I am not one of those lucky souls who can speak extemporaneously in perfectly coherent paragraphs. Thus, when conducting cross-examinations, I am not surprised when a witness informs me that he or she does not understand my question. More rarely a witness on cross-examination–most typically the opposing party–will comment that he or she did not understand why I was asking a particular question.
Few attorneys note a big distinction between those two statements. However, I believe there is a tremendous distinction between a witness who complains about not understanding my question and a witness who complains about not understanding why I asked a particular question: the second witness is not obeying the oath or affirmation taken at the start of testimony.
A cross-examination script to highlight this is as follows:
▸ Am I understanding you correctly that your complaint is that you do not understand why I asked you that question?
▸ I assume then that you believe you understood the purpose behind all my previous questions?
▸ You recall the oath [or affirmation] you took at the start of your testimony?
▸ It was to tell “the truth, the whole truth and nothing but the truth?”
▸ To do that you need to do the following:
- listen to my question;
- understand my question;
- search your memory for the truthful answer to that question;
- provide me the truthful answer?
▸ None of this requires an understanding of the purpose of my question?
▸ Yet with every previous question, you have been searching for my question’s purpose?
▸ You could not have been taking this step before you understood my question?
▸ And you had to do this before you answered my question?
▸ So you were considering my question’s purpose while searching your memory and formulating your answer?
▸ This step was completely unnecessary to answer my questions truthfully?
The following questions are rarely answered in the affirmative. However if you’ve established all the previous points it doesn’t really matter.
▸ So the only reason to consider my questions’ purpose is to decide how to frame your answer?
▸ Thus, your need to understand my questions’ purpose is to make sure that your answers do not unexpectedly damage your position?
▸ And every answer you’ve given so far is not the whole truth but merely a partial truth that minimizes damage to your position?
No witness ever acknowledges doing these last three things. However when they deny that is what they are doing, one can ask them to explain why then they are working so hard to understand why you are asking the questions being asked. In my experience no witness ever has a credible explanation for why they cannot truthfully answer my questions without understand my questions’ purpose. An admission by a witness that he or she is hesitant to answer questions without understanding the purpose of each question is basically an acknowledgment that this witness’ testimony may be “the truth” but it is not “the whole truth and nothing but the truth.”
