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Chapter THREE: DIRECT EXAMINATION

A. Introduction
Direct examination does not get a fair break in the various art
forms13 that depict the trial. In the courtroom, direct examination is
as important if not more important than cross-examination in
determining the outcome of the trial. There is usually a limit to what
a cross-examiner can accomplish; direct examination, however, can
easily vary from disaster to dynamite. Exactly where direct
examination falls in the disaster-dynamite continuum depends in
part on preparation. Because the direct examiner and witness
usually have an opportunity to prepare the direct examination, the
effectiveness of direct examination depends in large part on the
preparation variable.14 To that extent, the following discussion of
the rules of evidence can be deceptive unless the reader remembers
that the rules elaborated on here must be combined with effective
preparation, a subject beyond the ambit of a course on the rules of
evidence.
As a general rule, direct examination involves placing the witness in
a setting and then having the witness say what the witness
remembers, subject to rules of privilege, relevance and hearsay.
Thus, before getting to the "heart" of any portion of the direct, the
direct examiner asks where the event or conversation occurred,
when it occurred and who was present. None of these must be
asked as a condition to the admission of the evidence. From the
point of view of the jury, however, and its ability to follow the
testimony elicited on direct examination, providing context is
important.15
Again as a general rule, once the setting is fixed, it is helpful to
think of the witness on direct examination as a human video
camera. The witness tries, as best he or she can, to tell the jury
what conversation took place, what happened, or both, again
subject to rules on relevance, hearsay and privilege. If this video

camera concept is kept in mind, then it will be readily apparent that

the witness is not supposed to put gloss on what the witness is
testifying to. Of course the human mind is not a video camera, and,
as will be seen, the rules of evidence do not require video camera
precision for the admission of evidence. Nevertheless, this model is
a helpful one in constructing direct examination.
Both the goal of a video camera and the realistic retreat from that
goal can be seen in the rules relating to evidence as to
conversations. Many novice witnesses express a reluctance to testify
as to conversations because, as they say, "I don't remember the
conversation verbatim," or "I can't quote what was said." Such
precision in recollection is not required. All the rules of evidence
require is that the witness testify as to the essence of what was said
as best as the witness remembers. As a practical matter, this may
well mean that a witness testifying as to a thirty minute
conversation will consume approximately five minutes of court time
in doing so. Indeed, such a one-to-six ratio is probably a better
ratio than most witnesses are capable of and without knowing more,
a sign that the witness has a good memory. The important
consideration, as far as the witness is concerned, is that the rules of
evidence do not require the humanly impossible.16
When conducting direct examination, or any examination for that
matter, it is important to listen to what is being elicited through
several sets of ears. Obviously the direct examiner must listen to
the direct from her own perspective to be sure that the desired
evidence is elicited. It is also important to hear the evidence from
one's opponent's perspective. If openings for effective crossexamination are created, it is better to close them before crossexamination rather than have to do damage-repair on redirect
examination. Testimony must also be heard as the jury hears
it,17sometimes a difficult conceptual feat since the trial lawyer
knows much about the case18 and the jury knows nothing. The
court's perspective is also important since rulings on evidence are
often based on what the judge understands the facts to be; also,
discretionary rulings are influenced by how the judge sees the
record.

Finally, the record itself is important. Until trials themselves are

video-recorded, the conventional method of recording is through a
court stenographer or tape recording, a process sensitive to what
is said rather than what is done. Thus, when a witness gestures or
does anything that communicates in a manner not involving sound,
the examiner is under a burden to be sure the record reflects what
has happened. A common trigger for such a burden is an in-court
identification. Failure to have the record reflect what has happened
may have serious consequences. In the Perez case, for example,
the failure of the Assistant United States Attorney ("AUSA") to
insure the completeness of the transcript in an earlier trial was
pivotal in a ruling excluding the earlier trial testimony.
B. Mode of Examination
Conceptually, there are two forms of direct examination: an open
narrative method and a specific question method. In broadest
terms, the open narrative method places the witness on the stand,
establishes the setting, and then asks the witness, "What
happened?" The specific question method gives the witness no
leeway in answering questions; each answer is followed with a
specific question. Initially, the determination as to which of the two
forms of examination to use is up to the direct examiner. Unless a
terrible mistake in judgment is made, the court will ordinarily not
interfere with that discretion.
When asking a witness to describe an incident, the open narrative
method of questioning is usually better. When taking a witness
through a series of incidents and conversations, the specific
question method is called for. Common sense makes clear that one
cannot ask a witness "what happened" if that question is designed
to trigger dozens of conversations and incidents. Common sense
also points to the open narrative method of direct examination
when it is clear that the jury wants to hear a "story," however brief,
from the witness without repeated interruptions from the direct
examiner. In either case, a judge has the power to intervene
under Rule 611(a) and ask the attorney to form more specific
questions if the open narrative method is inappropriate or to ask
what happened if the specific question method does not fit.

In Perez the AUSA had a choice of asking the physician who gave
Calderon a medical examination after the incident "tell us what you
found when you examined Calderon," the open narrative method of
direct examination, or to pursue the inquiry with specific questions.
The rules of evidence permit either. He decided, however, that the
impact on the jury would be greatest if specific questions were
asked and thus followed that method of direct examination.
Conversely, during the direct examination of Calderon, when the
AUSA came to the actual incident that formed that heart of the
charges, he chose to ask more open-ended questions. These are
both understandable choices and from the point of view of the rules
of evidence, proper choices.19
C. Leading Questions: General Rule
The basic rule of direct examination is that leading questions are not
permitted,20 a rule to which there are numerous exceptions. The
rule and its exceptions can best be understood if the term "leading
question" is defined and if the logic for the general prohibition of
leading questions on direct examination is explained.
A leading question is one that suggests to the witness the answer
the questioner would like. A common misconception is that a
question which can be answered with a "yes" or a "no" is a leading
question. This is not necessarily true. For example, "Are you a
second year law student?" is not leading.
The reason leading questions are generally prohibited on direct
examination is that the law assumes an affinity between the witness
and the direct examiner. Consequently, there is the danger that if
leading questions are permitted, the lawyer will impermissibly speak
for the witness and be able to control what is placed into
evidence.21 While the assumption of affinity might be evident in the
instance of an attorney calling a client, it is not as evident in the
instance of a "disinterested" witness. That assumption, however, is
properly invoked even where the witness is a third party in the
litigation because of the dynamics of witness preparation and the
trial.

By definition, almost, the fact of a trial connotes the existence of a

factual dispute. That an attorney is to call a certain witness strongly
implies that on the issue in dispute, the attorney believes the
witness is accurate. Trial preparation, a process involving personal
contact, is premised on that implication. Thus, a form of affinity is
established. This affinity is heightened when the witness is prepared
for cross-examination. Since the purpose of cross-examination is to
show that the witness' testimony is incomplete, mistaken, or a lie,
preparation for cross-examination can only further the bond
between the direct examiner and the witness. While the link
between a third party witness and the direct examiner may not be
as strong as the link between an attorney and a litigant, it is strong
enough to warrant the general assumption underlying the
prohibition of leading questions on direct examination.
Objections on the ground that a question is leading are
quintessentially objections of form. This means that the objection is
not to the substance of what is to be elicited but rather to the
manner in which it is sought to be placed into evidence. Where the
objection is sustained, it is invariably incumbent on the direct
examiner to rephrase the question. Abandoning the area after a
"leading question" objection is sustained makes no sense. If the
area was important enough to inquire into in the first place, it is
important enough to continue the inquiry and rephrase the
question. Because a certain amount of mental agility is required to
rephrase a question after a successful objection based on the form
of the question, many novice trial lawyers leave the area after the
successful objection a mistake.
D. Leading Questions: Exceptions
1. Facts not in dispute
Not everything elicited on direct examination is in dispute. Some of
the non-disputed evidence may be background to the disputed
testimony. Nothing would be gained if the direct examiner were
required to refrain from leading questions when in the non-disputed
area. Time would be lost and confusion created.
Consequently, when asking questions in areas not in dispute on
direct examination, leading questions are permitted. Often, when an

expert witness is questioned as to background leading questions are

in order.22
2. Subject matter
Frequently, a witness is asked about an admissible conversation
with a person with whom he had many conversations about many
topics. Whether that conversation took place may well be in dispute.
If not permitted to ask a leading question, the examination would
go something like this:
Q. I'd like to direct your attention to X date and time at Y place in
the presence of Z. Did you have a conversation with Smith?
A. Yes.
Q. What did you say, what did he say?
A. He said the referees in last night's basketball game were
atrocious and I told him I agreed.
Assuming the litigation is about something other than the quality of
the officiating at a local basketball game, the above scenario, which
posits truthful testimony, poses a problem that can be solved by a
leading question. Thus, if the non-leading "What did you say, what
did he say" question is preceded by a leading question that directs
the witness' attention to subject matter, the problem will be
avoided.
Q. Was anything said about an automobile accident of the day
before?
A. Yes.
Q. What did you say, what did he say?
Thus, the rule that a leading question is permitted to direct a
witness' attention to subject matter.
A question is either leading or it isn't. This makes it difficult to
quantify the concept of a leading question. Yet, some leading

questions are permissible, others are not. "Was anything said about
an automobile accident of the day before?" is leading. Everyone in
the courtroom knows the witness is supposed to say yes, including
the witness. Yet it is a proper question. "Did Smith tell you he went
through a red light at the intersection of Broadway and Main earlier
that day?" is also leading but not permitted. It is difficult to
articulate a meaningful rule to delineate the difference between the
permissible and impermissible leading question. One not-too
conceptual way to articulate the difference is to say that when a
leading question is permitted to direct a witness' attention to
subject matter, the question must focus attention on subject matter
but not provide detail on that subject matter. Or, to use slightly
imprecise terminology, the question should lead as little as
possible. 23
3. Exhaustion of recollection: a focused question
Suppose the attorney for the plaintiff learns from a witness that the
defendant told the witness that he went through a red light and he
did so because he was looking at written directions and not paying
attention. Suppose that at the trial, the direct examination of that
witness goes as follows:
Q.I direct your attention to X date, Y time and Z place. Did you
have a conversation with the defendant?
A. Yes.
Q. Was anything said on the subject of an accident?
A. Yes.
Q. What was said?
A. He told me he went through a red light.
Q. Did he tell you anything else?
A. I can't remember.

At this point, we have a choice. One option for the direct examiner
is to go on to something else, thereby losing the desired evidence.
The second option is for a leading question to be permitted. The
rules of evidence opt for the latter: when recollection is shown to
have been exhausted (I can't remember), a leading question may
be asked. Thus, the direct examiner may now ask: "Did the
defendant say why the defendant did not see the red light?" or
perhaps even "Was anything said about directions?" Each of these
questions is leading under the circumstances; each is permissible.
In the Perez case, the prosecution presented its version of what
happened in the underlying cocaine case as part of its case in chief
to show motive. This permitted Perez to present his version. Note
the leading question once his recollection as to the details of his
understanding with Calderon was shown to be exhausted.
4. Exhaustion of recollection: a document
A third option is available to the direct examiner. A document can
also be used, an alternative utilized frequently. In civil litigation,
most witnesses will have been deposed prior to trial; the deposition
provides a ready method of refreshing recollection. In criminal
cases, a signed statement by the witness, grand jury testimony, or
some other statement by the witness, are usually used.
This last statement is deceptive insofar as it implies that only the
prior statement of the witness can be used. The implication is both
not warranted and warranted. An explanation is in order.
Under the rules of evidence, anything can be used to refresh
recollection.24 Thus, for example, if an attorney in an opening
statement advised the jury that witness X would testify as to certain
facts, that opening statement could be used to refresh the witness'
recollection once shown to be exhausted. Nothing in the rules of
evidence would preclude such use of the opening. It would,
however, be very harmful to the direct examiner, if the examiner
had to resort to the opening statement to assist the witness. The
weight of the subsequently refreshed testimony would be virtually
zero. Effectively, the witness would be saying she didn't remember
but because the lawyer said she would say something, she now

remembers. Thus, it is rare that anything other than a prior

statement by the witness is used to refresh recollection, a rarity not
a function of the rules of evidence but of practicality.
Once a witness' recollection is shown to have been exhausted, a
document can be used to refresh recollection in accordance with the
following steps:
a. Mark the document.
The document must be marked as an exhibit. There is no
evidentiary impediment to marking anything since the marking of a
document does not place it into evidence. It simply begins the
process of identifying the document so that the trial transcript
accurately reflects all details of the trial. Unless a document is premarked, an attorney marks a document by taking it to the
clerk25 and asking that it be numbered as the next exhibit.
b. Identify the document.
The document must be shown to the witness. Once shown to the
witness, it should be identified. While the rules of evidence may not
require that it be identified, it is important for the jury to know
exactly what kind of document it is that refreshes the witness'
recollection. Thus, as a practical matter, step 2, showing the
document to the witness is invariably accompanied by the question,
"What is exhibit 'x'?"
c. Read the document.
After the document is identified,26 the witness' attention should be
directed to that part of the document which will assist the witness:
"I direct your attention to the first full paragraph on page 2 of
exhibit x and ask you to read it to yourself." Again, there is no
evidentiary requirement that the witness read only a portion of the
document but common sense dictates it. The longer the witness
takes to refresh recollection, the less weight there is to the
subsequent testimony. It is advisable, therefore, for the direct
examiner to direct the witness' attention to precisely that part of the

document that will refresh recollection so that the process takes as

little time as possible.
If the document is already in evidence, then the above steps can be
avoided and the pertinent part may be read to or by the witness out
loud. Normally, however, the document is not in evidence and, if
used to refresh recollection, still is not in evidence. Consequently,
the witness must read it to himself, not out loud. To avoid an
objection, which simply lengthens the process by which recollection
is refreshed, it is a good idea to ask the witness to read the
document silently. Even then, sometimes, the witness begins to
read out loud. The direct examiner should forestall the inevitable
objection at the point and herself remind the witness to read the
document to himself.27
d. Establish refreshed recollection.
Once the witness has read the pertinent part of the document to
himself, the direct examiner should ask whether the document
refreshes the witness' recollection. If the witness says no, there is
not much more the direct examiner can do. If the witness says yes,
then the direct examiner continues with the next question.
e. Elicit refreshed recollection.
In the hypothetical used earlier, where the witness said the
defendant said he went through the red light but forgot about the
statement that it was because the defendant was diverted by
reading directions, the direct examiner, after having followed steps
a through d, would then ask: "do you remember anything else the
defendant said?" That question would presumably trigger the
statement about why the defendant said he did not see the red
light.
5. Subsequent use of document used to refresh
When using a document, most attorneys, as a courtesy to each
other, will show their opponent the document before giving it to the
witness. Technically, however, a document used to refresh
recollection need not be shown to the opponent until the end of the

examination. The adverse side may then, if it wishes, place it into

evidence. Since the document is likely to be consistent with the
direct examination, the adverse side will ordinarily not wish to do
so. Only if there is something unnatural or illogical in the use of the
document to refresh recollection will the adverse side wish to place
it into evidence, and even then, the arguments for and against must
be carefully balanced.
It happens frequently that a witness' recollection will be refreshed
prior to the actually testimony, during the trial preparation process.
In an earlier version of the rules, an absurd distinction provided that
if used at the trial the document must be made available to the
adverse side but if used before trial it must not be. This distinction
was eliminated by Rule 612, which authorizes the court to require
production of documents used before trial to refresh recollection,
and to excise parts of the document not used which may be
privileged or not relevant. In light of Rule 612, it is advisable for a
direct examiner preparing a witness to be careful not to use a
document otherwise privileged to refresh recollection since the
privileged status will in all likelihood be waived if used to refresh. It
is also a good idea, if a document was used to refresh before trial,
to alert the witness to the likelihood that on cross-examination the
witness may be asked about the existence of such documents and
the importance of answering accurately.28
6. Document or question to refresh: a preference?
As we have seen, when a witness' recollection is exhausted, the
direct examiner often has a choice as to how to refresh recollection.
One alternative is to ask a leading question; the other, when
feasible, is to use a document. Is one method superior to the other?
It is impossible to state categorically that one is superior to the
other. As a general matter, however, it is preferable to ask the
leading question, rather than go through the steps of using a
document simply because it takes far less time and thus does not
underline the failure of recollection in as pronounced a manner.
Recall the earlier effort at refreshing Perez' recollection when he
forgot that he and Calderon had also made up an explanation for
the telephone. Once Perez said he didn't remember, refreshing his

recollection was simply a matter of asking him about the phone. The
process of refreshing took a second or two. Suppose Perez had
testified at the earlier trial about the phone. Certainly the transcript
of his earlier trial testimony would have been a legitimate document
to use to refresh his recollection. The process of marking it (which
means walking to the court reporter or clerk to have an exhibit
sticker placed on the document), showing it to Perez (walking to the
witness stand), asking him to identify it, then asking him to read a
selected part, then inquiring whether his recollection is refreshed,
and then, finally, returning to counsel table and eliciting the
refreshed recollection, takes a minimum of a minute or two. Using
that much time to refresh recollection surely accentuates the failure
of recollection. A leading question does not similarly underscore the
failure.
7. The weak witness
Certain witnesses have difficulty in focusing. For example, the
witness could be a young child or an adult of less than normal
intelligence whose mind tends to wander. In such a circumstance,
the court has the power under Rule 611(c) to permit the direct
examiner to conduct the examination using such leading questions
as are necessary. A party calling a witness for these reasons, or any
reason that requires leading, can either raise the issue prior to
calling the witness, or let the scenario develop and then appeal to
the court for assistance. While the former alternative might be
preferable, the court may insist on the latter.
8. Mistake
Witnesses make mistakes, and sometimes are unaware they are
doing so. When this happens, the direct examiner is ordinarily
permitted to rectify the mistake through a leading question. Thus, a
witness might say, "January 8, 1999," and mean "January 9, 1998."
Years in general are a fertile ground for innocent mistakes. A
leading question is permitted so the direct examiner is not burdened
with a demonstrably incorrect answer that is the product of
inadvertence.
9. The hostile witness

The basis for the general rule prohibiting leading questions on direct
examination is the presumed affinity between the witness and the
direct examiner. This factual premise is only that, and it may not be
accurate in all cases. The clearest case where the factual premise
fails is in civil litigation29 when one side calls the other a process
called, aptly enough, adverse examination. An adverse examiner
may, if she wishes, use leading questions to conduct the
examination and ordinarily will want to do so.
There are two other categories of hostile witnesses. First, there are
witnesses who, by virtue of their connection to the litigants, have a
clear identification with one side and therefore will be "adverse" if
called by the other. Family members may be in this category, fired
employees, longtime friends, etc. Ordinarily it is not too difficult to
have such witnesses declared hostile.
The second category of hostile witnesses are those who change
their testimony and testify at trial in a manner contrary to what is
expected. Where the direct examiner is genuinely surprised by the
change, the court will ordinarily declare the witness hostile and
permit inquiry as if on cross-examination. By requiring a showing of
surprise, however, the court penalizes good trial preparation since
the well-prepared lawyer who spoke to the witness before trial
might have been surprised a week before the trial when the witness
changed his story and so is no longer surprised at trial since the
trial testimony is consistent with the changed version of a week
earlier. Nevertheless, some courts require genuine surprise before
declaring a witness hostile.
E. Leading Questions: A Review
The general rule is that leading questions are not permitted on
direct examination. The following are the most conspicuous
exceptions to that general rule:
1. Where facts are not in dispute.
2. Where attention is directed to subject matter.
3. Where recollection is exhausted.

4. Where the witness needs focus.

5. Where the witness makes an inadvertent mistake.
6. Where the witness is hostile.
In the selected portions of the trial transcript, the AUSA asks
leading questions that are objected to and finally rephrased to avoid
the problem of leading. Once the objection is sustained, it might be
helpful for the reader to formulate in his or her own mind how that
question should be rephrased to avoid the objection. If the reader
continues on with the transcript, the reader will see how the AUSA
reformulated the question to accommodate the objection. Example.
F. Assumptions of Fact
Since the purpose of a trial is usually to determine facts that are in
dispute, it should not be surprising that the rules of evidence do
not, as a general matter, permit facts to be assumed. Facts must be
proved. This important rule applies to all examinations: direct,
cross, redirect and any subsequent examination.
An important question then becomes within what framework this
rule operates. For example, if an eye witness has testified that she
saw the defendant's car travel through a red light, is it permissible
to then ask her whether the car came to a stop or continued its
motion after it traveled through the red light. The follow-up
question assumes that the car went through the red light. It is a
permissible question, however, because the witness who is asked
the follow-up question has acknowledged the fact assumed by it. It
would not be permissible to begin the direct examination of a
second eye witness by asking whether the car stopped or continued
moving after it went through the red light because that witness has
not acknowledged seeing the car go through the red light.
In the slightly edited portion of the trial transcript in Perez that
follows, note the extent to which questions on the direct
examination are premised on facts elicited in earlier questions.
[Comments to the direct examination are shown in green italics.]

Q. Could you tell the jury your name.

A. My name is Faustino Calderon.
Q. And your age.
A. Fifty.
Q. What city do you live in?
A. In Grayville. It is a suburb of Chicago.
Q. Before that, where did you live?
A. In Colorado.
Q. Where specifically in Colorado?
A. I was in jail in Florence.
Q. How long in total were you incarcerated? [This question assumes
a fact that Calderon was in jail. The prior answer, however,
permits that fact to be assumed.]
A. Approximately six years.
Q. What institution did you live in on January 13th, 1993?
A. In Wisconsin.
Q. What was the name of that institution?
A. Oxford.
Q. Could you tell the jury what cell, what unit you lived in and what
cell you lived in?
A. I lived in D or Daniel in Section B. I think it was Cell 12.
Q. Could you tell the jury whether or not you had a cellmate.
A. Yes, I did.

Q. And what was his name?

A. Luis Perez.
Q. How long were you and the defendant cellmates before January
13th, 1993? [Again, the question assumes the previously
acknowledged fact that Calderon and Perez were cellmates.]
A. I don't remember, but some weeks.
Q. Do you recall when the defendant arrived at FCI-Oxford? [If
Calderon is to answer this question on the basis of first-hand
knowledge (a requirement discussed next) then the question
assumes a fact that Calderon was at Oxford when Perez arrived.
Otherwise, how would he know? Since, however, this is a
preliminary fact and not one in dispute, it makes no sense to
object.]
A. I think he arrived in November.
Note that assumed facts are essential to a well-structured direct
examination but invariably based on answers previously elicited.
Frequently, questions that are objectionable because they assume
facts can be corrected with only slight changes. "What did the
defendant say after the accident" assumes that the defendant said
something and therefore is technically objectionable. "What, if
anything, did the defendant say after the accident" assumes no
facts and cannot be objected to on that ground. Similarly, "Do you
know that defendant walked away from the scene of the accident"
assumes the fact that the defendant walked away from the scene of
the accident and asks only about the witness' awareness of that
fact. "Do you know whether the defendant walked away from the
scene of the accident" assumes no facts.
A common sense requirement must be superimposed on the rule
that questions should not assume facts. Suppose the witness has
said he observed the automobile accident and the direct examiner
wants to establish that the witness left the scene and went
somewhere else where an admissible conversation took place. The

direct examiner asks: "Where did you go after you observed the
accident?" From an extremely technical point of view, the question
assumes a fact since it is premised on the notion that the witness
left the scene. That the witness is still not standing on the street is
obvious to the jury however, and it would be foolish to object to the
question on the ground that it assumes a fact.
G. First-Hand Knowledge
1. Speculation
Rule 602 provides that a witness may not testify to a matter unless
the witness has personal knowledge of the matter. My preference is
to use the term "first-hand" rather than "personal" since all
knowledge a person has in one's head is "personal." However
articulated, the concept is a more formal version of the video
camera principle discussed earlier. If one has acquired knowledge
through the senses, usually the eyes and ears, then one can testify
to that knowledge, subject to rules of relevance, privilege and
hearsay.
Ordinarily, the party wishing to elicit evidence must show that the
witness has first-hand knowledge. Thus:
Q. I want to direct your attention to x date and y time at the
intersection of Broadway and Main Street. Tell us what happened.
Objection: No showing of first-hand knowledge
The Court: Sustained.
The correct way to elicit the evidence would be:
Q. I want to direct your attention to x date and y time. Where were
you then?
A. At the intersection of Broadway and Main Street.
Q. What, if anything did you see?30
A. An accident.

Q. Tell us what you saw.31

Suppose the direct examiner asks "what happened" as in the first
example above, there is no objection, and the witness answers by
stating that the defendant's car went through the red light. If, on
cross-examination it were brought out that the witness never saw
the accident, then the direct examination could be struck from the
record and the jury told to disregard it. Obviously this is not as good
from the defense perspective as the jury never hearing the direct
examination testimony that the defendant's car went through the
red light, but the fault is the defendant's since the objection as to
lack of first-hand knowledge was not made before the damaging
direct examination was elicited. This illustration shows, however,
that the objection is not waived and may be made on crossexamination.
Suppose, alternately, that the first of the two illustrations were
followed, and the witness, whose presence at the scene of the
accident was never established, testified that the defendant's car
went through the red light. Suppose further that the defendant's
attorney knows, from depositions in the case, that the witness did
indeed see the accident and for that reason does not inquire on
cross-examination into the witness' ability to see the accident. The
testimony cannot then be struck but the defendant's attorney is
permitted to argue to the jury that the witness never said she saw
the accident and the jury should, for that reason, disregard her
testimony.
The line here is a fine one. The attorney cannot argue that the
witness did not see the accident since the attorney knows she did.
Arguments, however, are predicated on what has been shown and
whether the party with the burden of proof has satisfied the burden.
In that context, the defendant's attorney may argue that there was
no evidence that the witness saw the accident she testified to. This
is true and therefore is permissible.
When a witness testifies to facts, there is no particular degree of
certainty required once beyond the level of speculation or guess.
Conventional qualifiers such as "I think," "I believe," "I feel" or "it
seems that" do not render the evidence inadmissible. Most often

these qualifiers have no impact at all, but occasionally may affect

the weight of the evidence. Some witnesses articulate their lack of
absolute certainty by saying "I wouldn't swear to it." This is not the
best way to qualify one's knowledge under oath; it can usually be
avoided through preparation.
When a witness is asked to speculate, the rule requiring first-hand
knowledge is violated. Speculation often involves guessing what is
in someone else's mind, an impermissible testimonial process. In a
number of instances in the Perez case, the AUSA elicited speculation
instead of evidence based on first-hand knowledge. Note how he
cured the defect. An example. Another example. Speculation does
not have to relate only to mental processes; it may relate to the
occurrence of events. Asking a witness who did not see an accident
and spoke with no one about how it happened invites impermissible
and inadmissible speculation.
2. Characterization
Most characterizations are also a violation of the rule requiring that
testimony as to facts be premised on first-hand knowledge. A
witness testifying as to a conversation that is the basis for an
alleged oral contract cannot, when asked what was said, say "We
agreed to a contract." Rather, the witness must say what each
person said and then leave it to the jury to determine whether a
contract was reached. Similarly, a witness in a criminal case could
not testify that "we agreed to rob the bank." Rather, the testimony
must be in the form of who said what, leaving it to the trier of fact
to make the larger determination.
3. Opinion
Speculations and characterizations may be opinions. As a general
rule, opinion evidence too is inadmissible.32 There are two
instances, however, where opinion evidence is accepted.
First, there is opinion evidence by a non-expert witness. The
applicable rule, Rule 701, provides that opinion evidence is
admissible if rationally based on the perception of the witness and
helpful to a clearer understanding of the witness' testimony or a

determination of the issues. In most instances, this exception

barring non-expert opinion evidence arises where the witness
cannot make the testimony concrete enough to be in other than
opinion form.
Suppose an eye witness saw the defendant's car go into the
intersection at a high rate of speed. The witness cannot say the car
was being driven negligently, nor can the witness say the car was
going 50 mph. All the witness can say is that the car was going very
fast.33 This is an opinion, but it is the best the witness can do. It is
admissible. Other variations of this concept: he looked drunk, he
seemed sick, the weather was bad, the plane ride was bumpy, etc.
This exception, codified somewhat inartfully in Rule 701,
demonstrates an important principle about the rule barring opinion
evidence that will resurface later. The rule against opinion evidence
is a rule of preference. If non-opinion evidence is available, opinion
evidence is inadmissible. If, however, opinion evidence is all there
is, the rules of evidence will not exclude it. Implicit in approaching
the rule against opinion evidence as a rule of preference is the
notion that it is better to admit the opinion evidence than to have
no evidence.
The second exception to the rule against opinion evidence is the
rule that permits expert evidence. A more detailed analysis of
expert evidence is presented later in this text. At present, the broad
outlines of this exception to the rule against opinion evidence are
spelled out.
Historically, there are three conditions to the use of expert
evidence: is the issue sufficiently removed from common experience
so the jury needs assistance, is the area itself amenable to
expertise, and does the proposed expert possess the necessary
expertise? All three are initially questions for the court; the latter
two can be relitigated before the jury since they may affect the
weight of the evidence.
The first of the requirements (does the jury need assistance) has
been somewhat diluted by the rules of evidence.34 Rule 702 simply
provides that if scientific, technical or other specialized knowledge

will assist the trier of fact, a witness qualified by expert knowledge

may testify. The breadth of the rule should not be overlooked. Areas
amenable to "expert evidence" are broader than "scientific"
evidence and include areas of technical or other specialized
knowledge.35
Finally, in this preliminary reference to expert evidence, the general
notion that an expert may not testify as to an ultimate issue
precisely the question the jury must decide is inaccurate. Rule
704 specifically provides that it is not an independent objection that
proposed expert testimony is on an ultimate issue to be decided by
the trier of fact. Thus, where the only issue in the case is whether
the defendant sold heroin or milk sugar to an undercover agent, the
prosecution's chemist is permitted to testify that the substance
examined is heroin, just as the defense expert is permitted to
testify it is not. In a criminal case, however, an expert may not give
an opinion as to whether a defendant did or did not possess the
prerequisite mental state constituting an element of the crime
charged. (Rule 704(b))
H. Questioning by the Court
We have already seen that the court has the power to call
witnesses. It surely follows from this power that the court may
question witnesses called by others and Rule 614(b) specifically
empowers the judge to do so. Not infrequently, at the end of a
direct examination, the court may ask questions designed to clarify
answers given or perhaps delve into areas the judge feels important
and that appear to have been skipped. When the judge asks
questions at the end of the cross-examination, the judge must be
careful not to appear as an advocate attempting to discredit a
witness. Such conduct may result in the reversal of a judgment of
conviction. United States v. Brandt, 196 F.2d 653 (2d Cir. 1952).
See generally United States v. Victoria, 837 F.2d 50, 55 (2d Cir.
1988).
I. Impeachment of One's Own Witness
Under the common law, an attorney calling a witness vouched for
that witness' credibility. Consequently, an attorney could not

impeach one's own witness since such impeachment contradicted

the implicit representation that the witness was truthful that went
with calling the witness. This rule probably made no sense then; it
certainly does not in modern litigation. An attorney must take
witnesses as she finds them. To require either that the attorney
forgo calling a witness coming with impeachable baggage or leave it
entirely to the cross-examiner and thus appear to be hiding
something from the jury, is to require what is unfair. Rule
607 specifically permits an attorney may impeach a witness the
attorney has called.
Impeachment of one's own witness cannot, however, be full-blown
impeachment, since that would be unfair to the adverse party. It
would amount to a windfall for the direct examiner to be able to
remove all the sting from the potential cross by engaging in a
friendly impeachment during the direct examination. The balance
between the unfairness to the direct examiner in no impeachment
on direct and unfairness to the cross-examiner in full impeachment
on direct is to permit a limited impeachment on the direct
examination. Click here for another example. This is ordinarily done
at the end of the direct examination although some attorneys prefer
to do it at the beginning.36

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