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CHAPTER 12: OUTLINE OF A TRIAL - Table of Contents

12.1 - Introduction12.2 - Pretrial Matters12.3 - Jury Selection12.4 - Opening Statement12.5 - Prosecution Case-in-Chief12.6 - Motion For Judgment of Acquittal/Directed Verdict12.7 - Defense Case-in-Chief12.8 - Rebuttal and Surrebuttal12.9 - Witness Examination12.10 - Jury Instructions12.11 - Closing Argument12.12 - Jury Deliberations12.13 - Motions For Mistrial12.14 - Miscellaneous Issues

12.9 WITNESS EXAMINATION

The parties present their cases by calling witnesses to the stand, having the witnesses sworn in, and eliciting testimony from those witnesses. This process is regulated by the Colorado Rules of Evidence and by various Colorado statutes and rules relating to evidence. Evidence is also presented through exhibits and stipulations. The rules and procedures governing the presentation of evidence are discussed in detail in Chapter 13. Only a few summary comments are included here.

A lawyer calling a witness asks questions of that witness in direct examination. Direct examination questions should be open-ended, allowing the witness to present the information to the jury or judge. Direct examination questions should be limited to proving the elements of the claims being made by the party calling the witness. Opposing counsel may then question the witness through cross-examination. Leading questions, questions that suggest what the answer should be, are allowed in cross-examination. Cross-examination questions should be limited to the topics covered in the direct examination and any matters affecting the credibility of the witness. Generally, the lawyer who first called the witness is allowed re-direct examination, to address any matters that were raised for the first time during cross-examination. Some judges allow re-cross examination on those matters discussed during re-direct examination.

It is the duty of the lawyers trying a case to make sure that the rules of evidence are followed, and to object to evidence that is offered in violation of the rules. When a lawyer believes a question or an answer is improper, the lawyer will object to the question or answer and the state the grounds for the objection. Juries are instructed about this duty, and are instructed not to make any assumptions about what the answer would have been had the judge allowed a question to be answered.

A trial judge who agrees with the objections will sustain the objection; if the judge disagrees with the objection, the judge will overrule the objection. Sometimes, an attorney will ask to make a further record concerning the objection, known as an offer of proof. An offer of proof completes the record for any appellate court that might review the case. For example, if the trial court rules that certain evidence should not be admitted, the lawyer seeking to admit that evidence may make an offer of proof - outside the hearing of the jury - of exactly what the evidence would have been.

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