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.

3rd ROOKIE MISTAKE OF CROSS-EXAMINATION: REPEATING THE DIRECT

Irving Younger’s 7th Commandment

It is probably the most common rookie mistake - the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .”

The error is grievous. It violates Irving Younger’s 7th commandment: “Don't allow the witness to repeat his direct testimony.” Younger’s commandment directs the cross-examiner to focus on accomplishing the goals of cross-examination which are to gain concessions that either bolster the cross-examiner’s case theory or undermine the opposing party’s case theory. If the cross-examiner instead allows or causes the witness to repeat the direct examination which contains things favorable to the opposing party, the examiner is defeating the purposes of cross. Worse than that, the examiner is repeating the information which the jury has already heard and that repetition will make it stick in the jurors’ minds.

The Cause

Why would a cross-examiner ever have the witness repeat their direct examination? Why is it such a common mistake? The usual cause is poor preparation. Rather than having a well planned cross-examination, the cross-examiner mistakenly believes that it is possible to conduct a successful unscripted cross. Counsel has been taking notes during the direct examination and works off them to conduct the cross-examination. Consequently, the examiner is reacting to what the witness testified to on direct, and thus repeats the direct examination. And, the examiner often does so in the order in which opposing counsel questioned the witness.

The Cure

The cure that will prevent the cross-examiner from repeating the direct is to remember the core idea of cross-examination: Cross-examination is the cross-examiner’s opportunity to testify. Rarely if ever should cross-examination be done on the fly. It must be scripted to be effective. The examiner should know what the witness will testify to and that the examination will produce the desired responses.

The Two Exceptions

There are two exceptions to the rule that the cross should never repeat the direct. First, in those situations where the witness on direct testifies to information damaging to the other side’s case (such as when the other side it trying to pull the sting that is anticipated to be brought out on cross) or helpful to the cross-examiner’s case, then naturally it may be covered on cross. Second, in the odd case where the witness has been coached and memorized their testimony, the cross-examiner may want the witness to repeat direct. An example happened during the famous Triangle Shirtwaist Factory Fire trial when defense counsel’s cross revealed that a witness had been coached to give a memorized story by having the witness repeatedly tell her story in identical words during cross.

TRIANGLE FIRE VERDICT’S 100 YEAR ANNIVERSARY

Acquittal of Owners on December 27, 1911

A hundred years ago today after four ballots, the jury acquitted Max Blanck and Isaac Harris, owners of the Triangle Waist Company, of manslaughter. To convict the owners of manslaughter the jury would have had to find that the owners knew the door to the ninth-floor door was locked at the time of the fire at their garment factory in Lower Manhattan. As consequence of the door being locked, the women garment workers were unable to escape the fire.

146 garment workers died, either from the fire itself or in jumping from the windows. The funeral procession was attended by 350,000 and was described as one of the “most impressive spectacles of sorrow New York has ever known.”

The last page of this month’s ABA Journal commemorates the acquittal and notes, “(t)he trial was partly shaped by famed defense attorney Max Steuer, who shifted the blame to the victims, arguing that their panicked attempts to flee had sealed their fate.” The Journal does not mention Steuer’s skillful cross-examination of the prosecution’s witness, which is covered in Cross-Examination Handbook.

The public was outraged by the Triangle fire catastrophe. The disaster caused the labor movement to grow and led to work place safety standards, the minimum wage and the New Deal. Thirty six statutes were passed setting factory safety standards.

100 YEAR ANNIVERSARY OF THE TRIANGLE SHIRTWAIST FACTORY FIRE

The Tragic Disaster, the Labor Advancements and a Cross-Examination

Tomorrow, Friday March 25, 2011 marks the 100th anniversary of the worst disaster in New York before 9/11. On March 21, 1911, in Manhattan a fire broke out on the eighth floor of the Triangle Waist Company, New York’s largest blouse factory. 146 garment workers died, either in the fire itself or in jumping from the windows.

The public was outraged. The disaster caused the labor movement to grow and led to work place safety standards, the minimum wage and the New Deal. Thirty six statutes were passed setting factory safety standards.

New York Times have covered the anniversary and HBO is showing a short documentary on the disaster. Also, at the end of this page is a video of former New York Senator and President of the Triangle Fire Memorial Association President Serphim Maltese discussing the fire and its aftermath.

The Triangle fire catastrophe is remembered for these reasons, but it is also remembered for the criminal trial that followed and for one remarkable cross-examination.

The District Attorney filed manslaughter charges against the owners, who escaped from the roof. The allegation was that there was a practice of locking the exit doors to prevent unauthorized breaks by the factory workers and that the workers were unable to escape. The owners hired the best defense lawyer money could buy to represent them – Max D. Steuer. In Triangle: The Fire that Changed America, David Von Drehle, pp. 222-23 (Grove Press 2003) describes just how effective a move this was:

"his reputation (was) such that a man would pay an enormous retainer simply to ensure that … Steuer would not help his heirs challenge his will…(one) jurist…(called him) the “greatest trial lawyer of our time.”

The account of Steuer’s cross-examination prowess and the techniques that he used are explored in Cross-Examination Handbook. The owners were acquitted by the all male jury in less than two hours. The acquittal was attributed mostly to Steuer's cross-examination of the prosecution's last witness - a factory worker, whom Steuer got to repeat her story like a memorized script. In 1913, a civil suit resulted in $75 compensation for each deceased victim.