CROSS-EXAMINATION: LESSONS OF A LIFETIME

Trial lawyer Henry G. Miller promulgated rules that should govern cross-examinations based on his lifetime in court. Miller’s four  rules come with some notable exceptions. The following is what Mr. Miller says about these rules and the exceptions to them in his book On Trial: Lessons from a lifetime in the courtroom, ALM Publishing, New York 2001, pages 58-59:

“FOUR RULES (with a “But”)

“1.       Don’t Repeat Direct. This is the most common mistake of the apprentice. The direct covers ABC. The cross covers ABC. All that does is reinforce the direct. Rather, on cross we should go for what wasn’t covered on direct. Sometimes they don’t cover what they’re afraid of.

“On direct, they never asked their own janitor about prior complaints. Go for it. Of course, we must be wary of traps. I said, ‘Don’t repeat the direct.’ But, there’s an exception: make a witness repeat a pat rehearsed statement to establish its falsity.

“For example, when the defendant’s construction foreman who has an eighth-grade education says, ‘We had a perfect safety record neither blemished nor tarnished by prior incident and therefore we were never on notice of a dangerous condition,’ please have him repeat that.

“2.       Don’t Be Long.  Everybody knows the first rule of cross is to sit down. ‘No questions’ can be very effective. Don’t ask more questions than you must.

“But we all know of witnesses who enthrall jurors at first. It takes time to discover their true nature. Mr. Pharmacist was upright, splendid and impeccable for the first two days of cross. After a lengthy and sustained review of all his records by the plodding cross-examiner, Mr. Pharmacist finally admitted he changed the records of the prescription prior to the lawsuit.

“Occasionally, it takes time to capture the quarry.

“3.       Don’t Ask Why. That’s elementary. That’s like asking an enemy expert for his reasons.

“But sometimes when the witness is cornered there is no better question. First, we must make sure all escape routes are tightly closed. ‘Why didn’t you come to the emergency room when called?’ It was know that the doctor wasn’t operating and that he wasn’t busy, but is was also known that he wasn’t there because he had a personality conflict with nurse in the E.R. Why, indeed, didn’t he come?

“’Why’ can be a great weapon, but perhaps it’s best left to the more experienced hunter.

“4.       Don’t Be Nasty. 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.

“But I must admit that some bristling nasty cross-examiners are stupendously successful. They know when to pounce and when not. These Tartars thrive on nastiness. Some would say they couldn’t be anything but trial lawyers. And, jurors, perhaps bored with their own lives, love it. MORAL: No rule is absolute.

“The judge calls again, ‘Mr. Shakey, are you ready to cross-examine?

“Shakey rises and with cool distain stares at the witness. ‘Mr. Exaggerator, do you mean to tell me that. . .?”          

This and other rules for cross-examination can be found here.

THE CROSS-EXAMINER’S DEMEANOR

We have previously discussed how to behave on cross and that discussion of the cross-examiner’s deportment is worth revisiting. The do’s and don’ts of how to behave during cross-examination are as follows:

Don’t Show the Damage

You asked the “Why” question on cross-examination and paid the consequences. You opened the door for the expert witness to expound 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’sTrial Notebook put it this way when discussing quarrelling 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 theCourtroom, 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.”

Do 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.

Do 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.”

CROSS-EXAMNATION MELT DOWN

Casey Anthony Trial with Jeff Ashton on the right

What can be learned about cross-examination from the Casey Anthony case that captured the attention of people across the nation?  Jeff Ashton’s book about the Casey Anthony case, which he prosecuted, is entitled Imperfect Justice: Prosecuting Casey Anthony, and it provides an insightful discussion of the case.

The first lesson is that when you make a witness a centerpiece of your case by placing him upfront as your leadoff witness, you need to make sure the witness is bulletproof and won’t melt down on cross-examination. The dangers of selecting a problematic lead-off witness as illustrated by the Casey Anthony case can be found in a related article.

The second point that is vividly illustrated by the Anthony case is that a witness’s anger can be turned to the cross-examiner’s advantage. When the prosecutor chose George Anthony, Casey Anthony’s father, as the first witness in the state’s case in chief, he was well aware that the defense would allege that George molested Casey. Beyond that the prosecution team knew that defendant Casey Anthony had told therapists that George killed Caylee, his granddaughter by Casey Anthony.

While the prosecution undoubtedly tried to prepare George Anthony to neither lose his temper nor try to outwit defense counsel during cross, that effort failed. Jeff Ashton’s account of the cross describes how pretrial preparation on occasion fails to deter a witness from jousting with the cross-examiner, how an aggressive cross can anger a witness and how painful it is to sit by helplessly watching a melt down. Ashton’s describes what happened to George Anthony on cross-examination in this way:

 “Rather than saying, ‘No, it didn’t,’ (when defense counsel Jose Baez asked George about the condition of a gas can when it was returned to him) and staying consistent with what he’d said to me only an hour or so before, George started to be difficult with Baez, answering his questions with questions for the sole purpose of frustrating him.

“This was not helpful to our case. George must have hated Jose, particularly because of the latest allegations. I think George may have believed that it had been Baez’s idea to accuse him of abusing his daughter. In George’s mind, Casey had only submissively gone along with her lawyer’s plan. None of us on the prosecution saw it that way. To us, the molestation accusation had ‘Casey’ written all over it. Regardless, one thing I was sure of was that Baez knew how much George disliked him and used it to his advantage. Baez probably wanted the jury to see George’s hostility, and George took the bait. He was not bright enough to read what was happening. I wanted to say, ‘George, just stop playing games, just answer the question,’ but I couldn’t. I’ve always wondered if on some subconscious level George was trying to look guilty. Maybe this was his way of helping Casey. I really didn’t think so, but I wondered. For someone who was innocent, he had a way of making himself appear suspect. I didn’t think it would seriously hurt our case, or lend any real credence to the defense’s baseless accusations, but I knew this was not the face of George that we on the prosecution team wanted to project.”

“Baez knew that George would continue to try to dance around the connection between the tape and his house. By now, we also had a video in which the same duct tape was being used at the ‘Find Caylee’ command center. This further made George look like he was lying. If initially he had been trying to protect Casey, now he was looking as though he was trying to protect himself, something not lost on Baez.

“Ultimately, George said that the gas can didn’t have duct tape on it when Casey brought it back. So why the game? He was playing right into Baez’s hands. I just wanted to slap him, and this wasn’t even the end of it. The next thing I knew, George was arguing with Baez about how often he mowed the lawn.

“You cut your grass every week? Baez asked.

“Well, every week, two weeks, ten week days,” George answered instead of simply saying, ‘Yeah, I cut my grass every week in the summer.’

“I could tell that George wanted to spar with Baez about anything. But not only was he not as practiced at the dance as Casey, he didn’t have a motivation to stop. Normally, a  lawyer can appeal to a witness’s better judgment by saying, ‘You’re at risk of allowing the accused murderer to go free by the way you are acting.’ But George didn’t have that motivation because the accused murderer was his daughter. Instead, he was exercising his private outrage at Baez, and ended up looking like he was trying to hide something. He was only shooting himself in the foot. All we could hope was that the jury would understand that George’s anger was justified, that it was directed at Jose, and it was not indicative of complicity.”

Bottom line lessons from the cross-examination of George Anthony: Prepare your witness not to argue or get angry, and if an adverse witness is ill prepared, you can take advantage of it on cross.

NEW JURY SELECTION HANDBOOK: Ideal Companion to Cross-Examination Handbook

Carolina Academic Press has just published Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection (374 pages) by Ronald Clark and Thomas O’Toole. It is an ideal companion to Cross-Examination Handbook.

Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for lawyers who are acquiring their jury selection skills, veteran trial lawyers who want to refresh and expand their approaches and law students. In essence, this book provides a comprehensive view of the jury selection process that can help all attorneys get a better perspective on the strategic choices available to them at every step of the process.

The book offers two perspectives on the principles and practices for conducting jury selection: that of a trial advocacy professor, who has extensive trial experience and as a trial advocacy instructor, and that of a jury consultant, who has picked over 200 juries across the country in state and federal courts on a wide variety of civil and criminal matters with exposure up into the billions.

The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions.

The book provides role-play jury selection assignments for both a civil and a criminal case that can be utilized in law school trial advocacy and clinic courses and in lawyer CLE or in-house law firm professional development training sessions.

Robust online appendices provide examples of jury questionnaires, motions and responses to motions relating to jury selection, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.

Jury Selection Handbook is part of a new series of course books, the Lawyering Series, published by Carolina Academic Press in cooperation with Northeastern University School of Law. The new experiential series, which will include core teaching texts as well as supplemental handbooks, is aimed at meeting the needs of law schools for more practice-oriented materials.