Recently I had someone ask me how to deal with a defense witness who is really good at being evasive. A witness who won’t answer questions directly makes it really hard to cross-examine them. If they do it in a way that is smooth and looks like they are being cooperative, it creates a dilemma. The answer is to start the cross in voir dire and opening.
Voir dire
Part of your job as jurors will be to determine which witnesses are more believable when there is conflicting testimony. To do that you use your common sense. The same is true for what we call “expert witnesses”. People who have special training are allowed to give you opinions, not
just facts. With experts, the same as with other witnesses, you look for things like: Is the witness giving straight answers or being evasive? Do they seem to have an agenda and try too hard to make points for the side that hired them, or do they tell it like it is and let the chips fall where they may fall? Sometimes they can be evasive in ways that aren’t obvious. For example: restating the question asked before answering it, so they can avoid the original questioning; acting as if they don’t understand a clear question; saying “it’s possible, but” when the question could have been answered with a simple yes or no; burying yes or no answers in long-winded explanations. How many of you know what I’m talking about? Do you feel you can figure out who is giving straight answers and who is being evasive, even if evasive answers are wrapped in pretty packages? Does everyone feel they can rely on common sense to assess believability of witnesses, even if those witnesses have a lot of training in areas you do not have training, so long as we give you the information you need to be able to do your job?
Opening
You have an important job, which is to get to the truth of the matter.
When witnesses give straight answers, it helps you do your job.
On the other hand, if you’re not getting straight answers, you know what that means. Evasive answers are given when a person has something to hide, and truth is not on their side. Straight shooters give straight answers.
When I ask Dr. Jones questions, see if he gives straight answers.
I have already questioned him once before trial.
Based on his answers there, I expect the evidence to show he is evasive.
The key is to watch how he answers my Qs on cross-examination, not their Qs on direct. My Qs will be the ones that test whether what he said on direct is reliable. If he is going to be evasive, that will be when it shows up.
I expect the evidence to show he will be evasive by doing the things like:
(List things Dr. Jones does to avoid hard questions so they stand out for the jury.) Maybe he won’t do it now that I have alerted you, we’ll have to wait and see.
You can bet defense counsel will tell him not to be evasive. He will either have to give you straight answers, which will allow you to effectively cross him, or his signature evasiveness will be his own undoing. Either way, the problem will have been solved.
[If you do this, you must make sure all of your witnesses shoot straight, especially your client.]