Advanced Direct and Cross-Examination

1. Advanced Direct and Cross-Examination Module 2

2. Organization Of Discussion • Direct examination techniques • Refreshing recollection, past recollection recorded, looping for emphasis, saving topics for re-direct examination • Cross-examination techniques • Prior inconsistent statements, dealing with improving memories, attacking character for truthfulness, impeaching with felony convictions, bringing out general bias • Rehabilitation • Reviving your witness after character, bias, or motive attacks.

3. Direct Examination

4. Refreshing Recollection Steps: • First, try to see if witness can refresh him/herself. • If not, what else might help refresh his/her memory? • Basic method: Will this document help? Witness looks at it. What’s your answer now?

5. Mechanics of Refreshing • Think of the foundation as a grocery list : • First establish that the witness has forgotten something. • Then establish that there is something that would help him or her remember. • Ask to approach with the document. • Show the witness the document. • Ask the witness to read the document and then put it down. • Retrieve the document. • Ask if the witness’s memory is refreshed. • Repeat the question.

6. Mechanics,Continued • Retrieve it • Ask again • Interesting foundation?

7. Recorded Recollection What if the witness still does not remember? • Witness’s memory cannot be refreshed • The out of court statement, or hearsay, can be admitted as a hearsay exception • Past recollection recorded, C.R.E 803(5) • Same foundation as refreshing recollection except one big difference

8. Recorded Recollection • Hearsay • Requires a hearsay exception • C.R.E. 803(5): Based on reliability

9. C.R.E. 803(5) • Requirements: • A memorandum or record made by, or adopted by, the witness • Witness had knowledge, but now has insufficient recollection • Adopted or made when knowledge was fresh

10. Recorded Recollection • Same foundation as refreshing recollection, • BUT must include questions about when and why the document was made or adopted. • Document read into the record NOT admitted • Again, interesting foundation

11. Looping • Repeating an answer • Instead “loop” Example: • Question: “Please describe the car.” • Answer: “It was a red sports car.” • “How fast was the red sports car going?”

12. Saving Topics • Redirect: • Purpose is to rehabilitate or rebut information brought out on cross • Some topics must be saved: • Rehabilitation with prior consistent statement or evidence of truthful character • Optional: Strategic use of topics that may be damaging or risky • Be careful: If cross-examination is waived, there is NO redirect. • Also redirect is limited to areas that were explored in cross examination. • May not introduce new topics just because you forgot to ask about them during your direct examination.

13. Cross Examination

14. Prior Inconsistent Statements • A common method of impeaching a witness: • That is not what you said before • Hearsay? • Impeachment statements are not hearsay: not being offered for the truth • The Three Cs: • Confirm, Credit and Confront

15. Confirm • Confirm • Did you say on direct examination that …? • Show the jury/bench you do not believe it • Body, tone and language

16. Credit • Seek to bolster the creditability of the prior statement as much as possible • Ways to credit the prior statement: • Timing of prior statement • Knowledge of importance of statement • Oath or other formalities • Example: To the caseworker on the stand: “You wrote this affidavit right after you completed your intake investigation. In fact, you wrote it on the same day. You knew the affidavit would be submitted to court.”

17. Confront • Impeachment requires that you confront the witness with her prior statement. • Methods for confrontation

18. “Improving” Testimony: Another type of Impeachment Problem: • witnessonthestandstartstotestifyto“New facts” • There is no “inconsistent” statement with which to impeach • Sometimes referred to as an impeachment by omission • Prior inconsistent statement foundation with one addition • Build up creditability of the prior statement, just as done before • AND build up the importance of the new fact • Showing that it is so important, no reasonable person would have omitted it • And yet, there is no evidence of it in prior statement • Confrontation: • Hand prior statement to witness • Ask witness to point out where new fact is included in prior statement • Witness is unable to do it.

19. Impeaching Character • Character is generally inadmissible • C.R.E. 404(a) • Character of a witness for truthfulness • C.R.E. 404(a)(3) and C.R.E. 608

20. Truthful Character of Witness • Evidence of truthful character admissible only after attack on truthfulness • But only after attack on truthfulness • Used as rebuttal evidence • Opinion and/or reputation evidence • C.R.E 608(b)

21. Impeaching With Conviction • C.R.S. §13-90-101 • Credibility of any witness may be attacked with his or her felony convictions • Any felony conviction can be used (not just crimes of truthfulness) • But different rules for civil and criminal cases • Civil: Can only use felony convictions that are less than 5 years old

22. Business Records • C.R.E. 803 (6) • Records of regularly conducted activity • Witness • Records made contemporaneously • Kept in course of regular business activity • Regular practice to make such reports

23. Re-Direct Examination

24. Rehabilitating Witnesses • Evidence of prior consistent statements: C.R.E. 801(d)(1)(B): consistent with W’s testimony and offered in rebuttal • Evidence of truthful character: C.R.E. 608(a)(2): only to rebut attack on W’s credibility.

25. Difficult Witnesses

26. Two Types Of Witnesses • The sympathetic witness: Trier of fact likely to find very credible • The uncooperative witness: The witness who will not answer the questions, or fights with you

27. Sympathetic Witnesses • Theory of the case to eliminate attack • Empathy • Be up front

28. Uncooperative Witnesses • Good Theme And Good Questions • Repeating • Clarifying • Reversing • So The Answer Is Yes • Using The Hand • Asking For Help

29. Good Questions • The most important cross-examination technique – for all witnesses – is to ask good questions. • Leading questions • One fact per question • Build incrementally • Build in a logical order • Can be a declarative statement • Avoid conclusions • Avoid adjectives

30. Examples of good questions • Elicits one fact; • Uses clear and precise language; • Is short; • Has good pace and presentation; • And that you know the answer ;and • You know where to find the answer. • Examples: • “You made a referral in this case” • “The referral was for my client, Ms. Jones” • “The referral was for Ms. Jones to take urine analysis, or UAs” • “The referral was for urine analysis at Whiz Quiz” • “You made this referral on October 10th” • “You made the referral by calling Whiz Quiz……”

31. More suggestions for dealing with difficult witnesses • Q: “Ms. Jones took a UA” • Q: “And the result was negative” • A: “Yes, but she missed a UA” • Then ask follow up questions about the missed UA….

32. Repeating • “Let me ask you again.” • “Will the court reporter read the last question?” • “Perhaps I was not clear, what I am asking is…”

33. Clarifying • “I am not asking you about X, I am asking you…” • “We can talk about X in a moment, all I am asking you right now is…” • “You can talk about X with opposing counsel, all I am asking you right now is…”

34. So The Answer Is Yes • “So, the answer to my question is yes?” • A variation of clarifying

35. Reversing • Using an opposite fact to get clarity • Example: “The light was red, wasn’t it” • “So the light was green?”

36. Using The Hand

37. Using The Hand When witnesses start to talk for too long, try putting up the “stop” sign. The examiner does not have to say anything, but instead uses body language to control the witness.

38. Asking For Help • When is it okay, and how do you do it?

39. Making A Deal • Good idea? Bad idea?

40. Expert Witnesses

41. Expert Witness during the Pre-Trial Phase • How to select your own expert • How to use your own expert • Other strategies to use during pre-trial when anticipating expert testimony • Educating yourself about the issues • Adequate discovery

42. Direct Examination • Qualifying the expert: C.R.E. 702 • Offering the expert • Bases of the opinion: C.R.E. 703 • Explaining the opinion: C.R.E. 703 and 705 • Offering the opinion

43. Qualifying The Expert • C.R.E. 702: “a witness qualified by knowledge, skill, experience, training or education”

44. Qualifying The Topic • C.R.E. 702: “scientific, technical or other specialized knowledge [that will help the jury] understand the evidence or determine a fact in issue”

45. Qualifying The Process • NO F.R.E. 702 equivalent in Colorado…. • People v. Shreck, 2 P.3d 68 (2001) • Reliable scientific principles • Witness qualifications • Helpfulness to the trier of fact

46. Opinion • Elicit the opinion from the expert • Based on the education, training and methods you have described, have you reached a conclusion (with a reasonable degree of scientific certainty) • What is that opinion

47. Explanation • Basis of the opinion – admissible? • Elements intertwined: • Cart and horse problem • Common errors with the “basis” of the opinion and inadmissible hearsay  • In order for an expert to testify to the substance that makes up the basis of his or her opinion, • The basis must be independently admissible, or • The probative value in understanding the expert’s opinion “substantially outweighs” its prejudice. • In other words, there is a presumption against admissibility here that is nearly the exact opposite of the presumption of admissibility that is part of the 403 balancing test, or the basis is offered by the opponent. • The opponent of the opinion has a right to explore the bases of the opinion as part of the right of cross-examination.

48. Opinion • Elicit the opinion from the expert again! • Technically, it has been asked and answered • Most judges will allow it

49. CROSS-EXAMINATION of the Expert Use their expert to prove or build your theory of the case Weaken their expert by using new facts or bad facts from your case

50. Get Your Own Expert • Trying to “out-expert” their expert is a mistake unless you have your own • Your expert helps you • Understand the topic • Prepare cross-examination questions • Present opposing testimony