Thursday, November 3, 2011
4TH COMMANDMENT OF CROSS-EXAMINATION
Be Prepared. Do Not Ask a Question to Which You Do Not Know the Answer.
THE 4TH COMMANDMENT
Irving Younger promulgated the 10 Commandments of cross-examination, and those commandments have guided cross-examiners for decades. But, do they make sense? Should they be Commandments or merely Guidelines?
Let’s examine the 4th Commandment: Be prepared. Do not ask a question to which you do not know the answer. Younger cautions that the lawyer who asks a question to which the lawyer doesn’t know the answer will get an answer that damages the examiner’s case. Younger illustrated another Commandment – number 9 requiring counsel to limit questioning (don’t ask that one question too many) - with a story that equally illustrates the 4th Commandment. It involved an assault. The prosecutor called an eyewitness to testify that the defendant bit off the victim’s nose. On cross, defense counsel got the witness to concede that he never saw the nose being bitten off. Not satisfied, the lawyer asked one question too many and one to which the defense lawyer did not know the answer:
Q: If you never saw my client bite the nose off the victim, then why are you here today claiming that my client committed mayhem?
A: I saw him spit it out.
Of course this story is just a story, and a funny one. What prosecutor would not cover the nose-spitting business out of a direct examination? What defense counsel would not have interviewed the witness? How could this nose-spitting have not been known to both sides?
EXCEPTIONS TO THE RULE
The concept of never asking a question on cross unless you knew the answer did not originate with Irving Younger. Francis Wellman in his seminal work on cross-examination, The Art of Cross-Examination, stated the rule and expressed it better a long time before Younger. On page 23 of the 1936 edition of Wellman’s book, which was first published in 1903, it states:
“David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, ‘A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place, he didn’t care.’ This is somewhat on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greater blunders in cross-examination. Certainly no lawyer should ask a critical question unless he is reasonably sure of the answer.”
Wellman’s is certainly a better, more nuanced guideline. Certainly, when the question is on an inconsequential subject to which no harmful answer can be given, it is fine to ask the question.
Obviously True Answer
A cross-examiner can ask critical questions even though the questioner does not know what the answer will be. Those critical questions that may be safely asked are ones to which both the cross-examiner and the jury know what the answers should be. If there is only one correct answer and that answer is obvious to the jury, what difference does it make what answer the witness gives? If the witness does not provide the expected answer, the witness loses credibility.
The core concept underpinning this approach is that the cross-examiner is testifying (not literally of course), making arguments along lines that the jury will agree to because they are part of common experience. The examiner uses the witness as a foil, who will give the desired answer or be discredited.
F. Lee Bailey in the O. J. Simpson murder trial cross-examined a Sergeant who had been to the murder scene using this approach. Here is part of the exchange – more is on the video at the end of this page:
Q. (Bailey) Wasn’t the evidence staring you in the face that somebody had to go out the back (gate)?
A. (L.A. Police Sergeant) Like I said it was outside.
Q. I understand. Didn’t you tell us in your testimony that you saw the tracks on Bundy (street adjacent to the front of the house)?
A. On Bundy?
A. Dog tracks.
Q. Well, that’s right.
Q. So if the killer wasn’t a dog, somebody had to go out the back gate, didn’t they?
A. They could have gone any direction.
Q. Without leaving any footprints after being in all that blood, Sergeant?
A. Yes, it’s possible. Yes.
Q. How is that possible? Please tell me.
A. Just leave and cover their tracks somehow.
Q. Leave and cover their tracks. Could you explain to us all how that could be accomplished by a killer with bloody feet?
A. If they didn’t get blood on their feet, they wouldn’t leave tracks.
Q. Having been at the scene, can you imagine that the perpetrator or perpetrators didn’t get blood on their feet? Can you imagine that?
A. There was a lot of blood there.
Q. No. Can you imagine that these murders were accomplished without getting any blood on the feet of the perpetrator?
A. I think anything is possible.
Q. Anything is possible. You think they may have been fast enough on their feet to avoid blood while accomplishing the carnage that we’ve been looking at on the screen, is that right?
A. I can’t accurately testify to that. I’m sorry.
Bailey was arguing that the killer(s) left by the back gate and used the Sergeant as his conduit. He clearly didn’t care what the Sergeant’s answers were because he was making his argument to the jury. The more the Sergeant sought to evade the obvious, the more he discredited himself.
The accusatory question is the epitome of the obviously-true-answer line of attack. The accusatory question contains the ultimate conclusion, the one that counsel will argue to the jury. It confronts the witness with the cross-examiner’s position. When the accusatory question is asked, the cross-examiner knows the likely answer; the witness usually is going to deny the allegation. Nevertheless, counsel asks it. The accusatory question is often avoided because it is likely to produce nothing but a denial.
On the other hand, if counsel has laid the foundation – established the fact(s) that the witness will deny and counsel believes that the jury has been convinced of the fact(s), counsel can ask the question, confident in knowing that the witness’s answer will not have any credibility. Also, asking the question highlights the examiner’s point.
Horace Rumpole, the fictional English barrister and creation of the recently passed away actual barrister and author John Mortimer, asked the accusatory question, mused over both why he asked it and the witness’s response in “Rumpole and the Expert Witness” as follows:
“And some things you don’t forgive, Dr. Gorle? Has your feeling of jealousy and hatred for my client in any way coloured your evidence against him?’
“Of course I expected her to deny this. During the course of cross-examination you may angle for useful admissions, hints and half truths which can come with the cunning cast of a seemingly innocent question. But the time always comes when you must confront the witness with a clear suggestion, a final formality of assertion and denial, when the subtleties are over. I was surprised, therefore, when the lady from the morgues found it difficult to answer the question in its simplest form. There was a prolonged silence.
“`Has it, Dr. Gorle?’ I pressed her gently for the answer.
“Only Dr. Gorle knew if she was biased. If she’d denied the suggestions hotly no one could have contradicted her. Instead of doing so, she finally came out with,
“’I don’t think so.’ And she said so unconvincingly that I saw the jury’s disapproval. It was the first game to Rumpole, and the witness seemed to have lost her confidence when I moved on to deal with the medical evidence.” (The Second Rumpole Omnibus, John Mortimer, Penguin Books, 142 (1988))
While the accusatory question commonly will produce a denial or at least a hedge like Dr. Gorle’s, every once and a while, the accusatory question produces a different result. A Few Good Men (1992) provides an example of such an exchange and a profitable answer:
Q. (Kaffee) did you order the code red?
A. (Jesep) (quietly) I did the job you sent me to do.
Q. Did you order the code red?
A. You’re goddamn right I did.
For more on the types of cross-examination questions and cross strategies, get a copy of Cross-Examination Handbook.