Direct Examination AUSA Michael Davis Southern District of Florida.

Direct ExaminationDirect Examination

AUSA Michael DavisAUSA Michael Davis

Southern District of FloridaSouthern District of Florida

Be wary of “cookbook Be wary of “cookbook rules” or “instruction rules” or “instruction

manuals” for trying cases. manuals” for trying cases.

Direct Examination WillDirect Examination Will

Be The Backbone OfBe The Backbone Of

Your CaseYour Case

Use Direct Examination To Assist Use Direct Examination To Assist The Jury In:The Jury In:

UnderstandingUnderstandingRemembering, andRemembering, andCreditingCrediting

Your EvidenceYour Evidence

Subjects of this PresentationSubjects of this Presentation

Presenting your questions on directPresenting your questions on direct Ideas for enhancing the effectiveness of Ideas for enhancing the effectiveness of

your directyour direct What to do when things go awryWhat to do when things go awry The value of preparationThe value of preparation

Presenting Your Questions on DirectPresenting Your Questions on Direct

1.1. The requirement of non-leading questionsThe requirement of non-leading questions

2.2. Distinguishing between leading and non-leading Distinguishing between leading and non-leading questionsquestions

3.3. Focused, non-leading questions versus broad, Focused, non-leading questions versus broad, unguided questionsunguided questions

4.4. Tone, inflection, and eye contactTone, inflection, and eye contact

5.5. The problems with scripted questionsThe problems with scripted questions

6.6. Keeping the attention focused on the witnessKeeping the attention focused on the witness

Presenting Your Questions - The Presenting Your Questions - The Requirement of Non-Leading QuestionsRequirement of Non-Leading Questions

Apart from situations in which you have called a Apart from situations in which you have called a “hostile witness . . . or a witness identified with an “hostile witness . . . or a witness identified with an adverse party,” Rule 611(c) of the Federal Rules of adverse party,” Rule 611(c) of the Federal Rules of Evidence prohibits the use of leading questions on Evidence prohibits the use of leading questions on direct examination “except as necessary to direct examination “except as necessary to develop the witness’ testimony.”develop the witness’ testimony.”

Presenting Your Questions - Distinguishing Presenting Your Questions - Distinguishing Between Leading and Non-Leading QuestionsBetween Leading and Non-Leading Questions

A “leading” question is a question that suggests A “leading” question is a question that suggests the answer or, put differently, a question that puts the answer or, put differently, a question that puts the answer in the witness’s mouth.the answer in the witness’s mouth. ““After you left the grocery store, you next went to After you left the grocery store, you next went to

the dry cleaner, didn’t you?”the dry cleaner, didn’t you?”

- versus –- versus – ““After you left the grocery store, where did you go After you left the grocery store, where did you go

next?” next?”

Presenting Your Questions - Distinguishing Presenting Your Questions - Distinguishing Between Leading and Non-Leading QuestionsBetween Leading and Non-Leading Questions

““Yes-No” Questions andYes-No” Questions and

the Need to Let Your Witnessthe Need to Let Your Witness

Do as Much of the Talking asDo as Much of the Talking as

PossiblePossible

Presenting Your Questions - Distinguishing Presenting Your Questions - Distinguishing Between Leading and Non-Leading QuestionsBetween Leading and Non-Leading Questions

Q.Q. What sort of cars was he driving?What sort of cars was he driving?

A.A. All kinds of nice cars, Lexus, Mercedes All kinds of nice cars, Lexus, Mercedes Benz, Benz, Navigator. He start[ed] to shine.Navigator. He start[ed] to shine.

Q. Q. When you say "shine," what do you mean?When you say "shine," what do you mean?

A. A. Big life.Big life.

Q.Q. What else about his appearance caused you What else about his appearance caused you to to conclude [that] he started to shine?conclude [that] he started to shine?

A.A. A lot of jewelry, nice dresses.A lot of jewelry, nice dresses.

Presenting Your QuestionsPresenting Your Questions

Focused, Non-Leading Questions Focused, Non-Leading Questions and the Difficulty Presented byand the Difficulty Presented by

““What Happened?” QuestionsWhat Happened?” Questions

Presenting Your Questions –Tone, Inflection, Presenting Your Questions –Tone, Inflection, and Eye Contactand Eye Contact

Consider how difficult some jurors will find it to sit Consider how difficult some jurors will find it to sit passively for long periods of timepassively for long periods of time

Engage the jury and engage the witnessEngage the jury and engage the witness But be careful not to lay it on too thickBut be careful not to lay it on too thick

Presenting Your QuestionsPresenting Your Questions

The Problem with Pre-Scripted The Problem with Pre-Scripted Questions—Questions—

Listen to the witness’ answer before Listen to the witness’ answer before

You ask the next question! You ask the next question!

Presenting Your QuestionsPresenting Your Questions

The Goal of an Effective Direct is The Goal of an Effective Direct is

To Make the WitnessTo Make the Witness

the Center of Attentionthe Center of Attention

Ideas for Enhancing the Ideas for Enhancing the Effectiveness of Your DirectEffectiveness of Your Direct

Put yourself in your jurors’ seatsPut yourself in your jurors’ seats Think of things that will assist the jurors in:Think of things that will assist the jurors in:

Following the testimonyFollowing the testimony Understanding the testimonyUnderstanding the testimony Maintaining their interestMaintaining their interest Appreciating how the testimony of one witness Appreciating how the testimony of one witness

relates to other witnesses and the case as a relates to other witnesses and the case as a wholewhole

Ideas for Enhancing the Ideas for Enhancing the Effectiveness of Your DirectEffectiveness of Your Direct

1.1. Introductory/transition phrases, “looping” Introductory/transition phrases, “looping” questions, and “cueing” questions with exhibitsquestions, and “cueing” questions with exhibits

2.2. Using your earsUsing your ears

3.3. Organizing the direct and the order of your Organizing the direct and the order of your witnesseswitnesses

4.4. Using exhibits to help the jury visualize, Using exhibits to help the jury visualize, remember, and creditremember, and credit

Enhancing Your Direct – Enhancing Your Direct – Introductory/Transition PhrasesIntroductory/Transition Phrases

““Turning to August 19, 1999, where were you at Turning to August 19, 1999, where were you at approximately 6:00 that morning?”approximately 6:00 that morning?”

““Earlier in your testimony, you mentioned a safe Earlier in your testimony, you mentioned a safe that the defendant kept in your bedroom closet that the defendant kept in your bedroom closet when you were living together. I would like to when you were living together. I would like to return to that.”return to that.”

Enhancing Your Direct – “Looping” QuestionsEnhancing Your Direct – “Looping” Questions

Q:Q: What assignment did you receive in mid-June What assignment did you receive in mid-June 1997?1997?

A:A: My boss asked me to audit a series of claims My boss asked me to audit a series of claims that had been submitted by a contractor who had that had been submitted by a contractor who had provided cable TV services to a series of bases provided cable TV services to a series of bases that we were closing.that we were closing.

Q:Q: After you received the audit assignmentAfter you received the audit assignment, who , who did you contact?did you contact?

A:A: The contractor’s comptroller.The contractor’s comptroller.Q:Q: Why?Why?A:A: To set up a meeting so I could start the audit.To set up a meeting so I could start the audit.

Enhancing Your Direct – Enhancing Your Direct – Introductory/Transition Phrases and “Looping” Introductory/Transition Phrases and “Looping”

QuestionsQuestions

BUT . . . Don’t Go Overboard withBUT . . . Don’t Go Overboard with

Introductory/Transition PhrasesIntroductory/Transition Phrases

and “Looping” Questionsand “Looping” Questions

Enhancing Your DirectEnhancing Your Direct

Consider Using ExhibitsConsider Using Exhibits

to “Cue” Testimonyto “Cue” Testimony

Use Exhibits to Direct the Use Exhibits to Direct the

Flow of TestimonyFlow of Testimony

Enhancing Your Direct – Use Your EarsEnhancing Your Direct – Use Your Ears

LISTEN!! LISTEN!!

Q:Q: When you met Johnny in the parking lot, what When you met Johnny in the parking lot, what did Johnny give to you?did Johnny give to you?

A:A: Six. Six. Q:Q: What did you give Johnny in return?What did you give Johnny in return?A:A: A cookie.A cookie.

Enhancing Your Direct – Use Your EarsEnhancing Your Direct – Use Your Ears

Q:Q: When you met Johnny in the parking lot, what did Johnny When you met Johnny in the parking lot, what did Johnny give to you?give to you?

A:A: Six.Six.Q: Q: Six what?Six what?A:A: Six hundred dollars.Six hundred dollars.Q:Q: What did you give Johnny in return?What did you give Johnny in return?A:A: A cookie.A cookie.Q:Q: What is a cookie?What is a cookie?A:A: An ounce of crack cocaine.An ounce of crack cocaine.Q:Q: Why do you call it a cookie?Why do you call it a cookie?A:A: Because it is shaped like a cookie.Because it is shaped like a cookie.

Enhancing Your Direct – Organizing the DirectEnhancing Your Direct – Organizing the Direct

Consider “warming up” the witness and the Consider “warming up” the witness and the jury by starting with introductory questionsjury by starting with introductory questions

Consider chronological and categorical Consider chronological and categorical approachesapproaches

Consider where to “front” the baggageConsider where to “front” the baggage Remember that “fronting” baggage does Remember that “fronting” baggage does

not necessarily mean that it should be at not necessarily mean that it should be at the front of your directthe front of your direct

Enhancing Your Direct – Organizing the Order Enhancing Your Direct – Organizing the Order of Your Witnessesof Your Witnesses

Consider whether your evidence calls forConsider whether your evidence calls for:: ““Starting with a bang”Starting with a bang” Starting with shorter, simpler witnesses to Starting with shorter, simpler witnesses to

build into more complicated witnessesbuild into more complicated witnesses Arranging your witnesses to meet evidentiary Arranging your witnesses to meet evidentiary

predicatespredicates Consider where your cooperators fit best in Consider where your cooperators fit best in

the sequencethe sequence

Enhancing Your DirectEnhancing Your Direct

Use Exhibits to Help theUse Exhibits to Help the

Jury Visualize, Remember, andJury Visualize, Remember, and

Credit the Witness’s TestimonyCredit the Witness’s Testimony

What To Do When Things Go AwryWhat To Do When Things Go Awry

Keep your coolKeep your cool Remember that the jury is always watchingRemember that the jury is always watching

The Value of PreparationThe Value of Preparation

Be aware of your witness’s frame of mindBe aware of your witness’s frame of mind Prepare yourself before you meet with your Prepare yourself before you meet with your

witness. Know the case.witness. Know the case. Prepare your witnessesPrepare your witnesses

For the process of testifyingFor the process of testifying For the substance of their testimonyFor the substance of their testimony For the wait to testifyFor the wait to testify

Witness preparation is not a one-size-fits-all Witness preparation is not a one-size-fits-all endeavorendeavor

The Value of PreparationThe Value of Preparation

Prepare your assistant/paralegal to assist you at Prepare your assistant/paralegal to assist you at trial.trial.

Prepare yourself before you call the witness to Prepare yourself before you call the witness to the standthe stand

Where should you stand?Where should you stand? Where is your file?Where is your file? Where are the exhibits and are they pre-marked?Where are the exhibits and are they pre-marked? Is the courtroom equipment working and ready to Is the courtroom equipment working and ready to

go?go?