Wednesday, June 20, 2012


Cross-Examination of the Last Defense Witness - Dottie Sandusky

Today, the defense rested without calling the defendant Jerry Sandusky in what has been described as the “child-sex scandal that rocks Penn State.” So, let’s take a look at the cross of the defense’s last witness – the devoted wife Dorothy “Dottie” Sandusky.

Prosecutor Joseph McGettigan didn’t heed the admonition that you should never ask a “why” question on cross-examination during his examination of “Dottie” Sandusky. McGettigan asked if she could think of any reason that the witnesses who accused her husband of sexually abusing them or Mike McQueary, a witness who testified to seeing abuse had any reason that she could think of to lie about these accusations. Generally such an open-ended interrogatory question should be avoided because it turns the control over to the witness and the examiner is likely to get an unfavorable answer.

However, sometimes, such as in this case, the “why” question is appropriate for several reasons. First, the case against Sandusky is strong, with eight men saying that he abused them. Second, Dottie Sandusky, had a built-in apparent bias and could be shielding her husband. Third, her testimony directly conflicted with the accusers’ – she never heard a cry for help from the basement as testified to by one accuser. Fourth, the likelihood that she could advance a more damaging answer than her lawyers had already broached (they did it because they thought they might profit from a law suit against Sandusky) was low.

Given these circumstances, asking the “why” question was justified. And, the answer was helpful to the prosecution: “Would lie?" she asked. "I don't know what it would be for."

Friday, June 15, 2012


Argumentative Questioning - Then and Now

At the dawn of the Twentieth Century, the English barrister, James Ram, wrote a book entitled A Treatise on Facts as Subjects of Inquiry by a Jury. The work, which became quite popular in the United States as Ram on Facts, is available for download from the Internet Archive. In his book, Ram explored all aspects of proof at trial, including cross-examination.

When discussing cross-examination, Ram ventured his opinion of argumentative questioning: “It is not right, in a question to a witness, to address him by, or to apply to him, a name, which, in a common acceptation of it, implies dishonor or disgrace. In a question to him it is not right, and as it would seem not lawful to call him a spy, a character commonly of bad odor.” As an example of this point, Ram reproduced a cross-examination performed in an English court by an American lawyer. Edwin James of the New York bar was questioning an officer by the name of Rogers and was attempting to get the officer to admit that he had attended a public meeting as a spy.

Mr. James: Did you go there as a spy?
Rogers: I went by the direction of the Commissioners of Police to attend a public meeting there.
Mr. James: What did you go there for?
Rogers: To take notes of who were there, and what was said.
Mr. James: You went there as a spy, didn't you?
The Attorney General: It would be fairer for the witness, as well as to those who sent him, if you were to ask what his instructions were.
Mr. James: Well, what were your instructions? *** Did you go as a spy?
The [Court]: You had better get the facts from him, and you can draw any inference you please.
Mr. James: It is a plain English question, and I submit that I may ask it. *** The same question has been put before, as your lordships know, in state trials. I contend I am entitled to put the question, did you go there as a spy?
The [Court]: If an objection be taken, the point had better be discussed in regular form.
The Attorney General: I submit that my learned friend has no right to put a question, the affirmative answer to which would bestow an opprobrious name upon the witness, and upon those who instructed him. My learned friend has a right to inquire minutely into all that the witness has done or said —
The [Court]: And into all the directions he received.
The Attorney General: I was going to add, and into all and every direction that he received. But I conceive that he has no right whatever to put a question, that embodies his own description of something, that may or may not have taken place. I submit the question is altogether irregular, and contrary to the law and practice of the courts.
Mr. James: I contend that I am entitled to put this question. On Hardy's trial the question was put by Mr. Erskine in these terms,—" Then, in plain English, you went there as a spy?" and it was not objected to.
The [Court]: Then there was no decision.
Mr. James: I do not say that there was a decision, but that trial was presided over by the highest authorities. That question was not objected to by the then Attorney General, and no remark was made upon it by the judges.
The [Court]: But on the present occasion the question is objected to, and we are called upon to decide the point.
Mr. James: I submit that I am entitled to put the question. The witness may decline to answer it, if he pleases; that is another matter.
The [Court]: The question being objected to, I am of opinion that it is irregular *** on the ground that he is called upon to draw an inference from the facts. It will be open to Mr. James to denominate the witness as a spy hereafter if he think fit; but I am of opinion that he cannot ask the witness, 'Now, did you go as a spy?' He may ask under what directions he went, for what purpose he went, what he did when he was there, what report he afterward made to those who employed him; and those facts being ascertained, he may apply the term 'spy,' if he pleases, to the person who so acted. But I am of opinion, that the question, 'Then you went as a spy?' is not regular, and that it cannot be properly put.

In the modern American courtroom we would prefer the term “confidential informant” to “spy,” but the stigma of underhandedness would still attach. It is unlikely that the question “Were you operating as a confidential informant?” would draw an objection today, or that such an objection would be sustained; but the question can allow the witness to temporize.

Q: Did you go there as a confidential informant?
A: No, I went there [as an undercover operative] [as an interested citizen] [to find out what was going on] [because I was curious].
If you’re going to ask a witness questions in an attempt to paint a picture which the witness [or opposing counsel] contests, then you’re going to have rough sailing by simply asking a single question which carries all the negative implications in one statement:
Q: You drove while under the influence of alcohol to the extent your normal faculties were impaired, didn’t you?

Such a question is going to either draw an objection from opposing counsel or an argument from the witness. It is better to study the negative fact you are trying to establish and to break that negative fact down into its neutral components. Then string together a series of single questions for each of the neutral components. By the time you have gotten to the last question, you should have painted the negative picture with question to which neither the witness nor opposing counsel can object.
If you should inadvertently ask a conclusory question and meet resistance, don’t try to plow ahead as Mr. James did. Drop back and analyze the question, break it down into its component parts, and establish your fact by a series of unobjectionable questions:

Q: You chased him down the hall?
A: I didn’t chase him.
Q: He went down the hall?
A: Yes.
Q: He was going faster than a walk?
A: Yes.
Q: You went down the hall behind him?
A: Yes.
Q: You were going faster than a walk?
A: Yes.
Q: You had a knife in your hand?
A: Yes.
Q: He went into the bathroom?
A: Yes.
Q: He locked the door?
A: No, he didn’t.
Q: He closed the door?
A: Yes.
Q: You stabbed the door?
A: Yes.
Q: You stabbed the door seven times?
A: I only stabbed it twice.

At this point the prosecutor resisted the temptation to end his series of questions with “So you followed him down the hall at a high rate of speed with a knife in your hand, and when he shut himself up in the bathroom you stabbed the door, but you weren’t chasing him?”

Mr. James could have avoided an extended argument by simply breaking the “spy” question down into its component parts:
Q: You went to the meeting?
Q: You went there at the request of the police?
Q: You went there to learn what was being said?
Q: You planned to report what you learned to the police?
Q: You reported what you learned to the police?
Q: You told nobody at the meeting that you were a police officer?
Q: You told nobody at the meeting that you planned to report what you heard to the police?

This form of questioning can not only produce smoother sailing in your questioning, it can also make the point you are trying to make much more forcefully than if you put the point in a single question. Instead of this:

Q: You lied, didn’t you? [Objection sustained].
You can get this:
Q: You say you drank a six pack?
Q: The night you were arrested, didn’t you tell Officer Friendly you had only had two beers?
Q: It wasn’t true that you had only had two beers?
Q: You knew that what you told Officer Friendly wasn’t true?
Q: So you knowingly told Officer Friendly something you knew to be untrue?
This line of questioning will make the jury think “liar” without your having to suggest that the witness is a liar.

There is one more lesson to learn from James’ questioning of Rogers. The mere fact that something has been done before without objection does not make it unobjectionable. In other words, you cannot expect to have your objectionable conduct condoned because another lawyer at another time has engaged in that conduct and gotten away with it.

Friday, June 1, 2012


The Maxims of Cross-Examination in an Oscar Wilde Trial

The Marquis of Queensbury, believing that his youngest son was involved in an unhealthy relationship with Oscar Wilde, made every effort to separate the two. Queensbury’s attempts culminated in sending a note to Wilde addressed to “Oscar Wilde, posing as a somdomite.” Wilde responded by suing Queensbury for libel. In order to prevail in the lawsuit, Wilde had to prove that the statement was untrue. When Wilde testified as the prosecuting witness, he admitted to platonic relationships with a number of boys and young men, but denied that there was anything more to the relationships. At the conclusion of the direct examination, Wilde’s lawyer tendered him for cross-examination.
Edward Carson, counsel for Queensbury, stood and began questioning. In his hand he held Wilde’s birth certificate.

Q: You stated your age was thirty-nine? I think you are over forty. [Carson displayed the birth certificate to the witness]. You were born on 16 October, 1854?
A: I had no wish to pose as being young. I am thirty-nine or forty. You have my birth certificate and that settles the matter.

Q: But being born in 1854 makes you more than forty? [Forty-one, to be precise].
A: Ah, very well.

Carson then embarked on a cross-examination in which he attempted to show from Wilde’s writings that the author advocated romantic relationships between older men and younger boys. Wilde nimbly avoided and evaded the questions, refusing to give Carson a straight answer on any subject. Carson read extracts from the serialized version of The Picture of Dorian Gray which ran in Lippincott’s Magazine. In these extracts Wilde described older men having romantic feelings for boys. After each reading Carson questioned Wilde about the scenes:

Q: Now I ask you, Mr. Wilde, do you think that description of the feeling of one man toward a youth just grown up was of a proper or an improper feeling?
A: I think it is the most perfect description of what an artist would feel on meeting a beautiful young personality that was in some way necessary to his art and life.
Q: Then you have never known the feeling you describe?
A: No. It is a work of fiction.
Q: But let us go over it phrase by phrase. “I quite admit that I adored you madly.” What do you say to that? Have you ever adored a young man madly?
A: No, not madly. *** I have never given adoration to anybody except myself.

Carson questioned Wilde about several more lurid passages and received a series of flippant, evasive answers. He then questioned Wilde about a series of relationships Wilde had with penurious young men, each one of them culminating in Wild giving the young man extravagant sums of money. Wilde admitted that some of the men had tried to blackmail him, but claimed he gave them money out of pity or contempt rather than fear of exposure.

Wilde probably thought that he was doing a masterful job of deflecting and denying Carson’s questions, but with each deflection and each denial Wilde became more and more illogical. The Carson asked the series of questions which caused the illogic to reach critical mass.

Q: Do you know a young man named Walter Granger?
A: Yes.

Q: How old is he?
A: He was about sixteen when I knew him. ***

Q: Did you ever kiss him?
A: Oh, dear no. He was a peculiarly plain boy. He was, unfortunately, extremely ugly. I pitied him for it.

Q: Was that the reason you did not kiss him?
A: Oh, Mr. Carson, you are impertinent and insolent.

Q: Did you say that in support of your statement that you never kissed him?
A: No. It was a childish question.

Q: Did you put that forward as a reason why you never kissed the boy?
A: Not at all.

Q: Why, sir did you mention that this boy was extremely ugly?
A: For this reason. If I were asked why I did not kiss a doormat, I should say because I do not like to kiss doormats. I do not know why I mentioned that he was ugly, except that I was stung by the insolent question you put to me and the way you have insulted me throughout this hearing.

Q: Why did you mention his ugliness?
A: It is ridiculous to imagine that any such thing could have occurred under any circumstances.

Q: Then why did you mention his ugliness, I ask you?
A: Perhaps you insulted me with an insulting question.

Q: Was that a reason why you should have said the boy was ugly?

At this point Wilde found himself in an unusual situation. The witty conversationalist with the rapier sharp tongue who always had an insult or aphorism on the tip of his tongue was at a loss for words. He actually stammered and stuttered as he tried to get some sort of an intelligent answer to come out of his mouth. Although he attempted several different answers, he completed none of them. All the while Carson peppered him with “why” questions. Finally Wilde got out a coherent answer.

A: You sting me and insult me and try to unnerve me; and at times one talks flippantly when one ought to speak more seriously. I admit it.

Q: Then you said it flippantly?
A: Yes. It was a flippant answer.

Plaintiff’s counsel tried to repair the damage on redirect examination by reading a series of self serving letters, but this merely opened the door for Carson to ask Wilde about a number of lurid letters Wilde had authored. Wilde left the courtroom before the trial was over, and was not present when the jury returned its verdict exonerating Queensbury. This disastrous libel suit led to a series of criminal prosecutions which culminated in Wilde’s conviction of criminal offenses.

Carson made a strong opening by showing that Wilde had lied under oath about so simple a thing as his age, and then embarked on a series of questions which initially gave the impression that Wilde was too smart for him. But as Wilde artfully parried the questions and danced around the points, it became increasingly clear that he was not being candid. Carson patiently allowed Wilde to climb farther and farther out onto the limb, and then pounced when the limb broke under the weight of improbability.

It would have been easy to overlook the significance of Wilde’s flippant remark suggesting that he would never kiss an ugly boy, but Carson demonstrated that he had what every cross examiner needs—a good ear. Wilde served up a slowball over the center of the plate and Carson knocked it out of the ballpark. The maxim says you should never ask a witness why, but Carson had the insight to recognize that sometimes rules may safely be broken. Up to this point in the cross-examination, Carson had allowed Wilde to evade admissions, but he became insistent now. Carson repeatedly brushed aside the evasions and demanded “Why, why, why?” and Wilde had no good answer.

Although Carson’s cross violated several time-honored maxims of cross-examination, it exemplified a number of others:

“In cross-examination, as in the field of pugilism, a knockdown blow scored at the very outset often determines the contest.”

“Cross-examination is more often suicidal than homicidal.”

“Give the witness enough rope, and he just may hang himself.”