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QUESTIONS AND ANSWERS TO COMMON TRIAL ADVOCACY QUESTIONS:

Controlling Witnesses
on the Witness Stand

by Elliott Wilcox

This week's question: "How can I control my witnesses and prevent them from going into areas that they shouldn't go into?" - Shalla Phelps

Elliott answers: Even when you spend hours and hours preparing your witness, things can still go awry in the courtroom. There are several techniques you can use to keep witnesses on track during direct examination, but here are three quick tips that you can put to use immediately.

1. Start with a non-verbal technique. This is a technique used on playgrounds everyday. It also works in the courtroom. When a witness starts to ramble on or move towards subject areas that must be avoided, simply raise your hand in a "stop sign" gesture. Most witnesses will stop talking when you do this, allowing you to re-direct them towards a safe topic.

His answer, of course, was: "The Horizontal Gaze Nystagmus test."

The case ended in a mistrial because of that answer. Who was to blame? Was it the witness? Nope - he was just being honest. When I asked him about the first exercise, he gave me an honest answer. Presume that your witnesses will be honest, too. They're nervous and don't have a script to follow, so help them out. Rather than asking open ended questions, ask leading questions that point them safely past the landmines in your case. In my example, I would have been safe if I had asked, "Officer, let's discuss the walk-and-turn field sobriety exercise." It would have pointed him past the suppressed issue and towards admissible evidence. If you have dangerous areas like these in your case, ask a leading question to safely navigate past the landmine, and guide your witness to safety.

3. Let them know that you'll cover that area soon. Many times witnesses want to discuss topic #22 on your outline while you're still covering topic #5. Why? They want to talk about what matters to them. For example, your witness wants to talk about the extent of his injuries, but you need him to finish discussing the causation issues first. How do you stop the witness from rambling off in the wrong direction? One technique you can use is to let the witness know that "we'll cover that area soon." Let the witness know that they will have the opportunity to talk about the issue that matters to them, but first, you need to discuss another topic. For example: "Mr. Wickers, we'll discuss how your injury continues to affect you in a few moments, but first we need to tell the jury about..."

Assure the witness that he'll get a chance to discuss the issues that concern him most and he'll be less likely to wander away from your planned outline.

I hope these tips help you in your next trial.

Best wishes for success in your next trial!

WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter, a free weekly e-zine for trial lawyers that reveals simple, effective, and persuasive techniques to help you win more trials, guaranteed.  Sign up today for your free special report: “How to Become the Best Trial Lawyer in Your Courthouse – The Top Ten Tips for Trial Lawyers,” at www.TrialTheater.com

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