Cross-Examination to Fit the Witness

 

Cross-examination should vary depending on the type of witness you are examining.  British barrister David Paul Jones’s Golden Rules of Cross-Examination, which he wrote a century and a half ago, expressed this idea as follows:  

“Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.”

We discuss strategies and techniques for adapting the cross to the witness in Cross-Examination Handbook. What follows are a few of the techniques that can be employed based upon the type of witness you are examining.

EVADER

The evader will not give a straight answer when it's harmful and will run on introducing as much damaging information as possible.  To gain control, these techniques can be used: repeat the question; have the court reporter read the question back to the witness; ask the witness to repeat the question; ask whether the witness understood the question and whether some impediment prevents the witness from answering, and if necessary, if the cross-examiner believes the court will help, ask the judge to direct the witness to answer.

BRAGGART

When the witness is a talker who is arrogant and wants to lecture, keep the witness going and allow the witness to self destruct.  Courtroom demonstrations by a boaster can be fun.

LIAR

Examine the liar on details and encourage the liar to invent a few.  Show improbabilities and try to put the witness on the horns of a dilemma.

FORGETTER

Attempt to get the witness to repeat "I can't recall" as often as possible.  Count them.  It is ideal if the witness remembered on direct but not cross.

THINKER

If the witness is slow to answer, she will leave the impression of needing time because she is unsure or because she is lying.  Do not push the witness.  Argue a little but overall be courteous and calm.

WITNESS MELTDOWN UNDER CROSS IN CASEY ANTHONY CASE

Jeff Ashton’s book about the Casey Anthony case entitled Imperfect Justice: Prosecuting Casey Anthony provides an insightful discussion of the case that captured the attention of people across the nation. I was eager to read the book not only out of curiosity (how in the world did the jury acquit her?) but also because I had gotten to know Jeff (pictured here) when he served repeatedly on the faculty at the National College of District Attorneys in Columbia, South Carolina where I worked for six years. Jeff came to the National Center to teach prosecutors from across the country. I came to know him as a talented instructor and highly respected trial lawyer. His book proves him to also be a talented writer.

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.