Don’t Ask The Question If You Don’t Know the Answer

The O.J. Simpson murder trial was caked in drama, and viewed on television by roughly 100 million people.  The pivotal moment in the trial came when prosecutor Chris Darden asked Simpson to try on a black glove that was found at the murder scene.  Simpson did so (theatrically) and it appeared that the glove did not fit his hand, which resulted in Johnnie Cochran’s now famous plea to the jury, that “If the glove doesn’t fit, you must acquit.”  

At some point in our careers, most trial lawyers learn (often the hard way, like Chris Darden) never to ask a question on cross-examination, unless the lawyer knows the answer – and can prove it!  Why?  Because the answer could destroy your case – just like the O.J. trial.  However, for reasons unknown, I continue to encounter attorneys who (apparently) have not learned this lesson.  

One case that comes to mind involved an adversary’s cross-examination of a witness that I had put on the stand to testify about my client’s company.  The witness was not my client, so opposing counsel was allowed to ask the witness about his communications with me – meaning, there was no attorney-client privilege.  Knowing this, I prepared the witness for questions concerning my communications with the witness.  

Here is the exchange between opposing counsel and that witness on cross-examination, when my adversary decided to venture into unchartered territory:

Opposing Counsel: Did you speak with Mr. Horowitz about today’s trial?

Witness: I did.

Opposing Counsel: Did he tell you what to say?

Witness: Yes he did.

Opposing Counsel: He did? OK, I want you to tell this jury exactly what Mr. Horowitz told you to say.

Witness: He said, ‘Tell the truth and only the truth . . . .’

Opposing Counsel: Objection!

Horowitz: Judge, opposing counsel asked the question, the witness should be permitted to answer.

Judge: Please continue.

Witness: Mr. Horowitz said, ‘Only tell the truth. This is a smart jury. They’ll know the facts and they’ll know you are telling the truth, so just stick with the truth.’

The result was that more than one juror couldn’t keep a straight-face and another actually giggled aloud.  In other words, by asking a question without knowing the witness’s answer, opposing counsel enhanced my witness’s credibility.  While perhaps not as dramatic as Simpson trying on the bloody glove, my adversary’s questions clearly backfired.

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