How Not to Cross-Examine a Witness

My friend Dan Alban, an attorney at the Institute for Justice, appeared earlier this month before the House Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, where he provided testimony on the state of property rights in American ten years after Kelo v. City of New London.

The Kelo decision was an egregious Supreme Court decision that said that a government can seize property for any public purpose, which includes turning the property over to a private developer on the speculative hope that the private developer will do something to increase the tax revenues for the government.

After providing written testimony and reading testimony into the record, Alban, who was the lead attorney in IJ’s successful litigation striking down IRS regulations in Loving v. IRS, faced questioning from members of the subcommittee, including Rep. Steve Cohen of Tennessee.

Cohen started off his questioning of Alban, who was a “hostile witness,” with a properly phrased leading question: “Your group is the Institute for Justice which you represent, correct?”

The next question, though, was not leading and so Alban didn’t respond with a yes/no answer. That got Cohen riled up, and then, after sneering at Alban – “You are a very smart man” – Cohen tried to bully Alban into giving the answer he wanted.

That didn’t happen.

Cohen then lost all control of his questioning, asked a terrible question – “Why do you think…” – that allowed Alban to give a 20 second respond articulating his position in a reasoned way without interruption and while still being responsive to Cohen’s “why” question.

A Very Smart Man Responds to Questions

Posted in

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.