When you’ve had a hand in making a decision, you’re that
much more likely to go along with it. Jurors are no different. Questions in
cross-examination that allow jurors to arrive at the unmistakable, inescapable,
conclusion you want them to, are far more effective than ramming the conclusion
down their throats or risking a sympathetic answer from opposing counsel’s
witness.
For example: The lawyer is cross-examining a lay witness at
the scene of a bus-pedestrian accident. The lawyer represents the pedestrian.
Question: Ms. Smith, did you see the bus as it came towards
the intersection of First and Main shortly before the accident?
Answer: Yes, I did.
Question: Could you
tell us what the color of the light was for the bus as it came down First?
Answer: It was green,
a green light.
Question: Really? But isn’t it true that when you spoke to
the police officer shortly after the accident you said the light was red?
Answer: Oh, well, I’m
sorry, I was a little nervous. I’m sure the police officer report is right.
The jurors may very well believe the witness, since she’s
being humble and apologetic and who wouldn’t be nervous after witnessing an
accident? The lawyer meanwhile has lost the opportunity to show the jurors that
the case isn’t as cut and dried as defense would have them believe.
A more effective way to approach this might be:
Question: Could you
tell us what the color the light was for the bus as it came down First?
Answer: It was green,
a green light.
Question: Ms. Smith, did you talk with a police officer
right there at the scene, just after the accident?
Answer: Yes, I did.
Question: And did that police officer ask you what color the
light was for the bus as it came down First?
Answer: Yes, I think
he did.
Rather than pounce on the witness at this point and give her
the opportunity to sympathetically correct herself, the lawyer could produce
the police report and show (visuals work!) the portion where Ms. Smith
unequivocally said “The light was red,” and simply end his cross on that note.
The jurors can now come to their own conclusion that Ms.
Smith is, for whatever reason, being less than truthful, and are now much more
likely to accept the police report as stated, which was exactly what the lawyer
wanted them to do.
