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Important Legal Techniques: Preparing the Lay Witness

published January 24, 2013

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Importance of Preparation

"The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate con ducts his cross-examination." Wellman, The Art of Cross-Examination 1 (4th ed, 1936), quoting a well- known British advocate.

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Proper preparation makes cross-examination appear easy. Well-prepared counsel can avoid fumbling among his papers, briefcase, and transcripts to find a prior statement with which to impeach the witness, or a memorandum to refresh his memory of a material fact. He need not ask a rambling series of questions that leads nowhere or causes a vital admission to be lost in a mass of irrelevant or immaterial answers. Finally, preparation gives counsel confidence in the conduct of his case and counter acts any nervousness or uncertainty he may feel.

Techniques of Preparation

Information to Be Sought

Preparation for an effective cross-examination requires full knowledge of the case, the issues involved, and the witness's background, including his address and occupation, his interest in the case, his prejudice, if any, his relation to the parties or counsel, and, most particularly, all his prior statements and testimony concerning the case. Counsel should also know whether the witness has a criminal record, has a charge pending against him, or is involved in any pending civil litigation, because these matters may lead him to testify under hope of reward, gain, or leniency.

Pretrial Discovery

Modern methods and laws provide for pretrial discovery proceedings that can be of great importance in laying the foundation for cross-examining witnesses. Counsel should consider the following: taking depositions of adverse witnesses, moving to inspect and copy documents (including statements taken of his own client), making written demands for parties to answer interrogatories, petitioning to inspect and copy hospital and medical reports, and, in criminal cases, petitioning to inspect and copy police reports and statements made by the accused. If there has been a prior trial, a copy of the testimony can be obtained.

The right to pretrial discovery in criminal cases is being enlarged every day. The police no longer can withhold statements or purported confessions before trial and spring them during cross-examination of the accused. In most jurisdictions (including California), defense counsel is supplied a transcript of the testimony before a grand jury returning an indictment, or a transcript of the testimony taken at a preliminary hearing before a magistrate.

Information gathered in pretrial discovery can be of inestimable value if it gives counsel proof of prior contradictory statements with which to impeach an adverse witness and prepares him for a more effective cross- examination.

Interviewing Prospective Witnesses

All prospective opposition witnesses and persons who may have some knowledge of the facts and circumstances of the case should be interviewed prior to trial, if depositions have not been taken. A report or transcript of the interview should be made and, if possible, signed by the person interviewed. It is best to have a competent reporter present to record the interview, omitting nothing. A tape recorder or other mechanical recording device can take the place of a reporter as long as it records clearly and functions reliably.

The person interviewed should be told that the inter view is to be recorded by a reporter or device. He will be more careful and definite about what he recalls or fails to remember if he is advised that all he says will be preserved in a transcript.

Perpetuating Testimony

If a prosecution witness in a criminal case refuses to submit to an interview by the defense, the defendant's attorney, in California and most other jurisdictions can use a civil procedure known as perpetuation of the testimony of a witness to compel the witness to submit to the interview. The procedure is available if counsel expects that a civil action will be brought, arising out of or from the same situation as the criminal prosecution. For an uncooperative witness in a civil suit, discovery procedures are available to counsel that are as timely and effective as perpetuation, so this procedure generally is used only when counsel expects the witness to be unable to testify at the trial (e.g., if the witness is dying). In a criminal case, the procedure can be useful to gather information that is otherwise withheld, since perpetuation can be instituted before a civil suit is brought, or even if no suit is subsequently brought. The procedure for perpetuating testimony is set forth in CCP 2017. Suggested forms for the petition, notice, order, etc., are given in Deering's Annotated Codes, following CCP 2017, and West's Civil Procedure Code Forms 2017.

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Brief for Cross-Examination
  1. Purpose: Something in the nature of a trial brief should be prepared for the cross-examination of each witness. It should set forth the questions to be asked and next to each a notation of any answer previously given by the witness, listing the time, place, and document where the prior statement was made. The brief will then ensure that an important matter is not overlooked. If counsel simply relies on his memory in cross- examining witnesses, he may fail to ask a question of great moment.
  2. Preparation: The questions to be asked a witness and summaries of his prior answers with sources should be arranged by subjects. It is helpful to have the brief in a loose leaf binder with the summary on the left-hand page, if counsel is right-handed, and the right-hand page blank. This allows the lawyer to follow the prior testimony while the witness is presently testifying. If the witness's testimony is the same, a check mark opposite the summary is sufficient. If the testimony is contrary to prior statements or gives new information, counsel can note the discrepancies on the blank pages, along with comments to be used in argument, or reminders of additional matter to be introduced in his own case.
  3. Leading Questions: Counsel is permitted to ask leading questions (questions suggesting the desired answer- during cross-examination. They may produce very gratifying results if counsel has prepared the questions carefully. A leading question calling for a "yes" or "no" answer may effectively pin a witness down to a material fact in counsel's favor. The lawyer should not hesitate to use leading questions if he can anticipate with some certainty that the answer will contradict a prior statement by the witness or will constitute an admission weakening the testimony given on direct. A question phrased as a simple, rather than a com pound, sentence is more likely to be answered by a simple "yes" or "no." Counsel then has the benefit of the witness's affirmation or disavowal of a definite statement of fact, for use in argument to the jury. If the witness answers, “I do not remember" or "I don't know," the examiner may be able to use this response to attack the witness's memory of or veracity on other vital points in issue. The witness is always allowed to explain his answer. If counsel asks a leading question, he should ask the judge to instruct the witness to answer the question as phrased first, before giving any explanation. If the witness tries to explain before answering, counsel can move to strike out the explanation and insist on a response. Leading questions can be prepared in advance and inserted into the cross-examination brief.

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