In a courtroom, usually, after the attorneys finish their opening statements, in which they tell the jurors what the evidence will prove, then the staging of the evidence starts. The presentation of evidence is mainly done by calling witnesses to testify on client’s behalf. The party calling the witnesses gets the chance to do what is called direct examination or examination in chief. Direct examination is the “initial questioning of a witness by the party that called the witness. Direct examination consists of questions asked in a direct form, that is, a form which does not suggest the answer, such as “Where were you on July 18th?” Direct examination is conducted of witnesses who are friendly to the questioner.” The main aim of direct examination is to elicit evidence favorable to the party that called the witness testifying.
After the direct examination, the opposing party then gets a chance to ask the witness questions in cross-examination. Cross-examination is “the opportunity to question any witness, including your opponent, who testifies against you on direct examination.” Cross-examination serves the purpose “to try to show how that witness’s testimony should not be given the authority for which it was elicited. Television is a wonderful medium for showing how cross-examination is used to discredit, weaken, impeach, and undermine testimony, but a good attorney will also often use this time to simultaneously curry favorable opinions from the witness toward that attorney’s client’s position.” Terance Moran in his book says that “cross examination is to test the truth and accuracy of the matter being asserted by the witness. It may have as its aim a desire to show a witness as unreliable, biased, uncertain or simply not to be believed. A witness may be discredited, and at the very least cross-examination offers an opportunity to display to a court that the matters revealed in examination in chief are not accepted unchallenged, nor in all their particulars. This part of the proceedings has broad objectives. The cross examiner must put his case to the witness. That is, he must question on those points on which accounts diverge. Cross-examination may elicit extra, and to the defense, useful facts, and it may discredit the evidence previously given in examination in chief.” In a nutshell, it is in cross-examination that lawyers get a chance to discredit a witness. Here are some strategies that lawyers may use to discredit witnesses:
1. The use of leading questions- Witnesses are not at liberty to say whatever they want in court, neither can they ask questions. That is for the lawyers and the judge. Leading questions are excellent for discrediting witnesses because they do not allow the witness to qualify the answer. “Through the use of leading questions, which are questions that call for a “yes” or “No” response, attorneys can often use the opponent’s witness to limit issues, if not actually help their own case.” Some lawyers may start their direct questions with the famous line “I put it to you.” Whether “bullying and aggressive” or “slow and steady”, the aim of lawyers in cross-examination is always the same-to discredit the witness. Some witnesses are likely to get confused when asked leading questions. For example, it has been noted that, “Cross-examination lawyers ask witnesses with learning disabilities questions which are designed to discredit their testimony. This was the finding of a paper presented on Friday 14 April 2000, to The British Psychological Society’s Division of Clinical Psychology Conference by Dr Chris Hatton (Lancaster University), Dr Mark Kebbell (University of Birmingham) and Shane Johnson (Liverpool University). Although many people with learning disabilities can give accurate accounts of past events, the accuracy of their testimony is vulnerable to certain types of questions, such as yes/no and leading questions. ..Friendly lawyers were more likely to ask helpful types of questions, such as open questions. Hostile lawyers were more likely to ask unhelpful questions designed to confuse or discredit the witness, particularly yes/no questions (85 per cent of cross-examination questions), heavily leading questions (22 per cent) and questions with negatives (14 per cent).Hostile lawyers also asked more questions with several parts to them and questions about times and dates of events. These results show that cross-examination lawyers deliberately try to discredit witnesses with learning disabilities by using questioning strategies designed to produce inaccurate testimony.” The court must rely on true and accurate testimony. If a witness is unable to stand their ground in cross-examination, then may be their recollection of events is inaccurate.
2. By using the witness’s own testimony to discredit him or her. Gleason Leonard Archer states that, “a witness under cross-examination can be forced to discredit himself by his own testimony.” A witness can be questioned in cross-examination about what he said in evidence in chief, and end up giving a different version of events. However, “another effective method of discrediting a witness is by showing a conflict between his testimony in the present instance and other testimony or statements relative to the same matter which he has made at some previous time.” This strategy demands that a lawyer be very conversant with the witness’s statements. If the previous statements were made in a court, the lawyer can ask for the stenographer’s notes so as to confront the witness with the difference. If the lawyer is able to show the discrepancy, that discredits the witness.
3. By being nice to those witnesses likely to have the sympathy of the jury, and yet not abandoning the aim of discrediting the witness. Many lawyers gauge the likely reaction of the jury to the witnesses, and identify those witnesses the jury is likely to be sympathetic to. The aim is still to discredit these witnesses, but the lawyer may decide “not be harsh and indiscreet” in cross-examining such witnesses. Instead, the lawyer, in his quest to discredit the witness, will adopt a courteous attitude to the witness. Jurors might be sympathetic, for example, to the mother of a defendant in a murder case.
4. By fishing. Many times when lawyers cross-examine, they have a specific objective to achieve. However, “there is everything to gain and nothing to do loose “in asking questions in cross-examination without a specific objective. Lawyers study witnesses and then make the decision whether or not to take the rod and go fishing with a particular witness. “The honest witness will usually make his story more definite and convincing under cross-examination, while the dishonest witness speedily falls before the efforts of a skillful examiner.”
5.By not asking questions but instead making declarative statements to the witness. Some lawyers will confidently “(t)ell the witness the answer”, “not just suggest it.” Some witnesses may get confused when lawyers adopt this style of questioning. “Note that the declarative begins with a non-verb and never with the deadly leads: “how, why, when did, where did, explain to the jury, did [you, he, she or it], could [you, he, she, or it], have/has [you, he, she], etc.” Also note that the declarative method is a process of small questions building toward a goal. ..The best declaratives get a single “yes”. When “no” is the answer you want, “no” is okay, but the best form requires a “yes” response. As a matter of form, do not use the tired old tag-lines: “isn’t that true,” etc. On occasion, the tag may be needed to nudge a witness early in a cross examination when the witness does not yet understand that your declarative sentences require a response. Your voice inflection should generally do the trick, however.” In doing this, lawyers whose aim is to discredit the witness will be patient, establishing one fact at a time, and avoiding bombarding the witness with too many facts at the same time.
6. By avoiding asking the witness questions in the same order in which the witness gave his evidence in chief. Some lawyers may realize that asking questions in the same sequence the evidence was given helps the witness to maintain his story which might not be true. Instead, to effectively discredit a witness who is not telling the truth, some lawyers “reverse the order or jump from one topic to another in an unexpected sequence. A witness who is lying is unlikely to maintain his story under such onslaught.
7. By asking important questions in a casual manner. When the witness does not realize the significance of the questions, he or she might not see the need to tell a lie at that point. Some lawyers may be aggressive and domineering while cross-examining witnesses, but many have realized that they can gain a lot by being courteous to the witness and being less spectacular in their cross-examination. When the lawyer is more courteous, witnesses are put in a better mood to answer questions and are easily caught off guard. Gleason Leonard Archer says that jurors “instinctively take sides with the witness if the lawyer plays the part of a bully.’ A lawyer wanting a witness to make mistakes asks questions graciously, courteously and asks vital questions in an unconcerned manner. This way, the lawyer gains the sympathy of the jury, and when the witness makes a mistake the lawyer can then start being harsh.
8. By highlighting the witness’s known physical disabilities and mental issues. For example, if what the witness saw is central to the issues, the lawyer might try to ask questions that will establish that the witness has poor eye sight or poor memory.
9. By attacking the witness’s character by proving that the witness has a criminal record or is known for some other unbecoming or immoral behavior. The lawyer might also prove that the witness had grudge with the party against whom she or he is giving evidence. The witness might be telling the truth and nothing else but the truth, but once the lawyer introduces these issues, the witness’s testimony becomes tainted in the eyes of the jurors. Paul G Haskell gives a scenario of a witness who was telling the truth in a case, and where the lawyer’s client had actually admitted that he committed the crime. However, in cross-examination, the lawyer brought to light the fact that the witness had a string of convictions, that she had been taking alcohol that day and had a vicious disagreement with the defendant that evening. Haskell points out that “The lawyer’s conduct is proper; he is permitted to attempt to discredit the testimony of a witness he knows is telling the truth. A lawyer is permitted to advance the objectives of his client by all means within the law and the professional rules. …If the lawyer is not permitted to discredit the evidence of a truthful witness, the client is penalized for telling the lawyer the truth, because it is from that information that the lawyer learns that the testimony is truthful.” Also, consideration must be had to attorney-client privilege and confidentiality. Lawyers are not permitted to offer evidence that they know is false, but by cross-examining a witness so that he or she admits to previous criminal records and immoral behavior is not offering false evidence although it might discredit a truthful witness in the eyes of the jury.
10. By exploiting innocent mistakes of witnesses and the other side. For example, the time the offence took place is vital, especially because if the time given is wrong, the defendant might present an alibi. However, some victims of crimes might be so stunned and confused after the crime that they make a mistake as to when the crime occurred. If the crime occurred at 11.30 p.m. and the victim’s testimony is that the crime occurred at 9p.m, it would be perfectly proper for the lawyer to discredit the witness by introducing evidence that in fact the defendant was somewhere else at the time the crime is said to have occurred.
Witnesses are different, and this demands that the lawyer size up each witness and decide what strategy to use to discredit him or her. Each lawyer has his or her own strategies for discrediting witnesses. When the witness suffers a knock-out, the lawyer ensures that the witness does not recover by following up with other relentless questions. Other issues that beg for clarification are instantly brought up and questions so rapidly put to the witness “that by no feat of mental gymnastics can (the witness) tell anything but the truth.”
1. Insurance and risk management strategies for physicians and advisors by David Edward Marcinko
2. http://www.lectlaw.com/def/d051.htm
3. Legal competence in environmental health, by Terence Moran
4. Law office and court procedure, by Gleason Leonard Archer
5. Why lawyers behave as they do, by Paul G. Haskell