SMOKE-AND-MIRRORS CROSS-EXAMINATION AND COURTROOM POSITIONING

Where to Stand

Recently I (Bob Dekle) had my class doing practical exercises on concession-seeking cross-examination. See Cross-Examination Handbook for a discussion of the concession-seeking method.  Since we were in a mock courtroom, the non-performing students played the role of jurors and the witness took the witness stand. The first performer asked me if she should move the lectern to the middle of the courtroom so that the jury could fix their attention on her rather than the witness. She had been working in a law office, and she said that was what some of the associates told her she should do. I began by telling her that I was probably going to be giving her the minority report on this issue, and then I began to explain why I didn’t think what she suggested was such a good idea.

“I’ve been to lots of CLE classes on trial advocacy where the speakers taught that you should do this. The conventional wisdom is that on direct you hide yourself from the jury so they will focus on the witness and on cross you get out in front of them so they can focus on you. I understand why they say this, but I disagree.

“On direct, you want the witness to be the source of information, with you guiding the witness through the testimony, so naturally you would want the jury to fix their attention on the witness. On cross-exam, you want to be the source of information with the witness simply being there to agree with you and advance your case or disagree with you and destroy his credibility. Why shouldn’t the jury be focused on the source of information on cross just as they are on direct? Here’s why:

“On concession-seeking cross you’re asking questions that the witness can’t deny without looking bad. You want the jury looking at the witness so that they can see his distress as he makes disagreeable admissions or see him sweat as he tries to dodge those disagreeable admissions. If the jury sees the witness sweating blood over admitting something helpful to your side, the assertion becomes more believable for the witness’s distress. If they see the witness squirming as he tries to avoid admitting the obvious, they begin to disbelieve the harmful things the witness has said on direct. They miss all this if they’re looking at you and not the witness.

Smoke and Mirrors Cross-Examination

“There is only one time that I can think of where it might be desirable to make yourself the center of attention on cross. If you’re doing a smoke-and-mirrors cross trying to discredit a truthful witness, the last place you want the jury looking is at the witness.”

Just as the Wizard of Oz wanted Dorothy to pay no attention to the man behind the curtain [i.e. the truth], the smoke-and-mirrors cross-examiner wants the jury to pay no attention to the witness [i.e. the source of truth].    

I went on to give the student another opinion that might run against conventional wisdom. I advised against the smoke-and-mirrors style of cross. First, it’s dishonest to pretend a fact is untrue simply because it is disagreeable. Second, most moderately intelligent jurors can tell when you’re trying to make green look red, and you’re going to destroy your credibility with them. Third, I think you can make more headway by trying to mitigate the disagreeable fact than by trying to disprove it. Fourth, no witness ever took the witness stand who didn’t have information helpful to the other side. You score more points with a jury by corkscrewing that information out of the witness. Remember, we’re talking about the cross of a truthful witness, and a truthful witness is going to reluctantly tell the truth even though it hurts his side. If the witness becomes untruthful in trying to avoid those helpful admissions, then the witness himself gives the jury reason to disbelieve the truth he said on direct examination.

There’s an old saying that cross-examination is more often suicidal than homicidal. If, instead of trying to impeach the unimpeachable witness, you work at a concession-seeking cross, he just may commit suicide and impeach himself by trying to avoid admitting the obvious. Your job in that situation is not to murder the witness, but to emulate good Dr. Kevorkian and assist the suicide.

LINCOLN USED CONCESSION-SEEKING CROSS-EXAMINATION

The Crafton Murder Trial Cross-Examination

Abraham Lincoln’s fame as a cross-examiner rests in large part on his decisive use of an almanac to discredit a witness in what history remembers as the Almanac Trial. If we dig into the history books, we can find much better support for the proposition that he was an excellent cross-examiner.

In the late 1980’s the transcript of Lincoln’s last murder case was discovered in a shoe box by the great granddaughter of the defendant. Peachy Quinn Harrison came from a well-to-do family, and they were able to do something that was rarely done in those days—they hired a court reporter to take down the testimony at the trial. Apparently the reporter was providing the defense team with daily copies of the testimony, and Harrison kept the transcript after his acquittal.

The facts of the Harrison case are briefly this: Harrison and another young man, in addition to being political enemies, were apparently rivals for the affection of a young lady. They almost came to blows at a Fourth of July picnic, and afterward exchanged threats and counter threats. Greek Crafton threatened to “whip” Harrison, and Harrison threatened to shoot or kill Crafton if Crafton laid a hand on him.

They came to blows in a drugstore one Sunday morning in August of 1859. Crafton apparently was the aggressor, with Harrison saying he did not want to fight. Crafton grabbed Harrison, and in the ensuing scuffle Crafton suffered a severe stab wound. Harrison fled the scene and it was several days before officers could get him arrested. In the interim Greek Crafton died of his wounds. The Sangamon County Grand Jury indicted Harrison for the murder of Crafton, and the trial commenced on August 31, 1859. They believed in speedy trials in those days.

The star witness for the prosecution was John Crafton, the victim’s brother, who had sustained a severe cut on his arm when he came to the aid of his brother. Lincoln’s main strategy was to portray Greek Crafton as the aggressor. He intended to do this by a concession-based cross-examination getting John Crafton to repeat admissions he made at the preliminary hearing. See Cross-ExaminationHandbook for further discussion of concession-seeking cross-examination. There was no court reporter at the preliminary hearing, but the defense team took notes on the testimony for use at the upcoming trial. Lincoln also wanted to assert facts that either would later be proven by other witnesses or had already been proven by state witnesses, thereby impeaching John Crafton with the contrary testimony. The cross-examination went like this:

Q. About that time [when the fight began] did you hear either of the parties say anything?
A. No, sir. I don’t remember any such thing. I think I said the first thing spoken in the room. I told Mr. Short to let them loose, that Greek could whip him. [Other state witnesses had already testified to an exchange of words between the two men].
Q. You did not add that “Greek should whip him?” [Another fact already testified to by a state witness].
A. No, sir, but I told him he could whip him.
Q. Did you see anything about the beginning or for a little while of Harrison holding on to one of the counters? [Other witnesses had already testified that Greek accosted Harrison in a drugstore and began pulling him away from a counter, whereupon Harrison got hold of the counter to resist].
A. No sir *** I did not see any holding on.
Q. Were they so far from the counter as to leave no question about it in your mind?
A. I suppose if a man had tried, he could reach the counter from where they were. ***
Q. And then you pulled on him, rather to pull him out of the fight? [Already proven by other witnesses].
A. I could not say whether I pulled him or not. I caught his arm and told him to let them loose. I held on until he pushed me backwards over this south counter. ***
Q. You moved along rather in a row and you came to the boxes first before Greek?
A. No, I think Greek fell about the time I leaned over this counter, pushed by Short. About that time I saw him fall.
***
Q. You did not see the knife when the blow was given?
A. I did not see the knife go into him.
[Lincoln now has the witness reenact the struggle].
Q. I suppose when you told Short to let him alone—that Greek could whip him, that you had the ordinary meaning and wanted Greek to whip him?
A. I thought after they got into the fight that Greek could whip him.
Q. And you wanted him to? [The probabilities were that John wanted his brother to whip Harrison, so asking the question was a win/win proposition. If John admitted he wanted Greek to whip Harrison, it showed bias. If he refused to admit it, he lost credibility with the jury].
A. Well, certainly I did.

We don’t see a dramatic knockout blow being landed in this series of questions, but that happens more on television than it does in an actual courtroom. What we do see is Lincoln asking short, closed, leading questions which asserted facts favorable to his client. He thereby maintained tight control over the witness. If the witness admitted the facts, well and good. If he denied the facts, Lincoln had the contradictions ready at hand for impeachment. A workmanlike effort which outshines the cross-examination techniques of the other lawyers involved in the case.