I. Procedure for Witness Examination
Court controls the questioning of
witnesses so as to make the presentation evidence effective, to avoid wasting
time, and to protect witnesses from harassment or undue embarrassment. The
questioning of witnesses during trial must take place as follows:
I-A. Direct Examination
Attorneys call and question their own witnesses.
I-A(l). Form of Questions. As a general rule, witnesses may not be
asked leading questions by the direct examiner (the attorney who calls them
testify). A leading question is one that suggests the answer you want, and often
requires a "yes" or "no." Direct questions generally should be phrased o evoke a
set of facts from the witness.
I-A(2). Personal Knowledge [See Rule 11-D]. Direct examination cover
all facts relevant to the case of which the witness has personal knowledge.
I-B. Cross Examination Cross examination follows the opposing
attorney's direct examination of his/her witness. Attorneys conduct cross
examination to explore the weaknesses in the opponent's case, test the witnesses
credibility, and establish some of the facts of their team's case when possible.
I-B(l). Form of Questions. An attorney should ask leading questions
when cross examining the opponents witnesses. A leading question allows the
attorney to control the witnesses' answers to some degree. Questions tending to
evoke a narrative answer that usually begin with "how," "why," or "explain,"
should be avoided.
I-B(3). Impeachment. On cross examination, the attorney may want to
attack the credibility of a witness to show the Court that the witness should
not be believed. A witness's credibility may be impeached by showing evidence
provided in the case materials of the witness's character and conduct, past
convictions, and prior inconsistent statements.
I-B(3c). Prior Inconsistent Statement:
"Did you state on direct that the light was yellow?"
"Is this your affidavit?"
"Did you swear to the affidavit?"
"Does it say in paragraph 2, line 3 of the affidavit, given under oath, that
the light was red."
If the witness does not admit to a prior inconsistent statement, the witness
may be impeached. When the prior statement was signed and sworn by the witness,
the student attorney should introduce the statement and ask the witness:
- 1) "Is this your statement?"
- 2) "Did you make it under oath, at a time much closer to the events in
- 3) "Did it contain all you could then remember?"
I-B(4). Recross Examination. Recross is allowed if there is time. The
team attorney does not need to specifically reserve time for Recross examination
follows redirect examination, but is strictly limited to the issues raised on
redirect and should avoid repetition.
II. Evidentiary Objections
Students are restricted to the use of
specific evidentiary objections during the mock trial that are outlined below.
These simplified rules were developed by the Constitutional Rights Foundation
and modified by the North Carolina academy of Trial Lawyers and Professor
II-E Character Evidence
Witnesses generally cannot testify about a
person's character unless character an issue. Character evidence is generally
inadmissible because jurors may decide the case based on the kind of person a
party is rather than the facts the case. (The honesty of a witness, however, is
one aspect of character always at issue.)
- "Objection, your honor. Character is not an issue here," Or
- "Objection, your honor. The question calls for inadmissible character
Witnesses may not normally give their
opinions on the stand. Judges and juries must draw their own conclusions from
Example: A taxi driver testifies that the defendant looked like the kind of
guy who would shoot old people. Counsel could object to this testimony and the
judge would require the witness to state the basis for his/her "opinion."
"Objection, your honor. The question calls for inadmissible opinion testimony
(or inadmissible speculation) on the part of the witness. I move that the
testimony be stricken from the record."
If a witness offers an out-of-court statement to
prove the truth of the matter asserted in that statement, the statement is
hearsay. Because they are very unreliable, these statements ordinarily may not
be used to prove the truth the matter asserted. For reasons of necessity, a set
of exceptions allows certain types of hearsay to be introduced. Hearsay is a
very tricky subject.
Testimony not offered to prove the truth of the matter asserted is, by
definition, not hearsay. For example, testimony to show that a statement as said
and heard, to show that a declarant could speak in a certain language, or to
show the statement's effect on a listener is admissible.
III. Inappropriately Phrased Questions
During the mock trial, students
are restricted to the following objections when counsel is inappropriately
questioning a witness.
I-A. Leading Questions
As a general rule, the direct examiner is prohibited from asking leading
questions: he/she cannot ask questions that suggest the desired answer. Leading
questions are permitted on cross examination.
Example.- Counsel for the plaintiff asks the witness. "During the
conversation, didn't the defendant declare that he would not deliver the
- "Objection, your honor. Counsel is leading the witness."
Counsel could rephrase the question, "Will you state what, if anything, the
defendant said during this conversation, relating to the delivery of the
III-B. Argumentative Questions
An argumentative question challenges
the witness about an inference from facts in the case.
Example: Assume that the witness testifies on direct examination that the
defendant's car was going 80 m.p.h. just before the collision. You want to
impeach the witness with a prior inconsistent statement. On cross-examination,
it would be permissible to ask, "Isn't it true that you told your neighbor, Mrs.
Ashton, at a party last Sunday that the defendant's car was going only 50
The cross examiner may legitimately attempt to force the witness to concede
the historical fact of the prior inconsistent statement.
Now assume that the witness admits the statement. It would be impermissibly
argumentative to ask, "How can you reconcile that statement with your testimony
on direct examination?" The cross-examiner is not seeking any additional facts;
rather, the cross-examiner is challenging the witness about an inference from
Questions such "How can you expect the judge to believe that?" Are similarly
argumentative and objectionable. The attorney may argue the during the closing
argument, but the attorney must ordinarily restrict questions to those
calculated to elicit facts.
- "Objection, your honor. Counsel is being argumentative." Or,
- "Objection, your honor. Counsel is badgering the witness."
III-C. Asked and Answered
Asked and answered is just as it states,
that a question which had previously been asked and answered is being asked
Example 1: On Direct Examination - Counsel A asks B, "Did X stop for
the stop sign?" B answers, "No, he did not." A then asks, "Let me be sure we
understand. Did X stop for the stop sign?
- "Objection, your honor. This question has been asked and answered."
Counsel for X correctly objects and should be sustained, BUT...
Example 2. On Cross Examination - Counsel for X asks B, "Didn't you
tell a police officer after the accident that you weren't sure whether X failed
to stop for the stop sign?" B answers, "I don't remember." Counsel for X then
asks, "Do you deny telling him that?"
Counsel A makes an asked and answered objection. The objection should be
overruled. Why.? Counsel is not asking the same question. It is a sound policy
to permit cross-examining attorneys to conduct a searching probe of the direct
III-D. Compound Question
A compound question joins two alternatives
with "or" or "and," preventing e interrogation of a witness from being as rapid,
distinct, or effective for finding the truth as is reasonably possible.
Example 1: (Using "Or") "Did you determine the point of impact (of a
collision) from conversations with witnesses, or from physical marks, such as
debris in the road?"
Example 2: (Using "And") "Did you determine the point of impact from
conversations with witnesses and from physical marks, such as debris in the
- "Objection, your honor, counsel is asking a compound question."
The best response if the objection is sustained on these grounds would be,
honor, I will rephrase the question," and then break down the question.
Remember, there may be another way to make your point.
A narrative question is one that is too general
and calls for the witness in essence to "tell a story" or make a broad-based and
unspecific response. The objection is based on the belief that the question,
seriously inhibits the successful operation of a truth and the ultimate search
for the truth.
Example: The attorney asks A, "Please tell us all of the conversations
you had with X-before X started the-job."
The question is objectionable and the objections should be sustained.
- "Objection, your honor. Counsel's question calls for a narrative response."
III-F. Nonresponsive Witness
Sometimes a witness's reply is too
vague and does not give the details the attorney is asking for, or he/she
"forgets" the event in question. A Witness may use this tactic to prevent some
particular evidence from being admitted. The questioning attorney may use this
objection to "force" the Witness to answer.
- "Objection, your honor. The witness is being nonresponsive."
III-G. Outside the Scope of Cross Examination
is limited to issues raised by the opposing attorney on cross examination. If
the questions go beyond the issues raised on cross, they may be objected to as
"outside the scope of cross examination."
- "Objection, your honor. Counsel is asking the witness about matters that did
not come up in cross examination."