Friday, June 26, 2020


On cross-examination, avoid pitting. When the cross-examiner asks the witness to contradict another witness, it’s called pitting. Here’s an example:

Q. . . .You never told those detectives that you were a lookout in this case, huh?
A. No I didn’t.
Q. So you heard them both get up there and say that you told them that, right?

. . .

Q. And, now, I guess, you’re telling this jury that these two detectives came in here today and got up here and lied?
Q. You heard those two detectives get up there and say that you told them you wer a lookout. Is that true?
A. Right.
Q. Are you saying they lied?
[DEFENSE COUNSEL]: Objection, Judge. This is improper.
[THE STATE]: I’m sorry, Judge. Either one person is telling the truth.

Sullivan v. State, 751 So. 2d 128 (Fla. 2nd Dist. Ct of Appeals 2000) held: “In Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993), the supreme court held that questions directed to one witness concerning whether another witness lied on the stand are improper for two reasons: first, because witness credibility is a jury question; and second, because the question itself may lead the jury to believe that the witness being questioned is lying.” 

In Shutz v. State, 957 S.W.2d 52 (1997), the Texas Court of Criminal Appeals rejected expert testimony on a child’s truthfulness and cited State v. Carlson, 80 Wash.App. 116, 906 P.2d 999, 1002 (1995), in which the Washington Appellate Court noted that the State could not have offered expert opinion to prove the child witness' credibility and  in a footnote to that comment the court cited State v. Walden, 69 Wash.App. 183. In Walden the prosecutor, during cross-examination, asked a defense witness whether a prosecution witness was “mistaken” in his testimony. 847 P.2d at 958. The Texas Court of Criminal Appeals then noted:

Case law in Washington holds that it is improper to ask one witness whether another is lying because such a question is designed to elicit an opinion as to the credibility of the other witness. The State attempted to distinguish the case by arguing that it merely asked if the other witness was “mistaken” not whether that other witness was “lying.” The court responded that the distinction was irrelevant: Asking a witness whether another witness is lying is certainly more prejudicial than asking whether another witness is simply mistaken.

In both situations however, the questioning is designed to elicit testimony in the form of one witness' opinion as to the credibility or veracity of another witness, a determination which lies solely within the province of the jury.

The rule against pitting in the United States is in contrast with the practice in other parts of the world. An article in the ABA Litigation Section, entitled Examining Witnesses, stated:

            The rules limit your ability to ask the witness on the stand to explain or comment on the testimony of another witness. This is in marked contrast to other legal systems such as the British and South African, in which pitting others’ versions to the witness is often done.

Pitting is not only wrong but also unnecessary. All counsel needs to do is to make sure the testimony of the witness on cross and of the witness who offers conflicting testimony is clear, and the impeachment will be self-evident and counsel can make certain with a strong closing argument that the conflict is not lost on the jury.

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