Witness Strategy

It is amazing how different stages of your life, career, or education force you to look at things from a different perspective. This week I attended a murder trial at the Lane County Circuit Court in Eugene, OR. Sitting in the courtroom I focused more on the lawyer’s strategy to approaching different types of witnesses than the law-and-order-esque drama. My criminal procedure class and moot court participation have ruined me. (I noticed the same thing watching movies).

The Defendant was charged with the murder of his on-again, off-again girlfriend last year. I was able to observe two witnesses and see five exhibits offered into evidence – though only three were accepted by the court.

The first witness was a close friend of the victim. This witness was open to sharing more information about images-2the victim, the Defendant, and what other friends thought and heard from the others than the Prosecution was trying to solicit. The Prosecution, while having obviously prepared the witness and discussed what can be shared under the evidence rules, still had to keep reminding the witness to only answer the question that had been asked. The Prosecution was quick to remind the witness before the defense could object on the basis of hearsay or relevance; actively pushing her back towards the point of the question. On cross-examination the defense actively responded to the side remarks made by this witness, Following some of the trails but gaining no ground. Mostly, defense counsel reaffirmed an appearance of the witness as a gossip. Unfortunately, I was unable to see how the jury was reacting to her testimony to effectively determine if they found her credible.

The second witness had a previous drug conviction and was obviously uncomfortable on the stand. She kept glancing nervously around the courtroom, especially at the Sheriff. This witness sold the victim’s prescription pills for her and had first hand knowledge of the Defendant’s violent outbursts against the victim. Both attorneys, especially the defense, needed to be specific and clear to elicit an answer to their question. I was surprised that the first question the Prosecution asked regarded the conviction. Until the trial, I was unaware that if the witness openly admits to a conviction during direct examination it is not subject to crimages-4oss. Her hesitation increased during cross-examination. The defense attorney’s voice became more “comforting” – not sure that’s the right word – but softer, and less factual. He was trying to build rapport so that she would trust him enough to work with his questions.

As a future attorney, whether in the courtroom or not, understanding the strategy used by litigators to elicit the information you need/want is important. No matter what type of law you practice, you will need to interact with clients to be successful. Clients do not come to see attorneys when things are going well, rather when things are not. Different people react to difficult situations in different ways. Some will want to spill everything about everyone they have ever known and you will have to sift through excessive information. Some will be evasive and need to be nudged along one step at a time while being painstaking clear with every question. As law students we have opportunities be exposed to so much. Best to take advantage when we can.

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