Cross-Examining Experts: Make Their Expert Yours

Prior articles here (Cross-Examination: Think My Cousin Vinny and  Catching the Truth on Cross-Examination) focus on the CONTENT of cross-examination. The core concept is that the primary purpose of cross-examination is to gain concessions and those concessions make up the content of your cross. Impeachment is only a secondary goal. Each concession that you are seeking is the truth that the witness must admit or stamp the answer given as a lie mistaken or ridiculous because you can prove the truth that is sought, or the truth just makes common sense. 

Many experts are particularly susceptible to concession-based cross-examination because they want to remain credible in the scientific community and don’t want to bend or break the truth with their testimony. Some experts, yes, will exaggerate, mince words and evade. This is particularly true with the soft sciences, such as psychiatry or psychology. Dr. Dean Hawley, a pathologist in Indiana, put it this way: “Is the expert qualified? Is the expert truthful? If the expert is qualified and truthful, make the expert your star witness.”

Now, watch the prosecutor do a concession-based cross-examination of the defense expert in the manslaughter trial of Dr. Conrad Murray for killing Michael Jackson. The prosecutor turns the defense expert into the prosecution’s star witness.

Here are three examples of low hanging fruit for a cross-examiner of a qualified and truthful expert. First, make the expert concede the validity of the science. Second, have the expert concede that your expert used the proper scientific technique. Third, have the expert concede that your expert has an excellent reputation in the scientific field. 

MICHAEL JACKSON’S DOCTOR’S MANSLAUGHTER TRIAL: CROSS-EXAMINATION, EXPERTS AND TRUTH (PART 3)

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. 

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.