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.
 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.
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
 C.R.E. 803(5): Based on reliability

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
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


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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
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.”
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 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.
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: 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.
Difficult Witnesses
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
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 incrementally
 Build in a logical order
 Can be a declarative statement
 Avoid conclusions
 Avoid adjectives
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……”
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….

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
“So, the answer to my question is yes?”
 A variation of clarifying

Reversing
Using an opposite fact to get clarity
 Example: “The light was red, wasn’t it”
“So the light was green?”

Using The Hand
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.

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 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
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?
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.
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
