Do now: To the best of your knowledge, what do you think is the purpose of the direct

examination.

Objectives:SWBAT

Understand how to formulate a direct examination

Understand the purpose of a direct examination and what role it plays in trial procedure.

Understand the law of direct examinationImplement questioning techniquesDistinguish between “Good” and “Bad”

QuestionsPrepare a Direct examination of a witnesss

Direct ExaminationCases are won on direct examination.It is the heart of your case It is the opportunity to present the substance

of your case.

Direct Examination should A. Introduce Undisputed FactsB. Enhance the Likelihood of Disputed FactsC. Lay Foundations for the Introduction of

ExhibitionsD. Reflect upon the Credibility of WitnessesE. Hold the Attention of the Trier of Fact.

The Law of Direct Examination A. Competence of Witness B. Non-leading Questions

One that contains or suggests its own answers. Question: Of course, you crossed the street didn’t you? (Objection: Leading)

C. NO narratives Witnesses may not testify in narrative form Example: non-narrative: What did you do next? Example: narrative: Tell us everything that you did that day (Objection: Narrative)

D. The Non-Opinion Rule Witnesses testify to sensory observations: see, hear, smell, touch, taste or do. Only experts can draw conclusions (Objections: Witness is not an expert)

E. Refreshing Recollection-May use document if establish that witness is exhausted-Show document; ask if “remember now” remove document.-document may not be offered as a substitute for witnesses memory

PlanningThree fundamental aspects:CONTENT, ORGANIZATION and

TECHNIQUEPrincipal tool is the knowledge of the

witness.

CONTENTWhat to Include: Facts necessary to establish your

theoryReasonsExplanationsCredibility

What to Exclude: ClutterUnprovablesImplausiblesImpeachablesDoor Openers

Organization and StructureKeys: Translate the witness’s memory of events into a

coherent and persuasive story. Primacy and Recency:

People tend to remember best those things they hear frist and last

AppositionThe placement or juxtaposition of important facts in a

manner that emphasizes there relationshipDuration

- The amount of time that you spend on a various aspects of your direct examination

Repetition- Important points should be repeated.

Guidelines for organizationStart strong and End Strong: Overall ExaminationStart strong and End Strong: Sub ExaminationUse Topical OrganizationDo Not Interrupt the ActionGive Separate Attention to the DetailsTry not to Scatter Circumstantial EvidenceDefensive Direct

Get bad out first to lesson the effectAffirmation Before RefutationGet to the PointEnd with a Clincher*Ignore any rule when necessary

Questioning Technique

Use short, open questions Question: Where did you go that day? Question: What happened after that Question: Tell us who was there Question: What else happened Question: Describe where you were.

Questioning TechniqueUse Directive and Transitional Questions:

*Question: Were you in pain after the accident?(having directed the witness’s attention, you can

now revert to your short, open questions)-Question: Please describe how you felt.-Question: Where else did you hurt?-Question: How has this affected your life?

Questioning TechniqueReinitiate Primacy – the doctrine of primacy tells us

that the trier of fact will pay maximum attention to the witness at the very beginning of the testimony.Use General Headline Questions

Good: Were you involved in an accident? Bad: What happened as you were driving on?

Explain Where you are GoingUse Body MovementUse Incremental Questions:

Bad: What did he look like? Good: Were your able to get a good look at the person?

How tall was he? How heavy was he? What was his complexion?

Questioning TechniqueReflect time Distance and Intensity

Question: When did the truck become visibleQuestion: What was the first action you took?Question: How much time did that take?

Repeat Important PointsUse Visual AidsAvoid Negative, Lawyerly and Complex Questions

Question: Did you not then go to the telephone?Question: At what point in time did you alight from your

vehicle?Question: What was your subsequent activity, conduct,

or response with regard to the negotiation of an offer and acceptance?

Essential Questions:1. What is the purpose of Direct

Examinations?2. What is the Law of Direct Examination?3. What 3 elements are essential to the

planning of a direct examination?What should the content include?How should the direct examination be

organized?What are the guidelines for questioning

techniques?

Activity:Students will prepare a direct examination of a witness

with a partner.For each witnesses one student will serve as the lawyer

and the other the witness.Remember to implements the skills, techniques and

guidelines outlined in this presentation in your direct.*Always begin by introducing the witness

A. State your name:B. What is your occupation:Then get into your direct remembering the purpose is to

elicit from your witness the information that is essential to proving the theme/theory of your case

Sample:Question: State your name.Answer: Ms BaserQuestion: What is your occupation:Answer: I am a teacher.Question: Where do you work?Answer: I work at BTHS.Question: Is that a specialized high school?(OBJECTION: Leading)Question: What kind of a school is BTHS?