Direct Examination Tips
Appearance
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.
Hostile Witness
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.