Key Concepts

  • The prosecutor must decide upon a theory of the case, what evidence will be offered, and the order of witnesses which will most effectively present the case.
  • The presentation of each witness should be planned in advance, and the witness must be adequately prepared.
  • The direct examination should be conducted in a manner that will maximize the impact of the testimony of each witness (e.g., non-leading questions, effective use of exhibits).

Scope and Form of Direct Examination

Direct examinations are the heart of the case that the prosecution presents at trial. As a general rule, direct examination is open to questions in any area, as long as the questions are relevant. See G.S. 8C-1, Rule 401, 403. The goal is to ensure that all the information necessary and helpful to the state’s case is presented, while avoiding any superfluous distractions.

The format of the questions on direct examination should be open-ended (“what time did you get there?”) rather than leading (“you got there around 7:00, right?”), unless specific circumstances allowing the use of leading questions are present (see “Leading Questions,” below). The prosecutor should prepare in advance to ensure that no important details are left out during the examination. This means not only determining what questions need to be asked of each witness, but also planning out the order in which to ask them (introduction of witness, relevant background information, chronological order of relevant events, follow-up on specific details, and so on).

Practice Pointer

Preparing Questions
For most witnesses, the best practice is for the prosecutor to prepare an outline of the key points of testimony that he or she wants to cover with the witness, but to avoid using completely scripted questions. This allows for a more natural and conversational flow between the prosecutor and the witness, which presents better to the jury. However, when dealing with complex foundation or authentication issues, or highly technical matters involving expert witnesses, it may be helpful to have proposed questions written out in greater detail, to avoid inadvertently leaving out an essential point.

Redirect Examination

Redirect examination occurs after the cross-examination of a witness. Redirect examination is generally much narrower in scope than direct examination, and it is used “to clarify testimony which ha[s] been cast into doubt upon cross-examination, to clarify [a] new matter brought out on cross-examination, or to refute testimony elicited on cross-examination.” State v. Franks, 300 N.C. 1 (1980)State v. Davis, 68 N.C. App. 238 (1984).

The purpose of a redirect examination is not to introduce new matters, or merely have the witness repeat testimony already given on direct, see State v. Weeks, 322 N.C. 152 (1988)State v. Stitt, 147 N.C. App. 77 (2001), but the court does have discretion to allow introduction of testimony that exceeds the scope of cross-examination as long as it is relevant and otherwise admissible. See State v. Barton, 335 N.C. 696 (1994)State v. Davis, 68 N.C. App. 238 (1984). This is particularly true if the defense “opens the door” by inquiring into a topic on cross-examination, in which case the state may address it in response on redirect examination. For example, if the witness is impeached on cross-examination, the witness may be given an opportunity to explain or clarify that matter on redirect examination, even if that testimony would not otherwise have been admissible on direct examination. See, e.g., State v. Johnston, 344 N.C. 596 (1996) (permitting testimony about character evidence on redirect); State v. Patterson, 284 N.C. 190 (1973) (allowing questions on redirect about a prior occasion when defendant raped the witness, after defense opened the door on cross-examination by asking about the witness’s dislike of defendant). 

Determining the Order of Witnesses

Before the trial begins, the prosecutor should decide on the order in which to call the state’s witnesses. A chronological progression that begins with pre-crime activities or preparations, then moves into the investigation itself, and ends with any post-arrest follow-up is usually the most logical and understandable sequence to follow. But the prosecutor also has to be flexible, since there will often be scheduling and witness availability issues that force the prosecutor to adjust his or her plans. A smooth and orderly presentation is essential to the jury’s full understanding of the case, and the prosecutor should try to make it easy for them. For example, the state should call the officer who collected an item (to establish identification, authentication, and chain of custody) before calling the forensic analyst who tested or examined that item.

Prosecutors should also keep in mind that jurors tend to have the best recall of the information that they hear first and last. Open the case with a strong witness who will make a good first impression. Use a witness who is unlikely to be hurt by cross-examination (e.g., the property owner or the robbery victim). This sets a good tone and atmosphere for continued testimony. Do not start with someone negative who the jury may dislike, such as a testifying accomplice who has a plea agreement with the state. Put any dull or questionable witnesses in the middle. End with a strong witness (perhaps an articulate expert witness or the lead detective) to corroborate and connect the important facts.

Always remember the clock, and use it to the state’s advantage in the examination of a witness. Plan ahead for recesses and court breaks, and be mindful of the last images or testimony the jury will see or hear until the case resumes. Also be aware of how the clock can adversely affect the effectiveness of a witness’s testimony. For example, if unusually complex or technical expert testimony will be interrupted by a weekend recess, that could make it more difficult for the jury to remember and understand the testimony.

Witness Preparation

Most law enforcement witnesses will already have experience testifying in court, but victims and other civilian witnesses often require additional preparation. The prosecutor should tell the witness during the pretrial conference that he or she cannot testify for the witness – the witness will have to tell the story in his or her own words. Encourage the witness to narrate the story as much as possible. However, because the ability of witnesses to speak naturally in front of other people varies, certain brief questions like “What happened next?” or “What else did you see?” can be helpful to keep the witness moving along. The witness must have confidence that the prosecutor will be there to help the witness perform well on the stand. 

Tell the witness the questions (or at least the topics) that he or she will be asked in advance, and also tell the witness what questions to expect on cross-examination. If possible, have a colleague assist in the preparation by conducting a mock cross-examination with the witness to show the witness what to expect. The goal is not to frighten the witness, but the cross-examination should not be too gentle, either. The prosecutor must make sure the witness is prepared for a vigorous cross-examination. This is especially true when the witness is a young child, a senior citizen, a sexual assault victim, or an unstable or emotional witness. Show the witness the courtroom and the witness stand before trial. Go through the entire process with the witness. Be honest about what the witness can expect.

Tell the witness about the judge, the likelihood of objections, and how to react or respond to them. Tell the witness to explain his or her answers on cross-examination, and not let the defense lawyer put words in the witness’s mouth. Tell the witness that he or she is not confined (on cross-examination) to a “yes” or “no” answer if a simple “yes” or “no” answer would not fairly represent the facts. In that situation, the witness can give the answer and an explanation.

The prosecutor should make sure that the very first and very last thing he or she tells the witness is to “always tell the truth.” When the defense attorney questions the witness about “getting prepped to testify” and whether “the prosecutor told you to say that,” the witness should be able to honestly answer that “the prosecutor just told me to always tell the truth." Talk about sound and noise in the courtroom, and make sure the witness understands that he or she needs to speak up and speak clearly – the witness needs to be heard and understood by the jury, the judge, the court reporter, and the parties. Make sure to tell the witness how to dress, where to go, and to be on time. Do not just assume that the witness knows these things.

Practice Pointer

Witness prep meetings
Prosecutors are frequently overworked and busy, and there will not always be time to conduct such a thorough preparation with every witness before every trial. And in truth, not all witnesses will not need such a high level of preparation. But if the prosecutor is unable to meet with the witness in person before trial, he or she should at least try to prepare the witness over the phone. If the prosecutor doesn’t even have time to make a quick phone call to the witness before trial, then it is time to ask a colleague for help. Do not plan on talking to a witness for the very first time when the witness shows up for court and the trial is about to begin – or even worse, after the witness has taken the stand.

Leading Questions on Direct Examination

Rule 611(c) generally prohibits leading questions on direct examination of witnesses. Leading questions are those which contain the suggested answer within the question itself – for example, “you didn’t actually arrive until 8:00, did you?” See generally State v. Young, 291 N.C. 562 (1977)State v. Williams, 304 N.C. 394 (1981). But a question is not automatically “leading” simply because it calls for a yes/no answer from the witness, draws the person’s attention to a particular point or issue, or bridges from one topic to another. In other words, it depends on both the form and context of the question. See State v. Thompson, 306 N.C. 526 (1982)State v. White, 349 N.C. 535 (1998); State v. Smith, 135 N.C. App. 649 (1999)State v. Howard, 320 N.C. 718 (1987).

Furthermore, it is usually in the prosecutor’s best interest to ask open-ended questions on direct and let the witness testify naturally, instead of trying to lead the witness, because the jury wants to feel confident that they are hearing the facts from the witness’s own recollection and in the witness’s own words. Nevertheless, as described in the Official Commentary to Rule 611, leading questions may be appropriate to use on direct examination in the following circumstances:

  1. When the witness is hostile or unwilling to testify. See State v. Dickens, 346 N.C. 26 (1997)State v. Maddox, 159 N.C. App. 127 (2003)
  1. When the witness has difficulty in understanding the question because of immaturity, age, infirmity or ignorance. See State v. Cox, 344 N.C. 184 (1996) (low mentality); State v. Riddick, 315 N.C. 749 (1986) (young age); State v. Smith, 307 N.C. 516 (1983) (elderly).
  1. When the subject matter of witness’s testimony is delicate, such as sexual matters. See State v. Chandler, 324 N.C. 172 (1989)State v. Pearson, 258 N.C. 188 (1962)State v. Dalton, 96 N.C. App. 65 (1989)
  1. When the witness is called to contradict the testimony of prior witnesses. See State v. Greene, 285 N.C. 482 (1974)Gunter v. Watson, 49 N.C. 455 (1857).
  1. When the examiner seeks to aid the witness’s recollection or to refresh his or her memory, when the witness has exhausted his or her memory, and without stating the particular matters required. See State v. Young, 291 N.C. 562 (1977)State v. Lesane, 137 N.C. App. 234 (2000).
  1. When the questions are asked only to elicit preliminary or introductory testimony. See State v. Corbett, 307 N.C. 169 (1982)State v. Williams, 304 N.C. 394 (1981)
  1. When the examiner directs the witness’s attention to the subject matter without suggesting an answer. See State v. White, 349 N.C. 535 (1998); State v. Smith, 135 N.C. App. 649 (1999).
  1. When leading questions are the mode of questioning which is “best calculated to elicit the truth.” See State v. Greene, 285 N.C. 482 (1974)State v. Hood, 294 N.C. 30 (1978).

Using Props and Exhibits

When a witness is called to testify, the prosecutor can increase the impact of that testimony by using physical evidence as much as possible (within reason). Movement and activity will help keep the jury fully engaged and paying attention. For example, the prosecutor could hand the witness the weapon, clothing, stolen item, etc., that was involved in the crime and have the witness identify it. Then ask the witness to step down (with the court’s permission) and directly show the jury the distinguishing marks on the handle, the damage it caused, the dried blood on the sleeve, etc. The prosecutor can also use photos, maps, and diagrams whenever possible to assist the witness in illustrating their testimony.

The prosecutor should never show a witness something that he or she is not reasonably sure the witness can identify. The prosecutor should also bear in mind that very few people can effectively draw, write, or count in public – especially with twelve jurors and a full gallery of spectators watching them. Keep any drawing, labeling, or counting to a bare minimum.

Voice and Posture Techniques

The prosecutor must remain seated during the normal questioning of witnesses, but there are many other ways the prosecutor can highlight or draw attention to significant testimony or evidence in the case, for example: (1) leaning back or forward; (2) changing tone of voice or volume; (3) approaching the witness – with permission; (4) changing the topic or pattern of questions; or (5) asking the witness to do something (for example, stand up and point out the person who committed the crime).

Additionally, for jurors who have been sitting through many hours (or perhaps days) of testimony from witnesses and arguments from lawyers, even a brief period of silence can be quite dramatic. For example, when the victim testifies “no doubt in my mind – that’s the man right there who did this,” the prosecutor can focus attention on that testimony by pausing for a moment before asking the next question. The silence allows the significance of the last answer to fully sink into the jurors’ minds before moving on.

Refreshing a Witness’s Memory 

If a witness draws a blank, becomes unresponsive, freezes on the stand, or gets upset or confused, the prosecutor needs to be familiar with the rules and procedures for refreshing a witness’s memory and getting the testimony back on track. The two most important tools for doing this are Rule 612 for refreshing recollection, and Rule 803(5) for past recollection recorded.

Rule 612 provides that a witness may use an item in court to refresh his or her recollection. The item can be virtually anything, from a written note to a physical object, provided that it succeeds in actually jogging the person’s memory such that the resulting testimony comes from the witness’s own recollection. The defendant is entitled to inspect whatever item was used to refresh the witness’s recollection. After inspection, the defendant is also permitted to cross-examine the witness with the item and, if appropriate, introduce the portion of the document or item relating to the witness’s testimony into evidence. If writings or objects are used before testifying, whether or not they are present in the courtroom, the defendant’s attorney is entitled to have those portions relating to the testimony produced, but only if the court determines “that the interest of justice so requires.” See State v. Hall, 330 N.C. 808 (1992). For more information, see the related Evidence entry on Refreshing Recollection [Rule 612].

Rule 803(5) is a hearsay exception, which allows the introduction and use of a memorandum or report (recorded recollection) about which the witness once had knowledge, but now has insufficient recollection to testify fully and accurately. For example, when a witness gave a description of the suspect to the police at the time the crime occurred, but no longer remembers that description at the time he or she testifies. See State v. Nickerson, 320 N.C. 603 (1987) (upholding trial court’s decision to allow witness to read into evidence a signed statement which the witness gave to deputies a few weeks after the crime – witness testified at trial that he could no longer remember what happened after the shooting, but did remember giving a prior statement about it). For more information, see the related Evidence entry on Recorded Recollection [Rule 803(5)].

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume 2, Chapter 29.