Cross examination phrase: is this useable?

As an allegedly "professional" witness who has been subjected at times over many years to defence counsel using the "is it possible that....?" hypothetical question I have to say that from a purely practical point of view it never struck me as having much weight. I hated being asked to speculate and from memory I don't think a prosecutor ever asked me to do so.

If you were cross-examining an expert witness I think it would be different. If you were trying to demonstrate to the jury that the expert's opinion wasn't based on a proper interpretation of the facts and that it was possible that another hypothesis or conclusion could explain the situation you were examining then I would think that would be reasonable to put that question, sowing the seed of doubt in the mind of the jury.

Just some thoughts from a previous witness.

Note: I am not a lawyer.

Re: Cross examination phrase: is this useable?

Something like "is it possible, Mr. Smith, that the gun you claim you saw in my client's hand was really a water pistol?"

I suppose it's a fair question, but I don't think I'd ever ask it. A witness is not likely to recant his/her testimony simply because you pose a hypothetical like that. More than likely the witness would say "yeah, I suppose anything is possible, but that's not what I saw." Not all permissible questions are good questions. The way to create doubt in the jury's mind is not asking hypothetical questions to witnesses who are confident in their recollections.

The thing with cross is that you want short, snappy answers and nothing surprising. So it tends to be semi-leading questions, such as "Isn't it true that the gun was really a water pistol?"

That way, if the witness says no, then you later prove it was a water pistol. Oops, there goes that witness's credibility, which is your intention. Or, the witness admits it, which blows the steam out of his case. Of course, you are asking leading questions wherein you are pushing the witness to say what you want. A lot of yes and no or quickie answers are what you want, so nothing overly complicated.

Isn't it the case that ...
Isn't it true that ...
Isn't it so that ...
Isn't it known that ...

These are the sorts of constructions that start most typical cross questions. If you start a question with a phrase like "is it possible", you have opened the door to a number of answers. With cross, you know the answers you want. What you want to do is make it so that the witness (without committing perjury, of course) has no choice but to say them.

Thank you for the assistance, guys. Its greatly appreciated!

No prob. Do you know the books from NITA? It's the National Institutes of Trial Advocacy, see: http://www.nita.org/