It’s no secret that cross-examinations of problematic witnesses can make or break a case. Law Times surveyed Ontario criminal defence lawyers and asked them for advice on getting the best from difficult witnesses.
The more difficult the witness, the shorter your questions should be, because the length of your question is the length of leash the witness has, says Toronto defence lawyer Alan Gold. “In terms of their answer, you keep a dangerous dog on a short leash,” he says.
Use concrete, crystal clear words and short sentences to ask questions that don’t leave room for debate, says Gold. “No words whose meanings can be negotiated. No words requiring judgment.”
Gold says every witness falls into two categories in terms of what they’ve said. “What did they say that hurts me and what did they say that helps me,” says Gold. Devalue what hurts, and inflate and expand what helps, he says.
The same goes for what the witness hasn’t said. Whatever the witness hasn’t said that could hurt, don’t go there, says Gold. And if the witness hasn’t said something that could help, bring that out and give it as large a presence in the testimony as possible. “But always short, concrete, non-negotiable, non-argumentative, non-judgmental questions,” says Gold.
The biggest mistake that lawyers make with a hostile, indifferent, or unhelpful witness is attempting to score all their points with a single punch, says Frank Addario, president of the Criminal Lawyers’ Association. “That inevitably leads to the witness rejecting part of your premise or all of your premise.”
Addario’s method is to first locate the common ground. When approaching more controversial topics, he reduces his questions to bite-sized pieces of information the witness is obliged to agree with, so he can incrementally lead them into accepting his premise.
But with a perfectly hostile witness, it’s necessary to first educate him or her about who is in control, says Addario.
“If you can train the witness to understand the importance of agreeing with you - to avoid embarrassment or otherwise - in advance of confronting them with the most difficult questions, then you’ve trained the witness to respond in a way that’s favourable to you,” he says.
Do whatever it takes to show you have complete mastery of the facts and to persuade the witness that agreeing with you is the path of least resistance, he says.
This may be accomplished by pointing out prior inconsistent statements, demonstrating a superior knowledge of the context, or pointing out illogic in an unrelated piece of evidence, says Addario.
However, you can’t use these and other tactics if you haven’t done your homework. “The most important thing is preparation,” says defence lawyer Peter C. West of Cooper Sandler & West.
He ensures sure he has transcripts of all prior statements a witness has given on all the important issues he identified in the case. Along with giving statements to police and Crown attorneys, the witness may have testified at the preliminary inquiry, in unrelated proceedings, or at the first trial if it’s a retrial.
By bringing applications to the court, you can also access previous statements given to third parties, such as medical staff or therapists, he says, and those statements may contradict what the witness is now telling police.
Once West has all the transcripts (he has assistants or agencies transcribe any police statements given to him on DVD), he looks at everything the witness has said on all of the important issues and charts out the inconsistencies.
“Knowing where each of those references are within each of those statements, what page, what line, is very important to effectively cross-examine,” he says.
Next, he compares what the witness has said with statements from other witnesses, and with other types of evidence that might support his client’s version of events, such as forensic evidence, or even little bits of documentary evidence like letters or telephone records.
If you find a gold mine of contradictions, pick and choose what you use during the cross-examination, he says. Use too much, and it might backfire by causing the judge or jury to feel sorry for the under-fire witness.
“So you’ve got to look at what your most important issues are, and the most important discrepancies and inconsistencies and hammer those home,” says West.
The whole idea behind the cross-examination is not to ask questions when you don’t know the answers, and to try to control the witness by asking only leading questions, says West. But there are times where you can ask open-ended questions because you’ve got evidence that will later show the witness is lying no matter what they say now, says West.
Sometimes it doesn’t matter if an unruly witness ignores your questions. A good judge or jury will see that the witness is not responding and has an agenda. “That will affect the witnesses’ credibility as well,” he says.
Depending on your experience and timing, you can sometimes drive this point home by asking the witness if he or she even remembers your original question.
Often, the witness asks you to repeat your question, and ends up giving a simple “yes” or “no” answer that completely contradicts their long-winded speech, says West.
How far you go to dig up dirt on a witness will depend on how important the witness is, he says.
The internet alone has become an incredible source of information for defence lawyers, and you can find out all kinds of things about people just by doing a web search of their names, he says. “I think many counsel don’t even go that first step,” says West.
Sometimes, you’ll need to hire someone to dig much deeper. In one of his cases, the Crown called a seemingly impressive pathologist who described himself as the former chief medical examiner of New York City. After further investigation, West found out he had been fired from this job, and had been sued for wrongful dismissal.
“He was a forensic pathologist who was found to be negligent in the manner in which he was doing autopsies in homicides,” says West. “It really affected his credibility.”