Do now: To the best of your knowledge, what do you think is the purpose of the direct examination.

Objectives: SWBAT Understand how to formulate a direct examination Understand the purpose of a direct examination and what role it plays in trial procedure. Understand the law of direct examination Implement questioning techniques Distinguish between “Good” and “Bad” Questions Prepare a Direct examination of a witnesss

Direct Examination Cases are won on direct examination. It is the heart of your case It is the opportunity to present the substance of your case.

Direct Examination should A. Introduce Undisputed Facts B. Enhance the Likelihood of Disputed Facts C. Lay Foundations for the Introduction of Exhibitions D. Reflect upon the Credibility of Witnesses E. Hold the Attention of the Trier of Fact.

The Law of Direct Examination A. Competence of Witness B. Non-leading Questions One that contains or suggests its own answers. Question: Of course, you crossed the street didn’t you? (Objection: Leading) C. NO narratives Witnesses may not testify in narrative form Example: non-narrative: What did you do next? Example: narrative: Tell us everything that you did that day (Objection: Narrative) D. The Non-Opinion Rule Witnesses testify to sensory observations: see, hear, smell, touch, taste or do. Only experts can draw conclusions (Objections: Witness is not an expert) E. Refreshing Recollection -May use document if establish that witness is exhausted -Show document; ask if “remember now” remove document. -document may not be offered as a substitute for witnesses memory

Planning Three fundamental aspects: CONTENT, ORGANIZATION and TECHNIQUE Principal tool is the knowledge of the witness.

CONTENT What to Include: Facts necessary to establish your theory Reasons Explanations Credibility What to Exclude: Clutter Unprovables Implausibles Impeachables Door Openers

Organization and Structure Keys: Translate the witness’s memory of events into a coherent and persuasive story. Primacy and Recency: People tend to remember best those things they hear frist and last Apposition The placement or juxtaposition of important facts in a manner that emphasizes there relationship Duration - The amount of time that you spend on a various aspects of your direct examination Repetition - Important points should be repeated.

Guidelines for organization Start strong and End Strong: Overall Examination Start strong and End Strong: Sub Examination Use Topical Organization Do Not Interrupt the Action Give Separate Attention to the Details Try not to Scatter Circumstantial Evidence Defensive Direct Get bad out first to lesson the effect Affirmation Before Refutation Get to the Point End with a Clincher *Ignore any rule when necessary

Questioning Technique Use short, open questions Question: Where did you go that day? Question: What happened after that Question: Tell us who was there Question: What else happened Question: Describe where you were.

Questioning Technique Use Directive and Transitional Questions: *Question: Were you in pain after the accident? (having directed the witness’s attention, you can now revert to your short, open questions) -Question: Please describe how you felt. -Question: Where else did you hurt? -Question: How has this affected your life?

Questioning Technique Reinitiate Primacy – the doctrine of primacy tells us that the trier of fact will pay maximum attention to the witness at the very beginning of the testimony. Use General Headline Questions Good: Were you involved in an accident? Bad: What happened as you were driving on? Explain Where you are Going Use Body Movement Use Incremental Questions: Bad: What did he look like? Good: Were your able to get a good look at the person? How tall was he? How heavy was he? What was his complexion?

Questioning Technique Reflect time Distance and Intensity Question: When did the truck become visible Question: What was the first action you took? Question: How much time did that take? Repeat Important Points Use Visual Aids Avoid Negative, Lawyerly and Complex Questions Question: Did you not then go to the telephone? Question: At what point in time did you alight from your vehicle? Question: What was your subsequent activity, conduct, or response with regard to the negotiation of an offer and acceptance?

Essential Questions: 1. What is the purpose of Direct Examinations? 2. What is the Law of Direct Examination? 3. What 3 elements are essential to the planning of a direct examination? What should the content include? How should the direct examination be organized? What are the guidelines for questioning techniques?

Activity: Students will prepare a direct examination of a witness with a partner. For each witnesses one student will serve as the lawyer and the other the witness. Remember to implements the skills, techniques and guidelines outlined in this presentation in your direct. *Always begin by introducing the witness A. State your name: B. What is your occupation: Then get into your direct remembering the purpose is to elicit from your witness the information that is essential to proving the theme/theory of your case

Sample: Question: State your name. Answer: Ms Baser Question: What is your occupation: Answer: I am a teacher. Question: Where do you work? Answer: I work at BTHS. Question: Is that a specialized high school? (OBJECTION: Leading) Question: What kind of a school is BTHS?