Chapter 2: DIRECT EXAMINATION
3. Lay foundations for the
Direct examination, defined:
The questioning of a witness by the
party calling the witness in order to
establish a foundation for a position or
fact.
The fulcrum of the trial, and the aspect
on which all else turns. Direct
examination is the heart of your case.
Goals for Direct Examination:
1. Introduce undisputed facts
 There are facts that are not in
dispute, for this reason, they
should be place in evidence
through a witness’s testimony,
for this to be considered by the
judge or jurors.
 Undisputed facts are often
necessary to establish an
element of your case. Failing to
include them often leads to an
unfavorable verdict
2. Enhance the likelihood of
disputed facts
 The most important facts in a
trial will normally be those in
dispute. Direct exam is your
opportunity to put forward your
client’s version of the disputed
facts.
 Introduce evidence persuasively.
 Establish the certainty of facts
and claim that the other side is
untrue
introduction of exhibits
 Documents, photos, writing,
tangible objects and other forms
of real evidence can be central
to your case.
 It is also necessary to lay
foundation for the direct
testimony of a witness.
4. Reflect on the credibility of a
witness.
 That’s why most direct
examinations begin with some
background information about
the witness.
Examples:
o What does she do for a
living?
o Where does she go to
school?
o How long has she lived in
the community?
Credibility attacked on Cross: How
to counter it-
The credibility of your witness
should be attacked in the cross
examination, and you can counter
this by bolstering the witness’
believability during his direct.
Thru eliciting:
 the basis of her knowledge
 her ability to observe
  her lack of bias or interest in the
outcome of the case.
5. Hold the attention of the trier
of fact
 Introduce it in a manner that
holds the attention of the judge.
 Direct examination also has the
highest potential for dissolving
boredom, inattention and
routine.
 You must take extreme care to
prepare your direct examination
in a way that maximized its
impact.
THE LAW OF DIRECT EXAMINATION:
Evidence offered on must be relevant,
authentic, not hearsay, and
inadmissible.
Competence of Witness:
All witness to testify must be legally
competent. This means that the
witness must possess personal
knowledge of some issue in the case, is
able to perceive and relate information
and is capable of recognizing the
difference between truth and falsity,
and lastly, understands the seriousness
of testifying under oath.
For a child, the examination must
establish that the witness is a capable
of distinguishing reality from fantasy,
and is able to perceive such
relationships as time and distance, and
appreciates that it is wrong to tell a
lie.
 VOIR DIRE, a preliminary cross
examination limited to an issue
in competence.
 EXCEPTIONS: Expert witnesses,
judges and jurors
Non-leading Questions:
A leading question is one that contains
or suggests its own answer. Since a
witness is presumed to have already
conducted an interview and to know
what the testimony will be, leading
questions are disallowed to ensure that
the testimony will come in the
witness’s own words.
An example of leading questions:
Q: Of course, you crossed the street,
didn’t you?
- Not only does the question
contain its own affirmative
answer, its format also demands
that it be answered in the
affirmative. This is disallowed.
An example of a non-leading question:
Q: Did you cross the street?
- Although the question is
answerable by yes or no, it does
not control the witnesses’
response.
There are however, numerous
exceptions to the rule against leading
questions on direct examination. A
lawyer is generally permitted to lead a
witness on preliminary matters, on
issues that are not dispute, for the
following but not limited reasons:
- to direct the witness
- drawing attention to a topic
- to expedite the testimony on
nonessential points
- to refresh a witness’s
recollection.
- It is also permissible to lead
witnesses who are very young,
extremely old, infirm, confused,
or frightened.
It is always within the judge’s
discretion to permit leading questions
to make the examination effective for
the ascertainment of the truth, avoid
needless consumption of time, and to
protect the witness from undue
embarrassment or if it is otherwise
necessary you develop the testimony.
Narratives.
A witness may not testify on a narrative
form. The term narrative means to
answer beyond a single specific
question. These are lengthy and are
said to call for a narrative answer.
Examples:
 What did you do next?
 Tell us everything that you did
that day.
Narratives are often allowed, when the
witness is qualified as an expert.
Non-opinion rule
Witnesses are only expected to testify
as to their sensory observations.
What did the witness…
 See
 Hear
 Smell
 Touch
 Taste
 Do?
A lay witness is allowed to give
opinions that are rationally based on
the witness’s perception.
Thus they can draw conclusions on
speed, distance, volume, weight, time,
temperature and weather. Similarly, a
lay witness can also characterize the
behavior of others as angry, drunken,
affectionate or irrational.
Refreshing Recollection:
They are not expected to have perfect
recall. Under the circumstances of
stress, fatigue, discomfort to
forgetfulness, the direct examiner may
call for the “refresh” of the witness’s
recollection.
1. Establish the witness’s memory
that it is exhausted concerning a
specific issue or event.
2. Determine that her memory
might be refreshed by reference
to a certain writing
3. Show the writing to the witness
 4. Allow her time to examine it and 3. Ask questions in language that
ask whether her memory has directs the progress of the
returned. examination without putting
5. If the answer is “Yes”, remove words in the witness’s mouth.
the document and request the
Content.
witness to continue her
testimony What the witness has to say—must be
the driving force of every examination.
Recall that direct examination provides
Note that in this situation the
for your best opportunity to prove your
testimony must come from the
case.
witness’s own restored memory, the
document may not be offered as a Purpose: either establish some aspect
substitute. of your theory or it must contribute to
the persuasiveness of your theme.
PLANNING THE DIRECT EXAMINATION
1. Content
2. Organization Ask yourself these following questions:
3. Technique
 Why am I calling this witness?
Knowledge of the witness: your  Which elements of your claims
principal tool in presenting a persuasive or defenses will the witness
direct examination address?
 How can the witness be used to
Content: make this accurate and
controvert an element of the
believable
other side’s case?
How to enhance content:  What exhibits can be introduced
through the witness?
1. Language
2. Focus  How can the witness detract
3. Pacing from the credibility of others
4. Rapport who will testify?
 How can the witness add moral
Effective Organization: strength to the case?
1. Requires sequencing an
examination in a manner that
provides for logical Prioritize and discard. Work and
development. eliminate all nonessential facts that are
questionable subject to impeachment,
2. Emphasize important points and cumulative, distasteful, implausible,
minimizing damaging ones. distracting or just plain boring.

What to include?
1. List the witness’s facts
necessary to establish your
theory.
 What is the single most
important thing that the
witness has to say?
 What are the witness’s
collateral facts that will
make the central
information more
plausible?
Include thematic facts that
gives your case a moral appeal.
Search for details that support
your image of the defendant as
busy, preoccupied, and
unconcerned for safety
Content Checklist:
 Reasons: stories are more
persuasive when they include
reasons for witness’s own
actions.
 Explanations: if the testimony is
not self explanatory, or where it
raises obvious questions, simply
ask the witness to explain again.
 Credibility: show that the
witness is neutral and
disinterested. Allow him to deny
any expected charges of bias or
misconduct. Elicit the personal
background of probity and
honesty.
The process of elimination: What to
exclude?
 Clutter
The single greatest vice in direct
examination.
How to determine a clutter: ask what
it contributes to the persuasiveness of
your story.
 Does it supply a reason for the
way that someone acted?
 Does it make an important fact
more or less likely?
 Does it affect the credibility or
authority of a witness?
 Does it enhance the moral value
of your story?
If all is answered in the negative,
everything is a clutter.
 Unprovables:
While not false, they may be
subjected to such vigorous
dispute as to make them
unusable.
 Is the witness the only person
who claims to have observed the
event while many other credible
witnesses swear to the precise
contrary?
 Is the witness herself less than
certain?

 Is the testimony contradicted by
credible documentary evidence?
Many true facts will be disputed by
the other side, and your case will
virtually always turn on your ability
to persuade the trier of fact that
your version is correct.
 Implausibles
They might be true, they might
be useful, free from possible
contradiction, but they still just
won’t fly.
 Impeachables
These are statements which are
open to contradiction by the
witness’s own prior statements.
 Impeachment by prior
inconsistent statement: the
witnesses’ previous words
may be used to cast doubt on
their credibility.
 Door Openers
Fairness requires that the cross
examiner be allowed to explore
any topic that was deliberately
introduced on direct. Learn to
recognize these doors and avoid
this so that there could no be
further exploitation of those
facts on cross.
ORGANIZATION AND STRUCTURE
The tool which you translate the
witnesses’ memory on events into a
coherent and persuasive story. This
requires idiom, art, and poetry.
The trial lawyer does not simply ask a
witness to tell everything you know,
but instead uses the placement and
sequence of information to heighten
and clarify its value.
Keys to Organization:
 Primacy and recency
A widely accepted phenomenon
that people tend best to
remember to see things that
they hear first and last.
The important parts of a direct
examination should be brought
out at its beginning and again at
its end. Less important
information should be
sandwiched in the middle.
 Apposition
The placement or juxtaposition
of important facts in a manner
that emphasizes their
relationship.
 Duration
Refers to the relative amount of
time that you spend on the
various aspects of the direct
examination. Dwell more on the
important points, using the very
length of coverage to emphasize
its significance; and less
important matters consuming
less of the direct examination.
 Repetition: a corollary of
duration. Important points
should be repeated, preferably
throughout the direct
examination, to increase the
likelihood that they will be
retained and relied on by the
trier of fact.