“The One Question Too Many”

My colleague — the lawyer for the co-defendant in one of my cases – is annoyed with me.

We each represent a person charged with robbery at a metro stop, and I am cross-examining the police officer at a preliminary hearing. Our theory is mistaken identification, and I am trying to establish how many people were at the station at the time of the incident.

The officer acknowledges that the robbery occurred at the tail-end of the evening rush hour, but he balks when I try to take this a step further. So it is safe to say, I tell him, that there were many people at the station at the time.

No, he responds. Not at all.

There were no trains coming and going?

No, he says.

Your testimony is that the only people present at the metro stop were the complaining witness, the two defendants, and you and your fellow officer?

That’s right.

My colleague shifts in his seat beside me. He is pleasant afterward but he can’t help complaining. “You had to ask the one question too many, didn’t you?” he says.

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In a video that is required viewing for any aspiring trial attorney, Irving Younger tells what I believe is the best story ever about the dangers of the “one question too many.”

A lawyer defending a person charged with assault and battery does a brilliant job in getting the government’s witness to admit that he never actually saw the defendant bite off the nose of the victim. However, having secured this remarkable concession, the defense counsel cannot resist going for the jugular, thereby violating Younger’s Ninth Commandment on Cross Examination.

If you didn’t see him bite off the nose of the victim, how do you know that he did?

That’s easy, the witness responds. Because I saw him spit it out.

* * * * *

In this case, Younger’s Ninth Commandment notwithstanding, I am completely unapologetic to my colleague.

Asking the one-question too many at trial is a completely different thing than asking the same question at a preliminary hearing or probable cause hearing.

While you are trying to control the information that comes in a trial, you have a very different objection at an initial hearing. Assuming that, with the lower standard, the case is eventually going to be held for trial anyway, you are trying to find out as much about the government’s case as possible. And that includes finding out about the facts that hurt your case.

Yes, in this case, it would have been much better for my client’s case if the officer had acknowledged that the metro station was in fact teeming with people at the time of the incident. But, failing that, it was helpful to know how the officer would testify at trial and to pin him down on that for the record.

As it turns out, a video of the incident shows that the station was in fact filled with people coming and going at the tail end of the evening rush hour. Suddenly the officer’s denial of this fact goes a long way in raising questions about his credibility: Falsus in uno, falsus in omnibus is a very polite way of calling the officer a big fat liar.

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For the record, here are all 10 of Irving Younger’s Commandments on Cross Examination: