SIDE 1: A Quick Guide to Direct Examination
For Lawyers:
The direct is your opportunity to bring out important points for your side. Make sure you cover both the strengths and the weaknesses – you want to emphasize the positives for your side, and minimize the negatives by allowing your witness to deflate points before cross-examination. In general, a direct should work like a conversation between two people, in which the lawyer asks all the questions and the witness gives only answers. You should listen to what your witness says, and base your next question on the witness’s response to the last question, so that it flows smoothly. For example:
Witness: … the afternoon of March 12th.
Attorney: What did you do that afternoon?
Witness: I went to the grocery store to get some beans, and while I was there
I saw Jim acting strangely.
Attorney:What was strange about Jim's behavior?
Witness:He was pointing a gun at Bob, and screaming, "I'll kill you!"
Attorney:So, you saw Jim, pointing a gun at Bob. Did he do anything else?
Witness:He shot Bob in the head.
General format for a direct is: introduction of the witness, witness’s background information, explanation of witness’s connection with the crime, then facts/details/opinions about the crime. The questions must be open ended, non-leading questions. In other words, you should in no way suggest an answer with your questions.
Examples of Leading Questions (What NOT to Do on Direct):
-Did you see Mr./Ms. Thornhill after she came off of the elevator?
- You were on guard then, weren’t you?
-So you wanted money then, is that right?
Examples of Open-Ended Questions (What to Ask on Direct):
- What happened next?
-Who, if anyone, did you see then?
- Where were you at that time?
A good direct should not be in any way objectionable. If it is, you should have a good answer (citing a rule of evidence) for the possible objection.
For Witnesses:
The direct, for you, is somewhat like your big speech – it is your turn to shine. During the direct, you should really bring out your witness’s character – his or her accent, quirks, personality, etc. The emphasis is on you, not your lawyer. Know your facts, and tell your story. You and your lawyer should be very familiar with the direct examination, but the trick is for it to be well rehearsed without appearing to be rehearsed. You should know what comes next, and in what order you are bringing up facts. Additionally, while you should look to your affidavit for language style, you should NOT quote the affidavit verbatim. Remember – this is a conversation, and you should give your answers as you would in any normal conversation. Most importantly – be natural, and really become your witness, so that your answers are confident and appropriate. An advanced trick is to provoke the next question at the end of your meaningful answers. (smooth transitions)
SIDE 2: A Quick Guide to Cross Examination
For Lawyers:
In a trial, cross-examination immediately follows the direct examination. If you are a cross-examining attorney, you should write your cross ahead of time. It is not merely a rebuttal of the direct, and unlike some high school programs, the cross is NOT limited to the scope of the direct. Look through the affidavit of the witness you are crossing, and determine what points are clearly helpful to your side. (Ex: the witness can verify the whereabouts of one of your side’s witnesses.) Next, look at points that are harmful to the other side. (Ex: the witness says something bad about another witness on their side.) If necessary and relevant, anything in your crossing witness’s affidavit that discredits him or her is good to bring out as well. You will know what you will ask on cross before trial. However, your cross may change slightly, depending on the direct examination of that witness. You can never know exactly what a lawyer will ask, so be listening carefully to the direct to make sure you don’t need to add or leave out a few questions.
Remember to ask LEADING questions. The witness’s answer should be limited to yes or no by the question. Also, keep the questions fairly simple – only one question at a time, and the shorter the questions the better. It is important to be firm with your witness, but be careful about how aggressive your cross becomes. You never want to sound like you are yelling at or arguing with a witness.
LEADING QUESTION, WHAT TO DO:
-You were on the 30th floor at 8:45 PM, weren’t you?
-The defendant was wearing, black, right?
-Her shirt wasn’t white, was it?
-And there was nothing blocking your view of her?
NEVER EVER ASK A QUESTION that is open ended or allows the witness to go into a lengthy explanation, such as any question beginning with “why”.
For Witnesses:
The cross examination is not an attack on you – it is merely an examination from a different perspective. However, you will need to think quickly and answer questions carefully and cleverly. You don’t have to make sure you only agree or disagree with everything the crossing lawyer asks you – be confident of your observations and opinions. Remember what is helpful and hurtful for your side, and if you can, skew your answers in favor of your side, but don’t contradict your affidavit or blatantly invent facts. The only time you are not bound by your affidavit is if the crossing lawyer asks you something completely outside of your affidavit (but you still cannot contradict yourself). Memorize your affidavits carefully and plan ahead for potential problem areas. Also, you are entitled to explain all answers. Remember – if you can’t answer a question with just a yes or no, say so.