Controlling Difficult Witnesses on Cross-Examination​

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• Cross-Examination Techniques: Part 1
• Cross-Examination Techniques: Part 2
• Cross-Examination Techniques: Part 3

Michael Waddington is a criminal defense lawyer, Cross-examination expert, best-selling author on cross-examination techniques, and a trial consultant that defends cases worldwide. Mr. Waddington specializes in defending serious criminal cases including sex crimes, war crimes, military sex crimes, violent crimes, and white-collar crimes.

Pattern Cross-Examination of Expert Witnesses

Cross-examining the prosecution’s forensic expert in a criminal trial may make the difference between victory and defeat. More and more aggressive prosecutors are relying on forensic psychiatrists, toxicologists, and other experts to help obtain convictions.

Some expert witnesses will do whatever it takes, including misapplying scientific research to bolster the prosecution’s case. For the sake of justice, defense lawyers must be able to cross-examine and nullify forensic experts effectively.

Cross-examination techniques – controlling difficult witnesses on cross-examination Infographic

9 Techniques for Controlling Difficult Witnesses on Cross-Examination:

• Technique 1: Repeat the question.
• Technique 2: Repeat twice and then reverse.
• Technique 3: So, your answer to my question (insert question) is “Yes/No?”
• Technique 4: True or false.
• Technique 5: Perhaps I did not make myself clear.
• Technique 6: Did you hear the question I asked? What was it? What is your answer to that question?
• Technique 7: There are lots of things you want to tell the jury?
• Technique 8: Does something prevent you from answering yes or no?
• Technique 9: Are you finished yet?

To maintain witness control, you must ask good questions and follow these rules:

1. 1. Prepare and have your impeachment resources available (prior statements, learned treatises, journal articles, etc.);
   2. Remain calm and unemotional;
   3. Do not answer questions posed to you by the expert (they are the ones testifying, not you);
   4. Ask only leading questions;
   5. Insert only one new fact per question;
   6. Break cross-examinations into logical progressions towards specific goals;
   7. Gain and maintain witness control;
   8. LISTEN to their answer. If they dodge the question, DO NOT MOVE ON or REPHRASE!;
   9. Do not back down until the witness answers the question you asked; and
   10. Potty train the witness.

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He also teaches lawyers across the USA how to effectively cross-examine hostile witnesses and win trials. He has taught thousands of lawyers how to deliver closing arguments, powerful opening statements, and

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His bestselling book, The Art of Trial Warfare, I a legal strategy guide that is used by trial lawyers across the USA and taught at various law schools as part of their trial advocacy curriculum.

Cross-examination techniques

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We wrote several textbooks with cross-examination techniques and cross-examination question examples for various fact patterns.
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• Pattern Cross-Examination for Sexual Assault Cases: A Trial Strategy & Resource Guide
• Pattern Cross-Examination Examples for DNA and Biological Evidence
• Pattern Cross-Examination Questions of Expert Witnesses.

These books are used by criminal defense lawyers across the United States. All feature cross-examination techniques, cross-examination questions, and cross-examination examples for criminal and civil lawyers.

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Trial Lawyers Notebook – Cross-Examination Techniques

Below is a transcript from the YouTube video Cross-Examination Techniques – Part 1: Controlling Difficult Witnesses on Cross-Examination

Controlling Difficult Witnesses on Cross

Learn by Keeping an Open Mind

You will learn how to control hostile or difficult witnesses on cross-examination.
Regardless of your skill level, putting aside what you think you know is essential.
There’s always more you can learn.

Keep an open mind as you learn these techniques. They may not be familiar to you – but they work!

These techniques are from my decades of experience and my perspective.

“It’s impossible to begin to learn that which one thinks one already knows” – from the Greek philosopher Epictetus almost 2,100 years ago.

I always try to keep that quote in mind when I go to different CLE classes and listen to other people teaching. Everyone has a different perspective. Everyone has a different experience in life.

We can always learn something new from other people, based on their backgrounds and experiences.

Learn from My 20 Years of Trial Experience

Since these techniques are based on my years of trial experience, you should know my background and how my teaching can benefit your practice.

I’m a practicing attorney licensed in four states. I’ve been practicing in courts for over 20 years, primarily in criminal defense.

I’ve tried and contested hundreds of cases. It’s what I do day in and day out.

So you can understand my perspective, look at the red dots on the map. You can see places where I’ve tried jury trials. Most overseas, including military courts, don’t have the federal court system. They do have American jurors and US Federal Rules of Evidence that apply in those courtrooms.

From my trial experiences, I’ve also written some of the best-selling books on cross-examination with my wife and law partner, Alexandra. We teach these techniques on cross-examination nationwide to law students and experienced lawyers of all levels. So now, let’s get down to business.

Cross-Examination is About Credibility

When you stand up to cross-examine someone, you are trying to reach a specific objective. If you can’t accomplish your objectives, which must be laid out in advance, you don’t cross-examine them.

And, if there’s nothing to be gained from a witness, don’t cross-examine them. Never cross-examine just for the sake of speaking, trying to look cool, or yelling at someone – which you should never do.

Don’t cross-examine someone just to show off to your client. Remember that many witnesses don’t need to be cross-examined at all.

Hostile Witnesses Want You to Lose

Hostile witnesses are trying to hurt your case.

They want you to lose, and they want to make you look stupid.

Hostile and difficult witnesses are generally people who favor the opposing party. They are police officers in a criminal case against a defendant. If you are the prosecution, they might be the family member of the accused in a criminal case if you’re the prosecution. They are the opposing spouse in a divorce case.

These are hostile witnesses – and they want you to fail.

Always Keep The Upper Hand in Credibility

Without credibility, you have nothing.

You have to have the upper hand in credibility with the judge or the jury. You do that by being disciplined on cross-examination, only cross-examining when necessary, and following key steps.

Being cross-examined can make people very anxious and nervous. Many people think they handle it well, but everyone is scared.

And, even if you know what you are doing, you will be a little nervous before the cross-examination because you know that the witness can make or break your case.

It would be best if you did whatever you can to maintain credibility when cross-examining. Supposedly, there are ten steps in rules that you must follow in cross-examination.

Put Aside the Ten Rules of Cross-Examination

We will cover those later. Most of what you’re taught about the ten rules of cross-examination, the ten commandments of cross-examination, don’t apply in the modern world.

Look Prepared and Have Your Impeachment Materials Ready

You do not want to show up in court and look unprepared.
Please do not start a cross-examine of a hostile witness without having their prior statements ready, indexed, and charted out. Have your cross-examination prepared.

I’m not saying to write down every word you will ask. But you should have the topics, the chapters, the main points you want to get out. Those should be ready to go.

And, you should have them cross-referenced with the prior inconsistent statements you think they may make or they’ve made in the past.

If you’re cross-examining an expert, ensure you have printed out the articles that contradict that expert and have them ready. You will want to show these to the jury to impeach the expert.

You Look Unprepared When You Are Fumbling

You don’t want to be fumbling through a folder and looking unprepared.

When you’re prepared, you look credible.

If you’re unprepared, you look like a buffoon. Remain calm and unemotional.

A lawyer who loses control emotionally is angry, scared, upset, and confused. Their brain emits chemicals like cortisol and jams up their thinking ability.

Your brain doesn’t work when it’s in this kind of overdrive. Let’s say the zombies are chasing you down the street. You’re trying to get into your car or house, and you can’t find the key. You only have two keys on the key chain but can’t figure it out. Then you can’t get the key in the door.

That’s because your brain is overloaded. This is a dumbed-down version of what happens in court if you fumble around while cross-examining a witness or if you’re unprepared.

Be prepared. Leave the emotions at the door.

Don’t Answer the Witness’s Questions

Suppose you’re questioning a witness and ask them,” Isn’t it true that you said x in your statement to the police?”

And they respond to you with questions like,” What do you mean, counsel? Did you not read my statement? I stated to the police six months ago. I’m sure you’ve read it, haven’t you?”

Do not get into a debate or discussion with the witness. You are the one asking questions. They are there to answer questions – not ask them!

Ignore their questions on cross-examination. They are trying to exert control over you. They are buying time.

Don’t take the bait.

Instead, you can engage in a dialogue with them. However, this is usually a bad idea unless you’re very skilled. If you are, sometimes you can flip those questions back on them.
For this, you need to be able to control the hostile witness without taking the bait. Ask only leading questions.

And, remember, a leading question puts the answer in the question. It isn’t a question like, “What color was the car you were driving?”

That’s not a leading question. That’s it more open-ended who, what, where, when, or why question to use in direct examination.

Control the Witness with Leading Questions

To control witnesses, you want to stick to leading questions that insert the answer into the question.

Examples are, “You are a man?” and, “You have a beard?”, When properly asked, these should be able to be answered with a yes or no.

Example:

• Q: “The car was red?”
• Q: “The red car was a Porsche?”
• Q: “The red Porsche passed you on I 95?”

Note, you should only insert one new factor in the question.

Why?

Because you don’t want your questions to be compound.

You don’t want to ask a question such as:

• Q: “When you were driving on I 95, a car sped by you at 95 miles an hour, it was a red Porsche, and the guy driving it was white and blond, and he looked like he was drunk. Isn’t that true?”

That’s like seven, eight, or nine questions in one, leaving room for speculation. And, there are some adverbs in there.

So you want to ask one new fact per question.
• Q: “You are a man?”
• Q: “You have a beard?”
• Q: “Your beard is gray?”

Don’t Use Adverbs

I see it all the time in legal television shows and movies. I also see lawyers do it all the time. Lawyers use too many adverbs.

For example:
Q: “Then the jumpy man quickly walked toward the car, got in, and sped away down the poorly lit street?”

You cannot control the witness with this question. The sentence may be accurate, but you don’t want to be quibbling with a witness over whether the man quickly walked or the street or whether the street was dimly lit?

Controlling Hostile Witnesses – The Chapter Method

So far, here are the basics:

• Stick to facts.
• Don’t use adjectives.
• Don’t use adverbs.
• Stick to one new fact per question.

This is all about controlling hostile witnesses, which we will get into later in these articles. But you have to have the basics down before first.

You want to break cross-examinations into logical progressions towards specific goals.
We call this the “Chapter Method”, pioneered by attorneys Larry Pozner and Roger Dodd which is still widely used.

You want each series of questions you asked to have a point.

For example, suppose you’re trying to establish that someone is hostile and friends with the accused.

In this case, that might be the chapter.

You are friends with the accused. You know, you are the accused roommate, have known him for ten years, lived with him, and you were the best man at his wedding..

That’s a generic example of a chapter.

The chapter would be you are friends with the accused. And then, you can argue bias.

Don’t Give Up Control to the Witness

Keep control and keep a calm demeanor.
.
This is very important.

You must listen to the answer to your question if it’s one new fact per question. You must be aware if it is a “yes or no” fact question you are asking and they do not give a yes or no.

You get many clues when they try to be evasive here. Where are they trying to go? What are they afraid of?

Ask the question. Listen to the answer.

You move on to the techniques if you don’t get the answer. Repeat the question. If they’re trying not to answer the question, that’s a red flag.

Now you know, “Hey, this witness doesn’t like this topic.” You need to go back and hammer them on that.

You can also riff off of that as you go for it further down. Listen and check a few questions they did not want to answer. Hone in on that later with additional questions once you get the witness under control.

Don’t do what I see on television and in court all the time. Lawyers will get an objection, and before they get a ruling, they say, ” It’s okay, Your Honor. I’ll move on.”

No. No. No. That is wrong. Do not do that.

When you get the objection, you want to make sure you know what the objection is and on or what rule of evidence.

And if it’s just a generic objection, I always say, “Your Honor, what role is the objecting under?”

Even if the judge sustains, you can say, “Your Honor, if I may, what rule of evidence were they objecting under?”

It puts them on notice that they will be called out if they try to use generic objections.

The sad fact is that most lawyers don’t know the rules of evidence when we call them out on it.

Always ask the rule of evidence they are objecting under, and then ask for the record to answer that objection.

The Jury Sees If You a Master of the Rules of Evidence

The jury sees how you answer objections and if you master the rules of evidence.

The judge also sees that you probably know the rules of evidence. You may know the rules of evidence better than the judge. Many judges are political appointees who were voted into office. They might not even be experienced criminal lawyers.

Knowing and showing your credibility is essential.
Know the rules of evidence, make them state their objections, and answer them.

When you do, the jury says, “Whoa, wait a minute. This, this lawyer over here, they know what they’re talking about. They’re throwing out rules of evidence and giving arguments back to the judge as to why that question was valid.”
Don’t rephrase. Don’t say move on. You asked a very good question. Stick with it.

For example
Q: “You were his roommate in college?”
Opposing Counsel: “Objection.”
You: “Okay, Your Honor. I’ll rephrase.” or “I’ll move on,” and then you move on, and you skip over the point.

Don’t do it. This is important. Don’t back down to the witness who answers the question. Don’t back down unless the judge tells you to move on.

And, if the judge tells you to move on, you also have to hold your ground without alienating the jury or the judge.

You have to tell the judge where you’re trying to go, which can also get the argument in front of the jury, so they know where you’re trying to go. It also puts the opponent in check.

So don’t just move on because the judge wants to go golfing at two o’clock in the afternoon.

You have a duty to your client. You must make your case.

You Have a Duty to Make the Record Potty Trained

To keep a dog from peeing all over the house, you potty train him to pee on the mat or in a specific area.

You have to do the same with your witnesses, particularly with expert witnesses and hostile witnesses. If they get out of line, you smack them that back down in line.

I’m not saying to actually spank your dog. I love my dog and don’t spank him. But that’s the idea of potty training.

You want to potty train the witness, so they answer the questions correctly, like the puppy staying on the mat and not be pushing their limits against you all the time.

Experts think they are big shots and will push against you all the time. Most of them have a lot of degrees, and they think they can push you around, especially if they think you don’t know what you’re doing.

You have to potty train them and rein them in.

Rein The Witness in Professionally

I like to be nice.

You do catch more flies with honey than with vinegar, which works well with juries and judges.

You want to be the reasonable person in the room, the reasonable lawyer, just trying to get the facts.

That’s what you want to do, and you want the judge and jury to see you doing it.

So, you have to potty train the witness without scolding the witness and looking like a jerk.

You want to be the person that’s firm but pleasant. You are the person seeking the truth?

One area of concern is when a witness doesn’t answer.

As an example, let’s say you ask a good question. It’s one fact. It’s something simple such as,
“After the attack, you returned to the attacker’s house?”, and then the witness just sits there and has a stare-down contest with you.

Don’t cave in if you’re the one asking the questions. Don’t say, “Oh, I’m sorry,” and then move on.

Don’t start rephrasing the question.

Make it very uncomfortable.

It will get very awkward and uncomfortable. The witness doe not want to answer. They want you to move on to another question. I’ve had cases where we sit there for a minute or more until the judge interrupts and says, “You’re going to have to answer the question.” The witness will just be squirming in the chair. It is a very awkward situation.

It’s not a bad situation if you’re the cross-examiner and you have credibility. But hold out, don’t just move on to the next question.

After maybe a minute or so, you can say, “Would you like me to repeat the question?” and see what they say.

And then repeat the question. But don’t just move on.

What Should You Do with a Crying Witness

There are a couple basic techniques for dealing with crying witnesses. One of the things that I like to do with crying witnesses is to stop. You have to know if they are crying and why they are crying.

Maybe you asked a question that they didn’t want to answer. Perhaps it’s not an emotional question, but they got caught in a lie.
Many times, when you catch a witness in a lie, they’ll start crying, they’ll get emotional, and they want to take a break. So it’s a way to kind of ask for a timeout while trying to make you look bad.

One thing you can do is just wait and let them cry it out. A lot of people will immediately ask for a break. I often don’t do that. I’ll wait and let the judge give them a second to compose themselves. I then continue in a nice, soft tone and build back up to where I was before.

But you don’t want to move on from the topic that makes them uncomfortable. I’m not saying you should try to make people cry. But sometimes, crying is just an attempt to evade the question when they’ve been pinned down. One technique is to wait, be silent, and slow things down.

There are several techniques you can use. But the bottom line is, don’t just move on and automatically give them the upper hand if they cry, especially if it is a manipulative cry.

And manipulative cries happen all the time. Whenever I’m cross-examining someone and they’re pinned down on a topic they don’t want to answer, they start bawling and get evasive with me. The topic often has nothing to do with the alleged crime and is usually an impeachment question that they don’t want to answer.

That’s when you know you have them on the ropes. And the jury doesn’t like to watch a crying witness either. But if it looks like they’re trying to use manipulative crying, you can always talk about that in your closing, as long as you have credibility with the jury taking on hostile witnesses.

And you want to do this nicely and professionally.
We don’t want to be pictured as this warrior slashing and attacking.
We want to be the nice lawyer. We want our slashing done nicely, so the opponent doesn’t even know they’ve been eviscerated.

Your Job is to Ask Questions and Get Answers – Not to Argue

I want to remind you of something Mark Twain said, “Never argue with stupid people.” They will drag you to their level and beat you with experience. That applies to everything in life, including politics and science and people who don’t believe in science. For example, you can’t argue with them. If they think the earth is flat, then they believe there’s flat. You’re not going to convince them otherwise.

The same thing is true with hostile witnesses.
Your job is to ask questions and get answers. You’re a paid interrogator performing a cross-examination.

Your job is to get facts out that help your case. Don’t ask for facts that don’t support your case. Don’t make points that don’t help your case.

You’re in the Super Bowl

Every case is like the Super Bowl. Your team is your client’s team.

Before you do anything, make sure you can drive the ball down the field at least five yards.

Before you
• Call a witness,
• Make an objection, or
• Say anything
make sure you will gain five yards.

If you are not going to gain yards, don’t do it.

If there is a high chance of a fumble, don’t do it.

When in Doubt – Don’t Do It – Stay in Control

If you have to debate whether to ask the question because the comeback may ruin your case – Don’t do it.

Sometimes you just need to rest.

Sometimes you just need to say, “I have no questions, Your Honor.”

Juries love it. Judges love it. Witnesses like it too. It makes you look like you’re in control.

You don’t have to cross-examine every witness. Many witnesses don’t have much to add. So you can ask him no questions or one, two, or three questions and then sit down.

I always say I don’t get paid by the word. And that’s true. I charge flat fees for my criminal cases.

Don’t keep talking for just the sake of talking.

Too many lawyers do that. They don’t know when to stop talking. And they talk ad nauseam.

And they don’t realize that the jury is thinking, “Dude, I just want to return to my family. I want to go watch the sports game. I want to go back to work. And you’re up here talking and talking, and you’re not making a point.”

So don’t say anything or do anything unless you gain five yards.

The Nine Techniques for Controlling Hostile Witnesses

Now that you have the basics, we will go over the nine techniques for controlling hostile witnesses in the next section.

These work in criminal cases, civil cases, and any type of case.

They work in front of a judge in front of a jury.

And they are very simple.

Notice I said simple – I did not say easy.

Most things in life that are simple aren’t necessarily easy to do.

For example, it’s simple to go for a jog every day.

But it is not easy, and that’s why you don’t see many people jogging every day.

But remember, these techniques are the culmination of my successful twenty-year career as a trial attorney.

They work for me- and they will work for you.

See you in the next section.