Direct Examination Acting Arkansas bar association mock trial

Direct Examination & Acting Arkansas bar association mock trial committee Barrett s. Moore, chair 2015 -2016

Direct Examination: Prove Your Case “[T]he rules that generally apply to [ ] witnesses [. . . ] serve the truthseeking function of the trial[. ]” Portuondo v. Agard, 529 U. S. 61 (2000) (Scalia, J. ) Trials seek the truth about a dispute. For example, did John run the red light and hit Jane, or did Jane run the red light and hit John? The Plaintiff/Prosecution and Defendant may both call witnesses (3 witnesses in Mock Trial) to prove or defend their case.

Mock Trial Rule of Evidence 611 • (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.

Mock Trial Rule of Evidence 611 • (b) Scope of cross examination. The scope of the cross examination shall not be limited to the scope of the direct examination, but may inquire into any relevant facts or matters contained in the witness’ statement, including all reasonable inferences that can be drawn from those facts and matters, and may inquire into any omissions from the witness statement that are otherwise material and admissible.

Mock Trial Rule of Evidence 611 • (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.

Mock Trial Rule of Evidence 611 • • (d) Redirect/Re-cross. After cross examination, additional questions may be asked by the direct examining attorney, but questions must be limited to matters raised by the attorney on cross examination. Likewise, additional questions may be asked by the cross examining attorney or recross, but such questions must be limited to matters raised on redirect examination and should avoid repetition. (e) Permitted Motions. The only motion permissible is one requesting the judge to strike testimony following a successful objection to its admission.

The Court’s Goals • Seek the truth • Avoid wasting time • Prevent a witness from being harassed or unduly embarrassed • However, the Plaintiff, Defendant, and key witnesses are subject to probing examinations

Finding the Truth While Avoiding Objections • Your witness must know they key points about their testimony and be prepared to elaborate. • • First the lawyer must lay a foundation for the testimony. • Who are you? Why are you here? What did you see? What background and experience qualifies you to give testimony about this case? • Build the witness’s credibility. What can you tell the jury about your occupation? How long have you lived in this area? Then focus the examination on the key facts at issue. • Were you at the intersection of College and Main on May 12, 2015? What did you see? Are you certain the South-bound lane’s stop light was red? Did any vehicles drive through that red light? Please describe that vehicle for the jury.

Finding the Truth While Avoiding Objections • Generally, leading questions are not allowed on direct examination. • A leading question is one that suggests an answer. • • • Jane ran the red light, didn’t she? Did you see Jane’s blue corvette run the red light? Instead, ask questions that are open ended • Did you see any vehicles run through the red light?

Finding the Truth While Avoiding Objections • Of course, trials require some level of leading questions to move the case along in a timely fashion. Courts usually allow leading questions on unimportant matters. • • Be careful here, as some judges may sustain objections if you ask nothing but leading questions. You may also face relevancy objections • • Probing an area unrelated to the facts at issue and having no tendency to prove or disprove those facts invites a challenge to relevancy and unfair prejudice under Rules 402 and 403. Does Jane Doe have a reputation for cheating on her taxes?

Prove Your Case • • Do not stop your direct examination before you extract every critical piece of evidence from your witness. (Once you sit down, you may not get another chance to develop new areas of proof with that witness. ) Admit all necessary exhibits through your witness. (See Rule 4. 20. ) • • • I’m handing you a document. What is it? And where did you take this photograph? Is it a fair and accurate depiction of the scene of the accident that you took on your cell phone following the collision? Move to admit. Respond to any objections. If not admitted, move to proffer the exhibit. Publish to the jury if admitted. Make sure you want the jury to review the exhibit during the remainder of your examination, however; you don’t want the jury distracted from the remaining examination. Timing is important.

Scope of Direct Examination • On cross examination, your opponent may only probe areas touching upon the issues raised on direct, with some exceptions. • If you only examined your witness about the facts of the car accident but failed to ask about any injuries subsequent to the collision, your opponent cannot broach that topic on cross examination. • • You should object that this line of questioning exceeds the scope of direct. Instead, your opponent should call that witness in his case-in-chief. • This is Mock Trial, however, so your opponent cannot do so. There may be some strategic value in avoiding a contentious area on direct to deprive your opponent of a key fact on cross examination.

Scope of Direct Examination • The Judge may nonetheless allow the questioning. A witness’s credibility and reputation are always at issue and subject to cross examination, even if you fail to ask about those topics on direct. • Scope of Direct applies to Re-direct as well. You can only re-direct a witness on topics within the scope of the original direct and cross examination.

Strategies for Successful Directs • • • Prepare your witness in advance. Ensure key phrases and concepts are adequately expressed to the jury. Know the weakness in the witness’s statement Present the key testimony with a fair reading of the witness statement and problem as a whole • If you go too far afield, you can expect an unfair extrapolation objection, meaning the witness’s testimony draws a conclusion more favorable to your side that goes beyond the written statement. (See Rule 2. 3. )

Strategies for Successful Directs • Order the examination logically. • • Establish the foundation and credibility of the witness Hit the key facts first (how does this witness help your case) Avoid irrelevant tangents Emphasize the key testimony with multiple lines of questions • Are you certain you saw Jane run the red light? How was the weather? Did you have a clear view of the intersection? Is it possible you saw another vehicle instead of Jane’s blue corvette? How far were you from the intersection? Are you certain Jane was driving the car? Did you see anyone exit the vehicle after it collided with my client’s car?

Acting Protocols • Trials mean nothing without evidence. Witnesses give evidence in the form of testimony and documentary exhibits admitted through a witnesses. Great witnesses make for a great team presentation. • The competition focuses on a witness’s presentation • • • Do you know the materials? Is your testimony true to your witness statement? Are you immersed in your character? If you portray a cantankerous 65 -yearold bystander, do your mannerisms and answers reflect that role?

Acting Protocols • Were you able to lay a foundation for key pieces of evidence, paving the way for their admission? • Jane exclaimed to me immediately after the wreck “I ran the red light!” • First you must show your presence at the scene, knowledge of Jane’s identity, and ability to hear her statement.

Acting Protocols • Witnesses are also graded on their ability to withstand crossexamination. • If you make statements too far afield of your witness statement on direct, an able lawyer will expose your extrapolations on crossexamination • Be true to your statement and know its weaknesses. Sometimes you must give ground on critical points because they are indefensible. • Yes, I was talking to a friend when the collision occurred, and that may have distracted my attention. Yes, I also have a personal problem with Jane.

Acting Protocols • By admitting these weaknesses, you move the case forward and deprive the opposing attorney of an opportunity to impeach you. • But stick to the key points on cross examination. Do not hesitate to reemphasize those facts critical to your case in the face of a probing cross. Stand your ground. AND MOST IMPORTANT: HAVE FUN!