What Not to Say in Cross-Examination

 

In this month's issue of the Bar Bulletin there is an article by Dr. Kevin Boully and Thomas M. O'Toole (my co-author on the Jury Selection Handbook) focusing on what not to say in trial. Regarding cross-examination the article discusses the important advice given in the Cross-Examination Handbook about not asking one question too many  and amplifies on why the axiom makes sense:

“The classic advice of not asking one question too many is consistent with the overarching goal of letting your jury reach the conclusion on their own, without you cramming it down their throat. In cross-exam, we still find far too often that trial lawyers want to ask the extra question, or worse, ask about the topic and areas of inquiry that dilute the overall effectiveness of the exam.

“During cross, pick your topics and areas of focus wisely and with discretion. There are few occasions a “scorched earth” approach is warranted and far more times when the most economical and effective approach is to be surgical, targeting those areas where the cross exam can score, simple, direct, useful points. A few criteria to consider for what not to say in cross exams include:

• Does the jury need the answer or its implication to make their decision? If not, you probably don't need it. 

• Does the jury know how the answer fits into your overall trial message? If not, you may not need it, or you may need to make it more clear before the jury can use it.n

• Will the jury receive the answer as consistent with the witnesses message? If the jury feels you want them to trust the witness on some things, but not others, you may need to pick an approach and stick to it. 

• Has the jury heard the same thing from another witness already? If so, you may want to consider whether the answer creates a positive cumulative effect (i.e., carries the power. of multiple voices) or creates unnecessary repetition (i.e., feels redundant). 

“Have the courage to be decisive about what not to say and what to leave out of your case presentation at these key moments. These approaches empower the jury to reach their own conclusion and use their own experiences and perceptions to fill the gaps for you leave for them. These approaches appeal to the egocentrism of processing information through their own lens (which can engage in the gaps you left for them), their penchant for efficient and economical decision making, as well as symbolic processing that is often based on the scenes, moments, and events that you give them the freedom to envision and complete.”

THE BALLAD OF THE BLIND VICTIM

A Poem by George R. (Bob) Dekle, Sr.

The victim came and took the stand
And then he lifted up his hand
And swore the truth he would recount
That he would give a full account
Of all the sins my client sinned
When he pretended to befriend
The victim at a local bar
And then got in the victim's car.
And struck the victim on his head
Then left him in the road for dead,
Relieved him of his worldly goods
And left him lying in the woods.

The prosecutor wiped a tear
And said “Dear victim, have no fear,
But in this courtroom look about.
If you see the robber, point him out.”
The victim looked both left and right
He searched the court with all his might.
He looked the jury up and down,
He scanned the courtroom round and round.
The court reporter felt his view,
He stared hard at His Honor, too.
He scanned my client, looked at me
And said, “I'm sorry I can't see
The man who struck me on my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

The prosecutor did not linger,
But at my client jabbed his finger,
“Look at that man right over there,
Study his face, his eyes, his hair.
That's the man there, isn't he?”
The victim answered “Yes, I see,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

The prosecutor, in frustration
Walked back over to his station,
“Your witness,” then he said to me,
And I could scarce suppress my glee
As on my hind legs I arose
And at the lectern took my pose.
“Dear witness, take a look about,
The entire courtroom please do scout.
Now tell me sir, if tell you can,
Do you see the evil man
Who struck you square upon your head
Then left you in the road for dead,
Relieved you of your worldly goods
And left you lying in the woods?”

“No, sir,” the victim said to me,
“That evil villain I can't see.”
His answer was like purest gold.
Its glitter made me very bold.
“Now look my client in the eye,
And tell me sir—and do not lie—if he's
the villain that we seek.
We want an answer, truly speak!”
The silence thundered all around
The victim did not make a sound.
Then slowly he looked up at me
And admitted, “Yes, I see,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

His words were good as finest wine,
They were so pleasing and sublime.
“Sir, do you think a closer view
Would be of any help to you?”
The victim mopped his sweaty brow
And said “I really don't see how.”
I had the victim on the ropes!
I dare not dash my client's hopes!
I must drive home the point again,
So I intoned, as if in pain,
“Please step down from the witness stand
So you can view at closer hand
And tell us true for once and all
If he's the man, sir, what's your call?”
The victim looked as if in pain
And said “I'll try it once again,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

'Twas then my heart began to race,
I said “Sir, get down in his face!
My client's fate hangs on the brink!
Tell us sir, what do you think?
Is he the man who held you up?”
The victim was a beaten pup.
But he did just as he was told.
And he walked weary, weak, and old
To stare my client face to face
And on his knees his hands did place.
His task was simple, all that he
Had to do was look and see
If my client struck his head
Then left him in the road for dead,
Relieved him of his worldly goods
And left him lying in the woods.

His eyes were squinted fast and hard
And then he said that fateful word
“Have ever I seen you before?”
And then the victim spoke no more.
My client looked him in the face
And once again my head did race.
(The Fifth Amendment guarantees
A right to silence if you please.
But some forget that precious right
And thereby add unto their plight).
My client said, in a dull roar,
“Yes, you've seen me once before.”
The victim nodded, satisfied
“This is the man I gave a ride,
The man who struck me on my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods!”

The experience a lawyer earns
And the lessons that he learns
Are sometimes bought at client's cost
And counted up in trials lost.
Sometimes your zeal needs mighty curbs,
And that's why lawyers have proverbs:
“On cross-exam, be circumspect,
Many a good cross is wrecked
By lawyers going overboard
After a good point is scored.
When once a fatal blow you score,
Ask not a single question more!”

FOOTNOTE: Despite this, Bob was able to get an acquittal.