Invading personal space: a cross exam tip

 Posted By: je froilan m. clerigo

Wouldn't you want to affect the composure of a witness on cross-examination, not only by your question, but by your action as well? I don't mean shouting at the witness. What I mean is subtle ones - like standing close to him when asking a question.

Try this. When the witness does not give you a simple and straighforward answer to a simple and straighforward question, don't ask the judge for help; just repeat your question again, word for word. If the witness still insists on giving a non-answer (those long-winded statements that doesn't really answer anything), ask it again, word for word, this time phrased slower to give it emphasis.

The third time time you repeat the question will usually be enough to make the witness answer as he soon realizes he'll only be making a fool of himself if he does otherwise. But, if he still does not, ask him if he understood your question. If he says yes, calmly and slowly ask him to repeat your question. When he does, and he does in your satisfaction, ask him to answer it. Remember that, during the cross, you have the power to ask the question; as long as your questions are allowed by the rules, the witness can't refuse to answer, no matter how embarassing it may be to him. So, use this power.

An objection that it is already "asked and answered" can easily be waved off: first, because asked and answered questions are allowed during cross to test a witness's credibility; second, your question was not really answered, so the objection is improper. If the objection is that you are "badgering the witness", why, you are calm and composed, and your question is reasonable as the witness is not giving responsive answers, so how is it that you are "badgering"?

When you ask the witness to answer the question that he repeated, stand in close to him, looking him in the eye. Notice that he will shift in his seat and will most probably avoid your gaze. He will look defensive and may even get angry. But he will answer your question just to get you away from him. I've done this and got this very result.

This was because you've invaded a personal space, and for most people, this space is sacred. When you move in "too close for his comfort", the witness feels violated. He could "fight"; but, since you have the power during the cross, his response will be "flight", backing down and submitting to your will by answering your question. Curiously, it is said that "criminals seem to have a larger personal space than the rest of society, which also appears to extend in a parabolic arc behind them. Hence criminals are constantly looking over their shoulders…"