Direct Examination Flashcards
What 4 things must the testimony be?
- Clear
- Credible
- Invulnerable to Cross
- Memorable
What is the less obvious (secondary) reason invulnerability to cross is important?
It can damage your credibility, too!
Describe the Wimbledon effect. What three things should direct be (re: Wimbledon effect)?
- Kinetic
- Specific (specific answers to specific questions)
- Pointed (not narrative)
What are two advanced techniques you can use on direct examination?
Looping and lead-lead-open.
What kinds of qualities (3) does use of both looping and lead-lead-open give to a direct examination?
- Engagement
- Curiosity
- Connection
Why is THIS witness being called?
For a specific purpose no other witness could fulfill.
How should you make the witness feel?
Comfortable.
What are two ways to build invulnerability to cross?
- the witness can get ahead of criticism while on direct
- the witness can add information like “according to my training” or explain why they did something (humanizing)
What are the four steps to developing your theory on direct?
- Determine which facts every juror will believe to be true
- Make your central theme never contradict indisputable facts
- Make your central theme account for all indisputable facts
- Make the case bigger than its facts
Why do you need to determine which facts are indisputable?
Jurors view the case as a “whole cauldron of facts,” not two competing sets.
Why must your central theme never contradict indisputable facts?
Irreversible credibility damage.
Why must your central theme account for all indisputable facts?
You have to stress the simple and find ONE explanation for everything.
What are 8 different ways you can organize a direct examination?
- Traditional
- Chronological
- Reverse chronological
- Visual scenes
- Elements
- Exhibit based organization
- Conclusion, then data
- Data, then conclusion
How does traditional direct proceed (3 stages)?
- Pedigree/credentials/background
- Role in the case
- Testimony info
How does chronological direct proceed?
Follow story formula, introduce heroes and villains along the away
How does reverse chronological direct proceed?
Choose an interesting place to begin so audience cares and is captivated
How does a direct focused on visual scenes proceed?
- not necessarily chronological
- give a descriptive name to each scene
- think in terms of action, not just description
What’s the point of a conclusion-then-data direct?
Best for expert witnesses.
- “Did you reach a conclusion?”
- heightens suspense and engages audience in understanding how the witness got to that conclusion
What are 8 things to incorporate into your delivery on direct?
- Use short, open-ended questions
- Use headlines and transition statements
- Lead-lead-open
- Loop
- Reflect time, distance, and intensity
- Be curious in witness’s answers
- Converse normally
- React to witness
What are 3 rules you must follow on direct?
- Follow any motions in limine
- No leading questions (except for when you can)
- Do not ask about contents of an exhibit before it is admitted
What are the steps to refreshing recollection?
- Witness cannot remember
- Offer to refresh
- Witness reviews material
- Ask if refreshed
- “Yes”
- Ask question again
What are the steps to having the witness read a past recollection recorded?
- Witness cannot remember
- Offer to refresh
- Witness review material
- Ask if refreshed
- “No”
- Ask if the prior statement was recorded at a time when their memory of the event was good
- “Yes”
- Statement can be read into the record
Why use demonstratives? Because our ___ and ___ outweigh the ___ we use in presentations.
physiology; tone; words
Demonstratives are basically applied ___. They allow us to engage ____ over ____.
heuristics; System 1; System 2
People giving testimony or presentations with a visual aide are deemed more/better (six things):
- more credible
- more prepared
- more persuasive
- better reasoned
- more truthful
- more likely to connect
What are the two types of evidence?
Testimony and exhibits.
What is the most important thing that separates evidence from non-evidence?
The jury is allowed to consider evidence in the deliberation room.
When can evidence be used?
With any witness and in closing argument. Sometimes, even in opening (if admitted or certain to be admitted).
Draw the exhibits and evidence venn diagram.
Just evidence: testimony
Overlap: admitted exhibits
Just exhibits: demonstratives*, not-admitted evidence, marked items
*some demonstratives can piggyback into evidence
List some types of demonstratives (6):
- PowerPoint Presentation (can be admitted)
- Notes or diagrams (can be admitted)
- Photo, video, meme
- Gestures by witness (evidence because it’s testimony)
- Gestures by lawyer (evidence because it’s testimony)
- In-court reenactment (evidence because it’s testimony)
What is/are the rule(s) for using demonstratives during jury selection?
You MAY need to show opposing counsel and court first.
What is/are the rule(s) for using demonstratives during opening?
- You WILL need the court’s permission to display evidence
- You MAY need the court’s permission to display a demonstrative
What is/are the rule(s) for using demonstratives during examinations?
- Exhibits get admitted; demonstratives get displayed
What is/are the rule(s) for using demonstratives during opening?
- You can use any exhibit you want
- You can present any demonstrative exhibit if based on the evidence
What is the axis of witness significance?
A 3-prong test to identify:
- Scope of personal knowledge
- Actual or perceived bias
- Credentials of discernment
How can you use the axis of witness significance (3 ways)?
- Choice of witness (in/out and order)
- Organization of info you get from that witness
- Make credibility comparisons with opp’s witness
What three implicit messages jurors should receive during direct?
- I should not reserve judgment
- the lawyer is trying to tell me something through this witness
- this testimony has to help the lawyer’s case
