Cross-Exam: Chapter 15

Destroying Safe Havens

In general, safe havens are the experiential or predictable ways a witness seeks to interrupt the logical flow of questions within a chapter so as to avoid having to testify affirmatively to the goal questions that conclude the chapter.

Human beings will not behave much differently in a courtroom than they would outside one. They will seek an excuse for actions or inactions that make them look bad. Winning the case is a laudable goal, but avoiding humiliation is a more critical psychological goal for most witnesses.

The cross-examiner needs to add to the sequence of questions within a chapter a series of leading questions designed to block the effective use of a safe haven. Each of these series of questions may be seen as their own chapter.

The goal is to not only expose an inconsistency by omission, but to do so in a way that destroys credibility of the witness’ new version of events.

The psychodynamics of the situation is that the witness must cling to a safe haven to make himself look better. If the lawyer approaches the chapters that seal off the safe havens in advance, the lawyer can create a scenario in which the witness relinquishes the safe haven in order to make himself look better.

The lawyer accomplishes this by forming a series of leading questions, the essence of which is that the witness is a good witness, a good professional, a thorough person, and that he knows that he did things well.

The key to this technique is to pose to the witness a series of leading questions to which the witness wants to answer “yes”. Later when the lawyer gets to the goal questions and the witness needs the safe have, it is too late. He has already explained to the jury that none of the excuses he now needs could exist in this case.

Sometimes the cross-examiner can bait a witness into a safe haven, but should do so only a device for causing increased impeachment of the witness. The lawyer must leave open only for a safe haven that she can thoroughly and unquestionably destroy with surrounding facts and witnesses.

There are some occasions in which a lawyer wishes to leave a safe haven open for the witness to use without attack. This is used when the safe haven speaks against the thrust of the opponent’s case and supports the cross-examiner’s theory of the case.

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