Part 3: STRATEGIES & SKILLS FOR EXTRACTING THE TRUTH ON CROSS-EXAMINATION

 

In case you haven't read Part 1, just click here.   

In case you haven't read Part 2, just click here.

BOOK: The Pizza Connection: Lawyers, Money, Drugs, Mafia 

As has been previously stated here and in Cross-Examination Handbook, the primary goal of cross-examination is to capture the truth from the witness. On cross, you shouldn’t be trying to discover anything; you shouldn’t ask any interrogatory questions. You know the truths that the witness has to offer, and you aim to extract those known truths. If the witness fails to provide the truths that you can prove by direct or circumstantial evidence or by common sense, the witness will suffer the consequences.

The Pizza Connection case provides a stark example of how a witness’s testimony can be exposed as comical if the witness refuses to provide the truthful answers. The Pizza Connection case was a mega-trial involving 18 defendants who were charged with a $1.6 billion heroin smuggling and money laundering that stretched from Brazil to small pizzerias in the the Midwest. Trial lasted from October 24, 1985 to March 2, 1987.

The following is an excerpt from Shanna Alexander’s book The Pizza Connection: Lawyers, Money, Drugs, Mafia 318-320 (Weidenfeld & Nicholson) (1988) in which she describes United States Attorney Robert Stewart’s cross-examination of an alibi witness and it’s a gem of a cross: 

(Defense counsel) Larry Bronson’s defense of (defendant) Sal Greco is focused on his client’s need to prove that he was not in a Bagheria farmhouse in early March 1980 watching a heroin quality-control test. Bronson will show he [Greco] was quietly, busily at home in New Jersey. He calls Greco’s good friend and tax accountant, Justin Pisano, a man who keeps detailed date books. 

Under patient examination by Bronson, the witness goes through a precise account of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts and to visit nearby pizzerias with his client in order to compare their business with that of the Greco pizzeria in Neptune City. 

Stewart’s cross-examination of Pisano becomes this prosecutor’s finest hour. He concentrates on the March date-book entries. 

“On March 2, yes, I drove down to see Greco,” Pisano says, “and we had a leisurely dinner.” 

“You told us yesterday you were in no rush, right?”
“Yes.”
“And that’s the truth, the whole truth, and nothing but the truth?” 

‘Yes.”
“Then what is this appointment for 7:00 p.m., with Troviatta?”
“Just a tax appointment. Early March is income tax time, and I made many Sunday and night appointments to service all my tax clients.”
“What is Troviatta’s first name? Where does he live?”
“I don’t remember. I don’t even think I do their taxes anymore.”
Stewart remembers. He says Pisano was thirty-five miles away from Greco’s pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera.
Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.
“Are you an opera fan?”
“Nope. Only been to one opera in my life, when I was in high school.”
Stewart shows the witness, and the jury, the Sunday-evening newspaper opera listing for March 2, 1980, at the New York State Theater at Lincoln Center: La Traviata. Bronson objects. “Misleading the witness, your Honor. His witness’s tax client is named Troviatta—with two t’s.”
“And the advertisement for the opera is spelled T-R-A-V-I-A-T-A, right?”Stewart asks. “No. It’s La Traviata,” says Pisano gamely.
“La Traviata?”
“Right. I don’t see the comparison to Troviatta.”
“Except for the time. That’s a coincidence. Isn’t it?”
Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, 

March 16, at one in the afternoon.
“Are you referring to Carmen? Carmen Sangari, who I no longer do?”
“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listing for that Sunday afternoon. Pisano looks, and agrees that this is truly an amazing coincidence. 

Spectators have begun to giggle. But Stewart is not finished. He directs the wit- ness’s attention to his diary entry for the following Sunday at 7:00 p.m. “Is that a tax client of yours?” 

The giggling turns to guffaws. The notebook says, “Barber of Seville.” 

This cross illustrates that no matter which way the witness responds, the cross-examiner wins when the question require that the witness concede the truth or suffer the consequences.

Another striking example of how to catch the truth on cross-examination occurred during the manslaughter trial of Conrad Murray who was Michael Jackson’s doctor. That cross illustrates the axiom that a cross-examiner must know the answer before asking the question on cross. The answer sought is the truth that either supports the examiner’s case theory or undermines the other side’s case theory. The proposition holds true for lay witnesses and, as the following example shows, for expert witnesses as well.

Conrad Murray, Michael Jackson’s doctor, was prosecuted for involuntary manslaughter. The defense called Dr. Paul White to testify to, among other things, that Jackson self-medicated with his own stash of propofol thereby causing his own death. Prosecutor David Walgren relied on concession-seeking cross-examination to build his case against Dr. Conrad. Walgren asked questions to which he knew the defense expert had to answer in a way that was favorable to the prosecution. They included:

"Do you agree that there are instances where Dr. Murray deviated from the standards of care in his treatment of Michael Jackson on June 25, 2009?

"And would you agree that there were instances where Dr. Murray deviated from the standards of care in the preceding two months of treatment, as relayed by Dr. Murray in his statement to police?"

“Have you ever used propofol in someone’s bedroom?”

“Have you ever heard of anyone doing that prior to this case?”

Murray’s expert Dr. White had to make these concessions because they comported with common sense and the standard of care for medical treatment of a patient. 

Cross-Examination Handbook covers this concession-seeking cross-examination technique, including how to identify the content of this type of cross – what the truth that the witness must concede - and how to construct and conduct a smooth flowing and effective cross to elicit the truth.

Part 2: STRATEGIES & SKILLS FOR EXTRACTING THE TRUTH ON CROSS-EXAMINATION

 

BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality

In case you haven't read Part 1, just click here.

In the book Redeeming the Dream, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.

CONCEDE THE TRUTH OR SUFFER THE CONSEQUENCES

As we have explained in Cross-Examination Handbook and in my Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way: 

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?

“A: Well, you’re putting words in my mouth now.

“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony, and the witness paid the consequences. 

THE PATIENCE, FOCUS AND STYLE OF THE CROSS-EXAMINER

Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet return to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

“David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

David Boies (preeminent trial lawyer in such cases as the Microsoft antitrust case and the Gary Shandling case) and Theodore Olson (former Solicitor General and opposing counsel to Boies in Bush vs. Gore) served as co-counsel in the California Proposition 8 case. Olson commented on how Boies cross-examined and deposed the defense experts in that case as follows:

“People think it happens all the time because it happens on television. What we used to call a ‘Perry Mason moment’ when the witness breaks down and confesses. That does not happen. But it sort of does happen when David does it.”

What does David Boies have as his goal when he examines opposing witnesses to elicit concessions? Regarding his goal for examining witnesses, he made this observation regarding how he approached the experts in the Proposition 8 case: “Before you can get a witness to admit the truth you have to get the witness to understand what the truth is.”

In essence, when Boies deposes an adverse witness or cross-examines a witness, he seeks to have the witness admit the truth. 

This is neither a new nor novel concept. In Francis L. Wellman’s Art of Cross-Examination, which was published in 1903 and is still in print, a New York trial lawyer Emory Buckner wrote: “More cross-examinations are suicidal than homicidal.” He attributed this to a mistake in conception as to the purpose of cross. Buckner explained: “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The following is an example of Boies extracting the truth from a defense expert witness Katherine Kay Young in the case against Proposition 8:

Boies – Q: Do you believe that children are advantaged by increasing the durability of the relationship of the couple raising them?

Young – A: Yes

Q: And you believe allowing gay couples to marry will increase the durability of the gay couple’s relationships?

A: Okay, I’d say yes.

Q: And increasing the durability of these relationships is beneficial to the children they’re raising, correct?

      A: On that one factor, yes.

Boies has put it this way: “Cross-examination is probably the best we have to really get at the truth. We put somebody on the witness stand, call them to answer questions and it takes an extraordinary person to be able to successfully lie without being tripped up.”

EXTRACTING THE TRUTH ON CROSS-EXAMINATION – Part 1

 

David Boies and Theodore Olson

BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality

In the book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.

CONCEDE THE TRUTH OR SUFFER THE CONSEQUENCES

As we have explained in Cross-Examination Handbook and in this Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way: 

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows:

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?

“A: Well, you’re putting words in my mouth now.

“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“”I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony and the witness paid the consequences. 

THE PATIENCE, FOCUS AND STYLE OF THE CROSS-EXAMINER

Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet retun to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and  is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

CHATGPT FOR CROSS-EXAMINATION by Keeley Blanchard

 

Here’s something new – preparing a compelling cross with ChatGPT. Recently, I came across LawStory - a newsletter by Keeley Blanchard, Trial Consultant.  Here is her summary of what her training session will feature:

"LAWYERS:

"Learn how to create a creative and compelling cross examination using ChatGPT. The workshop will include:

• step-by-step instructions on how to build your own custom GPT for cross examination

• access to my custom GPT for cross examination

• how to use ChatGPT to brainstorm cross examination topics

• using ChatGPT to generate questions that sound like you and not a machine

• protecting the confidentiality of your case information

• writing a storytelling cross examination in less time

"And a NEW BONUS to the course - step by step video instruction on five different ways to use ChatGPT for your cross examination preparation.

"Materials with step-by-step instructions will be provided to all participants, as well as access to use of the LawStory custom GPT for cross examination. Access to the replay video will also be provided."

You can click here to learn more about an upcoming training session she is holding.

Impeachment with Visuals

 

At Seattle University Law School I teach an online course entitled “Visual Litigation and Today’s Technology". Cross-examination visuals are featured because they can be extremely powerful weapons for cross-examination. They can be used to gain concessions either supporting your case theory or undermining the other side’s case theory. 

Visuals can also be very effective for impeaching a witness. For examples, impeachment visuals can include: 

1. a prior inconsistent statement either in a document or in a visual, such as a video deposition; 

2. a prior conviction—judgment and sentence document; 

3. a visual that establishes that the witness did not have personal knowledge about that which the witness testified; 

4. a visual that proves that the witness’s testimony is improbable; 

5. a visual that reveals the witness’s bias or interest; 

6. and a statement in a learned treatise that conflicts with the witness’s testimony.

“Visual Litigation and Today’s Technology” is a 2-credit course. In this online course, students interested in litigation learn how to integrate technology into their trial visual presentations and case. Just as visuals and technology have become a centerpiece in modern life, they also are the centerpiece in trial. Judges and jurors expect lawyers to use visuals with today’s technology.

The “Visuals” course is taught in the context of mock civil and criminal cases, giving students simulated real-world experiences working with visuals and cutting-edge technology. This experiential course will allow students in role-play assignments to plan the cross-examination of witnesses with visuals. 

This course is comprehensive in its exploration of visual communication strategies and technology, including, among other topics: the ethical and legal boundaries to what visuals may be displayed in trial; evidentiary foundations for visuals (animations, demonstrations, laser scanner images and so on); visual advocacy in both a pretrial venue and a courtroom, from opening statement through closing argument; the creation of visuals; litigation software, such as Sanction, TrialPad, and SmartDraw; and meeting the trial judge's expectations of a trial lawyer's competency when employing technology.

The text for the course is my book Visual Litigation: Visual Communication Strategies and Today’s Technology, which is being published by Full Court Press, the publishing arm of Fastcase. The text offers examples of how visuals were used on cross-examination in notable cases, such as Abraham Lincoln’s cross-examination with a Farmer’s Almanac or the prosecutor’s cross-examination of Richard Hauptmann in the Lindbergh kidnapping/murder case with a ransom note and Hauptmann’s diary.

Cross-Examination Checklist

A checklist can be a survival guide.  Checklists are critical to pretrial and trial work. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who headed the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 6th Edition and Trial Advocacy 5th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

This post offers you a Cross-Examination Checklist for impeaching a witness on cross-examination . Kindly let me know what you think of the checklist? Would you like more?

Impeachment Cross-Examination Checklist 

Improbability 

Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401, 402. 


Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 


The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 


The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 


The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 


Prior Inconsistent Statements 


Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements. 

    • If the witness admits the prior statement, extrinsic evidence of the statement may be excluded as cumulative under Rule 403. 


     • If the witness does not unequivocally admit the prior statement, extrinsic evidence
of the statement is admissible. 


    • The witness must be given an opportunity to deny or explain the statement. 


    • The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 


 Avoid impeaching with minor inconsistencies, except: 


1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 


2. When necessary to force an evasive witness to yield concessions. 


Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would 
otherwise be inadmissible evidence. 


 

Eight essential techniques for impeachment with a prior inconsistent statement are: 

1. Recognize the inconsistency; 


2. Retrieve the prior statement; 


3. Repeat the testimony; 


4. Reinforce the truthful statement with where said, when said, who heard, what said, and whether said; 5. Reference the prior statement; 


6. Resonate with the jury; 


7. Read or display; and 


8. Refute the witness’s denial. 


Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition.
 Apply the eight essential techniques when impeaching with a deposition.


         With video deposition clips the impeachment has a greater impact on the jury 
than with just the transcript. 


Impeach the witness’s trial testimony by revealing that the witness previously 
failed to act or relate the same information when it would have been human nature to do so. 


Contradiction 




Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 


Having a witness comment on the credibility of another witness—pitting—is improper. 


For more advocacy books go to ronclarkbooks.com

FREE GUIDE TO BEING A GREAT COMMUNICATOR IN TRIAL

Get your free GUIDE to being A GREAT COMMUNICATOR IN TRIAL

Oratory has been defined as “the art of making formal speeches which strongly affect people's feelings and beliefs"

Learn the THREE CHARACTERISTICS of a GREAT COMMUNICATOR IN TRIAL in this ADVOCACY NEWS & VIEWS Newsletter.

CLICK HERE GET YOUR FREE GUIDE