The
cross-examiner must know the answer before asking the question on cross. That
is the axiom. The answer sought is the truth that either supports the
examiner’s case theory or undermines the other side’s case theory. The
proposition holds true for lay witnesses and, as the following example shows,
for expert witnesses as well.
Conrad Murray, Michael Jackson’s doctor was
prosecuted for involuntary manslaughter.
The defense called Dr. Paul White to
testify to, among other things, that Jackson self medicated with his own stash
of propofol thereby causing his own death.
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Prosecutor David Walgren |
Prosecutor
David Walgren relied on concession-seeking cross-examination to build his case
against Dr. Murray. Walgren asked questions to which he knew the defense expert
had to answer in a manner favorable to the prosecution. They included:
"Do you agree that there are instances where Dr.
Murray deviated from the standards of care in his treatment of Michael Jackson
on June 25, 2009?"
"And would you agree that there were
instances where Dr. Murray deviated from the standards of care in the preceding
two months of treatment, as relayed by Dr. Murray in his statement to
police?"
“Have
you ever used propofol in someone’s bedroom?”
“Have
you ever heard of anyone doing that prior to this case?”
Murray’s
expert Dr. White had to make these concessions because they comported with
common sense and the standard of care for medical treatment of a patient.
Cross-Examination Handbook covers this concession-seeking
cross-examination technique, including how to identify the content of this type
of cross – what the truth that the witness must concede - and how to construct
and conduct a smooth flowing and effective cross to elicit the truth.
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