Improper cross-examination technique persists

One of the toughest decisions a defendant has to make is whether or not to testify.  Usually the first question a defendant will ask is — what is the prosecutor going to ask me about if I go on the stand?

Over the past several years, the New Hampshire Supreme Court has been clear about what the prosecutor can’t ask a defendant about on cross-examination.  Prosecutors like to indirectly accuse a defendant of lying by pointing out that the defendant’s testimony is inconsistent with the testimony of another witness, often a police officer, and then asking the defendant — “so are you saying that the officer is lying?”  This puts the defendant in the position of having to either retract some of his testimony, or to risk alienating the jury by calling the officer a liar. This type of questioning is not permitted.

It is the jury’s exclusive job to decide whether a witness is credible.  One witnesses’ opinion about the credibility of another witness is irrelevant, and can interfere with the jury’s ability to perform this task.  As a practical matter, it is much better for a trial lawyer to explain to the jury why there are differences between testimony of different witnesses than to have a witness try to do it.

Our Supreme Court has repeatedly condemned these types of questions and yet prosecutors continue to ask them.  Unfortunately, the Court has been reluctant to reverse cases in which this type of questioning was asked at trial, opting to issue strong warnings to prosecutors instead.  Because these warning do not seem to be curbing this type of questioning, the Court may decide to reverse a conviction in the future to make its point in stronger terms.

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Cases where this is discussed:

State v. Guay (decided March 20, 2013)

State v. Souksamrane (decided December 21, 2012)

State v. Lopez (decided November 9, 2007)