Robbins: Examining a witness
Sometimes, it’s like pulling teeth.
But along with documents, which, most times, have to be authenticated by a witness, witness testimony in a courtroom is the motherlode.
Generally speaking, witnesses come in three flavors: those friendly to the proposition you are advancing, those friendly to the other side, and those who are sort of in between — perhaps they are called by you, but they are nonetheless hostile to what it is that you are trying to prove. This last kind are referred to, logically, as “hostile witnesses.”
The way a trial goes is this: First the plaintiff (or, in the case of criminal matters, the prosecution) presents its case. Witnesses are called and “examined” by the plaintiff’s or prosecution’s attorney. “Examination” is pretty much a fancy way to say that the witness is asked a bunch of questions, the answers to which are given under oath and, if given falsely, subject to the penalty of perjury. More on this in just a sec.
When the plaintiff rests their case, sort of like in the bottom half of an inning in baseball, the defense comes up to bat and lays out its countervailing case.
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Usually, before either side comes up to bat, each side gives an “opening,” which consists of the attorneys for each side giving a sneak peek with a slant favorable to their respective sides, what the evidence will show. What the lawyers advocate, however, is not evidence; it is simply argument. As in the evidentiary part of the trial itself, it is the plaintiff/prosecution first, and then the defendant.
Similarly, after each side has presented its case, there are usually closing statements which are summaries by counsel as to what the evidence has shown and advising what should be decided by the judge or jury in disposition of the case. Plaintiff/prosecution first, and then the defense.
Before we get to the meat of the topic, we should touch on the kinds of questions that can be asked and of whom.
Speaking broadly, one cannot ask one’s own witnesses “leading” questions. A leading question suggests the answer. “Isn’t it true that the accident occurred at high speed?” “You found the body there, didn’t you?” And so on. Examples of the two foregoing questions in a more open, non-leading form might be, “How fast was the vehicle going when the accident occurred?” And, “Where did you find the body?”
When one examines one’s own witness (hostile witnesses being an exception), you may not suggest the answer.
However, after “direct” examination comes cross-examination, and then it’s “Katie bar the door!”
When you watch a flick or TV drama and an attorney is battering a poor, flummoxed witness, you can bet your bottom dollar that it’s on cross-exam. When opposing counsel gets to tear into the opposing side’s witnesses, leading questions are usually the main course on the menu.
But, hold on. All is not lost.
Usually, a lawyer calls a witness. Testimony is elicited. When the examination is concluded, opposing counsel gets to cross. But, let’s say opposing counsel scores some points, or at least succeeds in muddying the water. What the first attorney can now do is “redirect’ the witness. “When Mr. Attorney suggested whatever it was he said and you answered in the way you did, what did you mean by that?”
But wait, there’s more. After redirect may come recross. And then back and forth, so long as the judge will tolerate it, like a shuttle cock.
Often, a witness can be “recalled.” After their testimony is completed, and often after other witnesses have been called, a prior witness can again be called to the stand to clarify a certain point or two. Usually, but not always, once a witness has testified — unless it is one of the parties themselves — the witness is “sequestered” which means that they are excluded from the further proceedings before the court, at least in part if they are recalled, they are not influenced or persuaded by the testimony given by the other witnesses.
Only when the witness is “excused” is the whole shootin’ match over, at least as regards that witness.
Being a witness can be scary and intimidating. For most folks, the courtroom is as foreign an environment as Pandora. However, any good attorney will “prepare” his or her witnesses, much like a doc, explaining the procedure and allaying any fears. The lawyer will do his or her utmost to protect their witnesses from overly aggressive cross examination. And the judge will tap the breaks when necessary. If one goes with the flow, tells the truth and nothing but, and trusts the process, witnessing can be an elucidating and sometimes even a rewarding and inspiring experience.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
