SUICIDAL REDIRECT EXAMINATION

There’s an old saying that cross-examination is more often suicidal than homicidal. The saying refers to the fact that many lawyers do irreparable harm to their cases by conducting an inept cross-examination. Sometimes the witness will commit suicide by blurting out things far better left unblurted. When this happens, the cross-examiner should abandon the role of assassin and gently assist the suicide.

 Years ago a gentleman whom we shall call Randall Porter stood trial on a charge of Second Degree Murder. Porter had shot his friend in a drunken brawl in the front yard of Porter's house. The defense was (I'm not kidding) that the Defendant accidentally shot his friend in self-defense. The evidence was uncontroverted that the two argued in the defendant's front yard, the victim struck the defendant knocking him down, the defendant went inside and got his shotgun, walked out on the porch, and shot the victim. He claimed to have stumbled and accidentally discharged the shotgun as the defendant attacked him. The cross-examination went like this:

Q: And then you shot him?

A: I was shooting towards the trees, yes, sir. I did not pull the gun out to shoot him.

Q: You pulled the trigger, didn't you?

A: Yes, sir, I did.

Q: As a matter of fact, you had to cock the hammer back before you could pull the trigger?

A: Yes, sir.

Q: You went and loaded your gun?

A: Yes, sir.

Q: Broke the breach on it?

A: Yes, sir.

Q: And stuck a shotgun shell in it?

A: Yes, sir.

Q: You walked out on that porch?

A: Yes, sir.

Q: You raised the gun to your shoulder, didn't you?

A: I believe so. I don't remember if I had it actually up to my shoulder or down to my side.

Q: You cocked the hammer back, didn't you?

A: Yes, sir.

Q: And you pulled the trigger, didn't you?

A: Yes, sir.

Q: And you killed your good friend, Howard Gaines?

A: Yes, sir.

After he had been in prison a few years, Porter filed a post-conviction motion attacking the competency of his lawyer. It seems that he felt his lawyer had committed malpractice by putting him on the stand and exposing him to cross-examination. That contention failed, and he served out the remainder of his sentence. He may have had a point if he had complained about the redirect examination conducted by his lawyer. The defense attorney was leading his client by the nose, but the prosecutor was enjoying it too much to object. Here's how the redirect went:

Q: And after you got up off the ground and went in the house, you had to go back into the bedroom. Correct?

A: Yes, sir.

Q: Take the gun down?

A: Yes, sir.

Q: Where were the shells?

A: It's on the same gun rack.

Q: You have to go into the box?

A: Yes, sir.

Q: Take a shell out?

A: Yes, sir.

Q: Put it in the gun?

A: Yes, sir.

Q: Reclose the gun?

A: Yes, sir.

Q: Go back down the hall?

A: Yes, sir.

Experienced attorneys will tell you that your cross-examination should never become a "supplemental direct examination," wherein you re-emphasize the other side's telling points. The advice also works for redirect. You do not want to turn it into a supplemental cross-examination. If a cross-examination has killed you, for heaven's sake, don't relive it on redirect.

REDIRECT EXAMINATION

One of the ironies of being a public defender is that the public defender is often the last person to stand trial in a serious case. The process of putting the public defender on trial goes something like this: Stage 1: The defendant stands trial and gets convicted. Stage 2: The defendant receives a whopping sentence. Stage 3: The defendant’s conviction gets affirmed on appeal. Stage 4: The defendant files a post-conviction motion claiming ineffective assistance of counsel. Stage 5: The prosecutor takes on the role of defense counsel for, you guessed it, the public defender. [Memo to public defenders: Be kind to prosecutors—one may someday serve as your defense attorney].

Another irony of this process is that the attorney complaining about the “deficient” performance of public defender often has far less talent that the lawyer whose ability is being criticized. It was just such a situation which gave rise to a rather amusing incident during the evidentiary hearing on a post-conviction motion attacking the competency of a highly skilled assistant public defender. The defense attorney had conducted a rather spotty direct examination and tendered the witness for cross-examination without bringing out the most important aspect of the witness’s potential testimony. The exchange went something like this:

BY DEFENSE COUNSEL: No further questions, your honor.
BY THE COURT: Your witness, Mr. Prosecutor.
BY THE PROSECUTOR: No questions.
BY THE COURT: May the witness be excused?
BY DEFENSE COUNSEL: No, sir. I have a few more questions.
Q. Now, Mr. Tattler, going back to the incident in question, did you have occasion to tell the defense attorney about the exculpatory facts you described on direct examination?
BY THE PROSECUTOR: Objection, your honor, beyond the scope of the cross-examination.
BY THE COURT: There was no cross-examination.
BY THE PROSECUTOR: That’s exactly why the question is beyond the scope of the cross examination.
After a moment’s reflection, the judge got the point of the joke. He smiled and said:
BY THE COURT: Sustained.

The prosecutor, feeling quite smug, leaned back in his chair and waited to see if defense counsel could find the way to extricate himself from the procedural booby trap into which he had blundered. A long silence ensued as defense counsel analyzed his problem. Then he saw the way.

BY DEFENSE COUNSEL: No further questions of Timothy Tattler at this time, your honor.
BY THE COURT: You may step down, Mr. Tattler. Call your next witness.
BY DEFENSE COUNSEL: At this time, your honor, the defense calls Timothy Tattler.
The witness, who had not quite made it to the door of the court room, turned back around and resumed the witness stand.
Q. You are Timothy Tattler, the witness who just testified in this cause?
A. Yes, sir.
Q. Now, Mr. Tattler, going back to the incident in question, did you have occasion to tell the defense attorney about the exculpatory facts you described during your previous testimony?

The hearing then continued without incident. It was a rather petty joke, but the prosecutor took great pleasure in it. He could vividly remember the day when, as a rookie advocate, he had been the victim of that same joke played by a seasoned attorney. Perhaps someday this defense attorney would have the opportunity to play the joke on another young lawyer.

NOTE: The prosecutor successfully defended the honor of the maligned assistant public defender.