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What is Direct Examination?

Direct examination, which is also known as examination-in-chief, is when a lawyer questions a witness that they called to the trial. The lawyer asks questions of the witness that will provide evidence in support of their case. If it’s a witness of the prosecution, then the prosecutor will ask questions designed to help prove the guilt of the defendant. If it’s a witness of a defense, then the defense attorney will ask questions designed to prove the defendant’s innocence or create reasonable doubt that the defendant is guilty.

The other type of examination is cross examination, which is when the lawyer who did not call the witness questions that witness.

There are rules in place regarding direction examination, both in regards to what the lawyer can ask the witness and what information the witness can provide. Witnesses are typically only called on to provide facts, not their opinions or to come to their own conclusions about what happened. There is an exception if the witness is an expert witness, which means they’re considered an expert in a particular field, which allows them to provide their own opinion and come to conclusions based on the evidence provided. For example, if a prosecutor calls a psychiatrist to the stand, the psychiatrist may be able to provide their opinion on the defendant’s mental state based on their own expertise in that subject.

One of the key facets of direct examination is that the lawyer can’t ask the witness leading questions, or questions phrased in a way that elicits a certain response. For example, the question “Isn’t it true that you saw the defendant at the bar on the night of February 23?” will likely result in an objection by the other lawyer, as the lawyer performing the direct examination is prompting the witness to answer affirmatively.

In stark contrast to this, leading questions are allowed and very common in cross examination, to allow the lawyer performing the cross examination to elicit testimony that the witness may be unlikely to share otherwise.

During direct examination, the opposing counsel is able to make objections. The aforementioned leading questions are one common reason for an objection, but other causes of an objection include a question that calls for a non-expert witness to provide their own opinion or questions that require the witness to answer based on hearsay, which is information they heard from somebody else. Hearsay is not allowed because the information cannot be substantiated without that other party there to confirm or deny it.

When an objection occurs, the judge can choose to either sustain it or overrule it. In the event that the objection is sustained, the lawyer who asked the question needs to either find an appropriate way to rephrase it or move on to another question. If the objection is overruled, then the question stands and the witness can answer it.

There are requirements for any witness that a lawyer calls to the stand. First and foremost, the witness must be competent to testify. Competency requires that the witness understands that they’re under oath to tell the truth, that they have memory and knowledge of the event that the lawyer will ask them about, and that they can communicate what they know to the judge and jury. The testimony of the witness must also be relevant to the case in some way.

Lawyers prepare their direct examination questions in advance, and a skilled lawyer will have a specific goal for each direct examination, particularly in regards to the evidence that the testimony demonstrates to the judge and jury. That means the lawyer will know what questions they should and shouldn’t ask to get the result that they want.

It’s common for a lawyer to go over their direct examination questions with the witness to prepare before the witness takes the stand. This will ensure that the witness is able to provide adequate answers. A lawyer will also likely prepare their witness for possible questions asked by the opposing counsel during the cross examination.

How does examination of prospective jurors in a trial jury work in New York?

Picking a jury in criminal cases in New York is a complicated matter. No one wants to end up with the “wrong juror” on the case.  The process of examination of prospective jurors is controlled by the NY Criminal Procedure law which is explained below.

Examination of Prospective Jurors

If no challenge to the panel’s made, or if the challenge is made and disallowed, the court will direct that the names of no less than twelve members of the panel will be drawn and called as prescribed by the judiciary law. These people will take their places in the jury box and be immediately sworn to answer truthfully questions asked of them relative to their qualifications to serve as jurors in the action. In its discretion, the court might require prospective jurors to complete a questionnaire that concerns their ability to serve as fair and impartial jurors, including but not limited to place of birth, current address, education, occupation, prior jury service, knowledge of, relationship to, or contact with the court, any party, witness or attorney in the action, and really any other fact relevant to his or her service on the actual jury. An official form for this questionnaire will be developed by the chief administrator of the courts in consultation with the administrative board of the courts. A copy of the questionnaires completed by the members of the panel will be given to the court, as well as each attorney before examination of the prospective jurors.

How the Examination Begins

The court will begin the examination of prospective jurors by identifying the parties and their counsel, and then briefly outlining the nature of the case to all the prospective jurors. The court will then put to the members of the panel who have been sworn and to any prospective jurors subsequently sworn, questions that affect their qualifications to serve as jurors in the action.

Examination, Continued

The court will allow both parties to examine the prospective jurors, individually or collectively, in regards to their qualifications to serve as jurors. Each party will be given a fair opportunity to question the prospective jurors regarding any unexplored matter affecting their qualifications, but the court will not allow questioning that’s repetitive or irrelevant, or questions as to a juror’s knowledge of rules of law. If necessary to prevent improper questioning, the court will personally examine the prospective jurors. The scope of this examination will be in the court’s discretion. After the parties conclude their examinations of the prospective jurors, the court might ask further questions as it deems proper regarding the qualifications of the prospective jurors.

The court can for good cause shown, on motion of either party issue a protective order for a stated period that regulates disclosure of the address of any prospective or sworn juror to anyone, other than to counsel for either party. Such good cause will exist where the court determines there’s a likelihood of bribery, jury tampering, or physical injury/harassment of the juror.

Completion of Examination

On completion of examination by both parties, each, starting with the people, can challenge a prospective juror for cause. If this challenge is allowed, the prospective juror must be excluded from service. After both parties have had an opportunity to challenge for cause, the court has to allow them to peremptorily challenge any remaining prospective juror, and such juror must be excluded from service. The people must exercise their peremptory challenges first and may not make a challenge to any remaining prospective juror who’s then in the jury box. If either party requests, challenges for cause must be made and determined, and peremptory challenges must be made, within the courtroom but outside of the hearing of the prospective jurors in a manner as not to disclose which party actually made the challenge. The prospective jurors who aren’t excluded from service must retain their place in the jury box and be immediately sworn as trial jurors. They must be sworn to try the action in a just and impartial way, to the best of their judgment, and to render a verdict according to the law and the evidence.

 

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