FAMOUS (AND INFAMOUS) CROSS-EXAMINATIONS

Pace Law School Library has a gem of a webpage that is dedicated to famous and infamous cross-examinations (as well as direct examinations), which can be found by clicking here. Some of the cross-examinations have been featured on this blog, including Abraham Lincoln’s cross-examination of Charles Allen in the Almanac trial and Max Steuer’s cross-examination of a witness that revealed that the witness had been coached into a memorized story. These cross-examinations are also discussed in more detail in Cross-Examination Handbook: Persuasion, Strategies and Techniques.

An example of what the Pace Law School webpage has to offer is the British commentary of Solicitor Anthony Wooding (hence defence rather than defense and criticised vs. criticized) along with the transcript of the cross-examination of an expert witness in the 1930 trial of Arthur Rouse by Queen’s Counsel Sir Norman Birkett. This is the commentary and transcript of the cross:

“The following is an extract from a famous cross examination of an expert witness engineer by Sir Norman Birkett QC of Alfred Arthur Rouse who was tried for murder in 1930. Sir Norman Birkett was prosecutor and at the height of his powers. Alfred Rouse was accused of murdering a passenger in a car by setting light to it. The defence was that it was an accident. Defence counsel called an expert witness who claimed 'a very vast experience as regards fires in motor cars' and who asserted that the fire was caused by the junction in the fuel line becoming loose. The witness gave his evidence with great confidence. Sir Norman Birkett then began his cross examination......”

A (Birkett): What is the coefficient of the expansion of brass?

S (The Expert): I beg your pardon?

A: Did you not catch the question?

S: I did not quite hear you

A: What is the coefficient of expansion of brass?

S: I am afraid I cannot answer that question off-hand

A: If you do not know, say so. What is the co-efficient of expansion of brass? What do I mean by the term?

S: You want to know what is the expansion of the metal under heat?

A: I asked you: what is the co-efficient of the expansion of brass? Do you know what it means?

S: Put it that way, probably I do not

A: You are an engineer?

S: I dare say I am

A: Let me understand what you are. You are a doctor?

S: No

A: You are a crime investigator?

S: No

A: You are an amateur detective?

S: No

A: But an engineer?

S: Yes

A; What is the coefficient of the expansion of brass? You do not know?

S: No, not put that way

“This is a very powerful cross-examination technique. Although it has some flaws and is somewhat outmoded (see below) it still held as a classic teaching tool in law schools. The point is of course that it would have been difficult to challenge the witness directly on his conclusions without being something on an expert on car fires too, which Sir Norman was not. So Sir Norman goes instead for the jugular: the expert status itself. He also tightly controls the questioning, emphasizes it and directs it in such a way that the witness has nowhere to go.

“The cross-examination consists of a series of tightly paced 'closed' questions.

Today the repetition of the same point to give maximum drive to the same answer might be criticised as too crude (even as a 'jury technique'). The judge might well say 'Sir Norman, the witness has answered. let's move on'. Also there was of course a slight risk - a risk which Sir Norman probably considered but calculated as negligible having heard perhaps the too self-assured evidence in chief of the witness - that the expert did actually know the coefficient of expansion of brass, which would have destroyed the point. Maybe he had an immediate supplementary question should this have been the case.

“I did once see (in the Technology Court in Birmingham) an expert witness being comprehensively demolished on his expert credentials. Unfortunately for me, he was our witness. It was done very neatly but in a more subtle way. The other side had done their homework and found out that our expert chemist (the case was about the efficacy of a glue which had alleged failed causing gaps to appear in glazing: the glazing company was my client, the Defendant was the glue manufacturer) had previously published research and conclusions which were different from the ones he was now presented. A tough, truly confident and perhaps better prepared (rehearsed?) witness might have been able to stick to his guns and say, yes but I later saw that this research was wrong for xyz reasons and I reached opposite conclusions. But I think they calculated on the other side that he would be too taken aback by being reminded of his previous different conclusions that he would stumble. And he did. The other side's counsel I noted was made a QC soon afterwards.

“Whatever the pros and cons and indeed theatre of these cross-examination techniques one must not lose sight of the fact that their success or failure can have life or death consequences for a case. That was literally the case for poor Alfred Rouse. The defence expert witness was discredited. Alfred Rouse was found guilty of murder. His appeal failed and he was hanged at Bedford prison on 10th March 1931.”

This sample from the Pace Law School webpage is both enjoyable and educational. The lessons are timeless:

            Don’t do battle on the expert’s turf; rather, go after the expert’s qualifications, basis for opinions and so on. Don’t ask open-ended  questions; rather ask short, closed-ended questions.

CROSS-EXAMINATION TO PRIOR PROBABILITIES

Prior Probability is a term associated with a complex mathematical formula devised by the eighteenth century mathematician Thomas Bayes. You most likely will have to look long and hard to find a simple, everyday-English definition of the term.  I did a quick search of all the usual suspects on the internet (Wikipedia, etc.), and the most lucid definition I could find came from Dictionary.com: 

“The probability assigned to a parameter or to an event in advance of any empirical evidence, often subjectively or on the assumption of the principle of indifference.” Here is my homespun definition:  Prior Probability is a common-sense estimate of the      probability of an event made at the outset of an investigation.

For example, the recent book Abraham Lincoln’s Most Famous Case, investigates three accounts of Abraham Lincoln’s Almanac Trial. The most popular story has Lincoln winning the case with a brilliant cross-examination, another says he won it with a brilliant final argument, and the final version says he won it with unethical trickery. Before conducting any investigation to determine the truth of the matter, which version seems most likely based on what we already know about Honest Abe, the author of the Gettysburg Address? That’s the prior probability. At the end of our investigation, we arrive at the posterior probability—what most likely happened? Lincoln’s Most Famous Case investigates these three versions of the story, and renders a verdict on which story has the most posterior probability.

This is a rather lengthy leadup to advancing the proposition that prior probabilities can help us to craft an effective cross-examination. Although it does not use the term, the 1929 book Cross-Examination of Witnesses (by Asher L. Cornelius) describes a method of using prior probabilities in case analysis.

1.      Write a narrative of the case stating the undisputed evidence and the contentions of the parties in the most neutral, nonjudgmental language possible.

2.      Identify the point(s) of contention.

3.      As to each of the points of contention, make a common sense determination which side of the argument seems more likely (has the greatest prior probability). Write down these prior probabilities and the facts which support them.

4.      Draft a cross-examination aimed at emphasizing the prior probabilities and the undisputed facts supportive of the prior probabilities.

Here is one of the examples used in the book:

EXAMPLE CASE ANALYSIS FROM CROSS-EXAMINATION OF WITNESSES

Anderson purchased an apartment house from an owner Baker for $65,000 and paid $15,000 down, leaving a balance of $50,000 to be paid on the contract at the rate of $600 per month. Anderson claimed that the owner Baker, from whom he purchased the property, misrepresented the facts in this transaction, in, the following particulars:

(a) That the rentals from this property of $700.00 per month had been reduced so that they were at absolute bed-rock at the time the transaction was closed and that all of the tenants were prompt' in paying same, and that an expenditure of only about $300 per annum was required for heat.

(b) That the owner represented that all of the apartments were in good repair as to decorations; that the building would easily carry the contract and pay for itself out of the rentals.

Anderson purchased the property, entered into possession and discovered the following facts: ,

1. That it cost him $250 per month for heat;

2. That the tenants were not prompt in paying rent;

3. That heating plant required $500 repairs;

4. That the property lacked approximately $300 per month of paying for itself from the rentals.

Anderson brought suit for rescissions against Baker. The defendant in his answers denied that he made any such representations as above set out. -,

What, now, are the probabilities in this case? The lawyer for the plaintiff, in planning his cross-examination of the defendant and his witnesses should reach the following conclusions respecting the same:

STATEMENT OF PROBABILITIES

(1) Anderson as a purchaser would be vitally interested in knowing what income the apartment produced. Baker, the owner, had that information. Anderson did not. The probabilities, therefore, strongly support the contention of Anderson that he asked for this information. If Baker had given him the actual facts he would have refused to purchase the property. So, here again, the probabilities support Anderson’s claim that Baker misrepresented the income.

(2) Since heating costs of large apartment buildings vary widely, depending upon the efficiency of the heating plant as well as upon the construction of the building, the probabilities are strongly with Anderson when he stated that he asked Baker what the cost would be and Baker told him. If Baker made any representations at all about the heating costs of the apartment, it would have to be a representation consistent with the purchase of the building by Anderson. Had Baker told the real facts, Anderson would not have purchased.

(3) As to the condition of the interior decorations, the individual apartments being all rented, Anderson did not have access to them and he was compelled to depend on Baker for information. Here again a true disclosure would, in all probability, have blocked the deal.

(4) Since the tenants in the building were none of them prompt in paying their rent, and since Anderson naturally would be interested in making inquiries as to their character, the probabilities are that Anderson did inquire and that Baker concealed and misrepresented the real facts.

Since one of the important objectives in cross-examination is to show that the witness is not testifying truthfully, one forceful method of doing this is to show the improbability of his story by emphasizing facts before the jury which render such story improbable. Counsel, therefore, cross-examined the defendant in, this case as follows:

Q. You, as the owner and operator of this property, knew the annual cost to heat this building?

A. Yes, sir.

Q. The heating costs of apartment buildings vary widely do they not, depending upon the condition and efficiency of the heating plant and the construction of the building?

A. Yes, sir.

Q. You had exact information as to what it cost to heat this building?

A. Yes, sir.

'Q. Mr. Anderson, your prospective purchaser, had no information as to what these costs were 1

A. No, sir.

Q. And he, as a prospective purchaser of this building, would naturally be very much interested in knowing what these heating costs were.

A. Yes, sir.

Q. You were ready to answer his questions in this regard?

A. Yes.

Q. And yet he asked you nothing about this important subject?

A. No, sir.

The process described in Cross-Examination of Witnesses is a slightly different method of conceptualizing the analytical process we describe in Chapter 3 of Cross-Examination Handbook, but it uses a similar procedure and arrives at much the same place you would arrive at using our method. Cross-Examination of Witnesses describes a workable analytical mode, and If you feel more comfortable using its analytical framework than ours, by all means do so. Although there is more than one way to skin a cat, the cat ends up flayed no matter how you do it. What Cross-Examination of Witnesses says nothing about, however, is how to go about actually drafting, constructing, and arranging the cross-examination. Chapter 4 of Cross-Examination Handbook fills this void.