1. How Witnesses are Examined
Direct Examination
Conducted by the attorney who called the witness to the stand - can cover any relevant topic.
Cross Examination
Conducted by opposing attorney.
Limited to:
Topics discussed on direct examination
Credibility/bias of the witness
Re-Direct Examination (and re-cross…)
Only to address topics covered in cross examination
Questioning by the judge
The judge can do this at his/her discretion.
Evidence Lecture 8

2. Safeguards to Ensure Truthful Testimony
The following rules of evidence have been developed to ensure that witnesses tell the truth:
Testimony must be in person (unless certain exceptions apply that allow testimony by affidavit)
Oath or Affirmation
Testimony is on “penalty of perjury”
Personal knowledge (unless a hearsay exception applies)
Testimony is subject to cross examination
When can a witness’ deposition or affidavit be used in lieu of live testimony? Some examples:
Death or incapacity occurs before trial
Unavailability or refusal to testify
Some child victims of abuse
Evidence Lecture 8

3. Witness Preparation 1
Preparing witnesses is a key component of trial preparation. At a minimum, this job must include the following steps:
1) Interview the witness
Find out exactly what the witness knows and can testify to, and what might come to light on cross examination
Gauge how competent and convincing the witness is
If the witness can’t convince you, chances are s/he can’t convince the jury either
2) Investigation
Does the witness have any criminal history that can be used on cross?
If the witness’ story is consistent within itself and with other facts
Evidence Lecture 8

4. Witness Preparation 2
3) Before a witness testifies, s/he should be thoroughly prepared in terms of:
What kinds of questions to expect
How to testify in a truthful and straightforward manner
The importance of being direct and to the point (no waffling)
How to make eye contact with the jury
How to respond to issues that might come up on cross examination
Etc.
However, a witness, of course, must NOT…
Be told to lie or, in any way, mislead the court or the jury
Be “coached” into giving an answer that the witness is not comfortable giving
Evidence Lecture 8

5. Direct Examination
A foundation must be established for every piece of important evidence given by the witness.
Make sure to ask questions that elicit information about how the witness knows to what s/he is testifying.
Questions that assume facts not in evidence are improper; e.g.
“When did you stop drinking?” is inappropriate unless we already know from testimony that:
1) the witness was drinking
2) the witness stopped drinking
Compound questions are improper; e.g.,
“Were you speeding and if so, why?”
“Do you drink and how much?”
Evidence Lecture 8

6. Leading Questions
Leading Questions are generally NOT allowed because the lawyer is, in effect, testifying for the witness. Examples:
“Did you see the defendant drive 50 miles per hour?”
“You saw it happen, didn’t you?”
Exceptions: Leading questions may be allowed:
Where they are “preliminary” (in the interest of saving time and speeding things along)
“Were you in Flagstaff on the 17th?”
On cross-examination
On direct examination, where the attorney gets permission from the judge to treat the witness as a “hostile witness”
used when the witness is uncooperative
Evidence Lecture 8

7. Helping a Forgetful Witness
What happens if you ask a question and the witness says “I don’t remember”?
There are two basic ways to refresh a witness’ memory:
Present Memory Refreshed
You can present the witness with anything that will “jog” his or her memory, including notes, pictures etc., but:
The testimony must come from the witness’ memory, not from the prop itself
The prop is not entered into evidence, however, the other side must have access to the prop.
Past Recollection Recorded
This is used if the witness still can’t remember the incident
It must be introduced into evidence (and must qualify for a hearsay exception) and the witness then reads the document
Evidence Lecture 8

8. Use of Prior Statements
At any time, you can ask a witness about a prior inconsistent statement.
In such a case, you need not disclose the source of the statement or let the other side examine it.
But, keep in mind, if the witness simply denies making it and you don’t prove that s/he did make it, it will be useless.
Extrinsic Evidence of a Prior Inconsistent statement
e.g., police report, deposition transcript, etc.
This can introduced but…
The witness must be given a chance to explain; and
The other side must have the chance to examine the evidence of the prior inconsistent statement
Evidence Lecture 8

9. Cross Examination The purposes of cross examination are:
To discredit the witness
To elicit other facts that will hurt the testimony
To narrow down the testimony as much as possible
To elicit facts that will help your case
Scope of Cross Examination is generally restricted to:
Subjects brought up on direct examination
However, the trial judge has a lot of discretion in enforcing this rule.
Impeaching the credibility of the witness (for whatever reason)
Evidence Lecture 8

10. “Rehabilitation” of Witnesses
After cross examination hurts the quality of testimony, it may make sense to redirect to “rehabilitate” the testimony, including:
Allowing the witness to expound on something cut off during cross examination
Allowing the witness to deny bias implied during cross examination
Allowing the witness to explain prior convictions brought up during cross examination
Allowing the witness to explain more reasons that s/he is sure of the previous testimony
Etc.
Evidence Lecture 8

11. Other Rules Regarding Witness Examination
The judge can interrogate, or even call, witnesses, on his or her own accord.
Religious beliefs or opinions may not be used to discredit a witness. However, when religious belief goes to the essence of a relevant point, it may be brought up.
A court can exclude a future witness from being present in the courtroom so as not to allow him or her to have later testimony be tainted by hearing earlier testimony.
However, someone with a key stake in the case, like a party, cannot be excluded.
Evidence Lecture 8