“Badgering” the Witness at a CPO Hearing

Jamison KoehlerTrial Advocacy

BaltimoreGraffiti.30The judge informs me that I am “badgering” the witness.

I have heard of “arguing with a witness” and “harassing a witness.” Until the judge accuses me of “badgering” the witness, however, I didn’t even know there was such a thing – other than on TV, of course.

The witness is the petitioner in a civil protection order case. I represent the respondent. I have asked her a series of leading questions. She is pleasant and smart. She is also very motivated, and seems to feel compelled to explain every answer she gives me.

This is where the “badgering” comes into play. I tell her she should answer the question I ask her, not the question she wants me to ask. I also tell her that if I want an explanation for one of my “yes/no” questions, I will ask her for it.

The trial team at Temple Law used to call this “spanking” a witness. The judge calls it “badgering.” “If you have a problem with the way the petitioner is testifying,” the judge tells me, “you should take this up through the court..”

It is true. I was in fact arguing with the witness. This is unseemly and undignified, and I am irritated with myself for having succumbed to the temptation. With the witness and me quibbling like a bunch of teenagers, this is not exactly the image of myself I was hoping to project.

Although I heed the judge’s advice, I have to say that asking the court for an instruction is a little bit like going to a parent to tattle on a sibling: You have to be careful not to come across as whiny. Sure enough, the next time the petitioner tries to add an explanation to one of her answers, the court does in fact instruct her to simply answer my question. “You have a very good lawyer,” the judge tells her. “She will have the opportunity, on redirect, to follow up with any questions she wants to ask you.”

The petitioner looks appropriately chastened.  Lesson noted, I move on.