Definition

Rules of Court, Rule 132. Section 5. Direct examination is the examination-in-chief of

a witness by the party presenting him on the facts relevant to the issue.

Importance of Direct Examination

This is the only opportunity for the proponent to elicit from the witness all the facts
which are important and favorable to him.

Essentials
Procedural Requirements:
1. Offer of Testimony- the proponent shall state the substance of the
intended testimony of the witness ( an outline of the major points) and
the purpose of said testimony (what the proponent intends to prove by
said testimony) (Rule 132, Sections 34 and 35)
a. Importance
i. The direct examination may be objected to by the opponent
ii. Matters not included in the offer may not be allowed to be
testified on upon proper objection
iii. To shorten the proceedings as the opponent may admit or
stipulate on the matters to be testified on.
Direct Examination of Expert Witnesses
1. Four stages:
a. qualifying the witness as an expert;
b. establishing the basis for the opinion;
c. eliciting the opinion; and
d. explaining the opinion. (Kuchler, 2010)
2. The experts qualifications should mirror the issues about which testimony
is sought. Where the expert will give his opinion on a matter that he
himself has personally observed, he must be asked first what facts
relating to the matter he has seen or observed by himself, before he is
asked about his opinion on the matter. After he has told all about the
facts, the witness may give his opinion, taking these facts into
consideration. (Bersamin, 2006)
3. To bring out the best that is in a witness to be used as an expert, the
prosecutor should arrange to confer with the witness before the
presentation of the witness. The prosecutor should also study the terms,
phrases, and words peculiar to the subject under investigation. If possible,
the prosecutor should have another expert sit with him to assist in framing
the questions, or to suggest additional or follow-up ones during the
examination. (Bersamin, 2006)

Ground Rules for Examination of the Expert Witness in a Questioned Documents

case: (Bersamin, 2006)
1. The examination of any expert witness does not differ from the
examination of an ordinary witness in any specific way, except as to the
special rules governing the framing of hypothetical questions.
2. Latitude of the examination of the expert witness is within the discretion of
the trial court.
3. There is no particular form of question, except that it should be so framed
that the witness can give an intelligent answer.
4. Generally, leading questions are improper,30 but they are permitted during
the qualification stage on preliminary matters and are often necessary in
propounding hypothetical questions.
5. Such expert may be asked by either party as to the reasons on which his
opinion is based, or he may, by leave of court, give such explanation on his
own account.
6. A court may suspend a trial to enable the expert witness to make an
examination of persons or things so that he may testify.
7. As a general rule, the facts upon which the expert witness bases his
conclusion or opinion shall first be stated by him so that the trial court may
determine whether the alleged facts on which the conclusions are based are
real, and whether they justify the conclusion or opinion expressed.
8. Expert testimony should not be allowed to extend to the field of baseless
conjecture concerning matters not susceptible of reasonably accurate
conclusions. This limitation is due to the requirement that an experts opinion
must be in terms of the certain or of the probable, and not of the possible. An
expert witness is entitled to give his best judgment or opinion on the matter
subject of the inquiry, but has no right to give answers that are mere
guesses.
9. A mere supposition as to what would have happened if something had
occurred that did not, or something had not occurred which did, or whether a
certain thing could have happened under certain circumstances, which the
witness says did not exist, is ordinarily rejected as involving too large an
element of conjecture.
10. Purely imaginary or abstract questions, assuming facts or theories for
which there is no foundation in the evidence, although such questions may be
permitted on cross-examination for the purpose of testing the knowledge of
the witness as to the subject on which he has testified, are not allowed during
the direct examination.
11. Hypothetical questions should not incorporate in them the opinions of
other expert witnesses, for an opinion of an expert witness cannot be based

upon the opinions expressed by other experts. Facts, and not opinions, must
be assumed in the questions; otherwise, opinions might be built upon
opinions of experts, and the substantial facts driven out of the case. An
opinion cannot rest, in whole or in part, on other opinions, but must rest on
facts. It is essential that the testimony on which the expert opinion is based
be taken as true.

Applicable Laws
Jurisprudence
Techniques
** The witness should be considered as a sponge heavy with facts. By the time the
direct examination is over, all favorable facts should have been squeezed from the
witness. The examination must be clear, forceful, comprehensive, and must
efficiently present the facts of the case.
I.
II.

III.
IV.
V.

VI.
VII.
VIII.

IX.

KEEP IT SIMPLE.
a. Avoid these two pitfalls (i) too little time on critical points and (ii) too
much time on unimportant points
ORGANIZE LOGICALLY.
a. Determine the key points and organize them in a logical order. If
possible resort to a chronological presentation of testimony.
b. Whatever the organization of the direct, the overriding goal should be
to make the story as simple and understandable as possible and to tie
that story irrevocably to the theory of the case. (Jones & Varner)
c. Pre-mark your evidence to avoid unnecessary pauses and arguments
during the examination. (Gilbert, Gilfarb, & Talpins, 2005)
INTRODUCE THE WITNESS AND DEVELOP HIS BACKGROUND
USE PRELIMINARY QUESTIONS WHICH ARE INTRODUCTORY, TRANSITION
OR ORIENTING QUESTIONS
ELICIT SCENE DESCRIPTION
a. During direct examination, help the witness tell the story in a
conversational, easy to understand, methodical and compelling
manner. (Gilbert, Gilfarb, & Talpins, 2005)
ELICIT GENERAL FLOWING DESCRIPTION.
a. Let the witness paint a picture. Avoid excessive detail.
USE PACE IN DESCRIBING ACTION.
a. Control the speed of the examination by eliciting testimony in small
segments at the most advantageous rate. SLOW DOWN THE ACTION.
USE SIMPLE LANGUAGE.
a. Choose simple words and phrases. Word choice affects answers. Avoid
jargons, idioms and technical words. WHAT MATTERS AND WHAT WILL
BE REMEMBERED IS NOT HOW BEAUTIFUL AND IMPRESSIVE THE
LAWYER PHRASED HIS QUESTIONS BUT WHAT THE WITNESS
NARRATED.
HAVE THE WITNESS EXPLAIN.

X.

USE NONLEADING OPEN-ENDED QUESTIONS

a. The most reliable way is to ask a question which begins with who,
what, where, when or how to remove any possibility of an objection.
(Jones & Varner)
b. In going forward with the direct examination, the organization most
frequently used to develop the story is a simple chronology -- the
what happened next? school of direct examination. This format may
be used quite effectively with percipient witnesses who are testifying
about a crime or a personal injury; it is less helpful with a technical or
expert witness. For these latter witnesses, the lawyer usually imposes
a subject-matter organization, moving from one area to the next with
some sort of bridge question or statement which signals what is
coming (Jones & Varner)
i. EXAMPLE:
Q. Now that we have discussed the laboratory testing of
the product, Mr. Williams, lets explore how Acme satisfied
itself about the actual performance of the product once it
was released to the public. To begin with, did Acme have
in place any procedures for monitoring field performance?
A. Yes we did.
Q. Tell the jury what those procedures were.

XI.
XII.

XIII.

USE EXHIBITS TO HIGHLIGHT AND SUMMARIZE

BE A GOOD LISTENER
a. Sometimes your witnesses will stray from the script and answer
questions they anticipate. You will look foolish if you ask a witness
about something the witness already testified to. (Gilbert, Gilfarb, &
Talpins, 2005)
PRACTICE WITH THE WITNESS.
a. To the contrary, most experienced trial lawyers concede that the time
spent in preparation is equally or more important than the time the
witness spends actually testifying. It is in such preparation sessions
that the lawyer discovers the mannerisms and thought processes of
the witness, the gaps in the witness knowledge, his ability to take
instruction and the bad answer which should be avoided. Every trial
lawyer has experienced the heart flutter and stomach churn which
come when a key question is met by a look of utter incomprehension
on the witness face. There is no way to guarantee that a witness will
be immune from this kind of brain cramp; but the old adage of
prepare is certainly the best vaccine. (Jones & Varner)

ADDITIONAL PRACTICAL TIPS

1. BE BRIEF. Confine to the strongest points.

2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax.
3. NEVER ASK A QUESTION to which you do not already know the answer.
4. SAVE THE EXPLANATION FOR THE MEMORANDUM. Questions should not be
explanations of your position.