Modern perspectives on examination in chief
If you look at modern texts on advocacy, such as Modern Trial Advocacy - analysis and practice by Steve Lubet and JC Lore you will find many of the principles discussed in the historical texts on advocacy reiterated here. Historically, cross examination was viewed as the sexier option by students and new barristers, with examination in chief viewed as the poor relation. Back in the day, experienced advocates would try to impress pupil barristers on the importance of examination in chief as well as cross examination, and that is put in the strongest terms in Modern Trial Advocacy, which states:
"Direct examination is the heart of your case. It is the fulcrum of the trial - the aspect on which all else turns. Every other aspect of the trial is derivative of direct examination. Opening statements and final arguments are simply the lawyer's opportunity to comment on what the witnesses have to say; cross examination exists solely to allow the direct examination to be challenged or controverted.
The authors identify that examination in chief should be designed to accomplish one of the following goals:
- Introduce undisputed facts
- Enhance the likelihood of disputed facts
- Lay foundations for the introduction of exhibits
- Reflect on the credibility of witnesses
- Hold the attention of the trier of fact - be persuasive
and that when examining a witness, advocates should
- Ask non leading questions
- Avoid narratives (though if you look at some of the examinations in chief from the Nuremberg trials, you will see key parts of those often include a more narrative element)
- Allow the witness to describe their sensory perceptions of the events in dispute ie what did the witness see, touch, taste, hear or do?
The excellent little book "The common sense rules of advocacy" by Keith Evans, identifies the following rules relating to witness handling generally and examination in chief aka direct examination more specifically:
The Examination of Witnesses
Think out in advance the answer you want to hear and design your questions with a view to getting that precise answer
Every examination should consist of a series of objectives
Never forget that the average witness speaks from memory
Never forget you're not dealing with facts but with what the witness believes to be the facts
Go gently when you attack the witnesses recollection
Never turn to a witness for help
Don't ask compound questions
Use variety in the format of your questions
Beware demanding the yes or no answer
The Foundation Rule: before you may ask a witness to testify on any topic you must lay a foundation showing how the witness has acquired knowledge of that topic
In direct examination remember the rule of Two: couple your questions wherever you can
These points have been reiterated and added to by Bernard Richmond QC, in his amazing Xoomschool sessions on advocacy, which are well worth attending. With regard to witness handling, Bernard made the following observations:
1) Always have control of your witness.
Don’t go off on tangents
Control the way information comes out
Your witness will need to feel in control, which means you need to act confident so the witness feels that you are in charge and know what you are doing.
Avoid fillers – they hide the first word which is often the most important “Who, where, when, and how”. Never ask why!
No question should be more than one fact – one fact one question.
Don’t allow the witness to go into long narratives.
Avoid “What happened next?” questions.
Limit the question to time and space.
2) Give your witness time
Before you start, explain to the witness that it is your job to make sure that the jury understand all the important information that the witness will be telling them, and so sometimes you might need to ask the witness to pause so the jury has the time to digest what is being said. Explain to the witness that he should therefore pause if asked to do so.
Let the witness speak.
Don’t let them speak too quickly. Slow them down or make them pause if they are galloping through their evidence.
3) The power of the pause
Saying nothing can be very powerful indeed, and can add considerable emphasis to the point you just made.
Silence is golden. Use it well.
4) Examination in chief
Don’t ask leading questions – it undermines the witnesses testimony if the way you phrase the question gives away the answer.
Don’t put ideas in the witnesses head.
You can lead on issues that are not in contention (may need to be agreed with your opponent in advance)
Use words like who, when, where, how, what and describe to start your questions.
Think of the answer you want. To avoid leading make the questions wider, such as:
How did you feel?
Remember people have five senses. Ask the witness to describe what happened in relation to those five senses – what did you see, hear, feel, smell, taste (if relevant) and touch. Ie when you went over to the car accident what did you (see, hear, smell and touch) How did it make you feel?
Some witnesses will try and give you the run around, or be cheeky. Squash that type of behaviour from the get go. Once you’ve established that you are in charge you can ease off such tight control of your witness.
5) Avoid subjective terms
There are some terms that are really subjective and should therefore be avoided, such as
Questions regarding visibility
How fast something was going
How busy something was
Anything to do with the emotions – anger can be be used to describe anything from cold fury to red hot rage and everything inbetween.
Words like “like”
Terms like “girlfriend” or “boyfriend” as that covers a multitude of permutations!