The “No-Lose” Question on Cross-Examination
by Jamison Koehler on December 21, 2009
Criminal defense attorneys spend a lot of time before trial trying to anticipate the testimony of witnesses who will be called by the prosecution to testify.
A familiar piece of advice, one that has worked its way into the English lexicon, is not to ask a question you don’t know the answer to. In other words, you don’t want to elicit an incriminating piece of information for the judge or jury that the prosecution may have missed.
Fortunately, “discovery” – the formal process by which each party is required to turn over certain information and documents to the other side before trial – helps eliminate many surprises and enables the defense attorney to anticipate what the testimony is likely to be.
It also gives rise to what for me is one of the most enjoyable parts of cross-examination at trial; that is, what I like to call the “no-lose” question.
Say, for example, that the identity of the person who committed a robbery will be a key issue at trial. In other words, you’re not contesting that the crime happened. You’re just saying that it was not your client who committed it. Maybe it was dark at the time. Maybe there were a lot of people at the scene. Maybe there were other reasons eye witnesses could have confused your client with someone else.
Assume, in addition, that the key eyewitness for the prosecution testified at a preliminary hearing or before the grand jury that the person she saw commit the robbery was wearing a red jacket. You like this fact. It contradicts other evidence – maybe elicited by you, maybe elicited by the prosecution — that your client was wearing a green jacket at the time.
The eyewitness is locked into her prior testimony. You’ve got her. She may give damaging testimony as to other factors identifying your client as the person who committed the crime. You can’t prevent that. Her description may be dead-on with respect to your client’s age, height, weight and race. She might even recall a specific tattoo on your client’s neck. But she is still stuck with her previous testimony that the person she saw commit the robbery was wearing a red jacket when all the other evidence suggests your client wore a green jacket. Maybe this discrepancy will sow the seeds for doubt in the jury’s mind.
For you as the criminal defense attorney, the color of the perpetrator’s jacket is suddenly the most important thing in the world. In cross-examining other witnesses, you are sure to emphasize that your client was wearing a green jacket. You want the color green to be cemented in the jury’s minds before the prosecution’s key eyewitness is called to testify.
You’ve now reached the point in the trial at which the prosecution calls its key eye witness to testify. You know how she testified earlier, and you’ve been waiting for this. The prosecution elicits her full description of the event during direct examination. It is now your turn to cross-examine her.
Normally, you use leading questions to cross-examine a witness. This enables you to tell the story you want told. You have a version of the events as you would like them to have happened in your head, and you want to tell this story to the jury. You can’t actually testify. But you can tell the story through your questions of the witnesses, including questions on cross-examination.
You have a pretty good idea from the witness’ prior testimony what you can expect her to say. So you focus on those facts on which you agree and you walk her through them. You are doing most of the talking. She is simply agreeing with you, implicitly indicating to the jury that your version of the story is the truth.
Now you get to the part where she will describe the person she saw commit the robbery. The jury already knows that your client was wearing a green jacket. You could use a leading question but now, for effect, you want to the change the pace a little bit for emphasis. So perhaps you use an open-ended question.
What color jacket was the person you saw commit this crime wearing?
This is the no-lose question. You’ve won no matter how the witness answers it.
If the witness says red, then you stop. You nod. You thank the witness. And then you close the examination. Your client was wearing green. The witness testified that the person she saw commit the crime was wearing red, and you can use this fundamental discrepancy to argue reasonable doubt during your closing.
If, however, the witness testifies that the jacket of the person who committed the crime was green, this is even better. Again, you stop. Perhaps you look puzzled. Green, you repeat. Yes, she replies. Now she’s committed to this, and the jury knows there was no mistake.
Now you impeach her.
This is not the first time you have testified on this matter. No, it is not. And in fact you testified earlier on this very same matter, didn’t you? Yes, I did. And at that time you were under oath to tell the truth, the whole truth and nothing but the truth. That’s right.
And the kicker: And at the time of your earlier testimony, under oath, you swore that the jacket the person wore at the time of the incident was red. Didn’t you?
Most police officers know at the very moment you stop and pick up some paper from your desk that they are about to be impeached. Civilian witnesses often don’t realize this, and they get this “deer-in-the-headlights” look when you ask them the no-lose question. They often glance over at the prosecutor as if to say, oops, I guess I goofed, didn’t I?
Again, there is no answer to this question that can hurt you. If the witness agrees that yes, she had in fact testified earlier that the person’s jacket was red, you might decide to draw this out a little bit for effect. So which was it, red or green? But basically you are done. However she responds, she has contradicted herself at least once. Where else might she have been mistaken? What other parts of her testimony might she like to amend?
If the witness denies that she ever testified that the person’s jacket was red, then you have even more opportunity to challenge her credibility in the eyes of the jury. You now confront her directly with the prior testimony. Did you not testify on this matter before on such-and-such date? Yes, I did. And did you not state at that time, and then you read verbatim from the transcript of the prior testimony.
Some witnesses will continue to deny it even at this point. This gives you the satisfaction of actually confronting them with the written transcript and asking them if there was somehow an error in transcribing their words.
At the very least, use of the “no lose” question has enabled you to introduce a key piece of information into evidence. If you are lucky, it has enabled you to get the witness to admit that she has contradicted herself at least once, thereby undermining the credibility of her testimony in the eyes of the jury. Either way, you have taken a substantial step toward laying the seeds for reasonable doubt in the jury’s mind.