REDIRECT EXAMINATION

One of the ironies of being a public defender is that the public defender is often the last person to stand trial in a serious case. The process of putting the public defender on trial goes something like this: Stage 1: The defendant stands trial and gets convicted. Stage 2: The defendant receives a whopping sentence. Stage 3: The defendant’s conviction gets affirmed on appeal. Stage 4: The defendant files a post-conviction motion claiming ineffective assistance of counsel. Stage 5: The prosecutor takes on the role of defense counsel for, you guessed it, the public defender. [Memo to public defenders: Be kind to prosecutors—one may someday serve as your defense attorney].

Another irony of this process is that the attorney complaining about the “deficient” performance of public defender often has far less talent that the lawyer whose ability is being criticized. It was just such a situation which gave rise to a rather amusing incident during the evidentiary hearing on a post-conviction motion attacking the competency of a highly skilled assistant public defender. The defense attorney had conducted a rather spotty direct examination and tendered the witness for cross-examination without bringing out the most important aspect of the witness’s potential testimony. The exchange went something like this:

BY DEFENSE COUNSEL: No further questions, your honor.
BY THE COURT: Your witness, Mr. Prosecutor.
BY THE PROSECUTOR: No questions.
BY THE COURT: May the witness be excused?
BY DEFENSE COUNSEL: No, sir. I have a few more questions.
Q. Now, Mr. Tattler, going back to the incident in question, did you have occasion to tell the defense attorney about the exculpatory facts you described on direct examination?
BY THE PROSECUTOR: Objection, your honor, beyond the scope of the cross-examination.
BY THE COURT: There was no cross-examination.
BY THE PROSECUTOR: That’s exactly why the question is beyond the scope of the cross examination.
After a moment’s reflection, the judge got the point of the joke. He smiled and said:
BY THE COURT: Sustained.

The prosecutor, feeling quite smug, leaned back in his chair and waited to see if defense counsel could find the way to extricate himself from the procedural booby trap into which he had blundered. A long silence ensued as defense counsel analyzed his problem. Then he saw the way.

BY DEFENSE COUNSEL: No further questions of Timothy Tattler at this time, your honor.
BY THE COURT: You may step down, Mr. Tattler. Call your next witness.
BY DEFENSE COUNSEL: At this time, your honor, the defense calls Timothy Tattler.
The witness, who had not quite made it to the door of the court room, turned back around and resumed the witness stand.
Q. You are Timothy Tattler, the witness who just testified in this cause?
A. Yes, sir.
Q. Now, Mr. Tattler, going back to the incident in question, did you have occasion to tell the defense attorney about the exculpatory facts you described during your previous testimony?

The hearing then continued without incident. It was a rather petty joke, but the prosecutor took great pleasure in it. He could vividly remember the day when, as a rookie advocate, he had been the victim of that same joke played by a seasoned attorney. Perhaps someday this defense attorney would have the opportunity to play the joke on another young lawyer.

NOTE: The prosecutor successfully defended the honor of the maligned assistant public defender.

THE BALLAD OF THE BLIND VICTIM

A Poem by George R. (Bob) Dekle, Sr.

The victim came and took the stand
And then he lifted up his hand
And swore the truth he would recount
That he would give a full account
Of all the sins my client sinned
When he pretended to befriend
The victim at a local bar
And then got in the victim's car.
And struck the victim on his head
Then left him in the road for dead,
Relieved him of his worldly goods
And left him lying in the woods.

The prosecutor wiped a tear
And said “Dear victim, have no fear,
But in this courtroom look about.
If you see the robber, point him out.”
The victim looked both left and right
He searched the court with all his might.
He looked the jury up and down,
He scanned the courtroom round and round.
The court reporter felt his view,
He stared hard at His Honor, too.
He scanned my client, looked at me
And said, “I'm sorry I can't see
The man who struck me on my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

The prosecutor did not linger,
But at my client jabbed his finger,
“Look at that man right over there,
Study his face, his eyes, his hair.
That's the man there, isn't he?”
The victim answered “Yes, I see,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

The prosecutor, in frustration
Walked back over to his station,
“Your witness,” then he said to me,
And I could scarce suppress my glee
As on my hind legs I arose
And at the lectern took my pose.
“Dear witness, take a look about,
The entire courtroom please do scout.
Now tell me sir, if tell you can,
Do you see the evil man
Who struck you square upon your head
Then left you in the road for dead,
Relieved you of your worldly goods
And left you lying in the woods?”

“No, sir,” the victim said to me,
“That evil villain I can't see.”
His answer was like purest gold.
Its glitter made me very bold.
“Now look my client in the eye,
And tell me sir—and do not lie—if he's
the villain that we seek.
We want an answer, truly speak!”
The silence thundered all around
The victim did not make a sound.
Then slowly he looked up at me
And admitted, “Yes, I see,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

His words were good as finest wine,
They were so pleasing and sublime.
“Sir, do you think a closer view
Would be of any help to you?”
The victim mopped his sweaty brow
And said “I really don't see how.”
I had the victim on the ropes!
I dare not dash my client's hopes!
I must drive home the point again,
So I intoned, as if in pain,
“Please step down from the witness stand
So you can view at closer hand
And tell us true for once and all
If he's the man, sir, what's your call?”
The victim looked as if in pain
And said “I'll try it once again,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

'Twas then my heart began to race,
I said “Sir, get down in his face!
My client's fate hangs on the brink!
Tell us sir, what do you think?
Is he the man who held you up?”
The victim was a beaten pup.
But he did just as he was told.
And he walked weary, weak, and old
To stare my client face to face
And on his knees his hands did place.
His task was simple, all that he
Had to do was look and see
If my client struck his head
Then left him in the road for dead,
Relieved him of his worldly goods
And left him lying in the woods.

His eyes were squinted fast and hard
And then he said that fateful word
“Have ever I seen you before?”
And then the victim spoke no more.
My client looked him in the face
And once again my head did race.
(The Fifth Amendment guarantees
A right to silence if you please.
But some forget that precious right
And thereby add unto their plight).
My client said, in a dull roar,
“Yes, you've seen me once before.”
The victim nodded, satisfied
“This is the man I gave a ride,
The man who struck me on my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods!”

The experience a lawyer earns
And the lessons that he learns
Are sometimes bought at client's cost
And counted up in trials lost.
Sometimes your zeal needs mighty curbs,
And that's why lawyers have proverbs:
“On cross-exam, be circumspect,
Many a good cross is wrecked
By lawyers going overboard
After a good point is scored.
When once a fatal blow you score,
Ask not a single question more!”

FOOTNOTE: Despite this, Bob was able to get an acquittal.

ON CONFLICTS IN TESTIMONY AND CLIENT COOPERATION

Horace Rumpole, the fictional Old Bailey barrister, once said that he could win most of his cases if it weren’t for his clients. Some clients display a stubborn insistence upon ignoring your advice or otherwise undermining your efforts to help them. Sometimes, despite your best efforts on the part of your client, he will say or do something which undoes all your good work.

In a long ago drug trial, the testimony revealed that a confidential informant had purchased cocaine from the defendant under the surveillance of several law enforcement officers. Instead of immediately arresting the defendant, the officers allowed several weeks to go by before obtaining a warrant. Of course the defense was mistaken identity. The officers advanced the defense by being in hopeless conflict as to what the defendant was wearing. On cross-examination the defense attorney skillfully highlighted each conflict, hammering home the inconsistencies and causing the prosecutor himself to wonder about the credibility of the officers. One officer said the defendant was wearing a brown shirt. One said a green shirt. Another said the shirt was striped. One officer said the defendant was wearing tan pants. One said beige. Another said brown. One officer said the defendant was wearing brown shoes. Another said he was wearing sneakers. They could not agree on the description of a single item of the defendant’s clothing.

The prosecutor’s concern about the wide divergence in testimony deepened during final argument as the defense attorney eloquently argued the discrepancies, reminding the jurors that the judge would instruct them that “a reasonable doubt can arise from the evidence, the lack of evidence, or a conflict in the evidence.” The defense attorney had spun the conflicts into enough reasonable doubt for a dozen acquittals. As he sat listening to defense counsel, the prosecutor could see that the argument was connecting with the jury. They were leaning forward and listening intently. The prosecutor even saw one of the jurors nod as the defense attorney made a point. Unable to continue looking at the jury, the prosecutor allowed his eyes to wander about the courtroom. Before long, they fell on the defendant sitting alone at counsel table. The prosecutor did a double take and then studied the defendant intently. He was wearing a green and brown striped shirt. His pants were a color that could fairly be called beige, brown, or tan. The prosecutor looked down at the defendant's shoes; they were brown sneakers. The defendant was wearing the same clothing he had worn when he sold the drugs!

The prosecutor decided to work a comment or two on the defendant's dress into his rebuttal final argument. He would have to be circumspect in his remarks, however, because the clothing that the defendant wore to court was not in evidence. How might he comment on the defendant's courtroom attire without provoking a mistrial for commenting on facts not in evidence? The prosecutor decided to use the defendant's clothing as a non-evidentiary demonstrative aid. His closing remarks went something like this: "Ladies and gentlemen of the jury, my learned colleague has made much of the fact that one officer described the defendant’s shirt as brown, while another said it was green, and another said it was striped. He says this so-called conflict gives rise to a reasonable doubt about his client’s guilt. Could it be that the defendant on the night in question wore a green and brown striped shirt much like the green and brown striped shirt he is now wearing? Where is the conflict in testimony if that is the case? As for the conflict about brown shoes or sneakers, could the defendant have worn a pair of brown sneakers, much like the brown sneakers he wears today? Could .... " You get the picture. The jury did too. The prosecutor got his conviction without ever having to say, "Look, ladies and gentlemen of the jury, the defendant is either so arrogant or so stupid that he thinks we won't notice that he's wearing the same clothing he wore the night he sold the drugs." An excellent job of cross-examination and an eloquent final argument were set at naught by the client’s own actions. Perhaps defense counsel would be wise to add “dressing the client” to their pretrial checklist of things to do.

GALILEO AND A FATAL MISTAKE IN WITNESS PREPARATION

Cross-Examining Galileo

The dynamics of examining witnesses have changed greatly during the evolution of the modern criminal justice system, but some things never change. The neglect of witnesses to read their previous statements before giving testimony is a common contributing factor in the success of cross-examination, and this has been true for centuries.

In April of 1633, when Galileo was summoned before the Inquisition, he faced some difficulties not confronted by the modern defendant. He had no lawyer, he had no right to remain silent, and he stood in danger of being tortured if the Inquisitors didn’t like what he said. Despite the differences, Galileo’s performance before the Inquisition has lessons for modern witnesses.

Years earlier Galileo had gotten into trouble with the Inquisition for teaching that the earth revolved around the sun. In that prior proceeding, he had been ordered not to teach Copernicus’ theory that the earth revolved around the sun as a fact. He was told that he could, however, teach it “suppositionally” as an interesting theory. He did some lobbying of the Pope and got permission to print a book on Copernican theory with the proviso that he had to make it clear that the sun really revolved around the earth. The book was supposed to be printed in Rome, and it was supposed to be vetted by the authorities in Rome. He printed it in Florence, and the authorities in Rome never saw the book until after it was printed.

His “Dialogue on the Two Great World Systems” is a classic of ground-breaking science, but it was also a prime example of the old proverb “Given an inch, some people want to take a mile.” Despite his pleas of ill health, he was ordered to appear before the Inquisition in Rome. Remarkably, we have a transcript of his testimony before the Inquisition.

In an exchange which began like a cross between a police interrogation and a prosecutorial cross-examination, Galileo did what many criminal defendants do today. He dug a hole for himself with his tongue. What follows is an extreme abridgment of Galileo’s testimony highlighting his missteps. We have recast the questions to conform with modern procedure, but the answers come straight from the transcript.

Q: If you were shown a copy of the “Dialogue” would you be able to recognize it?
A: I hope so. I hope that if the book is shown to me I shall recognize it. [The book was produced and Galileo examined it]. I know this book very well; it is one of those printed in Florence; and I acknowledge it as mine and that I wrote it.

Q: Did you write every word of that book?
A: I acknowledge all it contains as having been written by me.

Q: Were you summoned before the Inquisition in 1616?
A: In 1616 I came to Rome of my own accord.

Q: What was decided at that time?
A: It was decided by the Holy Congregation of the Index that this opinion, taken absolutely, is repugnant to Holy Scripture and is to be admitted only suppositionally, in the way that Copernicus takes it.

Q: Were you informed of the decision?
A: I was indeed notified of the said decision, and by whom.

Q: Did you receive permission to write the book?
A: After the above-mentioned injunction I did not seek permission to write the above-mentioned book which I have identified because I did not think that by writing this book I was contradicting at all the injunction given me not to hold, defend, or teach the said opinion, but rather that I was refuting it.

It is hard to characterize this statement as anything but a lie. There is no possible way to read Galileo’s book as touting the proposition that the sun goes around the earth, but the Father of Modern Science tried mightily to convince the Inquisitors that the book said something it didn’t. Unfortunately for Galileo, the Inquisitors had done something that Galileo apparently hadn’t done lately, they had read the book. As the questioning continued, Galileo continued to display a rather flexible attitude towards the facts, especially as it related to his evasion of explicit instructions about how, when, and where to publish the book. The questioning ended with Galileo saying that “with the said book I had neither held nor defended the opinion of the earth’s motion and sun’s stability; on the contrary, in the said book I show the contrary of Copernicus’s opinion and show that Copernicus’s reasons are invalid and inconclusive.”

If this had been a modern courtroom, the Inquisitor would have then embarrassed Galileo by calling his attention to the specific passages in the book where Galileo quite definitely said the earth went around the sun, and Galileo’s credibility would have been shattered before the jury. But there was no jury, there was just a panel of very intelligent, highly literate Inquisitors who had done something that Galileo hadn’t done lately—they had read the book.

At the conclusion of the hearing two things happened. The Inquisitors reported that Galileo was lying, and that he indeed taught that the earth revolved around the sun, and Galileo went and re-read his book. Galileo asked to go back before the Inquisitors and explain that he wasn’t lying, that it was all a big mistake. He was allowed to do so. He told the Inquisitors that when he first appeared before them, it had been three years since he’d read his book. He said he went back and re-read the book as soon as he could after the hearing and found to his horror that “it appeared to me in several places to be written in such a way that a reader, not aware of my intention, would have reason to form the opinion that the arguments for the false side, which I intended to confute, were so stated as to be convincing because of their strength. . . . If I had to write out the same arguments now, there is no doubt that I would weaken them in such a way that they could not appear to exhibit a force which they really essentially lack.” It was all a big mistake, he didn’t mean to do it, and could the Inquisitors please make some allowances for what Galileo called his “vain ambition, pure ignorance, and inadvertence.”

This defense, which is sometimes called the “pure heart, empty head” defense, might have worked if Galileo had made it on his first appearance before the Inquisition. He should have read his book before getting on the witness stand. Galileo made two more appearances before the Inquisitors trying to sell his “pure heart, empty head” defense, but the Inquisitors would have none of it. The record of his forth appearance states that “He was told to tell the truth, otherwise one would have recourse to torture.” Galileo never abandoned his “pure heart, empty head” defense, but he was in full retreat on his theory that the earth revolved around the sun. Apparently the Inquisitors were satisfied with his recantation of the Copernican theory. They didn’t torture him, but he did spend the rest of his life on house arrest.

The lesson is clear. Before putting any witness on the stand insist that the witness re-read any previous statements he has made.

THE L.I.E. PROCEDURE FOR CROSS-EXAMINATION

As the prosecutor sat in his office preparing for his upcoming murder case, the receptionist buzzed him and said that the defense attorney was in the lobby and wanted to see him. The prosecutor had the defense attorney ushered in and saw that the defense attorney was carrying a brown paper bag. Placing the bag on the prosecutor’s desk, the defense attorney said “Here is the weapon.” The prosecutor didn’t have to ask which weapon. One glaring weakness in the upcoming case was the inability to produce the murder weapon. The authorities had fruitlessly searched for the weapon high and low, and now on the eve of trial the defense attorney was handing the weapon over to the state. What was going on?

The prosecutor summoned an investigator to take charge of the weapon, and the bag remained untouched until the investigator arrived. There, in the presence of both the prosecutor and the defense attorney, the investigator plunged his gloved hand into the bag and pulled out a Smith and Wesson revolver. The prosecutor immediately thought “That’s not the weapon,” but he held his peace.

The case involved a husband who had grown tired of his wife and decided that murder was cheaper than divorce. He reported her missing, and approximately two weeks later her decomposing body had been found in the woods a few miles from their home. The back of the victim’s head had been caved in by some long, slender blunt object, and the prosecutor strongly suspected that the object was a dumbbell handle. When the defendant’s home had been searched, he had been found to have a full set of free weights, but only one dumbbell. Because a dumbbell handle is a long, slender blunt object and because dumbbells come in pairs, the prosecutor inferred that the defendant had used the dumbbell handle to kill his wife and had afterward disposed of it. The chief witness against the defendant was a rather disreputable character whom the defendant had recruited to help dispose of the body, and thus far in the case the defendant had disclaimed any knowledge of how his wife died. The prosecutor had anticipated that when the case came on for trial the defense would try to shift suspicion from the defendant to the witness.

After the defense attorney left, the prosecutor studied the revolver intently. It was a .38 caliber Model 14 with a full underlug which made the barrel thick and heavy. Maybe it was the murder weapon after all. If the defense was going to represent it as the weapon, why argue with them? Despite his belief that the true murder weapon was the missing dumbbell handle, the prosecutor decided to accept the defense representation that the revolver was the weapon. What did this development mean? Sherlock Holmes might call it “quite a three pipe problem,” and Hercule Poirot would certainly say it called for the exercise of his “little grey cells.” After consulting his “little grey cells,” the prosecutor thought he knew the answer. The defendant was going to testify at trial, and he was going to claim that he killed his wife in self defense. A self defense story would be weakened by a cross-examination on the whereabouts of the weapon, so the defense produced the weapon.

Now, how could the prosecutor identify and authenticate the weapon? Call the defense attorney? The defense would move to quash the subpoena and the judge would probably grant the motion. If the judge denied the motion there would be an interlocutory appeal, and a case which had been pending for two years would suffer another lengthy delay. If the appellate court ruled in the state’s favor, the defense attorney would certainly move to withdraw and the judge would almost certainly grant the motion. There would be even more delay as the new defense attorney got thoroughly familiarized with the case. The case might hang on for another two years or more before it could be reset for trial. Calling the defense attorney was out of the question. Besides, the prosecutor thought he knew a better way to identify and authenticate the weapon.

The trial went exactly as the prosecutor expected. The defendant testified that his wife viciously attacked him with his own handgun, and that he disarmed and killed her in self defense. In anticipation of just such testimony, the prosecutor had already rehearsed his cross-examination. He had enlisted the aid of another prosecutor in the office to play the role of the defendant, and he had repeatedly cross-examined his colleague. This preparation paid substantial dividends, and the defendant did not do nearly as well on the real cross as his counterpart had done on the practice cross-examinations.

The cross-examination began with the prosecutor marking an item for identification and showing it to the defendant:

Q: This is the gun you killed her with, isn’t it?
A: Yes.

Up to this point, the prosecutor had never mentioned the firearm and had offered nothing in the way of evidence to try to identify the murder weapon. The cross-examination could not have begun more dramatically, and the well-rehearsed questioning which followed completely destroyed the defendant’s credibility.

This is cross-examination exemplifies a process sometimes called the L.I.E. Procedure:
L. Learn the facts of your case.
I. Identify the lie that the defendant must tell in order to try to defeat your facts.
E. Engineer a cross-examination designed to exploit the illogic, impossibility, or improbability inherent in the lie.

WITNESS MELTDOWN UNDER CROSS IN CASEY ANTHONY CASE

Jeff Ashton’s book about the Casey Anthony case entitled Imperfect Justice: Prosecuting Casey Anthony provides an insightful discussion of the case that captured the attention of people across the nation. I was eager to read the book not only out of curiosity (how in the world did the jury acquit her?) but also because I had gotten to know Jeff (pictured here) when he served repeatedly on the faculty at the National College of District Attorneys in Columbia, South Carolina where I worked for six years. Jeff came to the National Center to teach prosecutors from across the country. I came to know him as a talented instructor and highly respected trial lawyer. His book proves him to also be a talented writer.

What can be learned about cross-examination from the Casey Anthony case? First, when you make a witness a centerpiece of your case by placing him upfront as your leadoff witness, make sure the witness is bulletproof and won’t meltdown on cross-examination. The dangers of selecting a problematic lead-off witness as illustrated by the Casey Anthony case can be found in a related article.

The second point that is vividly illustrated by the Anthony case is that a witness’s anger can be turned to the cross-examiner’s advantage. When the prosecution chose George Anthony, Casey Anthony’s father, as the first witness in the state’s case in chief, it was well aware that the defense would allege that George (pictured here) molested Casey. Beyond that the team knew that defendant Casey Anthony had told therapists that George killed Caylee, his granddaughter by Casey Anthony.

While the prosecution undoubtedly tried to prepare George Anthony to neither lose his temper nor try to outwit defense counsel during cross, that effort failed. Jeff Ashton’s account of the cross describes how pretrial preparation on occasion fails to deter a witness from jousting with the cross-examiner, how an aggressive cross can anger a witness and how painful it is to sit by helplessly watching a meltdown. Ashton describes what happened to George Anthony on cross-examination in this way:

“Rather than saying, ‘No, it didn’t,’ (when defense counsel Jose Baez asked George about the condition of a gas can when it was returned to him) and staying consistent with what he’d said to me only an hour or so before, George started to be difficult with Baez, answering his questions with questions for the sole purpose of frustrating him.

“This was not helpful to our case. George must have hated Jose, particularly because of the latest allegations. I think George may have believed that it had been Baez’s idea to accuse him of abusing his daughter. . . Regardless, one thing I was sure of was that Baez knew how much George disliked him and used it to his advantage. Baez probably wanted the jury to see George’s hostility, and George took the bait. He was not bright enough to read what was happening. I wanted to say, ‘George, just stop playing games, just answer the question,’ but I couldn’t. I’ve always wondered if on some subconscious level George was trying to look guilty. Maybe this was his way of helping Casey. I really didn’t think so, but I wondered. For someone who was innocent, he had a way of making himself appear suspect. I didn’t think it would seriously hurt our case, or lend any real credence to the defense’s baseless accusations, but I knew this was not the face of George that we on the prosecution team wanted to project.” (emphasis added)

Turning a witness’s anger to the cross-examiner’s advantage can be an effective technique that reveals the truth. Unfortunately, it can also be a tactic that leaves a false impression.

DRAGNET CROSS-EXAMINATION

On the old TV series Dragnet, Sergeant Joe Friday wanted his witnesses to tell him “Just the facts, ma’am, nothing but the facts.” This objective is as important on cross-examination as it was to Sergeant Friday. On cross-examination, you want just the facts, and you want your facts in small doses. One of the basic maxims of cross-examination is to limit each question to one fact. The main reason for asking one-fact questions is to control the witness. Each fact you add to your question gives the witness another chance to disagree with you and either avoid making the damning admission or mask it in a torrent of words.

Q: When you were walking down the sidewalk, you saw your brother stab the man, didn’t you?
A: There’s not a sidewalk on that road.
Or
A: The road doesn’t have a sidewalk, so I really wasn’t walking down the sidewalk when I saw the event.
Even when you limit your question to one fact, you can provide the witness with an out by including adjectives or adverbs:
Q: You were looking closely at the two men when you saw your brother stab him, weren’t you?
A: I wasn’t looking closely at anything. As a matter of fact, I wasn’t paying that much attention.

One trial advocacy instructor teaches his students to avoid this problem by omitting all adverbs and adjectives and trying to limit each question to a five word declaratory statement coupled with a tag question:

Q: You saw the stabbing [declaratory statement], didn’t you [tag question]?
Sometimes, however, even the shortest questions can be problematical because facts can be complex. Conclusions can often be expressed with a single word, and these single words can appear on the surface to be facts. Take as an example the following question asked of a young lady who claimed she had accidentally stabbed her boyfriend in the groin while she was slicing sausage:

Q: You chased him down the hall, didn’t you?
A: I didn’t chase him.

The “problem” with this question is that the term “chase” describes a complex fact. A number of component facts must be true in order for a chase to have occurred. The prosecutor in this situation realized that the defendant would be hard pressed to deny each of the component facts which made up the complex fact that she had chased her victim. The examination followed something like this:

Q: He went down the hall?
Q: You went down the hall?
Q: You were behind him?
Q: He was not walking?
Q: He was moving fast?
Q: You were moving fast?
Q: You had a knife?
Q: It was in your hand?
Q: He went into the bathroom?
Q: He closed the door?
Q: You stabbed the door?
Q: You stabbed it more than once?
Q: He climbed out the bathroom window?

She readily agreed to each of these component facts, and the prosecutor decided not to ask one final question: “But you weren’t chasing him?” In this particular case, the questions concerning the component facts worked just as well after the question about chasing, but in most cases you will be dealing with more complex facts, and the component questions should come first.

Take the example of another case where a gentleman whom we shall call Michael Malefactor claimed that he accidentally shot Victor Victim in self defense. The prosecutor wanted to show that the killing was intentional, but knew that it would be futile to ask “You meant to kill him, didn’t you?” Instead, he constructed a series of questions designed to get the defendant to admit each of the component facts which, taken together, established the complex fact that the killing was intentional.

The questioning went something like this:

Q: After he hit you, you went inside?
Q: You went to the bedroom?
Q: You got your shotgun?
Q: You broke the breach on it?
Q: You stuck a shell in it?
Q: You closed the breach?
Q: You went out on the porch?
Q: You raised the gun to your shoulder?
Q: You cocked the hammer back?
Q: You pulled the trigger?
Q: And you killed your good friend, Victor Victim?

Each of these questions elicited an answer of “yes” except the multi-fact “You raised the gun to your shoulder?” The defendant said he didn’t know whether he raised the gun to his shoulder or shot from the hip. Whether he shot from the hip or the shoulder, it was clear that he shot intentionally.

This type of questioning with short, one-fact questions can be powerful if you remember to ask for simple facts which the defendant cannot deny without losing credibility in the eyes of the jury. It is important, however, that you do not shoot from the hip. You must prepare your cross-examination as carefully as Michael Malefactor prepared to shoot his victim.

THE CROSS-EXAMINATION THAT CHANGED HISTORY

Modern presidential debates are really quite laughable affairs when compared to the prototypical series of campaign debates. The Lincoln-Douglas debates of 1858 were actual debates and not carefully stage-managed opportunities to disgorge prefabricated talking points. The two men made arguments to their audiences in courtroom fashion with one party getting to open and close the argument. They alternated the first speaker, with Douglas getting to open and close in the first debate at Ottawa, and Lincoln opening and closing in the second debate at Freeport. Thereafter they took turns going first until the series of debates was concluded.

One of the hotly contested issues of the Lincoln-Douglas debates was the Supreme Court’s Dred Scott opinion. Douglas correctly believed Lincoln’s opposition to slavery would render him vulnerable on this issue. Douglas therefore composed seven questions which he challenged Lincoln to answer. When Douglas asked these questions at the first debate held in Ottawa Lincoln ignored them, and Douglas made political hay from Lincoln’s silence. Lincoln decided to take up Douglas’s challenge at the debate held in Freeport, and Lincoln’s response changed the course of American history. Frederick Trevor Hill, in his book Lincoln the Lawyer, gives a concise account of the Freeport debate:

“I will answer these interrogatories” announced Lincoln, *** “upon condition that he [Judge Douglas] will answer questions from me not exceeding the same number. I give him an opportunity to respond.”

No reply came from his adversary, and the vast audience at Freeport waited the outcome with a breathless interest which the keen jury lawyer instantly interpreted. “The judge remains silent,” continued Lincoln, impressively. “I now say I will answer his interrogatories whether he answers mine or not; but after I have done so, I shall propound mine to him.” Another breathless pause greeted this resistless challenge.***


[H]aving shown that he could in this way technically defeat his opponent's object, he instantly waived the form of the questions and replied to [the questions] one after the other as fairly and frankly as anyone could desire; and, having done so, he propounded four counter-questions which proved to be the most fatal “cross-examination” or counter-questioning in history. All the inquiries were adroit, but it was the second which displayed Lincoln as a master of interrogation.

“Can the people of the United States Territory” he asked, “in any lawful way, against the wish of any citizen of the United States, exclude slavery from its limits prior to the formation of a State constitution?”

The answer to this question required Douglas to interpret the Dred Scott decision. If he replied in the negative, the people of Illinois would repudiate him, because they would not countenance the idea that the mischief had been done and that slavery had already been forced upon the Territories. If, on the other hand, he answered that the Territories were still free to choose or reject slavery, he would have to explain away the Dred Scott decision, which guaranteed protection to slave property in the Territories as a constitutional right; and this would displease the Southern Democracy which was then listening to his every word to determine whether he was or was not a safe Presidential candidate.

Hill reports that Lincoln and his handlers had a spirited debate about whether Lincoln should take this tack. Loosely worded or not, Douglas’s questions were deadly. If Lincoln honestly answered Douglas’s questions and Douglas gave plausible answers to Lincoln’s, Lincoln’s campaign for the Senate was dead.

The Republican politicians of Illinois were not so astute as Douglas; still they foresaw that he would give a plausible answer to the question which would satisfy the local voters, and they begged Lincoln to withdraw the inquiry. But the far-sighted lawyer who framed it was deaf to their entreaties. “Then you will never be senator!” was the angry warning of one of his advisers. “If Douglas answers,” responded Lincoln calmly, “he will never be President.”

Things turned out precisely as the far-sighted Lincoln and his near-sighted handlers predicted. Hill tells us:

The fatal question was therefore left as Lincoln had phrased it, and at the first opportunity Douglas answered by stating that the Territories were still free agents. They could exclude slavery despite the Dred Scott decision, he explained, simply by adopting local police regulations so hostile to slavery that no slave-owner could enjoy his property within their boundaries.

As soon as he had uttered it, Douglas must have seen that his answer involved a gross blunder in law; but if he had any doubt on the matter, Lincoln speedily dispelled it [in his reply speech]. How could the constitutional right of peaceful enjoyment of slave property guaranteed in the Dred Scott case be canceled by police or any other hostile legislation? he demanded. Any such ordinance or law would be contrary to the constitution and absolutely void. Either Judge Douglas's answer or the doctrine of the Supreme Court was bad law, for the one was inconsistent with the other.

But, illogical as it was, this fallacy caught the popular fancy, and Douglas, seeing that it satisfied his constituents, held to it and was elected to the Senate. Nevertheless, as Lincoln anticipated, his blunder in law cost him the Presidency, and not long afterward Judah Benjamin, one of the most ardent and able representatives of the South, arraigned him as a renegade and traitor.

“We accuse him for this,” he thundered: “that having bargained with us upon a point upon which we were at issue, that it should be considered a judicial point; that he would abide the decision; that he would act under the decision, and consider it a doctrine of the party; that having said that to us here in the Senate, he went home, and, under the stress of a local election, his knees gave way; his whole person trembled. His adversary stood upon principle and was beaten; and lo, he is the candidate of a mighty party for the Presidency of the United States. The senator from Illinois faltered. He got the prize for which he faltered; but the grand prize of his ambition to-day slips from his grasp because of his faltering in his former contest, and his success in the canvass for the Senate, purchased for an ignoble price, has cost him the loss of the Presidency of the United States!”

Thus two years after Lincoln's question was put and answered Douglas was repudiated by his Southern friends, the Democratic party was split, three candidates instead of one were nominated against the Republicans, and the lawyer whose skill had precipitated this result was triumphantly elected at the polls.

The full text of the Freeport debate can be read in Chapter Six of the Illinois Historical Society’s volume, The Lincoln-Douglas Debates, which can be downloaded from the Internet Archive at: http://archive.org/details/lincolndouglas2184linc

ABRAHAM LINCOLN AS A CROSS-EXAMINER

Frederick Trevor Hill was one of the first Lincoln biographers to write a book exclusively about Lincoln’s legal career. His work, Lincoln the Lawyer, which was published in 1912, contains a chapter entitled “The Cross-Examiner,” in which Hill assesses Lincoln’s abilities. Hill had this to say:

Cross-examination makes greater demands upon a lawyer than any other phase of trial work, and it has been rightly termed an art. To succeed in it the practitioner must be versed in the rules of evidence; he must be familiar with all the facts in his case, and keep them continually in his mind; he must think logically, be far-sighted, tactful, and a keen judge of human nature. All these qualities Lincoln possessed to an unusual degree, and, in addition, he exerted a remarkable personal influence upon every one with whom he came into contact. Men who were openly opposed to him became fascinated when they met him, and few ever retained their hostility. This result was effected without any seeming effort on his part, and Lincoln was singularly free from all the arts and graces, natural or cultivated, which are usually associated with personal charm. He was direct, simple, and unaffectedly frank, and the conclusion is irresistible that he was endowed with psychic qualities of extraordinary power. Nothing except this can properly explain his wonderful control of witnesses and juries, and every experienced lawyer knows that strong individuality, commanding presence, and personal magnetism are essential factors in the equipment of all great cross-examiners. More than one man has described the effect of Lincoln's eyes by saying that they appeared to look directly through whatever he concentrated his gaze upon, and it is well known that during his frequent fits of abstraction he became absolutely oblivious to the bustle and confusion of the court-room and saw nothing of the scene before him.

But although there was something mysterious in Lincoln's personality which played an important part in his success as a cross-examiner, his mastery of the art was acquired in the only way it can be acquired, and that is by constant, daily practice in the courts. He was a natural logician, and by slow degrees he cultivated this gift until he could detect faulty reasoning, no matter how skillfully it was disguised. In almost every instance he saw the logical conclusion of an answer long before it dawned upon the witness, and was thus able to lead him without appearing to do so.

Hill’s book is still in print, but the Internet Archive has a free downloadable version at: http://archive.org/details/lincolnlawye00hill. Interestingly, Hill states that Lincoln’s greatest coup on cross-examination did not occur in a trial. It came during the Lincoln-Douglas debates, and it quite likely changed the course of U.S. history. In a later post, we will discuss this cross-examination.

SANDUSKY TRIAL: ASKING THE “WHY” QUESTION ON CROSS

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."

AGGRESSIVE QUESTIONING ON CROSS-EXAMINATION

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.

LESSONS FROM THE CROSS-EXAMINATION OF OSCAR WILDE

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.”

LEARNING WHAT NOT TO DO ON CROSS-EXAMINATION

Law Students Watch Horrible Cross-Examinations

Horrible cross-examinations are ubiquitous. Every day of the court week, they take place on every floor of the courthouse. Seeing is believing, understanding and knowing what not to do.

For the first time, I added to my Seattle University Law School Comprehensive Trial Advocacy course a requirement that the students spend a day watching a trial and write a report on what they observed and learned. The students went to different courts – federal, state and municipal. They reported on the skillfulness that some lawyers displayed and the ineptitude of others. Their experiences in observing lawyers at work drove home points covered both in their class assigned readings, lectures and discussions about cross-examination. Here are some of the students’ observations and these are typical.

Student Colin K. - Know How to Impeach Under the Evidence Rules

Student Colin K. reported on his observations as follows: “During a cross-examination of a county commissioner by plaintiff’s attorney, the defense attorney was able to use the rules of evidence to almost completely derail his opposing counsel. Plaintiff’s attorney was being very rude to the witness, and was obviously trying to trip her up about something. The conversation involved the county’s budget and budget cuts. Plaintiff’s attorney brought up the commissioner’s depositions, and (he) was attempting to impeach her. However, it seemed that he was summarizing what she said in her deposition. The defense attorney objected to improper impeachment. This obviously irked the plaintiff’s attorney, who attempted to correct his mistakes. Defense attorney continued to object, and the objections continued to be sustained. At one point, plaintiff’s attorney had to read directly from the deposition, was red in the face, and argued directly to opposing counsel. By the end of the cross, it didn’t seem he was able to impeach the witness at all, and the jury seemed completely confused. I was surprised to see this from such an experienced litigator.”

Student Amanda L. – Alienation of the Jury’s Affections

Student Amanda L. reported on her observations as follows: “Ford’s cross-examination of Mr. C______ was not particularly effective. Rather, the way in which Ford’s attorney conducted cross turned the attorney into a very unlikeable character who seemed to embody everything society dislikes about attorneys. While it is true that, finally, at the end of his cross, the attorney got the answer he was digging for—that just a half a second difference could have changed the speed at which the collision occurred, putting it over 8 mph—the answer was achieved at a great cost to the attorney’s rapport with the jury. The Ford attorney made Mr. C______ do hand calculations over and over again while the jury waited, bored and impatient, and, it appeared to me, sympathizing with Mr. C______ and hating the Ford attorney.

The Ford attorney’s cross-examination of the second witness, David H_____, operations directors of the repair shop that repaired the Mustang in a previous collision, was largely the same. The Ford attorney tried to cover too many topics, tried to box the witness into a corner that didn’t make any sense, and, all the while, seemed a proper jerk harassing a nice guy, Mr. H____. “

Student Kevin M. – Minutia and the Interrogatory Question

Student Kevin M. attended the same trial as Amanda L. and reported on cross of a later witness Mr. H____ by the Ford attorney. Student Kevin M. wrote: “Similar to his strategy with C_____, the attorney for Ford was extremely rude to H____ during cross examination. During direct, H____ testified that he had never met any of the attorneys or plaintiffs prior to the law suit. Ford’s attorney pointed out that H____ had indeed met one of the plaintiff’s attorneys prior to trial. The attorney’s tone was completely condescending, and he acted like he just exposed H____ as a liar. The disputed point was extremely minor; therefore, Ford’s attorney came off looking like a jerk.

“One particularly devastating blow to Ford’s attorney happened when H____ mentioned the Ford Mustang’s second accident, the accident of this case. Ford’s attorney responded aggressively, ‘Oh, so how do you know there was a second accident?!’ H_____ responded, ‘Well, that’s how the young lady over there lost her eye.’ The courtroom fell silent for a long moment, and I think the attorney for Ford realized he was digging himself a grave.”

Conclusion

It was a treat to read the observations of these novices. They reaffirmed that there is no better teacher than experience. From their observations, these students will long remember what not to do when conducting cross.

HONG KONG CROSS-EXAMINATION

A Barrister at Work

The day before yesterday, I was in Hong Kong. I broke away from my travel group to make a visit to the High Court. What started as a tourist’s brief detour ended up giving me opportunities to watch a skilled Barrister’s cross-examination and to visit with that Barrister.

A high profile murder trial was in session in Courtroom 24 of the High Court and as luck would have it I arrived just when the prosecutor was cross-examining the defendant. In essence, the defendant, a taxi driver, claims that he got in fight with the woman victim, strangled her, but never intended to kill her. He first said he thought she was unconscious from the strangulation but later changed his story at trial to say that he thought he accidentally had strangled her to death. In either event, he then dumped her body in the river. As it turned out this case is front page news in Hong Kong.

Barrister Audrey Campbell-Moffat’s (pictured here during a break in the murder trial) cross-examination employed many of the techniques described in Cross-Examination Handbook. Through the witness, Campbell-Moffat told the prosecution’s story that the defendant was angry at the victim because she had taken up with a new boyfriend and was breaking off any relations with the defendant. Using the concession-seeking method, Barrister Campbell-Moffat got the defendant to admit his anger and facts that made his story implausible, such as the defendant’s description of how the victim removed her tight jeans and knickers (not a word we use often) did not jibe with the condition of pants and knickers when they were found at the scene.

Barrister Campbell-Moffat was exceedingly polite in the British fashion, addressing the judge as “My Lord” and apologizing to the court for directing the judge and opposing counsel to the wrong photograph and so on. She boxed the defendant into a corner and then gave him a chance to explain away the illogical position he had taken. The vestiges of the British Court – wigs and robes for both the judge and counsel – were present.

Audrey was kind enough to invite me to join her for lunch in the room set aside for counsel. Over lunch, I learned about her prior experience as a Barrister in England and how she and her husband, also a lawyer, moved to Hong Kong to become permanent residents. Her full biography can be found here. She explained that there were only seven jurors because that was enough. Sometimes they may have nine. Like any good trial lawyer, she was able to tell me whom she believed would be the foreperson and how she thought the jurors were leaning. When I asked why the judge jumped in so often to ask follow-up questions, she explained that she has had prior experience trying cases with the judge and he felt comfortable knowing that she would be fine with the interjections. She explained that she had not asked accusatory questions because she knew the judge well enough to be able to gage that it was not time to take a more aggressive approach.

All in all, this experience of observing a talented Barrister conduct a cross and visiting with her afterwards were highlights of the trip.

OHIO PROSECUTORS AT SPRING TRAINING

John Murphy’s Spring Training Camp

This week I was in Columbus, Ohio at the Ohio Prosecuting Attorney’s Association Spring Training. Pictured here in the ballroom of the Sheraton Columbus Hotel during a break in the training is John Murphy. John Murphy is the Executive Director of OPAA, and he is the second most senior head of a state prosecutor association in the country, having held the title of Executive Director for well over two decades. He not only orchestrates the prosecutor training along with Steve Hall but also works toward the passage of just state laws.

John Murphy for his career has worked in pursuit of OPAA’s mission statement: “The Ohio Prosecuting Attorney’s Association assists county prosecuting attorneys to pursue truth and justice as well as promote public safety.” One portion of my presentation was on cross-examination, but also it was an opportunity to discuss prosecutorial ethics. The American prosecutor professionalism portion explored the history of the American prosecutor, the prosecutor’s role and functions as well as how to avoid professional responsibility danger zones. It’s always a delight to speak with the only lawyers who as representatives of all the people can truly say that their job is to seek and do justice.

TRUISMS FOR CROSS-EXAMINATION

David Paul Jones’s Rules of Cross-Examination (Jones was a British barrister who wrote a century and a half ago)

1. Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions--all the soul--is there.
2. Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The mental reservation of the witness--is often manifested in the tone or accent or emphasis of the voice.
3. Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.
4. An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth.
5. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.
6. Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game--partial and temporary success may otherwise end in total and remediless defeat.
7. Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.
8. Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.
9. Thus, as you rise to cross-examine a witness, you should be armed with the skill to adopt the style required for this particular witness and jury, the technique to search out the truth, the knowledge of guidelines that have developed over the centuries, and, most important, the wisdom to discern the proper combination of style and technique you need to serve well the consummate role of the cross-examiner--the truth giver.

CROSS-EXAMINATATION TO EXPOSE A FAULTY MEMORY - QUEEN CAROLINE’S TRIAL

Examination on Collateral Matters

The divorce case of Queen Caroline, heard in 1820 by the House of Lords (pictured here), is a landmark case for a number of reasons, not the least of which was the fact that the trial had major implications not only for legal procedure but also for the continued existence of the Royal Family in England. At the time it was feared that the wrong verdict might plunge the country into civil war.
It seems that misbehavior in the Royal Family is not a modern phenomenon. It goes back at least as far King George III’s eldest son, who eventually became George IV. The younger George’s sexual escapades and other sundry misbehaviors are the stuff of legend. He entered into an arranged marriage with Princess Caroline of Brunswick and hated her from the moment he laid eyes on her.
After ascending to the throne, George IV decided he would be able to rid himself of his wife by charging her with adultery on the bought-and-paid-for-testimony of fired servants and other enemies of the Queen. His chances of winning looked rather good, because two of the five judges sitting on his case were his brothers. The trial provoked massive demonstrations by the London mob in support of the Queen, and she was ably defended by Lord Brougham, a barrister who was a masterful cross examiner and also a powerful orator.
A livery servant named Majocchi was one of the key witnesses against Queen Caroline. Majocchi testified that he witnessed the queen’s adulterous behavior during a sea voyage she took to Palestine. The key portion of his direct examination went like this:

Q: Did the Princess sleep under that tent [placed on the deck] generally on the voyage from Jaffa home?
A: She slept always under that then during the whole voyage from Jaffa to the time she landed.

Q: Did anybody sleep under the same tent?
A: Bartolomo Bergami [the queen’s alleged paramour].

Q: Did this take place every night?
A: Every night.

The cross-examination centered upon other details relating to the sleeping arrangements on the voyage.

Q: [On this voyage] where did Hieronimus sleep in general?
A: I do not recollect.

Q: Where did Mr. Howman sleep?
A: I do not recollect.

Q: Where did William Austin sleep?
A: I do not remember.

Q: Where did Camera sleep?
A: I do not know where he slept.

Q: Where did the maids sleep?
A: I do not know.

Q: Did you not, when you were ill during the voyage, sleep below [in the hold] under the deck?
A: Under the deck.

Q: Did those excellent sailors always remain below in the hold with you?
A: This I cannot remember if they slept in the hold during the nighttime or went up.

Q: Who slept in the place where you used to sleep down below in the hold?
A: I know very well that I slept there, but I do not remember who else.

Q: Where did the livery servants of the suite sleep?
A: This I do not remember.

Q: Were you not yourself a livery servant?
A: Yes.

Q: Where did the Padroni of the vessel sleep?
A: I do not know.

Q: When her Royal Highness was going by sea on her voyage from Sicily to Tunis, where did she sleep?
A: This I cannot remember.

Q: When she was afterwards going from Tunis to Constantinople on board the ship, where did Her Royal Highness sleep?
A: This I do not remember.

Q: When she was going from Constantinople to the Holy Land on board the ship, where did she sleep then?
A: I do not remember.

Q: Where did Bergami sleep on those three voyages of which you have just been speaking?
A: This I do not know.

With witnesses of this sort, as well as with alibi witnesses, cross-examination to collateral matters can often prove an effective means of demonstrating the very convenient nature of such witnesses’ memories. A devastating line of questioning like this during a deposition can quite often persuade opposing counsel to decide it would be better if the jury never heard the witness.

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IMPEACHMENT WITH SILENCE – A LINDBERG CASE LESSON

Cross-Examination of the Expert on Silence

One of the key pieces of evidence in the Lindbergh kidnapping case was a shoddily built homemade ladder found on the grounds of the Lindbergh estate. As soon as a qualified crime scene technician arrived at the Lindbergh home, the ladder was examined for fingerprints. At that time the most common method for raising latent prints was to use “dust” which adhered to the invisible fingerprints and made them visible. Leaving no stone unturned, the police asked for the assistance of Dr. Erastus Mead Hudson, who was expert in the use of a new silver nitrate technology which would disclose prints invisible to ordinary dust. Hudson examined the ladder twelve days after the kidnapping and after scores of officers and civilians had handled the ladder. Unsurprisingly, Hudson raised hundreds of fingerprint impressions from the ladder. It was hoped that, if they ever developed a suspect, they would be able to find his fingerprints somewhere among all those hundreds of fingerprint raised by Meade.

When Bruno Richard Hauptmann was arrested for the kidnapping of the baby, they were unable to identify Hauptmann’s prints among all the hundreds of prints raised by Dr. Hudson. Because Hudson was convinced that the kidnapper’s fingerprints had to be among those raised from the ladder, he wound up testifying as a defense witness. Hudson’s testimony hurt the prosecution case, but it could have hurt the prosecution more if the defense had not given the prosecution an opening which they exploited to seriously damage Hudson’s credibility. After having Hudson testify about the absence of Hauptmann’s prints from the ladder, the defense tried to use him to negate the testimony of another expert who had examined the ladder.

Arthur Koehler, a wood expert with the U.S. Department of Forestry, was able to show that a particular board used to build the ladder had been sawn from a longer board nailed to the rafters in Hauptmann’s attic. Koehler had connected this board (which had been labeled “Rail 16”) to Hauptmann in three ways: (1) He showed that the growth rings on Rail 16 matched the growth rings on the board from the attic. (2) He showed that a plane taken from Hauptmann’s garage made plane marks identical to plane marks on Rail 16. (3) He matched four square nail holes on Rail 16 with four square nail holes in the rafters of the attic.

The defense had Hudson testify that when he saw Rail 16 in March of 1932, there was only one square nail hole in Rail 16. Hudson even went so far as to say that he mentioned the nail hole in his notes. This testimony gave rise to the inference that Rail 16’s square nail holes matched the square nail holes in the rafters of Hauptmann’s attic because the authorities took Rail 16 into his attic and nailed the board to the rafters. Although the inference would have been devastating to the prosecution’s case, it rested on very shaky grounds.

Hudson’s expertise lay in the area of fingerprints. When he examined Rail 16 he was looking for fingerprints, not nail holes. People frequently fail to notice things that they are not looking for. By trying to stretch Hudson’s usefulness beyond his area of expertise, they rendered him vulnerable to the following cross-examination:
Q: Doctor, will you take a look at your notes? They were made, I take it, about that time?
A: Yes, I think these were made in March, 1932.

Q: Well, there is no doubt in your mind, is there, when they were made?
A: The exact day I am in doubt, but they were made during the month of March.
…
Q: Those were the notes you took the very day then that you were taking the measurements?
A: Yes, sir.

Q: Now yesterday, when you were talking about rail 16, you said, "Yes, I remember this rail with the knot and the two nails on each side. I think somewhere in these charts there is reference to it, if I am not mistaken." Will you look at the chart you have?
A: These charts do not show that knot and the two nails.

Q: Well, I am referring to your testimony.
A: Yes, that's correct.

Q: "I remember this rail with the knot and the two nails on each side. I think somewhere in these
charts there is reference to it, if I am not mistaken." Are you mistaken?
A: Well, with reference to these charts; yes, sir.
…
Q: Those were the notes you took the very day then that you were taking the measurements?
A: Yes, sir.

Q: Now yesterday, when you were talking about rail 16, you said, "Yes, I remember this rail with
the knot and the two nails on each side. I think somewhere in these charts there is reference to it,
if I am not mistaken." Will you look at the chart you have?
A: These charts do not show that knot and the two nails.

Q: Well, I am referring to your testimony.
A: Yes, that's correct.

Q: "I remember this rail with the knot and the two nails on each side. I think somewhere in these
charts there is reference to it, if I am not mistaken." Are you mistaken?
A: Well, with reference to these charts; yes, sir.
…
Q: Will you please show us anywhere on any of those charts any reference to nail holes.
A: I told you, sir, that on these charts there is no reference to nail holes.
…
Q: Is there any reference to any nail hole in any those charts that you made at the time?
A: No, I said these charts-

Q: Please answer the question. Is there any reference to any nail hole in those charts?
A: No, sir; they are not made for that purpose.
…
Q: I see. Well, all right, sir. Now do you remember the number of nail holes in that ladder, in the rails?
A: I remember there was just one nail hole.

Q: I am talking about the rails, all the rails, not one rail.
A: All the rails.

Q: Do you remember whether there were any nail holes in the other rails?
A: There was only one nail hole made by a square nail.

Q: Do you remember whether there were any other nail holes in any of the rails?
A: Not that I recall; no, sir.

As the questioning progressed concerning nail holes, Hudson became more and more evasive. The prosecutor persisted by asking a very narrow question.

Q: Exclusive of the rail to which you referred yesterday with the one hole, nail hole. Will you tell me whether or not at the time that you inspected and observed this ladder, you observed any nail holes in any portion of those rails, of any of those rails, exclusive of the nails that would necessarily
come in because of the construction of the rungs?
A: Well, exclusive-

Q: Now please answer the question yes or no. Did you or didn't you?
A: Exclusive of the rung, I did not see any nail holes.

Q: You did not. Will you say that there are no nail holes in the rails of this ladder, exclusive of the rail to which you testified yesterday and-
A: I would say they were not at that time.

Q: Not at that time?
A: Yes, sir.

Q: You mean that you did not see them?
A: I did not see them.

Q: They may have been there?
A: I don't think so, because I went over it very carefully.

Q: Will you say that they weren't there?
A: Yes, to the best of my knowledge and belief they were not there.

Q: To the best of your knowledge and belief?
A: Yes, sir.
…
Q: Did you make any notation in any of your notes with reference to nail holes?
A: I haven't seen the notes for a long time.

Q: Did you make any notation in your notes, any reference in your notes to nail holes?
A: I don't know.

Q: You don't know?
A: No.

Q: Why didn't you say so in the first place, instead of-

Mr. Pope: I object to the Attorney General scolding the witness.

The cross-examination covered approximately 50 pages of transcript, very few of which pertained to fingerprints. Had the defense limited Hudson’s testimony to his area of expertise, the cross-examination would have been reduced to asking questions in the following vein:

Q: Now you do know, do you not, that men who have had a criminal career use gloves in an effort
to avoid showing finger prints?
A: Yes, sir.

Q: Yes. You know that criminals use gloves when they want to avoid showing finger prints?
A: Yes, sir.

Q: And there is no way of detecting a finger print then, isn't that so?
A: I think so. The French claim they can do it.

Q: Never mind about the French claim. So far as you know?
A: As far as I know they can't do it.

On rebuttal the prosecution presented photographs of the ladder made before Hudson inspected it. The four square holes in Rail 16 were perfectly visible. Another rebuttal witness who examined the ladder shortly after Hudson testified that the holes were there, and that he had made a note of the presence of the holes in his report. The second witness didn’t directly refute Hudson, but he did refute the inference that the nail holes were manufactured by the police after Hauptmann’s arrest.

Hudson’s testimony was not destroyed by the cross-examination concerning the nails, but the persuasiveness of his testimony was greatly diminished. Had Hudson been a more careful observer and made notes concerning the holes, his fading memory wouldn’t have gotten him in trouble. Had he not sought to step out of his area of expertise, he would not have gotten into trouble. But the major blame for the debacle must be laid at the feet of Hauptmann’s defense team. Had the defense done their homework, they would have immediately known Hudson was wrong when he told them about the lack of nail holes. Even though they didn’t know Hudson was wrong, they should not have put on his testimony about the lack of nail holes before checking his notes and charts for corroboration and looking through the myriads of photos taken of the ladder to see if they could find a photo either confirming or refuting him.