Always start witness control efforts courteously, only moving to more insistent questions (and eventually, motions to strike) if the witness has lost the jury’s sympathy by refusing to give direct answers to direct questions.
In fact, polite repetition can be an effective tool against an evasive witness: simply repeat the question over and over again until you get a straight answer. If the witness continues to evade, the jury will become increasingly disenchanted as long as the question is simple enough to demand a simple answer.
If a witness stubbornly persists in evasion by answering the wrong question, move to strike the answer as nonresponsive.
Here’s an example of how follow-up questions can be asked in an increasing order of aggressiveness to deal with evasive answers:
Q. [Politely] You must have misunderstood my question. Did you see the light change?
Q. You’re answering a different question than the one I asked. Did you see the light change?
Q. Yes or no, please. Did you see the light change?
Q. You answered the question when you said “yes.”
Q. I take it your long answer means “yes, you did see the light change”?
Q. In fairness to my client, please listen carefully to my question, and answer that question, and not another. Did you see the light change?
Q. [To reporter] Please read the answer back. What question were you answering?
Q. I didn’t ask you if it was raining. I asked if you saw the light change. Are you willing to answer the question?
Q. Mr. Jones, you give the impression that you are deliberately avoiding giving a straight answer to a simple question. Please tell the jury, yes or no, did you see the light change?
Q. Your Honor, I move to strike the last answer in its entirety as nonresponsive and ask you to instruct the jury to disregard it.
Q. Your Honor, please strike the last answer as nonresponsive, instruct the jury to disregard it, and admonish the witness to answer my question directly.
An evasive witness will sometimes ask you questions. In response, you can simply state that you’re not permitted by the Rules of Court to answer questions, but must ask them. The witness must answer questions, not ask them. Or, if the witness richly deserves it, and the court seems to agree, take the golden opportunity to give a full answer to the question, throwing in a preview of your closing argument.
Handling evasive witnesses is just one of the many recurring trial problems covered in CEB’s Effective Direct and Cross-Examination Book, chapter 8, which includes sample examinations for each type of problem. For the basics on taking witness testimony, check out CEB’s program The Basics: Live Testimony and Declarations, available On Demand.
Related CEB blog posts:
- Mastering the Art of Cross-Examination: Tips from a Judge
- 10 Cross-Examination Tips from a Master
- (Almost) Never Ask Why
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