Sunday, June 26, 2022



Prosecutor cross-examining Kyle Rittenhouse

As we discuss in Cross-Examination Handbook, there is no specific time frame that fits all cross-examinations because the extent of cross will vary depending upon the circumstances of the case. However, endless cross is tiresome, and the jurors will not recall much beyond the high points. Therefore, we recommend brevity. By editing down the content, the cross-examiner can better maintain the jury’s interest and be more effective. 

To make the best allocation of time and to have a powerful cross, adhere to the following four guidelines:

1. Limit the total number of topical units to be covered to less than a handful—three is ideal;

2. Go big not small—focus your cross on only significant points—avoid minutiae;

3. Once you have covered the material in a unit, such as cross on an expert’s bias, move on to the next unit; 

4.    Don't repeat the direct examination - have the witness repeat the witness's story, and 

5. Above all, do not be tempted to conduct an exploratory cross because something the witness testified to piqued your curiosity.

An illustration of a cross that went on too long is the prosecutor’s cross-examination of Kyle Rittenhouse. Rittenhouse was eventually acquitted in the murder trial over centering on whether he acted in self-defense when he shot and killed two white men during a protest in Kenosha, Wisconsin. You can watch the cross-examination although it ran over 3 hours and you may not last that long. Too long, do you think?

Thursday, June 16, 2022

Cross-Examination and the Witness’s Demeanor and Memory: The Johnny Depp Trial and More

         The demeanor and memory of the witness while testifying are critical factors for the fact finder, whether judge or jury, to consider. Jury instructions guide the fact finder to consider the witness’s demeanor and memory. For instance, one state’s pattern instruction provides: 

        "You are the sole judges of the credibility of the witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In considering a witness's testimony, you may consider these things: . . . the quality of a witness's memory while testifying; the manner of the witness while testifying. . . " Washington Pattern Jury Instruction, Civil 1.02 (emphasis added)

        The cross-examination of Amber Heard’s expert witness by Johnny Depp’s lawyer in Depp’s defamation law suit provides an example of a witness who’s testimony was undermined by her inability to recall. Watch a little bit of it here: 

         It is incumbent upon the cross-examiner to watch the manner of the witness while testifying and note any signs of deception or evasion. Equally important is to pay close attention to how well the witness remembers some facts as opposed to others.  Then, in closing argument the cross-examiner can close the circle by pointing out the telltale signs to the jury or judge.

        A federal judge’ decision in granting a new trial provides a good illustration of how the manner and memory of a witness can influence the fact finder. U.S. District Judge Barbara Rothstein ordered a new trial after a jury had awarded $21.5 million to James Hausman. Hausman claimed that he suffered seizures after an automatic glass door on the Holland America Line cruise ship struck him in the head. See the video above.

  Judge Rothstein held a post-trial hearing after an assistant to Hausman stepped forward and said that Hausman had deleted emails that revealed inconsistencies in Hausman’s account. Judge Rothstein found the assistant’s testimony believable. And, she found that Hausman’s was not credible. Her findings reveal how she weighed Hausman’s manner and memory while testifying in assessing his credibility, as follows: 

        As a witness, he came across evasive and untrustworthy. He appeared to weigh each answer, not for its truthfulness, but to assess whether it would damage his case. Mr. Hausman also seemed to capitalize on his alleged brain injury when it was convenient for him. He was confused or claimed memory loss when confronted with a question or exhibit that appeared to undermine his claims, yet animated and full of information when his testimony supported his case.”

Monday, June 6, 2022



Under Rule of Evidence 803(18) hearsay exception, an expert may be cross-examined concerning learned treatises (periodicals, pamphlets and treatises)  if:

a. it is called to the attention of the witness on cross or it was relied on by the witness on direct, and 

b. it is reliable authority established by:
(1) admission on cross;
(2) judicial notice, or
(3) testimony by another expert.
Substantive Evidence: Although the treatise itself is inadmissible, it may be read to the trier of fact and is substantive evidence (not just admissible to impeach the expert).  

Q: You know who Dr. E. is, don't you?
Q: You consider Dr. E. to be an authority in this area, correct?
Q: And, she is a reliable authority, isn't she?
Q: Dr. E. has published articles and books in this field, hasn't she?
Q: Showing you what has been marked as State's Exhibit 50, can you examine             this journal and the lead article, and tell us whether this is an article by Dr. E.                            that was published last year?
Q: And, State’s Exhibit 50 is an authoritative article in this area, isn’t it?
Q: Please read the name of the journal and the title of Dr. E.'s article.
Q: Now, turn to page two of the article and read the first full paragraph to the jury.