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.•