Prior articles here (Cross-Examination: Think My Cousin Vinny and Catching the Truth on Cross-Examination) focus on the CONTENT of cross-examination. The core concept is that the primary purpose of cross-examination is to gain concessions and those concessions make up the content of your cross. Impeachment is only a secondary goal. Each concession that you are seeking is the truth that the witness must admit or stamp the answer given as a lie mistaken or ridiculous because you can prove the truth that is sought, or the truth just makes common sense.
Many experts are particularly susceptible to concession-based cross-examination because they want to remain credible in the scientific community and don’t want to bend or break the truth with their testimony. Some experts, yes, will exaggerate, mince words and evade. This is particularly true with the soft sciences, such as psychiatry or psychology. Dr. Dean Hawley, a pathologist in Indiana, put it this way: “Is the expert qualified? Is the expert truthful? If the expert is qualified and truthful, make the expert your star witness.”
Now, watch the prosecutor do a concession-based cross-examination of the defense expert in the manslaughter trial of Dr. Conrad Murray for killing Michael Jackson. The prosecutor turns the defense expert into the prosecution’s star witness.
Here are three examples of low hanging fruit for a cross-examiner of a qualified and truthful expert. First, make the expert concede the validity of the science. Second, have the expert concede that your expert used the proper scientific technique. Third, have the expert concede that your expert has an excellent reputation in the scientific field.
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