Wrecking Crew Cross-Examination: Lincoln’s Most Famous Case

 

It’s all about the cross-examination wrecking crew. A prior post (Cross-Examination Wrecking Crew: Lack of Personal Knowledge) provided the My Cousin Vinny  demonstration of an impeachment by showing the witness lacked personal knowledge. Now this is another example of  that type of impeachment, and it took place in Abraham Lincoln’s most famous case. Bob Dekle, co-author of the best book on cross-examination—Cross-Examination  Handbook: Persuasion, Strategies and Techniques, wrote Abraham Lincoln’s Most Famous Case: The Almanac Trial. William Armstrong was charged with murder for having shot James Metzker on August 29, 1857. Lincoln represented Armstrong, and he cross-examined a witness named Charles Allen who testified on direct to having seen Armstrong shoot Metzker.

Director John Ford made a movie about this trial. 

 

Click here to Watch Lincoln in this movie clip cross-examine Allen in an effort to show Allen lacked personal knowledge of the shooting and thus his testimony was unreliable. Also, as you watch, think about the seven techniques that can be used in a cross-examination designed to impeach a witness:

1. Assess the witness and adjust your approach;

2. Lock the witness into the testimony before you impeach;

3. Close all the exits to prevent the witness from escaping;

4. Establish a motive for the witness to prevaricate;

5. Paint a picture for the jury;

6. Surprise the witness; and

7. Use visuals or tangible evidence if possible.

In particular, watch to see how Lincoln decides the witness is lying and adjusts the cross to fit the witness, locks the witness into his testimony, cuts off exits through which the witness might try to escape impeachment, surprises the witness with the Almanac, and uses a visual—the Almanac.

Ford took some liberties with what happened. However, the judge who presided over the trial later wrote this about the climax of the case: 

“The interest was now so intense that men leaned forward to catch the smallest syllable. Then the lawyer drew out a blue covered Almanac from his side pocket—opened it slowly—offered it into evidence—showed it ot the jury and the court—read from the page with careful deliberation that the moon on that night was unseen and only a rose at one in the morning.

“Following this climax Mr. Lincoln moved the arrest of the perjured witness as the real murderer, saying: ‘Nothing but a motive to clear himself would have induced him to swear away so falsely the life of one who never did him harm!’ With such determined emphasis did Lincoln present his showing that the court ordered Allen arrested in under the strain of excitement he broke down and confessed to being the one who fired the fatal shot himself, but denied it was intentional.”

Cross-Examination Wrecking Crew: Lack of Personal Knowledge

When the CONTENT of your cross-examination is the IMPEACHMENT of the witness rather than gathering concessions, the techniques you use to accomplish the impeachment are critical. 

This and following posts will offer great cross-examination demolitions—a veritable wrecking crew of impeachments. This is a list of the impeachment wrecking crew:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

These are seven techniques for an effective impeachment of a witness with the wrecking crew: 

1. Assess the witness and adjust your approach;

2. Lock the witness into the testimony before you impeach;

3. Close all the exits to prevent the witness from escaping;

4. Establish a motive for the witness to prevaricate;

5. Paint a picture for the jury;

6. Surprise the witness; and

7. Use visuals or tangible evidence if possible.

For each wrecking-crew impeachment, you can observe how these techniques were applied

Let’s begin with Unreliability of the Observation. Here, the cross-examination is designed to show the witness LACKED PERSONAL KNOWLEDGE. For most of these demolitions, there is a corresponding rule of evidence. Here the rule is Rule 602, which reads in part:    “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. . .” Naturally, My Cousin Vinny provides a nice illustration of this demolition. 

Let’s watch.

Look back at the list of seven techniques for impeachment. Vinny assessed the witness, determined the witness was honest but mistaken and adjusted his approach to the witness. Vinny painted a picture of how the witness’s vision was obscured. And Vinny used photographs to impeach. 

Cross-Examination: Impeachment Techniques

As was discussed in previous posts ("How to Construct a Great Cross-Examination" and "Impeachment Cross-Examination Checklist), when the CONTENT of your cross-examination is designed to IMPEACH the witness (rather than gathering concessions), the techniques you use to accomplish the impeachment are critical. These are the seven techniques for an effective impeachment cross-examination of a witness: 

1. Assess the witness and adjust your approach;

2. Lock the witness into the testimony before you impeach;

3. Close all the exits to prevent the witness from escaping;

4. Establish a motive for the witness to prevaricate;

5. Paint a picture for the jury;

6. Surprise the witness; and

7. Use visuals or tangible evidence if possible.

At the top of the list is the technique of assessing the witness and adjusting your approach to fit that witness. David Paul Jones, a British barrister is quoted in  Francis L. Wellman’s book The Art of Cross-Examination, 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 dignity.” 

Watch the following cross-examination in A Few Good Men with the seven techniques in mind. Following the movie clip is the list of seven techniques with notes from the cross in the movie. 

Here is a portion of the seven techniques list with notes about how they were applied in the cross shown in the video:

1. Assess the witness and adjust your approach – the cross-examiner shifts to being rough with the witness when the witness becomes a ruffian;

2. Lock the witness into the testimony before you impeach—the cross-examiner locks the witness in and is able to preface a question with “a moment ago you said” to telegraph that the witness is locked in;

3. Close all the exits to prevent the witness from escaping—the cross-examiner closed this exit with “any chance he ignored the order”;

4. Establish a motive for the witness to prevaricate—here the obvious motive was to conceal the fact that he ordered the code red; and

5. Paint a picture for the jury—brush stroke by brush  stroke of what happened; and

6. Surprise the witness—with the fact that he was prepared to call witnesses to contradict the witness under cross-examination. 

Future posts will cover the wrecking crew of impeachment cross-examinations and show how these techniques can be applied.

You can read about impeachment cross-examination in Cross-Examination Handbook.