CROSS-EXAMINING THE TOUGH WITNESS

Even when you are equipped with the skills and strategies covered in Cross-ExaminationHandbook, they will not be enough to do damage to the credibility of a tough witness. A tough witness is one who is armed with the truth and has been thoroughly prepared to testify at trial. The best that you can accomplish with a tough witness is to elicit concessions that either support your case theory or undermine the other side’s case theory.

What is entailed in the thorough preparation of a witness? The following is an indispensable checklist along with notes for thorough and effective witness preparation that you can use when you prepare your witness. And, when you come up against the tough witness, you know that opposing counsel has relied upon a similar checklist.

Ö      Preparation for the courthouse and courtroom:

–      Courthouse – where is it? Note: It is not unheard of that a witness will go to the wrong courthouse or courtroom. Tell your witness not only where the courthouse is but also where the courtroom is located.

–      Courtroom Layout. Notes: Much of your witness preparation is designed to familiarize the witness with everything. Most people have a fear of the unknown, and this preparation can alleviate some of that fear. Either show the witness a diagram of the courtroom or take the witness to the courtroom. If you have a child witness, definitely take the child to the courtroom, have the child sit in the witness chair and otherwise learn about the courtroom. Tell the witness who the courtroom players are and where they will be positioned in the courtroom, such as where the clerk, bailiff and court reporter are situated (except for the defendant in a criminal case which could result in a mistrial).

–      Don’ts: Notes: Tell the witness not to discuss case in or around the courthouse. because jurors may be on the street around the courthouse or in the halls or on the elevator. Instruct the witness to not enter the courtroom until summoned because witnesses are excluded. This does not apply to the client(s) and to the detective in a criminal case.

Ö      Preparation on the witness’s role and substance:

–      Witness’s Role. Notes: Tell your witness to tell the truth. If it hurts, tell the truth. Tell your witness that the only instruction that you have given them regarding what to say is—tell  the truth. Ask the witness, “What damaging information is out there?” You need to know because only if you know what it is, can you deal with it.

–      Review Prior Witness Statements. Notes: Have the witness review all prior witness statements that the witness has given. Tell the witness before the witness goes over the statement that the witness should not feel wed to what is in the statement. If there is something erroneous, the witness should let you know.

–      Cover the Witness’s Story. Notes: Go over the witness’s story in detail and probe for any weaknesses. If there is a weakness, have the witness explain. Witnesses are commonly not good at estimating things like time and distance. Go over this. For example, if the witness says that the two individuals were five feet apart, have the witness show you how far they were apart using objects in the room.

–      Practice Direct Examination. Notes: Walk through it. Practice with exhibits and demonstrations

–      Practice Cross-Examination. Notes: Explain to the witness that you are going to step into opposing counsel’s shoes and conduct a cross-examination (you may have another colleague do it). Ask tough questions that you expect from the other side. Tell your witness not to worry about cross-examination because the witness is telling the truth.

Ö      Preparing the Witness on How to Testify:

–      MRPC 3.4(b) prohibits coaching to testify falsify. Notes: However, you can help the witness be a good communicator. Help the witness be Confident, Clear and Credible.

–      1.  Have a Good Appearance. Notes: Tell the witness to dress appropriately for court. When sitting in the witness chair, the witness should have good posture—sit up straight.  Speak clearly, and here you can explain the role of the court reporter and the need to speak clearly and not to rapidly. The witness should avoid distracting habits, such as chewing gum or fiddling with a pen.

–      2.  Courtroom Rules. Notes: Tell the witness that if there is an objection, stop talking and listen for directions regarding what is to be done next. Tell the witness that if they can’t remember something, say so. And, explain how you may seek to refresh recollection if the witness can’t recall and the procedure for refreshing recollection.

–      3.  Communication on Direct. Notes: Tell your witness that only the jury counts, and that the witness should talk to them. If court procedures permit, explain that you will stand at the end of the jury box so that the witness will be looking down the jury box towards you. Tell the witness that this courtroom positioning is intended to remind the witness both to speak up so the furthest away jurors can hear and to look the jurors in the eyes and talk to them as though they were having coffee together. Tell the witness that the jurors have no axe to grind with the witness and they are just trying to learn the truth, which the witness will deliver.

–           4.  Communication on Cross. Notes: Discuss keeping composure on cross. You can explain that the witness should never get cute or argue with the questioner. To assist the witness with that endeavor, you can explain that while the witness will not be able to address the jury after testifying, counsel may and in doing so, counsel can comment on the witness’s lack of composure and how the witness’s demeanor showed the witness was not credible. Explain that contrary to direct examination when the witness should look at the jurors, during cross, the witness should look directly at counsel. Instruct the witness listen carefully to the question that is asked and answer it directly. Don’t volunteer information.

NEW TRIAL BOOK: SIX CAPSULES: THE GILDED AGE MURDER OF HELEN POTTS-- BOOK REVIEW

George R. (Bob) Dekle, Sr. has done it again. He has written Six Capsules:  The Gilded Age Murder of Helen Potts. It is another splendid book by Bob—this time a “true crime book” that recounts the poisoning of Helen Potts by Carlyle Harris and the high profile murder trial of Harris in the late 19^th century.

Bob’s prestigious list of prior books, among others, includes: Cross-ExaminationHandbook: Persuasion, Strategies, and Techniques (which I co-authored along with William Bailey); The Last Murder: The Investigation, Prosecution, and Execution of Ted Bundy (2011); The Case against Christ: A Critique of the Prosecution of Jesus (2011); Abraham Lincoln's Most Famous Case: The Almanac Trial (2014); Ted Bundy, Celebrity Slayer (2014 Kindle ed.); The Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann; Chronicles of Crime and Criminals: Thirty Two Years in the Courtroom (2017 Kindle ed.); and Prairie Defender: The Murder Trials of Abraham Lincoln (2017).

New York assistant district attorney Francis L. Wellman, who prosecuted Harris, was a familiar character to Bob Dekle because Wellman wrote the second best book on cross-examination entitled The Art of Cross-Examination, second only to Bob’s Cross-Examination Handbook. Notable is the fact that The Art of Cross-Examination is still in print, and, despite its somewhat archaic language, it is still filled with excellent advice regarding how to conduct cross-examinations.

A highlight in Six Capsules is Bob’s description of Harris’s cross-examination of a defense expert witness Dr. Horatio Wood along with Bob’s observations about how Harris conducted the cross. Carlyle Harris was a young medical student who was alleged to have poisoned Helen Potts with morphine to prevent disclosure of the fact that he had convinced her to secretly marry him under assumed names.

Dr. Horatio Wood of the University Hospital in Philadelphia was the defense witness expert upon whom the defense case rested. On direct examination, Wood in essence testified that given that the body had been embalmed and buried for a length of time, it was not possible to determine the cause of death and that her symptoms were “compatible with various conditions.”

I can’t do justice here to either how Bob describes Wellman’s cross of Wood or Bob’s analysis of Wellman’s strategies and skills as a cross-examiner. Suffice it to say, Wellman did the following:

·      Challenged Wood’s opinion that morphine poisoning could not be diagnosed based upon symptoms.

·      Took advantage of Wood’s assertion that a definitive diagnosis could not be reached based upon symptoms but a physician confronted with them would come to a working diagnosis she had been poisoned.

·      Attacked Wood’s qualifications—Wood had seen only one case of morphine poisoning and that was 20 years before the Harris trial.

·      Examined Wood with a portion of his book in which he stated: “I have thought that inequality of pupils is proof that a case is not one of narcotism; but Professor Taylor has recorded an instance of opium-poisoning in which it occurred.” Then, Wellman confronted Wood with the fact that Taylor’s case involved a man with one eye. (This was followed with laughter from the spectators.)

·      Wellman concluded with “You may go back to Philadelphia, sir.”

Bob Dekle is a meticulous researcher, and he reported what the newspapers said of Wood’s trial performance under Wellman’s cross, as follows:

“The Herald reported that when Jerome dismissed Wood from the witness stand, the doctor ‘hurried away from the witness stand with that pained expression sometimes visible on the face of a picnicker who sat on an anthill.’ Upon Wood’s return to Philadelphia, he remarked that he had ‘gone to New York only to make a fool of himself.’ . . .”

To get both the full enjoyment of a true crime history book and insights into effective trial practice, particularly cross-examination, read  Six Capsules.