May 27, 2020

The ‘Why’ Question Technique In Cross Examination | Izuchukwu Temilade Nwagbara


Many rules, principles and cues for effective cross examination have been formulated and adduced by many profound litigators and legal scholars.  In fact, books and articles written on the subject are by no means scarce. Alexander Tanford argues that cross examination is primarily a tool for proving one’s case by eliciting testimony from a witness. It is pertinent to note however that witnesses would not readily oblige Counsel the needed testimony, as such Counsel’s cross examination must be strategic to elicit such testimony.

There are varying purposes of cross examination depending on the nature of the witness and his/her testimony; to impeach credibility of the witness, to establishing inconsistencies in witness’ testimony, to reduce the weight of the witness’ testimony- particularly in reference to expert testimony- and so on. Francis L. Wellman, in his book The Art of Cross Examination, devotes chapters seriatim to dealing with different kinds of witnesses.  
There are varying techniques of cross examination. However, one technique many legal scholars generally deride is the ‘Why’ question- or ‘how come’. Louis Nizer, in his book My Life in Court, says: ‘One can quickly spot a bad cross-examiner if he asks “why”’, arguing that the ‘why’ question gives the witness free rein to explain away his conduct. For instance, a wife asking her husband ‘If your meeting ended at 8:00pm, why did you get home at 10:30pm? (…how come you got home at 10:30?)’. The husband can explain himself out and conveniently fill up for the 2 hours 30 minutes gap to obfuscate his wife from the truth.  
On the other hand, renowned litigator, Vincent Bugliosi, states that the ‘why’ question is his main technique on cross examination and wonders why trial lawyers, who need it the most, frown at the technique. His explanation on the ‘why’ technique is very enlightening and instructive. Bugliosi admits that real witnesses in court are as elusive as all hell, and that on the brink of public humiliation, they seem to get their minds working as fast as Houdini’s- the popular escapologist and illusionist of early 20th century- hands worked in a trunk at the bottom of the Hudson River. The underlying factor behind this technique then is that if he feels a witness is lying, he knows that he would not have acted in a given circumstance, the way a person telling the truth would have acted. He explains the ‘why’ question technique thus:
First, you elicit answers from the witness on preliminary matters, answers which when summed up, indicate that he would be expected to have taken a certain course of action, or act in a certain way. The witness having committed himself by his answers, you then ask him what course he in fact took, and follow this up with the ‘why’ question. Note that while asking the preliminary and subsequent questions, the cross examiner must ensure to block off all possible escape hatches. For instance, in the scenario of the wife and husband above, the cross examination could go this way:
W: Honey, your meetings don’t normally end late, max by 6pm you are done.
H: Yes dear
W: So, what happens when you finish board meetings very late?
H: The company provides the company bus to convey us, board members, straight to the nearest bus stops to our houses.
W: And did they provide it tonight?
H: Yes, it brought me straight from the office to the nearest bus stop. There was so much traffic, hence my lateness.
W: So WHY did Amina, my friend, picture you with a lady at Swiss Hotel bar by 9:30pm?
From the above, the wife starts by asking preliminary questions to elicit answers as to course of conduct expected of her husband when board meetings end late. She then asked her husband if he followed that course of conduct to which the husband committed himself to an answer, and BOOM- the ‘Why’ question. If she had just asked him ‘You said your meeting ended 8pm, that was why you came home late, why did my friend then picture you with a lady at swiss hotel bar by 9:30pm?’; he could easily say ‘After the board meeting ended, myself and a colleague had to submit a proposal to a female client at swiss hotel bar’. His answers might not fully convince his wife, but if his colleague can corroborate him, he has successfully eluded his wife.   
In essence, the ‘Why’ question technique of cross examination isn’t so ineffective as many lawyers and writers have, innocuously, painted it to be. It can be a very potent technique provided you administer it succinctly. The foremost thing to note is that while asking the preliminary questions, ensure to block off all possible escape hatches, for just as no magician can pull a rabbit out of the hat when there isn’t any rabbit in the hat, a witness can’t escape when he has nowhere to go.
References
1.      Tanford J. Alexander, ‘Keeping Cross-Examination Under Control’ (1994). Articles by Maurer Faculty. Paper 627 http://www.repository.law.indiana.edu/facpub/627
2.      Francis L. Wellman, ‘The Art of Cross-Examination’ (1903). London: Macmillan & Co, Ltd.
3.      Vincent Bugliosi, ‘Outrage: The Five Reasons Why O.J Simpson Got Away with Murder’ (1996). W.W. Norton & Company.

Izuchukwu Temilade Nwagbara is a graduate of law from Nigeria's premier University; University of Ibadan. He is currently a student of the Nigerian Law School, Yola Campus. He aims to be a dexterous litigator. His interests include International Criminal Law and Environmental Law. 


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