TERRY MCCARTHY DISCUSSES CROSS-EXAMINATION

Hours of video on cross-examination: What a perfect holiday gift for trial lawyers, and it’s free. YouTube has a seven-part video of the master of cross-examination and author of McCarthy on Cross-Examination, Terry McCarthy, chatting about cross-examination at Charles Rose’s Trial Advocacy program at Stetson Law School. McCarthy spent four decades as the federal public defender in Chicago. 

His discussion is engaging, and time spent watching and listening to him is time well spent.

GREAT ADVICE ON CROSS-EXAMINATION REPEATED

 Excellent advice on cross-examination bears repeating. Thus, this piece repeats Michael Tigar’s advice (Examining Witnesses) that he borrowed from Terry McCarthy. The subject is how to commence cross-examination in a strong fashion, which we recently discussed here.  Tigar (pictured) states that:

To begin (cross-examination) strong you must choose an area in which the witness will agree with you. Preferably, the witness will also want to agree with you. What do I mean “want to”? If you are going to cross-examine a police officer on a defect in his report, you will begin by establishing how careful a report writer the witness is. The witness wants to tell you this.

Face the witness. Smile at the witness. The smile need not be friendly, but it must be polite. Remember, you want this witness to agree with you. You will see British barristers take a superior attitude toward the witness, lofty and disdainful. You will see American lawyers – real or on television – sneering and snarling. Don’t do any of that. With whom will the jury identify in a contest between a witness who is just sitting there and a snarling, sneering, supercilious lawyer? Oh, maybe later, when the jury is brought along to your point of view, you can change mien. But, for now, a polite smile.

The next idea is borrowed from terry MacCarthy. Actually, all good trial lawyers have done what he suggests, but Terry has refined the technique into a “method.” The idea is this: Don’t ask questions. Make statements with which the witness must agree or suffer impeachment. Most good cross examiners use leading questions.

Q. You were in charge of the city’s oil properties, right?

Q. It was your job to review the prices the city was paid, isn’t that right?

You can even eliminate the words “right” or “isn’t that right.”

Stand up. If the rules where you practice require you to examine from a seated position, start your cross with a document or exhibit that requires you to approach the witness so you have a reason to stand. After the obligatory smile, look the witness in the eyes, and make a positive statement, all the while smiling and nodding.

Q. You were in charge of the city’s oil properties?

You reviewed the prices the city was paid for its crude oil?

If the witness agrees with you, but does not answer audibly, give a reminder.

Q. That’s “yes”?

This method is particularly effective when you are leading the witness through a series of assertions, each on part of a picture.

Q. You were in the bar?

Q. You were with John?

Q. Somebody came in?

Q. He had a gun?

Q. This person had on a jacket?

The last in the series illustrates MacCarthy’s shining example of brevity, a one-word question. Brevity is, however, not a result but a means. This style of questions encourages the witness to agree with you by a series of “yes” answers. It leads from point to point, giving the jurors a picture of the action.

Best of all, the method lets you jettison most of the ten commandments as unnecessary. You will almost automatically be brief, short, plain, and nonrepetitive. Because your statements are questions only because you verbally punctuate them as such, you are not likely to ask “one question too many,” “permit the witness to explain,” or “ask the witness to repeat” the direct examination.

If the witness does not agree with you, have your impeachment material ready . . .

Now this is advice worth repeating and repeating.

LEADING VERSUS LOADED

According to the state’s factual theory in the Lindbergh Kidnapping Case, the kidnapper used a homemade ladder to climb into the child’s second story window, and the ladder broke when he climbed back down the ladder with the added weight of the child. The child died from blunt trauma to the head, and it was reasonable to assume that the trauma occurred when the baby hit the ground after the ladder broke. It was also reasonable to assume that the kidnapper would suffer some injury from the fall. The prosecution offered evidence that shortly after the kidnapping, Bruno Richard Hauptmann was walking with a limp. They attempted to prove this fact through the testimony of a neighbor of the Hauptmanns by the name of Ella Achenbach.

Ms. Achenbach testified that Mrs. Hauptmann had told her that the injury was a sprain, and that Hauptmann rubbed his ankle while Mrs. Hauptmann was making this statement. After the conversation about the injury, she saw Hauptmann limping as he left her house.

On cross-examination the defense attempted to show that Achenbach had a grudge against Mrs. Hauptmann because she had presented Achenbach with a bill which Achenbach refused to pay. The cross went like this:

Q: [S]he presented you with a bill for your expenses, didn’t she? Yes or no.
A: I guess that is right.
Q: And you haven’t paid it yet, have you?
A: Oh, my goodness—is that so? Is that what she said?
Q: I am asking you.
A: My daughter was nine years old when she paid—
Q: Have you paid the bill in question?
A: Yes.
Q: When?
A: Well, I will ask my husband.
Q: When was the bill paid?
A: Right after she came home.
…
Q: And isn’t it a fact that from the time she presented the bill to you and you refused to pay it, down to date, you haven’t seen her once?
[Objection by the prosecution].

The final question was more than leading, it was loaded. It presupposed a fact which Achenbach had already denied. All questions come with presupposed facts. Even the question “What is your name?” comes with the presupposed fact that the witness has a name. When a witness answers such a question, the witness endorses the presupposed fact. “My name is John,” in response to “What is your name?” adopts the presupposed fact that the witness has a name.

The form of the defense question in Achenbach’s cross, was unfair because an answer to the question whether she had seen Mrs. Hauptmann since receiving the bill would appear to adopt as true the assertion that Achenbach had not paid the bill. Although some judges will overrule an objection to such a question, the form of the question is objectionable as argumentative. Even if an objection to the question were overruled, discerning jurors would likely feel that the question was unfair.

A better way to have approached the question would have been to set up the inevitable contradiction by Mrs. Hauptmann something like this:

Q: She presented you a bill?
Q: And you didn't pay it?

The question in this form is leading rather than argumentative, and the defense attorney has a good faith basis for asking it. Mrs. Hauptmann has told him that the bill went unpaid. When, as happened in this case, the question was formulated:

Q: Have you paid the bill in question?

A denial of paying the bill forecloses the presupposition that she didn’t pay it as the basis for another question.
The follow up to either of the questions should be to set up a contradiction by Mrs. Hauptmann. Ask a question or two which indicates that you expect Mrs. Hauptmann to testify that she was never paid, and then when Mrs. Hauptmann testifies, be sure to have her deny that Achenbach paid the bill. A possible line of questioning might be:

Q: You asked if Mrs. Hauptmann said you refused to pay the bill?
Q: You believe Mrs. Hauptmann says you refused to pay the bill?
Q: You disagree with Mrs. Hauptmann on that point?

This line of questioning is more powerful coming after a denial of your suggestion that she didn’t pay the bill than after a denial of the mere question whether she paid the bill. Whatever the answers are, now that you have suggested Mrs. Hauptmann will say the bill went unpaid, you have assumed an obligation to offer testimony from her that the bill went unpaid. If you handle the issue in this manner, the jury will perceive that you are being fair with Achenbach and giving her an opportunity to dispute Mrs. Hauptmann’s forthcoming testimony about the unpaid bill.

ORGANIZING A DYNAMIC CROSS-EXAMNATION

Do’s and Don’ts for Organizing a Dynamic Cross

Are the jurors following your cross-examination? Or, are they lost? Is your cross-examination easy to comprehend? Or, is it just a jumble? Is the structure of your cross achieving your purpose? Or, is it just rehashing the direct? While a great deal of attention in trial advocacy texts and teachings is devoted to cross-examination techniques, such as ask only leading questions, less is spent on how to organize. Consequently, many cross-examinations are disorganized and leave jurors in a quandary. You want a cross-examination that is organized into a dynamic and persuasive presentation. What follows is a checklist of do’s and don’ts for organizing your cross-examination.

DO – THINK CASE THEORY

James W. McElhaney, the trial lawyers’ sage, explained this principle as follows: “It is the theory of the case, then, that provides the starting point for organizing cross-examination. If we once again take organization in the broader sense – content as well as order – the first question is not just what to include, but whether to cross-examine a witness at all.

“The obvious answer is, do not cross-examine a witness unless it would help the case to do so. The only difficulty with that is knowing when it would help the case.

“Understandably, it is a point about which thoughtful lawyers can disagree. There are some, for example, who are quick to say ‘no questions.’ And there are some far more who ought to follow their example.” McElhaney’s Trial Notebook.

The primary goal of cross-examination is to either bolster your case theory or undermine your opponents. And, the focus of the concession-seeking cross should be on making main points, not exploring minutia.

DO – START STRONG

Because you have the jury’s attention when you begin your cross and because what they hear first will be more likely to be retained than what they hear later (rule of primacy) make the beginning of the cross count for something. If, on that rare occasion, you can decimate the witness at the start of cross, do it. But, more often, you can begin the cross by gaining the concessions that support your case theory or undercut the other side’s. Here, you start cross in a non-confrontational and friendly manner with a series of questions to which the witness should answer in the affirmative. Save your impeachment cross for later, and if you turn the witness to your own, abandon the impeachment.

DON’T – THINK DIRECT

Counsel listens carefully to the witness’s answers to opposing counsel’s direct examination and takes copious notes marking up those notes with points to make on cross. “Your witness” says opposing counsel, and the cross-examiner embarks on a cross that tracks those notes taken during the direct. For at least two reasons, this is the worst organizational structure for a cross-examination. First, the order of questioning is dictated by opposing counsel rather than the cross-examiner. Second, inevitably, the cross-examiner rehashes the direct – “You testified on direct that . . .”

DO – THINK TOPICAL UNITS

Think of your cross as a compilation of topical units, like short stories. Each one has a single topic to cover. These are main points, not minutia. For example, the topic could be the deficiencies in the qualifications of the other side’s expert witness. In Cross-Examination Handbook, we discuss how to brainstorm for and structure these topical units. Once you have formulated the topical units, organize those units into the best possible logical presentation.

DO – POINT THE WAY

Nothing helps the jurors more in their effort to keep up with your cross than providing them with sign posts along the road. Simply declare your topic: “Now, let’s talk about the data you relied upon in reaching your opinion.” This is not a question, but nobody ever objects. Everyone in the courtroom appreciates you telling them where things are heading.

DO – END STRONG

Nothing is worse than a cross that ends with a fizzle rather than a bang. There is no excuse for a bad finish. You want to end strong because the jurors will remember best what you did last (principle of recency). Always reserve for your last line of questioning a powerful, invulnerable point founded on admissible evidence which the witness must concede or be impeached. Couple that strong point with your confident appearance and “No further questions,” and you have concluded an organized dynamic cross.

THE CROSS-EXAMINER’ DEMEANOR – DO’S AND DON’TS

Don’t Show the Damage

You asked the “Why” question on cross-examination. And, you just learned why it is a commandment that you should never ask a “why” question on cross. You learned that you opened the door for the expert witness who is now expounding on the other side’s case theory. You wish you could go hide under counsel table. But, that’s not an option.

Don’t let the jury see you bleed. Remain calm, and don’t let the damage register on your face. The jurors are constantly watching you. If you reveal how much the witness’s answer hurt, it will just compound the harm. Even worse, your crushed reaction may turn the jury against you and your client. It’s to your advantage to maintain a poker face.

Don’t Be Cross and Don’t Get Ahead of the Jury

Axiom for cross-examination: You don’t have to be cross to cross-examine. James W. McElhaney in McElhaney’s Trial Notebook put it this way when discussing quarreling with a witness on cross: “. . . Once again, the hallmark of poor cross-examination is arguing over unessential details.

“Part of the problem of the needless quarrel is the demeanor of the cross-examiner. Usually it is not a good idea to ask questions in an accusatorial manner. The jury has a lot of sympathy with the person in the witness box. The advantage of the lawyer in being able to ask questions and insist on answers to them is obvious to the jury. Unnecessary hostility is likely to backfire.

“Yet there may be a time for a raised eyebrow, a series of rapid fire questions or even righteous indignation. To some extent the jury gets its cue from counsel how to respond to the testimony, and you should not neglect this role. The problem is to strike the proper balance without putting on a transparent act. One good way to approach this balance is to keep from being hostile with a witness even one you know is lying, unless the jury can see you have a good reason for it.”

Another way to express this principle is: Never get ahead of the jury. In other words, don’t go after a witness harshly unless you are convinced the jury thinks the witness deserves it.

Don’t Be Nasty

In On Trial: Lessons from a Lifetime in the Courtroom, Henry G. Miller states: “A soft word turneth away wrath. A smile can disarm the most hostile witness. Be courteous and fair to all witnesses and by your decency carry the jury with you. I believe these sentiments and try to practice them.”

Be a Seeker of Truth and Show It

The proper demeanor for the cross-examiner is to be professional and a seeker of truth. As a seeker of truth, you may ask tough questions. While jurors do sympathize with witnesses who are being subjected to cross, witnesses differ and so must the cross-examiner’s demeanor. When cross-examining the vulnerable witness, such as a child, counsel’s manner normally should be solicitous. On the other hand, when cross-examining an expert witness, particularly one who is gives evasive answers, counsel’s demeanor may be more assertive. Again, never get out ahead of the jury.

Be Confident

Henry G. Miller in On Trial offers another sound piece of advice: “Act Like You’re Getting Somewhere. Great cross-examiners always act as if they’re getting somewhere. They start smartly. They finish smartly. They exude confidence. They seem to find guilty inferences in every answer, no matter how innocent.”