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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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