Note that the prosecution’s opening statement revealed that the testimony of one of their witnesses will include information not in the affidavit.
The trial rules (in your case materials, p. 34) permit “additions which are consistent with facts contained in the witness affidavits and do not materially give an advantage to the testifying party.”
Either side can object during testimony. That is, while the one side is examining or cross-examining a witness, the other side can say, “Objection, Your Honor.” I will then stop the questioning to deal with the objection.
There are seven kinds of objections you can make.
A “leading” question is one that suggests the answer desired by the questioner, usually by stating some facts not previously discussed and then asking the witness to give a yes or no answer.
Leading questions may not be asked during direct or redirect examination, and the other side should object if they are.
Leading questions *should* be asked on cross-examination, especially when trying to impeach a witness. Keeping the witness to either yes or no answers helps the cross-examining attorney maintain control of what the jury hears.
Narration occurs when the witness provides more information than the question called for. If it seems to be in your favor, let it go. If it’s going somewhere you don’t want it to go, then quickly say, “Objection, Your Honor”.
Questions and answers must relate to the subject matter of the case; this is called “relevance.”
Questions or answers that do not relate to the case are “irrelevant.”
For example, how relevant to the prosecution’s case are any extra-marital affairs Dominique may or may not have been having? How relevant to the defense’s case are the children? What about the whole idea of “learned helplessness”?
“Hearsay” is something the witness has heard someone say outside the courtroom. Also, any written statement made outside the courtroom is hearsay.
Witnesses must have directly seen, heard, or experienced whatever it is they are testifying about.
A lack of firsthand knowledge is objectionable.
Which witnesses actually saw Donovan hit Dominique? For everyone else, the hitting is hearsay. For example, the doctor saw her bruises, not how Dominique got them. The doctor can say that in his opinion, such bruises are consistent with being hit by another person, but he has no firsthand knowledge.
Unless a witness is qualified as an expert in the appropriate field, such as medicine or ballistics, the witness may not give an opinion about matters relating to that field. Opinions are objectionable unless given by an expert qualified in the appropriate field.
For example, during the opening statement, the prosecution said that Dominique’s sister Jordan believes that Dominique is “clinically insane”. This clearly undercuts their case that she is a cold-blooded murderer. However, the defense would still be wise to object if Jordan testifies to that during her direct examination. Jordan does not have the appropriate qualifications to come to that conclusion. If she does while she is on the stand, the defense should immediately say, “Objection, Your Honor!”
Opinions on the Ultimate Issue
Witnesses, including experts, cannot give opinions on the ultimate issue of the case: the guilt or innocence of the defendant or the liability of the parties. These are matters for the jury to decide.
Learn more about making objections beginning on page 39 of the case materials. This page will tell you how to phrase your objection. The attorneys should keep it on the table in front of them. As the judge, I will have it in front of me.
After hearing about the objection from both sides, I will rule whether or not the question is permissible. If it is permissible, I will “overrule” the objection. If it is not permissible, I will “sustain” the objection and instruct the attorney to ask a different question.
During the testimony of Dana Hughes, the police officer, the prosecution will introduce three pieces of evidence: the handgun (via photo), the waiver of rights form that Dominique signed, and the voluntary statement that she gave after she signed the form. During the testimony of the doctor, the defense will introduce the hospital record.
The two-step procedure for introducing evidence is on p. 44 of the case materials. As judge, I will have that page in front of me, and I will expect the attorneys to follow it when they introduce the evidence.
After the evidence is introduced, the prosecuting attorneys can hand the voluntary statement to Dana Hughes (see image on right) and ask the officer to read and comment on it. When the defense attorneys cross-examine Dana, they can use it, too, and try to turn it to their advantage. While Dominique is on the stand, each side can again use that statement to ask Dominique to clarify contradictions between that statement and her testimony.
Similarly with the hospital record, the defense attorneys can give the hospital record to the doctor to read and he can elaborate on the extent and severity of Dominique’s injuries. The cross-examining prosecutors can use it to help the jury think about it in a way that supports their hatred theory of the case.
Qualifying an Expert
Only a witness who is qualified as an expert may give an opinion as to scientific, technical, or other specialized knowledge in the area of his/her expertise. Experts cannot give opinions on the ultimate issue of the case, in other words, is Dominique guilty of first-degree murder?
In this case, the only expert witness is Dr. Phoenix, the psychologist testifying for the defense about battered woman’s syndrome, what it is and whether Dominique was a victim of it.
During direct examination, the defense attorney must qualify Dr. Phoenix according to the procedure on p. 43 of the case materials.
During the opening statement, neither side directly addressed the case of the other side. The prosecution opening statement did not directly address the battered woman’s syndrome.
They could have said something like this: “The defense is going to try to convince you that this murderer was suffering from something they’re calling ‘battered woman’s syndrome’. Of course, women are battered. They call the cops to report the abuse. Did Mrs. Stevens? They kick the guy out or leave themselves. Did Mrs. Stevens?”
The defense did not directly address the motivation of hatred, Dominique’s hatred for Donovan.
They could have said something like this: “The government prosecutors are going to try to convince you that this poor, frightened wife and mother did not love her husband, that she hated him. Then why did she not report the abuse to the police? Because, against all odd, Dominique loved Donovan, and ladies and gentlemen, who can explain the ways of love? Why did she not leave with her children? Because Dominique loved Donovan. She loved him so much that she couldn’t ever give up hoping that the marriage would work.”
It’s not a problem that you didn’t address the other side in your opening statement. It will be a problem if you don’t address it when you question witnesses, both yours and theirs. This is a good way to lose a case because the jury will think you are conceding that the other side is correct.