One of the fundamental rules of thumb for cross-examining a witness at trial is not to ask a question to which you don’t know the answer. But there are situations in which you can’t take such a low-risk approach to the case. You may have to throw this rule out the window and take your chances to resuscitate a weak or even middling case.
If you’re forced to ask questions to which you don’t know the answer, hoping to be pleasantly surprised, you better be prepared to handle damaging responses. Try to have a “cover question.” One of the best methods of dealing with an unwanted answer is to show polite disdain for it. For example:
Q. Why did you believe the lathe was dangerous?
A. Because Eddie Smith told me that it had nearly taken his fingers off the day before.
Q. (Incredulously) That’s the only reason? Because Eddie Smith told you something almost happened?
A. I thought that was plenty.
Many times you are safe in asking a question to which you don’t know the answer, because it’s a “can’t lose” question. Whatever the answer, your case will be advanced. A classic opportunity for a “can’t lose” question arises when a witness has behaved unfairly or carelessly by any reasonable standard. After establishing the bad behavior, you may ask a question to which you don’t know the answer without worry, because any answer helps. For example:
Q. After your assistant had taken Mrs. Smith’s body out of the morgue without her relatives’ permission, didn’t you refuse to return the body to the family?
Q. Well, didn’t you demand that the family pay fees for an embalming they had never asked for before you would return the body?
A. The embalming was necessary, whoever did the funeral, and we had a right to be paid.
Q. Isn’t it a fact that you wouldn’t release the body to the family until you were paid?
Q. [The question to which you don’t know the answer.] Tell the jury, Mr. White, was that fair?
If the witness condemns his own behavior as unfair, he admits malice. If he insists that palpably unfair practices were fair, he demonstrates malice. The last question is argumentative, but most courts would permit it to be asked.
There are some other occasions when you may ask questions to which you don’t know the answer, including:
- If the witness is rattled, and has been giving testimony damaging to the other side.
- If the witness’s answer must support your version of the facts, or will be solidly impeached by another witness or other evidence.
- If the gain of getting a right answer far outweighs the loss of getting a wrong answer.
The goal of cross-examination is to control what information the jury gets from the witness. But sometimes you have to lose a bit of control and take a chance with a risky question.
For more time-honored rules of cross-examination (and when to break them!), turn to CEB’s must-have book for all litigators, Effective Direct and Cross-Examination, chap 4.
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