Cross-Examining the He-Said/She-Said Witness: 3 Simple Steps

Plenty of us are familiar with the basic skills of cross-examination: Always lead, Don’t ask that one last question that lets the witness deny the conclusion you want to draw, Don’t ask a question if you’re not pretty sure of the answer, Don’t let the witness explain, Take it one fact at a time, Have a goal, etc.  They’re good rules to follow in pretty much every case.  But they’re not really a blueprint to follow for crafting a useful cross.  Every case is different, and each witness requires a different strategy.

One of the most challenging types of cross-examination comes in the he-said/she-said situation.  That’s not just domestic disputes, but any situation where there are only two people who really know what happened, and one of them is testifying against you.  Maybe it’s a purported victim, telling a story about a date rape that your client insists was consensual.  Maybe you’re a prosecutor in an undercover buy-and-bust, and the defendant is testifying to a story completely different from what your undercover is saying.  It happens in all kinds of cases, to all kinds of lawyers.

The he-said/she-said is especially tough when the other side’s witness is telling a cogent story that makes sense on its face.  Taken at face value, it rings true — though that doesn’t mean it is true.  A false story can be concocted out of pretty much any factual situation, and a lie that fits a juror’s worldview can be more believable than the truth.  A lying witness has lived just like anyone else, and has just as many experiences to test the believability of their stories against.  By the time the witness is testifying, there’s been plenty of opportunity to hone and perfect that story.  (And, of course, they might just be the one telling the truth, or at least the version closest to it.)  It’s hard to even prepare for such a cross.

If all you’ve got to challenge them with is your own side of the story, you’re not going to have a very effective cross-examination.  Q: “Are you telling this jury that my client’s story is wrong?” A: “Yup” — that’s not how to win a case.  But lots of the time, that is all you’ve got.  What can you do?

Well, when all else fails, there are three simple steps to a basic but effective cross-examination here.  When all else fails, and you’ve got nothing else to go with, you can always do these three things.  It may not guarantee you a victory, but if you do these three things, you will have at the very least done a workmanlike job of it.  And often enough, it gets results.

STEP 1: LOCK IN THE STORY

The first thing you do is get a lock on the witness’s own testimony.  On direct, you’ll want to take copious notes, with your thoughts

and stars and smiley faces or whatever on the side, whatever works for you.  Now, on cross, you’re going to walk that witness through everything they just said.

Don’t add anything new.  Don’t explore a single thing.  Just Q: “Is it your story that…” A: “Yes.” Q: “And you’re telling us that…” A: “Yes.”  etc.

It’s good to use characterizing words like “story” as opposed to “testimony,” to highlight that this is not fact, but merely the witness’s concoction.  Don’t overdo it, though.  But there’s no reason why your questions should ever give credence to anything the witness has said.

What you’re doing here is locking the witness into their story, so they cannot wiggle out of it later on.  They’ll have stated each thing as fact, twice, before this same jury.

You’re doing that because the goal of this cross-examination is to do a little lawyerly jiu-jitsu.  You’re taking the inherent weakness of the he-said/she-said situation, and making it work for you.  You’ve got two competing versions of what happened.  So it’s all going to come down to credibility.  Who is the jury going to believe more?  Your cross-examination here is designed to give that jury every reason not to believe that witness.

So lock them into their story.  You don’t want them to be able to change it later, or say they were mistaken.  The witness will almost always let you do this to them.  And because they don’t know where you’re going with this — especially for the ones who were making it up — it can start to throw them off balance a little.  If that happens, great.  Keep them that way.

STEP 2: ATTACK THEIR CREDIBILITY

So far, you probably didn’t need to be on the attack.  You may well have chosen to be perfectly amiable, if only to lure the witness into a false sense of security.  And you may choose to remain amiable, whatever works.  But now the witness is definitely going to sense that things have changed, because now you’re going to be attacking their credibility.

You may not have a lot to work with.  If you’re a prosecutor, all you know about the witness may be what’s on their rap sheet.  If you’re a defense attorney, you may know even less about the witness.  It doesn’t matter, though.  Use what you’ve got.  Anything from the past that the judge will let you use, use it.  No need to get emotional about it — just a matter-of-fact recitation of the fact, followed by a “yes” from the witness, is all you need.  All you’re trying to do is put the germ of a thought in the jury’s heads.  All you want here is for the jury to start thinking hey, there’s more than meets the eye here.  Get them ready to at least be receptive to the idea that this person might not be the most honorable one they’ve seen.

Because once this background has been attacked, and you’ve raised the possibility that this person might not have been completely honorable in the past, you now want to get the jury considering that perhaps this witness wasn’t being completely straight with them here in the present.

If you’re lucky, the witness’s story has an obvious hole in it, or an internal inconsistency.  It happens, so make sure you’re listening for it on direct.  If you’ve spotted a glaring problem like this, now is the time to pounce on it.  Go to it.  You’ve already gotten the witness to reaffirm the very statements at issue, so your work here should be fairly straightforward.  Just don’t, do not, ask the witness to explain.  Because they will.  Don’t ask rhetorical questions.  Don’t get cute.  That just gives the witness a chance to repair the problem.  (And often enough, it’ll be something you don’t want to go into here, but would rather save for closing argument.  Use your own judgment.)

But you’re not always going to be so lucky.  You’re going to have to work at finding inconsistencies.  Fortunately, there are ways of doing it.

As we’re just giving the rudimentary when-all-else-fails steps here, the rudimentary when-all-else-fails method is to break down the conclusions.

Almost every fact in a given witness’s testimony is really a conclusion.  “We left at 9 p.m.” is not a fact, but a conclusion.  How does the witness know they left at 9?  “I looked at a clock as we left.”  That’s still a conclusion.  Where was the clock?  “It was in the hall.”  Still a conclusion.  On the left or on the right?  “It was on the right.”  Digital or analog?  “It had hands.”  How long did you look at it?  “A few seconds.”  Where were the hands pointing?  “The big hand was on the nine, and the little hand was on the twelve.”  Exactly? “It may have been a little off.”  One minute off?  “Sure.”  Two minutes off? “Maybe.”  Three minutes off?  “I don’t know.”  You were walking out side by side, you said?  “Yes.”  And he was on your left, you said?  “Yes.”  So you turned your head away from him to look at the clock as you left?  “Yes.”

Depending on the rest of the facts, there’s plenty of closing ammunition in there.  They were so sure of the time on direct, but now they aren’t, and maybe every minute counts in this case or maybe it doesn’t, but they’re not so sure any more.  They looked away from their companion for a good few seconds to make a note of the time, but who does that, and if there’s no testimony about any good reason for doing so then it might not ring true.

Similarly, what about a police officer’s testimony that, when he encountered the defendant in the building lobby, he saw the defendant drop that bag of heroin he’s now charged with possessing?  Seems like a straightforward fact.  But it’s really a conclusion.  Where was the defendant standing?  “Next to the staircase.”  Where were his hands when you first saw him?  “In his pockets.”  What hand do you say he dropped the bag with?  “His right hand.”  Did you see his right hand come out of the pocket?  “Yes.”  It was closed, right?  “Yes.”  What did he do with his hand?  “He put his hand behind the railing and dropped the bag.”  His hand was behind the railing?  “Yes.”  The railing is a solid wall?  “Yes.”  When his hand came back up, it was still closed?  “Yes.”  You did not see it open?  “No.”  You didn’t recover anything from his hand?  “No.”

By breaking it down into little facts, you might here be able to argue that the officer didn’t really see what he claims to have seen.  He just drew a conclusion that the guy dropped the drugs there.  But for all he knows, the drugs had already been there.

Breaking down the conclusions — and every story is made up of conclusions — is also far and away the best method of catching a liar.  Liars tend to invent only a surface story.  Nobody has the time or the inclination to invent every little detail about an event.  Even the most verbose novelists only give you a veneer, a summary of what they’re depicting.  The rest of the details are left to the listener’s own imagination.

But a liar is going to invent facts to fill the gaps, if you ask them to.  An honest person might not have noticed, but the fabricator won’t often say that.  They’ll give you a fact.  And they won’t have prepared for it.  They won’t have thought this one through.  (If they try to, don’t let them.  Interrupt long pauses with something like “please answer my question” to highlight to the jury that they’re taking their time to come up with an answer — something you can later argue is not commonly done by truth tellers.)  The more facts you can elicit from a liar, the more likely they are to contradict themselves or other evidence.  They’re going to give you gold.  Make sure you’re paying attention, so you can spot it.

Take your time with this step.  Have fun with it.  Use the witness’s own story to undermine their credibility.  It can be very effective.  If you’ve got nothing else, you’ve always got their own testimony.

STEP THREE: HIGH CONTRAST

You’ll wind up this cross-examination by making it painfully clear to the jury that there are two incompatible versions of the facts here, and they’re going to have to pick one.  After you close on the nuggets you gleaned in Step 2, you want the choice to be obvious that they should believe your version, not this witness’s version.  So you need to point out specifically where they differ.

So walk the witness now through your side of the story.  Get them to categorically deny every single fact where their story is different.  “So you’re saying it’s not true that Susan gave you a beer?”  “So Bill didn’t have any awkwardness getting his penis into your vagina, and you didn’t help put it in?”  “So you never met anybody even resembling that undercover?”

Be sure to break it down here, too.  You want as many different contradictions as possible.  You don’t want the other side to be able to explain this away as normal human error, just remembering little details wrong.  You want it perfectly clear that this witness’s story is simply incompatible with your story.  There is no way they can both be true.  All your work so far is going to be for nothing if you fail with this step.

But of all the steps, it’s the easiest.  Just walk them through it, and get them to deny as much as possible.

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If you’ve got absolutely nothing else to go on, you can always do these three simple things.  And if you’re paying attention, and you do them right, you will have performed an effective cross.

At the very least, you’re going to be able to argue to the jury that they’re going to have to pick one story or the other.  You’ll be able to argue that they should not believe the other side’s witness.  You’ll be able to argue why your facts are the right ones.

For a situation where you’ve got nothing else to work with, that’s not half bad.