CROSS-EXAMINATION: NO PITTING

On cross-examination, avoid pitting. When the cross-examiner asks the witness to contradict another witness, it’s called pitting. Here’s an example:

Q. . . .You never told those detectives that you were a lookout in this case, huh?

A. No I didn’t.

Q. So you heard them both get up there and say that you told them that, right?

. . .

Q. And, now, I guess, you’re telling this jury that these two detectives came in here today and got up here and lied?

[OBJECTION SUSTAINED]

Q. You heard those two detectives get up there and say that you told them you wer a lookout. Is that true?

A. Right.

Q. Are you saying they lied?

[DEFENSE COUNSEL]: Objection, Judge. This is improper.

[THE STATE]: I’m sorry, Judge. Either one person is telling the truth.

[OBJECTION SUSTAINED]

Sullivan v. State, 751 So. 2d 128 (Fla. 2nd Dist. Ct of Appeals 2000) held: “In Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993), the supreme court held that questions directed to one witness concerning whether another witness lied on the stand are improper for two reasons: first, because witness credibility is a jury question; and second, because the question itself may lead the jury to believe that the witness being questioned is lying.” 

In Shutz v. State, 957 S.W.2d 52 (1997), the Texas Court of Criminal Appeals rejected expert testimony on a child’s truthfulness and cited State v. Carlson, 80 Wash.App. 116, 906 P.2d 999, 1002 (1995), in which the Washington Appellate Court noted that the State could not have offered expert opinion to prove the child witness' credibility and  in a footnote to that comment the court cited State v. Walden, 69 Wash.App. 183. In Walden the prosecutor, during cross-examination, asked a defense witness whether a prosecution witness was “mistaken” in his testimony. 847 P.2d at 958. The Texas Court of Criminal Appeals then noted:

Case law in Washington holds that it is improper to ask one witness whether another is lying because such a question is designed to elicit an opinion as to the credibility of the other witness. The State attempted to distinguish the case by arguing that it merely asked if the other witness was “mistaken” not whether that other witness was “lying.” The court responded that the distinction was irrelevant: Asking a witness whether another witness is lying is certainly more prejudicial than asking whether another witness is simply mistaken.

In both situations however, the questioning is designed to elicit testimony in the form of one witness' opinion as to the credibility or veracity of another witness, a determination which lies solely within the province of the jury.

The rule against pitting in the United States is in contrast with the practice in other parts of the world. An article in the ABA Litigation Section, entitled Examining Witnesses, stated:

            The rules limit your ability to ask the witness on the stand to explain or comment on the testimony of another witness. This is in marked contrast to other legal systems such as the British and South African, in which pitting others’ versions to the witness is often done.

Pitting is not only wrong but also unnecessary. All counsel needs to do is to make sure the testimony of the witness on cross and of the witness who offers conflicting testimony is clear, and the impeachment will be self-evident and counsel can make certain with a strong closing argument that the conflict is not lost on the jury.

5 FAVORITE BOOKS ON CROSS-EXAMINATION

What follows is a list of five of my favorite books on cross-examination. These books are not strangers to this blog that concentrates on the art and science of cross-examination because I have blogged about them before. Below you will find the five favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to the full articles should you wish to visit them. 

#1—The Art of Cross-Examination by Francis L. Wellman

Naturally, at the top of the list is Francis Wellman’s The Art of Cross-Examination. Wellman was a turn-of-the-twentieth-century New York prosecutor is reputed to have litigated more than 1,000 jury trials over the course of a 30-year career at the bar. During that time, he gained a well-deserved reputation as a deadly cross-examiner.

I’ve blogged about Wellman’s book a couple times, including: “Fourth Commandment of Cross-Examination” that discusses the concept of never asking a question to which the questioner does not know the answer. Here’s an excerpt from the blog:

The concept of never asking a question on cross unless you knew the answer did not originate with Irving Younger. Francis Wellman in his seminal work on cross-examination, The Art of Cross-Examination, stated the rule and expressed it better a long time before Younger. On page 23 of the 1936 edition of Wellman’s book, which was first published in 1903, it states:

“David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, ‘A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place, he didn’t care.’ This is somewhat on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greater blunders in cross-examination. Certainly, no lawyer should ask a critical question unless he is reasonably sure of the answer.”

#2—McElhaney’s Trial Notebook by James W. McElhaney

The article “Organized Effective Cross-Examination” drew upon McElhaney’s Trial Notebook that discusses how to craft a cross-examination that is organized into a dynamic and persuasive presentation, as follows: 

James W. McElhaney, the trial lawyers’ sage, explained this principle as follows: “It is the theory of the case, then, that provides the starting point for organizing cross-examination. If we once again take organization in the broader sense – content as well as order – the first question is not just what to include, but whether to cross-examine a witness at all.

“The obvious answer is, do not cross-examine a witness unless it would help the case to do so. The only difficulty with that is knowing when it would help the case.

“Understandably, it is a point about which thoughtful lawyers can disagree. There are some, for example, who are quick to say, ‘no questions.’ And there are some far more who ought to follow their example.”

The primary goal of cross-examination is to either bolster your case theory or undermine your opponents. And,  the focus of the concession-seeking cross should be on making main points, not exploring minutia.

#3—Examining Witnesses by Michael E. Tigar

In an article on “How to Start a Cross-Examination,” I quoted Tigar’s words of wisdom from Examining Witnesses:

“To begin (cross-examination) strong you must choose an area in which the witness will agree with you. Preferably, the witness will also want to agree with you. What do I mean “want to”? If you are going to cross-examine a police officer on a defect in his report, you will begin by establishing how careful a report writer the witness is. The witness wants to tell you this.

“Face the witness. Smile at the witness. The smile need not be friendly, but it must be polite. Remember, you want this witness to agree with you. You will see British barristers take a superior attitude toward the witness, lofty and disdainful. You will see American lawyers – real or on television – sneering and snarling. Don’t do any of that. With whom will the jury identify in a contest between a witness who is just sitting there and a snarling, sneering, supercilious lawyer? Oh, maybe later, when the jury is brought along to your point of view, you can change mien. But, for now, a polite smile.”

#4—Winning at Cross-Examination by Shane Read

In this Cross-Examination blog space, I wrote a review of Shane Read’s book on cross- examination that reads, in part, as follows:

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. . .

#5—Cross-Examination Handbook: Persuasion, Strategies, and Techniques by Ronald H. Clark, George R. Dekle, Sr. and William S. Bailey

And, of course, saving the best for last is our book—Cross-Examination Handbook.