Thursday, August 30, 2012
What can be learned about cross-examination from the Casey Anthony case? First, when you make a witness a centerpiece of your case by placing him upfront as your leadoff witness, make sure the witness is bulletproof and won’t meltdown on cross-examination. The dangers of selecting a problematic lead-off witness as illustrated by the Casey Anthony case can be found in a related article.
The second point that is vividly illustrated by the Anthony case is that a witness’s anger can be turned to the cross-examiner’s advantage. When the prosecution chose George Anthony, Casey Anthony’s father, as the first witness in the state’s case in chief, it was well aware that the defense would allege that George (pictured here) molested Casey. Beyond that the team knew that defendant Casey Anthony had told therapists that George killed Caylee, his granddaughter by Casey Anthony.
While the prosecution undoubtedly tried to prepare George Anthony to neither lose his temper nor try to outwit defense counsel during cross, that effort failed. Jeff Ashton’s account of the cross describes how pretrial preparation on occasion fails to deter a witness from jousting with the cross-examiner, how an aggressive cross can anger a witness and how painful it is to sit by helplessly watching a meltdown. Ashton describes what happened to George Anthony on cross-examination in this way:
“Rather than saying, ‘No, it didn’t,’ (when defense counsel Jose Baez asked George about the condition of a gas can when it was returned to him) and staying consistent with what he’d said to me only an hour or so before, George started to be difficult with Baez, answering his questions with questions for the sole purpose of frustrating him.
“This was not helpful to our case. George must have hated Jose, particularly because of the latest allegations. I think George may have believed that it had been Baez’s idea to accuse him of abusing his daughter. . . Regardless, one thing I was sure of was that Baez knew how much George disliked him and used it to his advantage. Baez probably wanted the jury to see George’s hostility, and George took the bait. He was not bright enough to read what was happening. I wanted to say, ‘George, just stop playing games, just answer the question,’ but I couldn’t. I’ve always wondered if on some subconscious level George was trying to look guilty. Maybe this was his way of helping Casey. I really didn’t think so, but I wondered. For someone who was innocent, he had a way of making himself appear suspect. I didn’t think it would seriously hurt our case, or lend any real credence to the defense’s baseless accusations, but I knew this was not the face of George that we on the prosecution team wanted to project.” (emphasis added)
Turning a witness’s anger to the cross-examiner’s advantage can be an effective technique that reveals the truth. Unfortunately, it can also be a tactic that leaves a false impression.
Tuesday, August 14, 2012
On the old TV series Dragnet, Sergeant Joe Friday wanted his witnesses to tell him “Just the facts, ma’am, nothing but the facts.” This objective is as important on cross-examination as it was to Sergeant Friday. On cross-examination, you want just the facts, and you want your facts in small doses. One of the basic maxims of cross-examination is to limit each question to one fact. The main reason for asking one-fact questions is to control the witness. Each fact you add to your question gives the witness another chance to disagree with you and either avoid making the damning admission or mask it in a torrent of words.
Q: When you were walking down the sidewalk, you saw your brother stab the man, didn’t you?
A: There’s not a sidewalk on that road.
A: The road doesn’t have a sidewalk, so I really wasn’t walking down the sidewalk when I saw the event.
Even when you limit your question to one fact, you can provide the witness with an out by including adjectives or adverbs:
Q: You were looking closely at the two men when you saw your brother stab him, weren’t you?
A: I wasn’t looking closely at anything. As a matter of fact, I wasn’t paying that much attention.
One trial advocacy instructor teaches his students to avoid this problem by omitting all adverbs and adjectives and trying to limit each question to a five word declaratory statement coupled with a tag question:
Q: You saw the stabbing [declaratory statement], didn’t you [tag question]?
Sometimes, however, even the shortest questions can be problematical because facts can be complex. Conclusions can often be expressed with a single word, and these single words can appear on the surface to be facts. Take as an example the following question asked of a young lady who claimed she had accidentally stabbed her boyfriend in the groin while she was slicing sausage:
Q: You chased him down the hall, didn’t you?
A: I didn’t chase him.
The “problem” with this question is that the term “chase” describes a complex fact. A number of component facts must be true in order for a chase to have occurred. The prosecutor in this situation realized that the defendant would be hard pressed to deny each of the component facts which made up the complex fact that she had chased her victim. The examination followed something like this:
Q: He went down the hall?
Q: You went down the hall?
Q: You were behind him?
Q: He was not walking?
Q: He was moving fast?
Q: You were moving fast?
Q: You had a knife?
Q: It was in your hand?
Q: He went into the bathroom?
Q: He closed the door?
Q: You stabbed the door?
Q: You stabbed it more than once?
Q: He climbed out the bathroom window?
She readily agreed to each of these component facts, and the prosecutor decided not to ask one final question: “But you weren’t chasing him?” In this particular case, the questions concerning the component facts worked just as well after the question about chasing, but in most cases you will be dealing with more complex facts, and the component questions should come first.
Take the example of another case where a gentleman whom we shall call Michael Malefactor claimed that he accidentally shot Victor Victim in self defense. The prosecutor wanted to show that the killing was intentional, but knew that it would be futile to ask “You meant to kill him, didn’t you?” Instead, he constructed a series of questions designed to get the defendant to admit each of the component facts which, taken together, established the complex fact that the killing was intentional.
The questioning went something like this:
Q: After he hit you, you went inside?
Q: You went to the bedroom?
Q: You got your shotgun?
Q: You broke the breach on it?
Q: You stuck a shell in it?
Q: You closed the breach?
Q: You went out on the porch?
Q: You raised the gun to your shoulder?
Q: You cocked the hammer back?
Q: You pulled the trigger?
Q: And you killed your good friend, Victor Victim?
Each of these questions elicited an answer of “yes” except the multi-fact “You raised the gun to your shoulder?” The defendant said he didn’t know whether he raised the gun to his shoulder or shot from the hip. Whether he shot from the hip or the shoulder, it was clear that he shot intentionally.
This type of questioning with short, one-fact questions can be powerful if you remember to ask for simple facts which the defendant cannot deny without losing credibility in the eyes of the jury. It is important, however, that you do not shoot from the hip. You must prepare your cross-examination as carefully as Michael Malefactor prepared to shoot his victim.