A Direct Examination is an open-ended, conversational line of questioning between an attorney and their witness. The purpose of a direct exam is to extract facts that help argue your case theory in a way that is easily understandable to the judges.
Direct’s utilize open-ended questions to extract useful facts. There are two types of with used in Mock Trial: leading questions (Cross Exam) and open-ended questions (Direct Exam).
→ What color was the jacket?
→ The jacket was blue, correct?
You NEVER ask leading questions during a direct examination. In Mock Trial, we only ask open-ended questions during a direct examination.
As a result, this leads to the next point. You cannot ask a very open-ended question. A very open-ended question is a question with no specific topic. Not only is it unfair to the opposing team but it confuses the jurors.
A Very Open-Ended Question:
→ What happened next?
A Perfect Open-Ended Question:
→ After the defendant hit you, what did you do?
As you may have noticed, a perfect open-ended question focuses on a specific topic but does not imply an answer.
The Three U’s
Witnesses and NOT Attorneys should be the focal point of a direct examination. A rule that I learned is called, “The Three U’s.”
First! Your witness should be understandable. Therefore, they should give clear, descriptive, and relevant answers.
Second! Make sure your witness memorizes their witness statement. Above all, witnesses should be unimpeachable as impeachments lower credibility.
Third! Your witness should be unforgettable. Simply, the witness should be memorable to the jurors as they will be scoring based on performance.
There are various types of witnesses. The three most common witnesses are fact-based witnesses, character-based witnesses, and expert witnesses. They are all important as they all perform different functions when combined in a solid case theory. There are much more, but these are the most common.
Fact-based Witnesses provide relevant facts in the case. Similarly, they are considered “lay” witnesses and give testimony limited to things they’ve observed or experienced. However, they are allowed to make reasonable conclusions.
Character-based Witnesses provide relevant fact towards the background of the defendant. In addition, these witnesses know the defendant because of a specific interaction (good or bad) that they’ve had with them. For example, these can often be parents, partners, bosses, teachers, etc.
Expert Witnesses are limited to personal knowledge and may only provide relevant facts that they’ve gathered solely for the purpose of testifying in a trial. However, a role that they possess over the other witnesses is that they can form an opinion beyond what they see.
In technical terms, an expert may offer opinions on the cause of the situation, explain the actions of others, draw conclusions on the basis of circumstances, comment on the likelihood of events, and state beliefs regarding issues as the fault, damage, negligence, and avoid-ability.
REMEMBER, “Who, What, When, Where, and Why,” when you are writing your direct examination.
1. Rule of Three
Simple Chronology is a dull way of organization. Better direct examinations are organized into three topological points. For instance, a trick that can be used is to order points strategically using the concept, Primacy & Recency.
2. Who, What, When, Where, and Why
When you are writing your direct examination, remember to incorporate this basic concept. In addition, if your question or answer cannot answer these questions, it should not be a question.
3. Primacy, Recency, and Frequency
This is the concept that can be used to order your points strategically. Simply, it states that your points should be organized based on what is important, least important, and most important.
- Primacy – Jurors remember what they hear first
- Recency – Jurors remember what they hear last
- Frequency – Jurors remember what they hear often
In Programming With Looping, the attorney takes the answer the witness just provided and loops that answer into the next question.
Example: After the defendant hit you, what did you do?
- Phrases – The attorney uses a phrase to help the jury realize a change in topic.
- Tools – The attorney uses exhibits to help the jury realize a change in topic
- Movement – The attorney moves to help the jury realize a change in topic. It’s best to move in a Triangle Formation.
5. Polish their Credibility
If your witness has issues with credibility, fix that issue on direct examination rather than letting the opposing team expose it in cross-examination.
6. Strategic Objections
You can place strategic objectionable questions in your direct examination so that you can demonstrate your knowledge of the rules of evidence to the jurors. Furthermore, you should only do this if you know you will win the objection.