1. AUSA Michael Davis Southern District of Florida
Direct Examination
AUSA Michael Davis
Southern District of Florida

2. Be wary of “cookbook rules” or “instruction manuals” for trying cases.

3. Direct Examination Will
Be The Backbone Of
Your Case

4. Use Direct Examination To Assist The Jury In:
Understanding
Remembering, and
Crediting
Your Evidence

5. Subjects of this Presentation
Presenting your questions on direct
Ideas for enhancing the effectiveness of your direct
What to do when things go awry
The value of preparation

6. Presenting Your Questions on Direct
The requirement of non-leading questions
Distinguishing between leading and non-leading questions
Focused, non-leading questions versus broad, unguided questions
Tone, inflection, and eye contact
The problems with scripted questions
Keeping the attention focused on the witness

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

8. Presenting Your Questions - Distinguishing Between Leading and Non-Leading Questions
A “leading” question is a question that suggests the answer or, put differently, a question that puts the answer in the witness’s mouth.
“After you left the grocery store, you next went to the dry cleaner, didn’t you?”
- versus –
“After you left the grocery store, where did you go next?”

9. “Yes-No” Questions and the Need to Let Your Witness
Presenting Your Questions - Distinguishing Between Leading and Non-Leading Questions
“Yes-No” Questions and
the Need to Let Your Witness
Do as Much of the Talking as
Possible

10. Presenting Your Questions - Distinguishing Between Leading and Non-Leading Questions
Q. What sort of cars was he driving?
A. All kinds of nice cars, Lexus, Mercedes Benz, Navigator. He start[ed] to shine.
Q. When you say "shine," what do you mean?
A. Big life.
Q. What else about his appearance caused you to conclude [that] he started to shine?
A. A lot of jewelry, nice dresses.

11. Presenting Your Questions
Focused, Non-Leading Questions and the Difficulty Presented by
“What Happened?” Questions

12. Presenting Your Questions –Tone, Inflection, and Eye Contact
Consider how difficult some jurors will find it to sit passively for long periods of time
Engage the jury and engage the witness
But be careful not to lay it on too thick

13. Presenting Your Questions
The Problem with Pre-Scripted Questions—
Listen to the witness’ answer before
You ask the next question!

14. Presenting Your Questions
The Goal of an Effective Direct is
To Make the Witness
the Center of Attention

15. Ideas for Enhancing the Effectiveness of Your Direct
Put yourself in your jurors’ seats
Think of things that will assist the jurors in:
Following the testimony
Understanding the testimony
Maintaining their interest
Appreciating how the testimony of one witness relates to other witnesses and the case as a whole

16. Ideas for Enhancing the Effectiveness of Your Direct
Introductory/transition phrases, “looping” questions, and “cueing” questions with exhibits
Using your ears
Organizing the direct and the order of your witnesses
Using exhibits to help the jury visualize, remember, and credit

17. Enhancing Your Direct – Introductory/Transition Phrases
“Turning to August 19, 1999, where were you at approximately 6:00 that morning?”
“Earlier in your testimony, you mentioned a safe that the defendant kept in your bedroom closet when you were living together. I would like to return to that.”

18. Enhancing Your Direct – “Looping” Questions
Q: What assignment did you receive in mid-June 1997?
A: My boss asked me to audit a series of claims that had been submitted by a contractor who had provided cable TV services to a series of bases that we were closing.
Q: After you received the audit assignment, who did you contact?
A: The contractor’s comptroller.
Q: Why?
A: To set up a meeting so I could start the audit.

19. BUT . . . Don’t Go Overboard with Introductory/Transition Phrases
Enhancing Your Direct – Introductory/Transition Phrases and “Looping” Questions
BUT Don’t Go Overboard with
Introductory/Transition Phrases
and “Looping” Questions

20. Consider Using Exhibits to “Cue” Testimony Use Exhibits to Direct the
Enhancing Your Direct
Consider Using Exhibits
to “Cue” Testimony
Use Exhibits to Direct the
Flow of Testimony

21. Enhancing Your Direct – Use Your Ears
LISTEN!!
Q: When you met Johnny in the parking lot, what did Johnny give to you?
A: Six.
Q: What did you give Johnny in return?
A: A cookie.

22. Enhancing Your Direct – Use Your Ears
Q: When you met Johnny in the parking lot, what did Johnny give to you?
A: Six.
Q: Six what?
A: Six hundred dollars.
Q: What did you give Johnny in return?
A: A cookie.
Q: What is a cookie?
A: An ounce of crack cocaine.
Q: Why do you call it a cookie?
A: Because it is shaped like a cookie.

23. Enhancing Your Direct – Organizing the Direct
Consider “warming up” the witness and the jury by starting with introductory questions
Consider chronological and categorical approaches
Consider where to “front” the baggage
Remember that “fronting” baggage does not necessarily mean that it should be at the front of your direct

24. Enhancing Your Direct – Organizing the Order of Your Witnesses
Consider whether your evidence calls for:
“Starting with a bang”
Starting with shorter, simpler witnesses to build into more complicated witnesses
Arranging your witnesses to meet evidentiary predicates
Consider where your cooperators fit best in the sequence

25. Use Exhibits to Help the Jury Visualize, Remember, and
Enhancing Your Direct
Use Exhibits to Help the
Jury Visualize, Remember, and
Credit the Witness’s Testimony

26. What To Do When Things Go Awry
Keep your cool
Remember that the jury is always watching

27. The Value of Preparation
Be aware of your witness’s frame of mind
Prepare yourself before you meet with your witness. Know the case.
Prepare your witnesses
For the process of testifying
For the substance of their testimony
For the wait to testify
Witness preparation is not a one-size-fits-all endeavor

28. The Value of Preparation
Prepare your assistant/paralegal to assist you at trial.
Prepare yourself before you call the witness to the stand
Where should you stand?
Where is your file?
Where are the exhibits and are they pre-marked?
Is the courtroom equipment working and ready to go?