EXAMINATION TIPS
DIRECT EXAMINATION
Questioning
· DO use "open" questions—Who, What, Where, Why, When and How. DON'T lead the witness (putting words in her mouth.) But DO make your questions specific enough that the witness can answer them directly without talking for ages.
· Have a structure to your questions—Chronological? Topics? Use phrases like: "Let’s talk about ______" when switching between topics. These are like signposts for the jury.
· Remember that the spotlight should be on the witness, not you. So keep your questions short and open so the witness does most of the talking.
· DO be conversational. Develop a rapport between you and the witness so you don't sound rehearsed.
· DO use demonstrations if they are appropriate.
· Keep in mind the type of witness you are working with and the PURPOSE of that witness. An eyewitness will need more room to tell a story and should be expected to talk in short "paragraphs." An expert witness will need to have her testimony broken down into very small pieces (1-2 sentences at a time) to ensure that the jury understands.
· MOST IMPORTANT: Think in terms of the INFORMATION you need to get into evidence. Don't stop asking questions until you get that information. You have to think on your feet and know the witness's statement cold to do this.
Presentation
· LISTEN to your witness—she may not always give you the same answer to a question, and in fact, she shouldn't.
· Stand by the jury so you help the witness meet the juror's eyes. If the witness is not looking at the jury, direct her attention there. "Please tell the jury…"
· Make sure and qualify expert witnesses: 1) Ask about education, publications, job, experience, etc.; 2) Ask them about the specialty; 3) Say: "Your Honor, I would like to have ______qualified as an expert in ______." Then ask more specific questions. Make sure to ask as a last question—e.g.,"In your expert opinion, what was the cause of ______."
· Make sure and enter exhibits as needed. Use procedure identified in materials and that we go over in class.
· Use re-direct examination if you need to clarify a point, but do not depend on it. Don't use it if it is unnecessary.
CROSS EXAMINATION
· What is your purpose in questioning this witness? Do you need information? Do you want to discredit the witness? Do you want to trap someone else? Do you want to create doubt in the jurors' minds? Focus your questions around that purpose.
· Keep your examination short, pointed, and clear. Structure the examination based on your purpose and the topics you need to discuss—you don’t need to be chronological.
· DO lead the witness. Most or all of your questions should be leading (putting words in the witness’ mouth):
o Isn’t it true that…?
o …, correct?
o …, right?
Open-ended questions on cross exams can be dangerous. You don’t want to give your witness too much room to talk themselves out of an answer. Sometimes a very specific open question is okay if used purposefully to lead up to a more damaging question. But make sure you know exactly what the answer should be, and that you structure the question so the witness has very little room to talk.
· DO NOT merely repeat information already obtained in direct. But if you need it, DO obtain information that was not included in the direct examination. Alter your cross examination as needed and on the spot to fit the direct examination you just heard.
· DO be in control of the exam, but DON'T be overly aggressive or argumentative. Nobody likes a jerk. A conversational, curious tone is generally much more effective, because you win over the jury AND are more likely to trip up your witness.
· DO NOT ask a question to which you do not know the answer! Use the witness’ statement against him/her. Make sure you can point directly to the answer in the witness’ statement so you can impeach the witness if necessary.
· Be short and to the point. Make sure the jury knows where you are going.
· MOST IMPORTANT—LISTEN LISTEN LISTEN to the witness. If the witness does not give you the answer you want, ask the question in another way.
· When you get what you need, sit down. "If it ain't broke, don’t fix it."