Controlling the Witness during Cross-Examination

This is another in the series of articles here focusing on the methodology that is key to an effective cross-examination. The methodology has four components: 

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

Here we examine the fourth—CONTROL of the witness.

The late great Irving Younger gave us the 10 COMMANDMENTS OF CROSS

1. Be brief

2. Short questions

3. Leading

4. Know answer

5. Listen answer

6. No quarrelling

7. No explanation

8. Don’t repeat direct

9. Avoid too many questions

10. Persuade during closing not cross  

Follow these or suffer the consequences. Follow these commandments and you control the witness. Watch Professor Younger lecture on the Ten Commandments.

 

REVISITING IRVING YOUNGER’S TEN COMMANDMENTS OF CROSS-EXAMINATION

Or Better Yet – Ten Cross-Examination Guidelines

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. We cover these commandments in Cross-ExaminationHandbook.

Professor Younger 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.

Watch Professor Younger on Youtube.

CROSS-EXAMINATION: LESSONS OF A LIFETIME

Trial lawyer Henry G. Miller promulgated rules that should govern cross-examinations based on his lifetime in court. Miller’s four  rules come with some notable exceptions. The following is what Mr. Miller says about these rules and the exceptions to them in his book On Trial: Lessons from a lifetime in the courtroom, ALM Publishing, New York 2001, pages 58-59:

“FOUR RULES (with a “But”)

“1.       Don’t Repeat Direct. This is the most common mistake of the apprentice. The direct covers ABC. The cross covers ABC. All that does is reinforce the direct. Rather, on cross we should go for what wasn’t covered on direct. Sometimes they don’t cover what they’re afraid of.

“On direct, they never asked their own janitor about prior complaints. Go for it. Of course, we must be wary of traps. I said, ‘Don’t repeat the direct.’ But, there’s an exception: make a witness repeat a pat rehearsed statement to establish its falsity.

“For example, when the defendant’s construction foreman who has an eighth-grade education says, ‘We had a perfect safety record neither blemished nor tarnished by prior incident and therefore we were never on notice of a dangerous condition,’ please have him repeat that.

“2.       Don’t Be Long.  Everybody knows the first rule of cross is to sit down. ‘No questions’ can be very effective. Don’t ask more questions than you must.

“But we all know of witnesses who enthrall jurors at first. It takes time to discover their true nature. Mr. Pharmacist was upright, splendid and impeccable for the first two days of cross. After a lengthy and sustained review of all his records by the plodding cross-examiner, Mr. Pharmacist finally admitted he changed the records of the prescription prior to the lawsuit.

“Occasionally, it takes time to capture the quarry.

“3.       Don’t Ask Why. That’s elementary. That’s like asking an enemy expert for his reasons.

“But sometimes when the witness is cornered there is no better question. First, we must make sure all escape routes are tightly closed. ‘Why didn’t you come to the emergency room when called?’ It was know that the doctor wasn’t operating and that he wasn’t busy, but is was also known that he wasn’t there because he had a personality conflict with nurse in the E.R. Why, indeed, didn’t he come?

“’Why’ can be a great weapon, but perhaps it’s best left to the more experienced hunter.

“4.       Don’t Be Nasty. A soft word turneth away wrath. A smile can disarm the most hostile witness. Be courteous and fair to all witnesses and by your decency carry the jury with you. I believe these sentiments and try to practice them.

“But I must admit that some bristling nasty cross-examiners are stupendously successful. They know when to pounce and when not. These Tartars thrive on nastiness. Some would say they couldn’t be anything but trial lawyers. And, jurors, perhaps bored with their own lives, love it. MORAL: No rule is absolute.

“The judge calls again, ‘Mr. Shakey, are you ready to cross-examine?

“Shakey rises and with cool distain stares at the witness. ‘Mr. Exaggerator, do you mean to tell me that. . .?”          

This and other rules for cross-examination can be found here.

TEN COMMANDMENTS OF CROSS-EXAMINATION REVISITED

The late, great Professor Irving Younger 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 and it’s time to revisit them:

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-ExaminationHandbook, 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.

Should you want to watch and listen to Professor Younger lecture on the Ten Commandments, watch him here.

LINCOLN AND CONCESSION-SEEKING CROSS-EXAMINATION

Lincoln & McClellan October 3, 1862 Antietam

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.]

Yours truly

A. LINCOLN [5 Complete Works of Abraham Lincoln, pp. 118-119]

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.