2 Organization Of Discussion Direct examination techniquesRefreshing recollection, past recollection recorded, looping for emphasis, saving topics for re-direct examinationCross-examination techniquesPrior inconsistent statements, dealing with improving memories, attacking character for truthfulness, impeaching with felony convictions, bringing out general biasRehabilitationReviving your witness after character, bias, or motive attacks.
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.
7 Recorded Recollection What if the witness still does not remember?Witness’s memory cannot be refreshedThe out of court statement, or hearsay, can be admitted as a hearsay exceptionPast recollection recorded, C.R.E 803(5)Same foundation as refreshing recollection except one big difference
8 Recorded Recollection HearsayRequires a hearsay exceptionC.R.E. 803(5): Based on reliability
9 C.R.E. 803(5) Requirements: A memorandum or record made by, or adopted by, the witnessWitness had knowledge,but now has insufficientrecollectionAdopted 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 admittedAgain, 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 crossSome topics must be saved:Rehabilitation with prior consistent statement or evidence of truthful characterOptional: Strategic use of topics that may be damaging or riskyBe 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.
14 Prior Inconsistent Statements A common method of impeaching a witness:That is not what you said beforeHearsay?Impeachment statements are not hearsay: not being offered for the truthThe Three Cs:Confirm, Credit and Confront
15 Confirm Confirm Did you say on direct examination that …? Show the jury/bench you do not believe itBody, tone and language
16 CreditSeek to bolster the creditability of the prior statement as much as possibleWays to credit the prior statement:Timing of prior statementKnowledge of importance of statementOath or other formalitiesExample: 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 ConfrontImpeachment 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 impeachSometimes referred to as an impeachment by omissionPrior inconsistent statement foundation with one additionBuild up creditability of the prior statement, just as done beforeAND build up the importance of the new factShowing that it is so important, no reasonable person would have omitted itAnd yet, there is no evidence of it in prior statementConfrontation:Hand prior statement to witnessAsk witness to point out where new fact is included in prior statementWitness is unable to do it.
19 Impeaching Character Character is generally inadmissible C.R.E. 404(a) Character of a witness for truthfulnessC.R.E. 404(a)(3) and C.R.E. 608
20 Truthful Character of Witness Evidence of truthful character admissible only after attack on truthfulnessBut only after attack on truthfulnessUsed as rebuttal evidenceOpinion and/or reputation evidenceC.R.E 608(b)
21 Impeaching With Conviction C.R.S. §Credibility of any witness may be attacked with his or her felony convictionsAny felony conviction can be used (not just crimes of truthfulness)But different rules for civil and criminal casesCivil: Can only use felony convictions that are less than 5 years old
22 Business Records C.R.E. 803 (6) Records of regularly conducted activityWitnessRecords made contemporaneouslyKept in course of regular business activityRegular practice to make such reports
24 Rehabilitating Witnesses Evidence of prior consistent statements: C.R.E. 801(d)(1)(B): consistent with W’s testimony and offered in rebuttalEvidence of truthful character: C.R.E. 608(a)(2): only to rebut attack on W’s credibility.
26 Two Types Of WitnessesThe sympathetic witness: Trier of fact likely to find very credibleThe uncooperative witness: The witness who will not answer the questions, or fights with you
27 Sympathetic Witnesses Theory of the case to eliminate attackEmpathyBe up front
28 Uncooperative Witnesses Good Theme And Good QuestionsRepeatingClarifyingReversingSo The Answer Is YesUsing The HandAsking For Help
29 Good QuestionsThe most important cross-examination technique – for all witnesses – is to ask good questions.Leading questionsOne fact per questionBuild incrementallyBuild in a logical orderCan be a declarative statementAvoid conclusionsAvoid 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 ;andYou 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?”
41 Expert Witness during the Pre-Trial Phase How to select your own expertHow to use your own expertOther strategies to use during pre-trial when anticipating expert testimonyEducating yourself about the issuesAdequate discovery
42 Direct Examination Qualifying the expert: C.R.E. 702 Offering the expertBases of the opinion: C.R.E. 703Explaining the opinion: C.R.E. 703 and 705Offering the opinion
43 Qualifying The ExpertC.R.E. 702: “a witness qualified by knowledge, skill, experience, training or education”
44 Qualifying The TopicC.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 principlesWitness qualificationsHelpfulness 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 problemCommon 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, orThe 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 answeredMost judges will allow it
49 CROSS-EXAMINATION of the Expert Use their expert to prove or build your theory of the caseWeaken their expert by using new facts or bad facts from your case
50 Get Your Own ExpertTrying to “out-expert” their expert is a mistake unless you have your ownYour expert helps youUnderstand the topicPrepare cross-examination questionsPresent opposing testimony
51 New And/Or Bad FactsGIGOGarbage in, garbage out
52 ObjectionsObjections 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 OverviewGotta make themGotta refrain from overdoing
54 How To Object CRE 103(a)(1) Basic objection Speaking objection Timely and specificBasic objectionObjection, hearsay.Speaking objectionCan land you in hot waterPlain English objectionSo the jurors understand