ZOOM CROSS-EXAMINATIONS AND THE CONFRONTATION CLAUSE

First Jury Selection Via Zoom in Texas

An article in the May 11, 2020 ABA Journal, entitled “Could Zoom jury trials become the norm during the coronavirus pandemic” explored the constitutional hurdles to a virtual jury trial. The article quoted Locke Bowman, executive director of the MacArthur Justice Center in Chicago, as saying that “trials by video would likely compromise rights of defendants under the Sixth  Amendment’s Confrontation Clause, which allows them to confront witnesses.” Further the article states: “’A basis for conviction has always turned on a jury’s ability to assess the demeanor of the witness firsthand. When you take that away, you’ve lost something precious,’ Bowman says.”

Is this correct?

The Sixth Amendment does provide: “"in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The Fourteenth Amendment extends the right to the states. It applies to criminal cases; it does not apply to civil cases or other proceedings.

The United States Supreme Court has already addressed the question of whether the Confrontation Clause is violated when the defendant is able to see and cross-examine the accuser face to face via television.  The case was Maryland v. Craig, 497 U.S. 836 (1990). Defendant Craig was convicted of sexually abusing a minor. At the trial, the child, who had suffered severe emotion trauma and couldn’t testify in the defendant’s presence, instead testified from a room in which the judge, prosecutor and defense attorney were present. The jurors, who were in the courtroom, watched her testify live on television. On appeal, the Maryland Court of Appeals reversed the conviction, finding that the Sixth Amendment had been violated. Justice Sandra Day O’Connor wrote the majority opinion—a  5-4 decision—reversing the lower court and remanded it for further proceedings consistent with the decision.

The Craig decision held that because defense counsel was able to cross-examine the witness and the jury could see defense counsel and the child’s demeanor, the defendant had a constitutionally sufficient opportunity to confront the witness, testing not only the substance of her testimony but also her credibility. Justice O’Connor summed up her opinion as follows:

“In sum, our precedents establish that ‘the Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ . . ., a preference that ‘must occasionally give way to considerations of public policy and the necessities of the case,’ . . .. ‘[W]e have attempted to harmonize the goal of the Clause—placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate factfinding, which may require consideration of out-of-court statements.’ . .  We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e. g., Kirby, 174 U.S., at 61  (‘It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case’); . . . ("Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers. Indeed, one commentator has noted that "[i]t is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99, 107-108 (1972).” Maryland v. Craig, 497 U.S. 836, 849-50 (1990). (Citations Omitted)

Is the pandemic a “circumstance that excuse(s) compliance with the right to confrontation?” Also, is the change in the composition of the United States Supreme Court since the Craig decision likely to lead to the overturning of that decision? The Craig decision is well reasoned, and I think the answers to these questions are “Yes” and “No” respectively.

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 methods witnesses use to evade the question and how to control the witness. 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!

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Tip of the hat: Elliott Wilcox's articles can be found at this website www.TrialTheater.com

CROSS-EXAMINATION WEBSITE

Visit the Cross-Examination Handbook WEBSITE. This website is dedicated to the Handbook and everything involving cross-examination.

Features of the website include the following:

Inside the book--The contents of the book

Author Information

Teacher’s Resources—Login for a Teacher’s Manual for professional development CLE workshops and law school courses and clinics, which can be

Cases Files–The case files that come with the book and are for use in CLE programs and law school classes

GO BIG, NOT SMALL ON CROSS-EXAMINATION

Go Big: As we explain in Cross-Examination Handbook: Persuasion, Strategies, and Techniques, the primary purpose of cross-examination is to convince the jury to adopt your case theory and reject your opponents. This is the big picture. To do this, seek concessions that either build upon or protect your  own case theory or damage the other side’s. A secondary purpose is to impeach the witness’s credibility as unworthy of belief, thereby damaging your opponent’s case. Cross can be fashioned to produce one or both results. When a witness refuses to concede a fact that must be given because the evidence or common sense proves it to be the truth, the witness is impeached.  Of course, if you can gain such significant concessions from the witness that you have turned that witness to your own, remember the big picture—you can forgo impeachment.

In Cross-Examination Handbook, we provide multiple illustrations of cross-examinations that revealed the big picture to the jury. U.S. Attorney Robert Stewart’s devastating cross of an alibi witness in a mega trial of 18 defendant’s known as the ‘Pizza Connection Case.” Bob Dekle’s cross of an expert in Ted Bundy’s last murder trial. U.S. Attorney Robert Stewart’s cross of Zacarias Moussaoui, who was prosecuted for his involvement in the 9/11 terrorist attack. Cross-Examination Handbook goes step by step through how to construct a concession-seeking cross that comports with the cross-examiner’s big objective—building the case or undermining the other side’s case.

Not Small: Nothing is worse than a small, nitpicky cross-examination. It not only bores the jury and makes no headway towards the examiner’s goals but also can turn the jurors against the cross-examiner. A cross should focus on major points and do it without exploring microscopic details. When is it common for cross-examinations to go small? Counsel often will cross a witness on minor inconsistencies between what the witness testified to and a prior statement. Just because the rules of evidence allow for impeachment with a prior inconsistent statement, doesn’t mean it should be pursued. Good judgment is called for. Is it a significant or insignificant matter?

Poor preparation produces picayune points. When an attorney has not thoroughly planned the cross and wings it, that lack of planning often results in that attorney walking through the direct again, picking around the edges. The end result is a cross that repeats the direct and does not promote the cross-examiner’s big picture, is not to the point and is uninteresting.

CROSS-EXAMINATION: PROVING THE PRIOR INCONSISTENT STATEMENT

   In Cross-Examination Handbook: Persuasion, Strategies, and Techniques, we explore both the evidentiary and ethical issues that proof of a prior inconsistent statement raise. If a lawyer wishes to impeach with a prior inconsistent statement, can the lawyer offer the prior statement into evidence through extrinsic evidence, such as testimony by the witness to whom the prior statement was given? Federal Rule or Evidence 613(b) clearly states: “Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).” Rule 801(d)(2) defines a statement offered against an opposing party as not hearsay.

If the witness admits to having made the prior statement, the trial court has the discretion to exclude the prior statement as cumulative under Rule 403. On the other hand, if the witness denies having made the statement, the extrinsic evidence is admissible unless the statement is on a collateral matter. If it is on a collateral matter, the cross-examiner is stuck with the witness’s answer.

A lawyer should never attempt to impeach a witness with a prior inconsistent statement if the prior statement cannot be proven. Some lawyers ask about a prior statement without proof of this in the hopes that either the witness will admit it or, if the witness denies it, that the jury will believe the statement was made anyway. Whatever the examiner’s motivation, it is unprofessional conduct. Model Rule of Professional Conduct 3.4(e) states “a lawyer shall not in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness. . .”

The biggest error comes when counsel has had a one-on-one interview with the witness, and the witness said something only counsel’s ears have heard. When the witness denies making the prior inconsistent statement, counsel cannot ethically blurt out “But didn’t you tell me . . .?” A cross-examiner cannot become a witness without running afoul of ethical requirements under MRPC 3.7 prohibiting a lawyer from being a witness except under limited circumstances. This rookie mistake can be avoided by always having a prover (person whom the lawyer could call to testify) present or another means of proving the witness’s statements when interviewing a person who is or might become an adverse witness.

BOOK REVIEW: WINNING AT CROSS-EXAMINATION

Shane Read never disappoints his readers, and this is certainly true with his book Winning at Cross-Examination: A Modern Approach for Depositions and Trials. As someone who has written a book on cross-examination—Cross-Examination Handbook: Persuasion, Strategies, and Techniques, perhaps I should be jealous and critical. I’m not and won’t be. His book is splendid, proving that you can never write enough about activity that demands thorough preparation and has accurately been described as involving both science and art.

I must admit that I am a fan of Read’s books,  having reviewed his book Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills, which is on a par with his prior award-winning books Winning at Deposition and Winning at Trial.

The book is divided into three parts as follows: (1) cross-examination skills and strategies; (2) skilled trial lawyers, Tom Girardi and Mark Lanier, reflect on crosses in their notable trials; and (3) discussions of cross-examinations in the O.J. Simpson and George Zimmerman trials. Also, in part 3 is a stage reading on Broadway of a cross-examination in the case against 8, which was the challenge to the California proposition that marriage is only between a man and a woman. You can watch that here.

Shane Read has collected other videos of effective cross-examinations that are on his website www.winningatcross.com  You need only enter the password that is on the last page of the index in the book.

Read believes, as I do, that the best way to learn how to be an effective cross-examiner is to watch a skilled trial lawyer at work. Ideally this would be by second chairing a case with that lawyer. A secondary way is to read transcripts and watch videos of good trial lawyers doing cross-examinations. Sections (2) and (3) are designed to help the reader accomplish this goal. As Picasso said, “Good artists copy, great artists steal.”

One grand feature of the book is its marginalia. They include these boxes in the margin: Chapter Road Maps; Practice Tips; and Quotations (Mark Twain’s “An expert is a person hired to divorce yourself from your common sense.). Also nice are the checklists at the end of the chapters.

I wholeheartedly recommend this book to you as a book that you should add to your library along with Cross-Examination Handbook.