Be it because jurors appreciate and value a lawyer’s candor, or because damage control or ‘spin’ is the better way to address painful or discomfiting facts, a direct examiner best serves the witness and the case by ‘fronting’ bad evidence.  [An earlier ADVOCACY AND EVIDENCE blog on the law and advocacy rationales for doing so may be found at https://www2.law.temple.edu/aer/taking-the-sting-out-using-direct-examination-to-anticipate-and-undercut-attacks-on-your-witness/ .]

But more needs to be done.  Bringing out the bad in advance ensures that it will come out with you, the proponent, in control; but the danger is that it contradicts or at least undercuts your story.  The skilled lawyer must search for a direct examination design that not only discloses the harmful information but makes it understandable and at least neutral if not in fact supportive of the case theory and theme.

That this can be achieved became apparent in a recent advocacy course being taught to foreign students.  The first step in their training was a basic direct examination in a case where there were no negative facts.  It was the story of a bicyclist struck by a car.  The initial scenario was as follows:

It was around 7:45 p.m. on November 11, 2016.  I was at my home at 7604 Montgomery Avenue.  I realized I was hungry and I wanted to rush to the nearby food store, CREEKSIDE COOP, to buy some chocolate.

I ran outside and grabbed my bicycle and bicycled down Montgomery Avenue.  I reached the corner of Montgomery and High School, where I have no stop sign but traffic on High School does.  I turned left onto High School to go to the COOP when my bike was hit by a car.  I was knocked off the bike and landed on my shoulder.  That is when my collarbone broke. 

The driver of the car got out and came over to me.  He leaned over me, real close to my face, and said “this is awful.  I feel terrible.”  I could smell alcohol on his breath.

People in the store saw this and called the police, who took me to the nearby hospital.  I was there for several hours until x-rays showed I was fine except for the broken collarbone.  I had to wear a sling on my arm for 6 weeks; and was in pain for most of that time.  My medical bills that were not covered by insurance totaled $1,248.69.  I lost one week of work, and thus lost $4,000 in salary.

Here, the assignment was simple – tell the story with good primacy and recency questions and an emphasis on making the facts comprehensible to someone who had no prior exposure to the event [the typical juror].

Step two involved introducing a list of potentially harmful facts.  The students had to decide which facts were harmful and harmful at a level that warranted disclosure during direct; and once those facts were identified they had to be inserted into the previously-crafted direct examination.  The facts they had to consider were:

Mr. James was wearing all black clothes

His bicycle was black

His bicycle had no headlight on it

It was dark, with no moon

As Mr. James approached the corner he was going down the hill at a high rate of speed

Mr. James has a 2012 Perjury conviction

Mr. James taught a course on bike safety

Mr. James has had no alcohol to drink since 1973

When the police first came Mr. James told police “maybe it was my fault.”

Take the last fact, the party-opponent admission of possible fault.  One may be able to construct a legal challenge to admissibility, claiming that the words were said in shock after an accident and thus had minimal reliability and the potential to confuse or mislead.  But the advocate must prepare to have the words come in.

The suggestion here is that the words can be embraced, or at least rendered null, by expert placement.  Clearly, the words were said just after an accident, and that deserved to be emphasized.  As the class worked on the case, the suggested outline became clear:

Q:           You’ve told us about the car hitting your bike and your falling to the ground.  Once on the ground, was there any pain?

Q:           How severe was that pain?

Q:           Did the police arrive?

Q:           Were you still on the ground?

Q:           What was your level of pain when the police were there?

Q:           Tell the jury what you remember saying to the police while on the ground and in pain?

Q:           Let’s take those words “maybe it was my fault.”  When you rode down the hill and turned left, did you have a stop sign or did you have the right of way?

Q:           What about the car.  Did it have a stop sign or did it have the right of way.

Unless the recency questions will be those eliciting the driver’s admission and intoxication, those facts can also be added here.

Q:           You told us what you told the police when you were in pain.  Did the driver say any words?

Q:           When the driver said those words did he appear in pain?

Q:           What did you observe about the driver?

Not all bad facts will be as easily contextualized.  A perjury conviction is a perjury conviction; riding a bike without a light at dark is not smart/safe behavior.  But much bad evidence can be neutralized if the advocate contemplates and then demonstrates context.