Direct Examination. Break Out Session #2 3:45 p.m. - 4:45 p.m.

Transcription

1 Direct Examination Break Out Session #2 3:45 p.m. - 4:45 p.m. Presented by Rachel Antonuccio Iowa City Public Defender s Office Juvenile Division 725 South Clinton Street, Ste. A Iowa City, IA Phone: (319)

2 Fundamentals of Direct Examination FIRST THINGS FIRST WHO ARE YOU CALLING AND WHY? Who can present the information you need to get on the record in the most credible way? Your clients ideas about this and your ideas can vary o Yes, your best friend will testify that you re a good mom, but he s on pretrial release after his house was raided and his kids are in DHS custody. Does your witness understand the full story? o Your client s priest is happy to testify on your client s behalf, but your client never quite got around to telling him why the children were removed from her care Does your witness actually add anything? o Your client wants her junior high school math tutor to testify on her behalf, but can that person add anything relevant to the matter at hand or is your client just desperate for someone to testify? o You have a witness who has relevant things to say about your client, but is there anything about this person that makes them especially qualified/credible? Or are they just repeating what other folks already testified about? Do you run the risk of irritating the judge? Do you have time to properly vet this person? o Your client throws you a last minute witness do you have enough time to uncover her skeletons? Does she have any CINAs or abuse reports of her own? Do you have time to properly assess whether she s mentally stable? Will she be able to withstand cross or will she fall apart/blow up? Page -1-

3 PREPARING YOUR WITNESSES FOR YOUR DIRECT EXAM ARE YOU READY FOR THIS? 1 TELL THE TRUTH! o You are under oath and testifying before a judge. o If you lie under oath about something I know is a lie, I have an ethical obligation to withdraw and/or correct the record do not put me in that position. Exp. Judge, I m totally caught up on child support. But we just reviewed your CSRU record together yesterday, and you re three years in arrears. STAY CALM AND POLITE o If the facts get confused, I can fix that. But if you blow up on someone, there s nothing I can do to un-ring that bell. ANSWER ALL QUESTIONS AS CONCISELY AS POSSIBLE o If it calls for a yes or no, answer yes or no. o Answers that go beyond the scope of the question run the risk of adding harmful information Exp. Q: How long has it been since you ve talked to your 15 year old son? A: I called him just last week to ask him to loan me 20 bucks. OWN UP TO YOUR MISTAKES o You are not perfect, no one expects you to be but the court does expect you to be accountable for your actions. o When we dicker over the undisputed facts, then we lose all credibility when it comes time to argue about the facts that are legitimately in dispute. IS THE WITNESS IN POSSESSION OF THE RELEVANT FACTS? o Obtain proper releases from your client. o Encourage your client to forewarn witnesses of your call. o What, if any, additional information do you need to provide this witness need in order for them to be credible? 1 See attached memo to client. Page -2-

4 CONTENT WHAT ARE WE TALKING ABOUT AND WHY SHOULD THE JUDGE CARE? Let s talk: o No need to be hyper-formalistic this is a conversation. Focus should be on the witness narrative attorney should fade into the background. Clarify important points as needed, but try not to distract from the narrative. o Open-ended questions - who, what, when, where, why, how, please describe for the court, please explain to the judge. Will your judge/opposing counsel let you lead on the more basic stuff to get through it? Building the witness credibility: o Who is this person? Why should the judge care about what she has to say? o If professional, establish background and qualifications. o Show your witness has had adequate opportunity to observe the situation they are talking about. o Acknowledge the bad stuff for exp. this witness doesn t know everything about this situation, or this witness is flawed in this or that way. o If person outside of case is called, show the witness is neutral or disinterested in outcome. Building the witness humanity o Your client/witness is a real person who feels things deeply but has that very important fact been lost in the shuffle? o A lot of clients build a tough façade to protect themselves but that defiant façade doesn t make them a good witness. o If the judge sees your client as human, s/he is more inclined to offer you the relief you re seeking. o Don t be afraid of emotion Use your trial notebook and exhibits wisely - exp. Please look at page one of Exhibit 302. Look at the photo of your daughter at the bottom of the page. Please describe to the judge who your daughter is. What is her personality like? What do you like to do together? Page -3-

5 ORGANIZATION PRESENTING IN A WAY THAT MAKES SENSE. Role play o Key to remaining organized - before your witness gets up on the stand, make sure s/he gets what this experience is going to be like. Exp. Here s what the courtroom looks like, here s where you ll go when you testify, here s the oath you re going to have to take, here s where you re going to sit, etc. Sequence o It s easy to be drawn to a chronological sequence, but is that always best? Primacy and recency o Principle that people tend to remember those things they heard first and last o Start with strong subject matter and end with strong subject matter. o Use the middle of your examination to go over damaging information or less significant material. Ripping off the Band-Aid - anticipate cross to preempt your weaknesses o Get the bad stuff out there first. Don t be afraid of the truth confront it head on! It sounds a lot better coming from you. Criminal histories, abuse reports, relapses, etc. o But make sure the weakness is something that you are positive will come in - otherwise you open the door. Transitions & Headnotes: o Testifying is scary give the witness & the trier of fact a verbal signal if you are changing directions. o Examples: I want to move on to Let s talk about... Page -4-

6 TECHNIQUE BACK TO BASICS One thought per question o Compound questions are confusing to the witness and the judge. o This is probably a stressful experience for whoever is on the stand don t make it harder than it needs to be. Simple language No legalese o Speak like you are having a normal conversation. o Do not use lawyer words to prove you are a lawyer you re not fancy, you re a pretentious jerk. Listen to the answer o You think you know what s coming, but you might be wrong o Write direct questions or have an outline of topic points. o Know what you need from each witness. o Don t stay glued to your outline stuff happens, be flexible. Slow down o The two people who want on your side in a trial: 1) the judge and 2) the court reporter. o Be mindful that the trier of fact can only process so much information. Slow down on important points. o Make sure your witnesses understand that the court reporter is typing everything they say. They need to speak slowly, they need to speak loudly, they need not to interrupt or talk over others. Witnesss will get yelled at if they can t follow the rules, and that throws them off their game. Use redirect only if you need it o Only cover case critical issues in your case. o Easy to get obsessed with minutia in the moment if you think about this question tomorrow, will it still seem important? o Remember, the opposing side gets to recross sometimes you just want your witness to get the hell off the stand. Page -5-

7 MEMORANDUM To: CLIENT From: Rachel Antonuccio Re: Trial testimony First and foremost, you must answer all questions truthfully don t fudge or exaggerate. If you are dishonest under oath about something that I know to be untrue, I have an ethical obligation to withdraw from your case and/or correct the record. Please don t put me in that position. It is incredibly important that you stay calm and polite when the other attorneys ask you questions. They are going to be asking you about unpleasant subject matters, and they may even intentionally try to upset you to make you look unstable in front of the judge. If I m concerned about anything that happens when the other attorneys ask you questions, I will have a chance to clarify any facts I think got messy or clear up any misunderstandings. But if you are rude or blow up at the attorneys or the judge, I cannot fix that. You are your best witness. If you can keep your cool and show respect, you go a long way in helping yourself. Answer all questions from me or from the other attorneys as concisely as possible. If the question is a yes or no question, simply answer yes or no. If your answer goes beyond the scope of the question, you run the risk of adding information in the record that is NOT helpful to you. If I need you to explain something in more detail, I will ask you to do that. It s important that you own up to your mistakes, rather than try to explain them away. During your direct examination, I m going to ask you about the things you ve struggled with during the case. I m also going to ask you to acknowledge some of the mistakes you ve made and ask you what you re doing/have done to try to fix them or improve yourself. Some of the things the State is claiming are not true but some are. If we fight about the things that are true, the judge is going to have a harder time seeing our side about the State s claims that are not true. A termination trial is a very painful thing to go through. You re going to hear testimony about and be asked about a lot of things that are painful and upsetting. Just remember that we get to present our own witnesses and exhibits, and that there is a lot of GOOD information about you that the judge is also going to see and hear. Check in with me if you are struggling. The judge may be willing to let us take a short break. We have discussed all of this, but the outline of the topics we ll hit while you re testifying are as follows: