MAKING THEM ANSWER, AND STICKING THEM TO IT
By Michael A. Bryant
It is not that technique - - however much we may be critical of it - - that is being challenged here. Each advocate must try to resolve conflicts in testimony among witnesses with divergent views. What is criticized here, is the approach of an advocate to assert a view of the evidence in closing that is completely contrary to any of the evidence they themselves have adduced: abandoning the witnesses and evidence they have proffered and saying essentially "don't believe what you've heard from my witnesses; they were wrong."
That position is philosophically inappropriate as an advocate should not be in a position to weave a reality that is contrary to the fabric they themselves have furnished the jury. The court must be made to guard against a party's attempt to nullify the evidence they themselves have introduced with a contrary argument at closing. .
The principal that a party may call the adverse party as a witness for cross-examination and not be bound by the account they give supports a further logical inference: a party should be bound by the accounts given by friendly witnesses. This makes each side accountable for the testimony that their own witnesses gave and thus makes knowing what one's witness are going to say vital to preparing the overall case.
In holding both sides accountable for and bound by the accounts given by their witnesses, some may object by asserting that issues in controversy are resolved by facts that a jury will determine. Enforcing accountability for the positions one advances at trial, however, does not prevent a jury from making a factual determination. It serves merely to prevent a party from asserting arguments that are contrary to their provided evidence; the jury is still free to find facts as they deem proper.
If parties are not confined to positions consistent with the witnesses they themselves have produced, without impeaching that witness or providing admissible alternative evidence, respect for the system of justice as a mechanism to find the truth is undermined. Efforts should be undertaken to enlist the help of the court to make each side accountable to the facts they propose to the jury are true in evidence they adduce. If the argument is foreseeable, it may be prudent to bring up the issue prior to the start of closing in chambers or outside of the juries presence. Trial testimony can involve the pursuit of various answers, when the other side elicits helpful answers we should be able to rely on them sticking with them.
