Though less glamorous and less often discussed, direct examination is no less important than cross examination. This is particularly true with regard to the direct examination of your client, as the testimony of a defendant is inevitably going to be the main event of a criminal trial. As a result, the decision of whether or not to have your client testify is among the most important, and difficult, that a criminal defense attorney has to make. [Of course, the decision regarding whether or not to testify is the client’s – not the attorney’s. Still, most clients heed the advice of their attorneys on this issue.] For this reason, this section will focus on how to direct your client.
With that in mind, here are a couple of considerations to keep in mind as you plan your direct.
“Do you think I should testify?”
It’s a virtual guarantee that your client will ask you this question at some point during your representation. Some of the factors to consider with regard to how you answer it include:
1) whether your client will present well,
2) whether your client’s criminal history is too damaging, and
3) whether your client’s testimony will be incriminating.
The first of these factors can be addressed through adequate witness preparation.
The second might be able to be addressed through witness preparation, but, depending on the number, severity, and similarity of the prior crimes, the wisest course might also be to advise your client to avoid the stand.
[Of course, you will try to keep the jury from learning of your client’s criminal past by filing a motion in limine, but most judges will let at least one prior admissible conviction in, if your client has any, which they usually do. The question then becomes: how crucial is your client’s testimony to your theory of the case?]The third of the above-listed factors can act as an absolute bar to allowing your client to testify. As defense attorneys, we understand that a guilty client is just as entitled to a jury trial as an innocent one. Nonetheless, a guilty client is not entitled to lie under oath. As a defense attorney, you simply cannot knowingly allow that to happen. Thus, if your client intends to commit perjury, you must counsel him or her against taking the stand. If they insist, you may have to withdraw, or possibly even inform the court.
The unfortunate thing is that, if your client chooses not to testify for a legitimate reason, such as an inability to present well, or an extensive criminal history, the jury will assume that they avoided the stand because they’re guilty. This is why it’s best to have your client make this decision before trial, so that you can address the issue in jury selection.
Direct Examination Technique
As with the other stages of trial, there is a technique to direct examination.
First, and perhaps most importantly, you must structure your questioning. You must steer the conversation, so that it touches upon the points that need to be addressed.
Second, direct examinations should be engaging.
Many trial advocacy textbooks talk about how on direct, unlike on cross, you are not the star. Instead, the witness is the star. That’s true, but I think it’s more accurate to say – particularly with regard to direct examinations of the persons on trial – that, on direct, the story is the star; the witness is just the conduit.
Thus, it is important to make the story shine so that it will resonate with the jurors. For that, you must be able to paint vivid images on direct examination. T-Funnels, discussed further down this page, will help you.
Witness Preparation
Preparing a witness is not the same as coaching a witness. Coaching a witness is telling a witness what to say. You cannot coach your witnesses. You can and should, however, prepare your witnesses.
Witness preparation involves getting your witnesses comfortable with the trial process, so that they present their story in the best possible fashion.
Before I get into the details of their case, I generally give my clients a standard testimony lecture (included at the bottom of this page), in which I explain what they can expect during their testimony, and how I would like them to react.
After this, I run through the direct with them, but, at first, I make it broader than I would for the trial. I ask them about everything: how far they went in school, their jobs, their children, their history with drugs, etc. I do this hoping to stumble on something good that I may not have otherwise asked. Perhaps they do volunteer work, for example. I might ask them about that during their trial testimony, before I get into the substance of their case.
I also do this because I want to know the bad stuff. If they got kicked out of school for fighting, I want to know that. If they have five kids in foster care, I want to know that too.
The ultimate goal of these initial questions is to find out what you want to ask in the “meeting”: the first questions that you ask when the witness takes the stand. The purpose of the meeting is to get the jury to think of your client as something other than a criminal. Instead, they are a father, a student, a worker, etc.
A sample meeting might look like this:
Q. Sir, you’re John Doe, aren’t you?
A. Yes.
Q. How old are you John?
A. I’m twenty-four.
Q. And you’re a high school graduate, aren’t you?
A. Yes. I graduated from Hilltop High.
Q. And what did you do after high school?
A. I worked at the mill.
etc…
Keep the meeting brief. If you go too long, you’ll draw a relevance objection. Once you’ve introduced your client, move into the case proper:
Q. John, I want to ask you some questions about the night of August 12, 2011. Do you understand?
A. Yes.
Q. Who were you with that night?
Etc.
In addition to mining your client for information that might be helpful in the “meeting,” you want to prepare by asking him questions about the case. Again, be broad. Ask about everything. Based on what you learn, decide on how you want to arrange your examination. If there’s a particular moment or person that you want to emphasize, develop that testimony through the use of T-Funnels. Explain to your client that you want to present that information to the jury in detail, and let him know how the T-Funnels work.
Although I recognize that, with a misdemeanor caseload of several hundred files, it may not be practical, it is important to rehearse the direct several times. There is no excuse for this not to happen in a serious felony case. By the time you’re through, your client must be comfortable answering the questions that you’re going to ask. If you’re going to enter exhibits through your client, you should rehearse that as well.
You must also practice cross examining them. Better yet: have a colleague do it. Really put them through their paces. Make it a worse cross than anything they could encounter at trial, so that their actual testimony will be easy by comparison.
Here are some other critical components of an effective witness preparation:
First, you must explain the process. Describe the courtroom to your client: where they’ll sit, etc.
Second, help them with their demeanor. Some clients are quick to anger. Warn them that the prosecution is going to try to bait them. They’re going to be called a liar, an abuser, whatever. If they take the bait and argue or yell, they are virtually guaranteeing a conviction. If the jury doesn’t like, or is afraid, of them, the strength of their case won’t matter.
Third, help them with their verbal tics.
Perhaps it’s just a function of my region, but many of my clients like to punctuate their speech with “woowoo,” or “know what I’m sayin’?” This immediately identifies them as different from the jurors. Helping them control their tics is a relatively easy way to keep them from distancing themselves from the jury.
Finally, accept that you’re not going to change who your clients fundamentally are, nor should you try. Indeed, the only way for them to perform well on direct is for them to be authentic. But polishing them is not the same as changing them. Dress them up. Clean up their language. Counsel them on keeping their temper. These things won’t necessarily win the trial, but they can keep you from losing it.
Use T-Funnels to Zoom in on Important Scenes, People, and Events
The principle behind the use of T-Funnels is simple: when you arrive at a point in the direct examination that you want the jurors to pay particular attention to, use increasingly precise questions to funnel their attention to details.
For example, I once had a case in which my client was charged with Home Invasion and Aggravated Battery. Specifically, he was alleged to have entered an apartment for the purpose of beating his girlfriend – and then to have beaten her.
The client’s intent upon entering the apartment was crucial with regard to the Home Invasion charge. If he entered for a lawful purpose, such as wanting to talk to her, then he was not guilty of that charge. If he entered for an unlawful purpose, such as wanting to beat her, he was guilty.
Thus, the threshold of this apartment, and the events that occurred there, were of critical importance. The prosecution argued that my client barged into the apartment, pushed a couple of male occupants out of the way, and immediately attacked his girlfriend. I argued that my client entered peacefully, and that it wasn’t until after he crossed the threshold that he formed the intent to attack. Below, you can see how, during the direct of my client, I used T-Funnels to draw the jury’s attention to the facts that buttressed my argument.
Q. James, I want to talk to you now about what happened just after you knocked on Roger’s door. Understand?
A. Yes.
W. First, can you explain this door to the jury?
A. It’s just a regular door. Like a white door.
Q. Was it metal or wood?
A. Wood.
Q. Okay. And looking at it from the outside where you were standing, what side was the doorknob on?
A. The right side.
Q. Okay. And how high was it from the ground?
A. I don’t know. Three or four feet maybe.
Q. Waist height?
A. A little above waist height, yeah.
Q. And which direction did this door open. Out, or into the apartment?
A. Into the apartment.
Q. So, if someone were to open the door from the inside, would they have to step backward?
A. Yes. They would.
Q. About how far?
A. About three feet, I guess.
Q. All right. Now, what happened after you knocked on the door?
A. It opened.
Q. Who opened it?
A. Roger.
Q. Did you push on it at all?
A. No sir.
Q. Are you sure?
A. Yes sir. Roger opened it and stood back so I could come in.
Q. Did he say you could come in?
A. No.
Q. Well, how did you know you were welcome in?
A. He opened the door, didn’t he? I figured he wouldn’t have opened it if I wasn’t welcome.
Q. Okay. Now, describe this entryway. As you entered the apartment, what was directly in front of you?
A. I don’t really know. I think there was a TV there, but Roger was standing there, so I couldn’t really see.
Q. How about to the right of the entryway?
A. There’s a couch right there. Like a white couch.
Q. Okay. And how about to the left?
A. There’s a wall there, but the door opens in that direction, so I didn’t really see what was over there at first.
Q. Did you eventually get to see what was over there?
A. Yes.
Q. How did that happen.
A. Roger let me in and I stepped inside, and he shut the door behind me.
Q. And when that happened, did you get a chance to see what was on the left?
A. Yes.
Q. What was over there?
A. There were like, the whole wall was covered with like posters and stuff. Concert posters and beer posters.
Q. The whole wall was covered?
A. Yes.
Q. Earlier, did you say that the the doorknob was a little over waist height?
A. Yes, it was.
Q. Let’s say someone were to fling that door open, James. If that were to happen, would the doorknob hit any of those posters?
A. Yes, it would.
Q. Okay, when you left that apartment with Rosalind, were any of those posters wrinkled?
A. No.
Q. Were any of them ripped?
A. No.
Q. Were any of them torn from the wall?
A. No.
Q. Okay, was there anything else on that wall?
A. Yes, there was a lamp.
Q. What kind of a lamp?
A. Like a tall lamp.
Q. How tall?
A. Tall. Six feet maybe.
Q. Was it one of those lamps that’s like a tube with a dish on top?
A. Yes.
Q. And did it have a round base at the bottom?
A. Yes.
Q. James, at any point during your time inside of that apartment, was that lamp ever knocked over?
A. No.
Q. Okay. Now, let’s talk about what happened after you were let in to the apartment …
Testimony Lecture
I know that you’ve never testified. That’s okay. I’m going to prepare you. There are a few things that I want you to keep in mind before I start going through the actual questions with you though, okay?
First, testifying isn’t easy. You need to take it seriously, and you need to pay attention during these meetings, okay?
Now, I need you to listen closely to the questions that I ask you. Answer only those questions. I don’t want you to just start talking up there and answering the question that you wish I’d asked, or that you think I ought to have asked. I’m asking these questions for a reason. You’re just going to have to trust me on this. Answer only the question I ask. If I need more information from you, I’ll ask another question. Understand?
Now, when I’m done questioning you, the prosecution gets their chance. They’re going to ask you a different kind of question than I am. To me you’re a “friendly” witness. To them, you’re a “hostile” witness. That means they get to ask you leading questions, and I don’t. Let’s talk about that.
A leading question is one that suggests the answer you’re supposed to give. You arrived at 9:30, didn’t you? That’s a leading question. I couldn’t ask you that. I’d have to ask you: What time did you arrive. Do you see that?
So, I’m going to ask a lot of “W-Questions.” What time did you get there. Who were you with? Where did you go? Understand?
They’re going to ask you things like: You got there at 9:30. You were with Jack. You went to the bar. See? Okay.
Now, you’re going to find that, most of the time, you’re going to be able to answer the prosecution’s question with a yes or a no, and that’s all I want you to do. Give them a yes or a no. Yes Ma’am, no Ma’am would be even better.
Keep your answers short. The more you talk, the more trouble you’re going to make for yourself. Trust me.
Also, you’re going to want you argue. Don’t argue; you’re going to lose the argument. After all, these people argue for a living. Just give them the answer and let it go.
Accept that you’re not going to like the way it feels on cross. That’s just the way it is. Just keep in mind that, when they’re done, I’ll get another chance to question you. If there’s anything that needs to be cleared up after your cross, that’s when I’ll do it. You want to clear things up with me. Don’t try to do it during their questioning. Understand?
One last thing before we begin: you absolutely have to tell the truth. Whatever the truth is, I’ll work with it, but I have to know what it is. If you get caught in a lie on the stand, you’re done. The jury will convict you as soon as they get the chance. Plus, you open yourself up to perjury charges.
So, tell the truth. Keep your answers short. Don’t argue. Be polite.
Now, let’s run through this.