Got a court-trial question

[Alpo]

You see this in movies and TV trials. You have the witness up there - we'll say he's a prosecution witness - and he says, "I saw this and that". During cross the defense attorney will ask, "isn't it possible that what you really saw was this?", and the prosecutor will leap to his feet and yell, "OBJECTION!! Calls for a conclusion of the witness!" (Sometimes he says opinion of the witness), and the judge says sustained and the defense can't ask that question.

 

Do they really do that?

 

I mean, I can see the other attorney, during cross examination, trying to get the witness to recant. But when they do the, "isn't it possible" thing, would the first attorney normally stand up and object?

 

I recently bought the last season of Castle, and I was watching one last night I had not seen before. He is a witness in a murder trial, and after he says he saw the defendant murder the victim, the defense attorney leads him through this convoluted reasoning that ends up with, "so isn't it possible that what you saw was my client attempting to help the victim?"

 

And I kept waiting for the prosecutor to object and he didn't.

 

Just made me wonder.

 

Lots of stuff makes me wonder.

[LawMan Mark, SASS #57095L]

Yep.  They do.  Usually followed up with a "I withdraw the question".  But you can't withdraw the thought from the mind of the jury.  

 

Those attorneys who do that too often get censured by the judge.  

[Finagler 6853 Life]

I've been involved in several lawsuits.  In the box for one liability suit and at the defendant table for another liability suit.  Several depositions and answering pages upon pages of discovery questions.  Lawyers don't like to ask questions they don't already have an answer to.  That is why the discovery process is so tedious.  The ask questions in several different ways hoping to get an inconsistent answer that they can then probe some more.  A "gotcha".   They don't like surprises at either table.  What you see on TV is for dramatic effect.  Can it happen in real life?  I'm sure it does but from what I've seen, I'd bet not often.  Why does it take so long to procecute a criminal trial?  IMHO, if the DA doesn't think a conviction is a slam dunk, doing lengthy investigations, they won't prosecute or go for a lesser charge.  Might ruin their shiney reputation if they don't get a conviction.

[Utah Bob #35998]

Asking for the witness to draw a conclusion of form an opinion is usually cause for an objection. Leading and Loaded questions are as well. But there are intricacies such as the relationship to the witness, I.E. prosecutor of defense attorney, and if it’s direct or cross examination.

And I have been in court when I wanted to I jump up and holler at the prosecutor to object. But it ain’t TYV. Not all the lawyers are sharp.

[Red Gauntlet , SASS 60619]

The 'isn't it possible' question will usually draw the objection that it asks the witness to speculate, which is different than asking for an opinion.

 

On the other hand, a certain latitude will be allowed on cross-exam, and such a question might be allowed depending on what has gone on before in the examination. If the questioning has shown the witness to be wavering, then it could be permitted. Will be up to the discretion of the judge.

 

The old saying that you don't ask a question on cross that you don't already know the answer to is more-or-less true. There are exceptions, but not many. And never ask "why". If you do that, the witness can say anything at all he wants to say.....

[Badlands Bob #61228]

I've had evidence suppressed and ruled inadmissible, until the defense attorney asked the wrong question and I answered with the suppressed evidence.  The defense attorney objected and complained to the judge.  The judge responded, "Well, you asked the question".  Many times, public defenders don't know much about the criminal case they are defending.  They are defending the case on the fly and learning about it as the trial proceeds.  

[DocWard]

5 hours ago, Alpo said:

You see this in movies and TV trials. You have the witness up there - we'll say he's a prosecution witness - and he says, "I saw this and that". During cross the defense attorney will ask, "isn't it possible that what you really saw was this?", and the prosecutor will leap to his feet and yell, "OBJECTION!! Calls for a conclusion of the witness!" (Sometimes he says opinion of the witness), and the judge says sustained and the defense can't ask that question.

 

Do they really do that?

 

I mean, I can see the other attorney, during cross examination, trying to get the witness to recant. But when they do the, "isn't it possible" thing, would the first attorney normally stand up and object?

 

I recently bought the last season of Castle, and I was watching one last night I had not seen before. He is a witness in a murder trial, and after he says he saw the defendant murder the victim, the defense attorney leads him through this convoluted reasoning that ends up with, "so isn't it possible that what you saw was my client attempting to help the victim?"

 

 

What you are describing is not attempting to get the witness to recant. It is also not calling for a conclusion or an opinion. What it is doing, and what I would have responded with had another attorney objected had I been dumb enough to pose a question in that manner when I was litigating, is calling into question the credibility of the witness, and hence his competence as a witness. I don't mean competence in the sense that he is sufficiently intelligent, understands right from wrong, etc... I mean competent in whether he actually knows what he saw.

 

In my years of litigating, I avoided the use of "is / isn't it possible" unless absolutely necessary, or in the very rare occasion it worked in my favor (Once). Nearly anything is possible. The question is how probable or likely is something to occur. After working a witness through a long line of reasoning, if the best I can come up with is "is it possible," I'm screwed. Opposing counsel will rehabilitate the witness on re-direct examination. The question at the end needs to be "Isn't it just as likely you saw..." If the witness says "yes," you're in good shape, he has ruined his competence as a witness. If the witness says "no," and the foundation that has been laid is solid enough, his credibility comes into question.

The one time I used "is it possible," was to ask a pediatric neuro-radiologist who happened to literally write chapters of the book on the subject, whether it was possible for a two year old to get a spiral fracture of the humerus in the way the alleged perpetrator described. I knew the answer ahead of time was going to be "unequivocally no."

[Gracos Kid]

I was once reprimanded by a Superior Court Judge as I sat at the Prosecution Table and apparently whispered too loudly to the Prosecutor that the Defendant was lying from the witness stand.     I was instructed that it was the Prosecutor's duty to object, and not mine....   

[Alpo]

2 hours ago, Gracos Kid said:

 I was instructed that it was the Prosecutor's duty to object, and not mine....   

Yeah, I was thinking that it probably would not have gone over good if, when the defense attorney asked him "don't you think it's possible", if Castle had looked over at the prosecutor and said, "Isn't this where you're supposed to object because he's asking me to speculate?"