Oct 09, 2013 Treating the runaway witness as firmly and mercilessly as a rabid dog
At trial, cross-examining a runaway police officer can be dangerous. Ask the officer whether the alleged criminal incident was recorded by audio and/or video, and s/he might reply: "Recording was not necessary, seeing that officer A saw the defendant sell cocaine to a pedestrian, officer B retrieved a stiletto from him, and officer C heard from a confidential informant that the defendant ran a meth factory."
Had the testifying cop expelled such damagingly inadmissible hearsay on direct examination, a good criminal defense lawyer would have immediately objected, and gotten the judge to sustain the objection. When cross-examining a runaway witness, though, the effective criminal defense lawyer knows not only that s/he might sound silly in front of the jury rendering an objection to an answer — even if not responsive — that follows the defense lawyer’s question, but is now warned of landmines to come from that witness.
I have long wondered whether a rogue after-hours chapter — if not a more official one — in training police to testify includes teaching them to give the defense runaway damaging cross examination answers. If not, being humans, police talk with their colleagues, compare notes, and collaborate. Today, they also have email listservs. If anyone believes that no police officers suggest that their colleagues give runaway cross examination answers on the witness stand, I have a crumbling bridge in Brooklyn to sell you, complete with rancid milk laced with moldy prune juice that spilled out of the last truck that was foolish enough to attempt to cross it.
Runaway cross examination testifying is not limited to police, of course. And the more people have to hide, and the more lies they feel need covering like snow covering footprints, they will talk and talk and talk, terrified that their silence may bring the opposing lawyer’s killer question.
How to deal with runaway cross-examined witnesses? Volumes can be written in response, seeing that the solution depends on the particulars at hand. Whereas a poisonous insect can be neutralized by caging it in a glass, a ferocious dog’s fangs may only be able to be neutralized by shoving one’s fist in the dog’s mouth to dislocated its jaw. I speak proverbially, but insist that runaway cross examined witnesses must be seen as no less dangerous than the most venomous of snakes and the most rabid of pitbulls. Disagree with me at your own peril.
In any event, at least the following basic considerations and approaches are involved in neutralizing a runaway witness and finally gaining advantage for one’s case with such a witness:
– Be careful about seeking the judge’s help with the runaway witness, particularly in front of the jury, lest you be seen as giving away your power and having the witness feel all the freer to try to throw sand in your face.
– Moderate how quickly — if at all — or forcefully you proverbially grab the runaway witness by the groin and threaten to squeeze, but leave that as an option to neutralize and reverse the damage from such a witness, and smile (kindly, not with an evil grimace) while doing it
– Have no more mercy for the runaway cross-examined witness than you would for someone about to slam a brick over your head. We can have compassion for an assailant as a human being without losing sight not to let that compassion translate itself into bending over with a "kick me" sign on our buttocks. If you are hesitant to take the foregoing approach, get out of the trial law business, because you will be disserving your client if you hesitate or decline to pounce when needed.
– Make an effort to crawl under the hide of the runaway witness to figure out what makes the witness tick, and use compassion as a weapon to deflate the runaway behavior. In the process, be in control of your own emotions at all times. If the judge or jury sees anger, condescension, stress or frustration in the cross examining lawyer, the cross examiner is approaching failure. The cross examiner can at all times maintain his or her own compassion and human love without sacrificing even one gram of persuasive power, and benefit in the eyes of the judge and jury for doing so.
– Be aware that being in the cross-examination witness box can be as terrifying for witnesses as a rat thrown in a boa’s cage, knowing the rat is there for no other reason than to be strangled and then eaten, slowly. Most people are uncomfortable being direct-examined, because most people want to avoid any public speaking like the plague. Cross examination only terrifies them more, particularly because they cannot leave the witness stand automatically to get a snack or toilet break to try to collect themselves.
– Plenty of police probably feel like fish completely out of water when cross examined. A police officer being cross examined might feel s/he has little power beyond his or her words — thus explaining the penchant of so many police to give runaway cross examining answers — which is a stark contrast to the enormous power, and real risk of abuse of power,that the cop has on the street and in the dark corners of police stations and alleyways with a gun, fist, taser, jackboot, billyclub. mace, pepper spray, handcuffs, badge, power of arrest, power to detain, and power to ruin suspects’ lives.
– The great Denver trial lawyer and teacher Larry Pozner has aptly analogized effective cross examination — even of a runaway witness — as offering the opposing witness to sit on a new thumbtack with each question. Sitting on the thumbtack is uncomfortable, but less uncomfortable than the witness’s being punished with multiple questions to get a direct answer to the one question that could have been answered with one simple answer. Watch out, of course, for the judge who steps in and says for the punishing cross-examiner to move it along, but even the least understanding and least fair judge will get impatient with the witness who repeatedly slows things down by evading even the most simple of questions.
– I have been on the witness stand, cross examined in my law school trial advocacy class and at the Trial Lawyers College. I have seen that when I have resisted being led down the primrose path by the cross examining lawyer — whether or not that was the lawyer’s intent — with my resistance going to the lawyer’s favor, rather than my simply answering the damn question. If the runaway witness is not giving harmful answers, the cross examiner may want to simply have the runaway behavior highlighted and speak for itself as not reliable or as an effort to hide skeletons in the runaway witness’s closet.
When cross examining a runaway witness, the lawyer must never stop applying the power of compassion and internal martial arts softness (which should not be confused with being collapsed), while at the same time going in the ring with a karate black belt and not a novice’s yellow belt.