Tips for Effective Cross-Examination (Continued from page 27)
intersection, isn’t that right?” If the wit- ness answers that he does remember your question, then follow up with “then your answer to my question is yes, you were look- ing to the right as you entered the intersection?” At this point, you will prob- ably get a short answer.
If not and the
witness rambles again, look puzzled, take the blame for asking an unclear question (e.g., “I’m sorry Mr. Witness, perhaps I’m not asking the question clearly, please let me try it another way”) and repeat the ques- tion. At this point, even if the witness rambles, the jury will get the point. Al- ternatively, when the witness starts rambling again, hold your hand up as an indication to stop and say “we’ll get to that.” Then repeat your question with some emphasis “Mr. Witness, what we’d all like to know (here you can gesture towards the jury) is whether you were looking to your right when you entered the intersection, yes or no?” They’ll get the point. You will lessen the risk of losing con- trol of a witness by limiting your cross-examination to one fact per ques- tion. For instance, if the defendant driver in our hypothetical case testified in depo- sition that he never saw plaintiff’s vehicle until moments before the collision and that he was looking to his right at the moment he entered the intersection, at
least two questions during cross-exami- nation are necessary to elicit both of these facts. For example, “Mr. Witness, you did not see plaintiff’s vehicle until seconds be- fore impact, correct?” and “Mr. Witness, you were looking to your right as you en- tered the intersection - true?” If the witness asks you a question, an-
swer “I’d love to, but the rules won’t allow me to answer” or “I’m sorry, but the rules won’t allow me to answer.” The exception to this would be if the witness asks you a legitimate question seeking to clarify your question (something that is not likely to happen if you limit your questions to lead- ing questions and to questions that elicit one fact only), then an appropriate re- sponse would be to re-cap the witnesses testimony in this manner: “Mr. Witness, you just testified a few moments ago that you looked to your left as you approached the intersection. What we’d all like to know is whether you were looking to your right as you entered [emphasize “entered”] the in- tersection, yes or no?” Even if the witness gives you a “bad” answer to this question, the jury will get the point..
III. Impeachment with a Prior Inconsistent Statement What should you do if the witness’ trial testimony contradicts a prior statement? Using our hypothetical case, suppose dur- ing direct examination the witness testified that he was looking directly at
the light at the moment he entered the intersection. To impeach him with his deposition testimony that he was looking to his right when he entered the intersec- tion, first you must commit the witness to their trial testimony. For instance, “Mr. Witness, your testimony today is that you were looking directly at the light when you entered the intersection?” Then you must lay a foundation for the prior inconsistent statement, in this case the deposition testimony. For ex- ample, “Mr. Witness, do you recall giving a deposition in this case back in July?” Since the jury has no understanding of a depo- sition and its significance, you must explain it to them through the witness. Ask the witness the following: “The depo- sition was where I asked you a series of questions about this collision, like today?...”Your lawyer, Mr. (or Mrs.) So-and- So was present?... A court reporter was present who took down everything that was said by anyone at the deposition? And for this next question, I actually raise my right hand to physically anchor the point with the jury “And you swore the same oath to tell the truth that you did today?” Now that the jury knows what a depo-
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sition is, you can start to tighten the noose: “Wasn’t your memory of the collision better at the deposition since the deposition took place only 8 months after the collision?” Whether the witness says “yes” or “no” to this question is pretty irrelevant since most people would believe that one’s memory of an event fades as time passes. Followed up by ”Your testimony at the deposition was accurate wasn’t it?” ... And you reviewed your transcript to make sure it was accurate?” Now you can reinforce that the deposition was under oath by asking something like this “You swore an oath to tell the truth at your deposition, and you did tell the truth didn’t you?” Now you are ready to cinch the noose and confront the witness with their in- consistency: “Mr. Witness, I’d like to refer you to the transcript of your deposition at page 16, line 5.” At this point, you might consider giving the witness a copy of their transcript. In fact, many judges will make you do so and the witness might ask for it anyway. I’d suggest that you preempt such a request by automatically handing the witness a copy of their transcript; the jury will appreciate your sense of fairness. The proper and effective method of impeachment is to read the question and answer from the deposition transcript and then ask the witness if that was their sworn testimony at deposition. That is it. Some lawyers have the witness read the ques- tion and answer or simply read the question and have the witness read the an- swer. This is ineffective because you lose the ability to emphasize the words. For
Fall 2001
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