Litigation

Cross Examination: The No Explanation Technique

It can be useful to highlight the fact that there is no plausible explanation for the conduct of a witness.


It can be useful to highlight the fact that there is no plausible explanation for the conduct of a witness.

In some cases, it can be pointed out that the witness has no legitimate explanation for damaging evidence that is inconsistent with their version of the events. This strategy has to be used cautiously. The risk is that it gives the witness the ability to answer with any explanation they want. The lawyer conducting the cross-examination would be in the best position to use this strategy if the pre-trial statements or depositions had already made it clear that there was no explanation, or a foundation for the questions had been set earlier in the cross-examination to make it clear that there was no explanation. The strategy was used effectively in the O.J. Simpson civil trial proceedings: Rufo et al v. Simpson, California Superior Court, November 22, 1196

Q. You know blood was found the next morning in that car, right?

A. Yes.

Q. You have no explanation for that blood, do you, sir?

A. That's correct.

Q. And it's your blood, right?

A. I don't know.

Q. It matches your blood?

A. I've been told that it does, yes.

Q. You have no explanation for how blood matching your blood and DNA matching your DNA was found in that Bronco the next morning, true?

A. I don't know if it was found the next morning, but --

Q. What do you mean you don't know?

A. I don't know when they took it out. I didn't think they did that the next morning. I'm sorry that I may be ignorant of that.

Q. Well, Monday or Tuesday?

A. Whenever.

Q. And you have no explanation for how DNA matching your DNA was found in that Bronco, right?

A. That's correct.

Q. And you have no explanation for how your blood was found in that Bronco?

A. That's correct.

Q. And you have no explanation, sir, for how the blood of Nicole's was found on the carpet of the driver side, do you?

A. No.

Q. And you have no explanation for how Ron Goldman's blood got in your car that night, do you?

A. Me personally, no.

Q. Have no explanation for this jury, do you?

A. No.

Q. None?

A. None

 

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