ILNews

IBA: Special Situations That Are Not Unique in Witness Control

Back to TopCommentsE-mailPrintBookmark and Share

 

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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

ADVERTISEMENT