Sunday, April 20, 2014

SMOKE-AND-MIRRORS CROSS-EXAMINATION AND COURTROOM POSITIONING

Where to Stand

Recently I (Bob Dekle) had my class doing practical exercises on concession-seeking cross-examination. See Cross-Examination Handbook for a discussion of the concession-seeking method.  Since we were in a mock courtroom, the non-performing students played the role of jurors and the witness took the witness stand. The first performer asked me if she should move the lectern to the middle of the courtroom so that the jury could fix their attention on her rather than the witness. She had been working in a law office, and she said that was what some of the associates told her she should do. I began by telling her that I was probably going to be giving her the minority report on this issue, and then I began to explain why I didn’t think what she suggested was such a good idea.

“I’ve been to lots of CLE classes on trial advocacy where the speakers taught that you should do this. The conventional wisdom is that on direct you hide yourself from the jury so they will focus on the witness and on cross you get out in front of them so they can focus on you. I understand why they say this, but I disagree.

“On direct, you want the witness to be the source of information, with you guiding the witness through the testimony, so naturally you would want the jury to fix their attention on the witness. On cross-exam, you want to be the source of information with the witness simply being there to agree with you and advance your case or disagree with you and destroy his credibility. Why shouldn’t the jury be focused on the source of information on cross just as they are on direct? Here’s why:

“On concession-seeking cross you’re asking questions that the witness can’t deny without looking bad. You want the jury looking at the witness so that they can see his distress as he makes disagreeable admissions or see him sweat as he tries to dodge those disagreeable admissions. If the jury sees the witness sweating blood over admitting something helpful to your side, the assertion becomes more believable for the witness’s distress. If they see the witness squirming as he tries to avoid admitting the obvious, they begin to disbelieve the harmful things the witness has said on direct. They miss all this if they’re looking at you and not the witness.

Smoke and Mirrors Cross-Examination

“There is only one time that I can think of where it might be desirable to make yourself the center of attention on cross. If you’re doing a smoke-and-mirrors cross trying to discredit a truthful witness, the last place you want the jury looking is at the witness.”

Just as the Wizard of Oz wanted Dorothy to pay no attention to the man behind the curtain [i.e. the truth], the smoke-and-mirrors cross-examiner wants the jury to pay no attention to the witness [i.e. the source of truth].    

I went on to give the student another opinion that might run against conventional wisdom. I advised against the smoke-and-mirrors style of cross. First, it’s dishonest to pretend a fact is untrue simply because it is disagreeable. Second, most moderately intelligent jurors can tell when you’re trying to make green look red, and you’re going to destroy your credibility with them. Third, I think you can make more headway by trying to mitigate the disagreeable fact than by trying to disprove it. Fourth, no witness ever took the witness stand who didn’t have information helpful to the other side. You score more points with a jury by corkscrewing that information out of the witness. Remember, we’re talking about the cross of a truthful witness, and a truthful witness is going to reluctantly tell the truth even though it hurts his side. If the witness becomes untruthful in trying to avoid those helpful admissions, then the witness himself gives the jury reason to disbelieve the truth he said on direct examination.

There’s an old saying that cross-examination is more often suicidal than homicidal. If, instead of trying to impeach the unimpeachable witness, you work at a concession-seeking cross, he just may commit suicide and impeach himself by trying to avoid admitting the obvious. Your job in that situation is not to murder the witness, but to emulate good Dr. Kevorkian and assist the suicide.

Thursday, April 10, 2014

LINCOLN USED CONCESSION-SEEKING CROSS-EXAMINATION

The Crafton Murder Trial Cross-Examination

Abraham Lincoln’s fame as a cross-examiner rests in large part on his decisive use of an almanac to discredit a witness in what history remembers as the Almanac Trial. If we dig into the history books, we can find much better support for the proposition that he was an excellent cross-examiner.

In the late 1980’s the transcript of Lincoln’s last murder case was discovered in a shoe box by the great granddaughter of the defendant. Peachy Quinn Harrison came from a well-to-do family, and they were able to do something that was rarely done in those days—they hired a court reporter to take down the testimony at the trial. Apparently the reporter was providing the defense team with daily copies of the testimony, and Harrison kept the transcript after his acquittal.

The facts of the Harrison case are briefly this: Harrison and another young man, in addition to being political enemies, were apparently rivals for the affection of a young lady. They almost came to blows at a Fourth of July picnic, and afterward exchanged threats and counter threats. Greek Crafton threatened to “whip” Harrison, and Harrison threatened to shoot or kill Crafton if Crafton laid a hand on him.

They came to blows in a drugstore one Sunday morning in August of 1859. Crafton apparently was the aggressor, with Harrison saying he did not want to fight. Crafton grabbed Harrison, and in the ensuing scuffle Crafton suffered a severe stab wound. Harrison fled the scene and it was several days before officers could get him arrested. In the interim Greek Crafton died of his wounds. The Sangamon County Grand Jury indicted Harrison for the murder of Crafton, and the trial commenced on August 31, 1859. They believed in speedy trials in those days.

The star witness for the prosecution was John Crafton, the victim’s brother, who had sustained a severe cut on his arm when he came to the aid of his brother. Lincoln’s main strategy was to portray Greek Crafton as the aggressor. He intended to do this by a concession-based cross-examination getting John Crafton to repeat admissions he made at the preliminary hearing. See Cross-ExaminationHandbook for further discussion of concession-seeking cross-examination. There was no court reporter at the preliminary hearing, but the defense team took notes on the testimony for use at the upcoming trial. Lincoln also wanted to assert facts that either would later be proven by other witnesses or had already been proven by state witnesses, thereby impeaching John Crafton with the contrary testimony. The cross-examination went like this:

Q. About that time [when the fight began] did you hear either of the parties say anything?
A. No, sir. I don’t remember any such thing. I think I said the first thing spoken in the room. I told Mr. Short to let them loose, that Greek could whip him. [Other state witnesses had already testified to an exchange of words between the two men].
Q. You did not add that “Greek should whip him?” [Another fact already testified to by a state witness].
A. No, sir, but I told him he could whip him.
Q. Did you see anything about the beginning or for a little while of Harrison holding on to one of the counters? [Other witnesses had already testified that Greek accosted Harrison in a drugstore and began pulling him away from a counter, whereupon Harrison got hold of the counter to resist].
A. No sir *** I did not see any holding on.
Q. Were they so far from the counter as to leave no question about it in your mind?
A. I suppose if a man had tried, he could reach the counter from where they were. ***
Q. And then you pulled on him, rather to pull him out of the fight? [Already proven by other witnesses].
A. I could not say whether I pulled him or not. I caught his arm and told him to let them loose. I held on until he pushed me backwards over this south counter. ***
Q. You moved along rather in a row and you came to the boxes first before Greek?
A. No, I think Greek fell about the time I leaned over this counter, pushed by Short. About that time I saw him fall.
***
Q. You did not see the knife when the blow was given?
A. I did not see the knife go into him.
[Lincoln now has the witness reenact the struggle].
Q. I suppose when you told Short to let him alone—that Greek could whip him, that you had the ordinary meaning and wanted Greek to whip him?
A. I thought after they got into the fight that Greek could whip him.
Q. And you wanted him to? [The probabilities were that John wanted his brother to whip Harrison, so asking the question was a win/win proposition. If John admitted he wanted Greek to whip Harrison, it showed bias. If he refused to admit it, he lost credibility with the jury].
A. Well, certainly I did.

We don’t see a dramatic knockout blow being landed in this series of questions, but that happens more on television than it does in an actual courtroom. What we do see is Lincoln asking short, closed, leading questions which asserted facts favorable to his client. He thereby maintained tight control over the witness. If the witness admitted the facts, well and good. If he denied the facts, Lincoln had the contradictions ready at hand for impeachment. A workmanlike effort which outshines the cross-examination techniques of the other lawyers involved in the case.


Monday, March 24, 2014

CROSS-EXAMINATION IN KOSOVO

Introducing Cross-Examination in Kosovo

For the past week, I (Ron) have been in Pristina, Kosovo teaching trial advocacy, including, of course, cross-examination. The U.S. Department of Justice offered this advocacy training as part of Kosovo’s effort to implement the rule of law. Kosovo is the world’s newest nation, having declared its independence in 2008. The population of Kosovo is approximately 1.8 million.

The people of Kosovo have great affection for Americans, and they were unfailingly gracious to us.  The U.S. involvement in bringing an end to the Kosovo war is a reason for this attitude, and their appreciation is evident with a statue of Bill Clinton on Bill Clinton Boulevard and American flags flying throughout the city.
  
Attendees at the course were Victim Advocates. Victim Advocates in Kosovo have a four-year undergraduate degree in the law. Under the new Kosovo Criminal Procedure Code (effective January 1, 2013), they have a new active role in prosecutions. Their new responsibilities include augmenting the prosecution’s case and pursuing restitution and compensation on behalf of victims.

The attendees, like the vast majority of the population of Kosovo, were Albanian. One spoke Bosnian and the rest Albanian. The training was done with simultaneous translations.

The trial advocacy courses consisted of training two groups in two separate sessions back to back. Each training session lasted two and a half days. During the sessions, the attendees learned about prosecuting a case from opening statement through closing argument. Jury selection was not discussed because cases are tried either to a single judge or a three-judge panel depending upon the nature of the crime. The Kosovo criminal justice system is evolving. Besides not providing jury trials, there are many other differences from our criminal just system. Another example is that plea bargaining was not been possible in the past, and every case went to trial.

My co-trainers - Chuck Ex and Scott Thorley - and I lectured, demonstrated how to perform different parts of trial, such as give an opening statement, and worked with the attendees in workshops as they delivered opening statements and closing argument as well as conducted direct and cross-examinations. The criminal case fact pattern that they used is the one provided in Trial Advocacy: Assignmentsand Case Files, 2nd Edition.

Cross-examination was a featured topic with more workshop time devoted to it than any other topic. Chuck Ex (pictured above) lectured on cross-examination and then I demonstrated how to cross-examine with Chuck playing the role of the defendant in a murder case.  


A highpoint of the week was attending an event at the United States Ambassador's residence hat honored Kosovo’s Forum of Women Judges and Prosecutors. Not only is our Ambassador Tracey Jacobsen a woman but so it the President of Kosovo Atifete Jahjaga. The President is an ex-police chief and only 38 years old. Pictured above are Vlora Citaku (Minister of European Integration of the Republic of Kosovo), Chuck Ex, the President, me and my wife. 


My colleagues pictured above from left to right were: Michelle Lakomy (Resident Legal Advisor, Pristina, Kosovo) who was in charge of the program, Chuck Ex (Program Director for OPDAT – Office of Prosecutorial Development, Assistance and Training), Benina Kusari (Legal Specialist), me, Scott Thorley (Assistant United States Attorney in Salt Lake City, Utah), and Elisa Thana (Victim/Witness Advocacy Program Manager).

It was an honor to be a part of this ongoing endeavor to improve the cross-examination and other skills of the Victim Advocates and to put into practice the rule of law in Kosovo.

Monday, February 17, 2014

RELAX – “IT’S EXRAORDINARILY RARE TO LOSE A CASE ON CROSS-EXAMINATION” BUT EXCEPTIONS EXIST

Observations in The Elements of Trial by Friedman and Cummings

In their new book TheElements of Trial (Trial Guides 2013), Rick Friedman and Bill Cummings make a point that we make in Cross-Examination Handbook that a well- planned cross-examination presents little risk to the cross-examiner. We point out that cross-examination is the examiner’s opportunity to elicit concessions. Friedman and Cummings point out that as a rule there is little chance that you’ll lose a case based on your cross, but there are exceptions. These excerpts from The Elements of Trial explain their view:  

“As you decide whether to lead or not, you should know that it is extraordinarily rare to lose a case on cross-examination. If you think about this for a minute, you will understand why. If a witness has bad things to say about your case, your adversary will know them and bring them out on direct examination. If you ask some poor cross-examination questions, the witness will repeat the bad things he said on direct, but the jury has heard them already – hearing them again may be unpleasant, but not likely to kill your case. So exploring areas your opponent already covered in direct may not get you anywhere, but is unlikely to lead to catastrophe. . .

Again, you are very unlikely to lose a case on cross-examination. However, there are two notable exceptions to this pronouncement.

“First, you can lose a case on cross-examination if you go exploring in an area where there is highly prejudicial information available about your client that the judge excluded from evidence. If your client has a conviction for child molestation that the judge excluded in response to your motion in limine, you better not ask the hostile witness about your client’s character. Always have the rulings on your motion in limine in mind when you cross-examine, and don’t ask questions that might give the witness the opportunity to answer with prejudicial material. The judge may rule that you have opened the door to that evidence by asking the question.

“Second, you can lose a case on cross-examination if you are rude and obnoxious toward the witness. If you work hard enough at this, you can get the jury to dislike yu enough to rule against your client. But you are not going to do that, are you?

“If you realize you are unlikely to lose a case on cross-examination, it can free you up to relax a little and explore the witness’s story. The world will not come to an end if you don’t do this perfectly.”

Wednesday, January 29, 2014

IMPEACHMENT BY PRIOR NON-STATEMENT





MORE CROSS-EXAMINATION IN THE LINDBERGH KIDNAPPING CASE







Prosecutor David T. Wilentz (left) and Key Witness John F. Condon

The law has long recognized the propriety of impeachment by prior inconsistent statement. The first description of the proper method for such impeachment was given in the 1820 divorce case tried in the House of Lords, where King George IV unsuccessfully tried to disentangle himself from a loveless marriage to Queen Caroline.

A lesser type of impeachment by prior inconsistent statement is impeachment by prior non-statement. Such impeachment is not as well recognized as impeachment by prior inconsistent statement, nor is it often as effective. A typical impeachment by prior non-statement which I have heard many times goes like this:

Q. You never said that before, did you? A. Nobody ever asked me before.

For impeachment by prior non-statement to be effective, the non-statement should be something which was said in a situation where it would be reasonable to expect that the witness should say it. For example, if a witness has identified a defendant as the perpetrator of a crime. It would be natural to expect that the witness would have identified the defendant in a post-arrest lineup. If law enforcement had confronted the witness with the defendant and asked him to make an identification, and if the witness had not done so, it would seem to cast some doubt on the in-court identification. If, on the other hand, a reporter had stuck a video camera in the face of the witness and asked him to identify the perpetrator, the fact that the witness said nothing is more evidence of the witness’s caution than of any possible mendacity. Let us see how this might play out in an actual trial. We will return to the Lindbergh Kidnapping Case and the testimony of John F. Condon, who had identified Bruno Richard Hauptmann as the mysterious “Cemetery John” to whom he delivered the ransom money.

Q. Did you see any newspaper men while you were there [in Miami]?
A. Plenty.
Q. Did you tell them at that time that Hauptmann was not the John?
A. No, sir.
Q. How many newspaper men did you see?
A. Oh, I couldn't count them, they were flocking in there in such droves that I couldn't count them.
Q. How many interviews did you give?
A. I couldn't state that they were interviews, but I had conversations with anybody that came to my room or to my table.
Q. They asked you about this case, didn't they?
A. They did.
Q. Yes. You never once told any newspaper man that this defendant was John, did you?
A. Which defendant?
Q. This defendant here.
A. Oh. I never did. I never told or mentioned his name to them or in public, never—note the words Colonel—of affirmation or denial. I make a distinction between "identification" and "declaration of identification." [In the early twentieth century it was customary to refer to lawyers as “colonel.”]
Q. In other words, I am to understand that you split hairs in words?
A. No hairs at all. A man's life is at stake and I want to be honest about it.
Q. There was nothing preventing you from telling the press, was there, that this was the right man?
A. Yes, there was; yes, there was.
Q. If you wanted to be honest about it, why did you not blazon forth that fact to the world when they asked you?
A. Because I didn't wish to do it and perhaps interfere with this case itself.
Q. If you were honest and telling the truth, do you not know that nothing could interfere with the truth, no matter how many times you said it was the man?
A. It didn't. It didn't. It didn't interfere because I didn't say.
Q. In Greenwich Street, New York police station, you said it was not the man, did you not?
A. No, sir. Get all the people that were there, I did not.
Q. You never said it was the man?
A. I never said it was or was not.
Q. Because you know you are not sure?
A. Because I made the distinction between declaration and identification. The identification meant what I knew mentally, the declaration meant what I said to others. There isn't a man who breathes has ever heard me say that that was the man but one.
Q. You were brought there for the purpose of identifying Hauptmann, were you not?
A. I was, yes, sir.
Q. And you didn't identify him, did you?
A. No, sir. Beg pardon, there is the word "identification" again. I take exception to your language. It would make a mistake and when you begin to divide the identification and declaration and denial, you would make it appear as though I were dishonest and I am not. I won't—is that too severe, Judge?
The Court: No.
Q. Come on, I can take it.
A. That is good. I want you to know, Counselor, that the identification is purely a mental process after the senses have known, after the senses have distinguished, and unless that is taken that way to answer quickly, fast, I don't know but what it might be a kind of trap that you were getting me. The declaration is where I tell it to others. Identification is what I know myself.

In the case of the non-statement to the newspaper reporters, the impeachment fell flat. In the case of the non-statement at the lineup, the examiner bungled. First, let us talk about hte non-statement to the newspaper reporters. Condon gave a perfectly rational and proper explanation of why he did not say anything to the reporters about Hauptmann's identity as Cemetery John. Cases should be tried in the courtroom, not the newsroom.

Second, let us speak of the non-statement at the lineup. Edward J. Reilly was an experienced criminal defense attorney who was esteemed a very good one. No matter how good a lawyer may be, he can still have chinks in his armor, and Reilly appears to have had a giant chink. He seemed to be oblivious to the maxim that when you cross-examine you do not need to examine crossly. Reilly sought to engage the witness in a war of words, but Condon came to the witness stand with a keen wit and a half-century of experience in public speaking. The newspapers of the day adjudged Condon the victor in the verbal duel between lawyer and witness. The New York Times described Condon’s testimony in the following words:

He testified for nearly five hours, of which two were occupied by a severe cross-examination by Edward F. Reilly, chief defense counsel. The cross-examination failed to shake Dr. Condon’s story or his identification on any vital point, although the lawyer made Dr. Condon admit that he did not say that Hauptmann was “John” at the time he viewed him in jail in New York, right after his arrest. “Condon Names Hauptmann as ‘John’ Who Got Ransom; Parries Defense Attack,” New York Times, January 10, 1935.

What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony.

Reilly should have attacked Condon’s testimony, not Condon. Snide remarks and personal assaults should not have been weapons in his arsenal. At least not until cross-examination had discredited Condon in the eyes of the jury. A better line of questioning, tight and controlling, might have gone thus:

Q. You attended a lineup at the Greenwich Street police station in New York?
A. Yes. [We can expect Condon to append a verbal barrage to his affirmation, but we will not take the bait. We will relentlessly pursue the non-identification.]
Q. The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery?
A. Yes. [Another verbal barrage.]
Q. Bruno Richard Hauptmann was in the lineup?
A. Yes. [Another verbal barrage.]
Q. At that time you did not identify Mr. Hauptmann as John?
A. I identified Mr. Hauptmann at that time but I made no declaration of identification. [At this point in the actual cross-examination Reilly sought to belittle Condon as a hair-splitter. Two types of witnesses engage in this type of splitting of hairs—evasive witnesses and pedants. Condon may have been evasive, but he was also a pedant. It would have been far better to give Condon enough rope to unwittingly betray his evasiveness than to attack him with a charge of lack of candor.
Q. So you identified Mr. Hauptmann as John?
A. Yes.
Q. But you did not make a declaration of identification?
A. No. [Instead of battling with a witness over the definition of words, it is usually a better tack to adopt the witness’s definition and work the definition against the witness.]
Q. So when you left the police station that day, you had told nobody that Mr. Hauptmann was John?
A. No. [A myriad of short, single-fact questions could be spun out to hammer home the fact that, despite the earnest desire of the police to learn the identity of John, Condon withheld vital evidence from the police.]
Q. And you never told Mr. Wilentz that Mr. Hauptmann was John?
A. No.
Q. The first time you have ever told anyone that Mr. Hauptmann was John is today in this courtroom?
A. Yes. [A myriad more short, single-fact questions could be devised to accentuate the preposterous nature of Condon’s assertion, leading the jury to the conclusion that Condon was a lunatic or a liar.]


With a series of short, single-fact questions, Reilly could have highlighted the implausibility and made Condon’s verbosity look like evasion rather than self-defense against a relentless attack.