans to introduce, and we have no objection to the introduction of that evidence. After counsel for plaintiff completes the direct examination of Mr. Winchell, we will introduce our cross-examination questions and answers.

Judge:

Members of the Jury, counsel for plaintiff will now present the testimony of a witness who is unavailable to be here today. You are to consider the testimony of this witness with the same degree of attention and consideration that you give the testimony of any other witness. Counsel, you may proceed.

Counsel:

I will read the questions, your Honor, and a colleague from my firm, Jerry Mahoney, will read the answers.

Judge:

Mr. Mahoney, you may come forward and sit in the witness stand. Counsel, begin when ready.

Example (Video Deposition):

Examining Attorney:

Your Honor, Madonna, an expert witness in this music copyright case, is unavailable to testify. We previously recorded a video deposition of her testimony regarding chord progressions and all counsel were present. Your Honor has reviewed this recording and ruled on defendant’s objections. Those questions and answers you ruled inadmissible have been edited from this recording. We now request permission to show the recorded testimony and songs.

Judge:

You may proceed.

In criminal cases, former testimony is usually inadmissible because the defendant has a constitutional right to be confronted by live witnesses and to cross-examine them. Former testimony in a criminal case may be admissible if the defendant agrees to its admissibility or when there is a retrial of the same defendant.

B. Past Recollection Recorded

When a witness has no present recollection and efforts to refresh recollection have failed or would fail, the introduction of past recollection recorded may be used to present evidence on direct examination. Federal Rule of Evidence 803(5) provides an exception to the requirement that a witness testify verbally to a present memory. See § 4.16(D).

The examining attorney will typically have prepared a witness for the use of past recollection recorded. It should not come as a surprise when a witness has no current recollection of a prior event. Statements introduced as past recollection recorded need to be marked and offered into evidence because they constitute the substantive evidence substituted for oral testimony. The foundation for the introduction of the recorded information includes:

• The witness has no present, independent recollection;
• The individual at one time personally knew the relevant information;
• The information was written, composed, or recorded by the witness or at the direction of the witness;
• The writing, digital version, or recording was created or adopted when it was fresh in the memory of the person;
• The writing, composition, or recording accurately contains the information; and
• The witness authenticates the exhibit.

Some witnesses (e.g., doctors, experts, police, investigators, inspectors) may have to rely upon prior statements and reports to assist them during testimony. They are unlikely to recall details from among many similar cases. In routine actions involving such testimony, the full foundation for past recollection recorded may not be required in order to save time and move the case along. An opposing attorney may not be satisfied with this approach and can object to the lack of proper foundation.

Example:

Examining Attorney:

Q: What do you do for a living?

A: I’m a state highway trooper.

Q: How long have you been a state highway trooper?

A: Fifteen years.

Q: What are your primary duties?

A: To enforce highway traffic laws and to assist with highway accident scenes.

Q: Do you know how many tickets you give out each year?

A: Approximately.

Q: How many?

A: Between 700 to 800 a year.

Q: Do you remember the details of all the accident scenes you have investigated?

A: Not all.

Q: Do you remember the details of all the traffic tickets that you have written?

A: Not really.

Q: What is your procedure when you give a ticket?

A: After I give a ticket, I immediately write a report on the electronic ticket form describing all the important detail.

Q: Do you recall giving a ticket to the defendant in this case on June 1, last year?

A: Yes, I remember giving her a ticket.

Q: Do you remember the details of the incident?

A: Not completely.

Q: What do you remember?

A: I recall it was a careless driving violation.

Q: Do you remember any other details?

A: Not for certain.

Q: How come?

A: Because I see so many careless driving incidents, I can’t accurately and completely remember all the details.

To the Court:

Your Honor, may I approach the witness?

Judge:

Yes you may.

Examining Attorney:

Q: Trooper Estrada, I hand you Exhibit No. 1. What is it?

A: It is printed duplicate copy of the ticket and report I was speaking about.

Q: Do you recognize it?

A: Yes I do.

Q: How?

A: I recognize the form, my notations, my trooper number, and the name of the defendant with the date and time.

Q: Does reading this document, Exhibit No. 1, help refresh your recollection as to the details of the incident?

A: No, not really.

Q: Do you have any recollection of the details of that incident as you sit here today?

A: Some but not all.

Q: At the time that you composed this report, did you remember the details of the incident?

A: Yes.

Q: When you composed it, did you include the true and correct facts of what you had observed?

A: Yes.

Q: Would you have signed it if it had not been a true and complete version of what you observed?

A: No, I would not have.

To the Court:

Your Honor, I offer Exhibit No. 1 as past recollection recorded.

Judge:

Any objections Counsel?

Opposing Counsel:

No objections.

Judge:

It is received.

Examining Attorney:

At this time, Trooper Estrada, please read what you wrote:

A: “I was proceeding on routine patrol on my CHP cycle when I observed the subject vehicle, a stunning twin turbo sapphire blue Porsche cabriolet sporting the requisite spoiler, go zooming by me on the left-hand shoulder with tremendous velocity.”

Q: Very interesting. Continue.

C. Witnesses with Communication Issues

A child or an adult may require special consideration as a direct examination witness. The decision maker must determine if the witness is competent to testify. A questionably competent witness may be the only person who can testify in a case, such as in a child abuse or neglect and dependency case. Federal Rule of Evidence 611(c) permits leading questions to assist this witness in communicating. The concern is that the more the attorney asks leading questions, the less competent the witness will appear to be and the less persuasive the testimony becomes.

A witness who has communication issues must be made to feel at ease in the court or hearing room. The preparation may require that the witness be brought to the room, rehearse testifying, and allowed to spend sufficient time in the room to become comfortable with an unfamiliar and potentially frightening place. A mix of simple and easy to understand non-leading questions assists the witness in testifying, and helps counsel develop critical testimony without the extensive use of leading questions.

D. Character Evidence

Character evidence is evidence of a trait or characteristic of a person offered to prove that the person acted in conformity with such character. The evidence rules of almost all jurisdictions are consistent with the common law doctrine that character evidence is not admissible to prove that an individual acted in conformity with the individual’s character on a specific occasion. Evidence of wrongs, bad acts, or crimes is generally inadmissible to prove that a party is a bad person or possesses a bad character. For example, evidence that a party has a trait for taking risks to prove that the party was negligent in a climbing accident is inadmissible.

Further, evidence of good character, good deeds, or an exemplary life is likewise not admissible to prove that a party is a good person or possesses a good character. For example, proof in a fraud case that a defendant is frugal is inadmissible to prove that the defendant would not have been greedy. Character evidence may be relevant, but the unfair prejudice and confusion of the issues resulting from the character evidence outweighs its probative value. See § 4.9(B). There are some exceptions.

1. Civil Cases

In a civil case, character evidence is usually inadmissible to prove that the person acted in conformity on a particular occasion, but may be admissible in the following instances:

• Evidence of the character of a person or a pertinent trait may be admissible to prove motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident.
• Evidence relating to the character for untruthfulness may be offered against the person testifying.
• Evidence of truthful character is admissible after the character of a witness for untruthfulness has been attacked.
• If character is an issue or an element of liability or damages, evidence is admissible on that issue. Civil cases in which character is an issue include defamation reputation cases.

2. Criminal Cases

In criminal cases, character evidence is admissible when relevant:

• An accused may offer evidence of a pertinent personal trait. The defendant who claims self-defense in an assault case may offer evidence regarding a reputation for peacefulness.
• The prosecution may offer character evidence to rebut a pertinent trait proffered by the accused. In a self-defense case, the prosecutor can offer evidence of the defendant’s reputation for violence.
• The accused may offer evidence of a pertinent trait of the character of a victim and the prosecution may offer evidence in rebuttal.
• The prosecution may offer evidence of a character trait of peacefulness of the victim in a homicide case to rebut evidence that the victim was the aggressor.
• Evidence relating to the character for untruthfulness may be offered against the person testifying.
• Evidence of the truthful character of a witness is admissible after the witness has been attacked for untruthfulness.
• Character evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
• Character evidence that may be proper may be inadmissible as unfairly prejudicial. See § 4.9(B)(1).

3. Introduction of Character Evidence

There are three ways in which character evidence may be introduced during direct examination of a witness:

A. Opinion testimony: A witness may testify to a personal opinion about the character of a person if a foundation is established regarding what the witness knows or has observed about the person over time.

“I have known the defendant for 15 years personally and professionally as a mobile app developer, and I consider her to have an excellent reputation for honesty in her life and work.”

B. Reputation testimony: A witness can testify to the general reputation of a person through a foundation establishing what the witness has heard expressed about that person in the defined community. Reputation is the general community consensus about an individual.

“I have lived in this community for 15 years, and I have heard that the defendant’s reputation for honesty is excellent.”

C. Specific instances of good conduct: A witness may testify to firsthand knowledge about the reputation of a person.

“The defendant has been a Marriage Encounter counselor, a Red Cross volunteer, and is currently a member of the Honest-To-Goodness Club.”

In all cases, character evidence is admissible by reputation testimony and opinion testimony. Federal Rule of Evidence 803(21) and similar state rules make such testimony admissible hearsay. Testimony of specific instances of conduct is not admissible to prove character on direct examination. Specific instances may be more convincing, but such specific evidence also has the potential to create undue prejudice, confuse the issues, and consume unnecessary time. Reputation and opinion testimony are less convincing, less prejudicial, and take less time.

Where character evidence has been admitted on direct examination, specific instances of misconduct may be explored during cross-examination. A witness who testifies on direct that a party has good character may be cross-examined regarding knowledge about specific instances of bad character about that person. This line of inquiry may show that the witness may not have known about these instances, or ought not to be believed.

In cases in which a character trait of a person is an essential element of the case, proof of the trait may be made by specific instances of conduct. If a character trait is a direct issue in a case, then specific instances of good conduct may be introduced on direct examination to prove such an issue. Specific instances of bad conduct may be raised on cross-examination to disprove the issue, and specific instances of bad conduct may be introduced on direct examination through a witness testifying on behalf of the opposing party to further disprove the character established. All questions regarding specific instances of good conduct or bad conduct must be asked in good faith and must be based on facts. Advocates cannot suggest such instances exist through innuendo or ask unsubstantiated questions.

Example (Direct Examination):

Examining Attorney:

Q: How long have you lived in Washington?

A: 10 years.

Q: What do you do now?

A: I’m a consultant with Woman’s World.

Q: Before you were a consultant, what did you do?

A: I was a senator.

Q: How long were you a senator?

A: Six years.

Q: Why did you quit being a senator?

A: I was unluckily defeated in an election, after a recount.

Q: Do you know Congressman Russo?

A: Yes.

Q: How long have you known him?

A: Ten years.

Q: Have you ever socialized with him?

A: Yes.

Q: How often?

A: Numerous times over the last decade.

Q: Do you know other people in the Washington area who have socialized with Congressman Russo?

A: Yes.

Q: How many?

A: Hundreds.

Q: Tell us some of the people you know who have socialized with the Congressman.

A: Other senators, representatives, employees of the House and Senate, and other consultants like myself.

Q: Have you ever talked to these people about his drug habits?

A: Yes.

Q: How often?

A: Frequently.

Q: Have you ever seen the Congressman taking drugs?

A: Yes.

Q: How do you know he was taking drugs?

A: He said he was taking opioids, and has done so a lot. He regularly had uncontrollable cravings, nausea, sweating, and slurred speech.

Q: Do you know him to be known by any nickname?

A: Oh, yeah.

Q: What was he called?

A: Congressman Drugster.

Q: Based on your own observations and your discussions with others, do you know the reputation of Congressman Russo for temperance and abstinence in the community of Washington?

A: Yes, I do.

Q: What is that opinion?

A: His reputation is that he is a very decent person when he is not repeatedly sedated or frequently high.

E. Habit Evidence

Evidence of a particular habit of a person or the routine practice of an organization is admissible to prove that a person or organization acted in conformity with that habit on a particular occasion. If the evidence of an otherwise relevant habit is unfairly prejudicial, an objection is proper and will be sustained. See § 4.9(B)(2).

Federal Rule of Evidence 406 does not define habit. Habit is generally classified as a regular response to a repeated specific situation. Definitions may be found in treatises, statutes, case law, and rules. It is within the discretion of the presiding decision maker to determine if the specific conduct has been repeated enough to establish a true habit.

Improper Direct Examination

This section describes improper uses of direct examination that are unethical and grounds for an objection, mistrial, new trial or hearing.

A. False Testimony

The knowing use of fraudulent, false, or perjured testimony is prohibited. Attorneys have a duty to prevent the misrepresentation of testimony. If the client in a civil case insists on testifying falsely, the attorney must inform the tribunal of the fraud in some manner. Disclosure may occur by making a record of the fact that the client is taking the stand against the advice of counsel or by telling the decision maker about the perjury.

If a client in a criminal case insists on presenting false testimony, the defense lawyer has the same duty but may be limited by constitutional considerations in determining how or if the perjury may be revealed. A criminal defense lawyer may have to allow the defendant to testify but may not ask the defendant any questions or use the false testimony as a part of summation. If counsel knows that a non-client witness will offer perjured testimony, the witness may not be called.

In both civil and criminal cases, an attorney may request to withdraw from the case, but the request may be denied. Denial of the request to withdraw usually occurs when the trial or hearing is well underway, and the withdrawal will cause unfair delay that may cause prejudice to the opponent or to the administration of justice.

B. Soliciting Inadmissible Responses

It is improper for an advocate to solicit inadmissible responses. For example, it is highly improper in a lawnmower accident case for a plaintiff’s counsel to ask, “Did you ever take photos of that riding lawnmower before the repairs were made?” anticipating the witness will respond with, “No, but the defendant’s insurance company did.” A direct examiner must comply with the exclusionary rules of evidence and cannot attempt to prompt an inadmissible response from a witness, even with a question that is not objectionable.

A direct examiner who attempts to contravene the rules of evidence commits misconduct which may result in a mistrial or a reversal. Further, the integrity of the attorney will be severely damaged, and the decision maker may conclude the attorney is untrustworthy. Ultimately, the attorney may be reported to the governing professional responsibility or lawyer licensing board.

C. Inadvertent Witness Misconduct

The inadvertent blurting out of highly prejudicial inadmissible evidence by a witness can result in an admonition or even a mistrial or reversal. The examining lawyer needs to control the witness. This can be achieved by a preparation session in which the witness is advised of the dangers of volunteering information and in not responding to the questions.

Some witnesses disregard such advice and want the decision maker to know certain information, which is excluded by the rules of evidence. For example, a witness may want to disclose unfavorable rumors or harmful gossip the witness heard about an adverse party, which is inadmissible hearsay. The direct examiner must explain to the witness what information is inadmissible and the impropriety of disclosing it.

D. Disruptions

Allowing a client or witness to disrupt a case may bring disciplinary action against the advocate. Attorneys cannot not stand mute as their clients misbehave. Not only may the lawyer be sanctioned, but a client or witness can be cited for contempt as well.

E. Confusing Identification

The deliberate substitution of someone other than a party at the trial is improper. An attorney must disclose to the court the name of the client that the attorney represents. In a case in which identification is an issue, it may be unethical for a lawyer to seat someone other than the client at counsel table for the purpose of eliciting an erroneous identification or to test an eyewitness identification. In some cases, full disclosure of the tactic to a judge and opposing counsel beforehand may permit its use.

Completion of Direct Examination

At the end of a direct examination, the advocate can quickly review the prepared notes and anticipated testimony to ascertain whether anything else needs to be covered before concluding the examination. It’s also wise for counsel to check the exhibit list to make sure that all relevant exhibits have been admitted into evidence. Re-direct can provide an opportunity to ask what may have been missed.

After all direct examinations have been fully completed, counsel has an opportunity to assess whether any areas were overlooked that may be covered or supplemented by additional evidence that can be offered by other witnesses or documents. When all is completed, the party can advise the decision maker there is no further evidence and the party “rests.” Summation will provide the final occasion to summarize, explain, and highlight the points made on direct examination.

INTERACTIVE ADVOCACY

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