7.9. OPENING
1. Grab the jury’s attention and interest.
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tell a narrative, sequentially outlining the events surrounding the crimes
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avoid dry lists of who will testify first, who will testify second, etc.
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include personal references to the victim
2. Introduce your “theme” (see section 7.1, above), and continue with the themes you may have “introduced” in voir dire (see sample questions, above).
3. Keep the opening brief.
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this will make it easier to hold the jury’s attention
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this will help prevent you from overstating a witness’ testimony
4. Divulge potential problems and weaknesses now, to minimize them.
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tell the jury yourself about issues you believe the defendant will try to present as problems or weaknesses in your case, such as a delay in reporting, drug or prostitution records of victims, discrepancies among witnesses, or a victim’s vacillating or recanting testimony
5. Touch on the evidence you will offer to prove each element of the offenses.
6. End with your “theme,” if you can do so without argument. (Argument is reserved for the closing, and is inappropriate in an opening statement.)
7.10.DIRECT EXAMINATION
No one strategy for determining the order of witnesses will apply across the board. Discuss your choices and options with advocates and other ADAs.
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Some ADAs open with the victim so that the first time a witness recites the incident, it is from a personal, emotionally compelling perspective. Other ADAs suggest opening with police officers, to emphasize the state’s role in prosecuting.
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Some ADAs open with the victim when they believe she will be a ‘strong’ witness, in order to start strong. Other ADAs open with the victim when they believe she will not be a ‘strong’ witness, so that all the corroborative evidence will follow and subsequently strengthen her testimony in the eyes of the jury.
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Sometimes you may decide the victim would benefit greatly from being the first witness, and “getting it over with.”
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Sometimes you may decide there are safety considerations in choosing which day of a trial is best for the victim to be on the stand, depending on who else she may have contact with.
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You may wish to have the order of witnesses mirror the order of events, should such a sequence apply.
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You may decide that the victim’s testimony would be more compelling after the jury has been educated by the expert witnesses.
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You may be forced to decide the order of witnesses because of issues outside your control (e.g. the police officer is tied up on another trial; or an expert or doctor is only available at certain hours).
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You may find yourself considering a number of intangible issues: e.g. the energy level of a particular witness, the apparent attentiveness of the jury, or how close the schedule is to a weekend or holiday break.
7.11.CROSS EXAMINATION
The suggestions below are merely shorthand expressions of the topics. The actual questions you use should employ classic cross style:
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use leading questions
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aim for short responses
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avoid open-ended questions or questions to which you do not already know the answer
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repeat the defendant’s/witness’s answers, as questions, when you want to emphasize them
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if he is evasive, count up the number of times the defendant has said “I don’t remember” or “I don’t know”
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highlight the self-serving nature of his answers
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do not allow the defendant the opportunity to deny the crime and merely reiterate his direct testimony
At all times, try to be prepared and try to control the cross-examination.
1. Draw out areas of agreement -- between the prosecution and the defense.
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the scene of the crime
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words spoken
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parties who were present
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time and/or sequence elements
2. Secure as many helpful admissions and partial admissions as you can.
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power issues: who controls the money, who makes the money, who decides how it is spent
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control issues: does the defendant go out with his friends, without the victim; does the victim go out with her friends, without the defendant; does the defendant tell the victim what to wear, what to say, what to do
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behavioral patterns: does the victim sometimes anger him? when he gets angry does he yell at her? does he throw things? does he punch the wall?
3. Try to get the defendant to reveal how he views himself (e.g. many batterers view themselves as the true victim); using a non-confrontational manner you may be able to get the defendant to dig his own hole in discussing in detail how “he has been victimized.”
4. Chip away at the defendant’s credibility.
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if possible, use prior convictions
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focus on his demeanor and conduct at the scene of the arrest, and his demeanor and conduct on the stand in addition to the substance of his testimony
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being very familiar with all of his prior statements, bit by bit, draw out inconsistencies and impossibilities between his various versions of events; draw out inconsistencies and problems between his version(s) of events and yours
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highlight the self-serving nature of his testimony
5. Use the defendant to diminish the credibility of other defense witnesses.
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focus on conflicts and inconsistencies
6. Focus on drawing out consciousness of guilt evidence.
7. Let the jury know how you feel about the defendant, BUT ... .
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carefully gauge the appropriate level of emotion on your part -- whether to express disgust, or rage, or pity, or sarcasm through your tone of voice and facial expressions; remain professional
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if the defendant appears pathetic and inept, don’t arouse jury sympathy for him by being harsh
8. Work elements of your “theme” into your questions.
9. Don’t try to force the defendant to admit your conclusions are true -- save your reasoning and your final conclusions for closing argument. Avoid the old “one question too many” syndrome.
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