If my witness on direct starts to talk too much I will…
a. Gently control the witness by bringing them back to my question.
b. Use more head notes to put a subject corral that limits what we are talking about.
c. Put up my hand – like a stop signal – to get the witness to shut up.
d. Object to the witness’ answer as not responsive
e. All of the above.
The answer is e.) All of the above.
Witness control is sometimes thought to be something done only on cross-examination. Witnesses on direct who may be nervous, anxious, eager to help, biased, or just talkative also must be controlled. While the focus is on the witness, it is your examination and you must be in control. Just as in cross, witness control on direct is similar to escalation to thermonuclear war. You should start by accepting the blame for asking a bad question and reframe your question so it is clearly understandable. If that fails, allow the witness to finish his or her answer and clearly tell them they are not answering your question and tell them the subject matter you want them to address. This should be your clue that you must keep the witness in check by narrowing each area you wish to address. Do this through very narrow and specific head notes to topics, e.g. “I want us to focus on the time between when the crash occurred and when the police first arrived.” These head notes are foundational in nature and usually permitted under the rules of evidence. Witnesses who continue to speak beyond the specific answer are sometimes stopped by simply holding up your hand as a stop signal – it’s a universal sign to halt and most people will stop when they see this motion. If nothing else works, you are entitled to object to the witness’ answer as not being responsive to your question. This last technique is truly a last resort as it distances you from your own witness. Making such an objection will sometimes prompt the judge to then intervene and instruct the witness to answer your questions. In that way, it appears that you are not telling the judge you can’t control your witness by asking for the Court’s assistance. Instead, it suggests to the jury the judge is serving as referee. Whichever techniques you choose to employ, the bottom line is that it is your job to control the witness.
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