Cross Using the Witness’s Technology

In the past many witnesses (both expert and courtroom savvy lay witnesses, or street smart lay witnesses) have used the apparent safe haven or apparent zone of comfort afforded them by the use of saying: "I can’t recall." or "I don’t remember." and less often "I don’t know." To be sure, some witnesses truthfully answer that way, but this article does not focus on them.

The insincere witness feels that once he or she retreats to "don’t recall" or its ilk, that further cross examination of that chapter, area, or line of questions is halted. Many insincere experts have learned from experience that many lawyers are stymied, and forfeit all pursuit of that chapter (See Chapter 9; "Cross Examination: Science and Techniques"; .. The Chapter, Method of Cross Examination.

Diligent trial lawyers developed methods to combat this less than truthful (not the whole truth) device. See Chapter 20; "Dealing with the 'I Don't Know' or 'I Don't Remember' Witness".

As technology has progressed and become so widespread as to be ubiquitous, cross-examiners have taken an all too common courtroom annoyance, distraction, and occurrence ("Turn off that iPhone, Blackberry, or other hand held device".) and turned it to their advantage. Not only has it become an advantage, but one of the few remaining "spontaneous" safe moments in conducting cross examination. (Spontaneous is a word of art in the courtroom. Nothing in the courtroom, and certainly nothing in cross-examination, is truly "spontaneous". Even in the moment when an unexpected (and at times fear induced) answer by the witness in cross-examination causes the examiner to come up with a new chapter of questions, those cross examination questions originate through related preparation and total immersion in the theory of the case, coupled with previous thought and analysis of the downside risk concerning the planned chapter and prior experience with this type of witness or this specific witness.)

Like so many techniques that can be replicated and expanded, the first evolution of this technique was less than planned prior to trial. The witness in a hotly contested TRO hearing for a trade secrets violation case had failed to turn off his Blackberry after lunch. When he took the stand for the resumption of his direct testimony, his phone began to beep before 20 minutes had expired. He was quick to silence it, and never hesitated in his testimony. He showed no embarrassment, nor was he distracted. Very smooth.

At the time, the cross examiner only consciously registered that the witness was not easily distracted, nor was the courtroom intimidating him. When cross examination began, it was not long before this witness insincerely retreated to the "I don’t recall" answer when questioned about emails he had sent to former customers and prospective employers. The cross-examiner remembered the Blackberry on the hip of the witness.

Q: You have your Blackberry with you?
A: Yes.
Q: You send emails from it?
A: Sometimes.
Q: Pull it out, turn it on and let’s find that email to X, shall we?
OPPONENT: Objection! May we approach the bench?

The opponent had no real legal objection, but plenty of words to object. The judge (an older woman) said she would allow it. When the witness explained he could not get "it" to come on ("it" did come on when the judge observed she thought she could get "it" on) (turns out the judge had grandchildren who insisted on communication with her in email, Facebook, Twitter, and whatever else is out there). Then the witness could not "find" previously sent emails. Again the judge offered to help "find" them. Some emails were found. Memory of the witness improved. What was not found, the judge decided would have been consistent with the cross examiner’s theory.

What do we learn from this?

The limitation placed on witnesses who can’t recall for less than genuine reasons is now severe. Technology either remembers for the witness, or finds the fact itself in seconds. If the information cannot be found, fact finders are quick to embrace the presumption that the witness is intentionally not producing the desired information.

Cross examiners need not feel confined to previously sent emails. In just the last six months, witnesses on cross examination have been forced, in real time, to disclose the marital status supplied to friends on Facebook (domestic relations case), a detective’s hours worked on a given day (criminal case), the relative dew point (having to deal with fog) (aviation case) and other "can’t recall", "don't remember" facts.

All lawyers should be insistent that none of their witnesses take Blackberrys, iPhones, lap top computers or any other "memory/fact finding devices that we all take for granted to the stand. But even then, the witness is not immune to the "I don’t recall." cross-examination. The cross-examiner can supply the witness with an internet accessible device. In fact, for the detective that is what happened. When the detective was not certain of his password to access his hours, the judge sua sponte offered to take a recess to help. The detective suddenly recalled.

The instant information paperless age of the internet we live in has forever severely limited if not destroyed the "I don’t recall." and "I don't remember." dodge of the insincere witness on cross examination.

*Author* of this Article: Valdosta injury attorney Roger Dodd