Cross-Examination: Yet Another Way the Deck Is Stacked against Restraining Order Defendants

Posted on February 23, 2015


Perusing the trial transcript of a North Carolina man, former attorney Larry Smith, forcefully brought something to my attention last week, namely, that cross-examination can make or break a defense.

Larry extricated himself last summer from the latest of an endless series of fraudulent complaints and prosecutions brought against him by a vexatious litigant—this trial revolved around his criticizing her in his blog (besides allegedly “cyberstalking” his “victim” by tapping her phone and hacking her computer)—and how he exonerated himself was by probing her fictions while she was on the stand, and exposing them for what they were (this despite being tag-teamed by multiple county prosecutors and being hustled along by the judge).

Prior to Larry’s being given the chance to cross-examine the prosecuting witness, the smell of cooked goose pervaded the proceeding. What his example shows is that having the chance to question the witness against you may make the difference between victory and the coffin—or at least the curb.

The opportunity to question the plaintiff in a drive-thru restraining order trial in which it’s presumed s/he’s deathly afraid of you is all but stifled (and in some instances, a plaintiff doesn’t even have to show for court, because the accused is represented as an “imminent danger”). Putting questions to the plaintiff may be permitted by asking them of the judge who in turn asks them of the witness. Judicial patience being none, the impediment this protocol presents is obvious—as are the railroad tracks.

Copyright © 2015

*Of his own restraining order case (the petition of his accuser’s that stuck—she filed two), former lawyer Larry Smith, who’s mentioned in the introductory paragraph, says: “I was not allowed to cross-examine [my accuser] in the RO hearing. I got kangarooed every step of the way. Every time I tried to ask a leading question, the judge would interrupt me and yell out, ‘Ask a question.’ It was a bit of a nightmare, a madhouse, and even when I managed to get in a jab, the witnesses all huddled with the judge and would refuse (with her blessing) to answer them. The rules of evidence, honesty, fairness, confrontation, the right to probe the witness on her contention of ‘substantial emotional distress,’ the presumptions of innocence, equal protections of the law, and burden of proof—all were tossed out the window like trash.”