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Tuesday, January 8, 2013

Some thoughts on dealing with difficult witnesses on Cross Examination

Dear Friends:

I thought I would do something completely different from my last few posts and share some ideas about crossing difficult witnesses.  Cross examination is a relatively easy skill to teach in theory, but making the right kind of "cross examination" music can be difficult.  This is particularly true with sophisticated or difficult witnesses who are actively seeking to thwart your questions.  Here are some techniques that I have seen work effectively in that situation. Take a look at them and let me know what you think!

Control Technique #1

After the first nonresponsive answer, pause and then state respectfully, “Perhaps you didn’t understand my question.  My question to you is …….(restate the question), listening respectfully and attentively to the answer. 

If you get a second nonresponsive answer hold up your hand as they are being nonresponsive. When they stop say, “Thank you, but that was not my question.  Let us try this a third time. My question to you was....(restate the question again).”

Note: If the witness will not stop when you hold up your hand then you should drop your hand, turn away, go to counsel table and look through your notebook. Once they finish, count to three silently, look up and say, “Thank you, but that was not my question.  Let’s try this a third time.  My question to you was……(restate the question yet again).”

If you get a third nonresponsive answer then turn and face the judge. State the following, “Your honor move to strike the witness’s testimony as nonresponsive” - wait for the ruling.

If the judge agrees then ask that the jury be instructed to disregard. If the judge does not agree then act like it is no big deal. Turn to the witness and then impeach with a rock solid impeachment run that you had previously identified as your “go to run” to reassert control.

Control Technique #2

The first time the witness is nonresponsive interrupt the witness with an apology: “I’m sorry, but I meant to ask you (simpler version of the same question, or an even more black and white question to assert control)

If the witness remains recalcitrant and is nonresponsive a second time you must remain calm, but interrupt them again with an extremely simple question that is abrupt but polite: “Pardon me, but...(insert simple question here)”

If the witness still obstinately refuses to be reasonable remain calm, but firmly interrupt again, stating “Mr. Witness, you are a witness in this case—not one of the lawyers. It’s your job to answer questions—not argue the case. Do you understand?”

If they still refuse to play nice you now have permission to be abrupt.  The following run of questions can be quite effective: “Mr. Witness, do you understand my question?” “Are you simply unable to answer this question?” “Are you Simply Unwilling to answer my question?” “Then let’s try this again….”  (NOW WE RESTATE THREE EXTREMELY SIMPLE AND FUNDAMENTAL FACTS such as YOU ARE …….YOU DID.......”

Once you get the correct answer to those simple questions you go back into your inquiry.  State the following: “All right, you understood those questions, now…”(restate the problem question as simply as possible).

Control Run #3

When you get the first nonresponsive answer hold up your hand and apologize:  “I’m sorry, perhaps I wasn’t sufficiently clear (simpler version of the same question, or an even more black and white question to assert control).

If you get a second nonresponsive answer you should remain calm, wait the witness out, allowing them to answer completely and then state, “I appreciate that you felt the need to say that, but my question to you was  (simplest version possible for the question).”

If you get a third nonresponsive answer you should stay calm but be firm, stating the following: “Sir/Ma’am, we can at least agree that you are the witness? I am the Lawyer? We are in a courtroom? You just testified on direct? I am asking questions? You are supposed to give answers? Thank you. “NOW - PERFORM A ROCK SOLID PREPREPARED IMPEACHMENT LINE.” 

I freely admit that one of the most difficult aspects of cross examination and witness control revolves around balancing the need to be in charge while not appearing unfair, rude, or unethical. Unlike other aspects of trial advocacy, these particular skills are very much dependent upon the situation. Our own sense of self and power in the room are challenged when witnesses refuse to answer. Our need to be 'in charge' can keep us from clearly seeing the right question in the right moment. It is important to keep your head about you when this happens. Slowing down, focusing on the moment, and listening critically are all skills that stand each of us in good stead when this happens.

What situations have you experienced and how did you handle (or wish that you had handled) it?



  1. Charlie,

    Great post, great ideas. I will give this to my students to read. I also recommend a resource on the ARC, Professor Gormley-Johnson's presentation on witness control. http://www.law.stetson.edu/advocacy-resource-center/index.php/2011/08/12/witness-control-professor-gormley-johnson/.

    One thing that I think is absolutely critical to witness control is asking precise, single-fact, leading questions that leave little room for argument or interpretation. As I always tell my students, when you run into problems controlling a witness, 95% of the time it's because the witness answered the question you asked, not the one you intended to ask.

    There are, of course, exceptions to that rule about single-fact, leading questions, but when teaching a basic skill to beginners, I like to stick to the basics!

  2. J.L. Siegel asked that I share with you some comments she sent to me about the post. Her comments follow:

    "I liked Run #1 and Run #3 but I do not like interrupting a witness too prematurely just when they do not answer succinctly. I prefer to ask them whether they can answer Yes or No if the question calls for only that. Or, Sir/Ma’am I did not ask you WHY, I asked you the color which was blue? Body language can also be used effectively. As eye contact suggests interest, so ignoring and even turning your back on the witness while he or she babbles, shows the jury it is unimportant and of little interest. That is the time to study your own notes and not give a damn about the witness. The most important of all in controlling a difficult witness is to do a self-check. Ask yourself, was this a simple, single fact, yes or no statement which really cut off anything but a yes or no response. We are often the source of runaway witnesses."