Although I was in a jury pool recently that belied this (the judge blithely asked if anyone had a problem with a 56 day trial, in an employment discrimination/wrongful discharge case), many judges are increasingly jealous of their time/docket and will intervene themselves. You will sometimes see the following sequence:
[Cross-examiner] [Meandering, badgering, tangential speechifying goes on for awhile, with well-prepared witness deflecting the bait]
[Judge] Mr. [counsel for witness], I don’t mean to run your case for you, but I have to say I’m surprised you’re not objecting to what seems to me frankly to be some pretty irrelevant questioning and argumentative phrasing by your opponent.
[Counsel for witness] Your Honor, my apologies, I don’t disagree at all, but I felt that my witness had been making that same point pretty clear in his answers.
As a prosecutor I was once in a bench trial. My key witness was a doctor who really knew his stuff and was very calm on the stand. Since it was a bench trial (just the judge, no jury) I wasn’t too worried about making objections and I let several questions on cross go by that, I thought, just made the doctor look good and defense counsel look bad. Finally he asked a question that was just too much, and I said, “Objection!”
The judge looked over her glasses at me and said acidly, “Nice to hear from you, Mr. [EH]!”
I witnessed the same thing during an internship. The issue was mental incapacity during 2004, and the lawyer was asking about a party that took place in 1996 - trying to establish his client was sane then.
Counsel: What type of party was this?
Judge: When was this party? 1996? Do you think I care? Keep your questions on point and relevant Counsel. Counsel (turning to opposing counsel) I will entertain objections on relevancy if you wish to make them.
I knew a detective once who stared at the lawyer after being asked a stupid question, then asked, completely deadpan, “Are you serious?” When the lawyer spluttered that he was, in fact, serious, the detective rolled his eyes just a little bit, just enough, and then turned to the jury and answered the question. It was a thing of beauty to behold.
So, can you defeat this badgering by simply answering “yes” or “no”?
The lawyer is trying to confuse you into making contradictory statements. If you simply answer yes or no, are you depriving him of ammunition?
For example, the lawyers starts out by asking you simple questions…to which he hopes you will answer in detail. He will then change those questions slightly, and try to get you to answer differently-in this way, he hopes to paint you as a liar.
So, would the best startegy be to take a lot of time, and comeback with a yes or no?
Actually in cross you have to control the witness to a large extent and you tailor you questions to be at most yes or no answers.
It will go something like this.
Counsel: The claim was made to you by your senior
Witness: yes
Counsel: It was verbal no; memo of it survives
Witness: yes
Counsel: It was told to you only once
Witness: yes
Counsel: In the middle of an hour long meeting with other things on the agenda
Witness: yes
Counsel: you spoke on it for only a few moments
Witness: yes
Counsel:You cannot then thus fully recall what was said
Witness: No, I can recall.
Note the last answer in this exchange does not matter, of course he is going to assert that he can recall fully, but the earlier part of the exchange has cast doubt upon his memory and its reliability in the circumstances.
On the other hand if Counsel had said
Counsel: It was a claim made to you only by your senior during the course of a long meeting on multiple issues and no written record exists, you cannot say you recall it properly
Witness: I recall it pefectly.
The witness is in the later instance much much more persuasive. Note the same issues were raised in this as in the earlier exchange but their impact has been lost, the trier of fact will remember that the witness denied he could not remember fully, he will be less persuaded by the earlier facts. Furthermore not only has the witness story not been impeached it has actually been strenghtened by the fact that the witness faced cross examination and maintained the story.
As mentioned, he is not looking for a detailed, contextual answer – he is looking for a yes or no answer to a rigged, loaded question.
The witness’s recourse in that instance is to refuse to play ball, politely, if the question really is unintelligible/loaded/unfair:
“I’m sorry, I don’t understand that question. Can you repeat it?”
“Now that was a pretty long question. I’m not sure I followed all of it.”
“I think there are a couple of statements or questions in what you just said. Which one of them do you want me to answer, please?”
“No, that’s not what I said at all.”
“No, I don’t have any difficulty recalling, because it was the first time I’d received such a request during a weekly meeting and it stuck out at the time.”
If a lawyer starts making bullying or speechifying (mainly, long) statements/questions, opposing counsel in many/most cases won’t have to do much more than, with a show of reluctance, get up to his feet and, when the judge catches his eye, say “Your Honor . . . I’m sorry . . . I’ve tried not to interrupt my opponent but . . .” and many judges will take it from there (either cutting off the questioning or putting examining counsel’s feet to the fire as to why he’s dragging on for so long). N.B. that jurors generally do not really want to be there, do not enjoy theatrics, do not reward lawyers/clients whom they see as making them stay there longer, and all else being equal tend to hold it against a lawyer (his client) each time the judge sustains an objection against him. N.B. too that in the exchange above, opposing counsel gets points (a) because the Judge (hopefully) agreed with him (b) because he had “tried to be a nice guy” by letting the dumb questioning go on for awhile.
Only ever had anything like that happen once, but it was a sweet moment when it did! Now I feel like a crackhead chasing that rush forever, but it never comes…
I had a guy facing assault after beating another guy senseless with a piece of lumber. A quick bargain is reached - there was provocation, my guy got hurt too, not clear who started it, victim was no angel… plead to simple assault and get time served. All my guy has to do is allocute.
In holding, he was all for this deal. Now in open court he won’t admit to doing anything wrong. He keeps saying, “He hit me first!”
I’m very new, sweating because the allocution isn’t going smoothly, and keep whispering to him, “You have to admit the acts! You have to admit the acts!”
Finally client turns to me and says, for all the world to hear, “Wasn’t no axe! It was a 2 by 4!”