Direct Examinations
Guide your witness to success
What is Direct Examination?
Direct examination is where you question your own witness. During Direct, the witness presents their side of the story through long testimonies in response to their attorney's open-ended questions. The goal is to allow the witness to explain without controlling them.
Direct attorneys write questions and usually responses for a witness, though the response section is more collaborative.
What it matters
During cross examinations, an attorney will attack a witness and disrupt their credibility. In order to prevent that from happening, a good direct examination will set a strong foundation for a witness's story, theme, and indirectly the entire case. Direct examinations build the core of a case by establishing beliefs and the main theme for the entire side, then, the case is furthered by effective cross examinations. Without good directs, a case will crumble.
It is especially important to make sure to include “special” information that is only found in that witness's affidavit so it's harder for a different witness to disprove or argue with that information. Additionally, this information can help make that witness stand out, so it should be the majority of the direct along with other major themes.
A strong direct examination can:
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clearly present your version of events
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make your witness seem believable and confident
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establish key facts
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How to Ask Questions
On direct examination, open-ended questions that allow the witness to explain their personal story and any information in their affidavit.
Examples:
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“What happened when you arrived?”
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“Can you describe what you saw?”
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“What did you do next?”
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“Why was that?”
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“What else did you observe?”
Here, you are asking for the who, what, when, where, and why. You are not telling the witness these facts like a cross examination.
Questions on direct should feel like the witness is telling a story. Unlike cross, it should be more linear over thematic. In order to still establish themes, focus on having the witness elaborate more and emphasize their responses during the questions, remember: on direct, you know what the witness will say because you practiced with them!
What to Avoid
On direct, do not use leading questions, try to control the witness, or focus too much on general information instead of affidavit-specific concepts.
Example:
“You saw the defendant take the wallet, correct?” Suggests the answer (yes/no) and is not allowed on direct.
What a Good Direct Looks Like
A good direct is organized, natural, easy to follow, emotional, and it sounds like someone's telling a story.
The attorney should make the witness feel like a real person, as well as what happened, when, and why it matters.
Example
Attorney: “What were you doing on the night of the incident?”
Witness: “I was working at the gas station until 9pm.”
Attorney: “What did you notice while you were there?”
Witness: “I saw someone running out of the store quickly.”
Attorney: “And, why did this stand out to you?”
Witness: “Because they had a backpack on their back that appeared to be full, when I looked back to where they were standing, I saw some product gone, although I hadn't rang anyone up for it.”
Expert Witnesses
Experts are handled very differently than a lay witness (normal person). For an expert's direct, you want to try to explain the scientific or professional concepts clearly, while also making sure to enter them as an expert (refer to your case packet), and establishing their credibility.
Instead of following a story structure, try to make the direct establish facts that obviously relate to a theme in the story.
For example, if the case is about drunk driving, a toxicologist could testify to BAC (blood alcohol content). While they cannot speak as to the timeline of events because they were not at the scene, only hired after to testify, instead the expert gives a professional opinion as to the state of the driver, obviously playing into a theme about the driver being inhibited without describing their behavior before the event or direct observations.
Common Mistakes
Writing questions without possible mistakes in mind is one of the biggest mistakes attorneys make on direct. When editing an examination, always make sure to look at it from the perspective of the cross attorney and what they would object to or use against the witness. Some other mistakes include:
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Jumping around instead of staying organized
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Asking questions that are too vague
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Not preparing the witness ahead of time
For direct, practice, practice, practice! The best directs are done by a pair who run the direct over and over and over again, no matter how difficult the affidavit may be.
Practice
- Look at the “practice” section of this website.
- Watch a real or mock trial.
- Look at an affidavit and try to ask questions that will cover the main points of the affidavit. This may sound like writing a direct, but during those you focus on building a wall and covering any weak points in the witness's story rather than only getting through an affidavit.