Well, look at this. I am actually updating relatively on time. Such a novel idea for me. Anyways, it is time for the second edition of…
Kaitlyn’s Mock Trial Tip of the Day (KMTTotD)
So, today I will share my wise and insightful insights about the process of preparing an examination of a witness, both cross and direct. I’m going to assume that you’re writing a first draft, which is a lot different from writing an eighteenth draft of questions. Basically, I’m going to start with the basics.
So, you’re here. You have a witness to direct examine, and you have a witness to cross examine. Case theory is a little hazy at this point, but you know what side you’re on. Here, it’s important to read through the two witnesses’ affadavits, approximately 300 times. Okay, a little closer to three, but 297 more certainly wouldn’t hurt. Each time you go through, mark what pieces of evidence you think work for your case and which you think work against you. Both will be important, for each witness as well.
Your direct examination witness is on your side. S/He believes in your cause, and thinks the same way you do. As such, there’s no need to fight the witness you direct. In fact, you don’t even really want to talk at all. You want your witness to do the talking. That’s why it’s called a direct examination: your role is to direct the witness’s testimony towards relevant topics. You can’t just hope that the witness will reveal every piece of important information without any prompting, so you need to craft your questions to get that information out.
For example, let’s say in the case of Elmo v. Bert, Elmo has accused Bert of kidnapping his former boyfriend, Ernie, and holding him hostage in the bathtub. Bert (and Ernie for that matter) deny that Ernie was ever a partner of Elmo’s and furthermore accuse Elmo of stalkerish behavior (Sorry if I ruined Sesame Street for you). You are the defense attorney representing Mr. Bert, who you will also be directing, and you will be performing the cross examination of Mr. Elmo.
Starting with Bert, you want to establish that Elmo is kind of crazy and should not be trusted, but it’s also important that you let Bert do the talking to show that. Bert knows Elmo is kind of crazy, from repeated interactions, and thus is very willing to talk about it. So, your questions might go a little like as follows:
You: Hello Bert. Why are you here tonight?
Bert: I’m here to show that I am not a kidnapper, that Ernie and I are lovingly engaged, and that all accusations otherwise are completely false.
You: When did you and Ernie become betrothed?
Bert: Five years ago, a year after I met Ernie. I knew right when I met him that he was the man for me, with his cheery smile and that adorable rubber duck. After we dated for about six months, I proposed, and Ernie said yes! I felt like the luckiest man alive. Unfortunately, marriage laws in Sesame Street are still very conservative and don’t have any puppet clauses, so we had to put the wedding aside until people become more understanding.
You: Did you ever talk about past romantic lives with Ernie?
Bert: Yes, of course. We put honesty first in our relationship and he told me all about his exes.
You: Did Ernie ever mention Mr. Elmo as a former romantic partner?
Bert: Ernie had never dated any guys before me. I was the one he came out of the closet for. So, no, Elmo was never mentioned as a former romantic partner. Ernie did mention, however, that Elmo did seem to have a sort of obsession for Ernie.
That’s enough of that. If you look at those questions though, you can (hopefully) see that as the lawyer, you only want to indicate to the witness what you want him/her to talk about, and then just let them talk. The witness is the star of direct, and you should always let them be that star.
So now we have the cross examination. The cross exam is of a opposing witness; you know they don’t agree with you, so you don’t want to give them the chance to do so. This is where you get to point out the flaws in their testimony, the spots where they might be lying, where they seem questionable. All questions should be answerable by “yes” or “no”, but the answer should be included in the question: these are called “leading questions” because you are leading the witness to the answer you expect to hear. These are the classic lawyer questions, like “You killed her, didn’t you?” or “There were fourteen nuclear bombs in your living room, weren’t there?”. Let’s go back to our sordid Sesame Street affair for some better examples.
You: You liked Ernie, didn’t you?
Elmo: Yes, from the moment I saw him.
You: But when you met, Ernie didn’t seem to feel the same way, right?
Elmo: Yes, but that changed after about a month.
You: In fact, when you met, Ernie punched you in the face, right?
Elmo: Yes, he did.
You: And while he punched you, he shouted that you were harassing him, correct?
Elmo: That’s what he said.
You: You said things changed after a month, right?
Elmo: Yes, in April, we started dating.
You: That same April, your sister was sick in the hospital, right?
You: And, in your words today, you spent “night and day by your sister’s side”, right?
Elmo: Well, I was there a lot, but I didn’t, like, sleep there or anything. I spent the nights with Ernie.
You: You work for Sesame Street, correct?
Elmo: All of us do.
You: I’m sorry, but I didn’t ask if “all of you” work for Sesame Street. I am only asking about you, Mr. Elmo. You *do* work for Sesame Street, right?
Elmo: Yes, I do.
You: In fact, you work the night shift cleaning the streets with Oscar the Grouch, right?
Elmo: …Yes I do.
Man, things are looking grim for Elmo. A cross examination is very swift, very to the point, and hopefully, very, very damaging, as you can see above. The sum of the examination should be that Elmo looks to be a very uncredible witness, leaving the prosecution without a leg to stand on.
When you’re writing your first draft of your examinations, don’t worry about fine tuning. Your cross examination especially will be constantly morphing to adapt to new points found and stronger emphasis placed on some points. The first cross exam will start with probably around ten different points that each have two or three questions, but by the time of competition, will more likely have been whittled to three points, with ten questions for each point. Don’t strive for those three detailed points on your first draft. You want to cover all your bases, so any points that you think might be damaging, stick them in. They’ll be refined later.
As for direct, just focus on telling a story. Think about what will make the story interesting in the testimony, and what is simply important to cover for a factual representation of your witness. Remember, no lying is allowed. And, since this is your first draft, chances are your witness doesn’t really know what they’re doing yet, so you should probably draft answers for them. It’s important to know, word for word, how a witness’s answer will be phrased, so you don’t cut them off too early, or stand waiting for information that isn’t forthcoming. Direct exams go through a lot less revision than cross, but they still are revised, sort of as a group effort, so don’t worry about having a perfect first draft.