“Cross Examining with Exhibits”
by Elliott Wilcox
Ever watched the cross-examination of a really adverse witness?
A couple of years ago, I watched a trial with one of the most adverse witnesses you could imagine.
During opening statements, the attorney accused the witness of sexually molesting the lawyer's client when she was 8 years old. He also claimed that the witness covered up the death of a young child.
As you can imagine, the witness wasn't too happy about the allegations.
Now, one day later, the witness is testifying and the attorney is cross-examining him.
The tension in the courtroom is palpable. There's no love lost between these two, and in fact, no one in the courtroom would be surprised if the witness jumped out of the witness stand and tried to punch his first through the attorney's skull.
He is (as you probably would be if you were in the same situation), a very antagonistic witness.
In a million years, do you think that he'd ever try to help the defense attorney's case?
Yet, in spite of all of the hatred that probably exists between the two of them, the defense attorney acts as if he expects the witness to help him out.
What exactly does he do?
He sets up some gigantic calendar pages on an easel, and then asks the Court's permission to have the witness step down from the witness stand and fill in some dates on the calendar pages.
First of all, when you think that a witness really hates you, you probably shouldn't ask them to step down from the witness stand... it makes it too easy for them to take a swing at you!
And, of course, you don't want to put any type of stabbing weapon, like a marker, in their hands.
But even if the witness isn't intent on killing you, it's just risky trial advocacy to ask an opposing witness to step down and write on your exhibits.
Remember, during cross-examination, YOU are the star of the show. You get to use the only tool in your arsenal, the leading question, to tell your winning story through your opponent's witnesses. The leading question is the only tool you have to maintain control during cross-examination.
And control is an essential part of cross-examination. You don't want to cede control to the witness... who knows what he might say or do if you put him in the driver's seat!
So, back to our courtroom situation...
What could possibly go wrong by asking an opposing witness to step down and write on your exhibits during cross-examination?
Well, a couple of things.
First, the witness can go berserk and write all over your exhibits. Not likely, but hey, it could happen.
Next, even if he's not going to go nuts, you're still giving him the opportunity to become the star of the show and to direct the jury's attention towards matters that he thinks are important. Rather than putting a simple "X" on the calendar, he can write a more lengthy response, or phrase it in such a way that it doesn't help your case.
Third, by asking the witness to step down from the witness stand, you're asking the jurors to focus their attention on him, rather than you. Their eyes will be drawn to him because he's moving (which breaks up the visual boredom of a trial), but also because, when you give him a marker and stand him up before the jury, you put him in the role of "The Teacher" -- do you really want them to see your opposing witness in that light?
Why let him have control or the spotlight, even for a moment? During cross, you want to direct the action and control the tempo.
What would I have recommended instead?
Well, first of all, I have to say that the idea of using gigantic calendar pages is a great idea, since it (literally) puts everyone in the courtroom on the same page when discussing the timeline in the case.
However, rather than asking him to step down from the witness stand and write on the board, I would recommend maintaining control with a combination of leading questions and body language:
Q: "The last day you saw your granddaughter was June 15th, right?"
Then move over to your giant calendar and mark on the June 15th date to indicate the event.
It's not a major difference, but it prevents the witness from expanding his answers or becoming a "teacher" to the jury. By maintaining control throughout your cross-examination, YOU will be the star of cross-examination, and will be able to tell your winning story through your opponent's witnesses.
Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com #law #jurytrial #trialtips