Wednesday, October 12, 2011
KNOWING WHEN TO BREAK THE RULES OF CROSS-EXAMINATION
You could call it a locked-room murder but not a locked-room mystery. The murderers were locked in the room with their victim. Two inmates contrived to get themselves locked into the same cell with another inmate and proceeded to strangle him with a garrote. When a correctional officer came down the row of cells checking to see if the inmates were properly locked up, she looked into the cell and found the killers with their victim.
The elder killer, whom we will call Enoch Drebber, looked like a hardened violent career criminal, and in this case you could judge a book by looking at the cover. We shall call the younger killer Dorian Gray because he looked to be little more than a baby-faced teenager. Drebber, who stood trial first and received the death penalty, was brought from Death Row to testify on behalf of his friend. Upon taking the witness stand, Drebber looked like the personification of evil. He did little to dispel this first impression as he testified that he and he alone had killed the victim, and that if Gray had tried to stop him, he would have killed Gray also. Drebber, who made a convincing witness, suffered little damage to his credibility as he weathered a vigorous cross-examination.
When Drebber’s testimony concluded, the judge called for a recess, and a spectator from the courtroom approached the prosecutor. Gray had been giving hand signals to Drebber while Drebber testified. Several other spectators in the courtroom confirmed that they also saw the signaling. The prosecutor put the most credible of these spectators onto the witness stand to describe what she had seen, intending to argue that Gray was telling Drebber what to say. The defense then called Gray to the stand to refute that argument. Gray testified that both he and Drebber knew American sign language, and that he had communicated with Drebber in that sign language. Gray stated that he did not tell Drebber what to say, he merely called Drebber a liar. The judge ruled that the prosecutor could cross-examine Gray about the hand signals and nothing else.
The prosecutor took his place at the lectern and began to violate almost all of Irving Younger’s Ten Commandments of Cross-Examination. See if you can identify the Commandments he broke:
Q: What was Drebber testifying about when you called him a liar?
A: Our roles in the killing.
Q: Your roles in the what?
A: Our roles in the killing.
Q: So, in other words, you were calling him a liar when he said he acted alone in the killing?
By Defense Counsel: Your honor, I object and ask for a sidebar on my objection.
The judge ruled that the prosecutor could ask no more questions, but he also refused to strike the questions already asked, ruling that the jury could draw whatever inferences they felt proper from the line of questioning.
Based on his limited cross of Gray, the prosecutor constructed a logical syllogism which he argued to the jury:
Someone helped Drebber kill the victim.
Gray was the only person who could have helped Drebber.
Gray helped Drebber kill the victim.
The prosecutor argued that Gray had, in a roundabout way, confessed to the crime. The jury agreed. They gave no weight to Drebber's testimony and returned with a swift verdict of guilty as charged.
You should not mechanically apply the rules governing effective cross-examination. When the circumstances warrant it, you can and should break the rules. You should, however, have a clear reason for doing so, and the payoff must justify the risk. The prosecutor took a shot in the dark when he asked the dreaded “question he didn’t know the answer to,” and the payoff certainly justified the risk