In a case where I was called as a witness, I sat mute after a very long, very poorly worded question. The attorney (who was also the plaintiff:rolleyes:) asked the judge to direct me to answer. The judge told me to answer. I said, “that was a lousy question”. The judge then asked for the question to be read back, after which he agreed and warned the attorney/plaintiff to move on.
IIRc the purpose of cross examination is to clarify what the witness responded to the other lawyer. I recall some discussion once about the introduction of evidence…
If for example, the prosecution does not want to talk about some critical element (best not mention the defendant’s fake resume) then if the resume is not mentioned in the prosecution questions and answers, then the defence cannot ask the prosecution witnesses about it. They can only clarify with questions what the other side has already asked. OTOH, if the witness runs off at the mouth and mentions the word “resume” for example, then the lawyer can follow up with “what did you mean?” questions.
Perhaps what you are thinking of is the “Hostile Witness” scenario that comes up often in fiction. Joe does not want to discuss what is buddy Fred did. “Tell us what happened” gets a very short simple and uninformative reply. The lawyer asks the judge for permission to treat as hostile, so he can ask more leading “yes” or “no” answers. “Did you go into the abr with Fred that night?” “Did he fire a gun?” “Was it aimed toward Sam?” Generally you don’t want the lawyer to be spoonfeeding the answers to the witness withs uch leading questions, unless the witness won’t tell his version by himself.
Not sure if this is a real courtroom situation or more Hollywood fluff…
Here’s a scenario I’ve often wondered about:
Attorney: Could such a thing have happened?
Expert: It is almost impossible.
Attorney: Please answer with a yes or no. Could it have happened?
Expert: It is extremely unlikely. The odds are a gazillion to one. I’ve never seen such a thing occur.
Attorney: But it’s not impossible?
Expert (to the judge): Your honor, I think I’ve answered his question. How can I phrase it to make sure that later on he doesn’t make it sound like I’m conceding that it was a reasonable possibility?
Or have I been watching too much TV?
You recall correctly. That is right. Generally, cross is “limited to the scope of the direct examination.” Now, there are exceptions, or maybe better to say “nuances” to this principle. For example, you are always allowed to bring in evidence that would tend to undermine the witness’s credibility or motive: “Mr. Smith, you were convicted of perjury last year, weren’t you?” or “Mr. Smith, if what you are saying is true, then you would stand to inherit a great deal of money, isn’t that right?”
Now, in your hypothetical, I would add the words “on cross examination” as above. The defense can decide to call the witness themselves and ask questions on direct. If the individual was not on their witness list [which you submit before the trial starts] then they might need to seek leave of court to do so. And, in fact, the court might, but might not, just say, look, for convenience the defense can do cross-examination and direct of this witness at one time.
Once again you are 99% correct, but I would add one minor qualification. In fact, it comes up all the time that an attorney will ask permission to treat a witness as a hostile witness. IOW this is absolutely a real courtroom situation and not just Hollywood fluff.
The qualification I would add though is that the significance of treating a witness as a hostile witness is not, strictly speaking, that you get to ask “yes or no” questions, but that you get to ask leading questions. A leading question, often (maybe always? I’d have to think about whether I can dream up a contrary hypothetical) is framed as a yes or no question. But the essence of a leading question is that it suggests the answer:
So rather than,
- “did you go into the bar with Fred that night?”
- “did he fire a gun?” and
- “was it aimed at Sam?”
the questions, when directed to a hostile witness, would more likely be phrased as - “You went into the bar with Fred that night, didn’t you?”
- “And while you were with him in the bar that night, you saw him fire a gun, isn’t that right?”
- “And when he fired that gun, he was aiming at Sam, wasn’t he?”
I’d be inclined to say something like “To the best of my knowledge, such a thing has never happened and never could happen.”
Well, this kind of questioning comes up all the time. Generally an expert would not be well advised to make that kind of statement to the judge. For one thing, the judge is likely just to direct you to answer the question.
is it possible?
answer: yes.
The problem is that, to the jury watching all this, it kind of looks like you are squirming around, and being evasive. BUT THAT’S NOT FAIR, you say. The lawyer is playing word games!
he asked you if it’s possible. If the answer is, yes, it’s possible but extremely unlikely, then in most cases it’s best for you just to say
“It could have happened but it is extremely unlikely.”
If the lawyer presses the point by asking “but it’s not impossible” the witnesses could say something like “It’s hard for me to say that anything is literally impossible, so in that sense it is not impossible. Again, it would be highly unlikely.”
Now, if he demands a yes or no answer, then the opposing lawyer is almost certain to object “asked and answered.” If the judge directs you to answer, then you say “no, it is not impossible.”
What about the part where you feel that you were buffaloed into conceding something? Well, that is the purpose of the redirect. The lawyer representing your side will stand up and ask you questions along the following lines
Attorney: Mr. Smith, when Mr. Jones asked you if it was impossible, you said, no it was not impossible is that right?
Expert: Correct, that’s what I said.
Attorney: So does that mean it’s likely?
Expert: not at all.
Attorney: In your 20 year career investigating these kinds of accidents, in which you have investigated 1000s of accidents, have you EVER seen this occur?
Expert: no.
Attorney: Have you ever heard of an event like this ever occurring any where in the world?
Expert: no.
thanks!
bah…double post. See below.
Varies by jurisdiction. In my state, pretty much anything is fair game on cross-examination. Doesn’t matter if the witness “opened the door” or not, as long as the question is relevant to the case at bar. Most state judges allow pretty rough and tumble tactics on cross. Re-direct is supposed to be limited to matters covered on cross examination–but local judges tend to be fairly generous there, too…especially in bench trials, which most of mine are.
For the OP, most cross examiners prefer you only answer yes or no, and an artful cross examination will feature questions designed to encourage that sort of response. However, in my state, the witness always has the right to explain the answer. IE, “Yes, because…” or “No, because…” is a valid response.
In post 26 constantine states the probable action in a trial. As an expert witness I’ve been on the stand a number of times. The attorney representing my client was well aware of my limitations in providing a full answer under some questioning methods.
On cross my attorney would provide me with the opportunity to remove the bias caused by the opposing attorney’s methods.
I still don’t see how it is remotely moral or ethical for a person to try to trick someone into saying something that is misleading. It’s flat out trying to deceive someone. It seems to me that being a lawyer actually requires you to be unethical. And this is the reason they have such a bad reputation.
I know for sure that I will never extend the social custom of taking someone at their word to a trial lawyer. Their profession itself encourages being deceptive.
Clearly I am biased because I’m a lawyer (although not actually a trial lawyer). But I would say that I don’t quite follow your characterization.
A few points:
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Our system is based on the idea that the best way to get at the truth is to have each side present it’s own best case. What one side perceives as “trying to deceive someone” the other side perceives as trying to get a straight answer to a question. So each side emphasizes the facts that fit with its story of what happened.
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Frequently, imho anyway, it’s the witness, not the attorney, who is doing the deceiving, and muddying the waters by refusing to give a simple answer to a simple question.
Attorney: were you there on night of the party where the fight took place?
Witness: well, I heard from everybody what happened, so I know what happened.
Attorney: were you there that night?
Witness: like I said, everyone told me what happened, and I believe them, and also my sister would never lie to me.
Attorney: [exasperated] WERE YOU THERE THAT NIGHT?
Witness: No.
Frequently the witness, perhaps sincerely, perhaps not, believes that the “simple” answer to the question is “misleading” because, see, there’s so much more to the story, and it’s really complicated. Frequently this just self serving malarkey, and the witness just does not want to give a simple answer to a simple question because he knows that the simple answer will make him look bad, and appropriately so.
And again, don’t forget that the other side gets to ask questions of the witness too. The other party’s attorney gets to ask questions and let the witness tell his side of the story.
Forget about the law, and the courtroom for a minute. How many times have you been in a situation where you were asking a straight question and somebody just wouldn’t give you a straight answer? they wanted to give you a long explanation since, without that, the simple answer would be “misleading”.
And remember that there can be, almost certainly will be, honest differences of opinion about which parts of the story matter. And the purpose of examining witnesses is to give each side the chance to present the facts that they believe support their story.