Direct Examination—Enron

Now that the jury selection and opening statements are out of the way in the Enron trial, the government’s case-in-chief begins. The first witness to be called to testify is Mark Koenig, Enron’s former head of investor relations.^[1] He is expected to confess that he was part of a criminal conspiracy.^[2] Mr. Koenig pleaded guilty in 2004 “to aiding and abetting securities fraud and is a cooperating witness for the government.”^[3] When his plea agreement was announced, the Department of Justice stated that Mr. Koenig “admitted that he was aware that Enron’s publicly reported financial results and filings with the SEC did not truthfully present Enron’s financial position, results from operations, and cash flow of the company and omitted facts necessary to make the disclosures and statements truthful and not misleading.”^[4] As part of his plea, he faces a maximum of 10 years in prison and a $1million fine; he agreed to pay $1.5 million in forfeiture and fines.^[5] Since he pleaded guilty to misrepresenting Enron’s value to analysts, however, he has recanted that part of his confession, saying instead that “a tape recording he has since heard revealed that it was Skilling who made a specific false statement to analysts.”^[6] The defense will certainly latch onto this as a way to question his credibility, and to show that the government used undue pressure to get guilty pleas. Prosecutorial misconduct is a theme that has been pushed by the defense since before September. It was also a factor in the Enron Broadband Services trial last year.^[7] Mr. Koenig is expected to testify for a couple of days.^[8]

Just how Mr. Koenig’s testimony will be elicited is part of a complex and formulaic procedure. Rule 601 of the Federal Rules of Evidence [hereinafter FRE] states that “[e]very person is competent to be a witness,” unless there is some exception found in the FRE. However, the witness can only testify about things within that person’s personal knowledge.^[9] It is up to the direct examiner to get the witness to establish that he has personal knowledge of the matter.^[10] This is often done through the witness’s own testimony, which can be given only after an oath or “affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness mind with the duty” to testify truthfully.^[11]

During direct examination,^[12] no leading questions may be asked, except “as may be necessary to develop the witness’s testimony.”^[13] They may be used to refresh a witness’s recollection of events, or to quicken the pace of trial.^[14] The general idea behind this rule is that the jury wants and needs to hear the testimony from the witness, rather than the lawyer, and leading questions prohibit the jury from getting a full picture.^[15] On the other hand, leading questions are essential for cross-examination, a topic which we will discuss tomorrow.

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[1] Mary Flood, et al., Witness is Expected to Admit Conspiracy, Houston Chronicle, Feb. 1, 2006.
[2] Id.
[3] Id.
[4] US DOJ, Former Senior Enron Executive Mark Koenig Pleads Guilty to Securities Fraud, Agrees to Cooperate with Ongoing Probe, Aug. 25, 2004.
[5] Id.
[6] Flood, supra note 1.
[7] See Mary Flood, Enron Prosecutors Showed Jurors Wrong Tape, Houston Chronicle, May 2, 2005.
[8] Flood, supra note 1.
[9] FRE 602.
[10] Id.
[11] Id. 603.
[12] Which is defined as “The first questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify.” Black’s Law Dictionary 492 (8th ed. 2005).
[13] FRE 611(c).
[14] 3-RULE 611 Federal Rules of Evidence Manual § 611.02 (2005).
[15] Id.