From the Sidebar - Trial, Litigation and The Practice of Law

by:  Hayes Hunt and Calli Varner

On June 18, 2012, the Supreme Court came down with a fractured 5-4 decision disrupting long-standing 6th Amendment Confrontation Clause precedent as it applies to forensic evidence.  Williams v. Illinois, No. 10-8505 (June 18, 2012). 

The issue before the Court arose out of a rape prosecution in Chicago.  Illinois police recovered the perpetrator’s DNA sample from the victim and sent the sample to a private lab in Maryland.  When the DNA profile report was returned, Illinois police ran it through their database in Illinois and found a match, Sandy Williams.  During Williams’ trial, the Maryland lab report was not introduced into evidence and the Maryland laboratory technicians did not testify.  Prosecutors, however, presented an expert from the Illinois state lab, who testified that it was her opinion that a DNA profile generated from Williams’ sample matched the DNA profile developed by the Maryland lab.  Williams was convicted. 

Later, Williams claimed that the prosecution’s failure to offer the Maryland laboratory technician for him to cross-examine was a violation of his right to confrontation.  The Illinois Supreme Court disagreed and upheld his conviction. 

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By Benjamin E. Zuckerman

As any trial lawyer knows, direct exams are often more difficult than cross.  During cross-examination you are in charge.  You make the witness tell your story by asking her leading questions that let you control the testimony.  You can change from subject to subject whenever you want. Cross can really be fun.

Direct exams are a different story.  Your role as questioner is more limited.  The witness is the star, not you. It’s her story that the jury needs to hear.  If you don’t handle the direct exam properly the story won’t get told in a clear and convincing way.

Lawyers often run into direct exam problems because they forget--or don’t know how--to ask questions that are simple, organized, direct and concise.  That task can almost always be accomplished by starting each questions with the “W” words. Simply begin most questions with “where”, “when”, “who”, “why”, or “what”.  Your witness will easily understand what you are asking her and the jury will easily understand her answer.  Your client’s story will flow naturally and effortlessly.  A simple example is:

Where were you on the night of January 2?

Why did you go there?

Who else attended that meeting?

What time did you arrive?

What subjects were on the agenda?

When did you leave?

You and your witness will have painted a clear picture for the jurors.  Through this brief exchange they’ll know what was happening, where it took place, who was present, why they were there, etc.  Following up with questions such as “What happened next?”, “Who suggested that?”, or  “When did that happen?” will complete the picture.  Additional “W” word questions can also be thrown into the mix, such as “Was anyone else supposed to attend the meeting?”  You get the idea.

Of course, you can also start questions with other words, such as “Did you stay for the whole meeting?”, but keeping the “W” word formula in mind is a sure-fire way to make your direct exams easy and effective.

Benjamin E. Zuckerman is of counsel in Cozen O'Connor's General Litigation Department. He concentrates his practice in the areas of commercial and general litigation, including a broad range of civil matters.

Impeachment on Direct

How to deal with unexpected testimony on direct examination - Part 2

You call your last witness and things are going great.  A verdict in your client’s favor will be soon to follow.  All you have to do is establish that there was moonlight. 

Counsel: Was there moonlight at the time you saw the accident?

Opposing Counsel: Objection.  Leading and lacks foundation.

Court:  Overruled.

Witness: It was the sun.

Counsel:  Are you sure?

Opposing Counsel: Objection.  Asked and answered and leading.

Court: Sustained.                                                                                                                                                                                                                                                                                                               

The witness had previously said there was moonlight.  Invariably, your next question is “didn’t you testify that” and before you can finish the question your adversary stands up and objects.  The objection is sustained followed by deafening courtroom silence.  Before you say another word, you need to decide whether the witness:  (1) forgot that there was moonlight or; (2) believes it is the sun. 

• Impeachment •

We previously discussed helping the witness remember under FRE 612. Alternatively, If the witness insists that there was sunlight, you need to impeach.  At the moment the witness gives you an unexpected and inconsistent answer, she is hostile to you.  Your instinct is to pounce and ask leading questions. Your adversary is grinning like a Cheshire cat waiting to object to your next question.  You call a sidebar and tell the judge that the witness is a dirty-rotten scoundrel!  Meanwhile, the jury is chewing on the witness’s last answer while watching you squirm.  

It is a common mistake to believe that impeachment is solely reserved for cross examination.  You may impeach on direct.  Federal Rule of Evidence 607 provides that: “the credibility of a witness may be attacked by any party, including the party calling the witness.”  The manner in which you impeach, at least to start, must be with non-leading questions pursuant to Federal Rule of Evidence 611 (c).  If you want to ask leading questions, you need to establish through non-leading questions, that the witness is actually hostile towards you or your client.  A typical example is a former employee of your client that has an axe to grind.  If you cannot get the witness to openly express antagonism, just impeach with non-leading questions.  Below are examples of questions you should ask the witness:

• Mrs. Witness, did you provide a statement to the police an hour after the accident?
• Did you want to provide the police officer with accurate details of the accident?
• Did you provide the police officer with honest answers?
• Did you review your statement with the police officer?
• Did you read your statement to make sure you provided an accurate account of the accident?
• Did you sign the statement after you reviewed it?
• Your honor, may I approach the witness?  Witness, showing you what has been previously marked as Exhibit X.  Is that your signature?
• What is the date next to your signature?
• Directing your attention to paragraph 3 of Exhibit X.  Did you tell the police officer there was moonlight at the time of the accident?       

You have impeached the credibility of your witness on direct with the use of a prior inconsistent statement pursuant to Federal Rule of Evidence 613 (a).  The moon is still full and your case is still bright.