Friday, July 3, 2020

BIG MISTAKE ON CROSS-EXAMINATION: REPEATING THE DIRECT

Irving Younger’s 7th Commandment

It is probably the most common mistake - the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .”

The error is grievous. It violates Irving Younger’s 7th commandment: “Don't allow the witness to repeat his direct testimony.” Younger’s commandment directs the cross-examiner  to focus on accomplishing the goals of cross-examination which are to gain concessions that either bolster the cross-examiner’s case theory or undermine the opposing party’s case theory. If the cross-examiner instead allows or causes the witness to repeat the direct examination which contains things favorable to the opposing party, the examiner is defeating the purposes of cross. Worse than that, the examiner is repeating the information which the jury has already heard and that repetition will make it stick in the jurors’ minds.

The Cause

Why would a cross-examiner ever have the witness repeat their direct examination? Why is it such a common mistake? The usual cause is poor preparation. Rather than having a well planned cross-examination, the cross-examiner mistakenly believes that it is possible to conduct a successful unscripted cross. Counsel has been taking notes during the direct examination and works off them to conduct the cross-examination.  Consequently, the examiner is reacting to what the witness testified to on direct, and thus repeats the direct examination. And, the examiner often does so in the order in which opposing counsel questioned the witness.

The Cure

The cure that will prevent the cross-examiner from repeating the direct is to remember the core idea of cross-examination: Cross-examination is the cross-examiner’s opportunity to testify. Rarely if ever should cross-examination be done on the fly. It must be scripted to be effective. The examiner should know what the witness will testify to and that the examination will produce the desired responses.

The Two Exceptions

There are two exceptions to the rule that the cross should never repeat the direct. First, in those situations where the witness on direct testifies to information damaging to the other side’s case (such as when the other side it trying to pull the sting that is anticipated to be brought out on cross) or helpful to the cross-examiner’s case, then naturally it may be covered on cross. Second, in the odd case where the witness has been coached and memorized their testimony, the cross-examiner may want the witness to repeat direct. An example happened during the famous Triangle Shirtwaist Factory Fire trial when defense counsel’s cross revealed that a witness had been coached to give a memorized story by having the witness repeatedly tell her story in identical words during cross.


Friday, June 26, 2020

CROSS-EXAMINATION: NO PITTING

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?
[OBJECTION SUSTAINED]
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.
[OBJECTION SUSTAINED]

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.

Saturday, June 6, 2020

5 FAVORITE BOOKS ON CROSS-EXAMINATION


The Art of Cross Examination: Wellman, Francis L.: 9780684843049 ...

What follows is a list of five of my favorite books on cross-examination. These books are not strangers to this blog that concentrates on the art and science of cross-examination because I have blogged about them before. Below you will find the five favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to the full articles should you wish to visit them. 

#1—The Art of Cross-Examination by Francis L. Wellman

Naturally, at the top of the list is Francis Wellman’s The Art of Cross-Examination. Wellman was a turn-of-the-twentieth-century New York prosecutor is reputed to have litigated more than 1,000 jury trials over the course of a 30-year career at the bar. During that time, he gained a well-deserved reputation as a deadly cross-examiner.

I’ve blogged about Wellman’s book a couple times, including: “Fourth Commandment of Cross-Examination” that discusses the concept of never asking a question to which the questioner does not know the answer. Here’s an excerpt from the blog:

The concept of never asking a question on cross unless you knew the answer did not originate with Irving Younger. Francis Wellman in his seminal work on cross-examination, The Art of Cross-Examination, stated the rule and expressed it better a long time before Younger. On page 23 of the 1936 edition of Wellman’s book, which was first published in 1903, it states:

“David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, ‘A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place, he didn’t care.’ This is somewhat on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greater blunders in cross-examination. Certainly, no lawyer should ask a critical question unless he is reasonably sure of the answer.”



#2—McElhaney’s Trial Notebook by James W. McElhaney

The article “Organized Effective Cross-Examination” drew upon McElhaney’s Trial Notebook that discusses how to craft a cross-examination that is organized into a dynamic and persuasive presentation, as follows: 

James W. McElhaney, the trial lawyers’ sage, explained this principle as follows: “It is the theory of the case, then, that provides the starting point for organizing cross-examination. If we once again take organization in the broader sense – content as well as order – the first question is not just what to include, but whether to cross-examine a witness at all.

“The obvious answer is, do not cross-examine a witness unless it would help the case to do so. The only difficulty with that is knowing when it would help the case.

“Understandably, it is a point about which thoughtful lawyers can disagree. There are some, for example, who are quick to say, ‘no questions.’ And there are some far more who ought to follow their example.”
The primary goal of cross-examination is to either bolster your case theory or undermine your opponents. And,  the focus of the concession-seeking cross should be on making main points, not exploring minutia.



#3—Examining Witnesses by Michael E. Tigar

In an article on “How to Start a Cross-Examination,” I quoted Tigar’s words of wisdom from Examining Witnesses:

“To begin (cross-examination) strong you must choose an area in which the witness will agree with you. Preferably, the witness will also want to agree with you. What do I mean “want to”? If you are going to cross-examine a police officer on a defect in his report, you will begin by establishing how careful a report writer the witness is. The witness wants to tell you this.
“Face the witness. Smile at the witness. The smile need not be friendly, but it must be polite. Remember, you want this witness to agree with you. You will see British barristers take a superior attitude toward the witness, lofty and disdainful. You will see American lawyers – real or on television – sneering and snarling. Don’t do any of that. With whom will the jury identify in a contest between a witness who is just sitting there and a snarling, sneering, supercilious lawyer? Oh, maybe later, when the jury is brought along to your point of view, you can change mien. But, for now, a polite smile.”

#4—Winning at Cross-Examination by Shane Read

In this Cross-Examination blog space, I wrote a review of Shane Read’s book on cross- examination that reads, in part, as follows:

Shane Read never disappoints his readers, and this is certainly true with his book Winning at Cross-Examination: A Modern Approach for Depositions and Trials. As someone who has written a book on cross-examination—Cross-Examination Handbook: Persuasion, Strategies, and Techniques, perhaps I should be jealous and critical. I’m not and won’t be. His book is splendid, proving that you can never write enough about activity that demands thorough preparation and has accurately been described as involving both science and art.

I must admit that I am a fan of Read’s books,  having reviewed his book Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills, which is on a par with his prior award-winning books Winning at Deposition and Winning at Trial.

The book is divided into three parts as follows: (1) cross-examination skills and strategies; (2) skilled trial lawyers, Tom Girardi and Mark Lanier, reflect on crosses in their notable trials; and (3) discussions of cross-examinations in the O.J. Simpson and George Zimmerman trials. Also, in part 3 is a stage reading on Broadway of a cross-examination in the case against 8, which was the challenge to the California proposition that marriage is only between a man and a woman. . .


#5—Cross-Examination Handbook: Persuasion, Strategies, and Techniques by Ronald H. Clark, George R. Dekle, Sr. and William S. Bailey

And, of course, saving the best for last is our book—Cross-Examination Handbook.

Friday, May 29, 2020

ZOOM CROSS-EXAMINATIONS AND THE CONFRONTATION CLAUSE

First Jury Selection Via Zoom in Texas

An article in the May 11, 2020 ABA Journal, entitled “Could Zoom jury trials become the norm during the coronavirus pandemic” explored the constitutional hurdles to a virtual jury trial. The article quoted Locke Bowman, executive director of the MacArthur Justice Center in Chicago, as saying that “trials by video would likely compromise rights of defendants under the Sixth  Amendment’s Confrontation Clause, which allows them to confront witnesses.” Further the article states: “’A basis for conviction has always turned on a jury’s ability to assess the demeanor of the witness firsthand. When you take that away, you’ve lost something precious,’ Bowman says.”
Is this correct?
The Sixth Amendment does provide: “"in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The Fourteenth Amendment extends the right to the states. It applies to criminal cases; it does not apply to civil cases or other proceedings.
The United States Supreme Court has already addressed the question of whether the Confrontation Clause is violated when the defendant is able to see and cross-examine the accuser face to face via television.  The case was Maryland v. Craig, 497 U.S. 836 (1990). Defendant Craig was convicted of sexually abusing a minor. At the trial, the child, who had suffered severe emotion trauma and couldn’t testify in the defendant’s presence, instead testified from a room in which the judge, prosecutor and defense attorney were present. The jurors, who were in the courtroom, watched her testify live on television. On appeal, the Maryland Court of Appeals reversed the conviction, finding that the Sixth Amendment had been violated. Justice Sandra Day O’Connor wrote the majority opinion—a  5-4 decision—reversing the lower court and remanded it for further proceedings consistent with the decision.
The Craig decision held that because defense counsel was able to cross-examine the witness and the jury could see defense counsel and the child’s demeanor, the defendant had a constitutionally sufficient opportunity to confront the witness, testing not only the substance of her testimony but also her credibility. Justice O’Connor summed up her opinion as follows:
“In sum, our precedents establish that ‘the Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ . . ., a preference that ‘must occasionally give way to considerations of public policy and the necessities of the case,’ . . .. ‘[W]e have attempted to harmonize the goal of the Clause—placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate factfinding, which may require consideration of out-of-court statements.’ . .  We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e. g., Kirby, 174 U.S., at 61  (‘It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case’); . . . ("Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers. Indeed, one commentator has noted that "[i]t is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99, 107-108 (1972).” Maryland v. Craig, 497 U.S. 836, 849-50 (1990). (Citations Omitted)

Is the pandemic a “circumstance that excuse(s) compliance with the right to confrontation?” Also, is the change in the composition of the United States Supreme Court since the Craig decision likely to lead to the overturning of that decision? The Craig decision is well reasoned, and I think the answers to these questions are “Yes” and “No” respectively.



Wednesday, May 27, 2020

CROSS-EXAMINING THE EVASIVE WITNESS

In the past, we have discussed how to handle the evasive witness on cross-examination. In Chapter 10 of the Cross-Examination Handbook, we explore the different methods witnesses use to evade the question and how to control the witness. The inimitable Elliot Wilcox discussed this topic in a blog piece entitled, “How to Detect 'Non Answers' During Cross-Examination” Here’s what Elliot Wilcox has to say on the subject:

Prof. John Henry Wigmore argued that "Cross examination is the greatest legal engine ever invented for the discovery of truth."  But that's only true if the cross-examination is conducted by a skilled examiner.  Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it.  In the hands of a master craftsman, cross-examination can achieve remarkable results.  In the hands of a novice, it can often cause more harm than good.

To become a quality cross-examiner, you must master the ability to critically listen to  witness's answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you'll need to recognize is the "non-answer."  Expert witnesses and well-prepped witnesses are the best masters of the "non-answer."  At their finest, their responses don't even appear to be evasive.  They'll make it sound like they've answered your question, but in fact, they're completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear. 

If you've ever watched a political interview, you've probably seen "non-answers" in action.  The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:

Q: Are you prepared tonight to say that you've never had an extramarital affair?
A: I'm not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I'm not prepared to say that about anybody...  I have acknowledged causing pain in my marriage...

Some of your witnesses have mastered the art of giving non-responsive answers.  It's your obligation as a cross-examiner to ask follow-up questions and extract your desired answer.  Here are some examples of "non-answers" you should listen for:

Non-Answer #1: Completely Avoiding the Issue
Q: Does this skirt make me look fat?
A: I love you.  (Or you can try Dave Barry's response: Sticking a fork in one or both eyes to avoid answering... it's much less painful!)

Non-Answer #2: Describing Expected Procedures
Q: Did you request a CAT-scan?
A: It's normal procedure to request a CAT-scan in those circumstances. 
Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

Non-Answer #3: Saying What You Will Do or Hope to Do
Q: Do you support higher salaries for judges?
A: I think that's an important issue that we should address.
Q: How soon will you have the weaponized virus contained?
A: We're doing everything we can.

Non-Answer #4: Answering a Question with a Question
Q: Did you lock the store before you left that evening?
A: Why wouldn't I?

Non-Answer #5: Telling What They'd Normally Do in the Situation
Q: Did you check for tire wear patterns?
A: Normally, I would...
Q: No, what did you do?

Q: Did you call for backup before approaching the car?
A: Usually, in these situations...
Q: What specifically did you do in this situation?

Non-Answer #6: Describing What Others Did
Q: Did you find any drugs in the car?
A: We found several packages of cocaine in the center console.
Q: No, what did you find?
Q: Who located the firearm?
A: Our SWAT team found the firearm in the back bedroom.

Non-Answer #7: Guessing or Supposing
Q: Did you read the warning label?
A: I'm pretty sure I would have.

Non-Answer #8: The Speech or the Argument
Q: I'll ask for the fourth time. You ordered --
A: You want answers?
Q: I think I'm entitled to them.
A: You want answers?
Q: I want the truth!
A: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall.  We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!

Non-Answer #9: Half-Truths or Half-Answers
Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.
Q: Did you order the Code Red?
A: I did the job you sent me to do.

To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately.  Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question.  Once you recognize what they're trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.

One of the best ways to handle non-answers is to simply ask your question again.  For a fun example of someone doggedly refusing to answer a question, watch this clip from the BBC to see Jeremy Paxman's interview of Home Secretary Michael Howard.  In the interview, Paxman asks the same question twelve times.  How many times does Howard actually answer the question?  You'll need to watch the video to see!



Tip of the hat: Elliott Wilcox's articles can be found at this website www.TrialTheater.com

Sunday, May 24, 2020

CROSS-EXAMINATION WEBSITE


Visit the Cross-Examination Handbook WEBSITE. This website is dedicated to the Handbook and everything involving cross-examination.

Features of the website include the following:





Inside the book--The contents of the book

Author Information

Teacher’s Resources—Login for a Teacher’s Manual for professional development CLE workshops and law school courses and clinics, which can be

Cases Files–The case files that come with the book and are for use in CLE programs and law school classes





Tuesday, May 19, 2020

GO BIG, NOT SMALL ON CROSS-EXAMINATION


Go Big: As we explain in Cross-Examination Handbook: Persuasion, Strategies, and Techniques, the primary purpose of cross-examination is to convince the jury to adopt your case theory and reject your opponents. This is the big picture. To do this, seek concessions that either build upon or protect your  own case theory or damage the other side’s. A secondary purpose is to impeach the witness’s credibility as unworthy of belief, thereby damaging your opponent’s case. Cross can be fashioned to produce one or both results. When a witness refuses to concede a fact that must be given because the evidence or common sense proves it to be the truth, the witness is impeached.  Of course, if you can gain such significant concessions from the witness that you have turned that witness to your own, remember the big picture—you can forgo impeachment.

In Cross-Examination Handbook, we provide multiple illustrations of cross-examinations that revealed the big picture to the jury. U.S. Attorney Robert Stewart’s devastating cross of an alibi witness in a mega trial of 18 defendant’s known as the ‘Pizza Connection Case.” Bob Dekle’s cross of an expert in Ted Bundy’s last murder trial. U.S. Attorney Robert Stewart’s cross of Zacarias Moussaoui, who was prosecuted for his involvement in the 9/11 terrorist attack. Cross-Examination Handbook goes step by step through how to construct a concession-seeking cross that comports with the cross-examiner’s big objective—building the case or undermining the other side’s case.

Not Small: Nothing is worse than a small, nitpicky cross-examination. It not only bores the jury and makes no headway towards the examiner’s goals but also can turn the jurors against the cross-examiner. A cross should focus on major points and do it without exploring microscopic details. When is it common for cross-examinations to go small? Counsel often will cross a witness on minor inconsistencies between what the witness testified to and a prior statement. Just because the rules of evidence allow for impeachment with a prior inconsistent statement, doesn’t mean it should be pursued. Good judgment is called for. Is it a significant or insignificant matter?

Poor preparation produces picayune points. When an attorney has not thoroughly planned the cross and wings it, that lack of planning often results in that attorney walking through the direct again, picking around the edges. The end result is a cross that repeats the direct and does not promote the cross-examiner’s big picture, is not to the point and is uninteresting.