Questioning Checklist

From Criminal Law Notebook

Directing Examination-in-Chief

Starting Narrative on an Incident
  • ask whether they were witness to an incident [describe incident in general terms including rough date], a simple yes or no would do [prior witnesses would establish a foundation to the existence of an incident].
  • DON'T start by asking "what, if anything, happened on" so-and-so date
  • establish the general time and location of the incident
  • ask them to tell what happened by beginning at events immediately before the incident and be sure to tell times, places and names of people when known.


  • ask them about (1) the context of the first involvement in the incident and then (2) "walk us through it".
Uncertain of Quantum (time, duration, distance, height)
  • establish that they cannot say the answer
  • invite them to give best estimate
  • confront them with implausible amounts and get them to deny them.
  • gradually ask about growingly likely amounts on the upper and lower end.
  • Consider taking a typical common sense point of reference from their lives

General Cross-examination

  • Avoid exploring minor inconsistencies or implausibile statements that hurt your position without direct contradiction.
  • Consider the importance or value of the contradiction:
    • An accused who lies to police about minor points is relatively low value. Only limited time should be spent on that.

Honest But Mistaken Witness / Conclusory Claim Witness

Explore Foundation for Conclusion
  • Was it assumed
  • Was it learned second hand

Overly-Certain Witness

When Did Fact Become Important
  • Explore personal importance of observation at the time
  • Explore whether the events were recorded
  • Explore time when they were notified of importance of this memory
  • Explore efforts to remember in response to the notification.

Evasive/Deceptive Witness

  • Comment that the answer is not responsive
  • Did he understand the question
  • Was the answer responsive to the
Memory Problems
  • If they say "I don't recall", consider whether they are saying that there is no memory one way or another
  • consider asking about whether it would "be expected" or "surprise" that the circumstances would be one way vs another.