PART 2 - WHAT TO DO OR NOT DO ON CROSS-EXAMINATION?

Probably the Prosecutor's Best Cross-Examination

In our last post, we examined the trial of a belatedly truthful young murder defendant who decided to confess on the witness stand. We reproduced his testimony and posed two questions: What did the prosecutor do in this situation? What would you do in the same situation? Here is what happened in the trial:

A: I believe that she is the one that killed the man because -- f*** it, I reckon I’ll just cop out. I have done it, killed him deader than hell. I ain’t going to set up here, I am under oath and I ain’t going to tell no f***ing lies. I will ask the Court to excuse my language. I am the one that done it. They [the one’s he had been accusing] didn’t have a damn thing to do with it. It was premeditated and I intended to kill him. I would have killed him if he hadn’t had no money [to defense counsel] and I know I never told you about it, but I killed him.

BY THE COURT: Do you want to come down, Mr. Edwards?
BY THE DEFENDANT: Sir?
BY THE COURT: Do you want to come down and have your seat?
BY THE DEFENDANT: Yes, sir.
BY DEFENSE COUNSEL: I rest.
BY THE PROSECUTOR: No questions.

That was probably the best cross the prosecutor performed during the entire trial. There’s an old saying that you should never attempt to murder a witness who is committing suicide, and this situation exemplifies that adage perfectly. You seldom confront a situation where cross-examination won’t elicit further information helpful to your side, but when you do you should follow the example of the prosecutor in this case.

WHAT TO DO OR NOT DO ON CROSS-EXAMINATION? - PART 1

Now What?

A long time ago in a courtroom in the Florida panhandle, a young man stood trial for Murder in the First Degree. His lawyer, one of the pre-eminent defense attorneys in the area, had done an excellent job of chipping away at the State’s case, casting doubt on the evidence and suggesting that another had actually committed the murder. When the State rested, it was time to call the Defendant to the stand. Any experienced defense attorney would wholeheartedly agree with what Horace Rumpole, the fictional Old Bailey barrister, once said about testifying defendants: “Calling your own client is the worst part of a trial. You can’t attack him, or lead him, or do anything but stand with your palms sweating and hope to God the old nitwit tells the right story.” (John Mortimer, The Second Rumpole Omnibus, p. 13). To begin with, the direct examination went smoothly as the lawyer introduced his client to the jury and walked the young man through enough background information to make the jury decide that the Defendant wasn’t that bad an egg after all.

The questioning then turned to the events surrounding the killing, and the Defendant began to recount his version of the incident. It was at this time that the Defendant’s testimony took an unexpectedly nasty turn.

A: I believe that she is the one that killed the man because -- f*** it, I reckon I’ll just cop out. I have done it, killed him deader than hell. I ain’t going to set up here, I am under oath and I ain’t going to tell no f***ing lies. I will ask the Court to excuse my language. I am the one that done it. They [the one’s he had been accusing] didn’t have a damn thing to do with it. It was premeditated and I intended to kill him. I would have killed him if he hadn’t had no money [to defense counsel] and I know I never told you about it, but I killed him.

At this point the defense attorney rested his case without tendering the defendant for cross examination. The State, however, had the right to question the defendant. How did the prosecutor react to this situation? What would you do in the same situation? In our next post, we will follow the transcript through to its conclusion.

KNOWING WHEN TO BREAK THE RULES OF CROSS-EXAMINATION

A Shot-in-the-Dark

You could call it a locked-room murder but not a locked-room mystery. The murderers were locked in the room with their victim. Two inmates contrived to get themselves locked into the same cell with another inmate and proceeded to strangle him with a garrote. When a correctional officer came down the row of cells checking to see if the inmates were properly locked up, she looked into the cell and found the killers with their victim.

The elder killer, whom we will call Enoch Drebber, looked like a hardened violent career criminal, and in this case you could judge a book by looking at the cover. We shall call the younger killer Dorian Gray because he looked to be little more than a baby-faced teenager. Drebber, who stood trial first and received the death penalty, was brought from Death Row to testify on behalf of his friend. Upon taking the witness stand, Drebber looked like the personification of evil. He did little to dispel this first impression as he testified that he and he alone had killed the victim, and that if Gray had tried to stop him, he would have killed Gray also. Drebber, who made a convincing witness, suffered little damage to his credibility as he weathered a vigorous cross-examination.

When Drebber’s testimony concluded, the judge called for a recess, and a spectator from the courtroom approached the prosecutor. Gray had been giving hand signals to Drebber while Drebber testified. Several other spectators in the courtroom confirmed that they also saw the signaling. The prosecutor put the most credible of these spectators onto the witness stand to describe what she had seen, intending to argue that Gray was telling Drebber what to say. The defense then called Gray to the stand to refute that argument. Gray testified that both he and Drebber knew American sign language, and that he had communicated with Drebber in that sign language. Gray stated that he did not tell Drebber what to say, he merely called Drebber a liar. The judge ruled that the prosecutor could cross-examine Gray about the hand signals and nothing else.

The prosecutor took his place at the lectern and began to violate almost all of Irving Younger’s Ten Commandments of Cross-Examination. See if you can identify the Commandments he broke:

Q: What was Drebber testifying about when you called him a liar?
A: Our roles in the killing.
Q: Your roles in the what?
A: Our roles in the killing.
Q: So, in other words, you were calling him a liar when he said he acted alone in the killing?
A: Yes.
By Defense Counsel: Your honor, I object and ask for a sidebar on my objection.

The judge ruled that the prosecutor could ask no more questions, but he also refused to strike the questions already asked, ruling that the jury could draw whatever inferences they felt proper from the line of questioning.

Based on his limited cross of Gray, the prosecutor constructed a logical syllogism which he argued to the jury:
Someone helped Drebber kill the victim.
Gray was the only person who could have helped Drebber.
Gray helped Drebber kill the victim.
The prosecutor argued that Gray had, in a roundabout way, confessed to the crime. The jury agreed. They gave no weight to Drebber's testimony and returned with a swift verdict of guilty as charged.

You should not mechanically apply the rules governing effective cross-examination. When the circumstances warrant it, you can and should break the rules. You should, however, have a clear reason for doing so, and the payoff must justify the risk. The prosecutor took a shot in the dark when he asked the dreaded “question he didn’t know the answer to,” and the payoff certainly justified the risk