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Direct Examination AUSA Michael Davis Southern District of Florida.

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Presentation on theme: "Direct Examination AUSA Michael Davis Southern District of Florida."— Presentation transcript:

1 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 Understanding Remembering, and Remembering, and Crediting Crediting Your Evidence

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

6 Presenting Your Questions on Direct 1.The requirement of non-leading questions 2.Distinguishing between leading and non-leading questions 3.Focused, non-leading questions versus broad, unguided questions 4.Tone, inflection, and eye contact 5.The problems with scripted questions 6.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. 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 witnesss mouth. A leading question is a question that suggests the answer or, put differently, a question that puts the answer in the witnesss mouth. After you left the grocery store, you next went to the dry cleaner, didnt you? After you left the grocery store, you next went to the dry cleaner, didnt you? - versus – After you left the grocery store, where did you go next? After you left the grocery store, where did you go next?

9 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 Consider how difficult some jurors will find it to sit passively for long periods of time Engage the jury and engage the witness Engage the jury and engage the witness But be careful not to lay it on too thick 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 Put yourself in your jurors seats Think of things that will assist the jurors in: Think of things that will assist the jurors in: Following the testimony Following the testimony Understanding the testimony Understanding the testimony Maintaining their interest Maintaining their interest Appreciating how the testimony of one witness relates to other witnesses and the case as a whole 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 1.Introductory/transition phrases, looping questions, and cueing questions with exhibits 2.Using your ears 3.Organizing the direct and the order of your witnesses 4.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? 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. 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 contractors comptroller. Q:Why? A:To set up a meeting so I could start the audit.

19 Enhancing Your Direct – Introductory/Transition Phrases and Looping Questions BUT... Dont Go Overboard with Introductory/Transition Phrases and Looping Questions and Looping Questions

20 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 warming up the witness and the jury by starting with introductory questions Consider chronological and categorical approaches Consider chronological and categorical approaches Consider where to front the baggage Consider where to front the baggage Remember that fronting baggage does not necessarily mean that it should be at the front of your direct 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 : Consider whether your evidence calls for : Starting with a bang Starting with a bang Starting with shorter, simpler witnesses to build into more complicated witnesses Starting with shorter, simpler witnesses to build into more complicated witnesses Arranging your witnesses to meet evidentiary predicates Arranging your witnesses to meet evidentiary predicates Consider where your cooperators fit best in the sequence Consider where your cooperators fit best in the sequence

25 Enhancing Your Direct Use Exhibits to Help the Jury Visualize, Remember, and Credit the Witnesss Testimony

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

27 The Value of Preparation Be aware of your witnesss frame of mind Be aware of your witnesss frame of mind Prepare yourself before you meet with your witness. Know the case. Prepare yourself before you meet with your witness. Know the case. Prepare your witnesses Prepare your witnesses For the process of testifying For the process of testifying For the substance of their testimony For the substance of their testimony For the wait to testify For the wait to testify Witness preparation is not a one-size-fits-all endeavor 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 your assistant/paralegal to assist you at trial. Prepare yourself before you call the witness to the stand Prepare yourself before you call the witness to the stand Where should you stand? Where should you stand? Where is your file? Where is your file? Where are the exhibits and are they pre-marked? Where are the exhibits and are they pre-marked? Is the courtroom equipment working and ready to go? Is the courtroom equipment working and ready to go?


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