Asking the “ultimate question.”
The “ultimate question” is not the same thing as “the one question too many.” The “ultimate question” is the inference that you seek to draw from your line of questioning. Don’t ask the witness to agree with your inference because the witness most likely won’t. Save the “ultimate question” or that inference for when you make your argument. Run down the list of facts that you elicited from the witness, and then, in the safety of the closing argument, tell the panel what those facts mean.
- Example: through a series of short, one-fact questions, you establish that the witness is a close friend of the accused. Do NOT ask, “So you would do anything to help him out, right?” The answer will always be “I would never lie for anyone in court!”
- The “one question too many” is something else entirely. You should never ask the “one question too many.” The “one question too many” is the question that blows apart the entire line of questioning you just pursued.
- Terence MacCarthy, in MacCarthy on Cross-Examination , page 52, recounts this story. “You will recall the infamous ‘nose bite’ case. No less than Abraham Lincoln was the criminal defense lawyer. Initially he brought out that the witness was birdwatching. A good theme, but again, a relatively weak criminal defense theme. He was using what he had. Then Lincoln suggested to the witness that, in fact, he, the witness, had not seen the defendant bite off the poor fellow’s nose. The witness agreed. We are told by Younger that Lincoln should then have stopped and sat down. But he continued and violated the commandment against asking the one question too many. Lincoln’s last question to the witness, the one question too many, was: ‘So if you did not see him bite the nose off, how do you know he bit it off?’ The witness answer sticks with us: ‘I saw him spit it out.’”
- In fact, you should not even ask the line of questioning that leads to the “one question too many.” Because even if you don’t ask the “one question too many,” and you walk away from the witness in triumph because you did not ask the “one question too many,” what do you think will be the first question that the other side asks when she approaches the witness? Only she won’t call it the “one question too many.” She will call it “the greatest question ever.” She will ask, “How do you know he bit it off?”