One of the biggest challenges of cross-examination can be maintaining control of an intentionally difficult or evasive witness. Professor McElhaney warns that, “once you lose control of a witness, it is hard to get it back.” (Litigation, at 124.)
What are we talking about? Let’s say you ask a witness something he doesn’t want to admit, such as a doctor who doesn’t want to admit he elected not to perform a useful diagnostic procedure (and he probably should have). So, instead of agreeing, “No, you’re right. I did not perform a spinal tap on the patient,” the witness launches into the following:
“I’m afraid you don’t understand the distinct risk involved in an invasive diagnostic procedure such as a lumbar puncture or spinal tap, as it is called. In addition to considerable expense and pain, there is a real possibility of permanent neurological injury.” (Id.)
Blah. Blah. Blah.
McElhaney offers these suggestions to deftly maintain control when you come up against a witness who evades, changes the subject or answers a different question.
Simply Re-Ask The Question Verbatim
This is especially powerful if the members of the jury have listened closely and it is a simple question, devoid of ambiguity. They, too, are thinking “Speaking zie English?” and losing respect for the witness minute-by-minute.
Re-Ask The Question In A Way That Demonstrates Your Witness Is Behaving Weasel-Like
Going back to the above example. If the original question, which drew the evasive response was: “Doctor, did do a spinal tap on the patient?” it can be effective, when re-asking the question, to phrase it as follows:
“Pardon me, Doctor, does that mean you didn’t do the spinal tap on Mr. Murphy?” (Id. at 125.)
This has the double benefit of establishing, not only that the doctor did not perform the test, but also that he was being evasive.
Tell The Witness You’re Re-Asking The Question
This is perhaps best used when the witness has twice tried to evade the question or answer a different one. On the third try, it should go something like this:
“Doctor, we’re talking now about what testing you performed on your patient, Mr. Murphy. I’ll ask you again, you didn’t perform a spinal tap on Mr. Murphy, did you?”
The good professor also suggests (1) you keep your questions on the short side, since longer questions, with more qualifiers, create more opportunities to subtly disagree or qualify an answer; and (2) try to adhere to the rule against asking open-ended questions, since you’re opening the door and basically asking the witness to assume control and talk about whatever he wants. (Id. at 126.)