2ND ROOKIE MISTAKE OF CROSS-EXAMINATION: BEING WITHOUT PROOF

You Know the Cross-Examiner is a Rookie When . . .

A lawyer should never attempt to impeach a witness with a prior inconsistent statement if the prior statement cannot be proven. Some lawyers ask about a prior statement without proof of the prior statement in the hopes that either the witness will admit it or, if the witness denies it, that the jury will believe the statement was made anyway. Whatever the examiner’s motivation, it is unprofessional conduct. Model Rule of Professional Conduct 3.4(e) states “a lawyer shall not in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness. . .”

The biggest error comes when counsel has had a one-on-one interview with the witness, and the witness said something only counsel’s ears have heard. When the witness denies making the prior inconsistent statement, counsel cannot ethically blurt out “But didn’t you tell me . . .?” A cross-examiner cannot become a witness without running afoul of ethical requirements under MRPC 3.7 prohibiting a lawyer from being a witness except under limited circumstances. This rookie mistake can be avoided by always having a prover (person whom the lawyer could call to testify) present or another means of proving the witness’s statements when interviewing a person who is or might become an adverse witness.

“AHA” MOMENT AND CROSS-EXAMINATION

Closing the Loop of Cross in Closing

Cross-examination designed to expose the defect in the witness’s testimony may not be evident to the jurors during the cross. Rather, the loop may be closed in closing argument when you unveil the flaw and the jurors comprehend the full impact of the examination. Michael Tiger describes the effect as follows:

“The goal is to have a working plurality of jurors say ‘Aha,’ meaning ‘We see now the flaws in what this witness has said.’ Many lawyers do not understand that the ‘aha’ can come at many possible times during trial, and need not even be the result of cross-examination. The jurors can choose to discredit a witness because of what some other witness has said or based on some other evidence; effective lawyer argument shows the contradiction and points to the right result. In short, you don’t have to cross-examine every adverse witness.

“Even when you do not cross-examine, the ‘aha’ needn’t occur while the witness is on the stand. Trying to make it appear may lead you to take excessive risks with the witness.

“When Edward Bennett Williams had Jake Jacobsen, ex-Treasury Secretary Connally’s accuser, on the stand, much of the cross-examination was derided by journalistic onlookers as boring. Ed was taking Jacobsen through a long series of prior inconsistent statements, most of them under oath. In some measure, Ed was showing Jacobsen power- that he had measured all these facts about Jacobsen, making Jacobsen reluctant to hazard disagreement with the examiner.

“The main purpose of cross was to lay the basis for closing argument, where the inconsistencies could be spread out again and made part of the story of the case. Then the jurors would say ‘Aha!’”

Examining Witnesses, Michael E. Tigar, (Litigation Bookshelf 1972), 156-57