Sunday, June 26, 2022

AVOID ENDLESS CROSS-EXAMINATION – RITTENHOUSE MURDER TRIAL

 

Prosecutor cross-examining Kyle Rittenhouse

As we discuss in Cross-Examination Handbook, there is no specific time frame that fits all cross-examinations because the extent of cross will vary depending upon the circumstances of the case. However, endless cross is tiresome, and the jurors will not recall much beyond the high points. Therefore, we recommend brevity. By editing down the content, the cross-examiner can better maintain the jury’s interest and be more effective. 

To make the best allocation of time and to have a powerful cross, adhere to the following four guidelines:

1. Limit the total number of topical units to be covered to less than a handful—three is ideal;

2. Go big not small—focus your cross on only significant points—avoid minutiae;

3. Once you have covered the material in a unit, such as cross on an expert’s bias, move on to the next unit; 

4.    Don't repeat the direct examination - have the witness repeat the witness's story, and 

5. Above all, do not be tempted to conduct an exploratory cross because something the witness testified to piqued your curiosity.

An illustration of a cross that went on too long is the prosecutor’s cross-examination of Kyle Rittenhouse. Rittenhouse was eventually acquitted in the murder trial over centering on whether he acted in self-defense when he shot and killed two white men during a protest in Kenosha, Wisconsin. You can watch the cross-examination although it ran over 3 hours and you may not last that long. Too long, do you think?





Thursday, June 16, 2022

Cross-Examination and the Witness’s Demeanor and Memory: The Johnny Depp Trial and More


         The demeanor and memory of the witness while testifying are critical factors for the fact finder, whether judge or jury, to consider. Jury instructions guide the fact finder to consider the witness’s demeanor and memory. For instance, one state’s pattern instruction provides: 

        "You are the sole judges of the credibility of the witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In considering a witness's testimony, you may consider these things: . . . the quality of a witness's memory while testifying; the manner of the witness while testifying. . . " Washington Pattern Jury Instruction, Civil 1.02 (emphasis added)

        The cross-examination of Amber Heard’s expert witness by Johnny Depp’s lawyer in Depp’s defamation law suit provides an example of a witness who’s testimony was undermined by her inability to recall. Watch a little bit of it here: 


         It is incumbent upon the cross-examiner to watch the manner of the witness while testifying and note any signs of deception or evasion. Equally important is to pay close attention to how well the witness remembers some facts as opposed to others.  Then, in closing argument the cross-examiner can close the circle by pointing out the telltale signs to the jury or judge.

        A federal judge’ decision in granting a new trial provides a good illustration of how the manner and memory of a witness can influence the fact finder. U.S. District Judge Barbara Rothstein ordered a new trial after a jury had awarded $21.5 million to James Hausman. Hausman claimed that he suffered seizures after an automatic glass door on the Holland America Line cruise ship struck him in the head. See the video above.

  Judge Rothstein held a post-trial hearing after an assistant to Hausman stepped forward and said that Hausman had deleted emails that revealed inconsistencies in Hausman’s account. Judge Rothstein found the assistant’s testimony believable. And, she found that Hausman’s was not credible. Her findings reveal how she weighed Hausman’s manner and memory while testifying in assessing his credibility, as follows: 

        As a witness, he came across evasive and untrustworthy. He appeared to weigh each answer, not for its truthfulness, but to assess whether it would damage his case. Mr. Hausman also seemed to capitalize on his alleged brain injury when it was convenient for him. He was confused or claimed memory loss when confronted with a question or exhibit that appeared to undermine his claims, yet animated and full of information when his testimony supported his case.”







Monday, June 6, 2022

CROSS-EXAMINATION WITH A LEARNED TREATISES

 


Under Rule of Evidence 803(18) hearsay exception, an expert may be cross-examined concerning learned treatises (periodicals, pamphlets and treatises)  if:

a. it is called to the attention of the witness on cross or it was relied on by the witness on direct, and 

b. it is reliable authority established by:
(1) admission on cross;
(2) judicial notice, or
(3) testimony by another expert.
Substantive Evidence: Although the treatise itself is inadmissible, it may be read to the trier of fact and is substantive evidence (not just admissible to impeach the expert).  
CROSS-EXAMINATION - A MODEL

Q: You know who Dr. E. is, don't you?
Q: You consider Dr. E. to be an authority in this area, correct?
Q: And, she is a reliable authority, isn't she?
Q: Dr. E. has published articles and books in this field, hasn't she?
Q: Showing you what has been marked as State's Exhibit 50, can you examine             this journal and the lead article, and tell us whether this is an article by Dr. E.                            that was published last year?
Q: And, State’s Exhibit 50 is an authoritative article in this area, isn’t it?
Q: Please read the name of the journal and the title of Dr. E.'s article.
Q: Now, turn to page two of the article and read the first full paragraph to the jury.






Thursday, May 26, 2022

CROSS-EXAMINATION OF CAPTAIN QUEEG



Herman Wouk's great masterpiece is The CaineMutiny about sailors on a World War II destroyer minesweeper who mutiny against their incompetent Captain Queeg. Wouk wrote The Caine Mutiny play and for a while worked on the script for the movie in which Humphrey Bogart gave an Oscar winning performance as Captain Queeg in the Caine Mutiny movie.

The basic facts underlying the court-martial case are that Lieutenant Stephen Maryk relieves Queeg of command of the USS Caine when Captain Queeg freezes up during a typhoon. Maryk has a belief from Queeg’s prior behavior that he is mentally unbalanced. Maryk is on trial for conduct to the prejudice of good order and discipline.

Lieutenant Greenwald’s cross-examination of Queeg is the high point in the movie. Beyond that, it is a superb illustration of how to conduct a concession-seeking cross-examination. The concession-seeking cross-examination strategy is discussed at length in Cross-Examination Handbook.

 Time after time, Greenwald confronts Queeg with truths that Queeg must concede or stamp his answer as either a lie, mistaken or ridiculous. Why must Queeg concede? It is because Greenwald can prove what he is asserts either by circumstantial or direct evidence or by plain common sense. Greenwald knows the answers to every cross-examination question he asks.

It is Greenwald’s turn to testify, not Queeg’s. It’s his opportunity to lay out the truths. These truths all support the ultimate conclusion—Queeg is unstable and unfit for command.

Here are those truths: (1) Queeg steamed over the Caine’s tow line; (2) Queeg was distracted during the towing maneuver because he was reprimanding a seaman over an un-tucked shirt; (3) Queeg having just testified that Maryk was unfit had previously written a glowing fitness report about him; (4) Queeg ordered that the Caine steam ahead of an attack force, drop a yellow dye marker and retreat; and (5) Queeg was obsessed with a search for a key that would have led to a missing quart of strawberries when he had been told by an officer that the mess boys had eaten the strawberries. When confronted by Greenwald with the fact that the officer who told Queeg about the mess boys eating the strawberries could be called to testify, Queeg loses his composure, rolling two metal balls around in his hand as he babbles on (masterful performance by Bogart). Naturally, Maryk is acquitted.


Sunday, May 15, 2022

Visuals as Weapons for Cross-Examination

 



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

Visuals can also be very effective for impeaching a witness. For examples, impeachment visuals can include: a prior inconsistent statement either in a document or in a visual, such as a video deposition; a prior conviction—judgment and sentence document; a visual that establishes that the witness did not have personal knowledge about that which the witness testified; a visual that proves that the witness’s testimony is improbable; a visual that reveals the witness’s bias or interest; 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 Visual Litigation and Today's Technology online course, students interested in litigation learn how to integrate technology into their trial visual presentations. 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 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 book Visual Litigation: Visual Communication Strategies and Today’s Technology is 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.


Tuesday, May 10, 2022

9 GOLDEN RULES OF CROSS-EXAMINATION

 

Advice from David Paul Jones’s Rules of Cross-Examination, a British barrister who wrote this over a century and a half ago:
 
1.                  Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions--all the soul--is there.                         

2.                  Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The mental reservation of the witness--is often manifested in the tone or accent or emphasis of the voice.

3.                  Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

4.                  An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth.

5.                  But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.

6.                  Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game--partial and temporary success may otherwise end in total and remediless defeat.

7.                  Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.

8.                  Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.

9.                  Thus, as you rise to cross-examine a witness, you should be armed with the skill to adopt the style required for this particular witness and jury, the technique to search out the truth, the knowledge of guidelines that have developed over the centuries, and, most important, the wisdom to discern the proper combination of style and technique you need to serve well the consummate role of the cross-examiner--the truth giver.








Friday, May 6, 2022

IMPEACHMENT CROSS-EXAMINATION – IT’S IMPROBABLE NONSENSE

 

Impeachment cross-examination helps to build your case theory only in a negative way, by eliminating competition from the opposition’s theory. As we have previously noted, a cross that reveals that the witness’s testimony is essentially improbable nonsense is one way to impeach.

If you can demonstrate that the witness is saying something illogical, you have gone a long way toward impeaching the witness. In a horrific domestic violence case tried a few years ago, a man claimed that his wife had received her injuries by jumping from a moving car. He explained that she had been high on drugs and acting out in bizarre fashion for the past two weeks. The problem with his story, which was pointed out quite well on cross examination, was that he and his wife had just the previous night arrived in Florida on a commercial flight from Nevada. One fertile area of cross examination proved to be a line of questions on how his severely drug impaired wife got through the TSA screening to get on the plane. The defendant also had some difficulty explaining why, after his wife jumped from the moving car, he took her home, hogtied her, and stuffed her in a closet rather than taking her to the emergency room.