Making Your Case Through Effective Direct Examination

Home , Authentication (law), Direct examination, Redirect examination

Paul K. Sun, Jr. & Kelly Margolis Dagger

The examination of a witness you have called in the defense case. The witness could be your client, an expert, a law enforcement officer, a percipient witness, etc.

© Ellis & Winters LLP 2015 Right to Present Witnesses “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. amend VI.

Remember to request trial subpoenas per Fed. R. Crim. P. 17, and do so early if you are asking the marshals to serve.

A. Mechanics of Direct Examination B. Preparing Yourself for Direct Examination C. Preparing Your Witness for Direct Examination D. Conducting a Direct Examination

© Ellis & Winters LLP 2015 Procedural Considerations—Rule 611 Fed. R. Evid. 611—Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

© Ellis & Winters LLP 2015 Procedural Considerations—Rule 611 (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

© Ellis & Winters LLP 2015 Leading and Non-leading Questions “The essential test of a leading question is whether it so suggests to the witness the specific tenor of the reply desired by counsel that such a reply is likely to be given irrespective of an actual memory. The evil to be avoided is that of supplying a false memory for the witness.” United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963).

Leading Non-leading Isn’t it true that you saw Ms. Did you see Ms. Defendant Defendant that night? that night?

You saw Ms. Defendant that Whom did you see that night? night, didn’t you?

© Ellis & Winters LLP 2015 Types of Witnesses • Defense-friendly witnesses. Your client, defense expert, friends, family members, employers, others sympathetic to your client. • “Neutral” witnesses. Percipient witness with no interest in the outcome, records custodian. • Unfriendly witnesses. Law enforcement officer, victim, cooperating co-defendant, informant, others sympathetic to the prosecution.

© Ellis & Winters LLP 2015 Types of Questions for Each Witness Defense-friendly witnesses Non-leading questions, except as necessary to develop testimony. “Neutral” witnesses Non-leading questions, except as necessary to develop testimony. Unfriendly witnesses Leading and non-leading questions. *You may impeach a witness you call. Fed. R. Evid. 607.

Controlling the examination of witnesses is part of the district court’s trial management function. See United States v. Woods, 710 F.3d 195, 200-01 (4th Cir. 2013).

© Ellis & Winters LLP 2015 Why call the witness? Why not? • What you are trying to prove, or cause the jury to doubt? How can this witness help? • List the facts you hope to elicit from the witness. • Is the witness credible? • What does the witness know that can hurt your case?

© Ellis & Winters LLP 2015 Why call the witness? Your client Your client has the constitutional right to testify in her defense. See Rock v. Arkansas, 483 U.S. 44 (1987): • Opportunity to be heard—“No person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend V. • Necessary corollary to right against compelled testimony— “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend V. • Inherent in Compulsory Process Clause—”In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.” U.S Const. amend VI.

© Ellis & Winters LLP 2015 Defendant’s Testimony—Continued • What do you do if you reasonably believe your client is going to give false testimony? – The client has the right to testify. – You remain obligated to conduct the examination and elicit the testimony. N.C. R. Prof’l Conduct 3.3(a)(3); see id. cmt. 9.

© Ellis & Winters LLP 2015 Defendant’s Testimony—Continued • What do you do if you know your client is going to give false testimony? – The client has the right to testify. – You are precluded from eliciting testimony you know to be false. – “[T]he lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence.” N.C. R. Prof’l Conduct 3.3 cmt. 6 (excerpt); see also id. cmt. 10 (remedial measures).

© Ellis & Winters LLP 2015 Using the Rules of Evidence • You cannot effectively prepare for direct examination (or trial at all) unless you know the Rules of Evidence. • Formulate questions that seek admissible evidence. • Anticipate objections: – Lay the foundation to avoid them (personal knowledge, authentication, hearsay exceptions). – Be prepared to argue objections. – Be prepared to make a proffer of evidence ruled inadmissible.

© Ellis & Winters LLP 2015 Structuring the Examination • Make an outline: – What facts do you need to elicit? In what order? – Beginning, middle, end (example: detention hearing) • Taking into account who the witness is (friendly, neutral, unfriendly), consider the form of questions (Leading versus non-leading; “What happened?” versus “Do you remember what happened?”). • Ask questions, in substance and form, to make the witness credible: – Don’t use the witness as an advocate. – Let the jury get to know the witness. – Preempt harmful admissions. © Ellis & Winters LLP 2015 Structuring the Examination—Third- Party Custodian • Please state your name. • Where do you live? • Do you work? What do you do for work? • Are you related to Ms. Defendant? How? • Did Ms. Defendant grow up in your home? • Do you understand that Ms. Defendant has been charged with a drug trafficking felony? • Do you understand that we are here for a detention hearing in Ms. Defendant’s case? • You know that Ms. Defendant is asking to be released from custody pending trial, right?

© Ellis & Winters LLP 2015 Third-Party Custodian—Continued • What kind of home do you live in? • Does anyone else live there with you? Who else? • Are there any children in your home? • Are there any firearms in your home? • Would you allow a firearm in your home? • Are there any illegal drugs in your home? • Would you allow illegal drugs in your home? • Do you have a criminal record? • Does [other resident] have a criminal record?

© Ellis & Winters LLP 2015 Third-Party Custodian—Continued • Are you willing to have Ms. Defendant live with you if the Court allows her to be released? • Do you understand that Ms. Defendant will have some court dates in the future? • Do you understand that one of your responsibilities will be to ensure that she appears for those court dates? Are you willing to do that? • Will you find out when the court dates are? Will you put them on your calendar? • Do you have access to a car? Do you have a valid driver’s license? If needed, will you drive Ms. Defendant to court?

© Ellis & Winters LLP 2015 Third-Party Custodian—Continued • Do you understand that if she is released, Ms. Defendant will have to comply with some court-ordered conditions? • Will you familiarize yourself with those conditions? • Will you ensure that Ms. Defendant complies with the conditions? • If Ms. Defendant fails to comply any condition, will you report that failure to the Probation Office? • Do you understand that Ms. Defendant may go back to jail if you report a violation of the conditions? • Knowing that Ms. Defendant may go to jail, are you willing to report any violation that she may commit?

© Ellis & Winters LLP 2015 Structuring the Examination—Continued • If the witness knows relevant, harmful information, will you elicit it on direct examination? – How likely is the Government to ask on cross? How likely is the witness to blurt it out? – How bad is it? Is there an explanation? – How good is your witness?

© Ellis & Winters LLP 2015 Witness Preparation • Is this a witness you can meet with in advance? – Client/defense expert—yes – Defense-friendly witnesses—maybe – “Neutral” witnesses—maybe – Unfriendly witnesses—maybe *Always determine whether the witness is represented by counsel, and related rules, e.g., healthcare provider. • If so, should you?

© Ellis & Winters LLP 2015 Witness Preparation—Pros and Cons • Benefits of meeting with a witness – Understanding their language – Fostering trust and comfort in the courtroom – Avoiding surprise testimony – Preparing your overall case • Drawbacks of meeting with a witness – Perception of influence/bias – Revealing information to the Government

© Ellis & Winters LLP 2015 Preparing a Witness • Remind the witness whose lawyer you are, and whose lawyer you are not. • Instruct the witness to tell the truth. Don’t tell the witness what to say. • Make the witness comfortable: Familiarize witness with court procedure; address areas where the witness feels vulnerable. • Listen! Learn the witness’s language; avoid miscommunication.

© Ellis & Winters LLP 2015 Preparing a Witness—Continued • Exhaust the witness’s knowledge; avoid surprises. • Help the witness anticipate cross-examination. Remind them not to look at you for help on a hard question. • Tell the witness how to dress for court, where to go, and when. • Consider attorney-client privilege/work product.

© Ellis & Winters LLP 2015 If you do not prepare a witness • Use all available opportunities to find out what the witness will say – Prior statements to police or others – Internet/social media – Professional considerations – Talk to the witness’s lawyer; consider whether to tell the lawyer what questions you will ask. • Think conservatively about questions and have a backup plan.

© Ellis & Winters LLP 2015 Order of Witnesses • Who has already testified, and to what? • How does that affect the order in which you will call witnesses? • How does that affect your planned questions? • Other considerations: – How much time is left in the court day? – How bored are the jurors and the judge? – Will the witness be on the stand overnight?

© Ellis & Winters LLP 2015 Conducting Your Direct Examination • Sit at counsel table; check the microphone; Make sure the judge, jury, and witness can hear you. • Be aware of the judge and jury—how are they reacting to your questions and the witness’s answers? • Know how to offer exhibits and present them to the jury.

• Respond to objections—rephrase your question if needed, argue evidentiary issues, make a proffer. • Manage the witness’s emotions? • LISTEN TO THE ANSWERS!

© Ellis & Winters LLP 2015 Defending Cross-Examination • Your job is not over after direct examination. • LISTEN TO THE QUESTIONS AND ANSWERS! Take notes. • Make objections. • Pay attention to the judge and jury.

© Ellis & Winters LLP 2015 Redirect Examination • Purpose: “Examining counsel is normally expected to elicit everything from a witness, so far as possible, at the first opportunity.” United States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979). • Should you do it? • Scope of redirect examination • Consequences of redirect examination? Re- cross examination.