One of the great advantages of being a civilian attorney practicing in a military court-martial is that we are typically afforded greater license in challenging nonresponsive witnesses in a court-martial. Of course, it's always prudent to treat all people - including witnesses with respect. There are times, however, when a witness has to be challenged aggressively.
As background on myself (Dan Conway), if I had not enlisted in the Marine Corps I probably would have attended professional umpire school looking for a job in professional baseball. Umpiring is a perfect profession for a defense attorney. Professional umpires have to be skilled in the art of game management. We have to know the rules better than anyone. We're expected to make judgments mid-game that can affect the outcome. And coaches are quick to blame us when things go wrong.
There are lessons to be learned from professional sports officials for handling difficult witnesses.
1) A trial is a search for truth - but there is an awful lot of theater involved in telling the story. We need to present a confident image;
2) Our confidence and ability to control difficult witnesses has to be evident at all stages in the trial process;
3) We have to always be courteous - even when aggressive;
4) Our sole job is to defend the client. It is easy in a military environment to become too chummy with the parties;
5) Keep your eye on the ball. In other words, maintain a laser-like focus on the facts that you need to establish to win;
6) Take your cues from how aggressive to be from the jury. The jury will give you nonverbal cues on whether they are receptive to more aggressive cross-examination;
7) Win with logic.
Experience goes a long ways in presenting a polished defense in front of a jury. There are so many tactics to use in controlling a runaway witness. Polite interruption or objections should be a last resort. It's a last resort because defense counsel must be in control. Unflappable. Whatever the witness says, we should be prepared to deal with it - good or bad. Some of the tactics for controlling the witness include:
-Repeating the question;
-Repeating the question slower;
-Maintaining eye contact with the witness;
-For experts or senior officers and NCOs, calling them by their title or rank;
-For children, promoting them to sir or ma'am;
-Shorten the question;
-Use the court-reporter to read back the question;
-Use a blackboard to write the question;
-State to the witness "that did not answer my question, did it?"
-Summarize their answer;
-Ask them, "if the truthful answer is yes, will you say yes?";
-Ask them whether they would like to tell their side of the story (if you are prepared to deal with their side of the story);
-Process of elimination.
What happens when a witness claims not to remember or says I don't know?
I don't know can only mean a couple of things that are worth exploring with the witness:
1) I never knew;
2) I forgot; or,
3) I only remember when it helps me.
Any one of those inquiries is useful.