During cross-examination, controlling a witness is crucial, especially when they employ evasive tactics. Here are six effective techniques to manage this situation, each increasing in confrontational tone, tailored to the witness's level of evasiveness.
Establishing Agreement: Start by encouraging the witness to answer simply with "yes" or "no." For example: "Dr. Best, can we agree that most of my questions will be answered with a simple yes or no?" However, be cautious; this tactic can backfire if it seems you’re trying to manipulate the witness.
Technique #1—Repeat the Question: If the witness begins to ramble, restate your question directly. This reinforces your request and highlights their evasiveness to the jury.
Technique #2—More Confrontational Repetition: If necessary, escalate by directly asking the witness if they can repeat your question or if something is preventing them from answering.
Technique #3—Let Them Ramble: If the witness insists on lengthy responses, take a step back—literally. While they talk, show disinterest, then ask, “Are you finished?” This underscores their avoidance.
Technique #4—Write the Question: Display your question visibly and read it aloud. If the witness answers incorrectly, highlight that discrepancy to emphasize their evasiveness.
Technique #5—Physical Gesture: A simple hand gesture, like raising your palm to signal them to stop, can effectively regain control.
Technique #6—Seek the Judge’s Assistance: While it’s generally best to handle evasive witnesses independently, don’t hesitate to ask the judge for help in critical situations to preserve your case. Ask the court to direct the witness to answer the question.
Using these techniques can sharpen your cross-examination skills and keep evasive witnesses in check, much like a skilled conductor guiding an orchestra through a complex score.
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.
In the past, we have discussed how to handle the evasive witness on cross-examination. In Chapter 10 of the Cross-Examination Handbook, we explore the different methods witnesses use to evade the question and how to control the witness. The inimitable Elliot Wilcox discussed this topic in a blog piece entitled, “How to Detect 'Non Answers' During Cross-Examination” Here’s what Elliot Wilcox has to say on the subject:
Prof. John Henry Wigmore argued that "Cross examination is the greatest legal engine ever invented for the discovery of truth." But that's only true if the cross-examination is conducted by a skilled examiner. Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it. In the hands of a master craftsman, cross-examination can achieve remarkable results. In the hands of a novice, it can often cause more harm than good.
To become a quality cross-examiner, you must master the ability to critically listen to witness's answers and identify the weaknesses, fallacies, and evasions in their responses.
One of the more common evasions you'll need to recognize is the "non-answer." Expert witnesses and well-prepped witnesses are the best masters of the "non-answer." At their finest, their responses don't even appear to be evasive. They'll make it sound like they've answered your question, but in fact, they're completely side-stepping it. They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear.
If you've ever watched a political interview, you've probably seen "non-answers" in action. The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:
Q: Are you prepared tonight to say that you've never had an extramarital affair?
A: I'm not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I'm not prepared to say that about anybody... I have acknowledged causing pain in my marriage...
Some of your witnesses have mastered the art of giving non-responsive answers. It's your obligation as a cross-examiner to ask follow-up questions and extract your desired answer. Here are some examples of "non-answers" you should listen for:
Non-Answer #1: Completely Avoiding the Issue
Q: Does this skirt make me look fat?
A: I love you. (Or you can try Dave Barry's response: Sticking a fork in one or both eyes to avoid answering... it's much less painful!)
Non-Answer #2: Describing Expected Procedures
Q: Did you request a CAT-scan?
A: It's normal procedure to request a CAT-scan in those circumstances.
Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.
Non-Answer #3: Saying What You Will Do or Hope to Do
Q: Do you support higher salaries for judges?
A: I think that's an important issue that we should address.
Q: How soon will you have the weaponized virus contained?
A: We're doing everything we can.
Non-Answer #4: Answering a Question with a Question
Q: Did you lock the store before you left that evening?
A: Why wouldn't I?
Non-Answer #5: Telling What They'd Normally Do in the Situation
Q: Did you check for tire wear patterns?
A: Normally, I would...
Q: No, what did you do?
Q: Did you call for backup before approaching the car?
A: Usually, in these situations...
Q: What specifically did you do in this situation?
Non-Answer #6: Describing What Others Did
Q: Did you find any drugs in the car?
A: We found several packages of cocaine in the center console.
Q: No, what did you find?
Q: Who located the firearm?
A: Our SWAT team found the firearm in the back bedroom.
Non-Answer #7: Guessing or Supposing
Q: Did you read the warning label?
A: I'm pretty sure I would have.
Non-Answer #8: The Speech or the Argument
Q: I'll ask for the fourth time. You ordered --
A: You want answers?
Q: I think I'm entitled to them.
A: You want answers?
Q: I want the truth!
A: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall. We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!
Non-Answer #9: Half-Truths or Half-Answers
Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.
Q: Did you order the Code Red?
A: I did the job you sent me to do.
To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately. Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question. Once you recognize what they're trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.
One of the best ways to handle non-answers is to simply ask your question again. For a fun example of someone doggedly refusing to answer a question, watch this clip from the BBC to see Jeremy Paxman's interview of Home Secretary Michael Howard. In the interview, Paxman asks the same question twelve times. How many times does Howard actually answer the question? You'll need to watch the video to see!
.
Tip of the hat: Elliott Wilcox's articles can be found at this website www.TrialTheater.com
In the past, we have discussed how to handle the evasive witness on cross-examination. In Chapter 10 of the Cross-Examination Handbook, we explore the different tactics witnesses use to evade the questions and how to control the witness. Recently, the inimitable Elliot Wilcox discussed this topic in a blog piece entitled, “How to Detect 'Non Answers' During Cross-Examination” Here’s what Elliot Wilcox has to say on the subject:
Prof. John Henry Wigmore argued that "Cross examination is the greatest legal engine ever invented for the discovery of truth." But that's only true if the cross-examination is conducted by a skilled examiner. Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it. In the hands of a master craftsman, cross-examination can achieve remarkable results. In the hands of a novice, it can often cause more harm than good.
To become a quality cross-examiner, you must master the ability to critically listen to witness's answers and identify the weaknesses, fallacies, and evasions in their responses.
One of the more common evasions you'll need to recognize is the "non-answer." Expert witnesses and well-prepped witnesses are the best masters of the "non-answer." At their finest, their responses don't even appear to be evasive. They'll make it sound like they've answered your question, but in fact, they're completely side-stepping it. They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear.
If you've ever watched a political interview, you've probably seen "non-answers" in action. The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:
Q: Are you prepared tonight to say that you've never had an extramarital affair?
A: I'm not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I'm not prepared to say that about anybody... I have acknowledged causing pain in my marriage...
Some of your witnesses have mastered the art of giving non-responsive answers. It's your obligation as a cross-examiner to ask follow-up questions and extract your desired answer. Here are some examples of "non-answers" you should listen for:
Non-Answer #1: Completely Avoiding the Issue
Q: Does this skirt make me look fat?
A: I love you. (Or you can try Dave Barry's response: Sticking a fork in one or both eyes to avoid answering... it's much less painful!) Non-Answer #2: Describing Expected Procedures
Q: Did you request a CAT-scan?
A: It's normal procedure to request a CAT-scan in those circumstances.
Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.
Non-Answer #3: Saying What You Will Do or Hope to Do
Q: Do you support higher salaries for judges?
A: I think that's an important issue that we should address.
Q: How soon will you have the weaponized virus contained?
A: We're doing everything we can.
Non-Answer #4: Answering a Question with a Question
Q: Did you lock the store before you left that evening?
A: Why wouldn't I?
Non-Answer #5: Telling What They'd Normally Do in the Situation
Q: Did you check for tire wear patterns?
A: Normally, I would...
Q: No, what did you do?
Q: Did you call for backup before approaching the car?
A: Usually, in these situations...
Q: What specifically did you do in this situation?
Non-Answer #6: Describing What Others Did
Q: Did you find any drugs in the car?
A: We found several packages of cocaine in the center console.
Q: No, what did you find?
Q: Who located the firearm?
A: Our SWAT team found the firearm in the back bedroom.
Non-Answer #7: Guessing or Supposing
Q: Did you read the warning label?
A: I'm pretty sure I would have.
Non-Answer #8: The Speech or the Argument
Q: I'll ask for the fourth time. You ordered --
A: You want answers?
Q: I think I'm entitled to them.
A: You want answers?
Q: I want the truth!
A: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall. We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!
Non-Answer #9: Half-Truths or Half-Answers
Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.
Q: Did you order the Code Red?
A: I did the job you sent me to do.
To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately. Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question. Once you recognize what they're trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.
One of the best ways to handle non-answers is to simply ask your question again. For a fun example of someone doggedly refusing to answer a question, watch this clip from the BBC to see Jeremy Paxman's interview of Home Secretary Michael Howard. In the interview, Paxman asks the same question twelve times. How many times does Howard actually answer the question? You'll need to watch the video to see!
http://www.youtube.com/watch?v=1KHMO14KuJk
. Tip of the hat: Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
There’s an old saying that you can take the boy out of the
country, but you can’t take the country out of the boy. Apparently something
similar to this old saying was true for Abraham Lincoln—you could take him out
of the courtroom, but you couldn’t take the courtroom out of him. A consummate
cross-examiner, he would not hesitate to use that skill when prodding his
generals into action.
At an early stage of the Civil War it became apparent that
President Lincoln and General George B. McClellan did not see eye to eye on the
conduct of the war. Lincoln wanted McClellan to take his army (the largest in
the world at that time) and make a direct attack upon the Confederacy. McClellan wanted to take his time to prepare
for a roundabout attack.
On February 3, 1863 Lincoln sent McClellan a letter
summarizing their differences and asking five questions. In accordance with the
cross-examination maxim to never ask a question when you don’t know the answer,
Lincoln believed that he already knew the short answers to each of these
questions. He hoped by his letter to cause McClellan to shake off his lethargy
and get moving directly at the enemy. Lincoln’s letter [with the obvious answers
inserted in brackets] is set forth below:
My dear Sir: You and I have distinct, and different plans
for a movement of the Army of the Potomac---yours to be down the Chesapeake, up
the Rappahannock to Urbana, and across land to the terminus of the Railroad on
the York River---, mine to move directly to a point on the Railroad South West
of Manassas.
If you will give me satisfactory answers to the following
questions, I shall gladly yield my plan to yours.
1st. Does not your plan involve a greatly larger expenditure
of time, and money than mine? [Yes.]
2nd. Wherein is a victory more certain by your plan than
mine? [Nowhere.]
3rd. Wherein is a victory more valuable by your plan than
mine? [Nowhere.]
4th. In fact, would it not be less valuable, in this, that
it would break no great line of the enemie's communications, while mine would?
[It would.]
5th. In case of disaster, would not a safe retreat be more
difficult by your plan than by mine? [It would.]
The elephant in the room was the fact that McClellan’s plan
would strip Washington of its defenses and expose it to a direct attack from
the Confederates.
When a witness under cross-examination believes that the
short answer to a question will be harmful, the witness will engage in any
number of evasive techniques, one of which is to give a long, self-serving
dissertation which camouflages the lack of a direct response in a torrent of
words. This may or may not have been McClellan’s objective when he answered the
questions, but his lengthy response [reproduced at 5
Complete Works of Abraham Lincoln pp. 121-124] did fail to give direct
answers to the questions.
Unfortunately for Lincoln’s plan, he was in the war room,
not in the courtroom. Although he probably would have been able to get a jury
to agree with him he was unable to goad McClellan into direct action.
Excellent advice on cross-examination bears repeating. Thus,
this piece repeats Michael Tigar’s advice (Examining Witnesses) that he borrowed from Terry McCarthy. The subject is how to
commence cross-examination in a strong fashion, which we recently discussed here. Tigar (pictured) states that:
To begin (cross-examination) strong you must choose an
area in which the witness will agree with you. Preferably, the witness will
also want to agree with you. What do I mean “want to”? If you are going to
cross-examine a police officer on a defect in his report, you will begin by
establishing how careful a report writer the witness is. The witness wants to
tell you this.
Face the witness. Smile at the witness. The smile need
not be friendly, but it must be polite. Remember, you want this witness to
agree with you. You will see British barristers take a superior attitude toward
the witness, lofty and disdainful. You will see American lawyers – real or on
television – sneering and snarling. Don’t do any of that. With whom will the
jury identify in a contest between a witness who is just sitting there and a
snarling, sneering, supercilious lawyer? Oh, maybe later, when the jury is
brought along to your point of view, you can change mien. But, for now, a
polite smile.
The next idea is borrowed from terry MacCarthy. Actually,
all good trial lawyers have done what he suggests, but Terry has refined the
technique into a “method.” The idea is this: Don’t ask questions. Make
statements with which the witness must agree or suffer impeachment. Most good
cross examiners use leading questions.
Q.
You were in charge of the city’s oil properties, right?
Q. It
was your job to review the prices the city was paid, isn’t that right?
You can even eliminate the words “right” or “isn’t that
right.”
Stand up. If the rules where you practice require you to
examine from a seated position, start your cross with a document or exhibit
that requires you to approach the witness so you have a reason to stand. After
the obligatory smile, look the witness in the eyes, and make a positive statement,
all the while smiling and nodding.
Q. You were in charge of the city’s oil properties?
You reviewed the prices the city was paid for its crude oil?
If the witness agrees with you, but does not answer
audibly, give a reminder.
Q. That’s “yes”?
This method is particularly effective when you are
leading the witness through a series of assertions, each on part of a picture.
Q.
You were in the bar?
Q.
You were with John?
Q.
Somebody came in?
Q.
He had a gun?
Q.
This person had on a jacket?
The last in the series illustrates MacCarthy’s shining
example of brevity, a one-word question. Brevity is, however, not a result but
a means. This style of questions encourages the witness to agree with you by a
series of “yes” answers. It leads from point to point, giving the jurors a
picture of the action.
Best of all, the method lets you jettison most of the ten
commandments as unnecessary. You will almost automatically be brief, short,
plain, and nonrepetitive. Because your statements are questions only because
you verbally punctuate them as such, you are not likely to ask “one question
too many,” “permit the witness to explain,” or “ask the witness to repeat” the
direct examination.
If the witness does not agree with you, have your
impeachment material ready . . .
No matter how much you stress certain principles of cross-examination in a law school trial advocacy class, the lessons don’t stick the way seeing them come live in a courtroom does. Students in my semester-long Comprehensive Trial Advocacy course go to court, watch a day of trial and write a report about what they saw and learned. The students select from federal, state or municipal court, and they can choose either a civil or criminal share their observations.
Here is a student’s report about the importance of counsel’s demeanor and witness control during cross-examination. The name of the defendant is changed, but otherwise this is the true account:
“Case Background
“The student observed a case involving a twenty-one year old female defendant, Ms. Mach. Ms. Mach was charged with assault in the first degree, robbery in the first degree, and a violation of a protection order. Mach and two other males attacked her ex-boyfriend at his home. The victim was punched and kicked outside before he was dragged inside his house. Once inside, the two unknown male attackers put a knife to the victim’s throat and demanded to know where the money and drugs were kept. The victim initially told the attackers that there was no money or drugs in his home. However, the attackers did not believe him and proceeded to beat him until he told them where he kept his money. The two men took approximately $16,000 from the victim’s home. After the two men found the cash, they took the victim into the kitchen where they stabbed him five times in the abdomen before leaving.
“The victim believed that he had been set up by Mach. However, when police interviewed Mach about the assault and robbery she told police that she was not involved with the robbery or assault of her ex-boyfriend, and did not know either of the two men involved. She also claimed that she was raped during the assault and robbery by one of the attackers. In early March of 2012, Mach was contacted again by police. This time, Mach recanted her story about the rape and admitted to knowing the two men who attacked her ex-boyfriend. She informed police that she had called the two men and planned the robbery before going over to her ex-boyfriend’s house. After the robbery, Mach admitted that she was given $2,300 out of the $16,000 that was stolen from the victim’s home. . .
Direct and Cross
“The most poignant part of the trial involved Mach’s direct and cross-examinations. It was very evident that the defense attorney had spent a lot of time with Mach prepping her for these series of questions. Mach was very well spoken. She showed emotion at the appropriate moments. She admitted her falsehoods when asked by both attorneys. She also remained very calm during the entire process. What was helpful to her was that she gained credibility on cross when asked if she lied on various occasions to police. She admitted to doing so. I was also impressed with how prosecution handled the cross-examination. The prosecuting attorney kept a respectable tone with Mach and did not come across as attacking her personally, yet he was attacking previous statements she had made to police. He did a good job walking that fine line. Also, when Mach failed to answer his questions he repeated the question and asked for her to listen to the entire question before answering. He managed to do this in a way where he did not look like a jerk, and still managed to be in control of the testimony that he wanted to illicit from Mach.
“While Mach’s defense team did a good job prepping her, immediately dealing with her inconsistencies, and developing her story on the stand, I do not feel that this was enough to overcome the evidence against her. However, her candor on the stand may help her in the sentencing phase of her case.
“Miscellaneous observations
“The defense attorney did a great job prepping Mach and showing the reasons of why Mach’s behavior may have differed from a “reasonable” person’s behavior in the same situation. However, the attorney’s delivery seemed stilted and was somewhat distracting during the examination phase. The defense attorney had a list of questions that she took to the podium with her and was reading from those questions during the entire testimony. She rarely looked up at Mach when asking her questions. The defense attorney also would ask one question and then immediately follow that up with “how did that make you feel?” She did this so often that it felt very robotic. What would have been more effective would be for the defense attorney to treat her direct more like a conversation instead of a list of questions that she was checking off as she went along.
“That was also striking to me was the distance that the defense attorney kept between herself and Mach and the distance that the prosecuting attorney put between himself and Mach. The defense attorney kept herself far away from her client, except for the one time where she approached her client to give her a glass of water and a tissue. In contrast, the prosecuting attorney stayed very close to Mach during her testimony. He also put himself directly in front of the jury box. By doing this, it struck me that he seemed to have a more “intimate” relationship with jurors than the defense attorney.
“Overall, I feel that both attorneys did a good job. They kept their statements and questions to the point. There were some minor changes that I think the defense could have made to be even more succinct; however, I do not believe that anything she did was detrimental to her client. Since Mach’s testimony was so lengthy, I was not able to observe the other two witnesses that were supposed to testify that day. Due to the lateness of the afternoon, the trial was recessed until next week.”
Cross-Examining the Witness Who Qualifies the Answer
We lawyers love to ask yes-no questions on cross-examination. Trial advocacy schools teach us to ask such questions, but witnesses often refuse to give us yes-or-no answers. The witness’s refusal to give us the answer we crave may stem from many reasons. Let us examine three of them: (1) The witness may be trying to evade our question; (2) either by design or default, our question may be unfair or misleading; or (3) the witness may enjoy the sound of his own voice so much that he is incapable of giving us a short answer. When the witness fails to deliver, we almost instinctively seek either to punish the witness for disappointing us or to coerce the desired yes-or-no answer. We see ample evidence of this tendency in the transcript of the Lindbergh Kidnapping Trial.
The state called eight expert witnesses, each of whom identified Bruno Richard Hauptmann as the author of the ransom notes sent to Lindbergh. On cross-examination, the defense sought to elicit helpful testimony from the experts by asking questions which they desired to be answered either yes or no. Anyone who has had much experience in cross-examining experts knows that yes-or-no answers are very difficult to elicit from experts. Usually it is because we lack sufficient knowledge of the subject to frame an adequate yes-no question; sometimes it is because the witness is intoxicated by the sound of his own voice; and occasionally it is because the witness is trying to evade the question. When cross-examining the handwriting experts in the Lindbergh case, the defense often asked yes-no questions and seldom got yes-or-no answers. When the witnesses attempted to qualify their yes-or-no answers, the defense responded by trying to coerce the desired answers. They often tried to accomplish this by cutting off the witness’s qualification and proceeding to the next question. One, but by no means the only, example of this comes from the testimony of the expert Clark Sellers.
In his direct examination, Sellers had analogized recognizing handwriting by its distinctive characteristics to recognizing a person by his facial features. The defense attorney sought to demonstrate that it was a poor analogy by making a mundane point: Facial recognition requires no expertise, but handwriting examination requires training and experience. The questioning went like this:
Q: In other words, Mr. Sellers, the personal identification of Mr. Sellers as the handwriting expert who appeared in Trenton would simply be a matter of common observation, wouldn’t it?
A: Yes. I think most—
Q: And the identification of a man’s handwriting—
Mr. Wilentz [the prosecutor]: Just a minute.
Q: —would be a matter of skill and practice, wouldn’t it?
Mr. Pope [defense attorney]: I am conducting this examination and I know when the witness has answered my question.
The Court: The witness has not finished his answer. I think he is entitled to finish it.
Mr. Pope: I think he said yes, and that is all I want.
A: Yes. I know sometimes a person would like to show the shade of meaning.
Q: You would like to argue with me, but I would not like to argue and I want you to answer my questions, that is all.
A: No, I don’t want to argue, Mr. Pope.
Q: The Attorney General will give you every opportunity to explain if you need to.
Q: Now, I repeat my question: The one is a matter of common observation and recollection of a face, isn’t it?
A: Yes, a—
Q: And the other—
Mr. Wilentz: Just a minute, please.
Q: The other is the—
Mr. Wilentz: Just a minute, please.
The Court: He wants to qualify that.
Mr. Wilentz: Yes.
The Court: Now, I suppose he is entitled to do that.
Mr. Wilentz: Will you finish your answer, sir?
The Witness: Yes.
A: (continuing) If they have no more experience, probably, in identifying people by their face than they have by their handwritings, why, they could do them to about the same extent; but most people of general experience have more experience in identifying people by their facial features than they do by their handwriting. (State of New Jersey versus Bruno Richard Hauptman, Trial Transcript, page 1410 line 19, to page 1411 line 40).
When a witness seeks to qualify a yes-or-no answer, the absolute worst way to try to control him is by cutting him off with another question. First, it is rude. Second, you show fear of his potential answer. Third, you can come across as heavy-handed. Fourth, you can erode your credibility with the jury, especially when—as here—the judge sides with the witness.
Before taking any remedial action, you must quickly analyze the problem. Is the witness qualifying because your question is poorly worded? Is it because the witness is naturally talkative? Is it because the witness is being evasive? Your remedial action will be different depending on how you analyze the witness’s motive for qualifying.
Had the defense attorney done this quick analysis, he should have diagnosed the problem as volubility on the part of the witness aggravated by the fact that his lengthy question invited a lengthy answer. He was not dealing with an evasive witness, and he did not need to take aggressive measures to control the witness. The first thing to do would have been to shorten the question. Short questions demand short answers. Let the witness give his lengthy answer and then follow up with more a more tightly worded question. A possible follow up might be:
Q: So you need no special training to identify a face?
Q: But you do need special training to identify handwriting?
A lengthy answer to a short question reflects poorly on the witness, not the examiner. Had Sellers entered into a lengthy answer to either of these questions, he may well have eroded his credibility.
But even before taking remedial action, you must be sure that you actually have a problem. In this situation, the defense attorney had already gotten the desired answer out of the witness, but the witness had supplied it in a torrent of words. The first question in the quoted series was a summary question to underline the fact that the witness had verbosely agreed with the point the attorney was trying to make. The witness was verbosely agreeing with the attorney’s summary question when the attorney cut him off. This touched off a skirmish in which the judge joined the side of the witness and the witness was allowed to give his verbose answer. And when the lengthy answer came, it was an affirmation of the point the attorney was trying to make. The only thing the attorney accomplished was to erode his own credibility. He would have been better off to let the witness talk.
The late, great Professor Irving Younger (whose CLE videotapes are still gems and worth viewing) gave us the ten commandments of cross-examination. He could talk all day about them, using memorable and humorous illustrations. He threatened to haunt his listeners if they ever violated one his ten commandments. These ten commandments are still viable and important:
IRVING YOUNGER’S TEN COMMANDMENTS OF CROSS-EXAMINATION
1. Be brief. 2. Short questions, plain words. 3. Always ask leading questions. 4. Don’t ask a question, the answer to which you do not know in advance. 5. Listen to the witness’[s] answers. 6. Don’t quarrel with the witness. 7. Don’t allow the witness to repeat direct testimony. 8. Don’t permit the witness to explain answers. 9. Don’t ask the “one question too many.” 10. Save the ultimate point of your cross for summation.
The core reasoning behind these ten commandments is that if you adhere to them, you will control both the witness and the information delivered to the jury. If you lead, you provide the answer. If you know the answer, only the information you want the jury to hear will be heard. Follow these commandments and you are testifying. Break them, and suffer the consequences.
The ten commandments are valuable today, and should be reviewed before any trial. However, rather than being ten commandments, think of them as ten guidelines. There are times you may vary from them without suffering and there are times you should break a commandment.
Don’t Always Ask Leading Questions: If you ask only leading questions, you may appear to be unfairly restricting the witness; not allowing the witness any latitude. You can loosen the reins if the answer couldn’t make any difference. Under certain circumstances discussed in Cross-Examination Handbook, you can even ask that “Why” question. Also, when the witness is fabricating, sometimes you should let go of the reins altogether and let the witness run. When the witness is lying and the examiner can prove the lie, non-leading questions are appropriate. In the Handbook, we go into how to expose a liar.
If the Situation Calls for It, Quarrel with the Witness: The demeanor of the cross-examiner and how questions are formed should vary depending upon the type of witness. While jurors will tend to be protective of a lay witness, who like the jurors is unaccustomed to a courtroom, they will tolerate and even expect that the lawyer will mix it up with a professional expert witness. The cross-examiner must adjust to the situation.
It Isn’t Always Necessary to Know the Answer Before Asking: Francis Wellman in the Art of Cross-Examination put it better when he wrote, “A lawyer should never ask a witness in cross-examination a question unless in the first place the lawyer knows what the answer would be or in the second place didn’t care.”
What’s That Question?: “Avoid one too many questions,” commands Younger. Would any of us ask one too many questions if we knew which question was one too many? What does this commandment mean?
Younger’s ten points remain presumptive guidelines, and may only be ignored when a good reason exists.
Humor can be the adhesive to make the point stick. And, the point is that the cross-examiner should know the answer before asking the question or not care what the answer is. Otherwise, as the saying goes, the cross may be “more suicidal than homicidal in nature.” The following transcript of a defense attorney cross-examining a police officer in a felony trial humorously makes the idea stick like glue:
Q: Officer, did you see my client fleeing the scene? A: No sir, but I subsequently observed a person matching the description of the offender running several blocks away.
Q: Officer, who provided the description? A: The officer who responded to the scene.
Q: A fellow officer provided the description of this so-called offender. Do you trust your fellow officers? A: Yes sir, with my life.
Q: WITH YOUR LIFE? Let me ask you this officer – do you have a locker room in the police station – a room where you change your clothes in preparation for your daily duties? A: Yes sir, I do.
Q: And do you have a locker in that room? A: Yes sir, I do.
Q: And do you have a lock on your locker? A: Yes sir.
Q: Now why is it, officer. IF YOU TRUST YOUR FELLOW OFFICERS WITH YOUR LIFE, that you find it necessary to lock your locker in a room you share with those officers? A: You see sir, we share the building with a court complex, and sometimes defense attorneys have been known to walk through that room.
Supreme Court Justice Robert H. Jackson was appointed by President Harry Truman to be the Chief Prosecutor of the 24 defendants who had led the German military and Nazi political establishments. Most notable of the defendants was Field Marshall Hermann Goering.
In their article entitled “Guidelines for Cross-Examination: Lessons from the Cross-Examination of Hermann Goering” (Bench & Bar of Minnesota Vol. 59, No. 9 | October 2002), Scott W. Johnson and John H. Hinderaker, two Minneapolis lawyers, describe Jackson’s “fiasco” cross of Goering and outline the tips for today’s cross-examiners, as follows:
Trial commenced on November 20, 1945, with the appointed British judge, Sir Geoffrey Lawrence, wielding the gavel to call the proceedings to order. "This trial," Lawrence observed, "which is now to begin, is unique in the annals of jurisprudence."
The trial in question, conducted under the auspices of the International Military Tribunal that convened in Nuremberg in the fall of 1945 — the Nuremberg trial — was unprecedented in important respects. Both the prosecutors who litigated the charges and the judges who sat in judgment represented the victorious Allied Powers. The tribunal itself was created and operated under terms of an agreement among the Allies: the London Charter of August 8, 1945. That same agreement formed the basis for the indictment, which charged the individual defendants with four counts — waging a war of aggression in violation of treaties and assurances, conspiracy to do so, commission of war crimes, and commission of crimes against humanity, "whether or not in violation of the domestic law of the country where perpetrated." The 24 defendants included the ranking survivors of the German military and Nazi political establishments; Winston Churchill had proposed, not unreasonably, that they be summarily shot.
Although the trial has provided much material for legal analysis, the event that is perhaps most instructive for lawyers today is the cross-examination of Reich Marshal Hermann Goering by former Attorney General and then-Supreme Court Justice Robert H. Jackson. No event at trial was more intensely anticipated than the cross-examination of Goering, and none fell as flat. The contemporaneous accounts, subsequent recollections, and memoirs of trial observers as well as distinguished trial participants such as Jackson's American colleague, then-Colonel Telford Taylor, unanimously judge Jackson's cross-examination of Goering to have been a fiasco. Historical accounts of the Nuremberg trial by Robert Conot, Joseph Persico, and others corroborate this judgment. Jackson's cross-examination of Goering has become notorious for its ineptitude.
Can the cross-examination have been as bad as the literature asserts? If so, what lessons can we derive from Justice Jackson's experience? These are the questions we seek to address.
