Bartell's Top 10 Tools for Controlling Witnesses: Part 2
Adapted from Attacking and Defending Drunk Driving Tests by Don Bartell
When cross-examining the state’s witnesses, obstreperous answers become the norm. So, you should arm yourself with tools to combat the recalcitrant witness – be it the state’s expert or the arresting officer. If you anticipate the fact that during trial you will be cross-examining obstinate witnesses, you will be better prepared to address these predictable battles when they occur.
Below, as promised in my earlier blog post, are the second five of my 10 favorite tools for controlling prosecution witnesses.
If there is any guiding principle in deciding which tool to use perhaps it is this: With lots of exceptions, it is generally sounder not to be too confrontational when you first start exercising your client’s Sixth Amendment right to confrontation. It is better to let a witness first earn harsher treatment. Prior to commencing an attack, you should have the sense that the jury is welcoming an attack on the witness. In this manner the jury is rooting for you, instead of the witness.
6. Ask the Court Reporter to Read Back the Question
If the witness does not answer the question, you can ask the reporter to read back the question. The court reporter is one of the courtroom officials. Having the reporter read back your question gives the question a certain imprimatur. Witnesses tend to be more reluctant to sidestep questions presented to them from officialdom. The following is an example of how the technique might be employed:
Question: “Gas chromatography is not specific for alcohol?”
Answer: “It is very accurate for alcohol. Chromatography is used by labs all over the country
to measure alcohol. It has been time tested for many years. The state
also approves its use. We check the device against known alcohol controls
twice in each run. I don’t think the state would be letting us use it if it wasn’t
accurate. I have never seen any problems.” [The lawyer is thinking, okay thanks for
that. Now maybe you can answer my question. Let’s see how that is done.]
Question: “Your honor could the court reporter please read back the question?”
Judge: “Yes. Please read back the question.”
Reporter: “Gas chromatography is not specific for alcohol?”
Question: “Please answer the question read back by the reporter.”
Answer: “Well technically it is not specific.” [A little help gets the question answered.]
Best Time to Use: The technique should be considered when the witness gives a long winded roundabout answer to your question. These types of answers (like the one in the above example) almost make a person forget the actual question. When this occurs it is a perfect opportunity to ask the judge to have the court reporter read back the question.
7. Put Your Hand Up Like a Stop Sign
One way to stop a runaway witness is to put your hand up like a stop sign to the witness. In this way you do not have to verbally interrupt the witness. Verbal interruptions may be considered rude by some jurors. Other jurors might think that you have something to hide. The stop sign technique is a very effective technique and easy to use. The following is an example of this technique. The example is based on the scenario in the previous example.
Question: “Gas chromatography is not specific for alcohol?”
Answer: “It is very accurate for alcohol. Chromatography is used by labs all over the country
to measure alcohol…. [THE DEFENSE ATTORNEY’S HAND GOES UP IN
THE FASHION OF A STOP SIGN – and yes the witness stops rambling.]
Question: “ I’m sorry; I was asking you if gas chromatography was specific for alcohol?”
Answer: “Well technically it is not specific.” [Looks like the witness knows the rules of the
road.]
Best Time to Use: The stop sign technique can be used at any time. It is best used on an intermittent basis. The reason for this is that when it is first employed, it has a certain shock value. The witness knows that the signal means the witness is to stop talking. If it is done too often, there is a risk that the witness may become immunized from the gesture. Since it will feel to the witness that you have interrupted him or her, your follow-up question should be prefaced with a brief apology. This preface to your question (as shown in the above example) makes it easier for the witness to now accede to your request to answer the question.
8. Address the Witness Formally
You may recall (hopefully with some fondness) the times when your parents called you by your full name. When this happened you likely knew that you had committed a grievance in the eyes of your folks. That lingering memory can be used in court to help control a reluctant witness. You can do this by prefacing your question with the full name of the witness, or by prefacing the question with “Sir” or “Ma’am”. The advantage of this technique is that it is simple and unobjectionable. Yet, in the subconscious mind of the witness, the witness knows from years gone by that he is being scolded for doing something wrong. See the resulting example:
Question: “Did Mr. Jones respond right away to your enforcement lights?”
Answer: “I didn’t pull him over because of the way he pulled over.” [Now there is a
confusing answer. You gotta love court.]
Question: “Did Mr. Jones respond right away to your enforcement lights?”
Answer: “There were plenty of places to easily pull over.”
Question: “SIR, did Mr. Jones respond right away to your enforcement lights?”
Answer: Yes.
Best Time to Use: The simplicity of this technique makes it readily available for use at any time during your cross-examination. It is one of the few techniques that can be used repeatedly without appearing to be offensive or repetitious.
9. Write the Question on the Chalkboard
Writing the question you want answered on a chalkboard or dry erase board is one of the more dramatic methods you can use to get a witness to answer a question. The starkness of the question on a chalkboard makes it difficult for a witness to escape answering the question.
Question: “Did you see him drive?”
Answer: “Well, it was his car. He had the keys on him and nobody else was around.”
Question: “I am asking you whether you actually saw him driving?
Answer: “Last time I checked, cars don’t drive themselves.”
[Approaching the writing board the lawyer writes the following on the board:]
Question: “DID YOU SEE HIM DRIVE?”
Answer: “No.”
Best Time to Use: Reserve this technique for critical questions and for witnesses who are particularly difficult. It is something that is generally used later in your cross-examination after other control methods have been attempted. The witness has earned this treatment. Be mindful of the fact that you usually want to use the technique with a short question. Shorter questions seem unavoidable to a witness when presented to them on a chalkboard. Longer questions provide for more wiggle room and the lawyer, of course, has to write the longer question out on the board. Keep it simple when using this tactic.
10. The Premeditated Poster
The premeditated poster is one of the most powerful witness control techniques available. It requires the lawyer to anticipate what question a witness will try to avoid. The way the technique is executed is to write down in advance a question that the lawyer feels the witness will try to sidestep. It is best to write the question down on one of those large drawing pads that fit on an easel, or to write the question on a poster. Either way, you want the question written down in big enough lettering so that everyone in the courtroom can see the question. If the lawyer’s hunch is correct, and the witness tries to avoid the planned question, the lawyer then unveils the poster and asks the witness to please answer the question. It is like the using the chalkboard technique with a crystal ball. The lawyer is in essence saying to the witness, “I knew you would try to avoid the question.”
Question: “Did you see him drive?”
Answer: “Well, it was his car. He had the keys on him and nobody else was around.”
Question: “I am asking you whether you saw actually saw him driving?
Answer: “Last time I checked, cars don’t drive themselves.”
[The lawyer brings the poster out. The poster says:]
Question: “DID YOU SEE HIM DRIVE?”
Answer: “No.”
Best Time to Use: This method can only be used once or twice, during a case. Otherwise, the lawyer may create an impression of being too cute. As such, it should be used only when a critical question is going to be asked and the lawyer expects the witness to give an answer that skirts the question. Save it for the home run.
About the Author
Donald Bartell is a partner in the law firm of Bartell & Hensel in Riverside, California. He has tried virtually every type of DUI case—from first offenses to homicides.
Mr. Bartell served as President of the California DUI Lawyers Association (CDLA), the oldest continuous DUI organization in America. He has represented CDLA as an Amicus Curia in cases involving DUI related issues in both the California Supreme Court and the United States Supreme Court. Mr. Bartell participated in the most extensive DUI jury research project ever done, a joint effort by CDLA and The National College for DUI Defense. He is a frequent lecturer on DUI trial tactics and the author of California DUI-related legislation.
Mr. Bartell is a Phi Beta Kappa graduate of the University of California Berkeley, and a graduate of the University of Notre Dame School of Law.
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