Don’t Polish a Diamond on the Stand

Don’t gild the lily. When a witness gives you a favorable answer (regardless of whether its during direct examination or cross-examination), be wary of trying to improve upon it. Too many times, attorneys have tried to lock the witness down on a point that they’ve already won, only to have the witness improve upon the answer and cram it down the attorney’s throat.

For example, let’s say you represent a man accused of Trafficking in Heroin. The government is alleging that he was part of a conspiracy to sell 500 grams of heroin. Your client was a small part of the conspiracy, and only dealt with one person, a confidential informant. During direct examination, the prosecutor asks the informant, “Was Desmond Llewellyn Witherspoon present during the negotiations?” To everyone’s surprise, the witness says, “I don’t think so.” The prosecutor (an overworked young man with 6 months of experience) doesn’t know what else to do, and so he sits down.

The wise defense attorney would say, “No questions” and shut up. But some cross-examiners would attempt to lock the witness’s favorable answer down. The result is that they impeach valuable information:

Q: You told the prosecutor that you didn’t think Desmond Llewellyn Witherspoon was present at the negotiations.

A: That’s right, I don’t think he was.

Q: So Desmond Llewellyn Witherspoon didn’t have anything to do with the negotiations?

A: I don’t think so.

Q: And Desmond Llewellyn Witherspoon didn’t set up a deal to sell 500 grams of heroin, did he?

A: I don’t think so.

Q: You keep saying, “I don’t think so,” but could you clarify for us. [pointing towards his client] He didn’t have anything to do with the heroin negotiations, did he?

A: Oh, him? Pookie? Yeah, Pookie was the guy that set up the entire deal. He called me, negotiated the prices, raved about the quality of his product, told me he could get an unlimited supply of heroin because he’d killed some guys down in Colombia and had an entire border patrol on his payroll or something like that, so he had the entire region under a stranglehold and could export as much heroin as he wanted. Yeah, Pookie was the kingpin of the entire organization. But that name you keep mentioning, “Desmond Llewellyn Witherspoon?” I don’t think I’ve ever even heard the name before. Your guy never told me his real name, everybody just called him “Pookie.”

Most often, attorneys encounter this problem during cross-examination. They’ll cross a witness and unearth a diamond in their testimony. But then, they do the unthinkable, and try to polish it while the witness is still on the stand. The results, invariably, are disastrous.

Q: Did you hear anything?
A:
Nope, not that I remember.

Q: Are you sure?
A: Yeah, pretty sure.

Q: [rubbing his hands in glee] You didn’t hear anything at all?
A: Well, nothing except for [bad fact that seemed innocuous to the witness]

When you uncover favorable testimony, consider switching to another line of questioning, or perhaps even quitting entirely and sitting down. It’s okay to quit while you’re ahead. To inquire further may ruin the presentation, or even elicit damaging information. If you keep going, you give the witness an opportunity to explain his answer. When you get a good answer, don’t push the witness on the issue. Just take your good answer and go home.

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