DIRECT, CROSS, REDIRECT& RECROSS

Transcription

1 There are 4 types of questioning / examination in a trial: DIRECT, CROSS, REDIRECT& RECROSS They are conducted in the following order. DIRECT: CROSS: *questioning of your OWN witness for the first time *ask open-ended questions (Who, What, When, Where, Why, How) *build foundation first: (You can t get to the second floor until you build basement and first floor.) *don t lead the witness *focus on issues of the case *witness is the star *let the witness tell their story *questioning of OPPOSING witness for the FIRST time *ask LEADING questions from the witness statement *focus on issue of the case OR credibility of the witness *try to discredit direct testimony *attorney is the star REDIRECT: *questioning of OWN witness for the second time *questions are limited to matters brought up by opposing attorney on cross *ask open-ended questions to clarify responses on cross or minimize damage of cross *witness is the star *no leading questions RECROSS: *questioning of OPPOSING witness for the second time *questions are limited to matters brought up by opposing attorney on redirect *leading questions to attack matter brought up on redirect *attorney is the star

2 An attorney makes an objection when s/he believes opposing witness or attorney is breaking one of the rules evidence. The rules of evidence govern what can and cannot be done in court. The judge rules if an objection is good or bad. If the objection is good, the judge says, Sustained. If the objection is rejected by the judge, s/he says, Overruled. The basic four: (Use these to analyze any witness statement) OPINION: witness states what s/he believes or feels regarding his/her observation Exception; experts in field of expertise (doctors, psychologists) IRRELEVANT: has nothing to do with the issues in the case. Exception: attacks credibility of the witness or builds foundation HEARSAY: stating out of court statement (what someone other than person testifying says) Exception: several (see mock trial rules in manual); most common=admission against interests (confession) LACK OF PERSONAL KNOWLEDGE: stating things without observation or without first hand knowledge; assumptions OTHER GOOD BASICS: LEADING (on direct or redirect) NO FOUNDATION (on direct) BEYOND SCOPE OF EXAMINATION BADGERING CHARACTER

3 Boiled down, a trail consists of ten steps: BAILIFF CALLS COURT TO ORDER OPENING STATEMENT PROSECUTION / PLAINTIFF OPENING STATEMENT DEFENSE QUESTIONING PROSECUTION/ PLAINTIFF S WITNESS QUESTIONING DEFENSE WITNESSES CLOSING ARGUMENT PROSECUTION / PLAINTIFF CLOSING ARGUMENT DEFENSE REBUTTAL ARGUMENT PROSECUTION / PLANTIFF DELIBERATION VERDICT

4 Step 0: Step 1: Step 2: Step 3: Step 4: Step 5: Voir Dire: selection of a jury trial if requested. (generally not done in a mock trial) The Bailiff calls the court to order. (see manual) The Judge enters and asks that bailiff, What s on today s calendar/ docket? The bailiff gives the name of the case. Criminal Case: Your honor, today s case is the State of Ohio versus (defendant s name). Civil Case: Your honor today s case is (plaintiff s name versus defendant s name.) The judge asks the prosecutor/plaintiff s attorney and defense attorney if they are ready to give an opening statement. Opening Statement by Prosecution/Plaintiff Format: Avoid: *to introduce yourself, your co-counsel & client *to inform the judge of the nature of your case *to explain the issues of the case *to outline what the evidence will show (including key witness testimony) *to tell judge/jury what relief you are seeking *begins with May It Please The Court *continues, My name is and this is my co-counsel. *continues, We are here today on behalf of to prove beyond a reasonable doubt (criminal case) or to prove by a preponderance of the evidence (civil case). *use phrases like the evidence will show / you will hear from our witnesses *too much narrative detail about witness testimony *exaggerating and overstating facts *making promises you can t keep *arguing and discussing the law *reading the statement

5 Step 6: Step 7: Opening Statement by Defense (see notes for opening statement by p.) Presentation of Prosecution/Plaintiff Case *to convince the judge/jury that s/he should rule in your favor *each witness for prosecution/plaintiff is called up one at a time and undergoes direct, cross and possible redirect and recross questions *any physical evidence and or exhibits may be introduced during the direct examination and the attorney may then move to the evidence be entered into the record. Step 8: Step 9: Motions - If prosecutor s / plaintiff s basic case has not been established from the evidence introduced, the judge can end the case by granting the defendant s motion to dismiss (civil cases) or entering a directed verdict (criminal cases). Presentation of Defense s Case * to convince the judge/jury to rule in your favor *each witness for defense is called up one at a time and undergoes direct, cross and possible redirect and recross questions *any physical evidence and or exhibits may be introduced during the direct examination and the attorney may then move to the evidence be entered into the record. Step 10: Closing Statement by Prosecution/Plaintiff *to summarize your case *point out testimony which supports your case and/ or damages your opponent s. *put the pieces together for the judge/jury *argue what is important and discard the unimportant *be an advocate-forcefully urge your point of view *be dynamic and avoid a boring review of the facts *state case simply and with high drama *correct any misunderstanding

6 *use exhibits where appropriate *point out bias, credibility, self-interest or prejudice of witnesses Format: Avoid: *begins with May It Please The Court *thanks judge/jury for their time and patience *convince judge jury that you have met the burden of proof and statute and precedence demands a verdict in your favor *assuming the judges have understood the full impact of all the testimony *overusing ridicule *illogical or confusing arguments *not organizing in advance *not anticipating the argument of your opponent *weak words such as we believe & we think Step 11: Step 12: Step 13: Step 14: Step 15: Closing Argument by Defense (see notes for closing argument p.) Rebuttal Argument Prosecution/Plaintiff second, optional chance for the Prosecutor/plaintiff to refute what defense has said in their argument Jury Instructions given by Judge in jury trials to define the law, burdens and defense that are relevant to a particular trial Judge/Jury leaves to Deliberate to discuss and decide the case Announcement of the Verdict to inform the defendant of the judge s/jury s finding of guilty or not guilty

7 The following are tips for creating questions for witnesses! Direct Examination: Questions you ask your witness. Tips: *to build your case *to establish the facts for your client *to lay foundation *to prove the issues in the case * establish your witness by having them tell the court who s/he is, their background, qualify any experts *establish a foundation --- the court doesn t know anything so start from scratch *questions should be open-ended --- allow witness to make their case & don t lead *questions should follow a logical order and build on one another *make a train of questions to prove each issue/point *listen to witness and make sure s/he is answering the question *be flexible and prepared to ask additional questions if necessary Cross-Examination: Questions you ask the opposing sides witness. Tips: *to discredit the testimony given on direct *to impeach the witness *to tear down the case of the opposition *questions should be closed *never ask open-ended questions *witness responses should be limited to yes and no as much as possible *you control what is said, lead the witness where you want through your questions *Hear *Understand *Formulate *Answer

8 *have a question ready for each response *have a flow chart of questions for either a yes or no response for each of your questions *be flexible, if a witness gives you an unexpected answer which helps your case, go with it and ask a new yes or no question *know the witness statements/record and be able to impeach the witness when s/he contradicts their statement (know the exact page number and line of the statement used for impeachment and follow specific impeachment procedures in manual) *use the witness statement to form questions, use direct quotes & turn them into questions *always be able to explain how your question relates to one of the issues brought up on direct Redirect Questions: Questions you ask your witness after they ve been crossed. Tips: *to re-establish your witness and case *to save your witness *like on direct, questions should allow the witness to explain matters *questions are limited to what was asked on cross *questions should focus on areas of cross that made the witness look bad *no leading questions (open-ended questions only) *redirect is not necessary if your witness held-up Recross Questions: Questions you ask the opposing side s witness after redirect. Tips: *to discredit testimony given on redirect *recross is not necessary if the opposing side did not accomplish anything on redirect *always be able to relate the questions you are asking to issues brought up on redirect *also see first four items under cross