Listening to the Witness on Cross-Examination

by Jamison Koehler on January 6, 2010

This guy has his eye put out in an accident.  He can’t afford a glass eye, so the eye doctor puts in a fake eye made of wood instead. The guy is very self-conscious about his wood eye, but finally his friends talk him into joining them at a dance.  It is time, they say, for him to get back into circulation.

So the guy goes to the dance with his friends. He is standing around in the corner, feeling ashamed of the way he looks, when he notices a woman also standing around by herself.  The woman is attractive but she has these big floppy ears.  He thinks, hey, maybe she won’t mind dancing with me, so he gets up his courage and approaches her.

Excuse me, he says.  Would you like to dance with me?  She responds with great enthusiasm:  “Would I?”

“Wood eye?” he says back, greatly offended.   “Well, at least I don’t have floppy ears.”

I tell this joke for two reasons.  First of all, I tell it because I always look for an opportunity to tell a good joke, however lame some people may think it is.   But I also tell it to make a point about truly listening to what people are saying to you.  And this applies to the courtroom while you are cross-examining a witness.

A couple of weeks ago I was at the D.C. Superior Court with a client, sitting in the gallery waiting for our case to be called.  A group of Georgetown law students participating in a clinical were at the bar of the court, and one of the students was cross-examining the witness.  The student was nervous and had obviously spent a lot of time preparing her questions in advance.  When the witness finished answering one question, she would look down at her piece of paper and proceed to the next question, clearly asking it verbatim from her notes.

I can’t remember the substance of the testimony but I do know that at one point the witness made a very interesting remark that was clearly inconsistent with other things the witness had said.  The judge looked up.  In fact, everyone in the whole courtroom looked up, expecting the student to follow up.  Instead, the student looked down at her sheet of paper and proceeded to the next question.

Yes, cross-examination is difficult, and it takes a while to develop your skills and to get comfortable performing it.  However, no matter how carefully you have read any previous statements given by the witness and no matter how well you think you can anticipate how the witness will testify, witnesses will often surprise you with what they decide to say.

You need to be open to this. Just as the man with the wood eye should have been paying attention to what the floppy-eared woman was really saying to him, you need to listen. You need to be prepared to deviate from your planned areas of cross-examination to take advantage of any unexpected opportunities that may arise.

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