SUICIDAL REDIRECT EXAMINATION

There’s an old saying that cross-examination is more often suicidal than homicidal. The saying refers to the fact that many lawyers do irreparable harm to their cases by conducting an inept cross-examination. Sometimes the witness will commit suicide by blurting out things far better left unblurted. When this happens, the cross-examiner should abandon the role of assassin and gently assist the suicide.

 Years ago a gentleman whom we shall call Randall Porter stood trial on a charge of Second Degree Murder. Porter had shot his friend in a drunken brawl in the front yard of Porter's house. The defense was (I'm not kidding) that the Defendant accidentally shot his friend in self-defense. The evidence was uncontroverted that the two argued in the defendant's front yard, the victim struck the defendant knocking him down, the defendant went inside and got his shotgun, walked out on the porch, and shot the victim. He claimed to have stumbled and accidentally discharged the shotgun as the defendant attacked him. The cross-examination went like this:

Q: And then you shot him?

A: I was shooting towards the trees, yes, sir. I did not pull the gun out to shoot him.

Q: You pulled the trigger, didn't you?

A: Yes, sir, I did.

Q: As a matter of fact, you had to cock the hammer back before you could pull the trigger?

A: Yes, sir.

Q: You went and loaded your gun?

A: Yes, sir.

Q: Broke the breach on it?

A: Yes, sir.

Q: And stuck a shotgun shell in it?

A: Yes, sir.

Q: You walked out on that porch?

A: Yes, sir.

Q: You raised the gun to your shoulder, didn't you?

A: I believe so. I don't remember if I had it actually up to my shoulder or down to my side.

Q: You cocked the hammer back, didn't you?

A: Yes, sir.

Q: And you pulled the trigger, didn't you?

A: Yes, sir.

Q: And you killed your good friend, Howard Gaines?

A: Yes, sir.

After he had been in prison a few years, Porter filed a post-conviction motion attacking the competency of his lawyer. It seems that he felt his lawyer had committed malpractice by putting him on the stand and exposing him to cross-examination. That contention failed, and he served out the remainder of his sentence. He may have had a point if he had complained about the redirect examination conducted by his lawyer. The defense attorney was leading his client by the nose, but the prosecutor was enjoying it too much to object. Here's how the redirect went:

Q: And after you got up off the ground and went in the house, you had to go back into the bedroom. Correct?

A: Yes, sir.

Q: Take the gun down?

A: Yes, sir.

Q: Where were the shells?

A: It's on the same gun rack.

Q: You have to go into the box?

A: Yes, sir.

Q: Take a shell out?

A: Yes, sir.

Q: Put it in the gun?

A: Yes, sir.

Q: Reclose the gun?

A: Yes, sir.

Q: Go back down the hall?

A: Yes, sir.

Experienced attorneys will tell you that your cross-examination should never become a "supplemental direct examination," wherein you re-emphasize the other side's telling points. The advice also works for redirect. You do not want to turn it into a supplemental cross-examination. If a cross-examination has killed you, for heaven's sake, don't relive it on redirect.