Watch out for the cross exam

 Posted By: je froilan m. clerigo
25-Nov-2007

 

Most of the witnesses for your case, and their stories, are not rosy and pink. In fact, most of the times, they know of some facts that may hurt your case.

When preparing your witness, anticipate the cross-examination that's sure to come. We've had a witness who testified effectively during the direct examination, but who looked stupid during the cross because the cross-examiner made him admit that he was gay, that he was sleeping with the defendant. Plus, he was made to deny that the reason he is now suing the defendant was because the defendant broke up with him earlier.

By the way, we were not informed by the witness of that fact; and, of course, that took us completely by surprise.

The best way is to tell the witness that the better the grasp you have of all the facts - even those that he thinks may hurt the case - the better prepared both of you will be. So, what does he think are the areas of his testimony that will be attacked by the cross-examiner? How does he suggest both of you should deal with these areas?

If there are such potential harmful facts, and these, more probable than not, are also known to the adversary, most authors advise that they are better let out of the bag during the direct examination rather than on cross. The theory is that the harmful testimony will not have as much impact if voluntarily revealed on direct examination than when the witness is forced to admit it on cross-examination.

For instance, it may happen that there is an apparent conflict between the statement that your witness gave to the police investigators and the affidavit that you submit to the public prosecutor during preliminary investigation. These can be best explained during the direct. Some of us do the opposite: we overlook these conflicting statements, act as if they do not exist and hope that the other side will not notice. Worse, we leave the witness on his own by not discussing with him beforehand how to deal with this conlict during cross-examination. It's like feeding him to the lions. When cross-examination comes, we watch helplessly while the other side tears our witness apart.

Let's do our job.