How to deal with an evasive witness as a lawyer

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Most times in a trial court during cross examination some lawyers in their mind ask: “Is it justifiable if I bash this evasive witness in the middle of cross-examination?”

My colleague Luzinda Phalis once shared with me an experience where he cross-examined one of the most obnoxious, argumentative, evasive witnesses he told me he has seen.

The witness refused to admit the most basic points that no reasonable design surveyor would ever disagree with. And this resulted in a total mishmash and string of questions made incomprehensible by evasion, a disjointed series of non answers.

He attempted at witness control and outrageous arguments.

My objections

Just like one of my Trial Advocacy teachers Madam Ikanza said during my time at the Bar Course in one of the classes:

“Such a difficult witness is actually a gift. After you learn how to handle him, almost every evasive, argumentative witness the other side throws at you is an opportunity to make your case stronger than it was before.”

Sometimes we need to ask to deal with this challenge: Why are you cross-examining the witness in the first place?

The point of cross examination is not to get information from the witness. The point of cross examination is not to get the witness to change his story. And most of the time, the point of cross is not to destroy the witness with contradictions and clever impeachment.

The point of cross-examination is to let you — the Advocate — tell your side of the case so the witness has to agree that what you say is true.

The rules are designed to let you do it. You get to ask leading questions. You get to pick and choose what you want to talk about. And you get to do it in whatever order you want. For practical purposes, you are the witness when you conduct cross-examination — just as you are the witness during, your opening statement and final arguments.

And since you are the real witness, your credibility is the key. Can the Magistrate/Judge trust what you say? Rely on your witnesses? Believe in your arguments? Think of you as the guide they can trust to lead them through the thicket of facts and law?

The answers to those questions had better be yes!

One of the major components of your credibility is how you conduct cross-examinations.

Ask your questions the right way — using short, simple statements of fact — and they invite no comment from the witness other than yes or no. Besides good witness control, you’re eliminating verbal clutter. You want what you say to be the clearest, most sensible “testimony” in the entire trial.

When you take evasion personally, you lose an opportunity to show the Magistrate/Judge that you are a better source of information, when you lose your cool, your self-control gets disturbed, you argue with the witness and your inner beast, always lurking—takes over and makes everything the witness says seem justified. Your testimony is forgotten in your quest to destroy the witness, and no one takes your side.

How do you keep that from happening? It helps to look at why witnesses become evasive.

First, most witnesses identify with the party that calls them to the stand.

Second, when they testify on direct examination, witnesses are the source of information. They are giving answers to open-ended questions. It’s hard to suddenly stop doing that on cross examination.

Third, witnesses fear cross examination, certain that Advocates are schooled in the dark arts of twisting words and taking unfair advantage of verbal slips.

What’s more, leading questions make witnesses feel dominated—and they resent it.

So expect evasion. It’s a normal response to the stress of cross-examination. But instead of taking offense, take advantage of what the witness does, so it validates you as a credible source of information.


ALSO READ: ATC Uganda V. Uganda Revenue Authority: Where will ruling leave start ups raising seed capital?


 

Wait a minute, you say. Can I really do that?

Absolutely. See how it works in response to some different kinds of evasion.

The vague, indefinite answer is probably the most common form of evasion — and one that does a lot of damage by turning your crisp, clear words into a sodden lump of guesses and approximations: An example is

Q: So you worked for Oyet Mukembo Property valuers LTD?

A: You could say that. For a time, anyway.

Q: As a lead Surveyor ?

A: I suppose that’s as good a description as any other.

Q: For Twenty years?

A: That’s approximately correct. Somewhere Somehow

As soon as the witness starts getting indefinite, it’s a great opportunity to show that you know what you’re talking about. With a smile on your face, and in your voice, you say:

Q: Excuse me, Mr. Kavuma Peter, but you seem a little indefinite about this. Take a look at what you said in your letter to the plaintiff: “I worked for Oyet Mukembo Property Valuers LTD for Twenty years as a lead Surveyor.” Is that what it says?

A: Yes.

An impeachment? Not at all. But between you and the witness, who is the more reliable source?

Then later you ask:

Q: During that time, the manager Mr Oyet had a total of 89 different private secretaries?

A: I’m not sure. It probably was something in that region somewhere Somehow.

That’s when you say:

Q: I don’t want you to guess, Mr. Kavuma Peter. Here you go, take a look at your sworn testimony Dated April 12th 2018.

After two or three such episodes, the witness may seem to surrender, saying, “Well, if you say so.”

That answer is a kind of evasion, too. Instead of just accepting it, say:

Q: Not if I say so, Mr. Kavuma Peter, but if that’s what actually happened.

A: Yes, that’s what happened.

The next level of evasion is to not respond to your question. Then you can gently prod the witness with one word — true.

Q: You were eventually asked to leave the Oyet Mukembo Property Valuers LTD ?

A: (Silence.)

Q: True?

A: Yes.

Notice the linguistic power of that exchange. The witness is agreeing that what you say is true. But don’t wear out the word true. Mix in yes or right every now and then.

And taking it to the next level is when the witness “forgets” the answer. You already know this is a chance to show the witness — and everybody else — that you have the answer in the deposition or the document you’re going to show — and read to — the witness.

Then there’s the non responsive answer, which usually is argumentative. The witness is non responsive because he doesn’t like your question. That’s because he doesn’t like the answer it calls for. So he answers another question instead—one with an answer he likes. The cure is to show the Magistrate/Judge just how argumentative the witness has been without joining in the argument yourself.

Suppose you ask whether the witness did a particular calculation. And instead of a simple yes or no, the witness gives you a long harangue about why that calculation wouldn’t be useful.

If you ask the Magistrate/Judge to tell the witness to answer the question, He or She may seem to be puzzled. After all, you asked about the calculation, and the witness told you a lot about it. Just let the judicial officer see that the witness was dodging the real question. The first time it happens, you can even apologize:

Q: I’m sorry, Miss Atwine. I meant to ask you, whether you had actually checked the signatures. Did you?

The next time it happens, you can say:

Q: Pardon me, Miss Atwine. Does that mean you did not ask your client to verify those signatures?

And if the witness is silly enough to try it again, you can say:

Q: Doctor, is there some reason you don’t want to tell the jury what the results were?

The art and skill of trial advocacy is something built overtime.


 

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