After opening statements in the Chauvin case on Monday, the state will call its first witness. The witness lists for both sides are pages long, which might make one wonder how the judge predicts this trial will go to the jury for deliberation in about four weeks.
Because the lawyers are required to give notice of potential witnesses to their opponent, they often include on their list every person who had anything to do with the case. That way, the judge won’t exclude the testimony of a witness who is not on the list for lack of notice.
In the Chauvin case, Judge Cahill ordered the state to tell the defense which witnesses they intend to call one week before trial.
At the end of each day, the state will also let the defense know which witnesses they will call the next day. This is helpful to the defense so they can focus their preparation on just those witnesses.
I tried cases where prosecutors refused to tell me who they were going to call the next day, and other cases where prosecutors did share that information. It really should be a common courtesy, and not be used as a strategic advantage for the state. I do not expect the court to share the order of witness information with the public or the media.
The order in which the state calls its witnesses is very strategic. Their first witness might be the young woman who filmed what has been called the “bystander video,” which would allow the state to introduce the video into evidence as an exhibit and play it for the jury. Lawyers may not show exhibits, like the video, to the jury until the exhibit has been introduced into evidence. This usually requires the testimony of a witness who can establish what is called “foundation” for the exhibit.
“Foundation” is a legal term which means that a witness with personal knowledge can testify that the exhibit is what it’s claimed to be. For instance, the young woman who filmed the “bystander video” can establish foundation by testifying that she took the video on her phone and that it is an accurate representation of what she saw.
When the lawyer who called the witness asks questions, he or she is doing what is called direct examination. The law assumes that witnesses called by a lawyer are “friendly,” meaning that they will freely answer the lawyer’s open-ended questions. Of course, this is not always the case, so if the witness is “hostile,” the lawyer can ask the judge for permission to use leading questions.
In general, a lawyer can only ask open-ended questions during direct examination, meaning those that begin with who, what, why, how, or where. An example of an open-ended question is, “What were you doing at 38th and Chicago?” Strategically, a lawyer wants to ask open-ended questions because, presumably, the witness has an important story to tell the jury. The lawyer’s role during direct examination is to guide the witness through his or her story by asking about certain topics (lawyers call them chapters) in a compelling order, which does not have to be chronological.
With few exceptions, the lawyer may not ask leading questions. “You were at 38th and Chicago to go to Cup Foods?” is a leading question. Notice that question/statement suggests the answer, which will probably be yes, or no. The other lawyer can object to this leading question, which should be sustained by the judge. “Sustained” means that the judge agrees with the objection which, in this case, is to a leading question. The more important issue is that the lawyer is telling the story instead of the witness, who is reduced to saying yes or no.
In my experience, you cannot underestimate the fear that overwhelms some witnesses, even though you have prepared them. During a trial, I once showed one of my witnesses a picture of a house and asked her to identify what she saw.
Although it was a picture of her own house, she completely froze and then said that she didn’t know. I needed to get the picture in as an exhibit, and so I resorted to asking the leading question, “This is a picture of your house, right?” The judge correctly sustained the state’s objection, and so my next question was, “What is this a picture of?” “My house,” she replied.
Frightened witnesses can throw a wrench into your direct in several other ways. You may ask an open-ended question, but the witness gives you a short answer, leaving out information they have previously told you. This requires follow-up questions such as, “What happened after the officer approached your car and before you were placed in the back of the squad?” Other witnesses will summarize their entire testimony in one narrative, instead of answering the only question you asked. With this witness you can say, “You just gave us a lot of information in that answer and I want to break that down.”
After the state is done questioning the witness, the defense will have an opportunity for cross examination. Despite what people see on TV, lawyers can be extremely successful being firm but not confrontational during cross. The cross-examiner’s goal is to get the witness to agree with factual assertions to enable the lawyer to argue the point in closing argument. The aspiration of the lawyer (except in our dreams) is not to have the “Perry Mason” moment, where the witness suddenly agrees with the lawyer’s conclusions (Yes, I am the murderer!). When you hear the lawyer’s question begin with “so,” you know they are probably about to ask one question too many.
My favorite fictional example of a lawyer violating almost every rule of cross-examination is from, “The Wire.” The scene is from a murder trial when a lawyer who represents drug dealers is cross-examining the prosecution’s star eyewitness, a regular character named Omar. Omar’s occupation is to rob drug dealers, which he freely acknowledges to the defense lawyer.
Instead of saving his conclusion for his closing argument, the lawyer turns to the jury and says: “You are a parasite who leeches off the culture of drug…” Omar is still on the witness stand, however, and he interrupts to say, “Just like you. I got the shotgun; you got the suitcase. It’s all in the game though, right?” The camera pans to the judge who shrugs at the defense lawyer, knowing Omar is right.