Thursday, September 13, 2007

You can lead a witness to Court, but you can't make them testify.

Several other attorneys have imparted to me the well-known addage that you never ask an opposing witness a question you do not know the answer to. What's worse? Asking your own witness a question you do know the answer to but they apparently do not. I'm not talking about run of the mill witnesses, but client witnesses where the only reason I know the information is because the client told it to me 5 minutes before walking into the court room. There are only so many ways you can phrase your questions to push the line of leading the witness and avoid the "asked and answered" objection. And, since it's my client-witness, I want to avoid having to bring up, "well you just testified" or the like because then they look like they're either lying or don't know the answer. Typically, it will go something like this: (Note, not actual testimony)

Me: After you showered and dressed, what did you do before you came to work?
Witness: I got in my car.
Me: Ok, did you do anything else before you left your house?
Witness: No.
Me: Have you eaten anything today?
Witness: Yes.
Me: What?
Witness: I had cereal for breakfast
Me: Where were you when you at this food?
Witness: At home.
Me: Was this before you came to work?
Witness: Yes.
Me: So, between when you showered and dressed and when you got in your car to leave for work, did you do anything else?
Witness: No.
Me: Well, it's my understanding that your testimony indicates you ate breakfast that morning at home.
Witness: Well, yes.
Me: So you did eat at home?
Witness: I guess.
Me: What did you eat for breakfast?
Witness: Toast.
Me: Did you not also have cereal? (like you just answered 2 minutes ago and now I have to fend off the leading objection)
Witness: Yes.
Me: What kind of cereal?
Witness: Wheeties.
Me: Um, are you certain it was Wheeties?
Witness: I don't know?
Me: Could it have been Cheerios?
Witness: Oh yeah. It was Cheerios.

Then, of course, inevitably after their testimony, they will come up to me and say something along the lines of, "Were you wanting me to say x when you asked me those questions?" and following my affirmative answer, "well I thought you did, but I wasn't sure so I didn't want to say it."

It would be much easier if I could shorten the whole line of questioning to "Did you eat Cheerios that morning?", but of course, I can't.