Presentation on theme: "AUSA Michael Davis Southern District of Florida"— Presentation transcript:
1AUSA Michael Davis Southern District of Florida Direct ExaminationAUSA Michael DavisSouthern District of Florida
2Be wary of “cookbook rules” or “instruction manuals” for trying cases.
3Direct Examination Will Be The Backbone OfYour Case
4Use Direct Examination To Assist The Jury In: UnderstandingRemembering, andCreditingYour Evidence
5Subjects of this Presentation Presenting your questions on directIdeas for enhancing the effectiveness of your directWhat to do when things go awryThe value of preparation
6Presenting Your Questions on Direct The requirement of non-leading questionsDistinguishing between leading and non-leading questionsFocused, non-leading questions versus broad, unguided questionsTone, inflection, and eye contactThe problems with scripted questionsKeeping the attention focused on the witness
7Presenting 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.”
8Presenting 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 andthe Need to Let Your WitnessDo as Much of the Talking asPossible
10Presenting 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.
11Presenting Your Questions Focused, Non-Leading Questions and the Difficulty Presented by“What Happened?” Questions
12Presenting Your Questions –Tone, Inflection, and Eye Contact Consider how difficult some jurors will find it to sit passively for long periods of timeEngage the jury and engage the witnessBut be careful not to lay it on too thick
13Presenting Your Questions The Problem with Pre-Scripted Questions—Listen to the witness’ answer beforeYou ask the next question!
14Presenting Your Questions The Goal of an Effective Direct isTo Make the Witnessthe Center of Attention
15Ideas for Enhancing the Effectiveness of Your Direct Put yourself in your jurors’ seatsThink of things that will assist the jurors in:Following the testimonyUnderstanding the testimonyMaintaining their interestAppreciating how the testimony of one witness relates to other witnesses and the case as a whole
16Ideas for Enhancing the Effectiveness of Your Direct Introductory/transition phrases, “looping” questions, and “cueing” questions with exhibitsUsing your earsOrganizing the direct and the order of your witnessesUsing exhibits to help the jury visualize, remember, and credit
17Enhancing 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.”
18Enhancing 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.
19BUT . . . Don’t Go Overboard with Introductory/Transition Phrases Enhancing Your Direct – Introductory/Transition Phrases and “Looping” QuestionsBUT Don’t Go Overboard withIntroductory/Transition Phrasesand “Looping” Questions
20Consider Using Exhibits to “Cue” Testimony Use Exhibits to Direct the Enhancing Your DirectConsider Using Exhibitsto “Cue” TestimonyUse Exhibits to Direct theFlow of Testimony
21Enhancing 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.
22Enhancing 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.
23Enhancing Your Direct – Organizing the Direct Consider “warming up” the witness and the jury by starting with introductory questionsConsider chronological and categorical approachesConsider where to “front” the baggageRemember that “fronting” baggage does not necessarily mean that it should be at the front of your direct
24Enhancing 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 witnessesArranging your witnesses to meet evidentiary predicatesConsider where your cooperators fit best in the sequence
25Use Exhibits to Help the Jury Visualize, Remember, and Enhancing Your DirectUse Exhibits to Help theJury Visualize, Remember, andCredit the Witness’s Testimony
26What To Do When Things Go Awry Keep your coolRemember that the jury is always watching
27The Value of Preparation Be aware of your witness’s frame of mindPrepare yourself before you meet with your witness. Know the case.Prepare your witnessesFor the process of testifyingFor the substance of their testimonyFor the wait to testifyWitness preparation is not a one-size-fits-all endeavor
28The Value of Preparation Prepare your assistant/paralegal to assist you at trial.Prepare yourself before you call the witness to the standWhere 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?