Willem H Gravett, New York State Bar

'All interrogatories must, to some extent, make a suggestion to the witness. It would

be perfectly nugatory to ask a witness if he knew anything about nothing.'

- Lord Longdale

Introd uction

If I were to use the South African formula­tion of ' leading the witness' in a room full of

American trial lawyers to describe that part of the trial that we call 'direct examination: I will no doubt attract more than a few furrowed brows and impolite snickers. Even the most inexperienced American trial lawyer knows that the paramount commandment of direct examination is, 'Thou shalt not lead.' The first objection of any novice trial lawyer likely to be sustained is, 'Objection. Counsel is leading her own w itness.'

But, as South African trial lawyers know, ' leading ' is exactly what

any trial lawyer who desires to conduct a persuasive direct examina­

tion should do. The phrase ' leading' aptly describes the proper role

of the trial lawyer on direct examination - that of facilitator or guide

to assist the witness in making her presentation to the factfinder.

American trial lawyers have endowed the prohibition against 'Iead­

ing the witness' with far too much authority. It is not intended, as

novice American trial lawyers so often incorrectly assume, to describe

the role of the lawyer; it merely dictates the form of the question on

direct examination. Thus, a better formulation of this commandment

of American trial practice is, 'Thou shalt not ask leading questions.'

Why direct examination is important As a general rule, cases are won or lost on direct examination. This

statement may seem heretical if your image of trials comes from

movies and television where a stirring summation or a devastating

confrontation on cross-examination is almost always the highlight.

However, trial lawyers know that direct examination is the heart of

the case . It is the fulcrum of the tr ial- the one aspect upon which all

else turns. Every other aspect of the trial is derivative of direct exami­

nation . Opening statements and closing arguments are simply the

trial lawyer's opportunity to comment upon what the witnesses have

to say; cross-examination exists solely to allow the direct examination

to be challenged or controverted .

Experienced trial lawyers recognise that most trials are won on

the strength of the client's case in chief, not on the weakness of their

opponent's case. Direct examination is the trial lawyer's opportunity

advocate August 2007 21

to present the substance of the client's case. It is the time to offer sel. In daily conversation, a person usually speaks colloquially, even the evidence available to establish the facts that the cl ient needs to elliptically, leaving out ideas and events that are mutually understood prevail. Having planned a persuasive story, the trial lawyer must now among the conversants. However, in court, the witness must tell the

prove the facts upon which it rests by eliciting the testimony of wit­ story to the factfinder who in all likelihood is hearing it for the first nesses. Whi le it may be possible to imagine a trial system that con­ time. It is the direct examiner's task to assist the witness in sur­

sists only of di rect examination, it is impossible to even conceive of mounting these difficulties. anything remotely approaching accurate fact finding in its absence. As stated, an effective direct examination sounds and looks Consequently, effective

direct examination, that .. . the witness must tell the story to the factfinder who in all clearly, simply, efficiently, likelihood is hearing it for the first time. It is the direct examin­and persuasively present er's task to assist the witness in surmounting these difficulties. the facts of the case will

usually carry the day.

Why direct examination is difficult An effective direct examination looks and sounds easy. However, it is anything but. A prominent American trial advocacy scholar has

called direct examination 'the most difficult skill in the trial lawyer's repertoire.' 1

But inexperienced trial lawyers too often treat direct examina­

tion as the orphan of trial strategy by not preparing properly, either

themselves or their witnesses. 'How difficult cou ld it be? ' they

reason . After all, the witnesses are 'friendly' (or at least, not outright

hostile to your client's position), and all they have to do is just te ll

their story.

Imagine the novice trial lawyer has his cl ient (the friendliest of all

witnesses) on the stand. Preliminaries are dispensed with. So far, so

good. It is time for the gist of the client's testimony. The ill-prepared

trial lawyer starts:

Q: Now Ms. Franklin, tell us what, if anything, unusual hap­

pened on March 12th?

Opp: Objection. The question is both vague AND it calls for a narrative answer.

Court: Susta ined.

After swallowing nervously and wiping the sweat from his brow, our

novice tries again:

Q: Ms. Franklin, did you see the defendant commit a robbery on the afternoon of March 12th ?

Opp: Objection. Counsel is leading his own witness.

Court: Sustained.

At this point, the inexperienced direct examiner feels like opening

his briefcase, putting away all of his papers, and head off to a bar

somewhere to contemplate a less public forum for making a fool of

himself.

Also, consider, for a moment, the witness. For most lay wit ­

nesses, a courtroom is an unfamiliar and intimidating place, and the

prospect of actually having to testify is downright frightening. Their

trepidation is in no way eased by the process of direct examination,

which is, when you think about it, unnatural. When the trial lawyer

meets with the prospective witness in her office and engages the

witness in conversation, the witness will usually be able to nar­

rate the story in a more or less cohesive and comprehensible way.

However, the law of evidence will prohibit the witness from doing so

during direct examination, because narrative answers are forbidden.

At trial, the witness is confined to testifying from personal

knowledge, another bedrock principle of the law of evidence. Yet,

in daily speech, our narratives are a blend of observation, intuition,

surmise, and speculation. During direct examination, by contrast, the

lay witness who strays from the observable facts will invite both an

objection and a grueling cross-examination from opposing coun­

deceptively easy. The wit­

ness describes the events

in a clear and persuasive

way that enhances her

credibi lity. The factfinder

is engrossed in the story.

The opposing counsel is not able to make any sustained objections

and abandons the effort. There are no interruptions and the testi­

mony flows. All the evidence needed to prove the claim or defense is introduced. It may appear that a good direct examination depends

on an effective witness, an easy case, or just dumb luck. But, the

success or fai lure of a direct examination depends primarily on the

abilities of the di rect examiner. As we will see in the following two

articles, it is the direct examiner who orchestrates the telling of a

compelling and persuasive story through a credible and convincing

witness .

The law of direct examination The law of evidence determines the permissible content of all direct

examinations. The evidence introduced through direct examination

must first be assessed to determine the admissibility of the evidence.

The trial lawyer shou ld ask the following questions to assess the

admissibility of evidence:

• Does the witness have personal knowledge of the matter?2

• Has a sufficient foundation been laid to establish the source of the information ?3

• Is any opinion testimony based on the perception of the witness?4

• Is any out-of-court statement not defined as hearsay?5

• Is the testimony admissible based upon an exception to the hear­say rule?6

If the trial lawyer is able to answer these questions in the affirma­

tive, the evidence is admissible.

After the admissibility hurdle has been cleared, the trial lawyer

must then assess each question to be asked on direct examination to

determine whether its form complies with the rules of evidence:

• Does the question suggest the answer? If so, it is an impermissible leading question .?

• Does the question call for a narrative response? If so, it may be overly broad and thus improper8

• Are there actually multiple sUb-questions contained in a single

'question?' If so, it may result in an improper compound answer.9

• Is the question vague or ambiguous? If so, it may be confusing or unintelligible to the witness. 'o

• Is the question repetitious? If so, it may produce cumulative,

unnecessary evidence. "

The prohibitions against leading questions, questions that call for

a narrative answer, and opinions by lay witnesses are the ones

American trial lawyers most often violate, and, as such, they deserve

closer scrutiny.

Leading questions The principal rule of direct examination is that the triallavvyer may

not ask leading questions. This is, however, a rule of limitation, not

22 advocate August 2007

one of absolute prohibition. The Federal Rules of Evidence permit

leading questions when they are 'necessary to develop testimony.'12

American trial courts have interpreted this to mean that leading

questions are permissible on preliminary matters, on issues that are

not in dispute, to direct the witness's attention to a specific topic,

in order to expedite the testimony on non-essential points, and to

refresh a witness's recollection . In addition, it is usually permissible to

lead witnesses who are very young, extremely old, infirm, confused,

Leading questions are most often defined as questions that suggest the answer. However,

from the perspective of witness control, perhaps a better way of looking at it is to say that in a leading question, the trial lawyer supplies to the witness the information to be conveyed.

or frightened. Finally, it is always within the trial judge's discretion to

permit leading questions in order to make the examination effective

for the ascertainment of truth, avoid needless consumption of time,

protect a witness from undue embarrassment, or as otherwise neces­

sary to develop the testimony.

Leading questions are most often defined as questions that sug­

gest the answer. However, from the perspective of witness control,

perhaps a better way of looking at it is to say that in a leading

question, the trial lawyer supplies to the witness the information to

be conveyed. Thus, if the trial lawyer's question merely describes the

kind of information that is expected, without providing the actual

information, the question is non-leading and permissible. There is

a great deal of control that the trial lawyer can and should exercise

over the witness on direct examination with questions that are sug­

gestive of the kind of information desired, but that do not actually

supply the information to the witness. A direct examination question

may, for example, suggest that something happened, may refer to a

topic, may ask whether someone spoke, and may suggest a result,

as long as it does not provide the actual information.

Consider the following examples:

Q: You saw two men in the street when you returned home?

This question is clearly leading. The trial lawyer provides all the

information, namely that the witness saw two men in the street. The

witness merely acknowledges or denies the information by answer­

ing 'yes' or 'no.'

Q: What did you see in the street when you returned home?

This is a permissible non-leading question. The witness is expected

to provide the information sought, namely 'two men.' But the

question nevertheless describes with precision the nature of the

information desired: the witness is asked only what she observed in

a particular place at a particular time. Although the direct examiner

exercises control by drawing the frame, the picture within the frame

is to be provided by the witness.

As is so often the case, this is an area where the law of evidence

proscribes what effective trial practice discourages anyway. Although

the prohibition against leading questions on direct examination is

a rule of evidence, it is also a rule of persuasion. Leading questions

may draw objections that interrupt the flow of evidence. However,

their bigger vice is that they do not allow the witness to tell the

story. By providing the answer in the question, the trial lawyer dimin­

ishes the impact of having the witness provide the facts, of having

the factfinder hear the facts 'from the horse's mouth.' The factfinder

cannot help but wonder if the witness would have given the answer

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advocate August 2007 23

if the lawyer had not practically put the answer in the witness's mouth. If the witness answers simply 'yes' or 'no,' the factfinder has no adequate basis of assessing the witness's credibility. A cardinal rule of direct examination is that the trial lawyer should never do anything that detracts from the witness or diminishes the impact of the witness's testimony. Leading questions do exactly that.

Consider the following example of the prosecutor's 'direct' exami­nation of the eyewitness in a robbery case:

Q: Mr. Jones, you live on Oak Street?

A: Yes.

Q: You were in the For Less Supermarket on the afternoon of May 4th, weren't you?

A: Yes.

Q: A robbery took place there at that time, isn't that right?

A: Yes.

Q: You were standing near the magazine rack when someone stormed in with a gun and demanded all the money from the cashier?

A: Yes, that's right.

Q: Did th is person take the money and run?

A: Yes.

Q: And the person you saw robbing the supermarket is the same person seated over there (pointing to the defendant)?

A: Yes.

The rules of evidence aside, this so-ca lled 'direct' examination offers absolutely no basis for the factfinder to believe the witness. In fact, the leading questions actively detract from the witness's cred­ibility. The direct examiner created the impression that any utterance longer than one word might destroy the entire case . Imagine, for example that portion of the defense attorney's closing argument dealing with the eyewitness testimony:

The court will remember the testimony of the eyewitness, Mr.

Jones. He testified without any hesitation, and I quote, 'Yes.'

Narrative answers Generally, a question that invites a w itness to respond with a long,

uncontrolled story is improper. However, as with leading questions,

the trial judge has wide discretion to allow testimony in narrative form. A witness that has been qualified as an expert is often permit­

ted, indeed encouraged, to testify in narrative form.

The narrative answer's impropriety, from the perspective of the

law of evidence, lies in the fact that it denies opposing counsel the

opportunity to anticipate objectionable evidence and the ability to

make a timely objection. Effective trial lawyers have an additional reason for shunning questions that call for narrative answers. In

asking such questions, the trial lawyer abandons all control and

hands the presentation over to the witness. For example:

Q: What happened on the evening of October 10th?

This question, in effect, asks the witness: What do you think is most significant about the evening of October 10th?

The witness could fairly answer the question by running through the entire narrative of the incident, or could give a single paragraph

capsule version, or could start with the first few details and then

stop and wait for a further prompt. This question gives the wit­

ness the freedom to literally start at any point and end at any point regarding the events of October 10th. The trial lawyer abandons

control by not providing any frame for the witness's answer.

A more controlling question that still maintains a non-leading configuration would be:

Q: What did you do at 9:00 p.m. on October 10th?

This question not on ly incorporates the time limitation, but also

24 advocate August 2007

limits the scope of the requested testimony to the actions of the wit­ness. The witness is not expected to describe what she saw or heard, but only what she did. To elicit the additional information, the trial lawyer may ask:

Q: What did you see at 9:00 p.m. on the evening of October 10th?

A more controlling - and therefore even better - formulation would be:

Q: What did you first see at 9:00 p.m. on the evening of October 10th?

With this question the trial lawyer is clearly suggesting to the witness that she is to stop after describing the first thing she saw and to wait for the next question.

No opinions Lay witnesses are expected to testify from personal knowledge acquired through their sensory observations. What did the witness see, hear, smell, taste, touch, or do? As a general rule, witnesses, other than experts, are not allowed to characterise events or testimony. A lay witness, may, however, express opinions that are 'rationally based upon the perception of the witness.' 13 As such, trial courts have permitted lay witnesses to draw conclusions on issues such as speed, distance, volume, t ime, weight, temperature, and weather conditions . Similarly, lay witnesses may characterize the behavior of others as 'angry,' 'drunken,' 'affectionate,' 'busy,' and even'crazy.'

As with the evidentiary prohibitions against leading questions and questions that call for a narrative answer, effective trial advocacy also dictates that the direct examiner steer clear of soliciting the opinions or characterizations of lay witnesses. Factfinders recognise that rea­sonable people may come to different conclusions or opinions from the same set of facts . It is therefore almost always more persuasive to direct the witness to provide the specific facts that warrant a conclusion, leaving the actual conclusion to the factfinder. Consider the following example:

Q: What were the two men doing?

A: They appeared to be harassing the young girls . ..

Opp: Objection. The witness is expressing a conclusion. I move that the witness's answer be stricken from the record.

Court: Sustained. The witness's answer is stricken. Please rephrase your question, counselor.

Q: Please describe to the Court the specific actions of the two men.

A: They were screaming and whistling at the young girls, making hand gestures in their direction as they walked by, and using foul language.

The latter answer, providing only specific facts, is clearly more persuasive.

Now that we have discussed some of the basic principles of direct examination in American trial practice, in the following two articles, we will explore the ways in which American trial lawyers exercise (or, rather, should exercise) control over the witness presentation during direct examination.

6 Federal Rules of Evidence 803 and Endnotes 804.

1 M Tigar Examining Witnesses 7 Federal Rule of Evidence 611 . (2nd Ed) (American Bar 8 Idem. Association, Section of Litigation,

9 Federa l Rule of Evidence 611 . 2003) at 47.

10 Federal Rules of Evidence 401 2 Federal Rule of Evidence 602. and 403 . 3 Federal Rules of Evidence 901 and 11 Federal Rules of Evidence 403

903. and 611

4 Federal Rule of Evidence 701. 12 Federal Rule of Evidence 611 .

5 Federal Rule of Evidence 801 . 13 Federa l Rule of Evidence 701. ~