ADVANCED DIRECT
AND CROSS-EXAMINATION
Module 2
Organization Of Discussion
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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.
Direct Examination
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?
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
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Ask the witness to read the document and then put it down

Retrieve the document
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Ask if the witness’s memory is refreshed

Repeat the question
Mechanics, Continued



Retrieve it
Ask again
Interesting foundation?
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
Recorded Recollection



Hearsay
Requires a hearsay exception
CRE 803(5): Based on reliability
CRE 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
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

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?”
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
Cross Examination
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
Confirm

Confirm
 Did

you say on direct examination that …?
Show the jury/bench you do not believe it
 Body,
tone and language
Credit


Seek to bolster the creditability of the prior
statement as much as possible
Ways to credit the prior statement:
 Timing
 Knowledge
of importance of statement
 Oath or other formalities
Confront


Impeachment requires that you confront the witness
with her prior statement
Methods for confrontation
“Improving” Testimony

Another type of impeachment problem

Witness on the stand starts to testify to “New facts”

There is no “inconsistent” statement with which to impeach

Sometimes referred to as an impeachment by ommision

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.
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
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)
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
Business Records

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
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
Re-Direct Examination
Rehabilitating Witnesses


Evidence of prior consistent statements
Evidence of truthful character
Difficult Witnesses
Two Types Of Witnesses


The sympathetic witness
The uncooperative witness
Sympathetic Witnesses



Theory of the case to eliminate attack
Empathy
Be up front
Uncooperative Witnesses
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Good Theme And Good Questions
Repeating
Clarifying
Reversing
So The Answer Is Yes
Using The Hand
Asking For Help
Good Questions

The most important cross-examination technique – for all witnesses – is to ask good questions

Leading questions

One fact per question

Build incrimently

Build in a logical order

Can be a declarative statement

Avoid conclusions

Avoid adjectives

“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……”
Repeating



Let me ask you again
Will the court reporter read the last question
Perhaps I was not clear, what I am asking is
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
So The Answer Is Yes

A variation of clarifying
Reversing

Using an opposite fact to get clarity
Using The Hand
Asking For Help

When is it okay, and how do you do it?
Making A Deal

Good idea? Bad idea?
Expert Witnesses
Expert Witness during the PreTrial 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
Direct Examination
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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
Qualifying The Expert

C.R.E. 702: “a witness qualified by knowledge, skill,
experience, training or education”
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”
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
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
Explanation

Basis of the opinion – admissible?
Opinion


Elicit the opinion from the expert again!
Technically, it has been asked and answered
 Most
judges will allow it
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
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
New And/Or Bad Facts

GIGO
 Garbage
in, garbage out
Objections
Objections are the fun part of trial work, although
they tend to be underutilized in our dependency
and neglect cases. Let’s look at objections in detail.
Overview


Gotta make them
Gotta refrain from overdoing
How To Object

CRE 103(a)(1)
 Timely

and specific
Basic objection
 Objection,

Speaking objection
 Can

hearsay.
land you in hot water
Plain English objection
 So
the jurors understand
Making A Record

Offer of Proof: CRE 103(a)(2)
Anticipating Objections


Motions in limine
Improper form of the question