Cross-Examination Checklist

A checklist can be a survival guide.  Checklists are critical to pretrial and trial work. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who headed the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 6th Edition and Trial Advocacy 5th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

This post offers you a Cross-Examination Checklist for impeaching a witness on cross-examination . Kindly let me know what you think of the checklist? Would you like more?

Impeachment Cross-Examination Checklist 

Improbability 

Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401, 402. 


Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 


The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 


The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 


The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 


Prior Inconsistent Statements 


Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements. 

    • If the witness admits the prior statement, extrinsic evidence of the statement may be excluded as cumulative under Rule 403. 


     • If the witness does not unequivocally admit the prior statement, extrinsic evidence
of the statement is admissible. 


    • The witness must be given an opportunity to deny or explain the statement. 


    • The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 


 Avoid impeaching with minor inconsistencies, except: 


1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 


2. When necessary to force an evasive witness to yield concessions. 


Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would 
otherwise be inadmissible evidence. 


 

Eight essential techniques for impeachment with a prior inconsistent statement are: 

1. Recognize the inconsistency; 


2. Retrieve the prior statement; 


3. Repeat the testimony; 


4. Reinforce the truthful statement with where said, when said, who heard, what said, and whether said; 5. Reference the prior statement; 


6. Resonate with the jury; 


7. Read or display; and 


8. Refute the witness’s denial. 


Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition.
 Apply the eight essential techniques when impeaching with a deposition.


         With video deposition clips the impeachment has a greater impact on the jury 
than with just the transcript. 


Impeach the witness’s trial testimony by revealing that the witness previously 
failed to act or relate the same information when it would have been human nature to do so. 


Contradiction 




Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 


Having a witness comment on the credibility of another witness—pitting—is improper. 


For more advocacy books go to ronclarkbooks.com

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.

Impeachment Cross-Examination Checklist

We are examining THE FOUR Cs of CROSS-EXAMINATION as follows: 

1st – CONTENT – how to select the content of your cross

2nd – CONSTRUCTIONS – how to construct the cross – form of the questions. Transitions. Sequencing.

3rd – CHARACTER – how to behave during cross so project fairness to the jury

4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

This post continues the discussion of the CONTENT of cross, and this one is dedicated to an impeachment cross-examination. Prior posts (How to Construct a Great Cross-Examination, Cross-Examining Experts: Making Their Expert Yours, and Catching the Truth on Cross-Examination) explain that the primary purpose should be to gather concessions from the witness that bolster your case theory or undermine your opponent’s.

When you brainstorm for the content of your cross, use this CHECKLIST to identify different ways to impeach the witness. For all witnesses—lay and expert witnesses, these are the areas of impeachment:

Critical Cross-Examination Checklists

 

Checklists are critical to a winning cross-examination. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another member of its five-person crew. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test pilots considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for cross-examiners as well. At the end of almost every chapter in Cross-Examination Handbook: Persuasion, Strategies and Techniques 2nd Edition is a checklist of matters that are essential to effective cross-examination. The following is an example of a checklist that follows the chapter in Cross-Examination Handbook that focuses on exposing the false or exaggerated nature of what the witness reports on the stand. 

                                               

Checklist: Impeachment Cross: Report 

Improbability 

    Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401 and 402. 

    Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 

    The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 

    The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 

    The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 

Prior Inconsistent Statements 

Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements. 

• If the witness admits the prior statement, extrinsic evidence of the statement may be excluded as cumulative under Rule 403. 

• If the witness does not unequivocally admit the prior statement, extrinsic evidence of the statement is admissible. 

• The witness must be given an opportunity to deny or explain the statement. 

• The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 

Avoid impeaching with minor inconsistencies, except: 

1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 

2. When necessary to force an evasive witness to yield concessions. 

Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would otherwise be inadmissible evidence. 

Eight essential techniques for impeachment with a prior inconsistent statement are: 

1. Recognize the inconsistency; 

2. Retrieve the prior statement; 

3. Repeat the testimony; 

4. Reinforce the truthful statement with where said, when said, who heard, what said, and whether said; 

5. Reference the prior statement; 

6. Resonate with the jury; 

7. Read or display; and 

8. Refute the witness’s denial. 

    Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition. Apply the eight essential techniques when impeaching with a deposition.

  With video deposition clips the impeachment has a greater impact on the jury than with just the transcript. 

    Impeach the witness’s trial testimony by revealing that the witness previously failed to act or relate the same information when it would have been human nature to do so. 

Contradiction 

Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 

Having a witness comment on the credibility of another witness—pitting—is improper. 

CROSS-EXAMINATION CHECKLIST