Let Them Speak: Direct Examination of Witnesses

The burden of proof at a court martial is on the prosecution: if they can’t prove to the panel beyond a reasonable doubt that you committed the crime you’re accused of, you’ll go free.

This simple fact determines the structure of the trial proceedings. After opening statements from both sides, the prosecuting attorney will present their argument and supporting evidence. They’ll also call their witnesses, drawing out from them through direct examination the version of events that supports their side of the case.

When the prosecution rests its case, it’s the defendant’s turn. This is where the burden of proof comes in: if the prosecution has not put on a convincing case, your attorney may choose to skip calling its own witnesses for direct examination. If the panel seems likely to buy the prosecution’s version, however, your team will put forward its own argument and present the evidence to support it, including witness testimony.

For the defense, the direct examination of witnesses is about telling your story through the lens of another person in a forceful, clear, and efficient way. The role of the attorney in direct examination is to ask the right questions, then stand back and let the witness speak. Some rules for conducting a direct examination include:

▪  Know before the trial what the witness is going to say.

▪  Keep it short: Get to the point, hit it hard, and move on.

▪  Ask open-ended questions.

▪  Ask questions in chronological order.

▪  Ask questions using the present tense and active voice so that your witness’ testimony will do the same. Chronology, the present tense, and the active voice will allow the panel to experience the events in question as they unfold.

▪  Use transition statements to provide context for the panel and keep the witness focused. In this example, the first part of this question is a transition statement:

Q: SSG White, I now want to turn your attention to the party that took place in your hotel room after dinner. What time did the party start? Who was in attendance? When did the party end?

Direct examination of witnesses who can provide credible alternatives to the prosecution’s narrative can be valuable—if it’s needed. Whether your attorney decides to call their own witnesses depends on a number of variables. Either way—with the direct examination of witnesses for the defense or without—your attorney will definitely be cross-examining the witnesses for the other side.

If you’re facing a court martial, call experienced defense attorneys Capovilla & Williams at (404) 496-7974.