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The Rape Trial: Questioning the Witness
by FAAR Staff
Feminist Alliance Against Rape Newsletter Jul/Aug 1974

When a rape case has gotten past the hospital and police stages and into the court stage, a new set of problems unfolds. One of these is the peculiar manner which lawyers have of posing their questions. An individual may have these techniques used on her at any of various points by a lawyer, and sometimes a detective or policeman will have learned the same techniques through daily association with lawyers. These techniques have been developed over the centuries for use in the courtroom but are so ingrained in a trial lawyer's that they may be used outside the courtroom in more or less informal interviews and other “nontrial” occasions, such as the preliminary hearing, grand jury and pretrial interview.

The trial is a very formal process, rigidly controlled by enormously detailed and complex rules. Under these rules, the question and answer is frequently the only form of conversation permitted and is very restrictive. As restrictive as the system is, lawyers can be very creative within it and it can be a very bad experience for people who are not accustomed to it.

There is one technique which might shake up the witness because of its unfamiliarity even though it was not designed specifically for that purpose and most of the time is not used for that purpose. The witness is most likely to run into it in the “nontrial" occasions. The lawyer asks a long series, of questions, gradually going through all of the possibilities of action, one by One, very methodicically and logically. The witness will not be given any cues either by voice gesture or wording as to which of the answers is good, bad, believed, not be1ieved, etc. This can result in the feeling of being hammered on by a machine, grilled. In the trial setting, the purpose is to make the the person being questioned make the statements, emphasize certain points, and otherwise present the story which the lawyer is unable to do for the witness under the system. This is what lawyers mean when they say, “The facts come out at a trial." The person herself saying the words under a lawyer's guidance can have a more dramatic effect than if the lawyer were to make a speech.

In order to give maximum advantage to the man on trial, the main stock of techniques is designed to break the witness, down emotionally so she will damage her case. Six such techniques are described below.

1. Questions out of sequence. This is a very simple technique in which the lawyer will ask a question about the middle of the story, then somewhere either near the end or the beginning of the story, and then vice versa, and on and on. The witness should try to treat each question as a totally independent event. Contrary to normal living, she must not look for a logical sequence or pattern. There is none. She must not answer too rapidly, she should take time to think and remain relaxed. If she has forgotten, she should say so. If she is confused about a certain sequence of events, she should not be afraid to admit it. Confusion and loss of memory are perfectly normal and expected.

2. Questions about ridiculously small details. Again another very simple technique. The lawyer's goal is to ask about details so minute the witness could not possible remember, which causes her to lose confidence in her memory. To cover up, she starts inventing and the lawyer catches her in a damaging lie. She should try to remember that nobody can observe and then remember everything. Also, the jury will become suspicious if she remembers too many or too small details on the grounds that nobody has that good a memory. The witness must remember that her memory is fine, no one can remember everything, and not to fear saying, “I don’ t know." Even if she has to say it repeatedly , a simple "I don’t know can be strangely effective in establishing an individual as an honest person.

3. The leading question. This is a more complicated technique of which the most well known example is: "You killed your grandfather, didn‘t you?" This precise question, of course, will never be asked in a courtroom, but variations of it will. For example, "You have lived with someone (meaning a man), haven’t you?" Any question which can be answered by "yes” or "no" is a leading question and in a trial one whole section of the proceedings is conducted solely through leading questions. The questions may begin with or include, "didn't you do (this or that)? “ “wouldn' t you have done (this or that)?”

A witness can 't do much about leading questions except to answer them and keep on going. Short, simple answers are usually considered the best. It is acceptable to explain answers, but a too elaborate explanation will only make things worse. One way of handling the living-with-a-man question is to say, "I know' most people don't accept this, but it had a lot of meaning for us."

4 . The apparently innocent question. This is another more complicated technique. The lawyer begins with a simple question of no great significance, continues with other similar questions, until coming to the smashing one. For example, a series of questions concerning marital status could end in the damaging leading question about living with a man. "Are you engaged?" ''No.'' "Have you ever been engaged?" "No." "But you've lived with someone, haven't you?"

Again, most of the time the witness won' t be able to combat this di¬rectly except by just hanging on and getting through it. She might be able to use a simple explanation as already demonstrated.

5. Repeating the same question over and over. This is a simple technique, also used now on some types of psychological tests. The point is to see if the witness will vary her answer which would damage her testimony. The same question may be sprinkled at random through the series of questions or it may be repeated two or three times, right after each other. The question may be stated in a dif¬ferent way each time or in the same way each time.

6. The lawyer's behavior. It is also important to be prepared for the manner the lawyer may assume ,apart from the pattern, of words in a sentence. One such technique is a quiet series of questions followed by a sudden, very aggres¬sive, more loudly and forcefully stated question. Another technique is to use a consistently aggressive, forceful manner. The lawyer may stare very hard at the witness, or smile cynically, or use a sarcastic tone of voice. He/she may be exceedingly insolent. The lawyer may take just the opposite course. He/she may be extremely nice to the witness to show everyone that his/her client is much too nice a fellow to have done such a horrible thing and/or to throw the witness off guard so she will say something damaging about someone else; for example, another witness on her side.

A final word: It is generally to be expected that no one lawyer will use all these techniques on a witness. It is more likely that he/she will have a few favorites.