Saturday, 8 June 2013

Excellent Tips for cross examination of witnesses

The prior inconsistent statement.  Most cross-examiners love prior inconsistent statements.  If you were to create a "top ten" list of methods for impeaching witnesses, prior inconsistent statements would rank near the top.  If you've ever caught a witness in a genuine inconsistency ("Today you testified that the light was green, but in your deposition, you testified the light was red..."), you understand how effective the impeachment can be.  But be careful.
Not all prior inconsistent statements are created equal. 

Unfortunately, many trial lawyers don't understand that.  They treat every prior inconsistent statement as if the witness was admitting to perjury.  You've seen these lawyers in court, screaming "Were you lying then, or are you lying now?!?" while attacking the witness for a trivial inconsistency.
But not you.  You know better.  You recognize which inconsistencies are major and need to be highlighted or paraded before the jury.  You recognize that other inconsistencies are minor, and know that it may be sufficient to mention them once before letting the issue go.  You also recognize that some inconsistencies are trifling or inconsequential, and you know to ignore them.  As a master cross-examiner, you need to recognize the difference, and know how to react.  To help, here are some important questions to ask yourself before you leap on the prior inconsistent statement:
Question #1:  "Is the witness doing his best to be honest?" 
Just because the witness makes a mistake, it doesn't mean he's lying to you.  In fact, many jurors believe that if a witness doesn't make any mistakes while testifying, his testimony might be too good to be true.  Every witness will make some mistakes while testifying.  Most of the mistakes are probably attributable to nervousness.  Jurors understand that.  They know that the courtroom is an intimidating place, because they felt nervous, too, when you questioned them during jury selection.  If the witness is mistaken, rather than lying, you may not want to press too hard on the inconsistency.
Question #2: "Is the inconsistency central to my case, or is it a tangential issue?" 
You probably know all the tricks about setting traps that force witnesses to admit to trifling inconsistencies, but should you use them?  When you harp on tangential inconsistencies, the jurors may think that you're nitpicking.  Jurors may think that you're over dramatizing the trivial inconsistencies because you don't have a real case.  After all, if you had areal case, you would focus on that, rather than the trivial tangential issues.  If the inconsistency isn't central to your case, it may not be worth mentioning.  (Of course, sometimes a tangential inconsistency can become a central issue in the case.  See also: the "N" word, O.J. Simpson trial, and Mark Fuhrman)
Question #3: "Is it a true inconsistency?" 
During direct examination, the witness testified that he arrived home at "5 o'clock."  However, he told the police officer he arrived home at "4:58 PM."  Is that a true inconsistency?  Use your common sense when evaluating the strength of inconsistent statements. 
Question #4: "Is it a minor inconsistency -- or is it just the tip of the iceberg?"
Don't automatically disregard minor inconsistencies.  It may not be a minor inconsistency -- it may be the tip of the iceberg.  You'll need to use your 6th sense to determine which it is.  If you think the inconsistency is just the tip of the iceberg, you'll probably appear to be "nitpicking" for awhile before you strike gold.  Keep an eye on your jury while you progress, so you can constantly re-evaluate how you're doing and determine if you should continue to press forward.
Prior inconsistent statements can be a devastating form of cross-examination, but that doesn't mean you should harp on every inconsistency.  Understanding the difference between important inconsistencies and trivial inconsistencies will set you apart from the other lawyers in your courthouse.  Evaluate each inconsistency by asking these four questions, and your next cross-examination will be a success.
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