CROSS-EXAMINING THE EYEWITNESS

Violating the Commandments

A long time ago in a courtroom far away a young defense attorney whom we shall call Hamilton Mason defended a man named Johnny Lee Johnson on a charge of robbery. The prosecution called its first witness Victor Victim, an older gentleman who wore glasses with incredibly thick lenses. Victor gave a vivid description of how a stranger had assaulted, battered, beaten, bruised, and wounded him, and how the stranger had relieved him of all his worldly goods and left him lying in a puddle of blood at the bottom of a ditch. After having the witness describe every excruciating detail of the robbery, the prosecutor then asked “The man who did all these things to you, is he in the courtroom?”

Victor squinted his eyes and looked hard at the jury; he looked into the audience; then he studied the bailiff, the court reporter, and the court clerk. After a long pause, Victor said, “I can’t say that I see him.” The prosecutor pointed and Johnson and asked “Is that the man who robbed you?” Victor squinted at the defendant and said, “No, I can’t say that he is.” The prosecutor announced no further questions and sat down.

It was now Mason’s turn to question the witness, and he stepped to the podium. The questioning went as follows:

Q: Mr. Victim, would it help you if you got a closer look at my client?
A: I don’t think so. It might.

Q: With the judge’s permission, step down off the witness stand and take a few steps toward my client and tell us if that’s the man who robbed you.
[Witness complies].
A: I can’t say that’s the man that robbed me.

Q: Come a little closer and tell us if that’s the man that robbed you?
[Witness complies].
A: I can’t say that’s the man that robbed me.

Q: Get right down in his face and tell us if that’s the man that robbed you?
[Witness walks over to defendant, puts his hands on his knees, and stares intently into defendant’s face].
BY THE WITNESS: Have I ever seen you before?
BY THE DEFENDANT: Yes, you have.
A: That’s him! That’s the man that robbed me!

Q: But you do wear glasses, don’t you?

Johnson was eventually acquitted, but he was acquitted in spite of the cross-examination rather than because of it. It might be helpful to review Professor Younger’s Ten Commandments of Cross-examination and see if you can determine how many Commandments young Mason violated in his cross exam. Then ask yourself: “How would I have conducted the cross-examination of this witness?”

CROSS-EXAMINATION IMPEACHMENT WITH SOCIAL MEDIA

Concession-Seeking and Impeachment with Facebook, MySpace, Google+ and Other Social Media

Social media can provide valuable ammunition for concession-seeking cross-examination and the contradiction technique explained in Cross-Examination Handbook. With thanks to Eric Goldman who has followed the appellate decisions around the country that have considered impeachment with information gathered from social media. The following are a couple attention-grabbing examples of those appellate decisions, revealing the effectiveness of the contradiction technique utilizing social media.

Boudwin v. General Ins. Co. of America

Boudwin v. General Ins. Co. of America, unpublished opinion, 2011 WL 4433578 (La. App. Ct. 9/14/11) was an appeal from a defense jury verdict in an auto accident case. At trial, two plaintiffs claimed physical disability and loss of enjoyment of life. The appellate court had no difficulty upholding the jury’s decision that plaintiffs were not entitled to any damages because “(t) record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31, 2008 accident.”

While both plaintiffs testified on direct that they were in pain after the accident. On cross, defense counsel cross-examined them with their Facebook pages. The court noted that Jessi conceded when faced with her entries that “she runs, or rather jogs, regularly to stay in shape, and even attempted to do an exercise program called P9OX with a friend, which she described as being ‘really tough.’...” The Court described cross of Lee in this way: “. . . Lee acknowledged several entries from his Facebook page where he reported frequently ‘working out’ and also playing sports such as basketball, tennis, ‘ultimate Frisbee,’ and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial,. . .”

Embry v. State

In Embry v. State, 923 N.E.2d 1 (Ind. App. 3/8/10), the defendant was convicted of felony domestic battery by beating his ex-wife and the Court affirmed the conviction. The defense in an effort to establish self defense cross-examined the ex-wife about statements she had posted on MySpace about the defendant prior to the alleged battery:

BY [DEFENSE]: ... Prior to Au-April 22nd, 2008 had you ever expressed or communicated in any way that you wanted your ex to die a slow painful death?
A I believe you're referring to my “My Space” ...
Q I'm not-I-no, I'm not referring to anything. I'm just asking you a simple question: if you'd ever expressed or communicated in any way that you wanted your ex-husband, Mr. Embry, to die a slow painful death?
A I see it right there on your desk.
Q Okay.
A It's my “My Space” blog.
Q Okay, did you say it?
A I typed it.
Q Okay. But the answer is, did you say it? I mean is that your communication.
A I typed it.
Q Okay. And did you ever express um, or communicate in any way that you wanted to be present and dance the cha-cha around his slow painful death?
A It's all there in the blog.
Q Okay. The answer's a simple yes or no. You said it; you've communicated it some way, did you?
A If you want to put that blog there, I ...
Q I'm just asking you a simple question.
BY COURT: Ma‘am, will ya just answer the question yes or no?
A Yes, I did.
Q Did you ever refer to Mr. Embry or communicate in any way that he was a worthless bag of monkey shit?
A Yes.
Q Did you ever refer to him as dog piss?
A Yes.
Q Did you ever refer to him as a worm puke stale crusty moldy inhuman horrible human oxygen sucking moron?
A Yes.
Q Did you ever communicate the desire, that because he's older and more stupid than you, he will die way before you do?
A I believe I said please assure me that it was possible that he would pass before me."

Get Cross-Examination Handbook for a complete explanation of the contradiction technique.