Saturday, July 6, 2019


Anatomy of a Murder

The primary purpose of cross-examination should be to catch the truth. The sought-after truth is evidence that supports your case theory or undercuts your opponent’s case theory. This is nothing new. In the Art of Cross-Examination authored by Francis Wellman, a chapter is contributed by Emory Buckner. In that chapter, Buckner writes that “more cross-examinations are suicidal than homicidal in nature.”  He postulates that this is a result of cross-examiners not understanding the correct purpose of cross-examination. Buckner states, “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The primary purpose of cross-examination should be to catch the truth. Impeachment should be a secondary purpose. Three other reasons support this proposition. First, if the witness makes the concession, you may be able to turn the witness to your own. Second, one concession on cross is worth ten pieces of evidence on direct examination. Third, it’s easier to get a witness to grant a concession than it is to impeach the witness.

The most important question that you should ask yourself as you plan cross-examination is: “What must the witness admit or stamp the answer a lie, mistaken or ridiculous.” The witness must admit because the cross-examiner can prove it by direct or circumstantial evidence or by common sense. Note that if the witness does not testify to the truth, the witness will be impeached. This truth-catching strategy is explored at length in our book Cross-ExaminationHandbook.

Underpinning this approach is the proposition that the concession sought must be the truth. It cannot be false. If the cross-examiner advances an untruth during the cross-examination, that can backfire--another suicidal act. The movie Anatomy of a Murder, considered to be the best trial movie ever made, provides a great example of such a disastrous cross.

In Anatomy of a Murder, an Army lieutenant is accused of murdering Barney Quill, a bartender, whom the lieutenant (Ben Gazzara) claims raped his wife (Lee Remick). At trial, witness Mary Pilant, who managed the inn where Quill worked, is called as a witness for the defense because she found a pair of torn panties that would corroborate the claimed rape. Claude Dancer is the prosecutor–played by George C. Scott—on cross-examination asserts that she was Quill’s lover and therefore willing to plant false evidence—the panties. 

Dancer’s cross-examination goes as follows:

Q.        Miss Pilant, were you Barney Quill’s mistress?
A.         No. No. I was not.
Q.        Do you know it’s common knowledge in Thunder Bay that you were living with Quill?
A.         No, it’s not true. Barney Quill. . .
Q.        Was what, Miss Pilant? Barney Quill was what?
A.         Barney Quill was my father.

Dancer is crushed, turns away, asking no more questions.

Gregory Peck as Atticus Finch in To Kill a Mockingbird

Atticus Finch in Harper Lee's To Kill a Mockingbird, says “Never, never, never, on cross-examination ask a witness a question you don’t already know the answer to, was a tenet that I absorbed with my baby food. Do it, and you’ll often get an answer you don’t want, an answer that might wreck your case.” Thinking you know the answer is not enough, you must be able to prove it. When you can, you can go after the ever “elusive fugitive”—the truth, knowing you will have a winning cross.