BRINGING OUT NEGATIVE INFORMATION ON DIRECT-EXAMINATION.
Very few people will be afforded the opportunity to call an angel to the stand and conclude their direct-examination confident that there is absolutely nothing out there in the universe which will be problematic when opposing counsel conducts their cross-examination. Those of us who litigate in the real world understand that witness preparation, both for direct and potential cross-examination, is an essential point of trial work.
All good trial lawyers know that there are several things one has to keep in mind when preparing a witness to testify. Today we are going to focus on what you should do if you know that your witness has issues which are going to be major subjects of cross-examination.
For example, let’s say you are a prosecutor on a homicide trial and you have a witness who claims that she personally observed the defendant kill the victim. But let’s also assume that when this witness was first questioned by the police, she told them that she did not see anything and did not know who the killer was. If she testifies now that she remembers seeing the incident clear as day, the defense attorney is certainly going to spend a significant amount of time going through her initial statements to law enforcement to attack the credibility of her testimony.
Here is another, similar example. A witness to a crime has been consistent with her statements from the first time she was contacted by law enforcement and questioned. She has never waivered and has given substantially the same story each time she has been asked. But she has a conviction for fraud, or some other crime which involves lying in a way which was so egregious as to make it criminal. There should be no doubt that any moderately competent defense attorney is certain to bring up her criminal history with the implication that she has had no issues lying in the past despite the serious implications of doing so.
This is certainly not a problem which only applies to prosecutors. These same issues affect defense attorneys calling witnesses and very frequently involve the decision to call the defendant himself to the stand.
Here is the basic problem: if an attorney chooses to avoid the negative topic, and the opposing lawyer brings it out on cross-examination, the jury is going to be left with one of two impressions. Either the lawyer is incomptent and did not know about this glaring deficiency in his or her case created by their own witness or they were trying to hide it from the jury. Jurors rarely side with lawyers they feel are incompetent, they are much more apt to unconsciously decide that the better prepared and more capable attorney is giving them an honest account of the incident in question. If the jurors conclude the lawyer is deliberately trying to keep relevant information from them, then they will inevitably wonder what else the lawyer has been trying to hide, and the lawyer loses credibility and any benefit of the doubt he or she has earned with the jurors up to that point.
So what should attorneys do when faced with this dilemma?
You can take the bite of the disclosure of the negative information by bringing it out on direct-examination. Controlling how information is presented to the jury has a major impact on how they will react to it. On direct, the witness has the opportunity to explain the discrepancy or give context as to why things that appear contradictory may not be so problematic in ways that a good cross-examination would not invite. Witnesses have the ability during a direct-examination to answer open ended questions, giving a narrative or a story which fills in gaps or explains a situation thoroughly. On cross-examination, they are typically asked “yes” or “no” questions and an experienced attorney will limit their answers and cut the witness off so that they cannot try to expound on or qualify their responses.
Very shrewd attorneys will dump this negative information in the middle of their direct-examination to blunt its impact. If they introduce it too early, it will color how the jury perceives the rest of the witness’ testimony, while if it comes too late it becomes the final impression that the jury is left with. But by putting it in the middle, the lawyer is able to get the information to the jury in a muted way, allow for an explanation and then be subsequently forgotten as unimportant. That way, when the topic is then brought up again on cross-examination, the jurors feel they have already heard it and are less likely to be impacted by how truly damaging the information may actually be.
The murder trial of George Zimmerman for the shooting of Trayvon Martin provides an excellent example of what can happen if a lawyer fails to deal with negative information on direct-examination. During that trial, the special prosecutor in Florida called Martin’s girlfriend to testify as their sole witness to identify Martin’s voice on a recorded 911 call. Both sides were offering contrasting versions of whose voice was on the phone. During her direct, the prosecutor avoided discussing a number of known credibility issues Martin’s girlfriend had, and defense attorney Don West was able to introduce and walk through these subjects to the degree that the jury completely disregarded her entire testimony at the end, which impacted Zimmerman being acquitted. This was a major unforced error by the prosecution in that case.
Trial lawyers are always attuned to not only the information which gets presented to a jury, but the manner in which that information is elicited. Sometimes, the question of how it comes out is just as important as what the actual information is. These types of nuances are what separate out the top tier of trial attorneys and demonstrate how these lawyers provide their clients with the absolute best chance of winning at trial, regardless of who they represent.
By: Paul Townsend