Direct Examination Tips

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Directing Examination-in-Chief

Introduce the witness

• Always start by introducing the witness to the court in some manner

• if not covered in oath, get them to state their full name and spell their last name.
• ask what is their occupation. How long they've been in that occupation
• depending on whether it may have relevance, ask duties in that occupation and review prior professions
• depending on whether it may have relevance, ask their age and level of education.

Starting Narrative on an Incident

• ask whether they were witness to an incident [describe incident in general terms including rough date], a simple yes or no would do [prior witnesses would establish a foundation to the existence of an incident].
• Let the witness tell a story, resist the urge to interrupt them unless absolutely necessary
• DON'T start by asking "what, if anything, happened on" so-and-so date
• Aim to elicit verifiable observations
• Aim to evoke smells, sounds and unique observations
• establish the general time and location of the incident
• ask them to tell what happened by beginning at events immediately before the incident and be sure to tell times, places and names of people when known.

• ask them about (1) the context of the first involvement in the incident and then (2) "walk us through it".

• Once a narrative concludes, use funnelling to clarify details

Demeanour and Style of Questions

• never rush to another question, be sure you got a complete answer before going to your next planned question

Showing Pictures or Videos

• Consider whether to show the video or picture to witness before testimony. There can be value in capturing initial reaction in court.
• It will likely produce inconsistencies to have the witness describe their observations from old memory before seeing the video or picture;

Identify when memory refresh necessary

Uncertain of Quantum (time, duration, distance, height)

• establish that they cannot say the answer
• invite them to give best estimate
• confront them with implausible amounts and get them to deny them.
• gradually ask about growingly likely amounts on the upper and lower end.
• Consider taking a typical common sense point of reference from their lives

Child Witnesses

• Use first names for counsel and judge.
• speak slowly and loudly
• use simple words and short sentences.
• seek permission to allow the child to have toys, plushies or fidget toys.

Recanting Witness

• Exhausting Memory
• Confirm prior statement
• Refresh memory
• Confirm differences
• Seek finding on inconsistency

Honest But Mistaken Witness / Conclusory Claim Witness

Explore Foundation for Conclusion

• Was it assumed
• Was it learned second hand

Overly-Certain Witness

When Did Fact Become Important

• Explore personal importance of observation at the time
• Explore whether the events were recorded
• Explore time when they were notified of importance of this memory
• Explore efforts to remember in response to the notification.

Evasive/Deceptive Witness

Non-answer

• Comment that the answer is not responsive
• Did he understand the question
• Was the answer responsive to the

Memory Problems

• If they say "I don't recall", consider whether they are saying that there is no memory one way or another
• consider asking about whether it would "be expected" or "surprise" that the circumstances would be one way vs another.

See Also

• Cross-Examination Tips