Mastering Control: Techniques for Cross-Examining Witnesses

 

During cross-examination, controlling a witness is crucial, especially when they employ evasive tactics. Here are six effective techniques to manage this situation, each increasing in confrontational tone, tailored to the witness's level of evasiveness.

Establishing Agreement: Start by encouraging the witness to answer simply with "yes" or "no." For example: "Dr. Best, can we agree that most of my questions will be answered with a simple yes or no?" However, be cautious; this tactic can backfire if it seems you’re trying to manipulate the witness.

Technique #1—Repeat the Question: If the witness begins to ramble, restate your question directly. This reinforces your request and highlights their evasiveness to the jury.

Technique #2—More Confrontational Repetition: If necessary, escalate by directly asking the witness if they can repeat your question or if something is preventing them from answering.

Technique #3—Let Them Ramble: If the witness insists on lengthy responses, take a step back—literally. While they talk, show disinterest, then ask, “Are you finished?” This underscores their avoidance.

Technique #4—Write the Question: Display your question visibly and read it aloud. If the witness answers incorrectly, highlight that discrepancy to emphasize their evasiveness.

Technique #5—Physical Gesture: A simple hand gesture, like raising your palm to signal them to stop, can effectively regain control.

Technique #6—Seek the Judge’s Assistance: While it’s generally best to handle evasive witnesses independently, don’t hesitate to ask the judge for help in critical situations to preserve your case. Ask the court to direct the witness to answer the question.

Using these techniques can sharpen your cross-examination skills and keep evasive witnesses in check, much like a skilled conductor guiding an orchestra through a complex score.

For more on the art of cross-examination, click here to get your copy of Cross-Examination Handbook: Persuasion, Strategies, and Techniques.

Cross-Examination: Impeaching with Prior Inconsistent Statements

 

F. Lee Bailey cross-examining Mark Fuhrman in the O.J. Simpson case

This article delves into the intricacies of Federal Rule 613 or its state rule counterpart, which governs the use of prior inconsistent statements during cross-examination, and provides techniques for effectively impeaching a witness with a prior inconsistent statement. Additionally, it offers two notable cases that exemplify the strategic use of impeachment with a prior inconsistent statement.

Understanding Rule 613 (a) Examining Witness Concerning Prior Statement

Rule 613 outlines how attorneys can address prior statements made by a witness. When questioning a witness about a previous statement, whether it is documented or verbal, the court may require that the statement be presented to the witness at that moment. This process ensures transparency and fairness, as opposing counsel must also be granted access to the statement upon request. This rule is designed to prevent surprise and allows for a fair assessment of the witness's credibility.

(b) Extrinsic Evidence of Prior Inconsistent Statement

Extrinsic evidence refers to evidence that comes from outside the current testimony. Under Rule 613, such evidence cannot typically be used to contradict a witness unless certain conditions are met. The witness must be given an opportunity to explain or deny the prior statement, and the opposing party must have the chance to interrogate the witness about it. This provision serves to uphold the integrity of the judicial process, ensuring that witnesses have a fair opportunity to defend their credibility. Notably, this rule does not apply to admissions made by a party-opponent, as defined in Rule 801(d)(2), which allows for greater flexibility in certain circumstances.

Nine steps for Effective Impeachment with a Prior Inconsistent Statement

To effectively impeach a witness using a prior inconsistent statement, attorneys should follow these nine strategic steps:

1. Avoid Nitpicking: Focus on significant inconsistencies rather than trivial details. Nitpicking can alienate the jury and undermine the attorney's credibility. Instead, aim for substantial contradictions that genuinely affect the witness's reliability.

2. Recognize the Inconsistency: Active listening is crucial during the witness's testimony. Attorneys must be alert to discrepancies, whether they arise from differences in the account of events, time frames, or details that do not align with previous statements.

3. Retrieve the Prior Statement: Preparation is key. Attorneys should have the prior statement readily accessible, whether it is a written document, an audio recording, or a transcript. Being prepared allows for a smoother cross-examination process.

4. Repeat the Testimony: Establish a clear baseline by having the witness reiterate the testimony that will be contradicted. This helps the jury understand what the witness has said and highlights the inconsistency.

5. Reinforce the Truthful Statement: Emphasize why the prior statement is more credible. Factors such as the timing of the statement—especially if it was made shortly after the event—and the circumstances under which it was made (e.g., less pressure or less time to fabricate) can make the prior statement more believable.

6. Reference the Prior Statement: Clearly point out the prior statement in question. This makes it easier for the jury to follow along and understand the relevance of the inconsistency.

7. Resonate with the Jury: Use pauses strategically. After revealing the prior statement, take a moment to let the information sink in. Reading the statement slowly and clearly can help emphasize its importance and impact.

8. Read and/or Display the Statement: Utilize visual aids or read the statement aloud to increase its impact. Visuals can help the jury retain the information and create a more memorable moment during cross-examination. Don’t have the witness read the prior statement because the witness may miss-read it.

9. Refute the Witness’s Denial: If the witness attempts to deny the prior statement, be prepared to counter this with extrinsic evidence if applicable. This could include documents, recordings, or testimonies from other witnesses that support the existence of the prior statement.

Notable Examples of Impeachment with a Prior Inconsistent Statement

1. The O.J. Simpson Trial

During the O.J. Simpson trial, witness Mark Fuhrman, a police officer, initially testified that he had not used racial slurs. However, recordings from the past revealed him using derogatory language. This prior statement severely damaged his credibility, and the defense effectively used this impeachment to suggest that Fuhrman's bias influenced the investigation, ultimately affecting the jury's perception of the evidence presented.

2. The Bill Clinton Impeachment Trial

In the impeachment trial of President Bill Clinton, Monica Lewinsky's testimony regarding her relationship with Clinton contained inconsistencies when compared to her earlier statements. The defense highlighted these discrepancies, suggesting that Lewinsky had motives to lie. This impeachment weakened her credibility and played a crucial role in the overall narrative of the trial, casting doubt on the prosecution's case.

LAWYER JOKE BOOK: THE PERFECT HOLIDAY GIFT:

 

‘Tis the season to be jolly. ‘Tis the season to recite lawyer jokes. Seems we bump into lawyer jokes everywhere this holiday season. Lawyer jokes are ubiquitous right now. 

Because you might enjoy them, I’m passing along a couple humor books with places you can find them. They make outstanding gifts or maybe you just want to expand your lawyer joke repertoire. 

First, there is the perfect stocking stuffer for a lawyer or someone with a dear lawyer in their life and it is Lawyer Humor Handbook: The Complete Tome of Lawyer Jokes, Stories, Amusing Transcripts, Puns, and Witticisms. It’s only $9.29 and click here to read more and get your copy.

Second, there is a book for anyone who dislikes lawyer jokes, and it is entitled Comebacks for Lawyer Jokes: The Restatement of Retorts, by Malcolm Kushner, Museum of Humor.com Press (2015) This will arm your lawyer friend for those lawyer jokes that inevitably get told at cocktail parties. This book provides retorts to insert before the punch line at the end of the lawyer joke. 

Examples:

“Why are lawyers so good at racquetball?”

Before they say: “Because they stoop so low.”

You say: “They know their way around a court.”

.................

“What’s the difference between a lawyer and a skunk?”

Before they say: “Nobody wants to kiss a skunk.”

You say: “With a lawyer, nothing is ever black and white.”

Part 3: STRATEGIES & SKILLS FOR EXTRACTING THE TRUTH ON CROSS-EXAMINATION

 

In case you haven't read Part 1, just click here.   

In case you haven't read Part 2, just click here.

BOOK: The Pizza Connection: Lawyers, Money, Drugs, Mafia 

As has been previously stated here and in Cross-Examination Handbook, the primary goal of cross-examination is to capture the truth from the witness. On cross, you shouldn’t be trying to discover anything; you shouldn’t ask any interrogatory questions. You know the truths that the witness has to offer, and you aim to extract those known truths. If the witness fails to provide the truths that you can prove by direct or circumstantial evidence or by common sense, the witness will suffer the consequences.

The Pizza Connection case provides a stark example of how a witness’s testimony can be exposed as comical if the witness refuses to provide the truthful answers. The Pizza Connection case was a mega-trial involving 18 defendants who were charged with a $1.6 billion heroin smuggling and money laundering that stretched from Brazil to small pizzerias in the the Midwest. Trial lasted from October 24, 1985 to March 2, 1987.

The following is an excerpt from Shanna Alexander’s book The Pizza Connection: Lawyers, Money, Drugs, Mafia 318-320 (Weidenfeld & Nicholson) (1988) in which she describes United States Attorney Robert Stewart’s cross-examination of an alibi witness and it’s a gem of a cross: 

(Defense counsel) Larry Bronson’s defense of (defendant) Sal Greco is focused on his client’s need to prove that he was not in a Bagheria farmhouse in early March 1980 watching a heroin quality-control test. Bronson will show he [Greco] was quietly, busily at home in New Jersey. He calls Greco’s good friend and tax accountant, Justin Pisano, a man who keeps detailed date books. 

Under patient examination by Bronson, the witness goes through a precise account of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts and to visit nearby pizzerias with his client in order to compare their business with that of the Greco pizzeria in Neptune City. 

Stewart’s cross-examination of Pisano becomes this prosecutor’s finest hour. He concentrates on the March date-book entries. 

“On March 2, yes, I drove down to see Greco,” Pisano says, “and we had a leisurely dinner.” 

“You told us yesterday you were in no rush, right?”
“Yes.”
“And that’s the truth, the whole truth, and nothing but the truth?” 

‘Yes.”
“Then what is this appointment for 7:00 p.m., with Troviatta?”
“Just a tax appointment. Early March is income tax time, and I made many Sunday and night appointments to service all my tax clients.”
“What is Troviatta’s first name? Where does he live?”
“I don’t remember. I don’t even think I do their taxes anymore.”
Stewart remembers. He says Pisano was thirty-five miles away from Greco’s pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera.
Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.
“Are you an opera fan?”
“Nope. Only been to one opera in my life, when I was in high school.”
Stewart shows the witness, and the jury, the Sunday-evening newspaper opera listing for March 2, 1980, at the New York State Theater at Lincoln Center: La Traviata. Bronson objects. “Misleading the witness, your Honor. His witness’s tax client is named Troviatta—with two t’s.”
“And the advertisement for the opera is spelled T-R-A-V-I-A-T-A, right?”Stewart asks. “No. It’s La Traviata,” says Pisano gamely.
“La Traviata?”
“Right. I don’t see the comparison to Troviatta.”
“Except for the time. That’s a coincidence. Isn’t it?”
Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, 

March 16, at one in the afternoon.
“Are you referring to Carmen? Carmen Sangari, who I no longer do?”
“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listing for that Sunday afternoon. Pisano looks, and agrees that this is truly an amazing coincidence. 

Spectators have begun to giggle. But Stewart is not finished. He directs the wit- ness’s attention to his diary entry for the following Sunday at 7:00 p.m. “Is that a tax client of yours?” 

The giggling turns to guffaws. The notebook says, “Barber of Seville.” 

This cross illustrates that no matter which way the witness responds, the cross-examiner wins when the question require that the witness concede the truth or suffer the consequences.

Another striking example of how to catch the truth on cross-examination occurred during the manslaughter trial of Conrad Murray who was Michael Jackson’s doctor. That cross illustrates the axiom that a cross-examiner must know the answer before asking the question on cross. The answer sought is the truth that either supports the examiner’s case theory or undermines the other side’s case theory. The proposition holds true for lay witnesses and, as the following example shows, for expert witnesses as well.

Conrad Murray, Michael Jackson’s doctor, was prosecuted for involuntary manslaughter. The defense called Dr. Paul White to testify to, among other things, that Jackson self-medicated with his own stash of propofol thereby causing his own death. Prosecutor David Walgren relied on concession-seeking cross-examination to build his case against Dr. Conrad. Walgren asked questions to which he knew the defense expert had to answer in a way that was favorable to the prosecution. They included:

"Do you agree that there are instances where Dr. Murray deviated from the standards of care in his treatment of Michael Jackson on June 25, 2009?

"And would you agree that there were instances where Dr. Murray deviated from the standards of care in the preceding two months of treatment, as relayed by Dr. Murray in his statement to police?"

“Have you ever used propofol in someone’s bedroom?”

“Have you ever heard of anyone doing that prior to this case?”

Murray’s expert Dr. White had to make these concessions because they comported with common sense and the standard of care for medical treatment of a patient. 

Cross-Examination Handbook covers this concession-seeking cross-examination technique, including how to identify the content of this type of cross – what the truth that the witness must concede - and how to construct and conduct a smooth flowing and effective cross to elicit the truth.

Part 2: STRATEGIES & SKILLS FOR EXTRACTING THE TRUTH ON CROSS-EXAMINATION

 

BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality

In case you haven't read Part 1, just click here.

In the book Redeeming the Dream, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.

CONCEDE THE TRUTH OR SUFFER THE CONSEQUENCES

As we have explained in Cross-Examination Handbook and in my Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way: 

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?

“A: Well, you’re putting words in my mouth now.

“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony, and the witness paid the consequences. 

THE PATIENCE, FOCUS AND STYLE OF THE CROSS-EXAMINER

Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet return to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

“David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

David Boies (preeminent trial lawyer in such cases as the Microsoft antitrust case and the Gary Shandling case) and Theodore Olson (former Solicitor General and opposing counsel to Boies in Bush vs. Gore) served as co-counsel in the California Proposition 8 case. Olson commented on how Boies cross-examined and deposed the defense experts in that case as follows:

“People think it happens all the time because it happens on television. What we used to call a ‘Perry Mason moment’ when the witness breaks down and confesses. That does not happen. But it sort of does happen when David does it.”

What does David Boies have as his goal when he examines opposing witnesses to elicit concessions? Regarding his goal for examining witnesses, he made this observation regarding how he approached the experts in the Proposition 8 case: “Before you can get a witness to admit the truth you have to get the witness to understand what the truth is.”

In essence, when Boies deposes an adverse witness or cross-examines a witness, he seeks to have the witness admit the truth. 

This is neither a new nor novel concept. In Francis L. Wellman’s Art of Cross-Examination, which was published in 1903 and is still in print, a New York trial lawyer Emory Buckner wrote: “More cross-examinations are suicidal than homicidal.” He attributed this to a mistake in conception as to the purpose of cross. Buckner explained: “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The following is an example of Boies extracting the truth from a defense expert witness Katherine Kay Young in the case against Proposition 8:

Boies – Q: Do you believe that children are advantaged by increasing the durability of the relationship of the couple raising them?

Young – A: Yes

Q: And you believe allowing gay couples to marry will increase the durability of the gay couple’s relationships?

A: Okay, I’d say yes.

Q: And increasing the durability of these relationships is beneficial to the children they’re raising, correct?

      A: On that one factor, yes.

Boies has put it this way: “Cross-examination is probably the best we have to really get at the truth. We put somebody on the witness stand, call them to answer questions and it takes an extraordinary person to be able to successfully lie without being tripped up.”

EXTRACTING THE TRUTH ON CROSS-EXAMINATION – Part 1

 

David Boies and Theodore Olson

BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality

In the book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.

CONCEDE THE TRUTH OR SUFFER THE CONSEQUENCES

As we have explained in Cross-Examination Handbook and in this Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way: 

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows:

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?

“A: Well, you’re putting words in my mouth now.

“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“”I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony and the witness paid the consequences. 

THE PATIENCE, FOCUS AND STYLE OF THE CROSS-EXAMINER

Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet retun to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and  is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

CHATGPT FOR CROSS-EXAMINATION by Keeley Blanchard

 

Here’s something new – preparing a compelling cross with ChatGPT. Recently, I came across LawStory - a newsletter by Keeley Blanchard, Trial Consultant.  Here is her summary of what her training session will feature:

"LAWYERS:

"Learn how to create a creative and compelling cross examination using ChatGPT. The workshop will include:

• step-by-step instructions on how to build your own custom GPT for cross examination

• access to my custom GPT for cross examination

• how to use ChatGPT to brainstorm cross examination topics

• using ChatGPT to generate questions that sound like you and not a machine

• protecting the confidentiality of your case information

• writing a storytelling cross examination in less time

"And a NEW BONUS to the course - step by step video instruction on five different ways to use ChatGPT for your cross examination preparation.

"Materials with step-by-step instructions will be provided to all participants, as well as access to use of the LawStory custom GPT for cross examination. Access to the replay video will also be provided."

You can click here to learn more about an upcoming training session she is holding.