“No Questions, Your Honor”
by Jamison Koehler on December 6, 2012
If practice makes perfect, then prosecutors tend to be better at direct examination and defense attorneys at cross. It is a question of what we do the most of.
I think of this while watching a prosecutor conduct a cross-examination in JM-13. The defendant has taken the stand in her own defense, and the prosecutor is trying to poke holes in her story. He is failing miserably. He accuses her of one lie after another. The witness not only denies each accusation but provides a credible explanation in response.
The prosecutor’s tell-tale “okay” after each answer is the legal equivalent of Pee Wee Herman crashing his bicycle into a fence and claiming he meant to do that. The longer the cross-examination continues, the more comfortable the witness becomes. She almost seems to be enjoying herself by the end.
The prosecutor could decide to cut his losses and terminate the questioning. But he seems to be working from a script. Undeterred, he plows ahead.
By contrast, I had a bench trial recently in which the prosecutor used what can be an extremely effective technique. When my witness finished his testimony, the prosecutor rose slightly in her chair and informed the judge that she would not have any questions. It was a statement of confidence in her case. It was announcing to the entire courtroom that the witness’ testimony had not hurt the government’s case at all.
Interdum minus fit plus. This is Latin for “sometimes less is more.”