Saturday, October 26, 2013


No cross-examination is more ineffective than one that dwells on minutia. A cross that focuses on inconsequential matter neither builds the cross-examiner’s case nor undercuts the other side’s case. It serves no purpose. It can be tedious. And, it can damage the credibility of the cross-examiner.

Henry Miller, a seasoned trial attorney put it this way in On Trial: Lessons from a Lifetime in the Courtroom:
Don’t Quibble. Mr. Bicker assumes all jurors have advanced degrees in engineering. He pursues witnesses in search of ‘inches.’ ‘You say it was three feet form the corner. Might is have been three feet and four inches?’ Then, he argues in summation that under the Euclidean laws of eternal calculus it would be impossible for the sun to shine unless the answer was three feet and four inches.

“Or, ‘You say Mrs. Verdi was wearing a green dress. Are you prepared to swear it was not a pale shade of olive. . .

“If we shouldn’t quibble, what should we do? We should:

Go for the Whales: Seek out the big issues. Forget the minnows. Jurors do not decide cases on a thousand little points. They want to hear what’s crucial.

“It doesn’t matter where the front wheels were, if the driver had too much to drink. . .

“Go for the big issue, the critical point that will decide the case. You may not win but the jury will neither squirm nor laugh. And at least you won’t lose it on cross.”

The trial lawyer’s sage James W. McElhaney in McElhaney’s Trial Notebook stresses the need to concentrate on major points given the jury’s attention span: “People have limited attention spans. It is said that television (with its interruptions for advertisements) has created 20-minute cycles in people’s minds so they cannot absorb more than that at any one time. Whether that is literally true is not important. It emphasizes a good point: A short, coherent cross-examination will be more effective than a long, rambling one that makes as many (or more) good points.”

Our Cross-Examination Handbook offers concrete advice on how to find the big fish and then reel them in.

Wednesday, October 16, 2013


Here is some more on the subject of questioning. Lawyers ask some dumb questions on cross-examination. “Why?” being the dumbest of them all because it opens the door for the witness to say almost anything.
The following quotations are taken from official court records across the nation, showing how funny and embarrassing it is that recorders operate at all times in courts of law, so that even the slightest inadvertence is preserved for posterity.
o Lawyer: "Was that the same nose you broke as a child?"
o Witness: "I only have one, you know."
o Lawyer: "Now, Mrs. Johnson, how was your first marriage terminated?"
o Witness: "By death."
o Lawyer: "And by whose death was it terminated?"
o Accused, Defending His Own Case: "Did you get a good look at my face when I took your purse?"
The defendant was found guilty and sentenced to ten years in jail.
o Lawyer: "What is your date of birth?"
o Witness: "July 15th."
o Lawyer: "What year?"
o Witness: "Every year."
o Lawyer: "Can you tell us what was stolen from your house?"
o Witness: "There was a rifle that belonged to my father that was stolen from the hall closet."
o Lawyer: "Can you identify the rifle?"
o Witness: "Yes. There was something written on the side of it."
o Lawyer: "And what did the writing say?"
o Witness: "'Winchester'!"
o Lawyer: "What gear were you in at the moment of the impact?"
o Witness: "Gucci sweats and Reeboks."
o Lawyer: "Can you describe what the person who attacked you looked like?"
o Witness: "No. He was wearing a mask."
o Lawyer: "What was he wearing under the mask?"
o Witness: "Er...his face."
o Lawyer: "This myasthenia gravis -- does it affect your memory at all?"
o Witness: "Yes."
o Lawyer: "And in what ways does it affect your memory?"
o Witness: "I forget."
o Lawyer: "You forget. Can you give us an example of something that you've forgotten?"
o Lawyer: "How old is your son, the one living with you?"
o Witness: "Thirty-eight or thirty-five, I can't remember which."
o Lawyer: "How long has he lived with you?"
o Witness: "Forty-five years."
o Lawyer: "What was the first thing your husband said to you when he woke that morning?"
o Witness: "He said, 'Where am I, Cathy?'"
o Lawyer: "And why did that upset you?"
o Witness: "My name is Susan."
o Lawyer: "Sir, what is your IQ?"
o Witness: "Well, I can see pretty well, I think."
o Lawyer: "Did you blow your horn or anything?"
o Witness: "After the accident?"
o Lawyer: "Before the accident."
o Witness: "Sure, I played for ten years. I even went to school for it."
o Lawyer: "Trooper, when you stopped the defendant, were your red and blue lights flashing?"
o Witness: "Yes."
o Lawyer: "Did the defendant say anything when she got out of her car?"
o Witness: "Yes, sir."
o Lawyer: "What did she say?"
o Witness: "'What disco am I at?'"
o Lawyer: "Doctor, before you performed the autopsy, did you check for a pulse?"
o Witness: "No."
o Lawyer: "Did you check for blood pressure?"
o Witness: "No."
o Lawyer: "Did you check for breathing?"
o Witness: "No."
o Lawyer: "So, then it is possible that the patient was alive when you began the autopsy?"
o Witness: "No."
o Lawyer: "How can you be so sure, Doctor?"
o Witness: "Because his brain was sitting on my desk in a jar."
o Lawyer: "But could the patient have still been alive nevertheless?"
o Witness: "Yes, it is possible that he could have been alive and practicing law somewhere."
o Lawyer: "How far apart were the vehicles at the time of the collision?"
o Lawyer: "And you check your radar unit frequently?"
o Officer: "Yes, I do."
o Lawyer: "And was your radar unit functioning correctly at the time you had the plaintiff on radar?"
o Officer: "Yes, it was malfunctioning correctly."
o Lawyer: "What happened then?"
o Witness: "He told me, he says, 'I have to kill you because you can identify me.'"
o Lawyer: "Did he kill you?"
o Witness: "No."
o Lawyer: "Now sir, I'm sure you are an intelligent and honest man--"
o Witness: "Thank you. If I weren't under oath, I'd return the compliment."
o Lawyer: "You were there until the time you left, is that true?"
o Lawyer: "So you were gone until you returned?"
o Lawyer: "The youngest son, the 20 year old, how old is he?"
o Lawyer: "Were you alone or by yourself?"
o Lawyer: "How long have you been a French Canadian?"
o Witness: "He was about medium height and had a beard."
o Lawyer: "Was this a male or a female?"
o Lawyer: "Mr. Slatery, you went on a rather elaborate honeymoon, didn't you?"
o Witness: "I went to Europe, sir."
o Lawyer: "And you took your new wife?"
o Lawyer: "I show you Exhibit 3 and ask you if you recognize that picture."
o Witness: "That's me."
o Lawyer: "Were you present when that picture was taken?"
o Lawyer: "Were you present in court this morning when you were sworn in?"
o Lawyer: "Do you know how far pregnant you are now?"
o Witness: "I'll be three months on November 8."
o Lawyer: "Apparently, then, the date of conception was August 8?"
o Witness: "Yes."
o Lawyer: "What were you doing at that time?"
o Lawyer: "How many times have you committed suicide?"
o Witness: "Four times."
o Lawyer: "Do you have any children or anything of that kind?"
o Lawyer: "She had three children, right?"
o Witness: "Yes."
o Lawyer: "How many were boys?"
o Witness: "None."
o Lawyer: "Were there girls?"
o Lawyer: "You don't know what it was, and you didn't know what it looked like, but can you describe it?"
o Lawyer: "You say that the stairs went down to the basement?"
o Witness: "Yes."
o Lawyer: "And these stairs, did they go up also?"
o Lawyer: "Have you lived in this town all your life?"
o Witness: "Not yet."
o Lawyer: (realizing he was on the verge of asking a stupid question) "Your Honor, I'd like to strike the next question."
o Lawyer: "Do you recall approximately the time that you examined the body of Mr. Eddington at the Rose Chapel?"
o Witness: "It was in the evening. The autopsy started about 8:30pm."
o Lawyer: "And Mr. Eddington was dead at the time, is that correct?"
o Lawyer: "What is your brother-in-law's name?"
o Witness: "Borofkin."
o Lawyer: "What's his first name?"
o Witness: "I can't remember."
o Lawyer: "He's been your brother-in-law for years, and you can't remember his first name?"
o Witness: "No. I tell you, I'm too excited." (rising and pointing to his brother-in-law) "Nathan, for heaven's sake, tell them your first name!"
o Lawyer: "Did you ever stay all night with this man in New York?"
o Witness: "I refuse to answer that question.
o Lawyer: "Did you ever stay all night with this man in Chicago?"
o Witness: "I refuse to answer that question.
o Lawyer: "Did you ever stay all night with this man in Miami?"
o Witness: "No."
o Lawyer: "Doctor, did you say he was shot in the woods?"
o Witness: "No, I said he was shot in the lumbar region."
o Lawyer: "What is your marital status?"
o Witness: "Fair."
o Lawyer: "Are you married?"
o Witness: "No, I'm divorced."
o Lawyer: "And what did your husband do before you divorced him?"
o Witness: "A lot of things I didn't know about."
o Lawyer: "And who is this person you are speaking of?"
o Witness: "My ex-widow said it.
o Lawyer: "How did you happen to go to Dr. Cherney?"
o Witness: "Well, a gal down the road had had several of her children by Dr. Cherney and said he was really good."
o Lawyer: "Doctor, how many autopsies have you performed on dead people?"
o Witness: "All my autopsies have been performed on dead people."
o Lawyer: "Were you acquainted with the deceased?"
o Witness: "Yes sir."
o Lawyer: "Before or after he died?"
o Lawyer: "Mrs. Jones, is your appearance this morning pursuant to a deposition notice which I sent to your attorney?"
o Witness: "No. This is how I dress when I go to work."
o The Court: "Now, as we begin, I must ask you to banish all present information and prejudice from your minds, if you have any."
o Lawyer: "Did he pick the dog up by the ears?"
o Witness: "No."
o Lawyer: "What was he doing with the dog's ears?"
o Witness: "Picking them up in the air."
o Lawyer: "Where was the dog at this time?"
o Witness: "Attached to the ears."
o Lawyer: "When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?"
o Other Lawyer: "Objection. That question should be taken out and shot."
o Lawyer: "And lastly, Gary, all your responses must be oral. Ok? What school do you go to?"
o Witness: "Oral."
o Lawyer: "How old are you?"
o Witness: "Oral."
o Lawyer: "What is your relationship with the plaintiff?"
o Witness: "She is my daughter."
o Lawyer: "Was she your daughter on February 13, 1979?"
o Lawyer: "Now, you have investigated other murders, have you not, where there was a victim?"
o Lawyer: "Now, doctor, isn't it true that when a person dies in his sleep, in most cases he just passes quietly away and doesn't know anything about it until the next morning?"
o Lawyer: "And what did he do then?"
o Witness: "He came home, and next morning he was dead."
o Lawyer: "So when he woke up the next morning he was dead?"
o Lawyer: "Did you tell your lawyer that your husband had offered you indignities?"
o Witness: "He didn't offer me nothing. He just said I could have the furniture."
o Lawyer: "So, after the anesthesia, when you came out of it, what did you observe with respect to your scalp?"
o Witness: "I didn't see my scalp the whole time I was in the hospital."
o Lawyer: "It was covered?"
o Witness: "Yes, bandaged."
o Lawyer: "Then, later on...what did you see?"
o Witness: "I had a skin graft. My whole buttocks and leg were removed and put on top of my head."
o Lawyer: "Could you see him from where you were standing?"
o Witness: "I could see his head."
o Lawyer: "And where was his head?"
o Witness: "Just above his shoulders."
o Lawyer: "Do you drink when you're on duty?"
o Witness: "I don't drink when I'm on duty, unless I come on duty drunk."
o Lawyer: "Any suggestions as to what prevented this from being a murder trial instead of an attempted murder trial?"
o Witness: "The victim lived."
o Lawyer: "The truth of the matter is that you were not an unbiased, objective witness, isn't it? You too were shot in the fracas."
o Witness: "No, sir. I was shot midway between the fracas and the naval."
o Lawyer: "Officer, what led you to believe the defendant was under the influence?"
o Witness: "Because he was argumentary, and he couldn't pronunciate his words."

Sunday, October 13, 2013


All questions are not created equal. What we are trying to accomplish by questioning determines what questions we ask, and how we ask them. “Have you stopped beating your wife?” is not a question designed to elicit information. Socrates asked questions to make his listeners think, and his methodology led to countless generations of law school students being tortured by the “Socratic method” of teaching. There may be a cornucopia of reasons for asking questions, but in the criminal justice system, the forms of questioning are limited. Each form of questioning, however, serves a useful purpose. Let’s look at the various forms of questioning:

THE INTERVIEW seeks to elicit information from a friendly witness in a friendly non-confrontational fashion. The witness has information which he is willing to share freely, and the officer or attorney simply asks the questions and learns the facts. Actually it’s a little more complicated than that, but for our purposes, that’s all we need to say about the interview.

THE INTERROGATION likewise seeks to elicit information, but seeks to do so in a hostile environment. The person being questioned doesn’t want to cooperate, wants to conceal information, and quite often will lie to you. There are two types of interrogations: the witness interrogation and the suspect interrogation. The methodologies of these two forms of interrogation differ quite markedly, but the objective is the same — to elicit information in a hostile environment.

Once we have interviewed or interrogated a witness or suspect, we know what they have to say, but others do not. If an interview or an interrogation is to be of more than minimal use to us, we must memorialize the interview in the form of a STATEMENT. The statement seeks to take the information we have gained by interview or interrogation and make it useful in one of several ways. It can be used (1) to inform others what the witness has to say, and (2) to inhibit the witness from changing his story. We can call this objective “freezing” a witness’s testimony. “Freezing” a witness’s testimony forms a very important part of investigation and trial preparation. It gives us a moderate amount of certainty as to what the witness will testify to at trial, and if he testifies differently from his statement, we can use the statement (3) to impeach him by prior inconsistent statement. A statement can take a number of forms.

1. It can be an interview synopsis, written after the interview from notes taken during the interview. If the author of the interview synopsis is a good interviewer, a good writer, and a good judge of relevance, the interview synopsis can be the best form of statement for informing others as to the witness’s story. Unfortunately, the interview synopsis presents the witness with the least motive for adhering to the original story. The witness seems to feel that he can say, “Oh, she just misunderstood what I said,” or “He’s lying!” And the impeachment gets lost in the “he-said-she-said” controversy of who do you believe. The usefulness of the interview synopsis to impeach a wandering witness depends entirely upon how good a witness the interviewer makes.

2. It can be written by the hand of the witness. If the witness is intelligent, literate, and cooperative, this can be an excellent way to take a statement. The statement both informs and inhibits, and makes very good impeachment if the witness strays from her story. Unfortunately, few intelligent, literate, and cooperative people actually witness crimes.

3. The interviewer can write the statement for the witness and have the witness sign it. This is the most immediately labor-intensive method of taking a statement, but if the officer is good at taking this type statement, it can be the best. We must take care to insure that the statement is the witness’s statement, not a statement of what the interviewer wants the witness to say. We must also be able to prove in court that the statement is the witness’s and not the interviewer’s. You can avail yourself of a number of tactics to accomplish these purposes. First, try to write the statement in language natural to the witness--no police speak or lawyer talk. Second, try to write the significant points of the statement in exactly the same words as used by the witness. Third, involve the witness in the process of correcting the statement. A good method is to write out the witness’s statement, then offer the witness an opportunity to read and correct it and add anything he wishes at the end in his own handwriting.

4. Finally, there is the recorded statement. Recorded statements can take the form of audio recordings, video recordings, or stenographic transcripts. Stenographic transcripts make the best recorded statements, but they cost the most. With the advent of smartphones, it is very easy to record a witness statement. Just turn on the record app or video camera and start asking questions. A recorded statement does a marvelous job of inhibiting the witness from changing his story. Every stammer, stutter, and cough is immortalized on tape. Unfortunately, a recorded statement often does a very poor job of informing others as to what the witness says. Meaningless chatter gets recorded. Irrelevant side issues are discussed at length. You can often hear music, train whistles, ringing phones, and barking dogs in the background. The recording gives a false impression of economy of effort. The interviewer feels she doesn’t have to take notes because everything is being recorded.

Each method of taking statements has its benefits and drawbacks. Not every witness should be recorded. Not every witness should be handed a pen and paper and told to write a statement. Experience will tell you when to use which form of statement, but I will make one observation on the subject. We have the least justification for recording friendly, cooperative witnesses and the most justification for recording hostile witnesses and suspects or defendants.

DEPOSITIONS can serve a host of objectives, some legitimate, others not. The primary purposes of a deposition should be the now-familiar objectives of informing us as to the witness’s knowledge, and inhibiting the witness from changing his story.

TRIAL TESTIMONY. When we take the testimony of a witness at a trial or hearing, we shouldn’t be trying to find out what the witness knows. We should already know what the witness knows, and have a firm idea of what part of that knowledge we want the witness to share with the jury. The purpose of trial testimony, therefore, is to inform a limited audience -- the finder of fact. DIRECT EXAMINATION usually seeks to achieve this objective in an orderly fashion with a relatively friendly witness. CROSS EXAMINATION often seeks to achieve the objective with a relatively uncooperative witness.

When we question a witness, we should always keep in mind what type of questioning we are doing, remember the primary objectives of the particular type of questioning we are doing, and structure our questions accordingly.