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Trial techniques

The trial process

  • Opening statements by the prosecution and then the defense
  • Prosecution’s witnesses: direct examination and cross-examination of each. The examining attorneys will have the opportunity to ask as few more questions, called a re-direct examination.
  • Prosecution’s witnesses: direct examination and cross-examination of each. Optional re-direct examination.
  • Closing statements by the prosecution and then the defense. The prosecution will be given the opportunity for a short rebuttal.

    Presenting evidence

    Presenting evidence

Witness testimony

For the attorneys doing the direct examination

Prepare questions that will let the witnesses tell the jury what is in their affidavits. That means every part of the affidavit, including the name and job title. You should have both your list of questions and the affidavits in front of you so that you can make sure everything is covered.

For the attorneys doing the cross-examination

Prepare questions that will undermine the witnesses’ stories, their evidence, their memory, their motives, and anything else you can use to help the jury see the problems with the witnesses.

This is called “impeaching” the witnesses. Both sides should use it during cross-examination to show the jury why a witness is not to be believed. The process is explained on p 44 of the case materials.

  • ask questions about prior conduct of the witness that makes the witness’truthfulness doubtful Ex: “Isn’t it true that you once lost a job because you falsified expense reports?”
  • ask about evidence of certain types of criminal convictions. Ex: “You were convicted of shoplifting, weren’t you?”

Note that these two examples are leading questions. They ask for “yes” or “no” answers. Even it it’s a “no”, the jury heard something that they won’t forget.

  • show that the witness has contradicted a prior statement, particularly one made by a witness in an affidavit.
  • ask about motives. On the witness stand, Dominique will say anything to get herself off, won’t she? Why should the jury believe her? How intensely must Jordan hate her sister to help the government make sure that those two children, Stephanie and Jonathan, will spend their childhood is some dreadful foster care home while their poor mother rots in jail? What about the police officer and battered woman expert? Of course, they’re getting paid to say what the attorneys want them to say, right? I’m sure the jury will understand that if you pay someone enough, they’ll say anything!

The adversaries

Relevance to writing essays

I hope you can see the similarities between an opening statement and an essay that you will be asked to write for other courses. The both have at their core the unit of discourse: claims, evidence, and explanation of the evidence. To use my analogy, these are the gun, the bullets, and the crucial process of aiming at an audience and pulling the trigger calmly and deliberately.

In our adversarial system, the difference between the opening statements for the prosecution and the defense show clearly how two people can take the same evidence and explain it in completely different ways. Both opening statements were stronger than anyone’s individual essay. As a group you were able to do what I asked you to do individually, with mixed results.

In Dominique’s case, the next thirty years of a woman’s life and the lives of her kids are at stake. An attorney’s skill in aiming and trigger-pulling can make all the difference.

When you are writing essays for other courses, treat the evidence the same way: explain it!

Learn more

Suggestions for student attorneys

Suggestions for student witnesses