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

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

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

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

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

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

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

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

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

“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

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