Cross-Exam: Chapter 19, Controlling The Runaway Witness

Definition of a “Runaway Witness”

A “runaway witness” is any witness who is unresponsive to the question put on cross-examination.  This unresponsiveness can take many forms; for example, answering unintelligible, refusing to answer, including information that is prejudicial that was not asked for.

A “runaway witness” is a witness who responds to a yes or no answer with a narrative that evades the question being asked.  This type of witness is not merely distorting the picture being painted by the cross-examiner; he is trying to paint a contrary picture of his own choosing.

The chief problem of a runaway witness is his effect on the ability of the cross-examiner to paint the precise picture in each chapter goal.

Expert witnesses and professional witnesses heighten the fear of the cross-examiner more often than other witnesses because they are purposefully unresponsive and have refined their skills to artfully dodge the cross-examiner’s question.

Techniques to Establish Control of a “Runaway Witness”

There are many different techniques because there are many different types of “runaway witnesses”.  None of the techniques require or encourage the use of load, argumentative, or offensive language.

All of these techniques are grounded in the 3 Rules of Cross-Examination

1. Ask leading questions

2. Ask one fact per questions, and

3. Make a logical progression from general to specific

Behavior is molded by consequences.  Witnesses are thinking organisms and have learned through innumerable experience that good behavior will be rewarded and that bad behavior will be punished.  Rewarding a witness for responding with simple direct answers (preferably yes) includes a gentle encouraging nod of the head, a pleasant teaching voice, and most important, efficient movement to the next question/subject matter/chapter.

Techniques That Don’t Work

1. “Just answer ‘yes’ or ‘no’.

2. Asking the judge for help.

3. “The deal”.

Techniques That Work

1. Always maintain eye contact.

2. Control your own body movement.

3. Listen to the answer

4. Ask, repeat, repeat – identical words and tone emphasizes to everyone witness is refusing to answer

5. Use the witnesses’ full formal name

6. Shorten the question

7. Interrupt

a. Physical

b. Polite

8. Have court reporter read back the question

9. Use a blackboard to write the questions

10. Use a poster

11. “That didn’t answer my question, did it?”

12. “My question was…”

13. “Then your answer is yes?”

14. Elimination – begin elimination other possible factual variations

15. Spontaneous loops

16. Combine techniques

Where and When to Use These Techniques

1. Trial

2. Depositions and other pre-trial opportunities

3. Pre-trial Motion in Limine

Pre-trial Use of Technique With Experts

When witness begins to answer with a long unresponsive answer:

1. Simply hold hand up like a traffic officer’s stop signal

2. Slowly shake index finger back and forth as you would for a bad child

3. Shake head from side to side

4. Walk slowly back to table and sit down, while keeping eyes on witness the whole time

Objection – Non-Responsive Answer

The cross-examining lawyer only has one legal objection that can be used as a technique to control the “runaway witness”.

The objection is states as follows:  “objection, non-responsive answer.”

This is, in a sense, inviting the court to assist in controlling the witness.  Therefore, the cross-examiner should only use this objection when many other techniques have been used but unsuccessful.

A cross-examiner who can control the “runaway witness” through these techniques experiences positive feedback.  Because more control is exerted, the witness fights less.  Because the witness fights less, the cross-examiner can concentrate on the three basic rules and experiment with more advanced techniques.

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Filed under Cross-Examination: Science and Techniques by Pozner & Dodd

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