CHAPTER 4—DIRECT EXAMINATION
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3. “(b) Irrelevant evidence is not admissible.” MRE 402(b).
III. STRUCTURE AND ORGANIZATION OF A DIRECT EXAMINATION:
A. The Substance of Direct Examination: The goal of direct examination is to elicit
the witness’s testimony in a clear and logical progression so that the trier of fact
will understand, believe, and remember what was said. A useful way to think
about direct examination is to consider each one a story; and every story has a
beginning, a middle, and an end. And just as every story has a purpose—a moral or
a lesson—every witness has a purpose. Crafting and conducting a successful direct
examination is a discipline which can be mastered through the application of a few
basic principles coupled with practice in court. The principles discussed below
provide the structure on which to build a sound direct examination.
1. The Beginning: Introduce the witness. This may sound like an obvious
point, but you would be surprised how often attorneys call a witness, ask
his or her name, and then launch immediately into questions about the
case. To the extent possible, you should humanize every witness by
placing the witness in context with a few introductory questions. For key
substantive witnesses, such as the victim in an assault case or an important
eye witness, you can elicit testimony about what town the witness lives in,
what they do for a living, whether they have a family, and other
biographical information, provided it is not overly intrusive. For technical
or chain of custody witnesses, you should at least establish what the
witness does, how long he or she has been doing it, what the witness’s role
is at the lab or police department, and why this role is important. Only
after you establish some basic introductory facts should you move on to
elicit the substance of the witness’s testimony.
2. The Middle: Once introductory matters are dispensed with, you will
move on to elicit the testimony about the case in a logical manner using
proper questions. Keep the following practice points in mind:
a. Have a Plan: Have some sort of written plan for each witness to
keep you focused on that witness’s purpose. While you might not
write out each question to be asked during direct examination, you
should at least have an outline or bullet points handy to make sure
you hit the key points or the elements of the offense.
b. Primacy and Recency: Because people remember best what they
hear first and what they hear last, strive throughout the trial—in
opening statement, in closing argument, and in direct
examination—to start strong and end strong.