Thursday 29 May 2014

Amazing Tips for cross examination of witness

I was in the middle of trial and the other side’s expert witness took the stand. Under oath and while looking over at the Judge,he stretched the truth and in some cases, even made things up. He was being paid Rs.10,000/ for his testimony and had 10,000 reasons to say what he did.
In court, the persuasive power and overall effectiveness of a witness rest with how the judge perceives his character and credibility. If one or both of these qualities are lacking and, if you can point this out to a judge, then it really doesn’t matter what comes out of his mouth.
When it’s time to sound the alarm about someone’s lack of character or credibility, here are three ways to get the job done.

Use Bias, Prejudice and Corruption

I do my due diligence and research the other side’s expert witness before trial. Most of the time I’ll take his deposition and ask the usual who, what, when, where, why and how questions. I find out how many times he’s testified in the past and who hired him. I also find out how much he was paid for his past testimony. I try and leave no stone unturned.
When it is my turn to cross-examine this paid witness, I rarely battle the witness regarding his expert opinion. Instead, I usually focus my cross-examination on issues surrounding his character and credibility. We talk about the fact that he is nothing more than a “hired gun” and testifies all the time as an expert witness for defendants.
For example, while being polite and respectful, I ask questions of the expert disclosing the fact that 90% of his testimony always happens to be for the defendant corporations who apparently have him on their short list of “go to” experts. In fact, I show my judge  that this particular defendant has hired this expert 7 times over the past 8 years. I also have him admit to the fact that 97% of his annual income of Rs1.5 million  comes from law firms and insurance companies who pay handsomely for him to help them defend these types of cases.
When I take this approach, Judge quickly picks up on what is really going on. They appreciate the fact that this knucklehead is nothing more than a very smart and highly educated (although misguided) expert who will say whatever he’s paid to say. They understand the witness lacks character or credibility and not much weight should be given to his testimony.

In many instances, online research is all you really need. However, sometimes hiring a private research consultant or private investigator is money well spent. Even after almost 3 decades of using these types of services, it amazes me how much useful information they can dig up on a person or company.

Use Prior Inconsistent Statements

Another tool I like to use in court are prior inconsistent statements. If for example, a witness testifies to something different than what he said earlier in the case and before trial, I often times highlight this fact and share it with Judge. I usually only do this if the prior inconsistent statement is important.
For example, at the scene of a traffic collision a witness may have told the investigating police officer he didn’t know what color the light was at the time he entered the intersection. During trial, if this same witness testifies that he had a green light, I will then show him his earlier inconsistent statement in the police report.
I’ll ask him if his memory was better a year ago when he made this statement to the investigating police officer or today, in court, in front of judge. I may even call the police officer to the stand to testify to what this witness told him 15 minutes after the collision regarding the color of the light.
If the prior statement relates to an important material fact, judges feel like they’re being played when a witness, especially a party or paid expert, offers such conflicting testimony.

Keep in mind that I’m not suggesting that you gossip or bad mouth about other party. That’s never a good idea. What I am recommending is to hold other party accountable for his prior inconsistent statements.Be tactful and professional when doing this and the information will be favorably received.

Use Prior Bad Acts

If a witness has been convicted of a crime or participated in other prior bad acts, I usually incorporate these facts into my cross-examination. I want Judge to know who is really sitting up on the witness stand.
Having said that, we all make mistakes and we live in a country that loves an underdog and often times gives people a second chance. When I use this technique, I’m not talking about exposing the little bumps in the road of life. What I am referring to are things like a witness being sanctioned by the court for prior false testimony or witnesses being found guilty of a felony.
The key to successfully using these weapons is be honest and tactful when bringing them up. Regardless of which of the three methods I use, what I have found helpful is to introduce this information to my judge in a slow, methodical and professional way.
Depending on the facts and particular witness, I usually take my time and introduce the character and credibility issues only after discussing other aspects of the case. This gives the witness more than enough time to bring up any problems on his own and without me having to ask him. When the witness fails to disclose these issues, and they usually do, then I have a duty to show judge that the witness is evasive and withholding important information.
By using this approach I avoid coming across like a bully. Instead, I am simply a seeker of full disclosure and the truth. I share important facts with judge that the witness refused to do on his own. And that’s really the key part of this approach. You want to be the person guiding everyone to the truth.

Without exception, judges appreciate it when I show them the truth using these techniques.
But remember one thing. Highlighting someone’s character and credibility is often a two-way street. It is never a good idea to start throwing stones if you live in a glass house. Make sure to understand and appreciate all the facts before picking up and tossing the first rock.

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