How to detect “non-answers” during cross-examination

Prof. John Henry Wigmore argued that “Cross examination is the greatest legal engine ever invented for the discovery of truth.”  But that’s only true if the cross-examination is conducted by a skilled examiner.  Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it.  In the hands of a master craftsman, cross-examination can achieve remarkable results.  In the hands of a novice, it can often cause more harm than good.

To become a quality cross-examiner, you must master the ability to critically listen to  witness’s answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you’ll need to recognize is the “non-answer.”  Expert witnesses and well-prepped witnesses are the best masters of the “non-answer.”  At their finest, their responses don’t even appear to be evasive.  They’ll make it sound like they’ve answered your question, but in fact, they’re completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear. 

If you’ve ever watched a political interview, you’ve probably seen “non-answers” in action.  The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:

Q: Are you prepared tonight to say that you’ve never had an extramarital affair?
I’m not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I’m not prepared to say that about anybody…  I have acknowledged causing pain in my marriage…

Some of your witnesses have mastered the art of giving non-responsive answers.  It’s your obligation as a cross-examiner to ask follow-up questions and extract your desired answer.  Here are some examples of “non-answers” you should listen for:

Non-Answer #1: Completely Avoiding the Issue

Q: Does this skirt make me look fat?
I love you.  (Or you can try Dave Barry’s response: Sticking a fork in one or both eyes to avoid answering… it’s much less painful!)

Non-Answer #2: Describing Expected Procedures

Q: Did you request a CAT-scan?
It’s normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

Non-Answer #3: Saying What You Will Do or Hope to Do

Q: Do you support higher salaries for judges?
A: I think that’s an important issue that we should address.

Q: How soon will you have the weaponized virus contained?
A: We’re doing everything we can.

Non-Answer #4: Answering a Question with a Question

Q: Did you lock the store before you left that evening?
A: Why wouldn’t I?

Non-Answer #5: Telling What They’d Normally Do in the Situation

Q: Did you check for tire wear patterns?
Normally, I would…
Q: No, what did you do?

Q: Did you call for backup before approaching the car?
Usually, in these situations…
Q: What specifically did you do in this situation?

Non-Answer #6: Describing What Others Did

Q: Did you find any drugs in the car?
We found several packages of cocaine in the center console.
Q: No, what did you find?

Q: Who located the firearm?
A: Our SWAT team found the firearm in the back bedroom.

Non-Answer #7: Guessing or Supposing

Q: Did you read the warning label?
A: I’m pretty sure I would have.

Non-Answer #8: The Speech or the Argument

Q: I’ll ask for the fourth time. You ordered —
A: You want answers?
Q: I think I’m entitled to them.
A: You want answers?
Q: I want the truth!
A: You can’t handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives…You don’t want the truth. Because deep down, in places you don’t talk about at parties, you want me on that wall. You need me on that wall.  We use words like honor, code, loyalty…we use these words as the backbone to a life spent defending something. You use ’em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I’d rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a damn what you think you’re entitled to!

Non-Answer #9: Half-Truths or Half-Answers

Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.

Q: Did you order the Code Red?
A: I did the job you sent me to do.

To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately.  Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question.  Once you recognize what they’re trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.

One of the best ways to handle non-answers is to simply ask your question again.  For a fun example of someone doggedly refusing to answer a question, watch this clip from the BBC to see Jeremy Paxman’s interview of Home Secretary Michael Howard.  In the interview, Paxman asks the same question twelve times.  How many times does Howard actually answer the question?  You’ll need to watch the video to see!

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7 thoughts on “How to detect “non-answers” during cross-examination

  1. I second Cassandra’s question… I hear its a frequent concern for many lawyers.

  2. Wonderful article. I don’t know if you’ve done this before, but I’d like to see an article on how to handle judges who make similarly evasive non-rulings. That is, when the opponent objects, instead of saying “overruled” or “sustained,” the judge will say something like “move along, counselor.” Did the judge sustain the objection or overrule it? If you assume the judge sustained, then argue this as error on appeal, you lose, because the judge did not actually make a ruling, so it’s not preserved for review. So how do you pin a judge down?

  3. Prof. Wilcox:
    I just did a trial yesterday [mock trial — we got our acquittal]. I’ve been studying your site & your youtube videos (esp. on cross-exam) and they have been immensely helpful. I combined your fundamentals [eg. one fact per question, leading question only, short powerful questions etc.] with my class professor techniques [eg. circling the wagon before hitting the target, general to narrow etc.] That stuff is really cool — I mean its smart & effective– the type of wisdom you don’t get from average trial lawyers.

    Here are a few examples of non-answers I faced during my trial yesterday & how I handled them:

    Q: you req. 8pts of similarity before you’ll call it a match right?
    Ans: well some Fingerprint technicians will call it a match w. 7pts.
    Q: Too bad non of them are here testifying like you are… you req. an 8 pt. match right?
    Ans. Yes.


    Q: So anything below 8 pts of similarity is not a match right?
    Ans: If you are using an 8pt standard.
    Q: Aren’t we using an 8pt std. in this case?
    Ans. yes
    Q: so its not a match here right?
    Ans. yes.


    Q: so the fingerprint is not a match with Mr. Delaney right?
    Ans. Well, we can’t rule him out either.
    Q: just like how you can’t rule out all those other employee from the jewelry store? [i had already est. that previously].

  4. I this was a particularly good post. Again, I know that I compete in mock trial, but it’s amazing how many witnesses avoid questions with these non-answers. I appreciate that you gave a variety of situations wherein a non-answer is possible to come up. Besides practice and actually listening, is there any way to get better at listening for non-answers? Is that something that you go into court prepared for, a battle with a witness to extract the pertinent information assuming he/she will give non-answers? The last thing I was curious about was overall appearance. Do you get frustrated asking a question over again? Does your tone need to change? Is this different from how you could normally control the courtroom? Thanks for the help.

  5. This type of question and non-answering happens every Sunday morning on the “talking head” shows. It is amazing to me that the reporters, more often than not, accept the non-answers as the answer to their question with no follow up question to pin them down. I end up yelling at my television when that happens. This is a good excersize in learing to recognize the “non-answer” answers.