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Cross-Examination Techniques – Part 2

Controlling Difficult Witnesses on Cross-Examination

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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.

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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. 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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Cross-examination techniques

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Trial Lawyers Notebook – Cross-Examination Techniques

Below is a transcript from the YouTube video Cross-Examination Techniques – Part 2: Controlling Difficult Witnesses on Cross-Examination

Welcome to nine cross-examination techniques for controlling difficult or hostile witnesses. This cross-examination lecture is part two of a three-part series on cross-examination techniques. My name is Mike Waddington, and in this class, I want to talk about how to control hostile witnesses or difficult witnesses on cross-examination.

Subscribe below to be notified when we launch part three of cross-examination techniques for controlling difficult or hostile witnesses. Here are the tips. I’m gonna show these slides on this slide again. In the end, you don’t need to write these all down; I’m gonna go through them one by one with examples. 

These are the nine techniques for controlling hostile witnesses. They work in criminal cases. They work in civil cases. They work in any type of case. They work in front of a judge in front of a jury. These are very simple, okay. Most things in life that are simple aren’t necessarily easy to do. Cross-examination technique number one, repeat the question. So let’s take a look at step one. Repeat the question. Very simple. These cross-examination techniques usually can control 90% of witnesses. 

Repeat the question. When a new factor question always leading, make sure it’s a question that can be answered yes or no? If you can, and then repeat the question. So I’m going to give you two fact patterns here.

I’m going to talk about a criminal one and then a civil one, the criminal one, it’s a case where, you know, somebody claims that they were attacked by this guy named Johnny, and he tried to kill them. And Johnny’s charged with either a sex crime or a violent crime.

We’re trying to show that this witness is exaggerating hurt her or his fear of Johnny. And they’ve exaggerated in our point is that Johnny wasn’t so dangerous, wasn’t so dangerous at the time. You’re exaggerating. So the question goes like this. You said that Johnny tried to kill you? 

Yes, he did. After Johnny tries to kill you, you return to his house. And here comes the quibbling. Listen, I was under a lot of stress. You know, victims react differently. And sometimes they do things that they don’t. That may seem odd.

Okay, that’s not a responsive answer. All we’re trying to ask is, after Johnny tried to kill you, supposedly, you return to his house. That’s the point. Simply, this witness doesn’t want to say yes. So what do we do? We repeat the question. 

After Johnny tries to kill you, you return to his house? The answer, non-responsive. I know what you’re trying to do makes me look bad. But you don’t know what it’s like to you’ve been through something like this.

You can just imagine some of the responses you’re going to get for these types of questions. The point is, they’re non-responsive. Instead of taking the bait and saying something like, Well, I’m not trying to make you look bad. I do know what it’s like because I was attacked once. 

We’re not getting into that. Stick to rule number one, repeat the question. After Johnny tried to kill you, you returned to his house, and you may say, the person’s name, after Johnny tried to kill you, Mrs. JOHN, Mrs. Maria Smith, you returned to Johnny’s house, you can sometimes use their full name, kind of like a school teacher would do.

 But just repeat the question. And if they are non-responsive and don’t say, Yeah, I returned to his house or Yes, that’s all you’re asking for? Yes, I returned to his house. If they don’t do that, repeat the question till you get the answer, which is yes.

Now, if they object and ask an answer, for example, we get that Oh, asked and answered. Do you say? No, Your Honor. My question was this. Did she return to his house after he tried to kill her? That’s all we’re trying to get at? 

She has not given responsive answers. Don’t get into an argument over and he and opponents that day, she said this just very calmly say to the judge, Your Honor, the question was, after he tried to kill you, you returned to Johnny’s house.

She has not answered the question, or he has an unanswered question, yes or no, about whether he or she returned the house. It’s as simple as that. And the judge will usually allow you to do that. You don’t want to ask the judge for help. I see that all the time. Oh, Your Honor. He’s not answering the question, please. What that says to the jury is you don’t know what you’re doing. 

You can’t control the witness. The witness has the upper hand. You got to go to the judge like the judge is mom or dad coming in here and trying to tell the witness to answer the question. Know if they don’t answer the question that you’re asking.

It’s a simple question. Slow it down. The jury gets the question. Here’s the key here going back to the credibility I talked about in the beginning. If they don’t answer the question, they look evasive. They look snarky. They look quibbling. You’re you slow it down. 

You make Don’t try to look exasperated. But just repeat the question to get the answer because over time, the jury’s gonna tune that witness out, and, like, this person doesn’t want to answer a simple question.

They’re not credible. So you win the battle, not only with the answers, but also you win the battle when it comes to them being non-responsive. Now, here’s another quick example. After the rape, you returned to his house, answered, what was I supposed to do?

I left my phone there. Okay, that’s not responsive to whether you return to the house. You say, after the rape, you return to the house? I needed my phone for work. Does that answer the question? No, it doesn’t. So you repeat the question after the rave, you return to his house?

Man, I don’t know what you’re getting at. And sometimes, you get all these explosive answers. So again, they’re losing credibility. You repeat the question. After the rape, you return to his house. We have a third example. I think you get my point that, but you can take a look at it there. You repeat, repeat, repeat. That’s rule number one. 

I’ll give you a real quick civil example. And by the way, as we move through these examples, they’re going to get shorter and shorter, but with the first top the first technique of giving multiple examples, so you get my point, you can apply the techniques.

I’m teaching you to any type of case, any type of example. But in a civil case, let’s say you have an expert on the water as a water contamination case, maybe someone was poisoned due to negligence, and there’s some water contamination, you’re asking the expert about the water. In this case, you conducted a test on the water. 

That’s your question, the answer? Why I conducted a lot of tests on a lot of things. Counsel, that’s often an answer you’ll get from an expert. Let them look like a jerk, please. I love to let experts hang themselves in front of the jury and look foolish, angry, and aggressive. They just look like jerks, honestly. Repeat the question.

You conduct a test in the water. If by water, You mean the tap water. I looked at a lot of different areas and a lot of different things doing my job. Again non-responsive. In this case, you conducted a test on the water, Dr. Jones. 

Then, hopefully, you get a yes. The same thing applies to you know. I asked about you tested your test tested for Mercury. Again, I test for a lot of things, not just Mercury. Your test tested for Mercury. I just told you we test for a lot of chemicals.

Your test tested for Mercury, and you silence no if it’s your client and test fine. You want to teach them to not talk when their silent, but people can’t can can’t help it they have to talk when there’s a son’s when there’s a silence that sometimes the answer the question blurt things out, they feel uncomfortable by the silence and makes them feel awkward. 

Here’s another example. We talked about another civil case. You can see it there. Screenshot it there. That’s the third example in a civil case. Take a look at it. Cross-examination technique number two, repeat twice and then reverse the question technique number two, this is a riff a spin on the first technique, repeat, repeat, reverse.

I love this technique. These cross-examination techniques will get them if it’s 90% effective on the first technique. This technique will get the maybe another 5%. 

But it usually is a jolt for the witness the answer the question. So basically, you repeat the question, repeat the question, just like we did previously. And then, on the third time, you reverse the question, make it a negative question.

This cross-examination technique is something you got to practice a little bit once you get the hang of it. It gets really good to be easy. Example number one same facts. After Johnny tries to kill you, return to his house, non-responsive answer after Johnny tried to kill you. You returned to his house. Non-responsive answer after Johnny tried to kill you. You never returned to his house?

Well, I mean, I did because I needed my phone. Okay. So the answer to my question was, yes, you returned to his house. That’s one way to deal with that. So you flip the question of if you ask him a question. You said x, you said x, and they say, blah, blah blah non-responsive, then you can flip and put a negative spin on it. 

Then they’re like, well, well hold on it. And then, for some reason, that triggers them to answer. Another example is that you return to his house alone, non-responsive, and return to his house alone, non-responsive. Here’s a way to flip it. When you return to his house, you brought someone with you. It’s kind of a modification of your return to his house alone. Here, we’re saying when you return. Did you bring someone with you? And they say, No, I didn’t. 

Okay, so you return to his house alone. And so you can have fun with this once you experiment with it and practice it. But stick to the repeat, repeat, reverse. Same thing. Again, it works in civil cases. Again, in all types of cases, I love to use this since a hostile witness in a civil case, for example, asks the question as a question, and they’re fighting you and reverse it.

Then often, they’ll cave. In this case, you conducted a test on the water, blah, blah, blah, non-responsive. You can indicate a test on the water. You can see on the slide non-responsive. And you say, in this case, you did not conduct any tests on any water? 

Well, I mean, I did conduct tests on the water. And what it does is two things, it gets the answer you want, number one, number two, it shows the jury that this witness is playing games, they don’t want to answer the questions, and you’re forced to pull teeth into slowly extract the truth from the witness. Here’s another civil example. Again, you get your test tested for Mercury, non-responsive your test tested for Mercury, non-responsive. reverse it. Your test did not test for Mercury? 

Well, I mean, it did test for Mercury. And then there are other comments, you could say, well, that was what I’d asked you twice if it tested for Mercury. Why now?

Are you saying that to test for Mercury? Did you not understand my question the first time? Now don’t be saying things like that and being snarky and less. The jury is there with you. 

Okay, if the judge is there with you, the jury is there with you. And this goes on for a long period. Then you can sometimes make comments like that. I don’t recommend it for amateurs. If you know what you’re doing, you could read the jury if you know what’s going on with the case.

You can sometimes say things that a jerk the witness to move them into the next question. Again, we’re potty training the witness. because really, what we want is after we show that they don’t want to respond, we just want the answer. We want the answer that they tested for Mercury that the witness returned to the house. That’s all we’re trying to get at. We’re not trying to play games. We want the answer. 

Technique number three. 

So your answer to my question is to insert the question yes or no. And this is where it starts getting fun. When the witness is non-responsive, you can usually nail them and make them look kind of silly. And it’s a quick way if the witness is not getting potty trained, you start escalating. Now, all these techniques I’m teaching escalate from one to nine.

They’re escalating here. So the first one is real simple. Repeat the question. As we get up to number nine, it starts to become a little more aggressive. You don’t go to number nine, Number eight, number seven, unless, again, you’re there and the jury is there with you saying like this? 

Why would these witnesses answer the question, man, what’s going on here. But you don’t want to go to number nine code read. That’s a nuclear option here. You want to work your way up and use these sparingly. cross-examination technique number three.

So your answer to my question is yes or no.

Technique number three: So your answer to my question is yes or no.

So after Johnny tried to kill you, you returned to his house. What was I supposed to do? I left my phone there. So your answer to my question? After he tried to kill you, you return to his house? is yes. And then they say yes. Or you return to his house alone.

While I didn’t want to wake up my roommate. So your answer to my question, you return to his house alone is yes. And then you’ll get a yes answer. I love this one. I use this all the time on law enforcement when they don’t want to answer questions are. They’re just we’re experts when they’re really snarky or just hostile witnesses in general. You have the same thing with the expert.

Now, this is one way to yoke the expert in front of the jury. Make it clear. Hold on a second now. I’m not playing games. You’re in the big leagues. Don’t underestimate me based on my age, sex, gender, race, like a lot of experts will look out at you like the lawyer and think, oh, this they’re gonna assume things about you because they think often they’re smarter than you. 

You come in, and potty train him as a lawyer. From the start, and be like, Hey, man, we’re not playing games here, Dr. Jones or whatever the doctor’s name is that’s out there trying to make you look stupid. You maintain control. You gain control.

You want to maintain control throughout and don’t let them out. You want to get them in your vise grips. So the example here civil, you tested for Mercury. Again, I test for a lot of things. At this point, we’re not going to repeat, repeat, repeat, repeat, repeat, reverse. We’re tired of this witness. 

So calmly say, Okay. Dr. Jones. So your answer to my question you tested for Mercury? Is Yes. That’s the answer to my question. And after a few times, they start getting it like they are looking kind of silly. They’re looking kind of stupid.

There’s another example there, where you just repeat the question and say your answer to my question is yes. But remember one new factor question always leading. If you give a very long-winded question with many adverbs and adjectives and multiple facts, you can’t do this stuff; you got to master the basics, you got to master the basics. 

Here again, are the techniques for controlling hostile witnesses. If you write me a quick email and just let me know you watch the video, I’ll send you a free copy of The Art of trial warfare. If you have any questions or want to check out any of our other courses, please subscribe below.

We’re going to be putting out content, both long CLE lectures and snippets of the lectures for all different levels of trial practice, from people in high school doing mock trials up to season’s practice, seasoned practitioners. I thank you for being with me in watching this video on sticking with us.

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