In the United States, after the opening statements, the prosecutor begins direct examination of his first witness. Direct examination consists of questioning by the party who called the witness and the witness's testimony under oath in response to such questioning. Direct examination is typically conducted to explain a party's story and elicit evidence that will satisfy that party's burden of proof. After the prosecution has finished calling all of its witnesses and such witnesses have been cross examined by the defense, the defense will have the opportunity to conduct a direct examination of its own witnesses who will then be cross-examined by the prosecution. The defense lawyer should carefully evaluate which witnesses he wants to testify at trial, including the criminal defendant. In the United States, the criminal defendant has the right not to testify at trial and for strategic reasons, the defense lawyer may counsel his client not to take the stand. The defense lawyer will have to consider whether he believes the witnesses he plans to call at trial will support his version of the events, whether the witnesses will be believed by the jury, and whether the witnesses could be effectively cross examined by the prosecution.
Direct examination of expert witnesses requires additional time and preparation.
Like all aspects of the trial, the direct examination should be driven by the defendant's theory of the case.
Direct examination offers the defense lawyer an opportunity to establish the foundation of his arguments and to communicate the themes of his case to the jury. Direct examination should begin with a series of background questions, the purpose of which is to introduce the witness to the jury and to make the witness appear personable, credible, and trustworthy. To accomplish this, the defense lawyer should ask open-ended questions that will humanize the witness. For example, the defense lawyer should begin his questioning by asking, "Sir, would you please introduce yourself to the jury," as opposed to more formal questions such as, "Sir, please state and spell your full name for the jury." After eliciting the appropriate background information, the defense lawyer should next elicit testimony regarding facts relevant to his case. Usually these facts are presented in chronological order. The defense lawyer should use his questions to stretch out and highlight the important parts of the story. For example, if the defense lawyer wants to emphasize that his client was far away from the assault and therefore not involved, the defense lawyer can stretch out the testimony from an eyewitness on this topic as follows:
- Now, Mr. Eyewitness, you told the jury that my client was standing across the street from the site of the assault. I'd like to explore that a bit. How many lanes of traffic are on each side of this street?
- How wide are the lanes of traffic?
- Is there a bicycle path along the side of this street?
- How wide is the bike path?
- Is there a sidewalk?
- How wide is the sidewalk?
- Are cars parked on both sides of the street?
- How many cars were parked on this street on the day of the assault?
Tips for an Effective Direct Examination
- Get the details. During direct examination, the defense lawyer should seek to paint a picture of his version of the events for the jury. The defense lawyer should elicit as many details as possible during direct examination, so that all the jurors have the same visual image in their minds.
- Use Exhibits. The defense lawyer should use demonstrative aids whenever possible. Photos, maps, slides, videos and other visual aids will help the jurors understand the defense story and also keep them interested in the case.
- Be Organized. A simple organization for direct examination answers the following questions: Who is the witness? When did the event happen? Where did it happen? Where was the witness when it happened? How did it happen? In order to make his examination easy to follow, the defense lawyer should signal the jury when moving from one topic to the next. For example, the defense lawyer should state, "Now, let's move from your relationship with the defendant to the day of the event."
- Confuse the jury. The defense lawyer should be careful not to ask questions of the witness that will blur the mental picture for the jurors. For example, the defense lawyer should avoid questions that call for superfluous details, statements that can be easily disputed, or facts that don't make sense. The defense lawyer should remember that he knows more about the case than the jurors ever will. He should view the case from the jurors' perspective and present only the information necessary for the jurors to understand the case.
- Ignore the witness. The defense lawyer should be careful to listen to the witness and ask appropriate follow up questions so that the jury can understand the defense's version of events. The defense lawyer should be careful not to be too tied to his outline of questions, such that he ignores what the witness says. Follow up questions may be critical to eliciting the most effective testimony from a witness.
- Ask leading questions. The defense lawyer should ask open ended questions that allow the witness to tell his version of the events. Leading questions are those that call for a yes or no answer and are usually not permitted during direct examination. For example, the defense lawyer should ask, "Tell the jury what you saw on the evening of the assault" as opposed to "You didn't see the defendant the evening of the assault, did you?"
After the prosecution has the opportunity to cross examine the defense witnesses, the defense has an opportunity to conduct a redirect examination. Redirect examination is a chance for the defense lawyer to show the jury that the witness got it right on direct examination, that is to say, that the witness wasn't mistaken in his observation or didn't draw an illogical conclusion. Redirect examinations should be short and should only be conducted when it is necessary to rehabilitate the witness by clearing up an inconsistency created during the cross examination. Redirect examination cannot go beyond the scope of the direct examination.
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