The Silent Cross-Examination… When nothing is better.
Nothing is more thrilling than conducting a good cross-examination of an adverse witness. The attorney through a series of leading questions wrangles concessions and makes his own case through a line of short and concise rhetorical questions that lead to an undeniable conclusion in favor of one’s client. However, there are times when no cross-examination is the best course of action. Perhaps, the witness has done no harm to your case. Or, maybe the witness is quite dangerous and your opponent has missed opportunities to bring forth damaging facts. In fact, your opponent maybe lying in wait for you to unwittingly opened the door to evidence which could undo your whole case. Many a skilled trial attorney will intentionally set traps for their opponents by baiting them into a line of questioning for which their witness has a ready response. You may ask, why wouldn’t they simply bring it out on direct examination? Well, jurors have a tendency to pay greater attention on cross-examination than direct examination because of the inherent drama of seeing an attorney match wits with a hostile witness. The impact of evidence brought out on cross-examination far exceeds the power the same evidence has when elicited on direct examination. While it takes courage to forgo cross-examination altogether, this conservative strategy will often best serve a case. As Francis Wellman observes in his classic legal treatise “The Art of Cross Examination“:
“Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers and alas! not only young ones who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case. “
There may also be occasions where the bias or inherent weakness of the witness’s testimony is so obvious that further examination can only offer an opportunity for the witness to escape his blunders or rehabilitate himself. Under such circumstances, it is far better for counsel to dramatically rise from his table stare down upon the witness as if to begin his dissection of his testimony and after a pregnant pause state “I see no need to ask any questions of this witness your Honor” and then sit down. The jury will assume counsel has mercifully spared the witness further torture and has saved the jury’s precious time for more productive matters.
As noted by Francis Wellman”[i]t cannot be too often repeated, therefore, that saying nothing will frequently accomplish more than hours of questioning. It is experience alone that can teach us which method to adopt.”