CROSS-EXAMINATION OF CAPTAIN QUEEG

Herman Wouk's great masterpiece is The CaineMutiny about sailors on a World War II destroyer minesweeper who mutiny against their incompetent Captain Queeg. Wouk wrote The Caine Mutiny play and for a while worked on the script for the movie in which Humphrey Bogart gave an Oscar winning performance as Captain Queeg in the Caine Mutiny movie.

The basic facts underlying the court-martial case are that Lieutenant Stephen Maryk relieves Queeg of command of the USS Caine when Captain Queeg freezes up during a typhoon. Maryk has a belief from Queeg’s prior behavior that he is mentally unbalanced. Maryk is on trial for conduct to the prejudice of good order and discipline.

Lieutenant Greenwald’s cross-examination of Queeg is the high point in the movie. Beyond that, it is a superb illustration of how to conduct a concession-seeking cross-examination. The concession-seeking cross-examination strategy is discussed at length in Cross-Examination Handbook.

 Time after time, Greenwald confronts Queeg with truths that Queeg must concede or stamp his answer as either a lie, mistaken or ridiculous. Why must Queeg concede? It is because Greenwald can prove what he is asserts either by circumstantial or direct evidence or by plain common sense. Greenwald knows the answers to every cross-examination question he asks.

It is Greenwald’s turn to testify, not Queeg’s. It’s his opportunity to lay out the truths. These truths all support the ultimate conclusion—Queeg is unstable and unfit for command.

Here are those truths: (1) Queeg steamed over the Caine’s tow line; (2) Queeg was distracted during the towing maneuver because he was reprimanding a seaman over an un-tucked shirt; (3) Queeg having just testified that Maryk was unfit had previously written a glowing fitness report about him; (4) Queeg ordered that the Caine steam ahead of an attack force, drop a yellow dye marker and retreat; and (5) Queeg was obsessed with a search for a key that would have led to a missing quart of strawberries when he had been told by an officer that the mess boys had eaten the strawberries. When confronted by Greenwald with the fact that the officer who told Queeg about the mess boys eating the strawberries could be called to testify, Queeg loses his composure, rolling two metal balls around in his hand as he babbles on (masterful performance by Bogart). Naturally, Maryk is acquitted.

CROSS-EXAMINATON AND TRUTH

 

As we have said here and in Cross-Examination Handbook, the primary goal of cross-examination is to capture the truth from the witness. On cross, you shouldn’t be trying to discover anything; you shouldn’t ask any interrogatory questions. You know the truths that the witness has to offer and you aim to extract those known truths. If the witness fails to provide the truths that you can prove by direct or circumstantial evidence or by common sense, the witness will suffer the consequences.

You may have missed this illustration of how to extract the truth or make the witness look witless when it was first discussed here. It bears repeating.  The Pizza Connection case provides a stark example of how a witness’s testimony can be exposed as comical if the witness refuses to provide the truthful answers. The Pizza Connection case was a mega-trial involving 18 defendants who were charged with a $1.6 billion heroin smuggling and money laundering that stretched from Brazil to small pizzerias in the Midwest. Trial lasted from October 24, 1985 to March 2, 1987.

 

The following is an excerpt from Shanna Alexander’s book The Pizza Connection: Lawyers, Money, Drugs, Mafia 318-320 (Weidenfeld & Nicholson) (1988) in which she describes United States Attorney Robert Stewart’s cross-examination of an alibi witness and it’s a gem of a cross:

 

(Defense counsel) Larry Bronson’s defense of (defendant) Sal Greco is focused on his client’s need to prove that he was not in a Bagheria farmhouse in early March 1980 watching a heroin quality-control test. Bronson will show he [Greco] was quietly, busily at home in New Jersey. He calls Greco’s good friend and tax accountant, Justin Pisano, a man who keeps detailed date books.

Under patient examination by Bronson, the witness goes through a precise account of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts and to visit nearby pizzerias with his client in order to compare their business with that of the Greco pizzeria in Neptune City.

Stewart’s cross-examination of Pisano becomes this prosecutor’s finest hour. He concentrates on the March date-book entries.

“On March 2, yes, I drove down to see Greco,” Pisano says, “and we had a leisurely dinner.”

“You told us yesterday you were in no rush, right?”
“Yes.”
“And that’s the truth, the whole truth, and nothing but the truth?”

“Yes.”
“Then what is this appointment for 7:00 p.m., with Troviatta?”
“Just a tax appointment. Early March is income tax time, and I made many Sunday and night appointments to service all my tax clients.”
“What is Troviatta’s first name? Where does he live?”
“I don’t remember. I don’t even think I do their taxes anymore.”
Stewart remembers. He says Pisano was thirty-five miles away from Greco’s pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera.
Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.
“Are you an opera fan?”
“Nope. Only been to one opera in my life, when I was in high school.”
Stewart shows the witness, and the jury, the Sunday-evening newspaper opera

listing for March 2, 1980, at the New York State Theater at Lincoln Center: La Traviata. Bronson objects. “Misleading the witness, your Honor. 

His witness’s tax client is named Troviatta—with two t’s.”
“And the advertisement for the opera is spelled T-R-A-V-I-A-T-A, right?”Stewart asks. “No. It’s La Traviata,” says Pisano gamely.
“La Traviata?”
“Right. I don’t see the comparison to Troviatta.”
“Except for the time. That’s a coincidence. Isn’t it?”
Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, March 16, at one in the afternoon.
“Are you referring to Carmen? Carmen Sangari, who I no longer do?”
“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listing for that Sunday afternoon. Pisano looks, and agrees that this is truly an amazing coincidence.

Spectators have begun to giggle. But Stewart is not finished. He directs the wit- ness’s attention to his diary entry for the following Sunday at 7:00 p.m. “Is that a tax client of yours?”

The giggling turns to guffaws. The notebook says, “Barber of Seville.”

This cross illustrates that no matter which way the witness responds, the cross-examiner wins when the question require that the witness concede the truth or suffer the consequences.

CROSS-EXAMINING THE TOUGH WITNESS

Even when you are equipped with the skills and strategies covered in Cross-ExaminationHandbook, they will not be enough to do damage to the credibility of a tough witness. A tough witness is one who is armed with the truth and has been thoroughly prepared to testify at trial. The best that you can accomplish with a tough witness is to elicit concessions that either support your case theory or undermine the other side’s case theory.

What is entailed in the thorough preparation of a witness? The following is an indispensable checklist along with notes for thorough and effective witness preparation that you can use when you prepare your witness. And, when you come up against the tough witness, you know that opposing counsel has relied upon a similar checklist.

Ö      Preparation for the courthouse and courtroom:

–      Courthouse – where is it? Note: It is not unheard of that a witness will go to the wrong courthouse or courtroom. Tell your witness not only where the courthouse is but also where the courtroom is located.

–      Courtroom Layout. Notes: Much of your witness preparation is designed to familiarize the witness with everything. Most people have a fear of the unknown, and this preparation can alleviate some of that fear. Either show the witness a diagram of the courtroom or take the witness to the courtroom. If you have a child witness, definitely take the child to the courtroom, have the child sit in the witness chair and otherwise learn about the courtroom. Tell the witness who the courtroom players are and where they will be positioned in the courtroom, such as where the clerk, bailiff and court reporter are situated (except for the defendant in a criminal case which could result in a mistrial).

–      Don’ts: Notes: Tell the witness not to discuss case in or around the courthouse. because jurors may be on the street around the courthouse or in the halls or on the elevator. Instruct the witness to not enter the courtroom until summoned because witnesses are excluded. This does not apply to the client(s) and to the detective in a criminal case.

Ö      Preparation on the witness’s role and substance:

–      Witness’s Role. Notes: Tell your witness to tell the truth. If it hurts, tell the truth. Tell your witness that the only instruction that you have given them regarding what to say is—tell  the truth. Ask the witness, “What damaging information is out there?” You need to know because only if you know what it is, can you deal with it.

–      Review Prior Witness Statements. Notes: Have the witness review all prior witness statements that the witness has given. Tell the witness before the witness goes over the statement that the witness should not feel wed to what is in the statement. If there is something erroneous, the witness should let you know.

–      Cover the Witness’s Story. Notes: Go over the witness’s story in detail and probe for any weaknesses. If there is a weakness, have the witness explain. Witnesses are commonly not good at estimating things like time and distance. Go over this. For example, if the witness says that the two individuals were five feet apart, have the witness show you how far they were apart using objects in the room.

–      Practice Direct Examination. Notes: Walk through it. Practice with exhibits and demonstrations

–      Practice Cross-Examination. Notes: Explain to the witness that you are going to step into opposing counsel’s shoes and conduct a cross-examination (you may have another colleague do it). Ask tough questions that you expect from the other side. Tell your witness not to worry about cross-examination because the witness is telling the truth.

Ö      Preparing the Witness on How to Testify:

–      MRPC 3.4(b) prohibits coaching to testify falsify. Notes: However, you can help the witness be a good communicator. Help the witness be Confident, Clear and Credible.

–      1.  Have a Good Appearance. Notes: Tell the witness to dress appropriately for court. When sitting in the witness chair, the witness should have good posture—sit up straight.  Speak clearly, and here you can explain the role of the court reporter and the need to speak clearly and not to rapidly. The witness should avoid distracting habits, such as chewing gum or fiddling with a pen.

–      2.  Courtroom Rules. Notes: Tell the witness that if there is an objection, stop talking and listen for directions regarding what is to be done next. Tell the witness that if they can’t remember something, say so. And, explain how you may seek to refresh recollection if the witness can’t recall and the procedure for refreshing recollection.

–      3.  Communication on Direct. Notes: Tell your witness that only the jury counts, and that the witness should talk to them. If court procedures permit, explain that you will stand at the end of the jury box so that the witness will be looking down the jury box towards you. Tell the witness that this courtroom positioning is intended to remind the witness both to speak up so the furthest away jurors can hear and to look the jurors in the eyes and talk to them as though they were having coffee together. Tell the witness that the jurors have no axe to grind with the witness and they are just trying to learn the truth, which the witness will deliver.

–           4.  Communication on Cross. Notes: Discuss keeping composure on cross. You can explain that the witness should never get cute or argue with the questioner. To assist the witness with that endeavor, you can explain that while the witness will not be able to address the jury after testifying, counsel may and in doing so, counsel can comment on the witness’s lack of composure and how the witness’s demeanor showed the witness was not credible. Explain that contrary to direct examination when the witness should look at the jurors, during cross, the witness should look directly at counsel. Instruct the witness listen carefully to the question that is asked and answer it directly. Don’t volunteer information.

CROSS-EXAMINATION MOVIE MESSAGES

Anatomy of a Murder

The primary purpose of cross-examination should be to catch the truth. The sought-after truth is evidence that supports your case theory or undercuts your opponent’s case theory. This is nothing new. In the Art of Cross-Examination authored by Francis Wellman, a chapter is contributed by Emory Buckner. In that chapter, Buckner writes that “more cross-examinations are suicidal than homicidal in nature.”  He postulates that this is a result of cross-examiners not understanding the correct purpose of cross-examination. Buckner states, “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The primary purpose of cross-examination should be to catch the truth. Impeachment should be a secondary purpose. Three other reasons support this proposition. First, if the witness makes the concession, you may be able to turn the witness to your own. Second, one concession on cross is worth ten pieces of evidence on direct examination. Third, it’s easier to get a witness to grant a concession than it is to impeach the witness.

The most important question that you should ask yourself as you plan cross-examination is: “What must the witness admit or stamp the answer a lie, mistaken or ridiculous.” The witness must admit because the cross-examiner can prove it by direct or circumstantial evidence or by common sense. Note that if the witness does not testify to the truth, the witness will be impeached. This truth-catching strategy is explored at length in our book Cross-ExaminationHandbook.

Underpinning this approach is the proposition that the concession sought must be the truth. It cannot be false. If the cross-examiner advances an untruth during the cross-examination, that can backfire--another suicidal act. The movie Anatomy of a Murder, considered to be the best trial movie ever made, provides a great example of such a disastrous cross.

In Anatomy of a Murder, an Army lieutenant is accused of murdering Barney Quill, a bartender, whom the lieutenant (Ben Gazzara) claims raped his wife (Lee Remick). At trial, witness Mary Pilant, who managed the inn where Quill worked, is called as a witness for the defense because she found a pair of torn panties that would corroborate the claimed rape. Claude Dancer is the prosecutor–played by George C. Scott—on cross-examination asserts that she was Quill’s lover and therefore willing to plant false evidence—the panties. 

Dancer’s cross-examination goes as follows:

Q.        Miss Pilant, were you Barney Quill’s mistress?

A.         No. No. I was not.

Q.        Do you know it’s common knowledge in Thunder Bay that you were living with Quill?

A.         No, it’s not true. Barney Quill. . .

Q.        Was what, Miss Pilant? Barney Quill was what?

A.         Barney Quill was my father.

Dancer is crushed, turns away, asking no more questions.

Gregory Peck as Atticus Finch in To Kill a Mockingbird

Atticus Finch in Harper Lee's To Kill a Mockingbird, says “Never, never, never, on cross-examination ask a witness a question you don’t already know the answer to, was a tenet that I absorbed with my baby food. Do it, and you’ll often get an answer you don’t want, an answer that might wreck your case.” Thinking you know the answer is not enough, you must be able to prove it. When you can, you can go after the ever “elusive fugitive”—the truth, knowing you will have a winning cross.