Authored by Howard J. Zlotnick
Abstract
For prosecutors, direct examinations are the building blocks for all trial advocacies. Successful cases are dependent upon a complete and convincing presentation of the evidence. Direct examinations are the quintessential tool to prove guilt or innocence. Through witness questioning, a prosecutor can present and persuade the jury of the case’s facts. Although a defense attorney may rely exclusively on cross-examination and argument, especially where the defendant does not testify, the prosecutor’s case depends on clear witness testimony.
Trials are different from their depictions in literature, films, and television. They are often tedious and can turn on the smallest of details. Unnecessarily prolonged and disjointed direct examinations bore and confuse jurors and spectators alike. Lack of organization also loses the attention of anyone listening to the testimony. All too frequently, witnesses are unprepared for court by the lawyers who call them to the stand. Examiners use stilted words to sound like lawyers. Finally, poor questioning techniques—such as open-ended questions inviting narrative answers—cause jurors to miss or gloss over important information.
This Article suggests ways to prepare and deliver sound direct examinations. Part I explains the reasons directs are complex. Part II addresses the primary purpose of direct examinations—arguing the prosecution’s case through witnesses—and discusses the debate between the witness and lawyer-oriented direct. Part III suggests organizing the direct through an outline that covers the witness’s background, the context of testimony, the testimonial topics, defusing cross-examinations, and finishing at a selected point. Part IV discusses the rules concerning leading questions under Rule 611. Part V explores effective questioning techniques with examples through portions of trial transcripts. Finally, Part VI considers the purposes and some strategies for an effective re-direct.
American Journal of Trial Advocacy 