Making Your Case Through Effective Direct Examination
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TitleMaking Your Case Through Effective
Direct Examination Paul K. Sun, Jr. & Kelly Margolis
Dagger
© Ellis & Winters LLP 2018
© Ellis & Winters LLP 2015
What is direct examination?
The examination of a witness you have called in the defense case.
The witness could be your client, an expert, a law enforcement
officer, a percipient witness, etc.
© Ellis & Winters LLP 2015
Right to Present Witnesses “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and
to have the Assistance of Counsel for his defence.” U.S. Const.
amend VI.
Remember to request trial subpoenas per Fed. R. Crim. P. 17, and do
so early if you are asking the marshals to serve.
© Ellis & Winters LLP 2015
Direct Examination—Overview
A. Mechanics of Direct Examination B. Preparing Yourself for Direct
Examination C. Preparing Your Witness for Direct
Examination D. Conducting a Direct Examination
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MECHANICS OF DIRECT EXAMINATION
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Procedural Considerations—Rule 611 Fed. R. Evid. 611—Mode and Order
of Examining Witnesses and Presenting Evidence (a) Control by the
Court; Purposes. The court should exercise reasonable control over
the mode and order of examining witnesses and presenting evidence
so as to:
(1) make those procedures effective for determining the truth; (2)
avoid wasting time; and (3) protect witnesses from harassment or
undue embarrassment.
© Ellis & Winters LLP 2015
Procedural Considerations—Rule 611 (b) Scope of Cross-Examination.
Cross-examination should not go beyond the subject matter of the
direct examination and matters affecting the witness’s credibility.
The court may allow inquiry into additional matters as if on direct
examination. (c) 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.
© Ellis & Winters LLP 2015
Leading and Non-leading Questions “The essential test of a leading
question is whether it so suggests to the witness the specific
tenor of the reply desired by counsel that such a reply is likely
to be given irrespective of an actual memory. The evil to be
avoided is that of supplying a false memory for the witness.”
United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963).
© Ellis & Winters LLP 2015
Leading and Non-leading Questions
Leading Non-leading
Isn’t it true that you saw Ms. Defendant that night?
Did you see Ms. Defendant that night?
You saw Ms. Defendant that night, didn’t you?
Whom did you see that night?
© Ellis & Winters LLP 2015
defense expert, friends, family members, employers, others
sympathetic to your client.
• “Neutral” witnesses. Percipient witness with no interest in the
outcome, records custodian.
• Unfriendly witnesses. Law enforcement officer, victim,
cooperating co-defendant, informant, others sympathetic to the
prosecution.
© Ellis & Winters LLP 2015
as necessary to develop testimony.
“Neutral” witnesses Non-leading questions, except as necessary to
develop testimony.
Unfriendly witnesses Leading and non-leading questions. *You may
impeach a witness you call. Fed. R. Evid. 607.
© Ellis & Winters LLP 2015
© Ellis & Winters LLP 2015
Court’s Discretion
Controlling the examination of witnesses is part of the district
court’s trial management function. See United States v. Woods, 710
F.3d 195, 200-01 (4th Cir. 2013).
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© Ellis & Winters LLP 2015
Preparing Yourself—Overview • Selecting witnesses
– Special rule for the defendant • Using the Rules of Evidence •
Structuring your examination • Practicing your examination
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Why call the witness? Why not? • What you are trying to prove, or
cause the jury
to doubt? How can this witness help? • List the facts you hope to
elicit from the
witness. • Is the witness credible? • What does the witness know
that can hurt your
case?
© Ellis & Winters LLP 2015
Why call the witness? Your client Your client has the
constitutional right to testify in her defense. See Rock v.
Arkansas, 483 U.S. 44 (1987): • Opportunity to be heard—“No person
shall . . . be deprived of
life, liberty, or property, without due process of law.” U.S.
Const. amend V.
• Necessary corollary to right against compelled testimony— “No
person . . . shall be compelled in any criminal case to be a
witness against himself . . . .” U.S. Const. amend V.
• Inherent in Compulsory Process Clause—”In all criminal
prosecutions, the accused shall enjoy the right . . . to have
compulsory process for obtaining witnesses in his favor.” U.S
Const. amend VI.
© Ellis & Winters LLP 2015
Defendant’s Testimony Counsel your client about the risks and
benefits, including what information (e.g., prior convictions) will
be admissible if she chooses to testify.
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Defendant’s Testimony—Waiver
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Defendant’s Testimony—Continued • What do you do if you reasonably
believe your client
is going to give false testimony? – The client has the right to
testify. – You remain obligated to conduct the examination and
elicit
the testimony. N.C. R. Prof’l Conduct 3.3(a)(3); see id. cmt.
9.
© Ellis & Winters LLP 2015
Defendant’s Testimony—Continued • What do you do if you know your
client is going to
give false testimony? – The client has the right to testify. – You
are precluded from eliciting testimony you know to be
false. – “[T]he lawyer should seek to persuade the client that
the
evidence should not be offered. If the persuasion is ineffective
and the lawyer continues to represent the client, the lawyer must
refuse to offer the false evidence.” N.C. R. Prof’l Conduct 3.3
cmt. 6 (excerpt); see also id. cmt. 10 (remedial measures).
© Ellis & Winters LLP 2015
Using the Rules of Evidence • You cannot effectively prepare for
direct examination
(or trial at all) unless you know the Rules of Evidence.
• Formulate questions that seek admissible evidence. • Anticipate
objections:
– Lay the foundation to avoid them (personal knowledge,
authentication, hearsay exceptions).
– Be prepared to argue objections. – Be prepared to make a proffer
of evidence ruled
inadmissible.
Structuring the Examination • Make an outline:
– What facts do you need to elicit? In what order? – Beginning,
middle, end (example: detention hearing)
• Taking into account who the witness is (friendly, neutral,
unfriendly), consider the form of questions (Leading versus
non-leading; “What happened?” versus “Do you remember what
happened?”).
• Ask questions, in substance and form, to make the witness
credible: – Don’t use the witness as an advocate. – Let the jury
get to know the witness. – Preempt harmful admissions.
© Ellis & Winters LLP 2015
Structuring the Examination—Third- Party Custodian
• Please state your name. • Where do you live? • Do you work? What
do you do for work? • Are you related to Ms. Defendant? How? • Did
Ms. Defendant grow up in your home? • Do you understand that Ms.
Defendant has been charged
with a drug trafficking felony? • Do you understand that we are
here for a detention
hearing in Ms. Defendant’s case? • You know that Ms. Defendant is
asking to be released
from custody pending trial, right?
© Ellis & Winters LLP 2015
Third-Party Custodian—Continued • What kind of home do you live in?
• Does anyone else live there with you? Who else? • Are there any
children in your home? • Are there any firearms in your home? •
Would you allow a firearm in your home? • Are there any illegal
drugs in your home? • Would you allow illegal drugs in your home? •
Do you have a criminal record? • Does [other resident] have a
criminal record?
© Ellis & Winters LLP 2015
Third-Party Custodian—Continued • Are you willing to have Ms.
Defendant live with you if
the Court allows her to be released? • Do you understand that Ms.
Defendant will have some
court dates in the future? • Do you understand that one of your
responsibilities will
be to ensure that she appears for those court dates? Are you
willing to do that?
• Will you find out when the court dates are? Will you put them on
your calendar?
• Do you have access to a car? Do you have a valid driver’s
license? If needed, will you drive Ms. Defendant to court?
© Ellis & Winters LLP 2015
Third-Party Custodian—Continued • Do you understand that if she is
released, Ms. Defendant
will have to comply with some court-ordered conditions? • Will you
familiarize yourself with those conditions? • Will you ensure that
Ms. Defendant complies with the
conditions? • If Ms. Defendant fails to comply any condition, will
you
report that failure to the Probation Office? • Do you understand
that Ms. Defendant may go back to
jail if you report a violation of the conditions? • Knowing that
Ms. Defendant may go to jail, are you
willing to report any violation that she may commit?
© Ellis & Winters LLP 2015
Structuring the Examination—Continued • If the witness knows
relevant, harmful information,
will you elicit it on direct examination? – How likely is the
Government to ask on cross? How likely
is the witness to blurt it out? – How bad is it? Is there an
explanation? – How good is your witness?
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© Ellis & Winters LLP 2015
Witness Preparation • Is this a witness you can meet with in
advance?
– Client/defense expert—yes – Defense-friendly witnesses—maybe –
“Neutral” witnesses—maybe – Unfriendly witnesses—maybe *Always
determine whether the witness is represented by counsel, and
related rules, e.g., healthcare provider.
• If so, should you?
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Witness Preparation—Pros and Cons • Benefits of meeting with a
witness
– Understanding their language – Fostering trust and comfort in the
courtroom – Avoiding surprise testimony – Preparing your overall
case
• Drawbacks of meeting with a witness – Perception of
influence/bias – Revealing information to the Government
© Ellis & Winters LLP 2015
© Ellis & Winters LLP 2015
Preparing a Witness • Remind the witness whose lawyer you are,
and
whose lawyer you are not. • Instruct the witness to tell the truth.
Don’t tell
the witness what to say. • Make the witness comfortable:
Familiarize
witness with court procedure; address areas where the witness feels
vulnerable.
• Listen! Learn the witness’s language; avoid
miscommunication.
© Ellis & Winters LLP 2015
Preparing a Witness—Continued • Exhaust the witness’s knowledge;
avoid
surprises. • Help the witness anticipate cross-examination.
Remind them not to look at you for help on a hard question.
• Tell the witness how to dress for court, where to go, and
when.
• Consider attorney-client privilege/work product.
© Ellis & Winters LLP 2015
© Ellis & Winters LLP 2015
If you do not prepare a witness • Use all available opportunities
to find out what
the witness will say – Prior statements to police or others –
Internet/social media – Professional considerations – Talk to the
witness’s lawyer; consider whether to
tell the lawyer what questions you will ask. • Think conservatively
about questions and have
a backup plan.
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CONDUCTING A DIRECT EXAMINATION
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Order of Witnesses • Who has already testified, and to what? • How
does that affect the order in which you will call
witnesses? • How does that affect your planned questions? • Other
considerations:
– How much time is left in the court day? – How bored are the
jurors and the judge? – Will the witness be on the stand
overnight?
© Ellis & Winters LLP 2015
Conducting Your Direct Examination • Sit at counsel table; check
the microphone;
Make sure the judge, jury, and witness can hear you.
• Be aware of the judge and jury—how are they reacting to your
questions and the witness’s answers?
• Know how to offer exhibits and present them to the jury.
© Ellis & Winters LLP 2015
• Respond to objections—rephrase your question if needed, argue
evidentiary issues, make a proffer.
• Manage the witness’s emotions? • LISTEN TO THE ANSWERS!
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Defending Cross-Examination • Your job is not over after direct
examination. • LISTEN TO THE QUESTIONS AND
ANSWERS! Take notes. • Make objections. • Pay attention to the
judge and jury.
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Don’t celebrate early!
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Redirect Examination • Purpose:
“Examining counsel is normally expected to elicit everything from a
witness, so far as possible, at the first opportunity.” United
States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979).
• Should you do it? • Scope of redirect examination • Consequences
of redirect examination? Re-
cross examination.
What is direct examination?
Right to Present Witnesses
“as necessary to develop testimony”
Court’s Discretion
Slide Number 16
Preparing Yourself—Overview
Defendant’s Testimony
Structuring the Examination
Third-Party Custodian—Continued
Third-Party Custodian—Continued
Third-Party Custodian—Continued
An Unprepared Witness
Preparing a Witness
Slide Number 40
Order of Witnesses
Defending Cross-Examination