DIRECTEXAMINATION

EDWARD SNOWAUSA/EDOK

BIG CONCEPTS• Looping

• Detail

• Demonstration

• Transitions

• One Fact

• Speak Plainly

• Rule of Threes

What is an effective direct examination?

The attorney asks simple, focused questions that . . .

help a witness testify in a manner that is clear, credible, memorable, and persuasive.

Rules for Effective Direct Examinations

1. Argue on direct examination2. Prepare the argument of the case3. Ask focused questions that follow a logical

train of thought4. Eliminate self-inflicted distractions

Rule 1: Argue on Direct Examination

Effective direct examination is an argumentMake the facts argue, not the witnesses

Rule 2: Prepare the Argument of the Case

A well organized case consists of • a concise statement of the case, and• cohesive arguments that (a) support the

statement, and (b) that are consistentwith all the facts.

Prepare the Argument

Identify 3 or 4 of the best facts that you can rely on no matter what happens

Develop simple arguments based on those facts

Use those arguments to develop a simple theory

Following this structure forces you to simplify your case into a few chunks of information you can convey to a jury

Rule 3: Ask Focused Questions that Follow a Logical Train of Thought

Focused questions use the tools of form, focus, and memory

Logical trains of thought involve chronology, subject matter, recency/primacy, or a combination of all

Form

Ask non-leading questions. FRE 611c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:(1) on cross-examination; and(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

WHAT IS A LEADING QUESTION?• A LEADING QUESTION IS A QUESTION THAT

SUGGESTS THE ANSWER(S).

Form

One fact per question

Focus

Narrow Questions

Choice

Tell me whether or not . . .

Tools for focusing the witness (keeping witness on the path

Narrow Questions (One fact)

Where did you go when the robber ran out of the bank?

How long did it take you to get to the front door?

Where was the robber when you got to the front door?

Did the robber get in the driver side or passenger side of the car? (leading?) What, if any, side did the robber?

Choice

Did the robber have anything in his hand? (what, if anything?)

What was it?

Was it a big gun or a small gun?

Was the gun dark or light?

Tell Me Whether or Not . . .

Tell me whether or not you heard the robber say anything to the teller.

Tell me whether or not you saw the robber get in the car.

Memory Tools

LoopingDetail

DemonstrationTransitions

LoopingCould you see the robber’s hands when he said, “Give me your money?”

Where were his hands when he said, “Give me the money?”

What was he doing with his hands at his waist?

Was he holding the gun with his left hand or his right hand?

Looping (con’t)• After he put the gun in your face, what

happened? (BAD)• And after he put the gun in your face and you

gave him the money, what happened? (GOOD)

Detail

How close were you to the robber when he pointed the gun at you?

Where on your body did he point the gun?

How close to your face was the gun?

Demonstration

• What did the robber do with the gun?• What did the robber say when he held the gun to the

teller’s head?• Are you able to demonstrate how the robber held the gun

to the teller and told her he would kill her?• With the court’s permission, may the witness stand and

demonstrate how the robber held the gun to the teller and yelled at her?

First TELL, Then SHOW

Advice when asking Memory Questions: Give Witnesses Elbow Room

In all fairness, can you remember word for word what Mr. Smith said to you six months ago?

But do you remember the substance of the conversation? In substance, what did he say to you?

Transitions(Think Headings)

Now I'd like to turn your attention to . . .

I'd like to go back to . . .

Now I want to ask you about . . .

Transitions Combine the tool of transitions with the rule of asking focused questions that follow a logical train of thought

QuestionQuestionQuestionQuestion

TransitionQuestionQuestionQuestionQuestion

QuestionQuestionQuestionQuestion

TransitionTransition

Transitions (con’t)• As a general rule, I like to have only about 5

questions followed by a transition. I like to build right up to a dramatic point in my case, then transition back to other details, then transition back to the dramatic point.

Handle the Difficult Witness/Bad Facts

Characteristics of Difficult Witnesses

Bad Character/Motive to Lie Uncooperative Nervous / Forgetful

How to Handle the Difficult Witness

It’s easy: follow the rule—asked focused questions that follow a logical train of thought.

And be mindful to ask one fact per question.

FRONT THE BAD.LIES, CONVICTIONS, DEALS, MOTIVES, PRIOR INCONSISTENT STATEMENTS.

IF WE FRONT EM, IT HURTS LESS

Rule 4: Eliminate These Distractions

Reading questionsIf you look at your notes, look up before speaking

Checking off each question askedBeing glued to the lectern (DISTRICT SPECIFIC)Using cop talk/uncommon style (talk like a juror)Uhm, okay, and . . . (False Starts)

WRITTEN QUESTIONS• This is an issue for you to decide. – What works best for you?• Does it look scripted?• Bullet points v. notes appears more conversational and

forces you to listen to the witness.

Witness Preparation

Do Not Rehearse

Instead, review the facts with the witness

Practice, Practice, Practice

Where: in the grand jury, PH, Bench trials.

Don’t get sloppy in GJ, PH, Bench trials just because you can.

DEMO

• Questions?