Posted on 12/3/18

Before going to trial, lawyers will conduct a practice round of questioning under test conditions. In addition, lawyers will strategize how they will question witnesses and will consider what questions they want to ask witnesses. All of this, in addition to the research required for understanding the legal issues facing a client, is part of the work at the law offices of Christopher Abel.

Contrary to legal dramas on television, there are no secret witnesses who come out of nowhere without the defense team’s knowledge. The defense team will know about a witness. The defense team will then employ its tools in getting enough knowledge about the witness prior to the trial. The defense team can use interrogatories and depositions, in certain situations, to gather information about a witness. It can use a google search and will often try to get a sense of the witness by looking up the witness’s social media posts. All of this will be used in a court of law when the defense lawyer cross-examines a prosecution witness. Cross-examination of a prosecution witness is often where a case is won or lost.

Consistent Testimony

It is common for the prosecution to call multiple witnesses to testify about the same point. The theory behind this is that multiple witnesses will further cement the idea that the defendant committed a certain act or was in a certain place at a certain time. Jury consultants, who are people who study jury actions, often suggest that the prosecution use this tactic. In general, a jury tends to be more emotional and less “logical” than a judge. Multiple witnesses play to that emotion.

Prior to taking the stand, a prosecution witness will go to the prosecutor’s office for training. At the prosecutor’s office, the prosecution team will prepare the witness for testimony. When there are multiple witnesses, the prosecution will prepare the witnesses to speak with a consistent voice. The discerning ear of a defense lawyer will be able to pick up on inconsistencies of witnesses.

Note, however, that total consistency is not necessarily a good thing. If each witness says the exact same thing with the exact same details then it will sound like a contrived speech instead of a legitimate testimony. Details are very important in criminal prosecutions because the details must demonstrate that the defendant committed the act beyond a reasonable doubt.

As such, a defense lawyer will look to catch the witnesses when they discuss certain details. Are the details mismatched? Are they too similar and sound contrived? The defense lawyer can question witnesses about these details and then present the findings to a jury.

Ultimately, it is the prosecution’s job to demonstrate that the defendant committed a certain act beyond reasonable doubt. If the prosecution calls witnesses to the stand who have difficulty striking the balance between basic witness coaching and sounding contrived then the defense attorney’s job is to point out these gaps.

Accused of a crime? Speak with the criminal defense firm of Christopher Abel, a board-certified criminal defense attorney.

(image courtesy of Joe Perales)

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