THE PROBLEM WITH LAWYERS ASKING ONE QUESTION TOO MANY

There is a maxim in criminal defense trial work that a defense lawyer should never ask a question he or she does not know the answer to. A related rule is that a lawyer should not ask one question too many. The following colloquy between a defense attorney and a hotel clerk during cross-examination at a trial where the defendant is charged with armed robbery illustrates the problem with asking one question too many. The clerk had identified the defendant as the person who robbed the hotel during his direct examination by the prosecutor.

Lawyer: So, it is true that the alleged robbery at the hotel you work at occurred one year ago today, correct?

Clerk: Yes

Lawyer: You testified the incident took place on the 12th of March at about 2:00 pm, correct?

Clerk: Yes

Lawyer: During the last year, you worked the 8:00 am to 5:00 pm shift?

Clerk: That is true

Lawyer: You always worked Monday through Friday?

Clerk: Yes

Lawyer: You worked 50 of the 52 weeks?

Clerk: Yes

Lawyer: You only took off for your two-week vacation?

Clerk: Yes

Lawyer: On average, how many guests do you check in per day?

Clerk: On average, between 45 to 55.

Lawyer: Are you any good at simple math?

Clerk: Somewhat.

Lawyer: Let’s put you to the test. Using your lowest estimate, how many people do you check in during a week?

Clerk: Well, 45 times 5 equals 225

Lawyer: So, since you worked 50 weeks last year, how many people did you check in during that period?

Clerk: Fifty times 225 equals 11,250.

Identification was the major issue in this case. The lawyer had now established that the clerk had checked in over 11,000 people in the last year. He could have and should have stopped his cross-examination after the last answer. Instead, he asked one question too many.

Lawyer: So then Sir, if you checked in 11,250 people from the date of the robbery in this case, how is it that you can be so sure that my client is the person you describe as being the perpetrator of this crime?

Clerk: Well sir, of those 11,250 people who approached my counter, your client was the only one that pointed a pistol at my face.

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