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.
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