5th June 2009
A piece of advice – under cross-examination do not speak unless it is to answer a question. If you are asked a question, answer it. Otherwise say nothing.
You would think this is a simple enough proposition, but it is not. There is a fiendish trick occasionally used in cross-examination, which is to lure the witness into what is called “free-flow”.
The theory is that a witness responding to questions has themselves pretty much under control – they hear the question, consider and structure their answer, articulate what they want to say, stop and wait for the next question.
Provided the witness is calm and considers what they want to say in measured fashion, the wheels of the case should stay firmly on. How then can counsel persuade the witness to speak in a less measured, more dangerous way? The answer is by saying nothing.
Who cracks first?
Try this on someone. Ask them a fairly simple question and look at them intently when they answer. When they stop speaking say nothing, but continue to look at them in an interested way. One of you is going to have to crack first and very often it is the person answering the question.
His thought process goes something like this: “There are two of us in this exchange, he asked me a question, I have answered it, he has not said anything and continues to look at me expectantly, therefore I must be expected to say something else.”
A surprisingly high proportion of people will go on to supplement their answer because they think that it is expected of them and do not wish to disappoint. This works well on small children, particularly those with guilty consciences, but a surprising number of individuals who would consider they are under control feel obliged to fill silence with words, however ill-considered.
In the courtroom even the most hardened of witnesses, having been asked a question and having answered it to their own complete satisfaction, when looked at in an enquiring fashion for a sufficiently long period will start to talk again.
This is when a witness under cross-examination is at his most vulnerable. He is in free-flow – talking without really considering what he is saying, and potentially at risk of saying something damaging or even stupid or possibly both.
It is hardly in the interests of cross-examining counsel to stop him and, since he is speaking of his own free will, his own counsel cannot step in. Only he can stop himself and when he does it may be too late.
Should you find yourself in the witness box under cross-examination being gazed at in a patient and kindly manner by counsel or a solicitor while a long pause gathers dust, what should you do? The inference is that you must surely have more to add to what you have just said, take your time and say it. No further question is being asked, the original question remains all that is to be answered and you have answered it.
Do nothing
You should do nothing. If you have answered the question and you have nothing more to add, add nothing. Just smile back (politely, of course). Sooner or later counsel is going to realise that you are on to him or her and is going to have to ask you another question. He or she cannot let the silence go on forever, not least because the judge or the magistrates know exactly what is going on and are not prepared to sit there growing older while counsel waits for you to crack. Once it is clear you are not going to say anything more, counsel will have to move on.
More than that, you will have scored a small victory. Your refusal to be bullied says more than the nothing you added. It tells counsel you are not to be pushed around and you must be afforded a degree of respect. It means that he will have to consider whether to try any of the other tricks he has up his sleeve or whether you will be wise to them and make him look foolish again.
In cross-examination if a question is a question, answer it or say that you cannot. If there is no question to answer, there is no answer to give.
What you do not say will speak volumes. In such circumstances, less is definitely more.