Zimmerman: Standard Objections on Direct and Cross Examination at Trial

September 24, 2012

Time for a change of pace.

In today’s post, I am going to provide you with a description of direct and cross examination during the prosecutor’s case in chief together with a list of the standard objections that you are likely to hear during the trial. I will cover the defense case in tomorrow’s post.

After opening statements, the prosecution will present its case in chief and rest when it’s done. To survive a defense motion to dismiss after it rests, the prosecution must have presented legally sufficient evidence to support its case.

The legal test for legally sufficient, or substantial evidence as it is called, requires the trial court to assume for purposes of the motion that all of the evidence presented by the prosecution is true.

The trial court must then decide whether that evidence would disprove each element of self-defense and establish each element of M2.

If the answer is yes, the trial court will deny the motion to dismiss.

If the answer is no, it will grant it.

These motions are rarely ever granted. They are routinely made without argument in order to preserve the argument for an appeal. Therefore, do not be surprised by such a defense motion or expect it to be granted.

The prosecution will present its case through the testimony of its witnesses. After a witness is sworn, the prosecutor will question the witness until finished. This is called direct examination.

With rare exceptions, the prosecutor will not be permitted to ask a leading question. A leading question seeks a yes or no answer. For example, the prosecutor might ask, “You saw the defendant straddling Trayvon, didn’t you?

Notice that, in effect, the prosecutor is testifying and the witness is agreeing or disagreeing as the case may be.

If this happens, the defense attorney will object on the ground that the prosecutor is leading the witness. The judge should sustain or grant objections to leading questions on direct examination.

Notice that I qualified the rule when I said, “With rare exceptions, the prosecutor will not be permitted to ask a leading question.” The rare exceptions are set-up questions. For example,

“Mr. Slade, I direct your attention to Sunday evening, February 26th, 2012, between the hours of 7 and 8 pm. You were at home at RATL during that period, weren’t you?

After the witness says, “Yes,” the prosecutor asks another leading question to set the scene.

“Did there come a time when you heard loud voices outside your home?”

After the witness answers “Yes,” the prosecutor switches to a non-leading question like this,

“Please tell the ladies and gentlemen of the jury what you heard.”

The witness then begins narrating his answer.

You may hear the defense attorney object stating,

“I object to the narrative form of the testimony.”

The judge should sustain the objection and ask the prosecutor to pose specific questions

Direct examination usually elicits answers to questions like, who, what, where, and when.

The goal of direct examination is to set the table with leading questions to focus the attention of the witness on a subject, event or document and have them tell their story in their own words with an occasional nudge to keep the testimony focused and on track.

You may hear an occasional objection to the relevancy of a question. Relevance is determined by the matters at issue in a case. The big issue in the case is whether the prosecution can disprove the elements of self-defense and prove the elements of murder 2.

Evidence is relevant if it tends to prove or disprove an element or issue in the case.

Relevant evidence is admissible subject to certain exceptions such as uncharged misconduct, character evidence, prior criminal convictions, and hearsay. I have covered those subjects in previous articles.

When the prosecution completes the direct examination of the witness, the defense attorney has an opportunity to cross examine the witness.

The major difference between direct and cross examination is that leading questions are permissible. In fact, they are not only permissible, they are the preferred way to cross examine a witness.

The ideal cross examination limits the witness to yes or no answers. The defense lawyer knows exactly what information he or she wants to elicit from the witness and if the answer is contrary to the expected answer, the lawyer is ready to impeach the witness to get the expected answer.

The usual way this is accomplished is to confront the witness with a prior inconsistent statement. Here is an example.

Q: Mr. Slade, you testified on direct that the traffic light was red when my client entered the intersection, didn’t you?

A: Yes, I did.

Q: Do you recall when I took your deposition in the prosecutor’s office on June 16th of this year?

A: Yes.

Q: You were under oath, weren’t you?

A: Yes.

Q: The prosecutor was present right?

A: Yes.

Q: Do you recall me asking the following question and you giving the following answer?

Q: You did not actually notice what color the light was when my client entered the intersection, did you?

You answered my question, Yes, didn’t you?

A: Yes.

A skilled cross examiner never asks the witness to explain his answer. Instead, he moves on to the next subject or ends the cross.

A skilled cross examiner never asks a question, if he does not know the answer and he never permits a witness to lapse into a narrative or retell their story.

The scope of cross examination is determined by the subject matter covered on direct. If the defense attorney asks a question regarding subject matter not covered on direct, you will probably hear the prosecutor object that the question exceeds the scope. The judge will sustain those objections.

The prosecutor may question the witness on redirect after the defense attorney is done. You might expect the prosecutor to attempt to rehabilitate his witness in the example just provided. Should he attempt to do so, he will have to do it by asking non-leading questions.

The scope of redirect is determined by the subject matter covered on cross.

Redirect can lead to recross and so on until both parties are finished with the witness.

Tomorrow, we will take a look at the defense case.


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