CROSS-EXAMINING THE EVASIVE WITNESS

In the past, we have discussed how to handle the evasive witness on cross-examination. In Chapter 10 of the Cross-Examination Handbook, we explore the different tactics witnesses use to evade the questions and how to control the witness. Recently, the inimitable Elliot Wilcox discussed this topic in a blog piece entitled, “How to Detect 'Non Answers' During Cross-Examination” Here’s what Elliot Wilcox has to say on the subject:

Prof. John Henry Wigmore argued that "Cross examination is the greatest legal engine ever invented for the discovery of truth."  But that's only true if the cross-examination is conducted by a skilled examiner.  Cross-examination is a tool, and like any other tool, its effectiveness is limited by the hand that wields it.  In the hands of a master craftsman, cross-examination can achieve remarkable results.  In the hands of a novice, it can often cause more harm than good.
To become a quality cross-examiner, you must master the ability to critically listen to  witness's answers and identify the weaknesses, fallacies, and evasions in their responses.

One of the more common evasions you'll need to recognize is the "non-answer."  Expert witnesses and well-prepped witnesses are the best masters of the "non-answer."  At their finest, their responses don't even appear to be evasive.  They'll make it sound like they've answered your question, but in fact, they're completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear.

If you've ever watched a political interview, you've probably seen "non-answers" in action.  The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:

Q: Are you prepared tonight to say that you've never had an extramarital affair?

A: I'm not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I'm not prepared to say that about anybody...  I have acknowledged causing pain in my marriage...

Some of your witnesses have mastered the art of giving non-responsive answers.  It's your obligation as a cross-examiner to ask follow-up questions and extract your desired answer.  Here are some examples of "non-answers" you should listen for:

Non-Answer #1: Completely Avoiding the Issue
Q: Does this skirt make me look fat?

A: I love you.  (Or you can try Dave Barry's response: Sticking a fork in one or both eyes to avoid answering... it's much less painful!)

Non-Answer #2: Describing Expected Procedures
Q: Did you request a CAT-scan?

A: It's normal procedure to request a CAT-scan in those circumstances.
Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

Non-Answer #3: Saying What You Will Do or Hope to Do
Q: Do you support higher salaries for judges?
A: I think that's an important issue that we should address.
Q: How soon will you have the weaponized virus contained?
A: We're doing everything we can.

Non-Answer #4: Answering a Question with a Question
Q: Did you lock the store before you left that evening?
A: Why wouldn't I?

Non-Answer #5: Telling What They'd Normally Do in the Situation
Q: Did you check for tire wear patterns?

A: Normally, I would...
Q: No, what did you do?

Q: Did you call for backup before approaching the car?

A: Usually, in these situations...
Q: What specifically did you do in this situation?

Non-Answer #6: Describing What Others Did
Q: Did you find any drugs in the car?

A: We found several packages of cocaine in the center console.
Q: No, what did you find?
Q: Who located the firearm?
A: Our SWAT team found the firearm in the back bedroom.

Non-Answer #7: Guessing or Supposing
Q: Did you read the warning label?
A: I'm pretty sure I would have.

Non-Answer #8: The Speech or the Argument
Q: I'll ask for the fourth time. You ordered --
A: You want answers?
Q: I think I'm entitled to them.
A: You want answers?
Q: I want the truth!
A: You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall.  We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!

Non-Answer #9: Half-Truths or Half-Answers
Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.
Q: Did you order the Code Red?
A: I did the job you sent me to do.

To succeed as a cross-examiner, you need to be prepared to recognize these non-answers and respond immediately.  Many witnesses, especially expert witnesses, are adroit at giving you a non-responsive answer while appearing to fully answer your question.  Once you recognize what they're trying to do, you can counter by asking follow-up questions and pinning them down with a direct response.

One of the best ways to handle non-answers is to simply ask your question again.  For a fun example of someone doggedly refusing to answer a question, watch this clip from the BBC to see Jeremy Paxman's interview of Home Secretary Michael Howard.  In the interview, Paxman asks the same question twelve times.  How many times does Howard actually answer the question?  You'll need to watch the video to see!

http://www.youtube.com/watch?v=1KHMO14KuJk   
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Tip of the hat: Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com 

CROSS-EXAMINATION IN THE BALKANS

Recently returned from the Balkans. For four days – June 29-July 2, 2015, my co-instructor Margaret Bodman (a prosecutor from Columbia, South Carolina and experienced trial advocacy teacher) and I (Ron Clark) conducted a train-the-trial-advocacy-trainers’ course in Prishtina, Kosovo. The course was held under the auspices of the Justice Department’s Office of Overseas Prosecutorial Development and Training (OPDAT). Resident Legal Advisors Michelle Lakomy and Constantine Soupios were in charge of the program. The overarching goal of the course was to spread the rule of law in Kosovo. 

Our audience was composed of Kosovo judges, defense attorneys and prosecutors who will in turn be teaching trial advocacy concepts and skills to other lawyers and judges throughout Kosovo.

Much of our discussions centered on cross-examination. The participants made it clear that cross was the most challenging of trial advocacy subjects to master and to teach to other Kosovars. Margaret pointed out that likewise in the United States it is considered one of our most challenging advocacy skills to learn and teach. During our training, the participants practiced cross-examination (pictured above) and how to effectively critique cross-examinations, which they will do with their students when they conduct advocacy training. It was suggested that Cross-Examination Handbook should be translated into Albanian.

One difficulty that participants expressed is that some of their judges misread their recently adopted Code to require, rather than permit, only leading questions on cross. While asking only leading questions is good technique (some may say a commandment), there can be exceptions.

This was my second opportunity to teach for OPDAT in Kosovo, and, once again, it was an honor and pleasure to work with these receptive and wonderful lawyers and judges in one of the newest countries in the world as it recovers from its recent, war-torn past. Below is a picture of Margaret and me presenting one of the participants with a certificate of completion for the course.

LINCOLN AND CONCESSION-SEEKING CROSS-EXAMINATION

Lincoln & McClellan October 3, 1862 Antietam

There’s an old saying that you can take the boy out of the country, but you can’t take the country out of the boy. Apparently something similar to this old saying was true for Abraham Lincoln—you could take him out of the courtroom, but you couldn’t take the courtroom out of him. A consummate cross-examiner, he would not hesitate to use that skill when prodding his generals into action.

At an early stage of the Civil War it became apparent that President Lincoln and General George B. McClellan did not see eye to eye on the conduct of the war. Lincoln wanted McClellan to take his army (the largest in the world at that time) and make a direct attack upon the Confederacy.  McClellan wanted to take his time to prepare for a roundabout attack. 

On February 3, 1863 Lincoln sent McClellan a letter summarizing their differences and asking five questions. In accordance with the cross-examination maxim to never ask a question when you don’t know the answer, Lincoln believed that he already knew the short answers to each of these questions. He hoped by his letter to cause McClellan to shake off his lethargy and get moving directly at the enemy. Lincoln’s letter [with the obvious answers inserted in brackets] is set forth below:

My dear Sir: You and I have distinct, and different plans for a movement of the Army of the Potomac---yours to be down the Chesapeake, up the Rappahannock to Urbana, and across land to the terminus of the Railroad on the York River---, mine to move directly to a point on the Railroad South West of Manassas.

If you will give me satisfactory answers to the following questions, I shall gladly yield my plan to yours.

1st. Does not your plan involve a greatly larger expenditure of time, and money than mine? [Yes.]

2nd. Wherein is a victory more certain by your plan than mine? [Nowhere.]

3rd. Wherein is a victory more valuable by your plan than mine? [Nowhere.]

4th. In fact, would it not be less valuable, in this, that it would break no great line of the enemie's communications, while mine would? [It would.]

5th. In case of disaster, would not a safe retreat be more difficult by your plan than by mine? [It would.]

Yours truly

A. LINCOLN [5 Complete Works of Abraham Lincoln, pp. 118-119]

The elephant in the room was the fact that McClellan’s plan would strip Washington of its defenses and expose it to a direct attack from the Confederates.

When a witness under cross-examination believes that the short answer to a question will be harmful, the witness will engage in any number of evasive techniques, one of which is to give a long, self-serving dissertation which camouflages the lack of a direct response in a torrent of words. This may or may not have been McClellan’s objective when he answered the questions, but his lengthy response [reproduced at 5 Complete Works of Abraham Lincoln pp. 121-124] did fail to give direct answers to the questions.

Unfortunately for Lincoln’s plan, he was in the war room, not in the courtroom. Although he probably would have been able to get a jury to agree with him he was unable to goad McClellan into direct action.

BRILLIANT BUT COUNTERPRODUCTIVE CROSS-EXAMINATION

Sometimes a brilliant cross-examination is counterproductive. You should always be aware of your audience and tailor your questioning to their biases and preconceptions. The difference between a winning cross-examination and a disaster quite often has less to do with the answers you get than with the audience who hears them. 

Abraham Lincoln almost wrecked his political career with a brilliant series of questions which exposed the faulty logic used by his opponents. It was during his first and only term as a Congressman, and it came at a time when public enthusiasm for the war with Mexico was at a fever pitch. Lincoln did not share that enthusiasm, thinking that the war was ill-conceived and motivated by the desire to advance slavery by adding more states below the Mason-Dixon Line.

President Polk justified the war by saying that it was retribution for the spilling of American blood during an incursion of the Mexican army onto American soil. The only problem with the justification was that there were no Americans living at the location where the blood was shed; the location where the blood was shed was historically a part of Mexico; the army that was making the incursion was the American army, not the Mexican army; and the Americans who shed their blood in that location were invading American soldiers.

Frederick Trevor Hill, writing in Lincoln the Lawyer, described the situation like this:

There was a great chance for the orator and cheap patriot in the [excitement over the war] and Lincoln was urged to make the most of his opportunity and distinguish himself. But although he knew what was expected of him and what alone would satisfy his friends, and was well aware that no critic of his country is tolerated while its foes are under arms, he refused to compromise with his conscience and fought the government policy with all his might and main.

Then for the first time in his public life his power and training as a lawyer were called into play, and in a series of questions which no one but a skillful cross-examiner could have phrased he disposed of the casuistical explanations of the war.

President Polk, in his several messages to Congress, had repeatedly referred to “the Mexican invasion of our territory and the blood of our fellow-citizens shed on our soil,” and quoting these statements as his text, Lincoln introduced his now famous “Spot Resolutions,” wherein the President was requested to answer eight questions calculated to inform the House [of Representatives] whether the particular spot on which the blood of our citizens was shed was or was not at that time “our own soil.” There was no escape for the Executive from these questions: they were pertinent, penetrating, and not without a certain grave humor, and each was so drawn as to preclude the possibility of equivocation or evasion.

Moreover, they showed an historical knowledge of the facts which could not be trifled with, and no one supporting the governmental policy could possibly have answered them all without being caught in a contradiction:

“Resolved by the House of Representatives [they began]. That the President of the United States be respectfully requested to inform this House —

“First. Whether the spot on which the blood of our citizens was shed, as in his messages declared, was or was not within the territory of Spain, at least after the treaty of 1619 until the Mexican Revolution.

“Second. Whether that spot is or is not within the territory which was wrested from Spain by the revolutionary government of Mexico.

“Third. Whether that spot is or is not within a settlement of people, which settlement existed long before the Texas revolution and until its inhabitants fled before the approach of the United States Army.

“Fourth. Whether that settlement is or is not isolated from any and all other settlements by the Gulf and the Rio Grande on the south and west, and by wide uninhabited regions on the north and east.

“Fifth. Whether the people of that settlement, or a majority of them, or any of them, have ever submitted themselves to the government or laws of Texas or of the United States, by consent or by compulsion, either by accepting office, or voting at elections, or paying tax, or serving on juries, or having process served upon them, or in any other way.

“Sixth. Whether the people of that settlement did or did not flee from the approach of the United States Army, leaving unprotected their homes and their growing crops, before the blood was shed, as in the messages stated; and whether the first blood so shed was or was not shed within the enclosure of one of the people who had thus fled from it.

“Seventh. Whether our citizens whose blood was shed, as in his messages declared, were or were not at that time armed officers and soldiers, sent into that settlement by the military order of the President, through the Secretary of War.

“Eighth. Whether the military force of the United States was or was not so sent into that settlement after General Taylor had more than once intimated to the War Department that in his opinion no such movement was necessary to the defense or protection of Texas.”

No interpellation of a government was ever phrased in more telling questions. They were unanswerable, and the administration sought safety in silence.

Lincoln’s constituents, however, were not silent, and they let him know in no uncertain terms that they were not happy about how he had exposed the President’s disingenuous excuse for going to war. Realizing that he could not possibly win a second term in Congress, Lincoln declined to run for re-election and returned to his law practice in Springfield thinking that his career as a politician was over.

MORAL: The next time you plan a cross-examination, be sure ask yourself if the jury’s biases and preconceptions will prevent them from appreciating the brilliance of your proposed line of questioning.

REVIEWS OF THE NEW EDITION OF CROSS-EXAMINATION HANDBOOK

Here are a couple reviews of the new edition:

Ethan Morris reviewed the second edition in this way:

This book really should be called The Cross-Examination Bible. Clark, Dekle and Bailey have done the heavy lifting, amassing the best strategies and techniques for any trial lawyer or student.

First and foremost, don’t be fooled by the name. This book teaches so much more than just how to question a witness on the stand—including the fundamentals of building a case theory, and turning it into a story that will resonate with a jury. In terms of cross-examination, no stone is left unturned. This book breaks it down, showing how to identify the purpose of a cross, preparing questions, and executing it effectively for the jury. Every technique is illustrated with real-life examples from masters such as Clarence Darrow, F. Lee Bailey, and Abraham Lincoln, through transcripts of some of their most famous trials.

I found the section on finding and using social media materials to impeach witnesses particularly illuminating, given how prolific people’s “digital” lives are becoming. This edition also features a great new section on visual storytelling, something that can make or break a case, including when and how to use photos, computer animations, charts or graphs.

In law school, I was an avid mock trial competitor. Oh that I wish I’d had this book then! As a new attorney starting my career in trial work, the Cross-Examination Handbook is one of the few textbooks that not only will I keep, but will refer to again and again.

Stuart Stringer offered this review:

Cross-examination is a critical part of litigation practice and often can be daunting to prepare for. For me the great challenge of preparing for cross-examination lies in the fact that testimony and witnesses can be so unpredictable. The Cross-Examination Handbook does a great job of breaking down, preparing and building strategies for dealing with the unpredictability of testimony. This book is all about thorough, detailed and careful preparation, preparation that leads to success in the courtroom. The Cross-Examination Handbook is a tool that I have found incredibly powerful for my practice.

CROSS-EXAMINATION AS THE FOUNDATION FOR SUMMATION

I (Bob Dekle) vividly remembered a brilliant cross-examination that I did of a defendant in a First Degree Murder case. Being a typical trial lawyer means you are also a raconteur, so I told and retold the story of this cross-examination over and over, and as the years rolled by it became more brilliant with each retelling of the story. When I became a legal skills professor at the University of Florida, I naturally thought that the story of the cross would make a good lesson for one of my classes. Rather than retell the story from memory, though, I decided to go to the actual court file and get a copy of the transcript of the cross.

You can imagine my chagrin when I got the transcript and discovered that the defendant never testified at trial. I was certain that I had done the cross. Perhaps I had done it during the defendant’s testimony on a pretrial motion to suppress. I pulled out the transcript of the motion hearing, and found that the defendant hadn’t testified at the suppression hearing either. I was beginning to feel that I was in the Twilight Zone.

I was still dead certain that I had done the cross. Where was it? Then I got an idea. I read my final argument and there it was! I had prepared my cross as a series of short declarative statements with an appended tag question. (e.g. You did it, didn’t you?) Since it was a concession-based cross, the declarative statements were statements of fact with which the defendant could hardly disagree. When the defendant failed to take the stand, I had merely dropped the tag questions, changed the second person "you" pronouns to third person "he" pronouns, and incorporated the cross-examination into my final argument.

Solving the mystery of what had happened to my “brilliant” cross reminded me that I had done the same thing a number of times before. The first time I ever did this was back in the early 1980's in a drug trafficking case. The defendant was caught driving a tractor trailer loaded with a half ton of marijuana, and he had given the arresting officer a cock-and-bull story about how he had been hired by a mysterious disappearing stranger to drive the tractor trailer from Point A to Point B without opening the trailer to look inside.

I prepared what I anticipated would be a blistering cross-examination, and I was bitterly disappointed that his lawyer rested without calling him. I thought I had prepared  good cross-examination and I really wanted to use it, so I used it in final argument.

Cross-examination is, after all, a tool for laying the foundation for your final argument. When the defendant disappoints you and doesn’t take the witness stand, you can still use your preparation for cross as a component of your final argument.