Friday, June 15, 2012


Argumentative Questioning - Then and Now

At the dawn of the Twentieth Century, the English barrister, James Ram, wrote a book entitled A Treatise on Facts as Subjects of Inquiry by a Jury. The work, which became quite popular in the United States as Ram on Facts, is available for download from the Internet Archive. In his book, Ram explored all aspects of proof at trial, including cross-examination.

When discussing cross-examination, Ram ventured his opinion of argumentative questioning: “It is not right, in a question to a witness, to address him by, or to apply to him, a name, which, in a common acceptation of it, implies dishonor or disgrace. In a question to him it is not right, and as it would seem not lawful to call him a spy, a character commonly of bad odor.” As an example of this point, Ram reproduced a cross-examination performed in an English court by an American lawyer. Edwin James of the New York bar was questioning an officer by the name of Rogers and was attempting to get the officer to admit that he had attended a public meeting as a spy.

Mr. James: Did you go there as a spy?
Rogers: I went by the direction of the Commissioners of Police to attend a public meeting there.
Mr. James: What did you go there for?
Rogers: To take notes of who were there, and what was said.
Mr. James: You went there as a spy, didn't you?
The Attorney General: It would be fairer for the witness, as well as to those who sent him, if you were to ask what his instructions were.
Mr. James: Well, what were your instructions? *** Did you go as a spy?
The [Court]: You had better get the facts from him, and you can draw any inference you please.
Mr. James: It is a plain English question, and I submit that I may ask it. *** The same question has been put before, as your lordships know, in state trials. I contend I am entitled to put the question, did you go there as a spy?
The [Court]: If an objection be taken, the point had better be discussed in regular form.
The Attorney General: I submit that my learned friend has no right to put a question, the affirmative answer to which would bestow an opprobrious name upon the witness, and upon those who instructed him. My learned friend has a right to inquire minutely into all that the witness has done or said —
The [Court]: And into all the directions he received.
The Attorney General: I was going to add, and into all and every direction that he received. But I conceive that he has no right whatever to put a question, that embodies his own description of something, that may or may not have taken place. I submit the question is altogether irregular, and contrary to the law and practice of the courts.
Mr. James: I contend that I am entitled to put this question. On Hardy's trial the question was put by Mr. Erskine in these terms,—" Then, in plain English, you went there as a spy?" and it was not objected to.
The [Court]: Then there was no decision.
Mr. James: I do not say that there was a decision, but that trial was presided over by the highest authorities. That question was not objected to by the then Attorney General, and no remark was made upon it by the judges.
The [Court]: But on the present occasion the question is objected to, and we are called upon to decide the point.
Mr. James: I submit that I am entitled to put the question. The witness may decline to answer it, if he pleases; that is another matter.
The [Court]: The question being objected to, I am of opinion that it is irregular *** on the ground that he is called upon to draw an inference from the facts. It will be open to Mr. James to denominate the witness as a spy hereafter if he think fit; but I am of opinion that he cannot ask the witness, 'Now, did you go as a spy?' He may ask under what directions he went, for what purpose he went, what he did when he was there, what report he afterward made to those who employed him; and those facts being ascertained, he may apply the term 'spy,' if he pleases, to the person who so acted. But I am of opinion, that the question, 'Then you went as a spy?' is not regular, and that it cannot be properly put.

In the modern American courtroom we would prefer the term “confidential informant” to “spy,” but the stigma of underhandedness would still attach. It is unlikely that the question “Were you operating as a confidential informant?” would draw an objection today, or that such an objection would be sustained; but the question can allow the witness to temporize.

Q: Did you go there as a confidential informant?
A: No, I went there [as an undercover operative] [as an interested citizen] [to find out what was going on] [because I was curious].
If you’re going to ask a witness questions in an attempt to paint a picture which the witness [or opposing counsel] contests, then you’re going to have rough sailing by simply asking a single question which carries all the negative implications in one statement:
Q: You drove while under the influence of alcohol to the extent your normal faculties were impaired, didn’t you?

Such a question is going to either draw an objection from opposing counsel or an argument from the witness. It is better to study the negative fact you are trying to establish and to break that negative fact down into its neutral components. Then string together a series of single questions for each of the neutral components. By the time you have gotten to the last question, you should have painted the negative picture with question to which neither the witness nor opposing counsel can object.
If you should inadvertently ask a conclusory question and meet resistance, don’t try to plow ahead as Mr. James did. Drop back and analyze the question, break it down into its component parts, and establish your fact by a series of unobjectionable questions:

Q: You chased him down the hall?
A: I didn’t chase him.
Q: He went down the hall?
A: Yes.
Q: He was going faster than a walk?
A: Yes.
Q: You went down the hall behind him?
A: Yes.
Q: You were going faster than a walk?
A: Yes.
Q: You had a knife in your hand?
A: Yes.
Q: He went into the bathroom?
A: Yes.
Q: He locked the door?
A: No, he didn’t.
Q: He closed the door?
A: Yes.
Q: You stabbed the door?
A: Yes.
Q: You stabbed the door seven times?
A: I only stabbed it twice.

At this point the prosecutor resisted the temptation to end his series of questions with “So you followed him down the hall at a high rate of speed with a knife in your hand, and when he shut himself up in the bathroom you stabbed the door, but you weren’t chasing him?”

Mr. James could have avoided an extended argument by simply breaking the “spy” question down into its component parts:
Q: You went to the meeting?
Q: You went there at the request of the police?
Q: You went there to learn what was being said?
Q: You planned to report what you learned to the police?
Q: You reported what you learned to the police?
Q: You told nobody at the meeting that you were a police officer?
Q: You told nobody at the meeting that you planned to report what you heard to the police?

This form of questioning can not only produce smoother sailing in your questioning, it can also make the point you are trying to make much more forcefully than if you put the point in a single question. Instead of this:

Q: You lied, didn’t you? [Objection sustained].
You can get this:
Q: You say you drank a six pack?
Q: The night you were arrested, didn’t you tell Officer Friendly you had only had two beers?
Q: It wasn’t true that you had only had two beers?
Q: You knew that what you told Officer Friendly wasn’t true?
Q: So you knowingly told Officer Friendly something you knew to be untrue?
This line of questioning will make the jury think “liar” without your having to suggest that the witness is a liar.

There is one more lesson to learn from James’ questioning of Rogers. The mere fact that something has been done before without objection does not make it unobjectionable. In other words, you cannot expect to have your objectionable conduct condoned because another lawyer at another time has engaged in that conduct and gotten away with it.

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