Ever had a witness who was denying that he made a statement to the police, or had a witness who pretended not to know what the contents of his statement was that HE made to the police or a witness that said he never saw his statement prior to signing it.

Then this article is for you.

Lets call this:  Witness Denial Destruction 101.

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Important:

Always have the basis laid for the statement of a witness first, before cross examine him on ANYTHING. You must first get all the info you want from a witness, all the things you want him to agree with, before you start telling him that he is a liar.

Do not make him angry, and then, ask him to agree with you on other aspects.

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This is a very common problem we have with witnesses.  They deny knowledge of the contents of a statement to the police, and now we can not use it in cross examination.  Well if you thought the witness had you there, you where wrong!!  You can get that statement in as evidence, regardless what the witness say.

This is how you do it.

First things first.

In order to be able to cross examine on a witness's statement you need to first of all lay the basis for that statement to go in.  This is a very important step, doing this wrong will open up doors for the witness to run through, and get out of his lies, before you even started.  So go about this very clever.

Remember: Because you are cross examining you are allowed to ask leading questions.  So why are you not doing it?  Do it!! It will help you.

Here is a way of phrasing questions to get the response you want.

What you need to determine, so the statement can be used is:

  1. That the witness made the statement.
  2. That the contents comes from the witness and he told it to the official whom wrote it down.
  3. That the contents of the statement was either read by himself, or read back to him, by the officer prior to signing the statement.
  4. The witness must then physically look at the statement and confirm his signature to court.

Only then can the statement be used for cross examination.  This is also called “the basis” that has to be laid before questioning.

So getting back to business, how to you phrase those questions?  This is what I do and what has served me very well in the past.

SCENARIO ONE – HOW TO PHRASE QUESTIONS

Q         Sir, you did make a statement to the police, after the incident, correct ? 
A         Yes.
Q         Where was the statement made, at the police station or your house?
A         The Police Station.

[ This is slight deviation tactic – The witness will think this is important but its not]

Q         How was the statement made?  Did you tell the Police Officer the story and he wrote it down as you where telling it?
A         Yes.
Q         Now after you told the Officer the story, did he read back the statement to you or did you read it yourself, prior to signing it?
A         He read it back to Me

[ This is the punch line – note the way the questions are phrased, they are NEVER OPEN ENDED.  What this means is there is clearly defined answers, the witness does not have to think and he can just choose.  DON’T let the witness think, its dangerous!!  Give the witness the answers you want him to choose from.

Obviously you will get the occasional witness that will give you -  “option 3”, the option you never mentioned in your question, and that is – “I did notread the statement and the officer did not read it back to me either.”

When you hear that, just chill, we will get to that problem just now.  After all I did say, you will get the statement in at any and all cost now, didn’t I?

Going back to our original cross examination line….

Q         And after the officer read it back to you, you where satisfied that what he read was what he told you, right?
A         Yes.
Q         Then You signed the statement, correct ?
A         Yes.
Q         Can you please take a look at this statement and confirm for the court that this is indeed the statement you signed.
A         [The witness now physically looks at the statement and confirms his signature]

Right – This is scenario one – We now have the statement in and can point out all his little flaws and differences between his evidence in court today and his prior police statement.

Merely by phrasing questions correctly we can mostly get what we want.  However it isn not always that simple now.

NEXT SCENARIO – WITNESS DENIES KNOWLEDGE OF THE CONTENTS OF THE STATEMENT.

Q         Sir, you did make a statement to the police, after the incident, correct ? 
A         Yes.
Q         Where was the statement made, at the police station or your house?
A         The Police Station.

[ This is slight deviation tactic – The witness will think this is important but its not]

Q         How was the statement made?  Did you tell the Police Officer the story and he wrote it down as you where telling it?
A         Yes.
Q         Now after you told the Officer the story, did he read back the statement to you or did you read it yourself, prior to signing it?
A         I did not read the statement and the officer did not read it back to me either.

[Oops what now?  Well, actually there is more than one option. Lets think here for a second, what is this witness now actually saying.  The story, which was written down, came from him but he does not know what the officer actually wrote down in the statement.

Well that could or could not be so.  The process followed at court is that on the morning of the trial, usually, not always, the prosecutor would let the witness read the statement before he consults with the witness and the witness testifies.  So lets try that avenue first….

Q         Sir this morning, when you came to testify, did the prosecutor speak to you?
A         Yes.
Q         And did the prosecutor gave you your statement to read through or did he read it back to you?
A         Yes.
Q         When you read it, where you happy with what you read?
A         Yes.
Q         That was what you told the police officer that day when you made the statement, correct?
A         Yes.

[Ok, So the problem is solved now.  You continue the rest of the question as shown above.

Well what should happen if the prosecutor did not consult or did not give the witness the statement to read through?

This is where our next line of cross examination comes in.  What happens now is important.  Remember the prosecutor has to consult with his witnesses! If it does not happen, it is a mistake!!!  So make a racket of it, that way, next time you will not have a witness who says “The prosecutor did not speak to me.”

So how do we make this racket…..

Q         Sir this morning, when you came to testify, did the prosecutor speak to you?
A         No.
Q         And did the prosecutor gave you your statement to read through or did he read it back to you?
A         No!
Q         Sir, are you saying that when you came here this morning no one spoke to you about the testimony you are about to give here today?
A         Yes.
Q         So you where just pushed into the dock here this morning and told to tell a story without anyone preparing you for this.
A         Yes.
Q         So the prosecutor never spoke to you this morning?
A         No.
Q         And how did that make you feel, testifying like this without being prepared?
A         Its difficult doing it, I did not know what to expect….

[You can, off course, drive this point further and make an even bigger racket of this.  Remember, if it does not work and the prosecutor continues calling witnesses without consulting, then continue the rackets, and make them worse every time.  That way the message will be driven home at some time.]

Ok So what now, the prosecutor never spoke to the witness, we still don’t have the witness with knowledge of the contents of the statement.

Next Solution….

We have cross examined and the witness made a statement to the police but the police never read the statement back to him and the prosecutor never consulted with the witness either…..

Q         Sir, when you made the statement at the police, you where telling the story and the police was writing down, correct?
A         Yes.
Q         While you where telling the story the officer wrote on a piece of paper, correct?
A         Yes.
Q         You do not know what he wrote there, correct?
A         Yes.
Q         Then after he wrote the story on the piece of paper, he gave it to you and you signed it without reading it, correct?
A         Yes.
Q         So you will be able to confirm, whether it is your signature, on that piece of paper that you do not know what the contents of is, correct?
A         Yes.
Q         Take a look at this piece of paper sir, and see if you can confirm that it is your signature.
A         [Witness checks the statement and confirms his signature]
Q         Ok Sir, so we now know that this paper was the paper the officer was writing on, that day you where telling him the story.
A         Yes.

[Now you take that statement, piece by piece, and you ask the witness systematically whether he told the police this (what is written in the statement).

If he says yes, its fine….You can cross examine on the differences between the testimony today, and statement to the police.]

If he says no then…

Q         Sir, so this part you never told the police.
A         No.
Q         So the police made this part up?
A         Don’t Know.
Q         Well, either the police got it from you, or they thought it up themselves, which one is it?
A         They thought it up.

[Well this scenario will be considered very unlikely by the court, so chances are, the court will not easily except this, and the court will start doubting the witnesses testimony – Which is exactly what we want.

This also illustrate how to deal with the “ I don’t know” answer, we so often hear.  Force the witness out of it, never except the “I don’t know”…]

This method above could be followed even if the witness completely denies ever making a statement to the police and you have the statement he made.

In such a case, You will then ask the witness….

Q         Sir, will you be able to confirm whether it is your signature on a piece of paper, even if you do not know what is the contents thereof ?
A         Yes.
Q         Take a look at this piece of paper sir, and see if you can confirm if this is your signature.
A         [Witness checks the statement and confirms his signature]

Now He will either acknowledge or deny. If he acknowledges, then how did his signature get there….. and you take it from there.

If he denies, then you take the statement piece by piece, and read it to him, asking him every time if he ever told the police this and that etc….

Strangely, you will find that the contents will be confirmed in some way (in part or in whole), and the question would then be, how did the police get this info if you never told them?

Allways remember to Have Fun….

 

 

 

Last Updated ( Sunday, 13 September 2009 12:21 )