The Five Most Difficult Types of Witnesses—And How to Shut Them Down

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Tuesday, April 29th, 2014
The Five Most Difficult Types of Witnesses—And How to Shut Them Down

The right to cross-examine is arguably the most crucial of all the fundamental rights accompanying a criminal jury trial. Witnesses are allowed to convey their message through open-ended and narrative question and answer sessions. The framers of the Constitution, however, knew piercing, scrutinizing, and chiseled cross-examinations were also necessary if courtrooms were to be places of justice. A thorough cross-examination is often the only way for a defendant in a criminal case to present his theory of the case to a jury.

Many witnesses either do not understand, do not appreciate, or do not respect the rules. Even though they just had their turn to tell their story during direct examination—they still believe it is their turn to tell their story again during your cross-examination despite the questions they are asked. Difficult witnesses, out of spite or even obliviousness, deny your client a fair trial because they refuse to answer questions posed to them.

We all encounter difficult witnesses. They are not limited to experts, police officers, or biased lay witnesses. The level of difficulty a witness poses is often unknown until cross-examination begins. You must prepare for each witness to be difficult or you risk having your theory damaged—sometimes fatally. If the witness ultimately turns out not to be difficult, then you have lost nothing by having prepared.

The keys to cross-examining the difficult witness are: (1) diagnosing how your witness will be difficult and which tactics they will use; (2) preparing your cross-examination in conjunction with your theory of the case; (3) using fundamentally sound cross-examination techniques during the cross-examination; and (4) using appropriate witness control techniques if and when necessary.

I.   Identifying the types of difficult witnesses & their tactics

A.  Categorizing difficult witnesses

Difficult witnesses come in all shapes and sizes. Many are difficult on purpose, and others may present challenges because of youth, diminished capacity, or even by simple personality quirks. Hard witnesses are like snowflakes—no two are alike. No category is truly perfect, but the five most difficult witness types are: (1) the “lawyer” witness; (2) the “instant expert”; (3) the “fire-hose” witness; (4) the clueless witness; and (5) the “patronizing” witness.

1.  The “lawyer” witness

This is a witness trying to win the case on his or her own. They are consciously trying to out-think you on each and every question. A “lawyer” will attempt to thwart or foil questions by thinking of where your cross-examination is going and trying to head you off regardless of how simple the question may be. Rather than listen to the question and answer it with a responsive “yes” or “no,” they instead try to out-flank or out-maneuver you. They want to debate you instead of answering questions.

Example:

Q:  My client told you he is from Mexico, right?
A:  That’s what he told me, yes. In my training and experience I’m taught not to believe 100% of what someone tells me.
Q:  Spanish is the main language in Mexico, right?
A:  There are lots of languages in Mexico, counselor. I’m not an expert in Mexican languages and dialects.
Q:  My client told you he speaks Spanish, right?
A:  Again, I’m trained not to believe everything I hear. I’m always very careful to demonstrate the test multiple times before I have the subject begin. It’s really for his own safety because that’s my number-one priority. He nodded at me when I asked him if he understood, counselor. In my training and experience, I know he understood everything I said.

2.  The instant expert witness

An instant expert is much like the “lawyer” above, who—out of nowhere—seems to have expert knowledge on a topic no one expected him or her to have. Instant experts are problematic because they take basic assumptions and turn them on their head. Even the most simple of questions can become a circus at any time.

Example:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  There are about ten different variations or dialects of the Spanish language within Mexico itself. For example, the Chiapaneco dialect from the southern border of Mexico is more akin to languages of Central America, unlike the Nor-Este dialect, which we’re far more accustomed to here because it’s from the mountains of Northern Mexico. A good clue is whether they pronounce the letter “s” like the letter “z.”

3.  The fire-hose witness

A fire-hose witness cannot quit talking and speaks in manic, endless, run-on sentences. They are very difficult to control. Some fire-hose witnesses are acting intentionally, and others are simply being themselves. If being a fire hose is simply a function of their personality, a jury may get frustrated with you if you try to rein them in. The jury could see you as rude or patronizing if you are picking on a person merely because of their personality. It is rare to see experts or law-enforcement officers as fire-hose witnesses, but if they are doing so you can bet it is on purpose to make your job harder.

Example:

Q:  My client told you he is from Mexico, right?
A:  That’s what he said but I don’t know him personally. People say all sorts of things that I have no way of verifying, and most people I come into contact with on the street still understand English even if they’re not from here. One time I had someone tell me he was from the African country Zambia. He seemed to understand the tests just fine, and I ended up letting him go just like I do with most of the people I pull over.

4.  The clueless witness

Many witnesses simply are not very smart. They do not pay attention to the question, or they are not capable of giving a responsive answer even if they are paying attention. These types of witnesses veer off course through no fault of their own. A witness’ lost nature can present serious problems when they stray from topic to topic, even though you have framed your question perfectly. The clueless witness presents a major problem because it impairs your ability to teach the jury in a methodical and logical progression.

Example:

Q:  My client told you he is from Mexico, right?
A:  He told me he still has family there, so I remember feeling really bad for him that he was so far from home, and then he said something to me about him being hungry. I think he said he’d only eaten a burger eight hours ago? I don’t know for sure because I don’t speak much Spanish. I’m sorry... could you repeat the question?

5.  The patronizing witness

We have all run into witnesses who think a trial is a game and a waste of their time. A patronizing witness is one who wants to “cut through all the bull” of your pesky questions and just tell the jury your questions are baloney to him. Patronizing witnesses show little regard for the judge and even less for you. Often these types of witnesses will try to volunteer information in between questions so as to “clear up” a good point you may have just scored—as if they are on re-direct examination.

Example:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you...
A:  Can I just say something here—you’re trying to make it sound like he didn’t know what was going on. That’s just baloney, counselor.

B.  Categorizing tactics difficult witnesses use

Difficult witnesses probably do not have a manual or playbook written up anywhere, but this is a list of the most common types of diversionary or evasive tactics witnesses will use when being cross-examined. There are many different ways witnesses tend to be non-responsive. Again, clever witnesses come up with different tactics all the time—but these are the most common forms of non-responsiveness or disruptive behavior.

1.  The witness answers as if still on direct examination

Regardless of how narrow you frame your question, many witnesses will still answer like it is an open-ended question. This is common amongst people who testify on a regular basis, such as police officers and expert witnesses. You know it is on purpose when they look at the jury while answering. Even so, every cate­gory of witness listed above is guilty of answering a leading question as if they are still on direct. This type of witness is trying to maintain control of your cross-examination in an effort to blunt favorable points you may be trying to make. They purposefully try to prevent you from getting into a rhythm on cross and feel like you should not get a turn at all making your points.

Example:

Q:  My client told you he is from Mexico, right?
A:  Yes [looking at the jury], it’s our common practice to communicate with people, and if it’s apparent there might be a communication issue then we ask them where they are from. I asked him where he was from originally, and I believe he told me Mexico, sir.

2.  A “baiting” witness

“Baiting” witnesses are trying to get you off course by either changing the topic or limiting damage to themselves. Generally, witnesses will bait you in one of two ways. First, they can offer what is known as “external bait.” External bait is when a witness insinuates or even expressly offers up alternative information in an effort to get you off course.

External bait:

Q:  My client told you he is from Mexico, right?
A:  Yes. But THAT’S NOT ALL he told me [witness looking at the jury with eyes widened]. He told me some other things about what happened earlier that night but I left them out of my report because I didn’t want to embarrass him.

Alternatively, “internal bait” is when the witness recognizes he is beaten and in an effort to minimize damage, tries to head you off with a premature “goal” answer well before you have gotten there.

Internal bait:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you he speaks Spanish?
A:  Yes.
Q:  He told you he doesn’t speak English?
A:  Yes.
Q:  You gave him the instructions in English?
A:  He might not have understood everything and maybe I should have used an interpreter.

It is always tempting to pursue bait from witnesses whether it is transitioning to a new topic at their suggestion or just allowing them to “play dead” on a topic in hopes you will move on. Anytime you take bait, however, you teach the witnesses they can manipulate and control you and disrupt your line of questions when it becomes uncomfortable for them.

3.  Asks for clarification

Many witnesses will nitpick your questions and try to derail you by asking for further clarification or a definition of something within your question. Clarifying questions for witnesses not only disrupts your rhythm on cross-examination but also often causes you to re-ask a perfectly fine question in a way you might not ask clearly a second time. Instead of staying on target to cross-examine towards a goal, your cross-exam takes a tailspin.

Example:

Q:  My client told you he is from Mexico, right?
A:  Do you mean from there as born in Mexico or just lived there. I guess I just don’t understand your question, counselor. What do you mean “from Mexico”?

4.  Answering questions with questions

This concept is self-explanatory but very frustrating. Jurors who are not used to watching cross-examination on a daily basis may not understand that what they are watching is not a debate and instead is a one-sided story you are telling through the opposing witness. You are suddenly put on the spot when a witness poses even a simple question. You risk looking unfair to a jury by ignoring questions, yet we are socially programmed not to ignore questions others ask of us.

5.  “Out-flanking” or “lawyering”

As described above, many witnesses think they can outwit you or they can “beat you to the punch.” The witness treats every question as a trick and deliberately tries to “foil” even the most harmless of questions. Highly biased witnesses who typically testify on a regular basis are probably the biggest culprits of “out-flanking” or “lawyering.”

6.  Quibbling or fighting

Many witnesses quibble over small details and pick fights over things simply not important in your case. When you bite on a diversionary tactic like this, you risk the jury losing the big-picture vision of your overall theory. Also, the jury may just put you in the same category as the witness and think of you both as five-year-olds.

II.   Preparation to defeat the difficult witnesses and their tactics

A.  General—elbow grease

There is simply no substitute for hard work. There are many talented lawyers who are natural at walking into the courtroom and making horsey witnesses look foolish. While we all want to think of ourselves in this way, the truth is you will defeat most difficult witnesses well before the trial begins by and through your preparation.

The single greatest resource for any cross-examiner is Cross-Examination Science and Techniques by Larry S. Pozner and Roger J. Dodd (2nd Edition, LexisNexis publishing, 2009). No other resource comes close. Many of theses ideas, tactics, and techniques are based on their hard work and dedication to cross-examination.

B.  Your theory of the case

Your main advantage in every cross-examination is that you know what is important to your theory and the witness probably does not. This paper is not about trial theory, but your trial theory is integral to how you cross-examine. Successfully crossing a difficult witness is simply not possible without a clear theory. Such a theory allows you to: (a) cross-examine over areas where the witness does not expect you to cross; (b) cross over areas where witnesses are unlikely to disagree with you; and (c) avoid pointless spats over minutia with witnesses because you know they are not important.

C.  The chapter method of cross-examination

Pozner & Dodd profess three rules to cross-examination: (1) leading questions only; (2) one fact per question; and (3) all questions lead to a logical conclusion or “goal.”

1.  Leading questions only

Never ask a non-leading question in front of a jury. A non-leading question normally begins with one of the five w’s or h (who, what, where, when, why, or how). Remember, you are teaching the witness, the judge, and the jury. This session is neither a free-flow of ideas nor is it a philosophical debate. Cross-exam is you telling a story one fact at a time through the opposing witness.

When you ask an open-ended question—even a harmless one at the beginning of your cross—everyone in the room subconsciously thinks they are watching an open discussion. A cross-examination that is a mix of open-ended questions and leading questions gives mixed signals to the judge, jury, and witnesses. The witnesses appear to be invited to explain themselves, but when you attempt to gain control of them, you—not them—are the person who seems unreasonable and unfair.

2.  One fact per question

Drafting questions properly in short and simple bites eliminates many problems the difficult witness may try to pose. It thwarts requests for clarification and makes it harder for “lawyers” and/or “instant experts” to out-flank you or derail you in a manner credible to a jury. There is very little room for evasion of a question like, “You asked for a beer?”

One-fact questions should be based on facts that are as objective in nature as possible. Try to hone in on facts where if a witness evades, you have a police report or video to show the witness he is wrong. Cross-examining over vague and subjective concepts may be necessary at times—but they are fertile ground for difficult witnesses to give you headaches.

3.  Questions lead to a logical goal

Questioning to a logical goal is your capping off each chapter that is like a vignette. It teaches the jury your theory of the case one fact at a time and paints a picture you want them to see. More importantly: When you cross-examine towards logical goals, the jury is not really interested anymore in the witnesses’ testimony or evasions. The jury hears or thinks “yes” to your questions even if the witness is huffing and puffing, being non-responsive, or trying to pick a fight over minutia.

D.  Pre-trial advanced scouting/mental preparation

It is not always possible to know how a particular witness may testify or to know what games witnesses play on the witness stand. Prosecutors are at a terrible disadvantage because they generally have no clue what type of witness will come to testify for the defense. Even if they knew, there is probably no transcript or professional resource they can use to prepare for a witness unless it is an expert. If you can get an advanced scouting on a witness through a motion to suppress, ALR, or even word of mouth—do it!

Once you are aware of how your witness likes to evade, mentally rehearse by going through your cross and envisioning where and how the witness might try to evade. This will allow you to tighten your questions. When rehearsing your questions or role-playing with other lawyers before trial, try to think like a difficult witness. With what loose words can they play? Are there any opinions you are tossing out with which the witness can disagree? Also, mentally rehearse one or two witness-control techniques you might employ should you need them.

III.  Execution and technique of cross-examination

A.  The effect of your preparation

Your technique during cross-examination is designed to minimize the chance of a witness becoming difficult in the first place. If a witness becomes difficult, your method should minimize the damage caused by the witness. A sound technique will:
(1) teach the jury your theory regardless of a difficult witness; (2) minimize evasiveness from the witness; and (3) condition the judge and jury that the witnesses are out of line when they refuse to follow your lead.

1.  Use opening statement to your advantage

A huge advantage you have over a witness is you have the opportunity to give the jury a sneak preview of what they will see in the case. The jury is the sole judge of the witnesses and their credibility. If you have advanced scouting of witnesses or have dealt with them before, you can tell the jury in opening you anticipate the witnesses will be difficult and/or resort to different tactics to avoid answering questions. When the witness does begin to evade in the manner you predicted, the jury gives you even more credibility.

2.  “Downhill” cross-examination

Downhill cross-examination (or “yes-train” cross-examination) is a method in which the questions come at a slightly faster pace than what the witness is comfortable with. Like a skier going downhill on a difficult slope, minor rifts or bumps in the snow are minimized by the quicker speed of the person skiing. Your goal is to put the witness on the “yes-train” so they answer a swift “yes” to every single question in your cross-examination. This effectively makes your cross-examination like a closing argument through each witness.

i.  Picking up the pace

Questioning at a quicker pace accomplishes several important goals important to controlling difficult witnesses. Primarily, it increases the witness’ anxiety level. While we are not trying to traumatize or terrorize a witness—the truth is they are less likely to evade when they sense they are on their heels. A witness trying to “lawyer” or “out-flank” you has a much harder time doing so when you have them on the “yes-train.”

The “yes-train” also establishes a rhythm with which everyone in the court-room becomes accustomed. The witness, then, is put in an awkward position to break the rhythm if they want to be evasive. If they do break the pace, the jury sees that as being overtly disruptive.

Finally, picking up the pace causes the jurors to focus far more on the question asked than the answer. Remember, the jury is processing the picture you frame for them through the witness. If your questions follow a logical progression, then a witness’ hemming, hawing, or attempts at frustrating you do nothing to prevent your teaching the jury your theory of the case.

ii.  Jujitsu—taking the witnesses where they want to go

Getting a witness to help you go “downhill” is always a challenge. Remember, you will almost always encounter more resistance from a witness when you are attacking them or their work. Every witness, however, wants to be seen as honest, fair, objective, well-trained, professional, etc. Questions allowing the witness to discuss these traits are excellent ways to begin to go downhill with them or get them on the “yes-train.” You virtually never do damage to your own case by allowing an opposing witness to portray themselves to a jury in a positive light—because this is what the jury expects this witness to say anyway.

Even further, many winning trial theories are actually consistent with facts an opposing witness is willing to convey.

B.  Safe-harbor cutoffs

Often you and the witness can together pick up the momentum of a cross-exam through initial chapters focusing on all the witness’ good traits in the form of safe-harbor cutoff chapters. A safe-harbor is a place witnesses know they can retreat when cornered. For example, a police officer confronted with facts he left out of his police report almost always retreats by saying that the report is not a big deal, and that the fact left out of the report was left out because it was not a big deal at the time. As another example, police officers frequently allude to medical conclusions but then quickly retreat into “I’m not a doctor” when shown their conclusion is suspect.

A safe-harbor cutoff chapter takes those safe harbors away from the witness long before he or she knows they will need them. Police will say they are detail oriented and meticulous report writers long before the report is called into question. They will also readily admit they know their own limitations and are not qualified to give medical conclusions long before they are asked, because they want to enhance their credibility to the jury.

The safe-harbor cutoff chapter, then, serves two functions. It gets the witness going “downhill” quickly with the cross-examiner, and it cuts off important escape routes a witness typically seeks later.

1.  In cross problems, do not get rattled

If you have drafted tight and clear one-fact leading questions, presented them logically, and have the witness on the “yes-train,” you should notice the witness will have already offered far less resistance than you anticipated. Still, witnesses will fight. It is important to stay focused on your chapters and the points you came to score with the jury.

i.  Imperfect answers

A witness might not always give you a “yes” answer. They may say they do not remember, or they may only generally agree with your one-fact question, or they may simply disagree with your fact or question even though you have logically cornered them into answering your question with a “yes.” Starting a war with a witness and trying to cram them into a “yes” or “no” response only serves to derail your message to the jury. If the point you are making flows logically, the jury will make that jump for you. Chances are the jury will not remember the witness said “maybe” instead of “yes.”

ii.  Bait

Remember: Witnesses will throw you bait to get you off your chapter. Often taking bait is tempting because a witness may want to jump to another point on which you were prepared to cross-examine him, and you feel you can teach the witness not to be evasive by defeating him on this point, too. This is a mistake and will more often result in your cross-exam getting out of control. It is about teaching the jury—not bullying the witness.

iii.  Questions

Occasionally a witness will ask you a question. While it is tempting to allow them to do it because you want to show the jury there is nothing your side has to hide, it damages your cross-examination on many different levels. Again, it allows the judge and jury to see the cross-exam as a debate and resets their expectations accordingly. It can often put you as the lawyer on the spot as if you were a fact witness. Worst of all, answering a question posed by a witness again focuses the jury on the witness’ point of view instead of your picture on cross. Simply do not answer a witness’ question.

iv.  Non-responsiveness

Again, going “downhill” with a witness minimizes the damaging effect a non-responsive witness inflicts on your cross-examination. The jury is following your story if you are asking the questions simply and logically. Non-responsiveness, then, is just noise and does not hurt your cross as badly as you think. Unless it hurts your cross-exam, you should ignore it and not allow it to throw you off.

There are, of course, times when you must deal with a non-responsive witness. Never rely on the judge to shut down a non-responsive witness for you. If the judge overrules your objection, then the witness’ bad conduct has been ratified and they are empowered to continue being difficult. Also, when the judge overrules your objection, the jury thinks you are the bad guy. A “non-responsive” objection is only effective if you are objecting to the opposing witness’ answer while they are on direct exam with the opposing lawyer.

IV. Witness control techniques

Again, even if you have done everything possible to minimize a witness’ ability to fight you, throw you off course, or otherwise thwart your cross-examination, a witness can always be more difficult than you anticipated. Here are some specific techniques you can use to try to gain control of a witness. For a more complete list, consult Pozner & Dodd.

A.  Looping

Looping is a simple technique taking a word used by the witness and using it in three separate questions in succession. A loop can be either planned in advance or spontaneous if the witness uses a word helpful to your theory of the case. The structure of the loop question is designed merely to re-use the word you want but does little else to advance your theory of the case. The loop teaches a witness not to use words other than “yes” or “no” in answering a question. An example of a loop might look as follows:

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you he speaks Spanish?
A:  I don’t know if he told me all of this, but I got the general sense he seemed confused the entire time I was out there. I don’t know if it was because he was intoxicated or not.
Q:  So when you were speaking to him in English, he seemed confused?
A:  Yes.
Q:  And when you were giving him instructions on the walk and turn in English, he seemed confused?
A:  Yes.
Q:  And when you were giving him instructions on the one leg stand in English, he seemed confused?
A:  Yes.

This loop consisted of two parts: an anchor plus the phrase we wanted to loop. The anchor is a basic fact we know the witness will not dispute or has already conceded (“you were giving him instructions in English”). The second part is the word or phrase we want to loop (“he seemed confused”). The loop, then, is no more than making a slight variance to the anchor phrase and repeating the other phrase two additional times.

A loop can either be planned in advance or spontaneous. Planned loops are simpler to execute and the general rule on spontaneous loops is unless it pops instantly into your mind while you cross—it is best to just move on with your chapter.

B.  Corking

A “cork chapter” is a zinger of a chapter you have written out that generally deals with a specific point or issue where you know you can pound the witness. Often it is a prior-inconsistent statement, or it can be showing a witness his or her conclusion was simply wrong. The “cork chapter” then is inserted into your cross-examination to keep the witnesses under control if they are being difficult. If you end up not using the chapter, you can put it last or second-to-last in your sequence of chapters.

C.  “Our turn”

Occasionally, you might run into a witness that simply feels above being cross-examined. This is typically a “patronizing” witness as described above, but could also be a fire-hose witness or just as often a “lawyer” who simply wants to repeat what they said on direct examination again... and again... and again.

An “our turn” chapter is designed to show the jury how this witness is being unfair by denying you cross-examination. In an “our turn” chapter, you specifically lay out all the different ways the witness is allowed to tell their story. You end the chapter by asking the witness if they do not mind if you have “our turn” too. Here’s an example:

Q:  You believe in fair trials?
A:  Yes.
Q:  You’ve made it clear you think my client was driving while intoxicated?
A:  Yes.
Q:  You still want him to have a fair trial, right?
A:  Yes.
Q:  And in a fair trial we get to ask questions?
A:  Yes.
Q:  And in a fair trial you have to answer questions, right?
A:  Yes.
Q:  And in a fair trial you have to answer questions truthfully, right? (Notice the planned triple loop on “fair trial.”)
A:  Yes.
Q:  When you were on the roadside, you had your microphone on?
A:  Yes.
Q:  You knew you were being recorded?
A:  Yes.
Q:  You knew what you were being said might be heard by a jury?
A:  Yes.
Q:  On the roadside—that was your turn to investigate, right?
A:  Yes.
Q:  And today we’re in trial, right?
A:  Yes.
Q:  And now you’re on the witness stand testifying?
A:  Yes.
Q:  The lawyer for the state asked you questions.
A:  Yes.
Q:  So it was your turn again?
A:  Yes.
Q:  And when I’m done asking you questions, the lawyer for the state will get to ask you questions again, right?
A:  Yes.
Q:  So it will be your turn again?
A:  Yes.
Q:  You’ve testified in trials before?
A:  Yes.
Q:  So you know right now it’s our turn to ask questions?
A:  Yes.
Q:  You don’t mind if we have a fair trial do you?
A:  [No one will care how they answer.]

D. Clarification

Witnesses seeking clarification (or to repeat a question) can be a major impediment to a cross-examination flowing downhill. Witnesses seek clarification either because they truly need it or they are playing games. There are several keys to shutting down witnesses who constantly seek clarification. The first is in your preparation—that is to say, it is incumbent on you to ask clear questions. The clearer the question, the more leverage you will have in forcing the witness to answer. Unclear questions will cause the judge and jury to side with the witness when they ask for clarification.

Never clarify a question for a witness where in your mind the question has been asked clearly and properly. Clarification gives signals to a witness that they can derail you with this tactic. Also, by clarifying, you are admitting to the judge and jury you asked an unclear or unfair question when you may not have done so.

1.  Repeat the question slowly and deliberately

Calmly and politely repeat the same question slowly when a witness asks for clarification. This can be difficult because you may not precisely remember the question asked. Always try to use the exact same question verbatim (i.e., “You... drank... a... beer?”) Properly asked questions when slowed seem more simplified and it makes it clear to everyone in the courtroom there is nothing the witness does not understand. Repeating and simplifying questions is also a good tactic for non-responsive answers.

2.  Have the court reporter repeat the question

The court reporter will be able to recite your question verbatim if you cannot be sure of how you originally asked it. Additionally, in the proceedings the court reporter is somewhat of an innocuous authority figure who is neutral and does not have a stake in the outcome. Witnesses are far less likely to be disrespectful to them than they are to you. Going to the court reporter somewhat grinds proceedings to a halt (albeit for 30 seconds). The witness feels and shoulders the discomfort it causes. You only have to do this tactic once or twice and a witness abandons nitpicking your question before the jury. Having the court reporter read back to the jury, like simplifying the question, is also another effective tactic to “crack the whip” on non-responsive witnesses.

E.  Quibbling witnesses

Witnesses who constantly quibble with insignificant details or who simply refuse to agree with your statement even though cornered can be handled through a variety of tactics.

1.  Reversing

Reversing is taking the opposite answer you are looking for in an effort to show the jury how difficult the witness is being. Here is an example of using the “reversing” technique:

Q:  You worked on the police report the night of the arrest, right?
A:  Yes.
Q:  You proofread it before you turned it in, right?
A:  Yes.
Q:  You did the best you could on it, right?
A:  I suppose so.
Q:  Your report is complete, right?
A:  I don’t know... maybe it is.
Q:  Oh, so you filed an incomplete report?
A:  No, no... My report is complete.

2.  Elimination

Elimination is where you ask specific questions eliminating other possible answers where the witness is being difficult.

Q:  My client told you he is from Mexico, right?
A:  Yes.
Q:  Spanish is the main language in Mexico, right?
A:  Yes.
Q:  My client told you he speaks Spanish?
A:  Yes.
Q:  He said exactly one sentence of English to you the whole time, right?
A:  Yes.
Q:  He had a heavy Mexican accent in the English words he spoke to you?
A:  I don’t know about that...
Q:  His accent wasn’t Dutch, was it?
A:  No.
Q:  Wasn’t Russian?
A:  No.
Q:  Wasn’t Korean?
A:  No.
Q:  He had a Mexican accent, right?
A:  Yes.

3.  “So the answer is yes?”

A last technique is to wait after a long—convoluted answer—and merely reply to the answer, “So the answer is yes?” The statement should only be done once or twice through the course of a cross-examination because it is confrontational in nature and may upset the jury if done too often.

V.  Conclusion

Much of the battle to prevail against a difficult witness is fought well before the witness takes the stand. The keys are knowing what you are facing and how the witness may try to evade, preparing an exam to minimize risk of evasion, and knowing how to handle evasiveness disruptive to your teaching of the theory of the case.