He will do better to let his own side tell
the facts than to bring them out through an unwilling witness who is
on his guard and thinking the opposing lawyer is trying to trap him.
The mistake that most lawyers make in cross-examination is to ask the
witness to repeat what he said in his direct testimony. Telling the
same story over again merely accents the facts in the minds of the
jury. The lawyer asks:
"You say that you saw the driver whip up his horses when the car was a
block away." The lawyer may doubt the truth of the statement but the
mere repetition of the words affects the memory of the jury. Unless
he has a distinct object in going over the testimony, either to show
the direct contrary strongly, or the fact that the witness has learned
the testimony by rote and that the repetition is in exactly the same
words, the lawyer would do better to desist.
Strange as it may seem the rules of evidence are actually based upon
common sense. The ordinary experience of mankind gave rise to the
rules of evidence, but the difficulty is that the further experience
of civilization is giving rise to new rules which are not consistent
with the old. Nevertheless the present rules when reasonably applied
are fairly good.
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