Canadian Criminal Trial Advocacy/Direct Examination
Purpose and Objectives of Direct Examination
The objective of direct evidence is to elicit evidence from the witness that is: (1) admissible, (2) persuasive and credible. All of this is to the goal of establishing facts that support your theory of the case and establishing the essential elements of your case.
Proper direct evidence should possess a number of qualities: (1) a organized, logical and complete narrative; (2) corroboration (3) limited gaps that are vulnerable to cross examination.
Preparing Direct Examinations
The purpose of calling any witnesses should be primarily to advance the theory of your case. The theory should revolve around the establishments of facts that make out the elements that need to be proven to have the judge decide the issue of contention.
For a prosecutor who is attempting to establish an offence, the starting point then is to generate the following:
- a list of elements that need to be proven;
- a list facts available to match elements;
- list witnesses that will provide each fact needed; and
- if necessary, a check list that you follow as you proceed with your evidence
Preparing a Witness
The first question when considering a direct examination is to ask oneself "what is the purpose of calling this witness?" If the answer does not advance the case, or may open weaknesses in the case, the advocate must consider not calling the person to testify.
Considerations should include:
- whether the witness have a criminal record
- whether the witness can articulate well enough
- whether the witness may testify to matters harmful to the case
A witness interview should consist of two parts. The first part of the interview should be for the purpose of discovery and the second part should be for practising and rehearsal. Where possible this should be divided into two different interviews.
A witness should be given a copy of any written statement or transcript of an audio statement before reviewing their evidence.
Multiple witnesses should never be interviewed together. The main exception would be to interview a witness in the presence of a police officer who is a witness on the matter.
Preparing for Cross examination
In Mauet, Fundamentals of Trial Technique it is recommended that a standard template for questioning for many criminal and civil trials should follow a logical or chronological order. Following the sequence of:
- Description of incident location
- what occurred just before the incident
- How the incident occurred
- what happened immediately after the incident
- injuries incurred and treatment given
- present physical injuries
- exhibits that highlight the main points
A similar general structure applicable to most witnesses was provided in "The Art of Trial" by Robert White:
- Identify the witness;
- Detail the witness's interest or lack thereof in the case
- For each item that needs to be proven:
- the name of the item;
- set the stage;
- elicit crucial testimony;
- establish opportunities for observations and reasons for remembering.
Framing the questions
The questions are intended to signal to the witness what they should talk about. It is important that the language used is tailored to the level of understanding of the witness. It most cases it is important to keep the questions simple, using plain language. More complex questions should be broken down into multiple smaller questions.
Bad Questioning Styles
- Beginning a question with "And" or "Okay"
- Repeating the answer given by the witness back at them
- argumentative questions - that is, questions that seek to make argument to the court, such as questions asking for inferences or interpretations of facts not proven
- vague or over-broad questions
- irrelevant questions
- questions seeking an opinion or conclusion
Strategy and Tactics
- 2nd ed. Can. at p. 61