Section Review

The Best First — The Critical Issue of Trial Witness Order

Michael D. Ricciuti is a partner in the Boston office of Kirkpatrick & Lockhart Nicholson
Graham LLP. He has served as an Assistant United States Attorney in Massachusetts.
John A. Wortmann,. Jr., is a partner in the Boston office of Kirkpatrick & Lockhart Nicholson Graham LLP. He has served as an Assistant United States Attorney in Massachusetts.
We were federal prosecutors for a combined total of 16 years. During that time, we tried dozens of jury cases, both together as trial partners and with other Assistant United States Attorneys. These matters ranged from straightforward narcotics purchases by undercover agents to complex drug and violent crime cases involving life and death sentences. Through this shared experience, we helped develop a common sense methodology to analyze cases for trial and to present trial evidence persuasively, directly, and efficiently. The idea, which we call “best first,” is to present the best (and often briefest) witnesses first, even if that means taking them out of the most logical order (while ensuring we have a strong witness to testify last), on the theory that it is critical to convince the jury early, when their attention is likely to be sharpest. For lengthy cases we tried, we developed a rule of thumb — “best four first” (meaning use the best four witnesses first) — to construct our trial strategy. We found this approach to be highly successful and outline it here.

As should be obvious, the best first (or best four first) approach is nothing more than a suggested, and hopefully different, way of looking at a case as trial approaches. We do not pretend that this technique — or any single trial strategy, for that matter — is appropriate in every case or right for every lawyer. Nevertheless, for those with the burden of proving a proposition,1 and particularly for newer trial lawyers, we offer this approach as a handy method to sort and organize evidence. Moreover, while this method may not dictate trial strategy in every case, practitioners may frequently find it helpful in preparing an alternative trial strategy.

1. Summary of the Technique

The “best first” approach front-loads the presentation of evidence by using the best possible witnesses (defined below) first before your opponent can gain any traction through cross-examination. The remaining witnesses are then ordered in the most advantageous way, making sure that your last witness is also a solid, hard-to-cross witness so that your case ends as it began — on a strong note. This approach thus requires four basic steps:

First, identify the core issues the jury must decide.

Second, determine the most persuasive facts and evidence on those core points.

Third, select the witnesses who can best testify to those facts and/or introduce that evidence.

Fourth, and most critically, determine witness order, putting the best of those witnesses first. In this context, the “best” witnesses are not only those who can be expected to testify briefly and effectively, but those who are expected to provide the least possible fodder for cross-examination. Thus, the first witnesses must advance your case while preventing opposing counsel from presenting hers.

Why does this technique make sense?

First, the attention span and patience of a jury (or a judge, or that matter) is limited, perhaps extremely so.2 This is hardly a novel observation. As one lawyer noted more than a decade ago, juries in the era of sound bites “would like us to get to the point and get to it quickly.”3 Since a jury typically will pay attention to the evidence it hears at the start of a trial, this is a golden opportunity to grab the jury’s attention with the strength of critical components of your case.

Some commentators claim that jurors may begin to make up their minds during or right after openings,4 which would strongly militate in favor of the “best first” approach. This claim is the subject of debate.5 The “best first” approach is not intended to take a side in this debate. We recommend this method simply because it makes sense. The first to present evidence on a claim has the jury’s attention at the start of his case. Putting on strong testimony with little damaging cross-examination creates momentum, as the testimony can be adduced rapidly. Even if the “best first” approach doesn’t determine the outcome of the case, it nonetheless enhances the proponent’s chance of convincing at least some members of the jury early on.6

Second, and equally important, the jury must trust you (or at least trust you more than your opponent) to provide them reliable, accurate and relevant information. By putting on critical evidence that the other side cannot effectively challenge on cross examination, you immediately invite the jury to trust you to give them the evidence they need to decide the case.

Third, there is no good reason to forego thinking about trials this way. No rule requires evidence to be introduced in a chronological — or any other — sequence. The purpose of the opening is to provide the jury with a road map of the case. Trial evidence need not follow the order in which the facts were outlined in the opening. If the jury has heard a comprehensive, clear opening, evidence can be introduced out of logical order without confusing the jury — freeing an advocate to arrange the facts in the most persuasive, albeit unconventional, order.

Two factual scenarios, drawn from real cases, illustrate the utility of the “best first” approach.

2. Best First to Better Focus the Jury

The “best first” method better focused the jury in a difficult circumstantial federal narcotics case on which an earlier jury deadlocked.

The facts are these: Federal and local law enforcement agents were investigating inner-city crack cocaine trafficking in Boston. The goal of the case was not simply to arrest the street dealer, but also to identify and arrest his source of supply. The agents relied on a cooperating witness (the “CW”), a civilian working at the agents’ direction, to make large purchases of crack from the street dealer — call him “Bob” — and his confederates. The CW wore a transmitter through which the investigating agents listened to and recorded conversations with Bob.

The CW met with Bob several times. Bob was often accompanied by others involved in his drug business, including his brother. After the CW placed an order, Bob was surveilled traveling to the third floor of a triple-decker elsewhere in Boston, after which Bob returned and sold crack to the CW. The investigators identified the person living on the third floor of the triple-decker — “Joe,” the suspected supplier. In the last crack transaction before arrests were made, Bob didn’t have the crack, and paged Joe. Joe showed up, met with Bob privately, and left. Thereafter, Bob sold the crack to the CW.

On the day of the arrests, a search warrant was executed at Joe’s apartment. Agents found crack in several places. Of greatest significance was a trash bag on the back porch on the third floor containing more than six pounds of crack cocaine. Agents also found drug paraphernalia and cash in the apartment.

Joe was arrested outside of the apartment. Initially, he was calm and talkative. But when he saw one of the agents walking out of the triple-decker with the trash bag in which the crack had been hidden, he instantly became sullen and quiet.

Before the first trial, Bob pled guilty and agreed to testify against Joe. As important as this direct testimony was likely to be, it was tempered by the fact that Bob faced a very long sentence and had struck a plea agreement with the government. He thus would thus be subject to vigorous cross-examination. Telephone toll records of calls between Bob and Joe and comments recorded during the crack purchases also implicated Joe. But the case against Joe remained largely circumstantial. No police officers saw Joe even touch crack, much less sell it. Joe did no drug business with the CW directly. He handled no cash, and said nothing of significance on the undercover tapes.

At the first trial, the case was presented in a traditional manner, showing how the investigation led from Bob to Joe. Police officers who surveilled the crack deals between the CW and Bob testified first, indirectly linking those transactions to Joe’s house. Evidence from the search of Joe’s house was presented relatively late in the trial. This traditional strategy — to build up the evidence to show that Joe was Bob’s supplier — made sense. But it didn’t work. The defense skillfully cross-examined the surveillance witnesses and called into question the sequence of events. More importantly, the cross-examinations highlighted the overwhelming evidence that Bob was a drug dealer and the relative lack of evidence against Joe. The jury deadlocked resulting in a mistrial and a new trial.

Applying the “best four first” approach highlighted the flaw in the initial strategy. Proceeding chronologically highlighted the massive evidence against Bob because it put that evidence before the jury first. Although the evidence against Bob would play an important role at trial, it simply was not the best available evidence against Joe, the trial opponent. Indeed, Bob was going to take the stand and admit that he made all of the charged crack sales; starting with this evidence thus squandered a valuable opportunity to present a strong case against Joe at the outset. Using this evidence first also allowed the defense to raise issues in cross-examination regarding the sequence of events. These details were virtually irrelevant to the issues the jury had to decide, but likely shook the jury’s confidence in the government’s overall case.

On re-trial, the order of evidence was changed dramatically using the “best four” technique to front-load the evidence against Joe. The core issue at trial, of course, was Joe’s involvement in crack dealing. The key evidence of that was found during and immediately following the search of Joe’s apartment on the day of the arrests — and not in the events leading up to it. The “best four” witnesses were thus those familiar with the search of Joe’s apartment, his post-arrest statements and some direct evidence of Joe’s involvement which limited cross-examination. The resulting order of witnesses thus was as follows:

1. Joe’s: landlord: The landlord testified that the third floor was Joe’s, introduced the lease with Joe, and identified photographs of the triple-decker. This gave the jury Joe’s residence as the focal point for the trial, and thus put the jury’s focus squarely on Joe without any meaningful cross-examination

2. Seizing agent: The agent who took custody of the evidence seized from Joe’s apartment and who took custody of crack purchased from Bob. He introduced the purchased crack in a very short series of questions, and then introduced the six pounds of crack cocaine and remaining damning evidence from Joe’s apartment. This juxtaposed the relatively small amount of crack purchased from Bob against the mother lode found at Joe’s (which made a particularly effective trial exhibit). Once again, this witness introduced damaging evidence against Joe while denying defense counsel any effective cross-examination.

3. Seizing/Demeanor Witness: The police officer who initially found the six pounds of crack was also involved in Joe’s arrest. He observed a dramatic change in Joe’s demeanor when Joe saw agents carrying the trash bag that contained the crack. This change in Joe’s demeanor was important evidence that Joe knew that crack was hidden on the back porch. Again, because of the narrow scope of the direct and the witness’ involvement in the case, the cross of this witness was ineffective.

4. Bob’s Brother: Bob’s brother had immunity and testified that he was involved in Bob’s drug business and knew that Joe was Bob’s main supplier. Vigorous cross examination of the brother showed that he had an interest in the case (immunity). But compared to the expected cross of Bob, this witness provided direct evidence against Joe and offered the defense far less fodder for cross.

Thus, the “best four first” approach put the case against Joe front and center early, while frustrating effective cross-examination. It generated momentum and minimized the importance of discrepancies among the surveillance witnesses. The “best four” approach thus made the government’s case simpler, more direct, and more powerful (the last government witness was a senior agent who was very hard for the other side to effectively cross). At the conclusion of a hard-fought case, the jury convicted Joe on all but one substantive count on the second day of deliberations.

3. Best First to Strengthen a Theory

In another case, the issue was whether an ecstasy dealer sold an ecstasy pill that had put a young victim at death’s door. If the government could show that the dealer sold the pill, and that the pill caused “substantial bodily injury,” the alleged dealer faced a 20-year mandatory sentence. Otherwise, the alleged dealer faced a sentence of less than five years.

The victim was a 17-year-old high school student. She had taken a red ecstasy pill bearing a smiley face logo and suffered a toxic reaction which threw her into a coma-like state. There were thus three core issues: First, did the defendant distribute the actual pill the victim took? Second, did the victim (who recovered) suffer serious bodily injury? Third, did the pill cause that injury?

The last issue involved a battle of experts. The government planned to call two treating physicians. They were effective witnesses and experts in their own right. Because the evidence on this point was relatively strong, these witnesses were chosen to end the government’s case. With this issue (and the need to end on a high note) put to one side, the “best four” witnesses were those who could provide the most compelling testimony of the defendant’s involvement in selling the red, smiley-faced ecstasy and of the harm suffered by the user, while minimizing the defendant’s cross-examination opportunities. The first four witnesses thus were these:

1. The translator. The defendant, who spoke Spanish, confessed to being an ecstasy dealer immediately after his arrest. The person who translated the confession from Spanish to English for the English-speaking officers testified that she translated the dealer’s confession accurately and eliminated any suggestion that the confession had been coerced. The cross examination was limited to her recollection of the sequence of events and was ineffective.

2. Police Officer at the Confession: Two police officers heard the defendant confess: the case agent, who was responsible for the entire investigation, and one of his co-workers. The second agent was selected as a “first four” witness because his testimony focused on the confession and thereby limited the defendant’s cross-examination. This officer testified that the defendant admitted selling significant amounts of ecstasy, including red, smiley-faced ecstasy pills. Cross again was focused on his recall of the sequence of events and did little damage to the government’s case.

3. A seizing agent: One of the other agents in the case surveilled the defendant on the day of his arrest and directed a post-arrest search of the defendant’s apartment. She testified that she seized red, smiley-faced ecstasy pills (identical to that purportedly taken by the victim) from the defendant’s closet and produced the pills in court. Cross examination was against focused on the sequence of events and only reinforced that the defendant had pills identical to that described by the victim.

4. The EMT: The EMT who found the user six hours after she took the ecstasy was the final “best four” witness. He testified about the seriousness of the victim’s condition and his belief that the victim might not survive. Cross was limited to the EMT’s recall of the sequence of events and the details of his medical assessment.

Thereafter, evidence regarding the chain of custody of the actual pill and the medical evidence was introduced.

This approach had several strengths. It eliminated the opportunity for an experienced defense lawyer to cross-examine the string of ecstasy dealers who sold the actual red, smiley-faced ecstasy pill early in the case to generate doubt that the pill the victim took was one of the defendant’s pills. Presenting the jury with the defendant’s admission that he sold red, smiley-faced ecstasy, along with the introduction of identical pills seized from the defendant’s apartment, short-circuited this theme. This linkage made the chain of custody witnesses less important. In addition, the EMT’s testimony previewed the medical dispute without extensive cross-examination on technical issues.

The “best four first” approach thus minimized weaknesses and put the government in as strong a position as possible. But, as if to demonstrate no strategy is perfect, it didn’t work. Although the jury convicted the defendant, it did not hold him accountable for the victim’s injury.

4. Conclusion

The “best in four” technique is a helpful tool. It requires those who use it to streamline cases and critically analyze what the jury hears first. In an appropriate case, it allows the proponent of evidence to focus the jury’s attention on the strength of his case while limiting the scope and effectiveness of cross-examination. If, as many social scientists believe, “early” in trial is “better,” then “best four” can be an invaluable consideration in trial preparation.

End notes

1. Any party who bears the burden on an issue (whether an element of a prima facie case or an affirmative defense) can use this technique to structure the presentation of evidence. Because this technique can most effectively be used by the proponents of evidence, civil litigants are urged to consider the opportunities presented by the Massachusetts Declaratory Judgment Act, G.L.c, 231A, section 1 et seq., to be the plaintiff and thus the first party to present evidence in any appropriate case. [back]

2. See, e.g., S. Babitsky et al. The Comprehensive Forensic Services Manual (Seak 2000) at 11.2 (“Many jurors do not want to be on the jury and they may have little or no interest in the case. Even more importantly, they may have an overwhelming desire that everyone concerned (the lawyers, the witnesses, and the judge) move the process along as quickly as possible … it is [thus] good practice to communicate the major points of an [expert] opinion to the jury as soon as possible during direct examination.”).[back]

3. W. Bailey, Expert Witnesses in the Sound Bite Era, Trial (Feb. 1993), 65-69, at 65, 67. [back]

4. See, e.g., P. Hannaford, at al., The Timing of Opinion Formation by Jurors in Civil Cases: An Empirical Examination, 67 Tenn. L. Rev. 627, 632-3 (1999-2000), citing D. Vinson & D. Davis, Jury Persuasion: Psychological Strategies & Trial Techniques (3d ed. 1996) at 199 (“The vast majority of jurors arrive at a verdict predisposition during or immediately after opening statements. Further, these initial decisions are remarkably consistent with the final verdicts that jurors render at the conclusion of the trial.”).[back]

5. Id.; see also, e.g., J. Call, Making the Research Work for You, Trial (Apr. 1996), 20-29.[back]

6. Indeed, Hannaford’s empirical research demonstrated that “[b]y jurors’ own admissions, the majority began leaning [in favor of one side in a civil case] well before the conclusion of the trial … [although] only a very small proportion of jurors [9 percent] reported leaning or making up their minds during opening statements.” Id. at 650. Presenting a strong case early thus recognizes that juries begin to decide before deliberations, and may get them to lean in your favor early.[back]

©2014 Massachusetts Bar Association