CROSS-EXAMINATION AND TRUTH

Wigmore vs. Rumpole

“The very nature of a trial is [the] search for truth.” Nix v. Whiteside, 374 U.S. 157, 158 (1986).
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” John H. Wigmore, quoted in Lilly v. Virginia, 527 U.S. 116 (1999).

“A criminal trial is a pretty blunt instrument for prising out the truth.” Horace Rumple in John Mortimer’s “Rumpole for the Prosecution,” The Second Rumpole Omnibus.

In the debate between John Mortimer and Horace Rumpole on the one side and John H. Wigmore and the Supreme Court on the other, Mortimer and Rumpole make the better point. Cross-examination can be helpful in ferreting out falsehood, but it doesn’t work too well at discovering truth. The advocate should have a pretty good idea of what the truth is before the trial begins, and the trial should be an exercise in disclosing known truth rather than discovering unknown truth. In Cross-Examination Handbook we teach a method for using cross-examination to effectively disclose the truth we already know to the judge and jury. This should be the first objective of cross-examination, with the exposure of falsehood a secondary objective.

Cross-examination is a useful tool in the advocate’s toolkit, but it is like any other tool. A hammer can be used to perform the useful task of driving nails or used to perform the wrongful task of bashing in someone’s skull. Cross-examination can perform the useful task of disclosing truth or used for the tasks of obscuring the truth and even promoting falsehood. A possible example of this comes from the cross-examination of one of the handwriting experts in the Lindbergh kidnapping case.

The examiners described a number of similarities between the handwriting on the ransom notes and the handwriting of Richard Hauptmann. One of those similarities was that in both the ransom notes and Hauptman’s known writings, “New York” was hyphenated (“New-York”). One of the examiners said that he’d never seen anyone hyphenate “New York.” On cross-examination the defense showed him a number of letters and postcards which purportedly were addressed “New-York.” Each letter and postcard was dutifully marked for identification, and the cross-examination seemed to discredit the examiner. After all, hadn’t the defense shown that “New York” was hyphenated in numerous other documents? No, as a matter of law, they hadn’t.

The procedure for putting a document into evidence is to identify it and authenticate it and then proffer it into evidence as an evidentiary exhibit. During the state’s case in chief, the defense is not technically able to introduce tangible evidence. But they can mark tangible objects for identification, have witnesses identify and authenticate those tangible objects on cross-examination, and then proffer the tangible objects into evidence on the defense case after the state rests. Until the tangible object is received into evidence, the proof is incomplete. If the tangible object is never received into evidence, there is no proof at all, and the testimony about the object can be stricken from the record, if not from the jurors’ minds.

The defense identified the letters and postcards with the state’s documents examiner, but they never authenticated them with the testimony of the people who purportedly wrote or received the correspondence, and they never offered the documents into evidence. They offered no legal proof that anyone besides Richard Hauptmann had ever hyphenated “New-York.” On the state of the evidence as presented by the defense, you would not be justified in believing that they had proved it was common for other people to hyphenate “New York.” But you might be justified in assuming that the cross-examination was smoke and mirrors designed to mislead the jury.

The mere asking of a question is an assertion of fact by the questioner, and by asking the questions, the defense was asserting the fact that they had numerous authentic letters and postcards which had “New York” hyphenated. The ABA’s Model Rule of Professional Conduct 3.3(a)(3) prohibits lawyers from offering false evidence. The ABA’s Prosecution Standard 3-5.7(d) is even more specific: “A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.” Before you say “Oh, that only applies to the prosecution,” look at the ABA’s Defense Standard 4-7.6(d): “Defense counsel should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.”

If you ask a question which suggests a fact to the jury, you have an obligation to follow that question up with a proffer of proof of that fact. Otherwise you expose yourself to the accusation that you have implied a fact which you do not in good faith believe. Hauptmann’s defense team should have either offered the documents into evidence or they should not have asked the questions which implied a “fact” they had no intention of proving.

DON’T RUIN YOUR CROSS-EXAMINATION

Checklist of Traps for Cross-Examination

Don’t ruin your cross-examination by stumbling into these traps. Avoid:

 Cross-examination when appropriate.
 Lack of thorough preparation.
 Showing that you are wounded by an answer.
 Not actively listening to the answer.
 Failing to maintain composure.
 Having the jury perceive you as discourteous or as someone who is not a seeker of truth.
 Failing to adjust behavior to the witness and situation.
 Not using the cross to tell your story of the case.
 Spending time on minutiae.
 Asking a question to which you don’t know the answer unless it is an exceptional situation (see Cross-Examination Handbook, pages 59-60).
 Asking interrogatory (“why”-type) questions except under exceptional circumstances (see Cross-Examination Handbook, page 99).
 Disorganization.
 Examining without notes (see the cross-notes format recommended in Cross-Examination Handbook, page 65).
 Taking too many notes during cross.
 Losing eye-contact with the witness by being locked into notes.
 Failing to know and follow evidentiary law of cross.
 Not using the nine impeachment areas including reliability, report and reporter (see Cross-Examination Handbook, pages 123).
 Not using the seven essential impeachment techniques (see Cross-Examination Handbook, page 123).
 Losing control of the witness. Have a repertoire of control techniques (see Cross-Examination Handbook, page 237).
 Not knowing the ethical and legal boundaries of cross-examination and staying within them (see Cross-Examination Handbook, pages 355-356).
 Being boring.
 Not knowing when to stop.

ON QUALIFICATION: LINDBERG CASE ILLUSTRATION

Cross-Examining the Witness Who Qualifies the Answer

We lawyers love to ask yes-no questions on cross-examination. Trial advocacy schools teach us to ask such questions, but witnesses often refuse to give us yes-or-no answers. The witness’s refusal to give us the answer we crave may stem from many reasons. Let us examine three of them: (1) The witness may be trying to evade our question; (2) either by design or default, our question may be unfair or misleading; or (3) the witness may enjoy the sound of his own voice so much that he is incapable of giving us a short answer. When the witness fails to deliver, we almost instinctively seek either to punish the witness for disappointing us or to coerce the desired yes-or-no answer. We see ample evidence of this tendency in the transcript of the Lindbergh Kidnapping Trial.

The state called eight expert witnesses, each of whom identified Bruno Richard Hauptmann as the author of the ransom notes sent to Lindbergh. On cross-examination, the defense sought to elicit helpful testimony from the experts by asking questions which they desired to be answered either yes or no. Anyone who has had much experience in cross-examining experts knows that yes-or-no answers are very difficult to elicit from experts. Usually it is because we lack sufficient knowledge of the subject to frame an adequate yes-no question; sometimes it is because the witness is intoxicated by the sound of his own voice; and occasionally it is because the witness is trying to evade the question. When cross-examining the handwriting experts in the Lindbergh case, the defense often asked yes-no questions and seldom got yes-or-no answers. When the witnesses attempted to qualify their yes-or-no answers, the defense responded by trying to coerce the desired answers. They often tried to accomplish this by cutting off the witness’s qualification and proceeding to the next question. One, but by no means the only, example of this comes from the testimony of the expert Clark Sellers.

In his direct examination, Sellers had analogized recognizing handwriting by its distinctive characteristics to recognizing a person by his facial features. The defense attorney sought to demonstrate that it was a poor analogy by making a mundane point: Facial recognition requires no expertise, but handwriting examination requires training and experience. The questioning went like this:
Q: In other words, Mr. Sellers, the personal identification of Mr. Sellers as the handwriting expert who appeared in Trenton would simply be a matter of common observation, wouldn’t it?

A: Yes. I think most—
Q: And the identification of a man’s handwriting—
Mr. Wilentz [the prosecutor]: Just a minute.
Q: —would be a matter of skill and practice, wouldn’t it?
Mr. Pope [defense attorney]: I am conducting this examination and I know when the witness has answered my question.
The Court: The witness has not finished his answer. I think he is entitled to finish it.
Mr. Pope: I think he said yes, and that is all I want.
A: Yes. I know sometimes a person would like to show the shade of meaning.
Q: You would like to argue with me, but I would not like to argue and I want you to answer my questions, that is all.
A: No, I don’t want to argue, Mr. Pope.
Q: The Attorney General will give you every opportunity to explain if you need to.
Q: Now, I repeat my question: The one is a matter of common observation and recollection of a face, isn’t it?
A: Yes, a—
Q: And the other—
Mr. Wilentz: Just a minute, please.
Q: The other is the—
Mr. Wilentz: Just a minute, please.
The Court: He wants to qualify that.
Mr. Wilentz: Yes.
The Court: Now, I suppose he is entitled to do that.
Mr. Wilentz: Will you finish your answer, sir?
The Witness: Yes.
A: (continuing) If they have no more experience, probably, in identifying people by their face than they have by their handwritings, why, they could do them to about the same extent; but most people of general experience have more experience in identifying people by their facial features than they do by their handwriting. (State of New Jersey versus Bruno Richard Hauptman, Trial Transcript, page 1410 line 19, to page 1411 line 40).

When a witness seeks to qualify a yes-or-no answer, the absolute worst way to try to control him is by cutting him off with another question. First, it is rude. Second, you show fear of his potential answer. Third, you can come across as heavy-handed. Fourth, you can erode your credibility with the jury, especially when—as here—the judge sides with the witness.

Before taking any remedial action, you must quickly analyze the problem. Is the witness qualifying because your question is poorly worded? Is it because the witness is naturally talkative? Is it because the witness is being evasive? Your remedial action will be different depending on how you analyze the witness’s motive for qualifying.
Had the defense attorney done this quick analysis, he should have diagnosed the problem as volubility on the part of the witness aggravated by the fact that his lengthy question invited a lengthy answer. He was not dealing with an evasive witness, and he did not need to take aggressive measures to control the witness. The first thing to do would have been to shorten the question. Short questions demand short answers. Let the witness give his lengthy answer and then follow up with more a more tightly worded question. A possible follow up might be:

Q: So you need no special training to identify a face?
Q: But you do need special training to identify handwriting?

A lengthy answer to a short question reflects poorly on the witness, not the examiner. Had Sellers entered into a lengthy answer to either of these questions, he may well have eroded his credibility.

But even before taking remedial action, you must be sure that you actually have a problem. In this situation, the defense attorney had already gotten the desired answer out of the witness, but the witness had supplied it in a torrent of words. The first question in the quoted series was a summary question to underline the fact that the witness had verbosely agreed with the point the attorney was trying to make. The witness was verbosely agreeing with the attorney’s summary question when the attorney cut him off. This touched off a skirmish in which the judge joined the side of the witness and the witness was allowed to give his verbose answer. And when the lengthy answer came, it was an affirmation of the point the attorney was trying to make. The only thing the attorney accomplished was to erode his own credibility. He would have been better off to let the witness talk.

CROSS-EXAMINATION HANDBOOK CITED BY EVIDENCE SCHOLARS

Message from Professor Ronald Carlson

Ronald L. Carlson, Fuller E. Callaway Professor Emeritus, University of Georgia School of Law, is one of America’s preeminent evidence scholars. He recently e-mailed us about Cross-Examination Handbook. His email comments, which he said we could share, read as follows:

“I just sent in the copy for my part of our Evidence course book with Lexis; Carlson, Imwinkelried, Seaman and Beecher-Monas, Evidence: Teaching Materials for An Age of Science and Statutes (Lexis 2012). I am in charge of the impeachment and witness examination chapters. In drafting those, I prominently cited the material on page 163 of Cross-Examination Handbook, the section entitled "Pitting Witness Against Witness." Cross-Examination Handbook dovetailed perfectly into my material on pages 421-23 of Carlson, Imwinkelried. I will also cite it when Ed (Imwinkelreid) and I revise Dynamics of Trial Practice for West. Cross-Examination Handbook is a fine publication. In addition to the above, the analysis of Lincoln's classic cross-examination was profound.”

Thank you Professor Carlson for your kind comments.

CROSS-EXAMINATION SKILLS FOR CRIMINAL CASES

Learning Cross-Examination Techniques for Criminal Cases Through Experience

Of course the best way to learn how to cross-examine in criminal cases is to be either a prosecutor or criminal defense counsel and try a lot of cases. It is not unusual for defense counsel or a deputy prosecutor to learn by trial and error in trial. The downside is this sink-or-swim schooling in cross-examination can be not only the drowning of the cross-examiner but also someone else.

Another method is to practice cross-examination in professional development workshops for prosecutors or defense counsel or in law school classes where no one is hurt in the process. Cross-Examination Handbook offers opportunities for cross-examinations in two criminal cases that can be used in either law school or prosecutor or defense counsel workshops.

Case Files, Actors’ Guide and Teacher’s Manual

Cross-Examination Handbook comes with all the materials necessary for role-play performance exercises for cross-examination strategies and skills, including: case files; an Actors’ Guide with instructions for the witnesses, and a Teacher’s Manual (100 pages) covering how to conduct the cross-examination exercises as well as a schedule for professional development workshops and a syllabus for law school classes. The two criminal cases are State v. Gary Goodman and State v. Byron Ward Howland. Both fact patterns are based on actual cases.

State v. Gary Goodman

Gary Goodman and his brother Barry went to the Infernal Club for an evening of dancing. Gary Goodman had a .38 caliber revolver in his coat pocket. While they were inside the Infernal Club, Barry Goodman became engaged in a “staring” contest with Moe Helton, a local drug dealer who had a history of bad blood with Barry. The staring contest escalated into a confrontation, and the confrontation escalated into a fistfight. Barry came off second in the fistfight and Helton began to get the best of him.

Gary Goodman, who had been dancing on the dance floor, noticed the altercation and went over to intervene. Goodman drew the revolver from his pocket and began shooting. John Elder, a business associate of Helton in the drug trade, attempted to intervene in the fight, trying to disarm Gary. Gary shot Elder in the stomach. When Gary shot Elder, Shemp Campbell, another drug associate of Helton, also intervened and was able to disarm Gary Goodman. When Goodman was disarmed, he and his brother fled the Club. Moe Helton was pronounced dead on arrival at the Lincoln County Hospital, and John Elder underwent emergency surgery to repair the damage done to his stomach by the bullet. Barry Goodman was treated at Riverton Hospital for trauma suffered in the fight with Helton. Gary Goodman is charged with murder in the second degree, attempted murder in the second degree, and carrying a concealed firearm.

State v. Byron Ward Howland

State v. Byron Ward Howland is a high profile criminal case. The Lincoln County Prosecutor’s Office has charged state legislator Byron Howland with rape in the second degree, communicating with a minor for immoral purposes through electronic communication and three counts of child rape in the third degree.

The prosecution contends that Howland is an Internet predator who lured in 15 year-old Jenny Sells first through talks in a chat room and later by inviting her to his condominium where he resided when he is attending a legislative session is the state capitol of Georgetown. Allegedly, Howland raped her in his condo in December two years ago. Afterwards he expressed remorse, and their relationship continued until June last year when Jenny’s mother took printouts of their Internet exchanges to the Georgetown Police Department’s Detective Bill Hutchinson. Jenny told the Detective about her relationship with Howland. Howland has made no pretrial comments about the case except that it is “patently false.”

The Assignments

The law school class or CLE workshop assignments for cross-examination correspond to chapters of Cross-Examination Handbook and provide practical experience in the areas covered by the chapters. For example, chapter 6 covers how to impeach a witness with a prior inconsistent statement and assignments and Case File materials are provided so that law students and practicing lawyers can perform such an impeachment with. The versatility of the materials allows the instructor to select as many or as few of the assignments for the students/attorneys to perform as the instructor wishes to cover.

Each assignment comes with suggested reading, which the instructor may assign. For instance, the instructor may assign readings in Cross-Examination Handbook to which the assignment is cross referenced with suggested selected readings for each assignment.

For more information about the two civil cases and Cross-Examination Handbook, visit the book’s website here.

CROSS-EXAMINING AN INDEPENDENT MEDICAL EXAMINATION DOCTOR

Is the Phrase “Independent Medical Exam” an Oxymoron?

Two personal injury lawyers, Patrick A. Trudell and Ronald V. Miller share their thoughts about cross-examining Independent Medical Examination doctors on their respective blogs - Seattle Zen Legal Blog and Maryland Injury Lawyer Blog respectively. While Mr. Miller lists “random thoughts” about cross of the IME – found here, Mr. Trudell provides an outline that he used in a rear end collision case – found here.

DISTORTING THE WITNESS’S TESTIMONY: LINDBERGH CASE

Cross-Examination Distorts the Testimony

Questioning is a cooperative effort. The examiner suggests facts to the witness, and on the basis of the presupposed facts, requests additional information. The witness adopts the suggested facts as true and provides the requested information. Consider the following simple exchange:

Q: What is your name? [Presupposed fact, the witness has a name; sought-after fact, the witness’s name].
A: My name is John. [Adopting the presupposed fact and supplying the sought-after fact].

Because cross-examination presents a situation where the witness is often unwilling to cooperate, the questioner is allowed to ask questions coercively by leading the witness. Where normal questioning works from agreement to disclosure, the ideal leading question works from disclosure to agreement:

Q: Your name is John, isn’t it? [Voicing the disclosure and calling upon the witness to agree].
A: Yes. [Voicing the agreement].

Many witnesses, however, are not hostile to the cross-examiner and are willing to cooperate. Because the mere fact of asking the question is an encouragement to adopt the presupposed fact, a cooperative witness can unthinkingly adopt an unfair presupposition. Lawyers sometimes skew a witness’s testimony by asking a question which includes such a presupposition. Often the unfair suggestion takes the form of an adjective, adverb, or descriptive phrase. Sometimes the skewing of the testimony results from a poorly worded question; other times the lawyer is intentionally trying to manipulate the witness’s testimony.

As a cross-examiner you should always strive to make sure that, although you are attempting to coerce agreement with leading questions, you do not include unfair presuppositions in your question. At best you gain an unfair advantage; at worst you can be embarrassed when the distortion is exposed on re-direct examination. In the following excerpt from a cross-examination conducted in the Lindbergh Kidnapping Trial, the defense attorney introduces a distortion into the testimony. You may judge for yourself whether the distortion was accidental or intentional.

Probably the most important single piece of tangible evidence in the trial was known as “Rail Sixteen,” a board taken from the home-made ladder left at the Lindbergh home. A Government scientist had examined Rail Sixteen and determined that it had been cut from a board in Hauptmann’s attic. The appearance of the attic became important, and the prosecution sought to introduce a photograph of the joists in the attic to demonstrate how Rail Sixteen had been nailed to the joists. On cross-examination the defense attorney attempted to show that the photograph should not be introduced into evidence because it did not fairly and accurately depict the layout of the attic. The questioning went like this:

Q: And they [the joists] were carefully laid, I mean spaced evenly?
A: Yes, sir.

Q: So that this photograph, S-228, shows a distortion between the first floor beam, showing at the bottom of the photograph, and the second one from the bottom, isn’t that right?
A: Yes, sir.

Q: And then there is still a greater distortion from the second beam to the third beam?
A: That may be due to the photograph. That is—

Q: Well, there is a distortion, isn’t there?
A: According to that picture, yes, sir.

***
Q: *** Now then, there is less distortion between the third and fourth beam, isn’t there?
A: According to the picture, yes, sir.

Q: I am only talking about the photograph.
A: OK.

Q: Than between the fourth and fifth. So that when you get to the sixth beam it looks as if the top of the fifth beam was almost on the bottom of the sixth beam, doesn’t it?
A: Yes, sir.

[Having induced the witness to adopt his suggestion that the picture was distorted, the defense attorney now morphs “distorted” into “deceptive”].

Q: So that the photograph is incorrect, isn’t it, and deceptive.
A: I don’t know. According to the picture, yes.

Q: That photograph is deceptive, isn’t it?
A: Yes.

Q: So that if this jury were to attempt to assume that the distance between beam number 1 and beam number 2 was smaller than between beam number 2 and beam number 3, which appears to be twice as wide, that would be a deception, wouldn’t it?
A: Yes, sir.

[So far, so good, but the prosecutor gets to ask a few more questions].

Redirect:

Q: Counsel asked you about the photograph. What you mean to say is that the beams on this end are closer to the person taking the picture?
A: Yes, sir. I believe that is what is known as prospective. Something like that.

By the defense attorney: Perspective.

The photograph is shown to be fair and accurate, the defense attorney is shown to have engaged in an unfair or unintelligent line of questioning, and the picture goes into evidence. MORAL: Be careful with the presuppositions you build into your questions. Make sure they are fair. You will save yourself some embarrassment.