Unit 8- Witness examination

Unit Introduction

Witness examination constitutes the core activity in trial lawyering in both civil
and criminal cases. It is the forum which enables lawyers to submit the results of
fact examination though witnesses, expert review, documents, demonstrative
evidence. Equally important, witness examination allows a litigator to challenge
the validity and reliability of the witnesses and other evidence produced by the
other party. Article 20(4) of the FDRE Constitution provides that:
“Accused persons have the right to full access to any evidence presented against
them, to examine witnesses testifying against them, to adduce or to have evidence
produced in their own defence and to obtain the attendance of and examination of
witnesses on their behalf before the court.”

As Stanley Fisher noted:

“Essentially a criminal trial is a procedure by which the truth or falsity of the

charge is determined. … (The issue of guilt is determined) rationally – by
considering factual evidence of the crime presented by the prosecution in light of
any evidence the accused may to offer. If the prosecution proves the accused’s
guilt of the crime charged by empirical evidence demonstrated at the trial,
conviction results. Otherwise, he is acquitted.
In Ethiopian law … (the accused) has the right to a compulsory process to obtain
witnesses in his favor, and to confront the witnesses against him. The prosecution
has the burden of proving him guilty of the offence charged, and he has the
privilege of remaining silent throughout the trial. …1

This unit addresses witness examination in both civil and criminal cases with
particular focus on the examination-in-chief and cross-examination. Students are
expected to pay attention to the various conceptual inputs that can be obtained
from the readings which are meant to be used as refresher for materials that had
already been covered during courses on procedure.

__________

1
Stanley Z. Fisher (1969) Ethiopian Criminal Procedure (Addis Ababa: HSIU), p. 293

Unit 8- Witness Examination 143

 Section 1- Factual Propositions

Identifying material facts which are relevant to the legal elements involved in a
case is required before a lawyer makes an opening statement and before she
presents evidence. Litigation is made with a purpose, and witness examination
and submission of documentary or real evidence targets at proving the material
facts that are pertinent in the decision of a given case.

In the possessory action stated under Unit 6, Section 1 the material facts the
ought to be established to prove a claim under Article 1149 of the Civil Cold are:

a) The fact that the plaintiff is a possessor (or holder)

b) The fact that the plaintiff (holder) has been dispossessed or the fact that
his possession has been interfered with.

These factual propositions remain mere assertions unless they are supported by
evidence. The purpose of witness examination or submission of other evidence
is thus to prove the factual propositions that are made in the statement of claim,
statement of defence, criminal charge or other pleadings.

Reading on the definition of factual propositions

1. Factual propositions Defined 2

Factual propositions bridge the gap between stories and legal rules. Stories describe
concrete happenings, and are largely devoid of large concepts. Legal rules and their
constituent elements are abstractions, devoid of concrete factual content. This is hardly
surprising. Elements have to be stated in broad abstract terms if laws are to cover a wide
variety of possible conduct. But as a result of this reality, a fact finder has to see the
connection between concrete stories and abstract rules. Factual propositions establish
the connection by restating abstract legal elements in case specific factual terms. In chart
form, the fact finder’s tasks look like this:

2
Paul Bergman (1997) Trial Advocacy in a Nutshell, West Group, pp. 16,17
144 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Evidence Evidence Evidence

Story

Factual proposition(s) Factual proposition(s)

(Element: 1) (Element: 2)

Legal theory

This diagram (based on an off-tackle play developed by the 1938 Chicago Bears)
emphasizes that a factfinder constructs a story based on the evidence that a factfinder
sees and hears. A fact finder then has to make a mental connection between a story and
legal rules.

Consider these examples of factual propositions.

• In a breach of contract action, a factual proposition satisfying the element “not of
merchantable quality” would be, “the bicycle had square wheels.”
• In a tort action, a factual proposition satisfying the legal element “breach of care”
would be, “the contractor used roof supports made out of balsa wood.”

• In a murder prosecution, a factual proposition satisfying the legal element of

“identity” would be, “Johnson fired the gun.”

Since defendants often proffer evidence to support defence versions of events, defence
attorneys too formulate factual propositions. Defence counterparts to the above
propositions would be:

• “The bicycle had round wheels” or “the bicycles met all contract specifications.”
• “The roof supports were made of solid oak.”
• “Johnson was asleep at home at the time of the murder.”

2. Need for Factual Propositions 3

Factual propositions are an important intermediate step between stories and legal
elements. By identifying factual propositions:

3
Ibid, 18

Unit 8- Witness Examination 145

 • Representing a plaintiff, you make sure that a story has at least one material fact
for each required element.
• Representing a defendant, you target the element or elements you hope to
disprove. (Defendants relying on affirmative defences also make sure that a story
has at least one material fact for each element of affirmative defence.)
• You identify the actual testimony whose accuracy you will try to establish.
Generally, witnesses cannot testify using the abstract language of elements. For
example, a witness cannot testify that, “the collision was the proximate cause of
my hearing loss,” or that “Eric committed waste all over the premises.” However,
witnesses often can testify to material facts: “Sanna backed out of her driveway at
a speed of 85 m.p.h.” (This would be a material fact for “breach of duty” in a
negligent action.)
• You create a map of the evidence you will emphasize and the inferences you will
try to communicate to a fact finder throughout trial, including opening statement,
direct and cross examination and final summation.

__________

146 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Section 2- Reading on Trial and Production of Evidence

The Production of Evidence 4

Evidence consists primarily of the testimony of witnesses and documents and other
physical proof.5 … When a party files his pleading, he includes a list of the witnesses and
the purpose for which they are being called.6
… (T)he court has broad powers to compel the attendance of witnesses ad the
production of documents and generally to obtain evidence that it considers necessary to
enable it to decide the issues in the suit. Primary responsibility for the attendance of
witnesses and the production of documents rests with the parties, but the parties’ inaction
will not prevent the court from obtaining evidence when the court desires to do so.

The Conduct of the Trial 7

1. Order of Proceeding

At the trial … each party introduces the oral and documentary evidence necessary to
support his side of the issue: if the issue is whether there was a contract, the plaintiff
introduces his evidence to show the existence of a contract, and the defendant introduces
his evidence showing that there was no contract. …
The order of the proceeding depends on the nature of the issues that are involved in
the case. The plaintiff is entitled to begin unless the defendants has admitted the
allegations of the statement of claim and has raised … affirmative defences8, in which case
the defendant is entitled to begin. This reflects the general rule that the party who has
burden of proof has the right to begin. The plaintiff has the burden of proving that he has
cause of action, and the defendant has the burden of proof on the question of whether he
has a valid defence. It is provided that “the party who demands performance of an
obligation shall prove its existence, and the party who alleges that an obligations is void,
has been varied or is extinguished shall prove the facts causing the nullity, variation or
extinction.”9 So in a suit to recover damages for breach of contract, the plaintiff would
have to prove the existence of a contract, the breach by the defendant, and the resulting
damages: these are the essential elements of his cause of action. If the defendant
admitted that there was a contract which he did not perform, but contended that the
contract was voidable or that his performance was excused, he would have the burden of
proof on these issues. Whenever the plaintiff has the burden of proof in one of the issues
in the case, he has the right to begin. If for example, there is an issue as to the existence of

4
Seder, Supra, Unit 4, note 20, pp, 194-199
5
Proof other that oral testimony is called real proof. It consists of written documents and what is called
demonstrative evidence. Photographs, recordings, and any tangible object would be classified as real
proof, as would experiments made in or out of court. …
6
Civ. Proc. C. Arts. 223 (1)(A), 234(1)
7
Seder, Supra, Unit 4, note 20, pp, 199-204 (Some explanatory footnotes are omitted)
8
Under affirmative defences, the defendant, as stated in Article258 (1), “admits the facts alleged by the
plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the
plaintiff is not entitled to any part of the relief which he seeks.” (Footnote added)
9
Civ. C., Art. 2001. See also Civ. C. Art. 2141

Unit 8- Witness Examination 147

the contact and an issue as to force majeure, the plaintiff has the right to begin, since he
has the burden of proof on one of the issues in the case. However, if the defendant
admitted the existence of a contract, his non-performance and the damages claimed, but
contended that his non-performance was excused by force majeure, he would have the
right to begin, since he has the burden of proof on the only issue in the case.
We see then that the right to begin follows the burden of proof. In a sense, this “right”
also entails an “obligation” since if the party having the burden of proof fails to establish
his claim or defence by the evidence he has presented, the court can terminate the
litigation at that time without calling upon the other party to rebut the evidence. If in a
suit for breach of contract, the plaintiff fails to make out a case showing that there was a
contract, there is no reason to proceed further: the burden is on the plaintiff to show that
there was a contract, and not on the defendant to show that there was no contract. Since
the plaintiff has not satisfied his burden, that is, he has not introduced sufficient evidence,
which if believed, would justify a finding in his favor on that issue, the court would
render a judgment for the defendant at that time. Thus the party entitled to begin must
state his case and produce his evidence in support of the issue or issues which he is bound
to prove.10 … Assuming that the party having the right to begin has introduced sufficient
evidence, or, as it is sometimes said, has made out a prima facie case or defence, the other
party states his case, produces his evidence and addresses the court generally on the
whole case.11 …
There will frequently be more than one issue in the case, and where the plaintiff has
the burden of proof on one of these issues, … he … must produce his evidence on the
issues as to which he has the burden of proof. However, he also has the option to
produce his evidence on the issues as to which the defendant has the burden of proof. If
he does not wish to do so, he may reserve the evidence on the latter issues until the
defendant has produced his evidence on those issues.12 … If the plaintiff has not reserved
the option to produce evidence, he may not introduce rebuttal evidence after the
defendant has presented his case. …
It is clearly to the plaintiff’s advantage to reserve evidence on the issues, as to which
the defendant has the burden of proof. If the defendant does not produce sufficient
evidence to justify a finding in his favor on those issues, the plaintiff will not have to
introduce any rebuttal evidence. Moreover, if the plaintiff has not reserved evidence, he
will have introduced his evidence on those issues without knowing precisely what
evidence the defendant will introduce. …

2. Production of Evidence by the Parties

The primary responsibility for the examination of witnesses rests with the parties, though
… the court is also given broad powers with respect to the examination of witnesses.
There are three stages to the examination of witnesses: (1) the examination-in-chief; (2) the

10
Civ. Pro. C., Art. 259(1)
11
Civ. Pro. C., Art. 259(2)
12
Civ. Pro. C. Art. 260(1)
148 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
cross-examination; and (3) the re-examination.13 In order to understand these stages, ti is
necessary to review the theory behind the adversary system of litigation, which is
followed in Ethiopia. The witnesses are ordinarily called by each party, and as to the
witnesses he calls the party is the proponent. He tries to bring out the evidence that will
support his version of the case and that evidence only. The opponent then tries to
‘destroy’ the testimony of the witness, and the proponent tries to ‘rehabilitate’ that
testimony. The theory is that as a result of the process (which may be supplemented by
questions from the court), everything the witness knows about the case will be brought to
the attention of the court, and the court will be in a better position to determine whether
or not the witness is telling the truth that if he merely testified in narrative form. Thus
during the examination-in chief the proponent tries to develop the testimony of the
witness in the light most favorable to him; during cross-examination the opponent tries to
discredit that testimony, and during re-examination the proponent tries to minimize the
effect of the cross-examination. …
The proponent calls his witness for the examination-in-chief. It should be noted that if
a party wishes to testify, he must do so before calling his other witness, and for all
practical purposes, he is deemed to be a witness. 14 The witness takes the oath in the form
provided in the Third Schedule to the Code, and proceeds to answer the questions
propounded by the proponent or his advocate.15 The questions put in the examination-in-
chief must relate only to facts that are relevant to the issues to be decided and only to such
facts of which the witness has direct or indirect knowledge.16 The Evidence Code will set
forth rules of relevancy and in all probability, will define what is meant by “direct or
indirect knowledge.” The point to remember is that the opponent is entitled to object on
the ground that the evidence sought to be adduced by the question is irrelevant or that it
is incompetent, i.e., the witness does not have direct or indirect knowledge of the facts as
to which he is testifying.
The most important point to note in regard to the examination-in-chief is that the
proponent or his advocate cannot ordinarily ask what are called leading questions.17 The
Evidence Code no doubt will elaborate on what constitutes a leading question, but as a
general proposition, we can say that a leading question is one suggesting the answer
which the person putting it wishes to receive.18 The purpose of the rule forbidding
leading questions on the examination-in-chief (and by implication, on re-direct
examination) is to prevent a witness who is quick to adopt the suggestion of the examiner
from saying something that he would not say otherwise. The testimony must be that of
the witness and not that of the examiner; the examiner cannot “put words into the mouth
of the witness,” so to speak. In other words, the examiner cannot suggest the answer he
wants to receive and try to get that answer from the witness. Remember that the witness
is being called by the proponent, and that the proponent is trying to prove his case
through the testimony of that witness. It is, therefore, necessary to limit the proponent in

13
There is obviously a printing error I the text of Art. 261(1), which does not appear in the corrigenda. Ther
is an omission of “and cross examined by the other party.” See Crim. Pro. C., Art. 136(3) which parallels
this provision.
14
Civ. Pro. C. Art. 261(2)
15
Civ. Pro. C. Art. 261(1)
16
Civ. Pro. C. Art. 263(1)
17
Civ. Pro. C. Art. 263(2)
18
See Indian Evidence Act, Sec. 141

Unit 8- Witness Examination 149

his examination of the witness and insure that the testimony is genuinely that of the
witness.
It is not possible to lay down hard and fast rules as to what constitutes a leading
question. Often this depends on the way in which the question is asked: does the form of
the question and the tone of voice of the examiner suggest the answer that the examiner
wishes to receive? Obviously, the examiner hopes that the witness will answer the
question in a particular way. This has nothing to do with whether the question is leading.
The leading nature of the question is determined by the form of the question and the tone
in which it is asked – it is only where the question itself suggests the answer which the
examiner wishes to receive that it is considered to be leading.
The most common example of a leading question is one where the examiner concludes
with a positive suggestion such as “didn’t you” or “weren’t you.” For example, a
question, “you were attacked by the defendant, weren’t you,” is clearly leading. The
‘weren’t you” suggests that the answer must be yes, or at least, that this is the answer the
examiner wishes to receive. The question should be expressed in the neutral form, and if it
is then it is not considered leading, even though the answer will be either “yes” or “no”
…
The court may at times permit the asking of leading questions,19 and there are two
situations where it should do so. One is when the witness is being examines as to what
are called “introductory matters.” The evidence of each witness shall start with his name,
age, occupation and address,20 and to save time, the examiner can simply state that your
name is …, isn’t it?” Obviously this is not objectionable, since the substance of the
witness’s testimony is not involved. The other situation is where the witness cannot
remember some or all of the matters as to which his testimony is sought. The Evidence
Code no doubt, will contain questions as one method of doing so. Leading questions may
also be used to assist child witnesses who have difficulty in testifying. But, except in these
situations, leading questions may not be asked by the proponent.
… Article 263(3) of the Civil Procedure Code … provides that “questions put in cross-
examination shall tend to show what is erroneous, doubtful or untrue in the answers
given in the examination-in-chief. Leading questions may be put in cross-examination,
and frequently, cross-examination consists of almost entirely of leading questions. Every
effort is made to show that the witness has omitted facts or is not relating the facts
correctly. There are also recognized methods of showing that the witness is not likely to
be telling the truth. … Some of the recognized methods are (1) showing that the witness
is biased in favor of the proponent or against the opponent, (2) that he has made prior
statements inconsistent with his testimony in court, (3) that he has a poor reputation for
telling the truth, (4) that he has been convicted of certain criminal offences reflecting on
his trustworthiness. 21 The primary purpose of cross-examination is to discredit the
testimony of the witness and persuade the court that it should not believe such testimony.

19
Civ. Pro. C. Art. 263(3)
20
Civ. Pro. C. Art. 269(1)
21
See generally Indian Evidence Act. Sections 146, 155, and the discussion in C. McCormick, Evidence
(1954), pp. 62-111
150 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 The re-examination is limited to “clarifying the matters which have been raised in
cross-examination.22 The proponent does not examine the witness all over again, but tries
to “rehabilitate” him in the sense that he tries to show that the original testimony is to be
believed – to rebut the unfavorable evidence brought out on cross-examination. The court
must make sure that the re-examination is kept within proper bounds and is limited to
clarifying the matters raised by the opponent in the cross-examination.
During the presentation of his case, the party will presumably seek to introduce into
evidence the documents on which he is relying. Previously we saw that each party had to
present his documents to the court, and there are no express provisions of the Civil
Procedure Code governing the introduction of the documents into evidence. The court
may “at any stage of the suit reject any document which it considers irrelevant or
otherwise inadmissible,”23 so the court could reject the document when filed with the
statement of claim or presented at the first hearing. The court might rule on the
admissibility of the documents at the first hearing, but it is more likely that it will wait
until the trial. At the trial the proponent will seek to introduce his document into
evidence, and any objection to the admissibility of the document can be considered at that
time. Note that the court has the duty to exclude an inadmissible document even if no
objection is made. Where a document has been admitted, it forms part of the record; if it
is not admitted, it does not form part of the record and is to be returned to the person who
produced it.24

3. Powers of the court

The court is given broad powers with respect to the examination of witnesses and the
production of documents at the trial. Although Ethiopia is committed to the adversary
system of litigation and the principle of party representation, this is modified by giving
the judge a potential degree of control over the conduct of the litigation. … The court
may at any time put a question to a witness:25 it may do so while he is being examined by
the parties or at the conclusion of his testimony or at both times. It may call as a witness
any person present in court, even though he has not been called by the parties and may
order any such person to produce any document that he has with him.26 As we have seen,
where the court considers it necessary to examine any other person who is not present at
the trial or to obtain a document, it may issue a summons requiring that person to give
testimony or produce a document.27 If it considers that such person should have been
called as a witness by a party, it may require that party to pay the expenses of the
witness.28 For example, the plaintiff contends that the defendant signed a particular
document. It appears that an employee of the plaintiff saw him sign it, but the plaintiff
did not call that employee as a witness. Since his testimony would be favorable to the
plaintiff and he is the plaintiff’s employee, the plaintiff should be required to produce him

22
Civ. Pro. C. Art. 263(4)
23
Civ. Pro. C. Art. 138
24
Civ. Pro. C. Art. 142. If the court considers it necessary to impound the document, it is not returned. Civ.
Pro. C. Art. 143.
25
Civ. Pro. C. Art. 261(4)
26
Civ. Pro. C. Art. 264(1). Although this is not specifically provided, it would seem that the parties should
also be permitted to examine the witness.
27
Civ. Pro. C. Art. 264(2)
28
Civ. Pro. C. Art. 264(3). It may make any other order regarding costs as it thinks fit.

Unit 8- Witness Examination 151

or be responsible for the expenses attendant upon summoning him if the court concludes
that his testimony is necessary.
The court may provide that the evidence of a particular witness is to be taken
immediately, even before the hearing.29 Suppose that Ato A is a key witness for the
plaintiff and he has been ordered to leave for military service. Upon application by either
Ato A or the plaintiff, the court may take the evidence, that is, the plaintiff will examine
him ad the defendant will be able to cross-examine him in the presence of the court. The
evidence will then be read at the trial. The court may also recall any witness who has
been examined and may put to him such questions as it thinks fit.30 Note that under this
last provision only the court examines the witness and the parties do not have a further
opportunity to question him although they may request that he be called. Where a party,
without lawful excuse, refuses to give evidence or produce a document in his power
when required to do so by the court, the court may pronounce judgment against him.31
However, the court may decide not to take such a step and may issue the same kind of
order as it would against any recalcitrant witness.32
__________

29
Civ. Pro. C. Art. 265
30
Civ. Pro. C. Art. 266
31
Civ. Pro. C. Art. 267. This is also true if he fails to do so at the first hearing. Civ. Pro. C. Art. 256.
32
Civ. Pro. C. Art. 268 …
152 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Section 3- Reading on Examination-in-chief

Direct Examination
Source: Steven Lubet, Modern Trial Advocacy: Analysis and Practice, National
Institute for Trial Advocacy, 2nd Edition, 1997 (Chapter Four, pp. 45-78)
Footnotes that make further reference to Federal Rules of Evidence are
omitted

I. The role of direct examination

Cases are won as a consequence of direct examination. Direct examination is your
opportunity to present the substance of your case. It is the time to offer the evidence
available to establish the facts that you need to prevail. Having planed your persuasive
story, you must now prove the facts up on which it rests by eliciting the testimony of
witnesses.
Direct examination, then, is the heart of your case. It is the fulcrum of the trial - the
aspect upon which all else turns. Every other aspect of the trial is derivative of direct
examination. Opening statements and final arguments are simply the lawyer’s
opportunity to comment upon what the witnesses have to say; cross examination exists
solely to allow the direct to be challenged or controverted. While we could easily imagine
a reasonably fair trial systems consisting solely of direct examinations, it is impossible to
conceive of any thing resembling accurate fact finder in their absence.
Direct examinations should be designed to accomplish one or more of the following
basic goals.

A. Introduce Undisputed Facts

In most trials there will be many important facts that are not in dispute. Nonetheless, such
facts cannot be considered by the judge and will not be part of the record on appeal, until
and unless they have been placed in evidence through a witness’s testimony. Undisputed
facts will often be necessary to establish an element of your case. Thus, failing to include
them in direct examination could lead to an unfavorable verdict or reversal on appeal.
Assume, for example, that you represent the plaintiff in a case involving damage to the
exterior of a building, and that the defense in the case is consent. Even if the question of
ownership of the premises is not in dispute, it is still an element your cause of action.
Thus, you must present proof that your client had a possessor or ownership interest in the
building, or run the risk of a directed verdict in favor of the defendant.

B. Enhance the Likelihood of disputed facts

The most important facts in a trial will normally be those in dispute. Direct examination is
your opportunity to put forward your client’s version of the disputed facts. Furthermore,
you must not only introduce evidence on disputed points, you must do so persuasively.

Unit 8- Witness Examination 153

The true art of direct examination consists in large part of establishing the certainty of
facts that the other side claims are uncertain or untrue.

C. Lay Foundations for the introduction of exhibits

Documents, photographs, writings, tangible objects, and other forms of real evidence will
often be central to your case. With some exceptions, it is necessary to lay the foundation
for the admission of such an exhibit through the direct testimony of a witness. This is the
case whether or not the reliability of the exhibit is in dispute.
It is not unusual for a witness to be called only for the purpose of introducing an
exhibit. The “records custodian” at a hospital or bank may know absolutely nothing about
the contents of a particular report, but nonetheless may be examined solely in order to
qualify the document as a business record.

D. Reflect up on the credibility of witnesses

The credibility of a witness is always in issue. Thus, every direct examination, whatever
its ultimate purpose, must also attend to the credibility of the witness’s own testimony.
For this reason, most direct examination begins with some background information about
the witness. What does she do for a living? Where did she go to school? How long has she
lived in the community? Even if the witness’s credibility will not be challenged, this sort
of information helps to humanize her and therefore, adds weight to what she has to say.
You can expect the credibility of some witnesses to be attacked on cross examination.
In these situations you can blunt the assault by bolstering the witness’s believability
during direct examination. You can strengthen a witness by eliciting the basis of her
knowledge, her ability to observe, or her lack of bias or interests in the outcome of the
case.
You may also call a witness to reflect adversely on the credibility of the testimony of
another. Direct examination may be used, for example, to introduce negative character or
reputation evidence concerning another witness. Alternatively, you may call a witness to
provide direct evidence of bias or motive, to lay the foundation for an impeaching
document, or simply to contradict other testimony.

E. Hold the Attention of the Trier of fact

No matter which of the above purposes predominates in any particular direct
examination, it must be conducted in a manner that holds the attention the judge ... In
addition to being the heart of your case, direct examination also has the highest potential
for dissolving into boredom, inattention, and routine. Since it has none of the inherent
drama or tension of cross examination, you must take extreme care to prepare your direct
examination so as to maximize its impact.

154 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 II. The Law of direct Examination
The rules of evidence govern the content of all direct examinations. Evidence offered on
direct must be relevant, authentic, … and otherwise admissible. In addition, there is a
fairly specific “law of direct examination” that governs the manner and means in which
testimony may be presented.

A. Competence of witnesses
Every witness called to testify on direct examination must be legally “competent” to do
so. This is generally taken to mean that the witness possesses personal knowledge of some
matter at issue in the case, is able to perceive and relate information, is capable of
recognizing the difference between truth and falsity, and understands the seriousness of
testifying under oath or on affirmation.
In the absence of evidence or other indications to the contrary, all persons called to the
stand are presumed competent to testify. If the competence of a witness is reasonably
disputed, it may be necessary to conduct a preliminary examination in order to qualify
the witness. Such inquires are usually conducted by the direct examiner but may also be
conducted by the trial judge. In either case, the examination must be directed toward that
aspect of competence that has been called in to question.
…

B. Non-leading questions
The principal rule of direct examination is that the attorney may not “lead” the witness. A
leading question is one that contains or suggests its own answer. Since the party calling a
witness to the stand is presumed to have conducted an interview and to know what the
testimony will be, leading questions are disallowed in order to insure that the testimony
will come in the witness’s own words.
Whether a certain question is leading is frequently an issue of tone or delivery, as
much as one of form. The distinction moreover is, often finely drawn. For example, there
is no doubt that this question is leading:
Question: Of course, you crossed the street, didn’t you?
Not only does the question contain its own answer, its format also virtually requires
that it be answered in the affirmative.
On the other hand, this question is not leading:
Question: Did you cross the street?
Although the question is highly specific and calls for a “yes or no” answer, it does
not control the witness’s response.
Finally this question falls in the middle:
Question: Didn’t you cross the street?

Unit 8- Witness Examination 155

If the examiner’s tone of voice and inflection indicate that this is meant as a true query,
the question probably will not be considered leading. If the question is stated more as an
assertion, however, it will violate the leading question rule.
There are, in any event numerous exceptions to the rule against leading questions on
direct examination. A lawyer is generally permitted to lead a witness on preliminary
matters, on issues that are not in dispute, in order to direct the witness’s attention to a
specific topic, in order to expedite the testimony on nonessential points, and, in some
jurisdiction, to refresh a witness’s recollection. In addition, it is usually permissible to lead
witnesses who are very young, extremely old, infirm, confused, or frightened. Finally, it is
always with in the trial judge’s discretion to permit leading questions in order to make the
examination effective for the ascertainment of the truth, avoid needless consumption of
time, protection the witness from undue embarrassment, or as is otherwise necessary to
develop the testimony.
In the absence of extreme provocation or abuse, most lawyers will not object to the
occasional use of leading questions on direct. It is most common to object to leading
questions that are directed to the central issues of the case or that are being used to
substitute the testimony of counsel for that of the witness.

C. Narratives
Another general rule is that witnesses on direct examination may not testify in “narrative”
form. The term narrative has no precise definition, but it is usually taken to mean an
answer that goes beyond responding to a single specific question. Questions that invite a
lengthy or run-on reply are said to “call for a narrative answer.”
An example of a non-narrative question is, “What did you do next?” The objectionable,
narrative version would be, “tell us every thing that you did that day.”
As with leading questions, the trial judge has wide discretion to permit narrative
testimony. Narratives are often allowed, indeed encouraged, when the witness has been
qualified as an expert.33

D. The non-opinion rule

Witnesses are expected to testify as to their sensory observations. What did the witness
see, hear, smell, touch, test, or do? Witnesses other than experts generally are not allowed
to offer opinions that are “rationally based up on the perception of the witness.” Thus,
witnesses will usually be permitted to draw conclusion on issues such as speed, distance,
volume, time, weight, temperature and weather conditions. Similarly, lay witnesses may
characterize the behavior of others as angry, drunken, affectionate, busy, or even insane.

33
Many lawyers prefer to present expert testimony in narrative form, but this often interferes with effective
communication. ..
156 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 E. Refreshing recollection
Although witnesses are expected to testify in their own words, they are not expected to
have perfect recall. The courtroom can be an unfamiliar and intimidating place for all but
the most “professional” witnesses, and witnesses can suffer memory lapses due to stress,
fatigue, discomfort, or simple forgetfulness. Under this circumstance it is permissible for
the direct examiner to “refresh” the witness’s recollection. It is most common to rekindle a
witness’s memory through the use of a document such as her prior deposition or report. It
may also be permissible to use a photograph, an object, or even a leading question.
In order to refresh recollection with a document, you must first establish that the
witness’s memory is exhausted concerning a specific issue or event. You must then
determine that her memory might be refreshed by reference to certain writing. Next,
show the writing to the witness, allow her time to examine it, and inquire as to whether
her memory has returned. If the answer is yes, remove the document and request the
witness to continue her testimony. Note that in this situation the testimony must
ultimately come from the witness’s own restored memory; the document may not be
offered as a substitute.

III. Planning Direct examination

There are three fundamental aspects to every direct examination plan: content,
organization, and technique.
Your principal tool in presenting a persuasive direct examination is, of course, the
knowledge of the witness. If the underlying content of the examination is not accurate and
believable, the lawyer’s technique is unlikely to make any noticeable difference. Your
primary concern, then, must be content – the existence of the facts that you intend to
prove.
The content of a direct examination can be enhanced through the use of organization,
language, focus …34 and rapport. Effective organization requires sequencing an
examination in a manner that provides for logical development, while emphasizing
important points and minimizing damaging ones. Questions should be asked in language
that directs the progress of the examination without putting words in the witness’s
mouth. A direct examination uses focus to underscore and expand upon the most crucial
issues, rather than allow them to be lost in a welter of meaningless details. … Finally, the
positive rapport of the direct examiner with the witness is essential to establish the
witness’s overall trustworthiness and believability.

A. Content
Content – what the witness has to say– must be the driving force of every direct
examination. Recall that direct examination provides your best opportunity to prove your
case. It is not meant merely as a showcase for the witness’s attractiveness or for your own
forensic skills. The examination must have a central purpose. It must either establish some

34
The word ‘pacing’ is omitted

Unit 8- Witness Examination 157

aspect of your theory, or it must contribute to the persuasiveness of your theme.
Preferably, it will do both.
Begin by asking yourself, “why am I calling this witness?” which elements of your
claims or defenses will the witness address? How can the witness bolster or detract from
the credibility of others who will testify? How can the witness add moral strength to the
presentation of the case, or appeal to the (court’s)35 sense of justice?
Since a witness might be called for any or all of the above reasons, you must
exhaustively determine all of the possible useful information. List every conceivable thing
that the witness might say to explain or help your case.
Now you must begin to prioritize and discard. This is a ruthless process. In direct
examination, length is your enemy. You must work to eliminate all nonessential facts that
are questionable, subject to impeachment, cumulative, distasteful, implausible,
distracting, or just plain boring.

1. What to include
First, go through a process of inclusion. List the witness’s facts that are necessary to the
establishment of your theory. What is the single most important thing that the witness has
to say? What are the witness’s collateral facts that will make the central information more
plausible? What is the next most important part of the potential testimony? What
secondary facts make that testimony more believable? Continue this process for every
element of your case.
For example, assume that … you have located a witness who saw the defendant driver
at an automobile repair shop just a few days before the accident. The witness told you that
the defendant was advised that this brake were in poor repair, but that he left without
having them fixed. This is a fact of central importance, and you will no doubt present it in
the direct examination. Collateral or supportive facts will include corroborative details
such as the time of day, the witness’s reason for being in the auto shop, the witness’s
location during the crucial conversation about the brakes, the reason that the witness can
remember the exact language used, and why the witness can identify the defendant.
These details, while not strictly relevant to your theory, give weight and believability to
the crucial testimony.
You must also be sure to include those “thematic” facts that give your case moral
appeal. Returning to the intersection case, perhaps you have an additional witness who
will testify that at the time of collision the defendant was already late for an important
meeting. Your theme might be that the defendant was “too busy to be careful.” How can
this theme be developed in the testimony of the auto shop witness? The answer is to look
for supportive details. Was the defendant curt or abrupt with the repairperson? Was he
constantly looking at his watch? Was he trying to read “important –looking papers” while
discussing the brakes? Did the defendant rush out of the shop? In other words, search for

35
Originally “jury’s”
158 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
details that support your image of the defendant as busy, preoccupied, and unconcerned
with safety.
In addition to central facts and supporting details, your “content checklist” should
include consideration of the following sorts of information:
Reasons. Recall that stories are more persuasive when they include reasons for the way
people act. A direct examination usually should include the reasons for the witness’s own
actions. Some witnesses can also provide reasons for the action of another.
Explanations. When a witness’s testimony is not self explanatory, or where it raises
obvious questions, simply ask the witness to explain. In the above “repair shop” scenario
it may not be immediately apparent that a casual observer would recall the defendant’s
actions in such detail. Ask for an explanation:
Question: How is it that you can remember seeing and hearing what the defendant
did that morning?
Answer: I was at the shop to have my brakes fixed, and it really made an
impression on me that he was leaving without taking care of his.
Credibility. The credibility of a witness is always in issue. Some part of every direct
examination should be devoted to establishing the credibility of the witness. You can
enhance credibility in numerous ways. Show that the witness is neutral and disinterested.
Demonstrate that the witness had an adequate opportunity to observe. Allow the witness
to deny any expected charges of bias or misconduct. Elicit the witness’s personal
background of probity and honesty.

2. What to exclude
Having identified the facts that most support your theory and most strengthen your
theme, you may now begin the process of elimination. It should go without saying that
you must omit those facts that are “untrue”. While you are not required to assure yourself
beyond reasonable doubt of the probity of each witness, neither may you knowingly elicit
testimony that you believe to be false. By the time you are preparing your direct
examinations you certainly will have abandoned any legal or factual theory that rests up
on evidence of this sort.
More realistically, unless you have an extraordinarily compelling reason to include
them, you will need to consider discarding facts that fall in to the fallowing categories.
Clutter. This may be the single greatest vice in direct examination. Details are essential
to the corroboration of important evidence, and they are worse than useless virtually
everywhere else. Aimless detail will detract from your true corroboration. In the “auto
shop” example, for instance, the witness’s proximity to the service counter is an essential
detail. The color of the paint in the waiting room is not.
How do you determine whether or not a certain fact is clutter? Ask what it contributes
to the persuasiveness of your story. Does it supply a reason for the way that someone
acted? Does it make an important fact more or less likely? Does it affect the credibility or

Unit 8- Witness Examination 159

authority of a witness? Does it enhance the moral value of your story? If all of the answers
are negative, you’re looking at clutter.
Unprovables. These are facts that can successfully be disputed. While not “false,” they
may be subjected to such vigorous and effective dispute as to make them unusable. Is the
witness the only person who claims to have observed a certain event, while many other
credible witnesses swear to the precise contrary? Is the witness herself less than certain? Is
the testimony contradicted by credible documentary evidence? It is usually better to pass
up a line of inquiry than to pursue it and ultimately have it rejected. This is not, however,
a hard and fast rule. Many true facts will be disputed by the other side, and your case will
virtually always turn up on your ability to persuade the trier of fact that your version is
correct. Sometimes your case will depend entirely upon the testimony of a single witness
who, though certain and truthful, will come under massive attack. Still, you must be
willing to evaluate all of the potential testimony against the standards of provability and
need. If you can’t prove it, don’t use it. Especially don’t need it.
Implausibles. Some facts need not be disputed in order to collapse under their own
weight. They might be true, they might be useful, they might be free from possible
contradiction, but they still just won’t fly. Return to the “auto shop” witness and assume
that she informed you that she recognized the defendant because they had once ridden in
the same elevator fifteen years previously. You may have no reason to disbelieve the
witness, and it is certainly unlikely that anyone could contradict or disprove her
testimony. The testimony might even add some support to your theme, say, if the
defendant rushed out of the elevator in an obvious hurry to get to work. Nonetheless, the
testimony is simply too far-fetched. If offered, it will give the trier of fact something
unnecessary to worry about; it will inject a reason to doubt the other testimony of the
witness.
Note, however, that implausibility must be weighed against importance. If the case
involved a disputed identification of the defendant, then proof of an earlier encounter
might be of sufficient value to risk its introduction.
Impeachables. These are statements open to contradiction by the witness’s own prior
statements. By the time of trial many witnesses will have given oral and/or written
statements in the form of interviews, reports and depositions. Many also will have signed
or authored documents, and other writings. With some limitations, the witnesses’
previous words may be used to cast doubt upon their credibility; this is called
impeachment by a prior inconsistent statement. The demonstration that a witness has
previously made statements that contradict her trial testimony is often one of the most
dramatic, and damning, aspects of cross examination. Unless you can provide an
extremely good explanation of why the witness has changed, or seems to have changed,
her story, it is usually best to omit “impeachables” from direct testimony.
Door openers. Some direct testimony is said to “open the door” for inquiry on cross
examination that otherwise would not be allowed. The theory here is that fairness
requires that the cross examiner be allowed to explore any topic that was deliberately
introduced on direct. For example, … the defendant … (might) not be allowed to
introduce the fact that the plaintiff had been under the care of a psychiatrist. On the other
hand, assume the plaintiff testified on direct that the accident had forced her to miss an
important appointment with her doctor, and that the appointment could not be
160 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
rescheduled for a week due to the nature of the doctor’s schedule. In these circumstances
the door would be opened, at a minimum, to cross examination that covered the nature of
the appointment and the reason that it could not be rescheduled; that the plaintiff was on
her way to see her psychiatrist.
Another common door opener is the misconceived “defensive” direct examination. It is
considered a truism in many quarters that the direct examiner should defuse the cross by
preemptively bringing out all of the bad facts. The danger, however, is that you will
“defensively” bring out facts that would have been inadmissible on cross examination.
Assume, for example, that your client has a prior juvenile conviction for theft. While, you
might ordinarily want to raise a prior crime yourself in order to explain it or otherwise
soften the impact of the evidence, juvenile convictions are almost never admissible. Thus,
a defensive direct examination would not only introduce otherwise excluded information,
it could very well open the door to further exploitation of those facts on cross. You cannot
always avoid door openers, but you must learn to recognize them.

B. Organization and structure

Organization is the tool through which you translate the witness’s memory of events into
a coherent and persuasive story. This requires idiom, art, poetry. An artist does not paint
everything that she sees. Rather, she organizes shapes, colors, light, and impasto to
present her own image of a landscape. In the same manner, a trial lawyer does not simply
ask a witness to “tell everything you know,” but instead uses the placement and sequence
of the information to heighten and clarify its value.
The keys to this process are primacy, apposition, duration, and repetition.
Primacy and recency refer to the widely accepted phenomenon that people tend to
remember those things that they hear first and last. Following this principle, the
important parts of a direct examination should be brought out at its beginning and again
at its end. Less important information should be “sandwiched “in the middle. …(T)he
presence of the fire truck may well be the most important part of the plaintiff’s testimony.
It should therefore be introduced early in her direct examination and perhaps alluded to
again at the end.
Apposition is the placement or juxtaposition of important facts in a manner that
emphasizes their relationship. …(A) strictly chronological direct examination might have
the plaintiff begin by explaining where she was headed on the morning of the accident.
Assume now that she was going to an art exhibit that would not open for another hour.
The importance and value of these seemingly innocuous facts can be heightened
tremendously by “apposing” it to the conduct of the defendant immediately following the
accident. Imagine the impact of contracting the plaintiff’s unhurried trip with the
following information about the defendant:
Question: Where were you going on the morning of the accident?
Answer: I was going to the art institute.
Question: Were you in hurry to get there?
Answer: It wasn’t going to open for an hour, so I was in no hurry at all
Question: What did you do immediately after the accident?

Unit 8- Witness Examination 161

 Answer: I asked the defendant if he was all right.
Question: What did the defendant do immediately following the accident?
Answer: He jumped out of his car and run to a pay telephone. He shouted that
he would talk to me later, but first he had to cancel an important
appointment.
Duration refers to the relative amount of time that you spend on the various aspects the
direct examination. As a general rule you should dwell on the more important points,
using the very length of coverage to emphasize the significance of the topic. Less
important matters should consume less of the direct examination. …
Question: What did you see as you drove south on Sheridan Road?
Answer: I saw a fire truck
Question: Describe it, please?
Answer: It was your basic fire truck. It was red, and it had firefighters riding on
it. It had lights and a bell.
Question: Were the lights flashing?
Answer: Yes, and it was sounding its siren.
Question: How far away were you when you first noticed the fire truck?
Answer: I would say almost a block away
Repetition is a corollary of duration. Important points should be repeated, preferably
throughout the direct examination, to increase the likelihood that they will be retained
and relied upon by the trier of fact.
Even applying these principles, there is no correct way to paint a landscape. The
following guidelines, however, will always be useful.

a) Start strong and end strong: The overall Examination

Every direct examination, no matter how else it is organized, should strive to begin and
end on strong points. The definition of a strong point will differ from trial to trial. It may
be the most gripping and dramatic aspect of the entire examination; It may be the single
matter on which the witness expresses the greatest certainty; it may be the case’s mostly
disputed issue; or it may be a crucial predicate for other testimony. Whatever the
specifics, the strong points of your overall examination should have some or all of these
features.
Admissibility: There is little worse than having an objection sustained right at the
beginning, or end, of a direct examination. You must be absolutely certain of the
admissibility of your opening and closing points.
Theory value: The very definition of a strong point is that it makes a significant
contribution to your theory. What does the witness have to say that is most central to the
proof your case?

162 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Thematic Value: Ideally, your strongest points will reinforce the moral weight of your
case. Try to phrase them in the same language you use to invoke your theme.
Dramatic impact: Dramatic impact at the beginning of an examination will keep the
judge listening. Dramatic impact at the end of the examination will help fix the testimony
in their memories.
Undeniablity: choose strong points in the hope that they will be vividly remembered.
It will do you little good if they are remembered as being questionable or controverted.
In most cases, of course, it will be necessary to use the opening part of the direct
examination to introduce the witness and establish some of her background. Thus, the
actual “beginning” of the examination should be understood as the beginning of the
substantive testimony.

b) Start strong and end strong:- The sub examinations

Each full direct examination is actually a combination of many smaller sub-examinations.
As you move from topic to topic you are constantly concluding and reinitiating the sub
parts of the direct testimony. The “start strong/ end strong” rule should not be applied
only to the organization of the full direct; it should also be used to structure its individual
components.
In our intersection case you might wish to begin and end the substantive part of the
plaintiff’s examination with evidence about the fire truck. In between, however, you will
cover many other issues, including the plaintiff’s background, the scene of the collision,
and the plaintiff’s damages. Each of these component parts of the direct should, if
possible, begin and end on a strong point.
In something as simple as setting the scene, consider what elements of the description
are most important to your case. Then begin with one end with another. In the
intersection case you might want to lead off with the clarity of the weather conditions in
order to establish visibility. Perhaps you would then conclude the scene-setting portion of
the examination with this description of the traffic:
Question: Of all of the cars that were present, how many stopped for the fire
truck?
Answer: All of them, except the defendant.

c) Use topical Organization

Chronology is almost always the easiest form of organization. What could be more
obvious than beginning at the beginning and ending at the end? In trial advocacy,
however, easiest is not always best. In many cases it will be preferable to utilize a topical
or thematic form of organization. In this way, you can arrange various components of the
witness’s testimony to reinforce each other, you can isolate weak points, and you can
develop your theory in the most persuasive manner. The order in which events occurred
is usually fortuitous. Your duty, as an advocate is to rearrange the telling so that the story
has maximum logical force.
Assume that you are the prosecutor in a burglary case. Your first witness is the police
officer who conducted a stakeout and arrested the defendant on the bases of a description
that she received from a superior officer. A strict chronology in such a case could be

Unit 8- Witness Examination 163

confused and counterproductive. The witness would have to begin with the morning of
the arrest, perhaps explaining the time that she came on duty, the other matters that she
worked on that day, and her instructions in conducting the stakeout. She no doubt would
have received the description somewhere in the middle of all this activity. Even if
relevant, the importance of the surrounding details is not likely to be well understood at
the outset of the examination. The officer, sticking to chronological order, would then
describe the people she saw at the stakeout location whom she did not arrest. Finally, the
witness would come to the defendant’s arrival on the scene. Assume, however, that she
did not immediately arrest him. Rather, she observed him for some time, perhaps; he even
left the scene (and returned) once or twice before the eventual arrest.
In plain chronological order, all of this can be added up to a rather diffuse story. The
officer’s reasons for conducting the stakeout are separated from the activity itself; the
receipt of the description has no immediate relationship to the apprehension of the
suspect. The trier of fact is required to reflect both forward and back on the significance of
the data.
A topical organization, however, could provide a framework that adds clarity and
direction to the story. A structure based upon the description of the defendant, rather
than chronology, would begin with a description of the arrest itself; then:
Question: Officer, Why did you arrest the defendant?
Answer: Because he fit a description that I had been given earlier of a wanted
burglar.
Question: Did you arrest him as soon as you saw him?
Answer: No. I wanted to make sure that he fit the description completely, so I
waited until he was standing directly below a street light.
Question: Was there any one else in the vicinity at that time?
Answer: There had been a few people, but nobody who matched the description.
Question: Officer, please go back and tell us how you received the description that
led to the arrest of the defendant.
Even in a matter as simple as our automobile collision case, a strictly chronological direct
examination of the plaintiff could fail to be either dramatic or persuasive. Imagine
beginning the examination with the time that the plaintiff left home that morning. State
her destination and her estimated travel time. Describe the weather and traffic conditions.
Trace her route from street to street until she arrives at the fateful intersection. Describe
the appearance of the fire truck, the plaintiff’s reaction, and finally the collision. After
slogging through a series of details, some important and some not, the direct examination
finally arrives at the most important event - the accident itself.
It would be more dramatic to (1) begin with the collision, (2) explain why the plaintiff
had stopped her car, (3) describe the fire truck, (4) describe the response of the
surrounding traffic, and (5) contrast that with the actions of the defendant.

164 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 d) Do not Interrupt The action
Every direct examination is likely to involve one, two or more key events or occurrences.
The witness may describe physical activity such as an automobile accident, an arrest, the
failure of a piece of equipment, or a surgical procedure. Alternatively, the witness may
testify about something less tangible, such as the formation of a contract, the effect of an
insult, the making of a threat, the breach of a promise, or the existence of pain following
an injury. Whatever the precise subject, it will always be possible to divide the testimony
into “action” on the one hand and supporting details and descriptions on the other.
A cardinal rule for the organization of direct examination is never to interrupt the
action. Do not disrupt the dramatic flow of your story, the description of the crucial
events, in order to fill in minor details. There can be no more jarring or dissatisfying an
experience during trial than when the witness, who has just testified to the sound of a
gunshot or the screech of automobile tires, is then calmly asked the location of the nearest
street light. The lighting conditions may be important, but they cannot possibly be
important enough to justify the discontinuity created by fracturing the natural flow of
occurrence testimony.
Many lawyers subscribe to the theory that you should “set the scene” before
proceeding to the activity. Following this approach in our automobile case, you would
first have the witness describe the intersection, the surrounding traffic, the condition of
the streets, and the location of her car, all before proceeding to the events of the collision.
This approach is based on the concept that the trier of fact can then place the activities
within the framework that you have created.
An alternative approach is first to describe the events themselves and then to go back
and redescribe them while filling in the details of the scene. Assume that the plaintiff in
the automobile case has already testified about the events of the accident. You can now go
back to set the scene, effectively telling the story a second time: What were the weather
conditions when you entered the block where the collusion occurred? How much traffic
was there when you first saw the fire truck? What direction were you traveling when the
defendant’s car struck yours?

e) Give separate attention to the details

We have seen that details add strength and veracity to a witness’s testimony.
Unfortunately, they can also detract from the flow of events. It is therefore often best to
give separate attention to the details, an approach that also allows you to explain their
importance.
Assume, for example, that you are presenting the testimony of a robbery victim and
that the central issue in the case is the identification of the defendant. You know that you
don’t want to detract from the action, so you will present the events of the robbery
without interruption. Then you will go back to supply the details that support the
witness’s ability to identify the defendant:
Question: How far was the defendant from you when you first noticed him?
Answer: About twelve or fifteen feet.
Question: How much closer did he come?
Answer: He came right up to me. His face wasn’t more than a foot from mine.

Unit 8- Witness Examination 165

 Question: Did you look at his face?
Answer: Yes, absolutely. He stared right at me.
Question: For how long?
Answer: It was at least a minute.
Question: Was it still light out?
Answer: Yes, it was.
Question: Could you see the color of his clothing?
There will be dozens of details available to support the witness’s identification.
Dispersing them throughout the description of events would both disrupt the testimony
and diminish their cumulative importance. The remedy for this problem is to give the
details separate attention.

f) Try not to Scatter Circumstantial Evidence

Circumstantial evidence is usually defined as indirect proof of a proposition, event, or
occurrence. The identity of a burglar, for example, could be proven directly through
eyewitness testimony. It could also be proven indirectly through the accumulation of
circumstantial evidence such as the following: The defendant was seen near the scene of
the burglary on the evening of the crime; her scarf was found in the doorway of the
burglarized house; she had been heard complaining about her need for a new radio; two
days after the crime she was found in possession of a radio that had been taken in the
burglary.
None of the above facts taken individually amount to direct proof, that the defendant
committed the crime. There could be a perfectly innocent explanation for each one. In
combination, however, they raise an extremely compelling inference of guilt. In other
words, the indirect circumstances accumulate to establish the likelihood of the
prosecution’s case.
Inferential evidence is at its strongest when a series of circumstances can be combined
to lead to the desired conclusion. It is therefore effective to present all of the related
circumstantial evidence at a single point in the direct examination, rather than scatter it
throughout. This will not always be possible. The logic of a witness’s testimony may
require that items of circumstantial evidence be elicited at different points in the
testimony. Chronological organization will dictate introducing the circumstances in the
order that they occurred or were discovered. Even topical organization may require
assigning individual circumstances to separate topics. In the burglary case, for example, a
topical approach might divide the testimony into areas such as “condition of the
premises” and “apprehension of the defendant.” The discovery of the scarf and the
recovery of the radio would consequently be separated in the testimony.
Nonetheless, it is a good idea to attempt to cluster your circumstantial evidence.
Abandon this technique only when you have settled upon another that you believe will be
more effective.

166 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 g) Defensive Direct examination
From time to time it may be advisable to bring out potentially harmful or embarrassing
facts on direct in order to blunt their impact on cross examination. The theory of such
“defensive” direct examination is that the bad information will have fewer stings if the
witness offers it herself and, conversely, that it will be all the more damning if the witness
is seen as having tried to hide the bad facts. As we noted above, you should conduct a
defensive direct examination only when you are sure that the information is known to the
other side and will be admissible on cross examination.
Assuming that you have determined to bring out certain damaging information, be
sure not to do it at either the beginning or end of the direct examination. Remember the
principle of primacy and recency. By definition, bad facts cannot possibly be the strong
points of your case, so you will always want to bury them in the middle of the direct
examination.
…

h) Affirmation Before Refutation

Witnesses are often called both to offer affirmative evidence of their own and to refute the
testimony of others. In such cases it is usually best to offer the affirmative evidence before
proceeding to refutation. In this manner you will accentuate the positive aspects of your
case and avoid making the witness appear to be a scold.
As with all principles, this one should not be followed slavishly. Some witnesses are
called solely for refutation. Others are far more important for what they negate than for
their affirmative information. As a general organizing principle it is useful to think about
building your own case before destroying the opposition’s.

i) Get to the point

A direct examination is not a treasure hunt or murder mystery; there is seldom a reason to
keep the trier of fact in suspense. The best form of organization is often to explain exactly
where the testimony is headed and then to go directly there.

j) End with a clincher

Every examination should end with a clincher, a single fact that capsulizes your trial
theory or them. To qualify as a clincher a fact must be (1) absolutely admissible, (2)
reasonably dramatic, (3) simple and memorable (4) stated with certainty depending upon
the nature of the evidence and the theory on which you are proceeding, the final question
to the plaintiff in our automobile case might be any of the following:
Question: How long was the fire engine visible before the defendant’s car struck
yours?
Answer: It was visible for at least ten seconds because I had already seen it and
stopped for a while when the defendant ran into me.
Or,
Question: Did the defendant run to the telephone before or after he checked on
your injuries?

Unit 8- Witness Examination 167

 Answer: He ran straight to the telephone without even looking at me. Or,
Question: Do you know whether you will ever be able to walk again without
pain?
Answer: The doctors say that they can’t do anything more for me, but I am still
praying.

k) Ignore any rule when necessary

By now you will no doubt have noticed that the above principles are not completely
consistent with one another. In any given case you will probably be unable to start strong,
organize topically, and separate the details, while still getting to the point without
interrupting the action. Which rules should you follow? The answer lies in your own
good judgment and can only be arrived at in the context of a specific case. If you need
another principle to help interpret the others, it is this: Apply the rules that best advance
your theory and theme.

IV. Questioning Technique

Since content is the motive force behind every direct examination, you must use
questioning technique to focus attention on the witness and the testimony. It is the
witness’s story that is central to the direct examination; the style and manner of your
questioning should underscore and support the credibility and veracity of that story. The
following questioning techniques can help you to achieve that goal.

A. Use short, open questions

You want the witness to tell the story. You want the witness to be the centre of attention.
You want the witness to be appreciated and believed. None of these things can happen if
you do all of the talking. Therefore, ask short questions.
Using short questions will help you to refrain from talking, but not every short
question will get the witness talking. To do that, you will need open questions.
Don’t ask a witness, “Did you go to the bank?” The answer to that short question will
probably be an even shorter “Yes.” Instead, as much of your direct examination as
possible should consist of questions that invite the witness to describe, explain, and
illuminate the events of her testimony. Ask questions such as:
Question: Where did you go that day?
Question: What happened after that?
Question: Tell us who was there?
Question: What else happened?
Question: Describe where you were?
Your witness will almost always be more memorable and believable if you can obtain
most of her information in her own words. Short, open questions will advance that goal.

168 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 B. Use directive and Transitional Questions
You cannot use open questions to begin an examination or to move from one area of the
examination to another. To do so you would have to start with “When were you born?”
and proceed to ask “What happened next?” in almost endless repetition.
A better approach is to use directive and transitional questions. Directive questions,
quite simply, direct the witness’s attention to the topic that you want to cover. Suppose
that you want the witness to address the issue of damages. Ask,
Question: Were you in any pain after the accident?

Having directed the witness’s attention, you can now revert to your short, open questions:
Question: Please describe how you felt.
Question: Where else did you hurt?
Question: How has this affected your life?
You may need to use more than one directive question during any particular line of
testimony. To fill out the subject of damages, for example, you may need to ask additional
questions such as,
Question: Do you currently suffer any physical disabilities?
Or,
Question: Did you ever have such pains before the accident?

Remember that the purpose of a directive question is to direct the witness’s attention,
not to divert the (court’s).
Another problem with short, open questions is that they are not very good at
underscoring the relationship between one fact and another. The best way to do this is
through “transitional” questions that utilize one fact as the predicate, or introduction, to
another. Here are some examples of transitional questions:
Question: After you saw the fire truck, what did you do?
Question: Do you know what the defendant did as the other traffic slowed to a
stop?
Question: Once the defendant’s car hit yours, did you see him do anything?
Note that directive and transitional questions will tend to be leading. As a technical
matter, however, these questions are permissible so long as they are used to orient the
witness, expedite the testimony, or introduce a new area of the examination. As a
practical matter, objections to directive and transitional questions are not likely to be
sustained so long as they are used relatively sparingly and are not asked in a tone that
seems to insist upon a certain answer. It is unethical to abuse transitional or directive
questions in a way that substitutes your testimony for that of the witness.

C. Reinitiate primacy
The doctrine of primacy tells us that the trier of fact will pay maximum attention to the
witness at the very beginning of the testimony. You can make further use of this principle

Unit 8- Witness Examination 169

by continuously “re-beginning” the examination. That is, every time you seem to start
anew, you will refocus the attention of the judge … . This technique can be called
reinitiating primacy, and there are several ways to achieve it. 36
…
D. Use incremental questions
Information usually can be obtained in either large or small pieces. Incremental questions
break the “whole” into its component pieces so that the testimony can be delivered in
greater, and therefore more persuasive detail.
A large non-incremental question might be,
Question: What did the robber look like?
Even a well-prepared witness will probably answer this question with a fairly general
description. A common response might be:
Answer: He was a white male, about twenty or twenty-five years old, may be six
feet tall.
You might be able to go back to supply any omitted information, but in doing so you
will risk giving the unfortunate impression of doing just that – filling in gaps in the
witness’s testimony. Furthermore, at some point in the backtracking a judge might
sustain an objection on the ground that the question – “Describe the robber” – had been
asked and answered.
An incremental approach to the issue of identification, on the other hand, would be
built upon a set of questions such as these:
Question: Were you able to get a good look at the robber?
Answer: Yes, I was able to see him clearly.
Question: How tall was he?
Answer: About six feet tall.
Question: How heavy was he?
Answer: He was heavy, almost fat, over 200 pounds.
Question: What race was he?
Answer: He was white.
Question: And his complexion?
Answer: He was very fair, with freckles.
Question: What color was his hair?

36
The details include, using headline questions (i.e. dividing the direct into series of smaller examinations
through the use of verbal headlines), and explaining the direction of the cross-examination (e.g. “Let’s talk
about the aftermath of the accident”).
170 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Answer: He was blond.
Question: How was his hair cut?
Answer: It wasn’t really cut at all – just sort of long and stingy.
Question: Did he have any facial hair?
Answer: A small mustache.
Question: Could you see his eyes?
Answer: Yes, he came right up to me.
Question: What color were they?
Answer: Blue.
Question: Was he wearing glasses?
Answer: Yes, he was.
Question: What sort of frame?
Answer: Round wire rims.
Question: Did he have any scars or marks?
Answer: Yes, he had a birthmark on his forehead.
Question: Was he wearing a jacket?
Answer: He had on a Philadelphia Flyers jacket.
…
The incremental question should be used sparingly. It will not work as an overall
principle since the unrestricted use of details will quickly overwhelm the trier of fact. Use
it only where the details are available, significant and convincing. …

E. Reflect time, distance and intensity

The very best direct examinations virtually re-create the incidents they describe, drawing
verbal images that all but place the trier of fact at the scene of the event. Your pace and
manner of questioning are essential in this process.
The timing or duration of an event, for example, is often crucial in a trial; one side
claims that things happened quickly and the other asserts that they were drawn out. It is
possible to use the pace of questioning to support your particular theory. Assume that
you represent the defendant in or fire truck case. His defense is that the fire engine
appeared only a moment before the collision, and that he just didn’t have enough time to
stop his car. The goal of the defendant’s direct examination must be to recreate the scene
by collapsing the time available to react to the fire truck. Hence, you will ask only a few,
fast-paced questions:
Question: When did the fire truck first become visible?
Answer: It approached the intersection just as I did.

Unit 8- Witness Examination 171

 Question: What was the very first action that you took?
Answer: I slammed on my brakes.
Question: How much time did it take?
Answer: Less than a second.
Note that the direct examination proceeds quickly emphasizing both shortness of time
and immediacy of response. This result will be enhanced if you fire off the questions, and
if the witness doesn’t pause before answering. …

F. Repeat important points

In every direct examination there will be several essential ideas that stand out as far more
important than the rest. Do not be satisfied to elicit those points only once. Repeat them.
Restate them. … (Y)ou will ned to employ your lawyer’s creativity to fashion numerous
slightly different questions, each stressing the same point. Repetition is the parent of
retention. And your most important points should arise again and again throughout the
testimony, to insure that they are retained by the trier of fact.
The corollary to this principle is that less important points should not be repeated in
like manner. Increased attention should be used to make key subjects stand out. If too
many points are given this treatment, they will all be made to seem equally important.
How do you decide which facts are sufficiently important to bear repetition? The answer
is to consider your theory and theme. You will want to repeat those facts that are basic to
your logical theory, and those that best evoke your moral theme. …
Thematic repetition may be more elusive or subtle. If the plaintiff’s theme is that the
defendant was “too busy to be careful, you will want to use repetition to emphasize how
unbusy the plaintiff was. …

G. Use visual aids

… Always consider whether the witness’s testimony can be illustrated. …
Demonstrations can also serve as visual aids. Ask the witness to re-enact crucial events or
to re-create important sounds. “Please show the (court) exactly how the defendant raised
his hand before he struck you.” …
Demonstrations must be carefully planned. They have an inevitable tendency to
backfire when ill-prepared. Be certain that your expectations are realistic. …

H. Avoid negative, lawyerly, and complex questions

For reasons unknown and unknowable, many lawyers think that it makes them sound
more professional when they phrase questions in the negative:
Question: Did you then not go to the telephone?

172 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
… (O)n direct examination your goal typically is to establish an affirmative case. It is
therefore beneficial to phrase your questions so that your witnesses can answer them
affirmatively. Do not use negative questions.
You must also avoid “lawyer talk.” Many … witnesses will not understand lawyerese
and virtually all will resent it. On the other hand, everyone, including judges, will
appreciate plain language. Do not ask,
Question: As what point in time did you alight from your vehicle?
Ask instead,
Question: When did you get out of your car?
Do not ask,
Question: What was your subsequent activity, conduct, or response with regard
to the negotiation of an offer and acceptance?
Opt for,
Question: What did you agree next?

Finally, do not pose questions that call for more than a single item or category of
information. Although a witness may be able to sort through a fairly simple compound
question – such as, “Where did you go and what did you do? – many will become
confused, and more will simply fail to answer the second part. Truly complex questions
will almost certainly fail to elicit the answer that you seek.

V. Adverse and Hostile Witnesses

From time to time it may be necessary to call a witness, such as the opposing party, who
will be hostile to your case. Because unfriendly witness cannot be expected to cooperate
in preparation, most jurisdictions allow the use of leading questions for the direct
examination of such witness. They fall into two broad categories: adverse and hostile
witnesses.

A. Adverse witnesses
Adverse witnesses include the opposing party and those identified with the opposing
party. Examples of witnesses identified with the opposing party include employees, close
relatives, business partners, and others who share a community of interest. It is within
the court’s discretion to determine whether any particular witness is sufficiently identified
with the opposition as to allow leading questions on direct examination.
It is important to alert the court to the fact that you are calling an adverse witness, lest
the judge sustain objections to leading questions. In the case of the opposing party,
counsel’s right to ask leading questions on direct will be obvious. Nonetheless, there is no
harm in stating that the witness is being called “as an adverse witness …

Unit 8- Witness Examination 173

 In the case of a non-party adverse witness, it will usually be necessary at the outset to
lay a foundation that establishes the witness’s identification with the opposition. It may
be as simple as in this example:
Question: Please state your name
Answer: My name is Andrew Connor
Question: Mr. Connor, are you employed by the defendant, South Suburban
Country Club?
Answer: Yes, I am.
…

B. Hostile witnesses
A hostile witness is one who, while not technically adverse, displays actual hostility to the
direct examiner or her client. The necessary characteristic may be manifested either
through expressed antagonism or evident reluctance to testify. Actually, a witness may
be treated as hostile if his testimony legitimately surprises the lawyer who called him to
the stand. Whatever the circumstances, it is generally necessary to have the court declare
a witness to be hostile before proceeding with leading questions.

C. Strategy
There are limited situations in which it may be profitable to call an adverse witness The
first is where the adverse witness is the only person who can supply an essential element
of your case. Thus the witness will have to be called in order to prevent a directed
verdict. For the same reason, an adverse witness might also be called to authenticate a
necessary document or to lay the foundation for some other exhibit. Finally, and most
perilously, an adverse or hostile witness might be called solely for the purpose of making
a bad impression on the trier of fact. Needless to say, this tactic has a strong potential to
backfire.
In general, adverse (and potentially hostile) witness should not be called unless it is
clearly necessary. As noted in the introduction to this section, direct examination
provides counsel with n opportunity to build a case. There is therefore great risk
involved in calling a witness who will be troublesome, uncooperative, or worse.
Moreover, calling an adverse witness allows opposing counsel to conduct, in the midst of
your case, a “cross-examination” that is very likely to resemble a final argument for the
other side. The scope of adverse testimony should therefore be made as narrow as
possible.
…
__________

174 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Section 4- Reading on Cross Examination

Cross Examination
Source: Thomas A. Mauet (2002) Trial Techniques, 6th Edition, (New York: Aspen
Publishers) pp. 217-239

Cross–examination. The term itself commands respect and even generates fear among
seasoned trial lawyers. Certainly, as far as the novice is concerned, no other area of trial
work generates as much uncertainty and mystery. How many times, at the conclusion of a
direct examination, has the thought flashed through every cross-examiner’s mind: “My
God! What do I do now?”
That countless writers have called cross-examination an art or intuitive skill hardly
helps. Copying a model cross-examination from a “how to” text rarely helps, because
every witness, in the context of a particular trial, is unique and must be treated as such. …

Should you cross-examine?

The decision to cross-examine cannot be intelligently made unless you have prepared the
cross-examination in advance and have a realistic understanding of what you can expect
to achieve during the cross-examination of any given witness. The key, as always, is
thorough preparation before trial. You know what your opponent’s theory of the case will
probably be. …You (might) know what the witness will probably testify to at trial. You
know your theory of he case, themes, and labels, and you know what the key disputed
facts and issues are. Therefore, you can decide on your purposes in a cross-examination,
then plan it and organize it in advance.
… [T]he need for thorough preparation to achieve an effective cross-examination has
been greatly increased. The days of “let’s see what he says on direct” are over, and a
“wait–and –see” attitude will usually guarantee failure.
Although you have prepared your cross-examination in advance, this does not
invariably mean that you will undertake it at trial. No one is required to cross-examine
every witness who testifies at trial. Whenever you get up to cross-examine, the [court]37
assumes that the witness has hurt you. When this is not the case, simply telling the judge,
“Your Honor, we have no questions for this witness, “or “no cross, your Honor,” sends
confident massages. Ask yourself the following questions whenever a witness has
finished his direct testimony, before automatically rising to being your cross-examination.

1. Has the witness hurt your case?

Not every witness will have a devastating impact at trial. Some witnesses may only
establish a required technical element of a claim or defense, or provide the foundation for
exhibits not in dispute. Others will simply be corroborative witnesses, and you have
already established your points with earlier ones. Where the witness has not damaged
your position, cross-examining him is not essential.

37
“Jury” in the original is replaced by ‘court’ throughout this reading.

Unit 8- Witness Examination 175

2. Is the witness important?
Keep in mind that [judges]38 have certain preconceived notions about trials, which include
the notion that every witness can and will be cross-examined by the opposing counsel.
You must acknowledge and accommodate the (court’s) expectations. Where the witness
has a significant role in the trial, this ordinarily means that you should undertake some
type of cross-examination. Failure to do so may generate negative impressions for the
[court] and invite negative comments from opposing counsel during closing arguments.

3. Was the witness’ testimony credible?

Sometimes a witness will not “come off right” and his testimony is not believable. Other
times a witness will be substantially contradicted by other witnesses. In those situations
the damage has been done before you can do anything, so leaving well enough may be
the soundest approach.

4. Did the witness give less than expected on direct?

Has the witness (or his lawyer) omitted an important part of his testimony? If so,
conducting a cross-examination may give the witness (or his lawyer) time to realize the
mistake and attempt to repair it on redirect. Don’t give the opposition a second chance.
Do you think the witness has intentionally withheld a damaging part of his testimony
on direct, hoping you will pursue it on cross? In other words, is the witness (or his
lawyer) “sandbagging”? Remember that damaging testimony is twice as damaging if
elicited during the cross-examination. Where you think the opposition is sandbagging on
an important point, consider foregoing cross-examination, in whole or in part.

5. What are your realistic expectation on cross?

Do you have any real ammunition to use during cross-examination? If the witness is
credible and your ammunition is weak, consider avoiding cross-examination altogether or
conducting a cursory cross on a peripheral point. Remember that during cross-
examinations, where a witness has made a reasonable impression on direct, the [court]
will side with the witness. The [court] sees the lawyer as sharp, crafty, and battle-tested,
the witness as inexperienced, frightened, and in need of protection. While these attitudes
may not always accurately reflect the true situation, they result in the same conclusion by
the [court]: in the cross-examination game, ties go to the witness. Accordingly, unless you
can realistically expect to score points during your cross-examination, avoid it or conduct
a cursory inquiry.

6. What risk do you need to take?

Trial lawyers always dream of taking to trial an invincible case, one where witness upon
witness simply overwhelms the opposition. This rarely happens, because perfect cases, if
they exist at all, are usually settled. Consequently, trials invariably involve calculated
risks. The number and extent of the risk depend on how good your case is. If your case is
solid and you can reasonably expect to win, keep your risks to a minimum. If, however,
your case is a probable loser that cannot be settled, you can cast caution to the winds and
conduct a risky cross that searches for the break that might turn the case around. If, as is

38
“Jurors” in the original has been replaced by ‘judges’ throughout the extract.
176 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
likely, that never occurs, your case will hardly be worse off than before. Accordingly,
“safe” cross-examinations should always be utilized in those cases where the facts are
close or favor your side. However, where your facts are bad and, barring luck, you can
confidently expect to lose, conducting “risky” cross-examinations is something you can
consider.

Purposes and order of cross-examinations

There are two basic purposes of cross-examinations:
a. Eliciting favorable testimony (the first purpose). This involves getting the witness to
admit those facts that support your case in chief and are consistent with your
theory of the case, themes, and labels.
b. Conducting a destructive cross (the second purpose). This involves asking the kinds of
questions that will discredit the witness or his testimony so that the (court) will
minimize or even disregard them.
Understanding these two basic broad purposes, and their order of use, is essential to
conducting effective cross–examinations. While you may utilize only one of the
approaches with some witnesses, you should always consider eliciting favorable
testimony form the witness before you attempt a destructive cross-examination.
Why this order? At the end of the direct examination, most witnesses will have
testified in a plausible fashion and their credibility will be high. This is the time to extract
favorable admissions and information from the witness, since the witness’ credibility will
enhance the impact of the admissions. Such admissions will have less impact, and be less
likely to occur, if you have previously attacked the witness.
Should you always undertake a destructive cross-examination? Not necessarily.
Remember that a destructive cross is one that attempts to discredit a witness or his
testimony so that the [court] will minimize or even disregard what the witness has stated.
If you have been successful in obtaining significant admissions, you may well decide to
omit any discrediting cross at all. Remember that trials make it difficult to have your cake
and eat it too. [Judges] will be understandably skeptical if you arguer that a witness’
favorable testimony should be believed, while that part of the testimony you attacked
should be disbelieved. Accordingly, where the witness’ admissions have been helpful,
thereafter conducting a destructive cross-examination will only undermine the
admissions. Discretion is often the better part of valor in such situations.

Elements of cross-examinations
1. Structure
Successful cross-examination follows a preconceived structure that gives the examination
a logical and persuasive order. That structure is based principally on the following
considerations.

a) Have your cross-examination establish as few basic points as possible

Your cross should preferably have no more than three or four points that support your
theory of the case, themes, and labels. Why no more? Always remember the [court’s]
finite capacity to retain information. The [court] receives facts aurally, and it often

Unit 8- Witness Examination 177

receives them only once. Attempting too much on cross-examination creates two
problems: the impact of your strong points will be diluted, and the less significant points
will be forgotten entirely by the time the [court] deliberates on its verdict. Therefore, stick
with the strongest ammunition and avoid the peripheral material. Always ask yourself:
what will I say about this witness during closing arguments? Is this point one I will
discuss during closing arguments? If the point is not important enough to make during
close arguments, it is probably not worth raising during the cross-examination either.

b) Make your strongest points at the beginning and end of your cross-examination.
Open with a flourish and end with a bang. Why? Again, the nature of the [court)] dictates
this approach. [Judges] remember best what they hear first and last. These are the
principles of “primacy” and “recency.” Their first and last impressions made during the
cross-examination will be the lasting ones. Try to use your themes and labels at the
beginning and end of the cross-examination.

c) Vary the order of your topics

Successful cross-examinations are sometimes based on indirection – the ability to establish
points without the witness perceiving your purpose or becoming aware of the point until
it has been established. Varying the order of your topics from the direct examination will
make it less likely that the witness will anticipate the purpose of a given line of questions.
After all, the direct examination was organized to be clear and persuasive. Why
automatically adopt that organization for your cross-examination? On the other hand,
constantly jumping from point to point is ineffective, since usually the [court] and you
become more confused than the witness.

d) Don’t repeat the direct examination!

This may be the most commonly violated maxim of good cross-examinations. Many are
the lawyers whose standard approach is to have the witness “tell it again,” in the
groundless hope that the witness’ testimony will somehow fall apart during the second
telling. This approach almost invariably fails. It has merit only in the rare situations where
the witness’ testimony appears memorized, or where major parts of the direct
examination support your theory of the case.

2. Rules for cross-examination

Your changes of conducting successful cross-examinations improve when you follow
certain rules that have withstood the test of time. While these, like any other rules, can be
ignored or violated in appropriate situations, following them is usually the safest
approach. These rules include the following.

a) Start and end crisply

The first minute sends messages! When you start your cross-examination, the [court]
expects you to do something noteworthy. If you don’t, the [court] would quickly
conclude that your cross-examination will add nothing to what they already learned from
the witness. Accordingly, don’t start your cross with useless introductory comments. …
Start immediately with something that grabs … attention. … The same psychology

178 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
applies to your last point: Make it an important point, make it interesting, and make it
crisp.

b) Know the probable answer to your questions before you ask the question
Play it safe. Many witnesses will seize every opportunity to hurt you. … This is not a
time to fish for interesting information or to satisfy your curiosity. Its sole purpose is to
elicit favorable facts or minimize the impact of the direct testimony. Accordingly, your
cross-examination should tread on safe ground. Ask questions that you know the witness
should answer a certain way, or, because he might not give exactly the expected answer,
questions that you know you can handle his response to.

c) Listen to the witness’ answers

This may appear to state the obvious, but te fact remains that lawyers often forget to do
just that. Witnesses constantly surprise you. Unless you are watching and listening, you
will miss nuances and gradations in the witness’ testimony. Reluctance and hesitation in
answering will be overlooked. Don’t bury your fact in your notes, worrying about the
next questions while the witness is answering the last one. Organize your notes into
cross-examination topics, then formulate your actual questions spontaneously. This way
you can watch the witness as he listens and answers, gauge the witness’ reaction to your
question and the tone of his answer, and intelligently formulate follow-up questions. …

d) Don’t argue with the witness

Cross examination can be frustrating. The answers will often not be to your liking. The
temptation, therefore, to argue with the witness is always present. Resist the temptation.
… Lawyers who succumb to this weakness are usually those who conduct cross-
examinations like fishing expeditions. Repeatedly getting bad answers, they begin to
argue with the witness. The possibility of this happening can be substantially reduced
simply by carefully organizing and structuring your cross-examinations in advance.

e) Don’t ask the witness to explain

Open-ended questions are inappropriate on cross-examination. Hostile witnesses are
always looking for an opening to slip in a damaging answer. Questions that ask “what,”
“how,” or “why” or elicit explanations of any kind invite disaster. These kinds of
questions are best avoided altogether on cross-examination. They’re the kind of questions
the redirect examination should ask.

f) Don’t ask the one-question-too-many

The traditional approach in cross-examinations was to make all your points during the
cross-examination itself. The modern approach has an entirely different emphasis and
level of subtlety. You ask only enough questions on cross-examination to establish the
points you intend to make during your closing argument. This means that you will avoid
asking the last question that explicitly drives home your point. Instead, your cross will
merely suggest the point. During the closing argument you will rhetorically pose that last
question and answer it the way you want it answered when the witness is not around to
give you a bad answer.

Unit 8- Witness Examination 179

Example:
You want to establish that the witness did not see the collision until after the initial impact
and therefore really doesn’t know how the accident happened.
Q. You weren’t expecting a collision at the intersection, were you?
A. No.
Q. You’d gone through that corner many times without any collisions occurring,
hadn’t you?
A. Yes.
Q. The weather was good?
A. Yes.
Q. The traffic was normal?
A. Yes.
Q. As you approached the corner you were talking with your passenger, isn’t that
right?
A. Yes.
Q. The first unusual thing you heard was the sound of a crash, wasn’t it?
A. Yes.
Q. And that’s when you noticed that a crash had just occurred, isn’t that true?
A. Yes.

At this point, stop! You’ve made your point. Don’t ask the last obvious question: “so you
didn’t really see the cars before the crash occurred, did you? The witness will always give
you a bad answer. Instead, save it for your closing argument:
Example:
Remember what Mr. Doe said on cross-examination? He testified that the first unusual sound
he heard was the crash, and then he noticed that a crash between the two cars had just happened.
Did he see the crash itself? Of course not. Did he see where the cars were before the crash? Of
course not.
The problem is always recognizing what that last question you shouldn’t ask is, before
you inadvertently ask it. Perhaps the best safeguard against doing this is to ask yourself:
what’s the final point about this witness that I’ll want to make during closing arguments?
When you decide on the point, make sure you don’t ask it as a question during the cross
–examination.

g) Stop when finished

Cross-examination continuously tempts you to keep going on. There is always one more
question you could ask. There is always one more point that you might be able to
establish. Resist this natural temptation to fish for additional points. It’s dangerous.
Moreover, the [court] has a limited attention span and can maintain a high level of

180 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 concentration for only 15 to 20 minutes. Stick with your game plan and get to your last
big point before the [court] gets restless or bored. Make your point, stop, and sit down.

3. Questioning Style
Cross-examination requires a different attitude and verbal approach by the lawyer from
those on direct examination. Effective direct examinations normally require you to
assume a secondary role, remain in the background, and ask open–ended questions that
let the witness dominate the [court’s] attention. Cross-examination, in terms of the
lawyer’s position and manner of questioning, is the mirror opposite of direct
examinations. Accordingly, you should follow certain rules when conducting cross-
examinations.

a) Make your question leading

This is an oft-violated rule. Questions like “what’s the next thing you did? And “Describe
what the intersection looked like” have little place on cross, particularly where important
testimony is involved. A leading question is one that suggests the answer and is the basic
form you should use for cross-examinations. Inexperienced trial lawyers usually make
two interrelated mistakes: they lead too much on direct and too little on cross. The best
way to cure such mistakes is to consciously avoid them before they become an irreversible
habit.

Example (proper leading forms):

Q. Mr. Doe, on December 13, 2000, you owned a car, didn’t you?
Q. You left that intersection before the police arrived, isn’t that correct?
Q. You had two drinks in the hour before the collision, right?
These are all obviously leading questions. Another approach is to make the question
leading, not through your language, but through your intonation and attitude, which
make it obvious to the witness what answers you are expecting. The advantage of this
approach is that the questions are simpler, making it effective when you want to establish
a series of related points.

Example:
Q. Ms. Jones, the robbery happened around 9:00 PM.?
A. Yes.
Q. It was dark?
A. It was nighttime?
Q. The sun was down?
A. Yes.
Q. Stores were closed?
A. Yes.
Q. Not many cars driving around?
A. Not many.

Unit 8- Witness Examination 181

 Q. You said there were lights form the street lights?
A. Yes.
Q. And they were at the street corners?
A. Yes.
Q. But there weren’t any street lights in the middle of the block?
A. No.
Q. And that’s where the robbery happened, didn’t it?
A. Yes

The only time you can safely ignore the rule is when the answer is not important – you
know that the witness must give a certain answer because he has been previously
committed to that answer by prior statements –or because any other answer will defy
common sense or other evidence. You can then safely ask a nonleading question, because
you can effectively impeach any unexpected answer.
Asking nonleading questions can break up the monotony of constantly leading
questions. However, you get near important, contested matters; the leading form is the
only safe questioning method.

b) Make a statement of fact and have the witness agree to it

During cross-examination you are the person who should make the principal assertion
and statements of facts. The witness should simply be asked to agree with each of your
statements. In a sense, you testify, the witness ratifies. By phrasing your questions
narrowly, asking only one specific fact in each question, you should be able to get “yes,”
“no,” or short answers to each question. Keep in mind that whenever the witness is given
the chance to give a long, self-serving answer, he will.
c) Use short, clear questions, bit by bit
Cross-examination is in part the art of slowly making mountains out of molehills. Don’t
make you big points in one question. Lead up to each point with a series of short, precise
questions that establish each point bit by bit.

Example:
The cross-examiner wants to establish that the witness did not actually see pedestrian get
hit by a car. Don’t ask: “you didn’t really see the pedestrian get hit by the car, did you?”
this is the classic “one-question-too-many.” It’s the point you will argue later in closings.
The witness will always give you an unfavorable answer, and it’s much better to lead up
to that point by several short questions.

Q. You’re familiar with the intersection of North and Clark?

A. Yes.
Q. In fact, you’ve driven through that intersection over the past five years,
haven’t you?

182 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 A. Yes.
Q. You usually go through the intersection on your way to and from work?
A. Yes.
Q. So over the past five years, you’ve driven through the intersection over a
thousand times?
A. Probably.
Q. You never saw a pedestrian hit by a car there before, did you?
A. No.
Q. On December 13, 2000, the weather was clear and dry?
A. Yes.
Q. The traffic was pretty much the way it always is at that time of day, wasn’t it?
A. Yes, I’d say so.
Q. Nothing was going on that made you pay more than your usual attention to
the road?
A. No.
Q. In fact, just before the accident you were thinking about what you were going
to do at work that morning, weren’t you?
A. I might have been.
Q. So the first unusual thing that you noticed that morning was the sound of the
crash, wasn’t it?
A. Yes.
Q. And that’s when you saw that someone had been hit by a car wasn’t it.?
A. Yes.

Notice that by a series of interrelated, progressive questions you have demonstrated that
the witness was not expecting a crash and really did not notice anything until after
hearing the sound of the crash. You have made your point by indirection. Notice that
what would be a last question, “so you didn’t really see the pedestrian before the crash,
did you?” was not asked. The witness will invariably say “yes,” or something even more
damaging. As noted above, that is the question you want to save and answer in your
closing argument.

d) keep control over the witness

Control comes in large part by asking precisely phrased leading questions that never give
the witness an opening to hurt you. But it has another facet. Control means forcing the
witness to obey evidentially rules, particularly those involving nonresponsive answers.
When the witness continuously gives such answers, a common approach is to move to
strike the answer and, if warranted, ask the court to admonish the witness.

Unit 8- Witness Examination 183

Example:
Q. You recognized the driver of the car, didn’t you?
A. Yes.
Q. It was Frank Jones, wasn’t it?
A. Yes. He was weaving and looked drunk.
Q. Objection, your Honor, we ask that the answer after “yes” be struck as
nonresponsive, and the [court] be instructed to disregard it.
Court: The answer will be stricken. The [court] will disregard it.
Of course the [court] cannot disregard it, since you cannot “unring a bell.” However, it
does serve a valuable purpose by letting the (court) know that the witness’ conduct is
improper, adversely affecting the witness’s credibility. If the witness repeatedly gives
nonresponsive answers, consider asking the court to admonish him.

Example:
Q. Your Honor, could the witness be admonished to answer the question and only
the question?
Court: Yes Mr. Smith, you will only answer the questions asked. This is not the
place for speeches.
If after such an admonition the witness continues to volunteer answers, the [court] will
realize how biased and partial the witness is and judge his testimony accordingly.
The disadvantage of moving to strike and disregard is the message it sends the [court]
about you, the cross-examiner. The subliminal message the [court] gets is that you are
incapable of handling a problem witness and need to run to the judge for help. For that
reason, many lawyers choose not to move to strike and disregard unresponsive and other
improper answers unless doing so is necessary to preserve an important point as error on
appeal.
A more effective approach to controlling problem witnesses is to let the witness know
that you will not be deterred by an unresponsive answer and will insist on a proper one.
If the witness then gives a proper answer, you have made your point. If the witness
refuses to give a proper answer, you have demonstrated to the [court] that the witness is
being evasive or unfair, and you have again scored pints by discrediting the witness. You
can do this simply by repeating the same question, or rephrasing it slightly. If the other
side objects that your question is repetitive, your response will be that the witness has yet
to answer it properly.

Example:
Q. Mr. Jones, between 8:00 and 9:00 P.M., you drank five bottles of beer in the
tavern, didn’t you?
A. Well, we were all drinking.
Q. Mr. Jones, my question is, you drank five bottles of beer during that hour,
didn’t you?

184 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 A. I guess so.

Another method of control is to let the witness know that you have total command of the
facts and will immediately know if the witness is telling you anything less than the total
truth.

Example:
Q. Mr. Jones, there were three other persons sitting at your table in the tavern,
weren’t there?
A. Yes.
Q. They were Jimmy Smith, James Oliver, and Wilbur Franklin, correct?
A. Yes.
Q. Wilbur was sitting across from you?
A. Yes.
Q. And he’s tall, thin, and has a deep voice, isn’t that right?
A. Yes.
Q. And it was during that time in the tavern that you told Wilbur and the others,
“I ditched the stolen car in the parking lot,” isn’t that right?
A. I guess so.

By demonstrating to the witness, before asking the important question, that you know the
facts – because you probably talked to the other persons present in the tavern – you have
a much lesser risk that the witness will give you an inaccurate or altogether false answer
under the mistaken impression that you don’t really know the true facts.

e) Project a confident, take-charge attitude

On cross-examination, you should be the center of attention. Consistent with proper
procedure and good taste, act the role. Ask questions in a voice and manner that projects
confidence, both to the [court] and the witness. Let the [court] know your attitude about
the facts. On direct examination, how you ask a question is as important as the question
itself. Projecting humor, incredulity, and sarcasm are all a proper part of cross-
examination. Use them in appropriate situations. Above all, make sure the witness
understands and feels your attitude about the facts of the case and your expectations in
your questioning. Projecting that attitude usually has a significant impact in obtaining the
answers you want.
Projecting confidence, however, is different from being unnecessarily hard on the
witness. Cross-examination does not require examining crossly. The [court] will react
negatively if you sound and act tough on the witness without a good reason for your
attitude.

f) Be a good actor
Every cross-examiner, no matter how experienced, careful, and talented, will get bad
answers to questions. When this happens, a good poker face is invaluable. [Courts], when

Unit 8- Witness Examination 185

they hear what appears to be a devastating answer, will look around the courtroom and
gauge the reaction of the judge, lawyers, and spectators. When the witness does drop a
bomb, don’t react to it. Simply go on as if nothing really happened. If you refuse to make
anything of the answer, you have minimized its impact, and the [court] may well
conclude that the answer was not as damaging as it first appeared to be.

g) Use a natural style

While trying cases requires you to conform your conduct as a lawyer to certain rules,
there is a great deal of latitude that permits the personalities of the lawyers to come out.
As in other phases of trial work, there are many styles with which you can conduct cross-
examinations. However, there is only one solid rule you should follow: use the style that
in natural to you, that you feel comfortable with. [Courts] will immediately spot and
lawyer who is attempting to copy someone else’s style. The style that is natural for you
will invariably be the one that is the most effective as well.
…
__________

186 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Section 5- Reading on Redirect Examination
Redirect Examination and Rehabilitation
Source: Steven Lubet, Modern Trial Advocacy: Analysis and Practice, National
Institute for Trial Advocacy, 2nd Edition, 1997 (Chapter Seven, pp. 209-214)
Footnotes that make further reference to Federal Rules of Evidence are
omitted

I Purpose of Redirect
Redirect Examination, which allows counsel an opportunity to respond to the cross
examination, may be used for a number of purposes. The witness may be asked to explain
points that were explored during the cross, to untangle seeming inconsistencies, to correct
errors or misstatements, or to rebut new charges or inferences. In other words, the
purpose of redirect is to minimize or undo the damage, if any, that was effected during
the cross examination.
…
II Law of Procedure
A. Scope
Because redirect is allowed for counteracting or responding to the cross examination, the
material that can be covered on redirect is technically limited to the scope of the cross. …
Almost all courts … insist that counsel is not free to introduce a wholly new matter on
redirect. The redirect must always have some reasonable relationship to the cross
examination. …

B. Rules of Evidence
All the rules of direct examination apply equally to redirect examination. Leading
questions are prohibited, witnesses may not testify in narrative form, testimony must
come from personal knowledge, lay opinions are limited to sensory perceptions, and the
proper foundation must be laid to refresh recollections.
…

III Planned Redirect

Most redirect examinations cannot be thoroughly planned, since each must be closely
responsive to the preceding cross examination. Nonetheless, it is possible to anticipate
that certain areas will have to be covered on redirect and to prepare accordingly.
It is not always possible to know which lines of cross examination will actually be
pursued. Counsel would not want to use the direct examination to explain away a cross
that might never materialize. Thus, an explanation may be best reserved for redirect in
the event that the cross examination ultimately probes that particular area. It is both
possible and necessary to plan for such contingencies.
For example, a witness may have given a prior statement that is arguably impeaching.
While there may be a perfectly reasonable response to any apparent inconsistency, it
would undermine the witness to bring up the earlier statement during the direct. An
explanation would only make sense once the cross examiner actually effected the

Unit 8- Witness Examination 187

impeachment. Consequently, the best approach in this situation is probably to defer the
explanation until the redirect.
… (in such situations)… it is possible to plan a segment of the redirect. … Note,
however, that … (the) technique of withholding testimony until redirect is not
recommended for affirmative evidence or elements of your case.

IV Waiving Redirect
Redirect examination is (sometimes not) necessary. As with all witness examinations,
redirect should only be pursues if it will contribute to your theory of the case.
There is no need to ask additional questions if the witness was not appreciably hurt by the
cross examination. Additionally, some damage cannot be repaired; it is a mistake to
engage in redirect examination if the situation cannot be improved. The worst
miscalculation, however, is to surprise the witness with a redirect examination. Do not
ask for an explanation unless you are certain that the witness has one.
… Finally, an unnecessary redirect risks repeating, and therefore reemphasizing the
cross examination. It can also trivialize the effect of the direct by rehashing minor points.

V Conducting Redirect
Content is the most important aspect of redirect examination. The redirect should
concentrate on a few significant points that definitely can be developed. As noted above,
these can typically include explanations, clarifications, or responses.

A. Explanations
Explanations are best obtained by asking for them. Focus the witness’s attention on the
pertinent area of the cross examination and then simply ask he to proceed:
Question: Defense counsel pointed out that you did not visit your doctor
immediately following your camping trip at Eagle River Falls. Why
didn’t you go to the doctor right away?
This approach can also be used to bring out clarifying facts, made relevant by the cross-
examination:
Question: How soon after the camping trip did you visit the doctor?
A witness may have been frustrated by the control exerted by the cross examiner. If the
level of control seemed unfair or unjustified this can be pointed out during the redirect.
Consider:
Question: Defense counsel seemed very concerned that you did not go to the
doctor immediately after your camping trip, but she didn’t ask you for
an explanation. Would you like to explain?
Or,
Question: I noticed that the defense counsel cut you off when you tried to
continue your answer about the camping trip. What was it that you
wanted to say?
Or,

188 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
 Question: There was a lot of cross examination about your camping trip, but
counsel didn’t ask you anything about what your doctor eventually
prescribed for you. What treatment did you get?
While the introductions in the above examples are arguably leading, they are probably
permissible efforts to direct the witness’s attention. Nonetheless, preambles of this sort,
should not be overused. They are likely to be effective only where the cross examination
truly was overbearing and oppressive.

B. Rehabilitation
Redirect can be used specifically for rehabilitation of a witness who has been impeached
with a prior inconsistent statement.
1. Technique
The technique of rehabilitation is similar to that used for any other explanation. Direct the
witness’s attention to the supposed impeachment and request for clarification. It may be
that the alleged inconsistency can be easily resolved or that the earlier statement was the
product of a misunderstanding or misinterpretation. Whatever the explanation, it is
important to conclude the rehabilitation with an affirmative statement of the witness’s
current testimony.
In the following example the plaintiff in the fire truck case testified on direct examination
that the fire engine had been sounding its siren and flashing its lights. On cross
examination she was impeached with her deposition in which she stated that the fire
truck “had not been using all of its warning devices.” She might be rehabilitated on
redirect as follows:
Question: In your deposition you said that the fire truck was not using all its
warning signals. Can you explain how that fits in with your testimony
today about the lights and the siren?
Answer: When I answered the deposition question I was thinking about the
horn as an additional warning signal, and as far as I can recall the fire
truck was not sounding its horn.
Question: Which warning devices was the fire truck using?
Answer: It was definitely sounding its siren and flashing all of its red lights.

2. Prior consistent statements

A witness can also be rehabilitated through the introduction of a prior consistent

statement. Although a witness’s own previous out-of-court account would ordinarily be
hearsay, a prior consistent statement is admissible to “rebut an express or implied charge
… of recent fabrication or improper influence or motive,”

Accordingly, once the cross examiner suggests that the witness has changed her story, the
direct examiner may show that the witness’s testimony is consistent with an earlier report
or other statement. …

__________
Unit 8- Witness Examination 189
 Review Exercises
(Students are advised to give names to X and Y, and specify time and places)

Task 1

You are a public prosecutor. A police report is submitted to your office.

You want to draft a charge against Ato X (an accountant in a bank) who,
while driving, has causes injury on Ato Y’s left leg in the Wollo Sefer road.
Medical evidence shows that the victim has lost 20% of his capacity to work
as a guard, a job he had until the date of the injury. You want to charge Ato
X with negligent bodily injury.

a) Draft a charge

b) Attach list of evidence and state the factual proposition/s to be proved by

each witness, document or real evidence.

Task 2 (Alternative to Task 1)

You are an attorney. Ato X, the person accused of having caused bodily
injury through negligent driving, has come to your office. He gave you
copy of the charge which invokes Article 559/2 of the 2004 Criminal Code.
Ato X swears to you that the victim came into the road unexpectedly
although it was part of the street marked for pedestrian pass.

a) Can you invoke accident based on Article 57 of the Criminal Code?

b) Do you think that Article 559/1 should have been invoked in the charge
instead of Article 559/2?

c) List down potential sources of proof and state the factual propositions to
be proved by each witness, document or real evidence.

__________

190 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009