A lawyer for second-degree murder defendant George Zimmerman recently attacked the credibility of the prosecution’s star witness in a brilliant fashion.
That witness, Rachel Jeantel, was a friend of Trayvon Martin’s who ended up fidgety and hostile after the defence poked many holes in her story. Her testimony ended up being a boon for the defence.
Zimmerman’s lawyer, Don West, may have been following a simple but effective set of rules of cross-examination. We spoke to legal experts about these rules and other tips for breaking down a witnesses without breaking the rules. Here’s how they do it:
1. Always ask “yes” or “no” questions
“With cross-examination, there are some rules that are never broken. The first is you always ask close-ended questions,” trial consultant Dr. Amy Singer tells us.
By asking “yes” or “no” questions, lawyers ensure witnesses can’t explain their answers to put themselves in a better light. The close-ended questions lawyers ask often begin with “is it possible” or “isn’t it true” because those questions may be more difficult to answer with a “no.”
A lawyer wouldn’t start off by asking a defendant, “Did you murder your mother?” Singer says. Instead, a lawyer would say, “Isn’t it true you had problems with your mother? Is it possible there was a knife in the house that day?” It drives witnesses crazy when they have to answer “yes” without explaining themselves.
2. Never ask “why”
By asking a question that starts with “why,” lawyers give witnesses the chance to explain themselves and tell their own story. “Why” questions are open-ended, and lawyers generally shouldn’t ask them during cross-examination.
“It’s a game of control,” Singer says. “If you ask why, the other person has control.”
3. Point out the inconsistencies in the witness’ story
“You want to ask a lot of questions and then point out the inconsistencies [in their story],” Singer says. “If they’re not prepared for it it’s traumatic.”
In the Zimmerman case, defence lawyer Don West rattled star prosecution witness Rachel Jeantel by pointing out a number of discrepancies in her story. Prosecutors also pointed out inconsistencies in her demeanor, jury consultant Dr. Marshall Hennington noted in an interview with Business Insider.
On her first day of testimony, Jeantel was combative and not particularly polite, Hennington says. She became less adversarial the second day of the trial, and West asked if she’d been coached.
“They were able to show that she was someone who was not very credible,” Hennington told us. “The defence was able to make it appear that she did not like the defence and was very angry towards the defence.”
4. But don’t call witnesses flat-out liars
Many states have rules that bar lawyers from calling witnesses liars, says Tre Critelli, a lawyer on the Iowa Supreme Court disciplinary board. It may also be unethical for lawyers to go around calling witnesses liars.
“There is never a reason to call a witness a liar, even if I happen to personally believe that the witness is lying. My ‘job’ on cross, so to speak, is to have the jurors themselves see enough that they will call the witness a liar,” Critelli said in an email. “Once that happens, their mind has been made up and when they go back to the jury room to deliberate they will discount anything that witness had to say.”
5. Lawyers can still find other ways to trip witnesses up without calling them names
On cross-examination, lawyers should pay close attention to how quickly their witnesses talk, and to how quickly they’re breathing, Singer tells us.
“If somebody is a fast talker, you want to speak slowly. If somebody is a slow talker, you want to talk very quickly,” Singer says. “It trips them up. I’m a fast talker, and if somebody speaks slowly, I want to kill them.”
Lawyers should look at how quickly witnesses breath and try to push their buttons to make their hearts race. But lawyers need to be subtle button-pushers. If lawyers blatantly attack witnesses on cross-examination, they may end up looking like bullies.
“A jury’s sympathy will always be with the witness because they identify with the person … They expect that the lawyer has all of the cards and the witness is at a disadvantage, especially on cross,” Critelli says. “So as an attorney you need to anticipate this and try and figure out a way to get the jury to turn on the witness — that is come to a belief that they can’t trust the person.”
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