Prosecuting a trial recently I committed one of the most basic errors when examining a witness in chief: Asking a question that you don't know the answer to. In my defence, it was a deliberate act rather than something I hadn't considered: It was an issue which the defence were going to leave alone, and unless it was explored with the witness the defence could make the point to the jury that they had heard no evidence about it. Fortunately it paid off and the witness gave the answer I had hoped for.
Speaking with my opponent afterwards, he was curious as to how I knew what the answer would be. When I told him I didn't, he looked aghast. "What would have happened?"
"Well your client would have been proved to have been telling the truth, and we would have lost probably."
In terms of tactics, the answer was either going to assist me hugely, or be the end of my case by proving the defendant's innocence, and the whole trial process is concerned with his guilt or innocence. In those circumstances why not ask it? I always try to be scrupulously fair.
A cautionary tale of nose enders AND a question asked without a known answer: Few tales I have heard can top that of a colleague in chambers who was prosecuting a robbery trial. The complainant was in her 70's and your stereotypical robust West Yorkshire pensioner. The whole case turned on the correctness or otherwise of her identification of the defendant as the man who had snatched her handbag in the street and run off.
Having led her gently through the contents of her witness statement, during which she confirmed she was sure the man she later identified was the same man who had robbed her, my colleague noted that in her statement she complained that the incident had shaken her confidence, and she had lost her disabled bus pass with her handbag.
Sensing an opportunity to lay it on thick in front of the jury, my colleague finished, "And tell me, Mrs X, what is the nature of your disability?"
"Eeeee, I'm partially sighted."
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