How to Question a Witness A presentation by: Kenneth Joe Galloway CEO - Knowledge, Growth & Support, Ltd.  kjg@kg-support.com www.kennethjoe.com

Ten commandments Be brief. Short questions, plain words. Ask leading questions when you can. Don’t ask a question, the answer to which you do not know in advance. Listen to the witness. Don’t argue with the witness. Don’t allow the witness to repeat his testimony. Don’t permit the witness to explain his answers Don’t ask the ‘one question too many. Save the ultimate point for the end.

Be Organized Understand the case and know what testimony you need to get out of a witness on direct examination. Know what points and arguments you want to make on cross-examination.

Being organized also means being prepared Being organized also means being prepared. Make sure you know the essential facts that you need to address the testimony. That way, when the witness fails to include something, you can ask a question to cover that. Sometimes a junior attorney will simply ask "What else do you remember?" These questions may not trigger the response you are seeking and will give no real help to a witness who may be struggling.

Ask yes or no questions Asking yes or no questions, or, close-ended questions ensure that witnesses can’t explain their answers. Common ways to begin the question: “Isn’t it true that…” “Is it possible…” You also want to make sure to ask questions that are more difficult for the witness to answer “no” to. E.g. “Did you murder your brother?” Is not a very good question, as you’ll likely get a “No.” (And you can’t derive much information or come to any truth from this answer) “Isn’t it true that you had issues with your brother?” Is a better question, and the answer much more telling. http://www.businessinsider.com/how-to-destroy-a-witness-on-the-stand-2013-7

Never ask why Asking why hands control over to the witness. They are free to narrate, to give an explanation, skew information, put themselves in a better light, and lead things in a direction you don’t want them to go. Don’t give them this chance to explain, and keep control of the situation. http://www.businessinsider.com/how-to-destroy-a-witness-on-the-stand-2013-7

Point out inconsistencies in their story Always be listening for inconsistencies (不一致). Ask as many questions as you can, and when you hear a discrepancy, point it out. If they are unprepared, it’s over. http://www.businessinsider.com/how-to-destroy-a-witness-on-the-stand-2013-7

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. Never ask "why" By asking a question that starts with "why," lawyers give witnesses the chance to explain themselves and tell their own story.

Don’t insult them. Don’t call a witness a liar. Don’t insult them. There are other ways to make them stumble without stooping low. Observe them for possible ways to put them off or make them uncomfortable. E.g. if they are a fast speaker, try speaking extremely slowly to them.

Don’t ask narrative questions Similar to asking “why?” A narrative question can be messy and not give you the answer / information you are looking for. Ask direct questions. http://www.familylaw.lss.bc.ca/resources/fact_sheets/sampleQuestionsDirectWitnessesSC.php

Don’t ask opinion-based questions You don’t want their opinion. It is irrelevant. You want to know what it is they saw, heard, or did. http://www.familylaw.lss.bc.ca/resources/fact_sheets/sampleQuestionsDirectWitnessesSC.php

Leading questions A leading question contains the answer in it, and the witness only has to answer yes or no. These questions help you remain in control, they may help jog the witnesses memory, or be useful in situations where the witness is reluctant to speak. These questions also save time, as they can confirm an array of facts at once. When the information in question is not in dispute you might ask: Question: “Are you the owner of a 2010 Toyota Camry, New York license plate number 123- ABC and were you driving that car on May 1, 2012, at 8:00AM easterly on Main Street, in Springfield, when you were involved in an accident with the defendant who was driving a 1999 Chevy Malibu bearing New York license plate number 789_XYZ westerly on Main Street? Answer: “Yes” http://www.dummies.com/education/law/how-to-ask-leading-questions-in-small-claims-court/

Short questions With short questions, you will obtain one new fact per question, no more. 1. Q: You were in your car, were you not? A: Yes. 2. Q: You were, at the time, seated, were you not? 3. Q: And your car was then parked, was it not? 4. Q: Parked next to the curb, isn’t that a fact? http://benchmarkinstitute.org/t_by_t/cross_exam/controlling_the_witness.htm

Only ASK questions you know the answer to “Never, never, never, on cross-examination ask a witness a question you don't already know the answer to, was a rule I absorbed with my baby- food.” - Harper Lee, To Kill a Mockingbird On direct, where a witness is being questioned by a "friendly" attorney, the attorney should always know exactly what the answer to the question is going to be. There should never be a surprise when you're questioning your own witnesses. On cross, the general rule still stands that you should never ask a question that you don't know how the witness will answer, but since they're not "friendly" and you've not had the opportunity to "prep" with them, there's always a chance that the witness will say something other than what you expect. – Be Prepared is the keyword.

Leave a good question for your last

Web sites benchmarkinstitute.org/t_by_t/cross_exam/controlling_the_witness.htm www.businessinsider.com/how-to-destroy-a-witness-on-the-stand-2013-7 www.familylaw.lss.bc.ca/resources/fact_sheets/sampleQuestionsDirectWitnessesSC.php www.dummies.com/education/law/how-to-ask-leading-questions-in-small-claims-court/ http://benchmarkinstitute.org/t_by_t/cross_exam/controlling_the_witness.htm