Testimonial Minefield: An Overview Of Interrogation
Techniques Utilized By Attorneys During Adversarial Questioning And
Eric L. Nelson
Abstract: Attorneys are permitted to use aggressive
interrogation techniques during adversarial questioning of a professional
called upon to provide expert testimony in a matter at law. Nineteen
such methods are identified and explained in this article.
Professionals may wish to self-assess for vulnerability using the material
from this article as a template for analysis.
American jurisprudence is fundamentally adversarial; accordingly,
witness testimony is subject to hostile cross-examination in many cases.
Adversarial attorneys are permitted to use a number of interrogation
techniques which sometimes seem intended more to befuddle a witness or
diminish her/his credibility rather than elicit truthful and accurate
In addition to being memorialized word for word in the court record,
testimony of professionals is sometimes observed by specialists who record
claims, opinions, retractions and errors in commercial databases (Ruvoldt
& Serebrenik (2001). Such information can be purchased by attorneys
for use in future cases. Even a single error can be resurrected in
every future case in which the professional provides testimony, possibly
making expertise more difficult to establish in future cases.
Unlike the diligent professional who may prepare to testify by
thoroughly reviewing the matter at hand, the adversarial attorney who will
question her/him is likely reviewing not only the evidence of the case,
but also preparing a tactical offensive directed against the expert
witness. Such an attack is intended to undermine the expert's
opinions and attack her/his credibility (Ruvoldt & Serebrenik (2001).
Lines of questioning are developed to break down the expert's resistance (McElhaney,
2003), attack her/his character (Alavi, A. & Ahmad, N., 2002), and
undermine her/his opinions and credibility (Dysart & Zuckett, 2000). A.
Bell (1999) notes "... the world of cross-examination is without limits."
Books such as "Guerilla Cross-Examination Tactics" (S. Bell, 2003) provide
instruction on the finer points of adversarial examination of a
It is the presence of subterfuge within some interrogation techniques
that poses a danger to the professional who naively assumes that a
truthful intent and professional diligence will inoculate from testimonial
harm. In order to be a guardian of truth the professional must learn to
navigate through dangerous interrogation traps. The purpose of this
article is to identify some of the testimonial challenges which a
professional may face so that they can better prepare for hostile
Tactics & Methods Of Witness Interrogation
Method ONE: Direct Questioning
Questions are phrased in a manner which calls for a yes or no response
from the witness. The purpose of this method is to prevent
explanations; in doing so the attorney can create a set of responses which
are more favorable to his/her case. A secondary purpose for the use
of this method is to attempt to bait anger (see method twelve).
Method TWO: Testing Recall
Questions are used to probe the breadth and depth of a witnesses'
recall. When areas of deficiency are uncovered, opposing counsel
begins to ask follow up questions within those areas, demanding greater
detail. This will result in the witness having to repeatedly state
that (s)he does not know the answer to a question which is posed.
The purpose of this method is to create an appearance of ignorance, lack
of preparation, or professional incompetence.
Method THREE: Professional Knowledge
Questions are used to probe a witnesses' knowledge within her/his
discipline. They can include knowledge of methods, machinery and
equipment, professional standards, relevant science, and the academic
literature pertinent to one's profession. Areas of deficient
knowledge will be pursued in order to elicit repeated acknowledgements of
ignorance. The purpose of this method is to create an appearance of
professional incompetence, and perhaps dereliction of professional duties.
Method FOUR: Challenge Integrity
The witness may be challenged as racially prejudiced, sexist, or
scientifically dishonest predicated upon even the slightest basis, even if
facts are misrepresented in order to do so. If the witness is
employed by a prosecutorial agency (e.g., police, CPS), (s)he may be
challenged as biased towards prosecution, rather than fulfilling the duty
to equally investigate for proof of innocence as well as guilt.
Marital unfaithfulness, financial irresponsibility, and past criminal
history (e.g., drunk driving arrest, petty theft) can be introduced for
explanation as well. The purpose of this particularly vicious method
is to damage the witnesses' trustworthiness and character.
Method FIVE: Magnify Mistakes
The transcripts of a professional's testimony in previous cases are
introduced into evidence. The witness is then challenged to
reconcile previous error, reversals, contradictions, and disqualification
from expertise. The purpose of this method is to diminish the
strength of the witnesses' testimony, and perhaps to provide a basis for a
challenge to her/his expertise.
Method SIX: Use Of Hypotheticals
Questions are posed using hypothetical facts, in order to determine if
the witness will change his/her opinion. If the facts plainly merit a
reversal and yet the witness refuses to do so then the witnesses'
integrity is diminished. If the witness changes her/his opinion, then
counsel will ask "How do you know this isn't, in fact, what happened?" The
purpose of this method is to reduce the strength of a witnesses'
conclusions by introducing an element of uncertainty.
Method SEVEN: New Material
Questions are posed based upon new material first introduced in trial. If
a witness only makes an appearance to provide testimony, and does not
attend the entire trial, (s)he may be blind-sided by the new information. The witness may be asked to revise his/her opinion(s) based upon the new
information without the benefit of time to fully consider its merits. The
purpose of this method is to elicit a new and possibly inadequately
reasoned opinion which may be flawed and therefore subject to further
Method EIGHT: Re-phrased Answers
Questions are repeated periodically, often worded differently, typically
during long and tiring sessions of microscopic examination of the facts of
the case and the professional's opinions and conclusions. Should a witness
rephrase an answer previously given, opposing counsel will challenge the
witness as to which answer is correct, and which was incorrect. Though the
content of both answers may be identical, the use of changed language is
all that is needed as a basis for challenge. The purpose of this method is
to create the perception of witness inconsistency and uncertainty.
Method NINE: Attack Upon Qualification Of Expert
Questions will be asked about professional training and experience. A
professional with a master's degree will be challenged as to why (s)he
does not have a doctorate. IF the witness is not a member of all the
appropriate professional societies, (s)he will be
challenged on that. (S)he may be asked to list the professional journals
(s)he reads regularly, and perhaps what was the last article read, which
journal was it in, and to summarize the contents. The professional may be
asked about so-and-so's methods
which were published a few years back, etc. The purpose of this method is
to create the perception of significant professional inadequacy, and
perhaps to establish the basis for disqualification from providing expert
Method TEN: Attack Upon Basis For Opinion
Adversarial counsel will attack the professional's facts, methods,
equipment, acceptance thresholds and all items relied upon when forming an
opinion. Gaps and deficiencies will be exploited by detailed interrogation
wherein the professional will be compelled to
admit weaknesses and faults. The purpose of this method is to diminish the
standing of the professional's opinions and conclusions.
Method ELEVEN: Baiting Arrogance
The opinions and conclusions of a professional are challenged in an
aggressive and personalized manner intended to make the witness exude
excessive confidence and
perhaps elicit an egoistic display. Often the witness will be asked if
(s)he is absolutely certain, without reservation, that the facts (s )he
has testified to and conclusions formed are entirely, 100% correct, true
and accurate. The purpose of this method is to create a perception of
untoward self-confidence, demonstrated by mannerisms, or by
unwillingness to entertain uncertainty. The assumption this within this
method is that witness arrogance will not be received well by the trier(s)
of fact, and thereby lower any favor which the witness may have earned.
Method TWELVE: Baiting Anger
Questions are asked using a demeaning or condescending tone. Responses may
be interrupted so that answers are incomplete. The purpose of this method
is to make the professional display anger, perhaps by responding with
condescension, irritation, or even confrontation. Triers of fact, whether
jury or judge, typically do not like displays of
anger. The objectivity of an angry person is questionable, and her/his
credibility may be diminished as well.
Method THIRTEEN: Eliciting Damaging Concessions
Opposing counsel will confront the professional with evidence which may
cause the witness to alter an assumption or conclusion. The purpose of
this method is to cause the witness to agree with opposing counsel, to
show that the witness did an insufficient job of investigation and
preparation, and perhaps both.
Method FOURTEEN: Discrediting Estimates
Questions will be asked which require estimating time, distance,
conditions, important dynamics, etc. The accuracy of answers are then
established standards, in order to determine the error rate of the
witnesses' estimates. For example, a police officer may be asked to
estimate the distance from which (s)he
observed a drug sale. Suppose the answer is 20 feet. The witness will then
be directed to identify a fixed item in the court room which is the same
distance away as the drug sale. Opposing counsel will then ask the judge
to have the bailiff measure the distance to the object picked. Suppose an
empty chair in the juror box is chosen, and the distance
measured is found to be 30 feet, this will mean a distance estimation
error rate for the
witness of 50%. The purpose of such a procedure is to cast doubt upon the
ability of a witness to observe accurately.
Method FIFTEEN: Planting Information
These questions have a disguised intent. They contain an assumption
passing, and then a distracter which is sometimes inflammatory. The
distracter is chosen to elicit either a known yes or no answer. Once the
answer is given, it will then be
applied not only to the distracter, but to the disguised assumption. For
there in the dark you saw the suspect pull a gun, and so you shot her. Is
that correct?" If the witness is a police officer known to have shot the
suspect, the known answer will be "Yes." Later the witness may be
challenged thusly: "You previously testified that there
was light in the room, coming from a street lamp, yet later you testified
that the room was dark. Which answer is truthful, and which answer is not
correct?" The purpose of this
method is to create confrontational ammunition, and to discredit the
Method SIXTEEN: Interruption
Witness responses are interrupted with another question. The purpose of
this method is
to stop explanations which might damage opposing counsel's position. This
method may also be used to bait witness anger in conjunction with
method twelve (baiting anger).
Method SEVENTEEN: Quoting From An Unfamiliar Source
Opposing counsel will quote from a source with which the professional is
not familiar. Because of witness unfamiliarity, the attorney may quote
information in a manner such
that it conveys a meaning opposite of the author's intent, and the witness
won't be able to know otherwise. Likewise a source of low credibility, or
perhaps scientific unreliability may be used. The witness is then directed
to opine as to the article's bearing upon the matter at trial. The purpose
of this method is to try to elicit a changed or qualified
opinion from the witness, and to create a sense of incomplete professional
preparation for failing to be previously aware of the article, and to have
considered its merits upon the matter under consideration.
Method EIGHTEEN: Increasing The Tempo
Questions are delivered rapidly, with little pause between a
professional's responses and the next question. The purpose of this method
is to try to speed up the witnesses'
responses and thereby decrease the amount of time (s)he has to think about
her/his responses; in turn, this may raise the likelihood of a
misstatement or other error which can then be used against the witness.
Method NINETEEN: Cost Of Expert
The professional is asked how much her/his fees are for each aspect of
service provided, including testimony at deposition or trial. The purpose
of this method is to attempt to create an appearance of bias by the
professional in favor of the party who retained his/her services, and
secondarily to perhaps create resentment in jurors who may see the fees
for service as excessive.
An attorney's adage suggests: When the law is on your side, pound the law. When the facts are on your side, pound the facts. When neither the law nor
the facts are on your side, pound your opponent. The experience of hostile
questioning by adversarial counsel is a reality under the American system
of justice. It could be argued that there are two types of professionals
who provide courtroom testimony: Those who have been pounded upon by
adversarial counsel, and those who will someday be pounded upon by
Unquestionably close cooperation with friendly counsel is fundamental to
weathering some of the challenges a professional may face while providing
Friendly counsel should brief a witness regarding new evidence submitted
during legal proceedings, and other important changes in the case before
the professional begins testimony. Upon re-directed questioning friendly
counsel can ask open-ended questions which will allow the witness to
complete answering questions which were limited to
"yes" or "no" responses during direct questioning by opposing counsel. Finally, friendly counsel can challenge the use of some
of these methods
and seek an order by the judge to cease, limit, or otherwise control their
None of the methods identified in this article are insurmountable. It may
be beneficial for professionals who provide sworn testimony to perform a
personal vulnerability survey using the methods from this article as an
analysis template. Review won't inoculate from testimonial danger, that
requires specific hardening against subterfuge by developing testimonial
techniques intended to preserve the truth during methodical challenge.
Alavi, A. & Ahmad, N., (2002). Credibility and impeachment:
Fundamentals of direct and cross-examination. University of Houston Law
Foundation continuing legal education forum Sept. 5-6, 2002.
Bell, A. (April 1999). Fishing in Troubled Waters: Cross-Examination of an
Arresting Officer in a DUI Case The Champion: National Association Of
Criminal Defense Attorneys. On-line:
Bell, S. (2003). Guerilla Trial Tactics. Tustin, CA: Litigation One
Dysart, C., & Zuckett T. (2000). The Permissible Scope of
Cross-Examination of Expert Medical Witnesses Journal of the Missouri Bar
McElhaneYt J. (2003). Deposition Goals: Develop a Plan to Get What You're
After From Witnesses in Discovery. ABA Journal Aug 15, 2003
Ruvoldt, H. & Serebrenik, J. (2001). Using the Internet to Prepare for
Cross- Examination of Experts. The Trial Lawyer, Vol. 24, 143-147.