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IBA: Special Situations That Are Not Unique in Witness Control

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kautzman-john-mug Kautzman

By John F. Kautzman, Ruckelshaus Kautzman Blackwell Bemis & Hasbrook

When cross examining a witness it’s not unusual to be confronted with the “I don’t know” or “I don’t remember” witness. Evasive answers like “I don’t know or I can’t remember” shouldn’t necessarily frustrate the cross-examiner. In one respect the witness is no longer even attempting to exercise control and so the cross-examiner has won that confrontation. Do not become frustrated or angry with the witness. Simply try to use those answers to your advantage.

It is important for the cross-examiner to differentiate an actual failed recollection from “I don’t recall” (because I don’t want to answer). Obviously, in most situations the witness either once knew the information but has now forgotten the fact, never possessed knowledge of the information, or simply doesn’t want to answer. Once you can pinpoint the basis for the “I don’t know”, you can begin to show whether or not it is reasonable for the witness to have forgotten. If you ask a series of small one topic questions, you will then be able to bring out that either the witness is being reasonable, or is being absurd because they are failing to remember simple facts that anyone would remember. If the witness continues to say “I don’t know” or “I can’t remember” on even simply broken down questions, their credibility has been destroyed and total control has been turned back over to the cross-examiner.

Consider extracting as many “I don’t knows” as possible. Ask if the witness understands the questions. In short, let them damage their own credibility.

This also can become a perfect opportunity for you to point out that the witness has a selective memory. In other words, point out how you “apparently can remember this, but you cannot remember anything else about the situation”. If you go through step by step all of the things the witness can’t remember, which the jury thinks they probably should, the credibility of the witness has been destroyed.

What happens if the witness repeatedly wants to ask you a question, instead of answering your questions? They are the “questioning” witness.

The first tendency is to go ahead and answer the question, but if you do this, you are surrendering the courtroom to the witness. Never do that!

The second temptation is to remind the witness of your respective roles by telling him that you are the lawyer and that “you get to ask the questions”. But the jury may not appreciate your overbearing attitude when it seems that you are simply trying to hide from the witness. It’s another example where the perception might be of you taking unfair advantage of the witness, which the jury might resent.

Sometimes, you can even tell the difficult witness that later in his testimony we can get to the topics that he wants to cover, but for the time being you are focusing on a certain topic. The jury will usually forget if you never go back to the subject area that the witness wanted to cover, since they will expect the opposing lawyer to pick up on those points. (This technique is great for the springboard or smart aleck witness)

Although there is no tried and true solution for this problem, it is probably best to suggest to the jury that you have a perfectly good answer, but you are not permitted to testify. Don’t let the witness become the center of attention. The attorney should become the center of attention, and the witness must be force-fed concepts that he is obligated to agree with.

Finally, determine your objective with the witness, achieve the objective, and stop! Remember, you only put this witness on the stand to make a required showing of proof. Don’t try to take it any farther!

Reference material and suggested reading : Fundamentals of Trial Techniques by Tom Mauet, Cross Examination-Science and Techniques by Larry Pozner and Roger Dodd, The Litigation Manual – A Primer for Trial Lawyers from the American Bar Association, and The Power of the Proper Mindset by James W. McElheney.•

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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