Cross-Examination: Chapter 28

The Crying Witness

The crying witness is a special problem on cross-examinations. The crying witness harms the cross-examiner through his highly emotional demeanor.  The outburst implies that the cross-examination is unfair and the resulting lack of answers to the cross-exam questions posed. The cross-examiner must control his or her own feelings of helplessness caused by the crying witness.  The cross-examiner must re-establish control of the witness because not asking any more questions is not a solution.

Identify Crying Witness Before Trial

Being able to foresee the problem before trial is important and can be done during any pre-trial exposure to witnesses.  During any formal o r informal interviews, the cross-examiner must allow the witnesses to show the natural and emotionally charges positions in their testimony. The cross-examiner should try to gauge how the witness will react emotionally at trial.

What Not To Do

When the crying witness begins, the cross-examiner should initially refrain from offering the witness a break, a tissue, or water.

Seemingly helpful gestures can signal that the witness has a reason to cry.

Yielding to the crying witness transfers control to the witness.

Cross-examiner should not initiate the request for a recess, but should not object if requested by someone else.

The cross-examiner must not avoid the witnesses’ eyes when the witness loks up.  The cross-examiner should remain neutral in appearance.

What To Do

The cross-examiner should consider moving the emotion producing chapter to a different witness, if possible. 

The cross-examiner should slow the pace of the questions to re-establish control.

The cross-examiner should focus the witness on less emotional details.  The more detailed the facts, the more detailed and focused the concentration required of the witness and the witness will be moved away from emotion.

Ask for facts not feelings.

Take the witness out of the mood that provokes the cying.

Distraction As A Method Of Limiting Crying

1.      Identify and avoid the isolated issue likely to cause the crying.

2.      Identify the source of the emotion.

3.      Immediately initiate a chapter out of chronological order to distract the witness from anticipating emotional provoking event.

Hard-Edged Facts

Hard-edged facts are facts that are objectively verifiable and not dependent on the individual witnesses’ subjective interpretation.  When working to suppress emotional breakdowns, it is helpful to require the witness to answer questions based on hard-edged facts.

Hard Edged Facts: 

1.      Dates

2.      Hours/minutes

3.      Distances/measurements

4.      Proper names/titles

5.      Addresses

6.      Defensive/non-inflammatory facts

Specific Techniques To Control Crying

1.      Use exhibits ad demonstrative evidence b/c it requires the witness to have to concentrate to a greater degree.

2.      Impeach the witness.

3.      Cause the witness to focus on sounds – recordings/DVDs, etc.

4.      Make witness move – perform a physical task that seems reasonable in the context of questioning.

5.      Select a tone that diminishes the likelihood of an emotional response.

6.      Use admissions of a party-opponent instead of highly emotional chapters of cross-exam.

It is assumed that the cross-examiner’s theory of the case would be enhanced by deterring the crying witness.  However, there are times that the theory is enhanced by a crying witness.  By reversing the techniques discussed in this chapter, the cross-examiner can cause the witness to cry while still controlling the cross-exam.

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