Asking for help… the right way

Every day, in courtrooms across the country, young attorneys are conducting brilliant examinations. 

During direct examination, they’re asking questions that grab the factfinder’s attention, paint a vivid picture of the scene, and elicit facts that persuade judges and jurors to believe the witness’s version of events.  During cross-examination, they’re pinning witnesses down on inconsistencies, impeaching witnesses’ credibility, and showing jurors why the witnesses’ stories can’t be believed.

Yet, all of these direct and cross-examinations suffer from a tragic flaw.

What’s the tragic flaw in all of their examinations?  Regardless of whether it’s the cross-examination of an inconsequential witness, or the direct examination of their star witness, all of their examinations are concluding on a weak note, rather than building to a powerful and persuasive crescendo.

That’s because they all finish in exactly the same way: Just as the direct or cross-examination reaches a crescendo, the lawyers stop and say, “Your Honor, may I have a moment to confer with co-counsel?”  Then they walk back to counsel table, speak in hushed tones, announce, “No further questions, your Honor,” and tender the witness to opposing counsel.

Why do these otherwise smart and skilled attorneys ruin their examinations this way?

The reason is because they’re afraid they might miss an important issue or case-winning impeachment point, so they turn to their “spare brain” and ask for help.  Even though these conversations almost always sound the same (“Did I miss anything?”  “No, good job”) it’s still important to have them, because if you do ever miss an important point, you’ll be able to correct the problem before concluding your examination.

But despite their importance, you don’t want these conversations to be the last thing your jurors remember about your examination.  Instead, you want to finish on a high note, so that you can take advantage of the theory of recency during your examination.  (Here’s the theory of primacy and recency in a nutshell: In communication, what you hear first and last you’ll tend to remember better than the stuff you hear in the middle.) 

Pete Townshend smashing guitarTo take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help.  Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel.  Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions.  Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination.  All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!

The Witness Forgot (again!)

We’ve previously talked about what to do when your witness temporarily forgets what they’re supposed to say (“What to Do When Your Witness Forgets”), but what can you do when your witness seems to have permanently forgotten what happened?

Before we begin, let’s start with the assumption that your witness honestly has no recollection of what happened, and isn’t intentionally “forgetting.”   (If your witness is trying to side-step perjury charges by saying he “doesn’t recall,” “cannot remember,” or “has no present recollection,” that’s an entirely different nightmare you’ll need to address, and it’s beyond the scope of this article.)  The issue we’re tackling in this article is what to do when time or mental infirmity completely destroys your witness’s memory.

The most dramatic example of lost memories that I ever saw arose when I was a prosecutor intern in the Crimes Against Children / Sex Crimes unit.  One of the cases I was helping with involved a woman who had been drugged with GHB and then raped in the parking lot of a nightclub.  She was able to identify her attacker from photo lineups, so a few days later the police were able to locate him and arrest him.

Tragically, before the case went to trial, she was in a traumatic car accident, suffering a head injury that caused significant brain damage and completely erased her memory of what had happened the night of the rape.

Without her testimony, how were we going to prove the case?  If we couldn’t come up with something, the rapist was going to escape scot-free.

The prosecutor’s first thought was, “Let’s try to refresh her memory.”  Talking with the family, we learned that before the accident, the victim had kept a daily journal.  Her journal entry describing the night of the rape was very detailed, so he was optimistic that the journal might do the trick.  Unfortunately, even after reading through her journal several times, she told us that it didn’t do anything to help her remember.  She recognized her own handwriting and knew that she must have written the entry shortly after being attacked, but she couldn’t summon up an independent memory of the events.

What did that leave us with?

She couldn’t remember the evening, so she wouldn’t be able to testify from memory about what had happened.  We couldn’t refresh her memory, so that option wouldn’t work either.  The crash had happened before she could be deposed and before she could testify in a bond hearing, so we didn’t have any prior testimony we could introduce into evidence.  We’d run into a brick wall.  What were we going to do?

“It’s too bad her journal is hearsay,” I said.  “If she could just read from her journal during trial, we could probably win the case.”

Have you ever had a situation where you became so emotionally invested in a case that you ended up with “tunnel vision” that blinded you from seeing other options?  When that happens, sometimes all it takes is an isolated comment to help you open your eyes and get right back on track.

That’s exactly what had happened here.  The prosecutor had become so focused on having the victim testify that he was overlooking another option for getting her story in front of the jury.  But immediately after I made my comment, he said, “Duh!  Of course we can do that!”

“We can?” I asked.  “How are you gonna overcome the hearsay objection?”

“Easy,” he replied, “we just introduce her journal as a Past Recollection Recorded!”

Hopefully, you’ll never find yourself in a similar situation with a witness whose memory has gone missing, but if you do, you’ll want to know how to admit their prior statement into evidence.  Here are the steps we took to qualify the statement as a recorded recollection:

First, you must show that the witness once had knowledge of the event.  In our case, we could do that by either asking her family members to establish the victim’s knowledge before the car crash, or asking her about her journal writing habits and whether the journal was a fictional work or whether it accurately reflected events in her life.

Next, you’ll need to show that your witness now has an insufficient recollection to testify fully and accurately.  Obviously, our victim didn’t have any memory of what happened, so this was an easy element to establish.  If your witness has a partial memory of what happened, you may be more limited in your use of the recorded recollection.

Once you’ve established that the witness once knew about the event, but now can’t remember, you’ll need to establish the veracity of the written statement you’re seeking to introduce.  There are three things that you’ll need to prove:

First, the statement must have been made by the witness.  If someone else wrote the statement (for example, a police report capturing a summary of the witness’s statement), you’re probably out of luck.

Second, you’ll need to show that the statement was made when the matter was still fresh in the witness’s memory.  In our case, the victim could testify that she wrote in her journal on a daily basis, so each entry was made while the events were still very fresh in her mind.  Often, you’ll be able to establish the freshness of the writing by showing that the statement is dated at or near the time of the purported event.

Finally, you must show that the statement correctly reflects the witness’s knowledge of the event.  This may be established within the four corners of the document.  Is it based on knowledge that only the writer would know, or is it based on hearsay?  If the statement appears to be prepared in anticipation of litigation, you’ll have more difficult hurdles trying to establish this element.

Once you’ve jumped through all of these hoops, your Past Recorded Recollections can be introduced into evidence.  Although you’re going to have the clerk mark the exhibit for evidentiary purposes, the actual writing won’t be introduced into evidence.  Once you’ve laid the predicate, the witness simply reads the statement aloud.  It’s important to remember that the physical document is usually NOT admissible unless your opponent offers it into evidence.

Luckily, we were able to establish all of the elements for admissibility of her recorded recollection, so we were able to successfully prosecute the rapist and keep him off the streets.  One again, a good knowledge of the evidence code had saved the day.

Here’s your practice tip for the week: Before you go to court, print out a copy of the evidentiary predicates for the admissibility of Past Recollection Recorded1 and place it in your trial notebook.  Chances are, even if you try dozens of cases, you’re probably never going to need it.  However, for that one time when you do need it, this article will prove to be a lifesaver!


1 Federal Rule of Evidence 803(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

How to Bring Your Opening Statements to Life

No matter how exciting the next Super Bowl will be, it will lose its impact if you you watch it on a TiVo or DVR re-run.

But why?  The plays will be the same, the players will be the same, and the coaches will be the same.  Why would you care less about the replay than you would about the live event?

The difference between the two is suspense. When you watch the replay, you already know that the outcome has been decided.  It won’t have the same sense of excitement.  When you watch something unfold for the first time, however, it still has a sense of urgency and excitement to it.  “Will it end safely?”  “Will they survive?”  “What’s going to happen next?”

In the courtroom, you probably talk in the past tense during opening statements and direct examination because you’re describing events that have already happened and reached finality.  You already know the conclusion – but your jury doesn’t.  This is the first time they’ve heard about the events.  If you want to bring certain areas of your questioning to life, you need to switch your language to the present tense.  By switching to the present tense, you’ll help your jury feel that things are happening right now.

The first opportunity you’ll have to use the present tense technique is during opening statement.  To get the full effect, read this sample opening statement aloud:

“You’re standing on the corner of Indiantown Road and Central Boulevard, next to the Mobil station.  It is very early Tuesday morning – almost 3 o’clock in the morning.  To your left, stopped at a red light, sits Officer Ron Jones, a sixteen year veteran of the Jupiter police department.  In a few moments, his life will be changed forever.

“Overhead, you see the eastbound lights on Indiantown Road change from green… to yellow… to red.  Officer Jones begins moving forward, accelerating at a regular pace.  That’s when you see the Ford Expedition driving eastbound.  The driver of that large Expedition doesn’t stop for the red light.  He doesn’t slow down.  He drives into the intersection at approximately 65 miles per hour – nearly 20 miles per hour faster than the speed limit sign to your right.

“Officer Jones doesn’t have a chance to avoid the oncoming SUV.  The front left corner of the Expedition slams into the passenger side of his patrol car.  You hear the sound of metal slamming into metal.  The car spins completely around – a 360 degree turn.  Shattered glass flies in all directions.  Finally, both vehicles run out of energy and come to a complete stop.

“Approaching the driver of the Expedition, the first thing you notice is the strong odor of alcohol on his breath…

“Ladies and gentlemen of the jury, the driver of that Expedition is seated here in this courtroom – he is the defendant, Oscar Caswell.  On October 13, 2004, he was driving while under the influence of alcohol.  He struck and crippled Ofc. Ron Jones.  Today we will prove that he committed the crime of DUI – Serious Bodily Injury.”

Did you feel that all of the events were happening right now? If so, it’s because every sentence you read was phrased in the present tense:

  • “Overhead, you see the eastbound lights on Indiantown Road change from green… to yellow… to red.”
  • “The front left corner of the Expedition slams into the passenger side of his patrol car.”
  • “You hear the sound of metal slamming into metal.”

Here’s a quick practice point you can immediately integrate into your opening statements:   Read through your opening statement draft and look for any phrases written in the past tense.  Once you’ve identified any past tense verbsm shift the language to the present tense so that the events are happening right now. Put the jurors in the scene.  Take them there.  Let them watch the action unfold.  Your jury will perk up and pay more attention.

Using present tense language isn’t limited to the parts of trial when you’re doing all the talking.  You can also use the present tense during direct examination.  By asking questions in the present tense, your witnesses will answer in the present tense as well, breathing more life into their testimony.

Q. “Officer, which direction is that blue car driving?”

Q. “How fast is he driving now?”

Q. “He swerves towards your car – what do you do now?

Don’t phrase every question in the present tense – that’s the same as highlighting every word on a page.  If you overuse this technique, you will diminish its power.  Instead, use the present tense to highlight the most action packed portions of your direct examination.

Here’s a final practice point for using present tense language to improve your direct examination: Don’t tell the witness you are going to do it – just switch to the present tense when you get to the part of their testimony you want to highlight.  Nine times out of ten, the witness will shift their testimony to the present tense and won’t even be aware that they did.