“AHA” MOMENT AND CROSS-EXAMINATION

Closing the Loop of Cross in Closing

Cross-examination designed to expose the defect in the witness’s testimony may not be evident to the jurors during the cross. Rather, the loop may be closed in closing argument when you unveil the flaw and the jurors comprehend the full impact of the examination. Michael Tiger describes the effect as follows:

“The goal is to have a working plurality of jurors say ‘Aha,’ meaning ‘We see now the flaws in what this witness has said.’ Many lawyers do not understand that the ‘aha’ can come at many possible times during trial, and need not even be the result of cross-examination. The jurors can choose to discredit a witness because of what some other witness has said or based on some other evidence; effective lawyer argument shows the contradiction and points to the right result. In short, you don’t have to cross-examine every adverse witness.

“Even when you do not cross-examine, the ‘aha’ needn’t occur while the witness is on the stand. Trying to make it appear may lead you to take excessive risks with the witness.

“When Edward Bennett Williams had Jake Jacobsen, ex-Treasury Secretary Connally’s accuser, on the stand, much of the cross-examination was derided by journalistic onlookers as boring. Ed was taking Jacobsen through a long series of prior inconsistent statements, most of them under oath. In some measure, Ed was showing Jacobsen power- that he had measured all these facts about Jacobsen, making Jacobsen reluctant to hazard disagreement with the examiner.

“The main purpose of cross was to lay the basis for closing argument, where the inconsistencies could be spread out again and made part of the story of the case. Then the jurors would say ‘Aha!’”

Examining Witnesses, Michael E. Tigar, (Litigation Bookshelf 1972), 156-57

CROSS-EXAMINATION ROOKIE MISTAKE #1: PITTING

Don’t Ruin Your Cross-Examination

Cross-examination intended to compel the witness to contradict another witness by calling the other witness a liar is called “pitting,” and it is a rookie mistake and reversible error in this nation. Michael E. Tigar noted notes that this isn’t true elsewhere around the world:

“The rules limit your ability to ask the witness on the stand to explain or comment on the testimony of another witness. This is a marked contrast to other legal systems such as the British and South African, in which putting others’ versions to the witness is often done.”
Examining Witnesses, ABA Litigation Section (1972), 155-56.

A typical case is Sullivan v. State, 751 So. 2d 128 (Fla. 2nd Dist. Ct of Appeals 2000) and the court, in reversing the conviction for robbery, explained why pitting is not allowed in this country:

“In Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993), the supreme court held that questions directed to one witness concerning whether another witness lied on the stand are improper for two reasons: first, because witness credibility is a jury question; and second, because the question itself may lead the jury to believe that the witness being questioned is lying.”

The State’s cross-examination of Sullivan which follows illustrates how the prosecutor committed a rookie error:

Q.... You never told those detectives that you were a lookout in this case, huh?
A. No. I didn't.
Q. So you heard them both get up there and say that you told them that, right?
A. Yes, I did.
. . . .
Q. And, now, I guess, you're telling this jury that these two detectives came in here today and got up here and lied?
[OBJECTION SUSTAINED]
Q. You heard those two detectives get up there and say that you told them you were a lookout. Is that true?
A. Right.
Q. Are you saying they lied?
[DEFENSE COUNSEL]: Objection, Judge. This is improper.
[THE STATE]: I'm sorry, Judge. Either one person is telling the truth.
[OBJECTION SUSTAINED]
Q: [THE STATE]: You're saying you never told them that?
A. I never told them that.
Q. But yet they say you did?
A. They said it.
Q. Now, we have two police detectives saying that. You agree to that, that you heard them say that, right?
A. Yes, sir.
Q. And then we have—and you have been convicted of ten felonies, right?
A. Yes.
Q. You do drugs?
A. I have.
Q. And you sell drugs?
A. Yeah.
Q. You do all those things and yet we believe you instead of what those detectives say?
[DEFENSE COUNSEL]: Judge, I object. Can we approach?
THE COURT: Overruled, Counselor.

Pitting is not only wrong but also unnecessary. All counsel needs to do is to make sure the testimony of the witness on cross and of the witness who offers conflicting testimony is clear, and the impeachment will be axiomatic and counsel can make certain with a strong closing argument that the conflict is not lost on the jury.

ON CONFLICTS IN TESTIMONY AND CLIENT COOPERATION

Horace Rumpole, the fictional Old Bailey barrister, once said that he could win most of his cases if it weren’t for his clients. Some clients display a stubborn insistence upon ignoring your advice or otherwise undermining your efforts to help them. Sometimes, despite your best efforts on the part of your client, he will say or do something which undoes all your good work.

In a long ago drug trial, the testimony revealed that a confidential informant had purchased cocaine from the defendant under the surveillance of several law enforcement officers. Instead of immediately arresting the defendant, the officers allowed several weeks to go by before obtaining a warrant. Of course the defense was mistaken identity. The officers advanced the defense by being in hopeless conflict as to what the defendant was wearing. On cross-examination the defense attorney skillfully highlighted each conflict, hammering home the inconsistencies and causing the prosecutor himself to wonder about the credibility of the officers. One officer said the defendant was wearing a brown shirt. One said a green shirt. Another said the shirt was striped. One officer said the defendant was wearing tan pants. One said beige. Another said brown. One officer said the defendant was wearing brown shoes. Another said he was wearing sneakers. They could not agree on the description of a single item of the defendant’s clothing.

The prosecutor’s concern about the wide divergence in testimony deepened during final argument as the defense attorney eloquently argued the discrepancies, reminding the jurors that the judge would instruct them that “a reasonable doubt can arise from the evidence, the lack of evidence, or a conflict in the evidence.” The defense attorney had spun the conflicts into enough reasonable doubt for a dozen acquittals. As he sat listening to defense counsel, the prosecutor could see that the argument was connecting with the jury. They were leaning forward and listening intently. The prosecutor even saw one of the jurors nod as the defense attorney made a point. Unable to continue looking at the jury, the prosecutor allowed his eyes to wander about the courtroom. Before long, they fell on the defendant sitting alone at counsel table. The prosecutor did a double take and then studied the defendant intently. He was wearing a green and brown striped shirt. His pants were a color that could fairly be called beige, brown, or tan. The prosecutor looked down at the defendant's shoes; they were brown sneakers. The defendant was wearing the same clothing he had worn when he sold the drugs!

The prosecutor decided to work a comment or two on the defendant's dress into his rebuttal final argument. He would have to be circumspect in his remarks, however, because the clothing that the defendant wore to court was not in evidence. How might he comment on the defendant's courtroom attire without provoking a mistrial for commenting on facts not in evidence? The prosecutor decided to use the defendant's clothing as a non-evidentiary demonstrative aid. His closing remarks went something like this: "Ladies and gentlemen of the jury, my learned colleague has made much of the fact that one officer described the defendant’s shirt as brown, while another said it was green, and another said it was striped. He says this so-called conflict gives rise to a reasonable doubt about his client’s guilt. Could it be that the defendant on the night in question wore a green and brown striped shirt much like the green and brown striped shirt he is now wearing? Where is the conflict in testimony if that is the case? As for the conflict about brown shoes or sneakers, could the defendant have worn a pair of brown sneakers, much like the brown sneakers he wears today? Could .... " You get the picture. The jury did too. The prosecutor got his conviction without ever having to say, "Look, ladies and gentlemen of the jury, the defendant is either so arrogant or so stupid that he thinks we won't notice that he's wearing the same clothing he wore the night he sold the drugs." An excellent job of cross-examination and an eloquent final argument were set at naught by the client’s own actions. Perhaps defense counsel would be wise to add “dressing the client” to their pretrial checklist of things to do.