Jump to content

Direct Examination Tips

From Criminal Law Notebook

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.

See Also