1. Advanced Direct and Cross-Examination
Module 2

2. Organization Of Discussion
Direct examination techniques
Refreshing recollection, past recollection recorded, looping for emphasis, saving topics for re-direct examination
Cross-examination techniques
Prior inconsistent statements, dealing with improving memories, attacking character for truthfulness, impeaching with felony convictions, bringing out general bias
Rehabilitation
Reviving your witness after character, bias, or motive attacks.

3. Direct Examination

4. Refreshing Recollection
Steps:
First, try to see if witness can refresh him/herself.
If not, what else might help refresh his/her memory?
Basic method: Will this document help? Witness looks at it. What’s your answer now?

5. Mechanics of Refreshing
Think of the foundation as a grocery list :
First establish that the witness has forgotten something.
Then establish that there is something that would help him or her remember.
Ask to approach with the document.
Show the witness the document.
Ask the witness to read the document and then put it down.
Retrieve the document.
Ask if the witness’s memory is refreshed.
Repeat the question.

6. Mechanics, Continued
Retrieve it
Ask again
Interesting foundation?

7. Recorded Recollection
What if the witness still does not remember?
Witness’s memory cannot be refreshed
The out of court statement, or hearsay, can be admitted as a hearsay exception
Past recollection recorded, C.R.E 803(5)
Same foundation as refreshing recollection except one big difference

8. Recorded Recollection
Hearsay
Requires a hearsay exception
C.R.E. 803(5): Based on reliability

9. C.R.E. 803(5) Requirements: A memorandum or record made by, or
adopted by, the witness
Witness had knowledge,
but now has insufficient
recollection
Adopted or made when knowledge was fresh

10. Recorded Recollection
Same foundation as refreshing recollection,
BUT must include questions about when and why the document was made or adopted.
Document read into the record NOT admitted
Again, interesting foundation

11. Looping Repeating an answer Instead “loop” Example:
Question: “Please describe the car.”
Answer: “It was a red sports car.”
“How fast was the red sports car going?”

12. Saving Topics Redirect:
Purpose is to rehabilitate or rebut information brought out on cross
Some topics must be saved:
Rehabilitation with prior consistent statement or evidence of truthful character
Optional: Strategic use of topics that may be damaging or risky
Be careful: If cross-examination is waived, there is NO redirect.
Also redirect is limited to areas that were explored in cross examination.
May not introduce new topics just because you forgot to ask about them during your direct examination.

13. Cross Examination

14. Prior Inconsistent Statements
A common method of impeaching a witness:
That is not what you said before
Hearsay?
Impeachment statements are not hearsay: not being offered for the truth
The Three Cs:
Confirm, Credit and Confront

15. Confirm Confirm Did you say on direct examination that …?
Show the jury/bench you do not believe it
Body, tone and language

16. Credit
Seek to bolster the creditability of the prior statement as much as possible
Ways to credit the prior statement:
Timing of prior statement
Knowledge of importance of statement
Oath or other formalities
Example: To the caseworker on the stand: “You wrote this affidavit right after you completed your intake investigation. In fact, you wrote it on the same day. You knew the affidavit would be submitted to court.”

17. Confront
Impeachment requires that you confront the witness with her prior statement.
Methods for confrontation

18. “Improving” Testimony: Another type of Impeachment Problem:
witness on the stand starts to testify to “New facts”
There is no “inconsistent” statement with which to impeach
Sometimes referred to as an impeachment by omission
Prior inconsistent statement foundation with one addition
Build up creditability of the prior statement, just as done before
AND build up the importance of the new fact
Showing that it is so important, no reasonable person would have omitted it
And yet, there is no evidence of it in prior statement
Confrontation:
Hand prior statement to witness
Ask witness to point out where new fact is included in prior statement
Witness is unable to do it.

19. Impeaching Character Character is generally inadmissible C.R.E. 404(a)
Character of a witness for truthfulness
C.R.E. 404(a)(3) and C.R.E. 608

20. Truthful Character of Witness
Evidence of truthful character admissible only after attack on truthfulness
But only after attack on truthfulness
Used as rebuttal evidence
Opinion and/or reputation evidence
C.R.E 608(b)

21. Impeaching With Conviction
C.R.S. §
Credibility of any witness may be attacked with his or her felony convictions
Any felony conviction can be used (not just crimes of truthfulness)
But different rules for civil and criminal cases
Civil: Can only use felony convictions that are less than 5 years old

22. Business Records C.R.E. 803 (6)
Records of regularly conducted activity
Witness
Records made contemporaneously
Kept in course of regular business activity
Regular practice to make such reports

23. Re-Direct Examination

24. Rehabilitating Witnesses
Evidence of prior consistent statements: C.R.E. 801(d)(1)(B): consistent with W’s testimony and offered in rebuttal
Evidence of truthful character: C.R.E. 608(a)(2): only to rebut attack on W’s credibility.

25. Difficult Witnesses

26. Two Types Of Witnesses
The sympathetic witness: Trier of fact likely to find very credible
The uncooperative witness: The witness who will not answer the questions, or fights with you

27. Sympathetic Witnesses
Theory of the case to eliminate attack
Empathy
Be up front

28. Uncooperative Witnesses
Good Theme And Good Questions
Repeating
Clarifying
Reversing
So The Answer Is Yes
Using The Hand
Asking For Help

29. Good Questions
The most important cross-examination technique – for all witnesses – is to ask good questions.
Leading questions
One fact per question
Build incrementally
Build in a logical order
Can be a declarative statement
Avoid conclusions
Avoid adjectives

30. Examples of good questions
Elicits one fact;
Uses clear and precise language;
Is short;
Has good pace and presentation;
And that you know the answer ;and
You know where to find the answer.
Examples:
“You made a referral in this case”
“The referral was for my client, Ms. Jones”
“The referral was for Ms. Jones to take urine analysis, or UAs”
“The referral was for urine analysis at Whiz Quiz”
“You made this referral on October 10th”
“You made the referral by calling Whiz Quiz……”

31. More suggestions for dealing with difficult witnesses
Q: “Ms. Jones took a UA”
Q: “And the result was negative”
A: “Yes, but she missed a UA”
Then ask follow up questions about the missed UA….

32. Repeating “Let me ask you again.”
“Will the court reporter read the last question?”
“Perhaps I was not clear, what I am asking is…”

33. Clarifying “I am not asking you about X, I am asking you…”
“We can talk about X in a moment, all I am asking you right now is…”
“You can talk about X with opposing counsel, all I am asking you right now is…”

34. So The Answer Is Yes “So, the answer to my question is yes?”
A variation of clarifying

35. Reversing Using an opposite fact to get clarity
Example: “The light was red, wasn’t it”
“So the light was green?”

36. Using The Hand

37. Using The Hand
When witnesses start to talk for too long, try putting up the “stop” sign.
The examiner does not have to say anything, but instead uses body language to control the witness.

38. Asking For Help
When is it okay, and how do you do it?

39. Making A Deal
Good idea? Bad idea?

40. Expert Witnesses

41. Expert Witness during the Pre-Trial Phase
How to select your own expert
How to use your own expert
Other strategies to use during pre-trial when anticipating expert testimony
Educating yourself about the issues
Adequate discovery

42. Direct Examination Qualifying the expert: C.R.E. 702
Offering the expert
Bases of the opinion: C.R.E. 703
Explaining the opinion: C.R.E. 703 and 705
Offering the opinion

43. Qualifying The Expert
C.R.E. 702: “a witness qualified by knowledge, skill, experience, training or education”

44. Qualifying The Topic
C.R.E. 702: “scientific, technical or other specialized knowledge [that will help the jury] understand the evidence or determine a fact in issue”

45. Qualifying The Process
NO F.R.E. 702 equivalent in Colorado….
People v. Shreck, 2 P.3d 68 (2001)
Reliable scientific principles
Witness qualifications
Helpfulness to the trier of fact

46. Opinion Elicit the opinion from the expert
Based on the education, training and methods you have described, have you reached a conclusion (with a reasonable degree of scientific certainty)
What is that opinion

47. Explanation Basis of the opinion – admissible? Elements intertwined:
Cart and horse problem
Common errors with the “basis” of the opinion and inadmissible hearsay 
In order for an expert to testify to the substance that makes up the basis of his or her opinion,
The basis must be independently admissible, or
The probative value in understanding the expert’s opinion “substantially outweighs” its prejudice.
In other words, there is a presumption against admissibility here that is nearly the exact opposite of the presumption of admissibility that is part of the 403 balancing test, or the basis is offered by the opponent.
The opponent of the opinion has a right to explore the bases of the opinion as part of the right of cross-examination. 

48. Opinion Elicit the opinion from the expert again!
Technically, it has been asked and answered
Most judges will allow it

49. CROSS-EXAMINATION of the Expert
Use their expert to prove or build your theory of the case
Weaken their expert by using new facts or bad facts from your case

50. Get Your Own Expert
Trying to “out-expert” their expert is a mistake unless you have your own
Your expert helps you
Understand the topic
Prepare cross-examination questions
Present opposing testimony

51. New And/Or Bad Facts
GIGO
Garbage in, garbage out

52. Objections
Objections are the fun part of trial work, although they tend to be underutilized in our dependency and neglect cases. Let’s look at objections in detail.

53. Overview
Gotta make them
Gotta refrain from overdoing

54. How To Object CRE 103(a)(1) Basic objection Speaking objection
Timely and specific
Basic objection
Objection, hearsay.
Speaking objection
Can land you in hot water
Plain English objection
So the jurors understand

55. Making A Record
Offer of Proof: CRE 103(a)(2)

56. Anticipating Objections
Motions in limine
Improper form of the question