ADVANCED DIRECT AND CROSS-EXAMINATIONModule 2

Organization Of DiscussionDirect examination techniquesRefreshing recollection, past recollection recorded, looping for emphasis, saving topics for re-direct examinationCross-examination techniquesPrior inconsistent statements, dealing with improving memories, attacking character for truthfulness, impeaching with felony convictions, bringing out general biasRehabilitationReviving your witness after character, bias, or motive attacks.

Direct Examination

Refreshing RecollectionSteps: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. Whats your answer now?

Mechanics of RefreshingThink of the foundation as a grocery list First establish that the witness has forgotten somethingThen establish that there is something that would help him or her rememberAsk to approach with the documentShow the witness the documentAsk the witness to read the document and then put it downRetrieve the documentAsk if the witnesss memory is refreshedRepeat the question

Mechanics, ContinuedRetrieve itAsk againInteresting foundation?

Recorded RecollectionWhat if the witness still does not remember?Witnesss memory cannot be refreshedThe out of court statement, or hearsay, can be admitted as a hearsay exceptionPast recollection recorded, C.R.E 803(5)Same foundation as refreshing recollection except one big difference

Recorded RecollectionHearsayRequires a hearsay exceptionCRE 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 RecollectionSame foundation as refreshing recollection,BUT must include questions about when and why the document was made or adopted.Document read into the record NOT admittedAgain, interesting foundation

LoopingRepeating an answerInstead loop

Example: Question: Please describe the car.Answer: It was a red sports car.How fast was the red sports car going?

Saving TopicsRedirect: Purpose is to rehabilitate or rebut information brought out on crossSome topics must be saved: Rehabilitation with prior consistent statement or evidence of truthful characterOptional: 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 examinationMay not introduce new topics just because you forgot to ask about them during your direct examination

Cross Examination

Prior Inconsistent StatementsA common method of impeaching a witness: That is not what you said beforeHearsay? Impeachment statements are not hearsay: not being offered for the truthThe Three Cs: Confirm, Credit and Confront

ConfirmConfirmDid you say on direct examination that ?Show the jury/bench you do not believe itBody, tone and language

Credit

ConfrontImpeachment requires that you confront the witness with her prior statementMethods for confrontation

Improving TestimonyAnother type of impeachment problemWitness on the stand starts to testify to New factsThere is no inconsistent statement with which to impeachSometimes referred to as an impeachment by ommisionPrior inconsistent statement foundation with one additionBuild up creditability of the prior statement, just as done before AND build up the importance of the new factShowing that it is so important, no reasonable person would have omitted itAnd yet, there is no evidence of it in prior statementConfrontation: 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 CharacterCharacter is generally inadmissibleC.R.E. 404(a)Character of a witness for truthfulnessC.R.E. 404(a)(3) and C.R.E. 608

Truthful Character of WitnessEvidence of truthful character admissible only after attack on truthfulnessBut only after attack on truthfulnessUsed as rebuttal evidenceOpinion and/or reputation evidenceC.R.E 608(b)

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

Business RecordsC.R.E. 803 (6)Records of regularly conducted activityWitnessRecords made contemporaneouslyKept in course of regular business activityRegular practice to make such reports

Re-Direct Examination

Rehabilitating WitnessesEvidence of prior consistent statementsEvidence of truthful character

Difficult Witnesses

Two Types Of WitnessesThe sympathetic witnessThe uncooperative witness

Sympathetic WitnessesTheory of the case to eliminate attackEmpathyBe up front

Uncooperative WitnessesGood Theme And Good QuestionsRepeatingClarifyingReversingSo The Answer Is YesUsing The HandAsking For Help

Good QuestionsThe most important cross-examination technique for all witnesses is to ask good questionsLeading questionsOne fact per questionBuild incrimentlyBuild in a logical order Can be a declarative statementAvoid conclusionsAvoid adjectivesYou made a referral in this caseThe referral was for my client, Ms. JonesThe referral was for Ms. Jones to take urine analysis, or UAsThe referral was for urine analysis at Whiz QuizYou made this referral on October 10thYou made the referral by calling Whiz Quiz

RepeatingLet me ask you againWill the court reporter read the last questionPerhaps I was not clear, what I am asking is

ClarifyingI am not asking you about X, I am asking youWe can talk about X in a moment, all I am asking you right now isYou can talk about X with opposing counsel, all I am asking you right now is

So The Answer Is YesA variation of clarifying

ReversingUsing an opposite fact to get clarity

Using The Hand

Asking For HelpWhen is it okay, and how do you do it?

Making A DealGood idea? Bad idea?

Expert Witnesses

Expert Witness during the Pre-Trial PhaseHow to select your own expertHow to use your own expertOther strategies to use during pre-trial when anticipating expert testimonyEducating yourself about the issuesAdequate discovery

Direct ExaminationQualifying the expert: C.R.E. 702Offering the expertBases of the opinion: C.R.E. 703Explaining the opinion: C.R.E. 703 and 705Offering the opinion

Qualifying The ExpertC.R.E. 702: a witness qualified by knowledge, skill, experience, training or education

Qualifying The TopicC.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 ProcessNO F.R.E. 702 equivalent in Colorado.People v. Shreck, 2 P.3d 68 (2001)Reliable scientific principlesWitness qualificationsHelpfulness to the trier of fact

OpinionElicit the opinion from the expertBased 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

ExplanationBasis of the opinion admissible?

OpinionElicit the opinion from the expert again!Technically, it has been asked and answeredMost judges will allow it

Use their expert to prove or build your theory of the caseWeaken their expert by using new facts or bad facts from your case

CROSS-EXAMINATION of the Expert

Get Your Own ExpertTrying to out-expert their expert is a mistake unless you have your ownYour expert helps youUnderstand the topicPrepare cross-examination questionsPresent opposing testimony

New And/Or Bad FactsGIGOGarbage in, garbage out

Objections are the fun part of trial work, although they tend to be underutilized in our dependency and neglect cases. Lets look at objections in detail.

Objections

OverviewGotta make themGotta refrain from overdoing

How To ObjectCRE 103(a)(1)Timely and specificBasic objectionObjection, hearsay.Speaking objectionCan land you in hot waterPlain English objectionSo the jurors understand

Making A RecordOffer of Proof: CRE 103(a)(2)

Anticipating ObjectionsMotions in limineImproper form of the question

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