Direct and Cross Examination

Question 1

Leading question v. open ended question

Answer 1

• Leading question: designed to suggest the answer in the form of the question

o Isn’t it true that..
o Isn’t it a fact that..
o Blah blah blah – isn’t that correct?

• Expect open ended questions on direct examination

Question 2

Direct Examination - General Rule

Answer 2

• Non leading questions

• Leading questions should not be used on direct except as necessary to develop the witness’ testimony.

• Ordinarily the court should allow leading questions:

o On cross examination; and
o When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party

Question 3

Direct Examination - Exceptions to the General Rule

Answer 3

Exceptions (OK to lead): When necessary to develop testimony:

• Witness is very young, apprehensive, uncomprehending, or confused
• Witness is timid, reticent, reluctant, or frightened (ex. gang case)
• Witness is ignorant, uncomprehending, or unresponsive
• Witness is infirm
• Witness is uncooperative (hostile)
• When rule is more trouble than worth:
• Background testimony only (weren’t you at blank at blank time..)
• Preliminary matters
• When memory seems exhausted

Question 4

Cross Examination

Answer 4

General Rule: Leading questions allowed

• Question suggests answer within the question
• Scope:

o Cross examination should not go beyond the subject matter of the direct examination and matters affecting the witness’ credibility

o Court may allow inquiry into additional matters as if on direct examination - Don’t limit that much

Question 5

Excluding witnesses

Answer 5

Don’t want witness sitting/listening in when someone else testifying because could be skewed

Motion to exclude witnesses – have to grant that motion unless (not tested)

Question 6

Evidence classifications

Answer 6

• Direct evidence

- Circumstantial evidence

Question 7

Direct evidence

Answer 7

o Relies on actual knowledge

o No inferences

o Knowledge by means of senses: sight, sound, smell, touch

o Ex. walk into kitchen and see child putting cookie in mouth (sight, hear, smell)

o Ex. someone walks in and says its raining outside

Question 8

Circumstantial evidence

Answer 8

o Relies on inference

o Infer a fact from an initial fact

o Ex. in living room and see child come out of the kitchen and he has crumbs on his face/is eating something

o Ex. someone walks into a court house and see them wearing a rain coat covered in rain drops