IBA: Techniques for Controlling Challenging Witnesses That Work, Some with Risk

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kautzman-john-mug By, John F. Kautzman, Ruckelshaus Kautzman Blackwell Bemis & Hasbrook

Techniques of witness control are numerous and none should be overlooked, no matter how basic they may seem. For instance, when cross-examining a difficult witness always maintain eye contact. Avoiding eye contact is often interpreted as weakness. By directing your full attention to the witness’ eyes you serve non-verbal notice that you expect direct answer to your questions.

Be aware of body positioning and movement. While you are maintaining eye contact with the witness, you must stand firm and still as you await a response. This is necessary to convince the witness that all eyes are on him and the entire courtroom is waiting for a straightforward answer to the question that is before him.

Another good basic technique is to simply re-ask the same question. Thus, if you get a non-responsive answer, repeat the question once or twice until they get the message and answer the question. For example, without taking your eyes from the witness, slowly ask the question again in exactly the same words and the same tone of voice. This controlled repetition emphasizes to the witness, the judge, and the jury that the witness is refusing to answer a simply straightforward question.

A softer corollary to simply repeating the question would simply be to say “my question was” and then repeat the question. It sounds like you are trying to be more helpful than confrontational.

If you have received a long answer that beat around the bush and tried to confuse the real issue with a lot of window dressing, you might simply respond to such an answer by saying “so your answer is yes”. Depending on your demeanor, this can also be a more kind and gentle way of getting a witness back on track.

Many times using the formal name or title of the witness will remind the witness that he or she is risking embarrassment or humiliation. By using a formal name or title, (such as “Doctor or Professor”, did you not understand my question), the witness is made aware that you mean business.

Sometimes you can ask the court reporter to simply read the question back after your efforts have failed to get a simple answer to a simple question. However this is most effective when there is a stenographic reporter. In a more modern courtroom that just uses a tape recorder, that technique can be cumbersome. Yet another effective technique is called the “spontaneous loop”. A loop is the repetition of a key phrase. Often times, by listening closely to the witness’ answers, you will find a word or phrase that is helpful to you. In that instance, you simply loop the helpful phrase back to the witness. This technique helps silence rambling witnesses because they start to fear hearing their own words spoon-fed back to them. For example, if in the middle of a long rambling answer, the witness says that we did thus and such “like a normal family would”, the cross-examiner asks a series of follow-up questions such as, “so like any normal family you did this, and like any normal family you did this, and like any normal family you did that” etc.

There are a couple riskier techniques you might consider such as a physical interruption to a rambling answer to get the witness back on track. The most typical technique in this regard is the lawyer simply holding their hand up like a traffic cop “stop” signal. In essence, the lawyer has silently interrupted and the witness will stop, allowing the lawyer to restate the question and thereby refocus the answer.

Another physical technique that can be used, is simply walking back to counsel table while the witness is engaged in a lengthy non-responsive answer, sitting down, and staring down at the table as you let the witness ramble. The witness will usually sense the confrontation and stop, which will allow the lawyer to take a deep breath and slowly restate the question. This is a powerful technique, but since it is fairly insulting to the witness, it must be reserved for a witness who is clearly and completely worn out his welcome with the jury. Otherwise, (if used too quickly) you risk offending the jury by making the lawyer look arrogant or childish.

Finally, a powerful, but risky technique that should be reserve for very bad situations, is to simply pull over the blackboard and write the question out. It is a visual way of pointing out to the jury that you are simply trying to get a straight forward answer to a simple question. But once again, that kind of professional exasperation must be saved for the truly exasperating witness.

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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.