The View from Our Hotel Room Window
One of the problems I discussed dealt with cross-examination and when to start planning to cross-examine a witness. The cross I used as my example came from Cross-ExaminationHandbook: Persuasion, Strategies, and Techniques, and dealt with the cross-examination of an expert witness. In the stereotypical cross-examination the lawyer first begins planning as the witness testifies on direct examination. The examiner sits poised at counsel table jotting down notes as the witness testifies, immediately discerns the Achilles heel of the direct examination, writes out a few well-phrased questions, and eviscerates the witness when the time comes to cross-question. This sort of cross occurs most frequently in fictional trials. Cross-examination in the real word requires preparation. We began to prepare the example cross-examination before we even knew the identity of the expert. In fact, we began preparing the cross before we drafted the indictment.
We believed that the victim died as the result of an attack with a Buck General hunting knife, but we anticipated difficulty in proving that specific cause of death. We therefore charged in the indictment that the victim was killed “in some manner and by some means to the grand jury unknown.” We later had reason to be glad we had pled the case so carefully. Although our Medical Examiner testified that the victim died as the result of “homicidal violence to the neck area, type undetermined, accompanied by copious bleeding,” the defense found an equally qualified Medical Examiner to testify that the body was so badly decomposed it was impossible to determine the cause of the victim’s death. As a result of our careful planning, and through a well-crafted cross-examination, we were able to get the defense Medical Examiner to say that he agreed with our Medical Examiner that the victim died as the result of a homicide. The cross-examination on cause of death ended with the following exchange:
Q: … Dr. Lipkovic determined … the cause of death was homicidal violence, type undetermined … Do you have any disagreement with the cause of death?
A: Just plain homicidal violence?
Q: Yes, sir.
A: And no other specifics than that?
A: As a specific diagnosis, I would not use that terminology. Having feelings what he is saying, I would probably not disagree with it, no sir. [A double negative is a sign of an expert on the defensive].
Q: You would not disagree with that diagnosis?
A: Well, I would disagree with it as a … diagnosis …, but not as an opinion based on his experience. [From actual trial transcript].
The Handbook describes how we were able to get this admission on pages 38-40. Although I failed to mention in my talk that the cross was discussed in the Handbook, I was pleased to hear several prosecutors praise the Handbook. The book was a labor of love, and I am gratified that practitioners find it useful for planning and conducting cross-examinations.