Cross-Examination Wrecking Crew: Lack of Personal Knowledge

When the CONTENT of your cross-examination is the IMPEACHMENT of the witness rather than gathering concessions, the techniques you use to accomplish the impeachment are critical. 

This and following posts will offer great cross-examination demolitions—a veritable wrecking crew of impeachments. This is a list of the impeachment wrecking crew:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

These are seven techniques for an effective impeachment of a witness with the wrecking crew: 

1. Assess the witness and adjust your approach;

2. Lock the witness into the testimony before you impeach;

3. Close all the exits to prevent the witness from escaping;

4. Establish a motive for the witness to prevaricate;

5. Paint a picture for the jury;

6. Surprise the witness; and

7. Use visuals or tangible evidence if possible.

For each wrecking-crew impeachment, you can observe how these techniques were applied

Let’s begin with Unreliability of the Observation. Here, the cross-examination is designed to show the witness LACKED PERSONAL KNOWLEDGE. For most of these demolitions, there is a corresponding rule of evidence. Here the rule is Rule 602, which reads in part:    “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. . .” Naturally, My Cousin Vinny provides a nice illustration of this demolition. 

Let’s watch.

Look back at the list of seven techniques for impeachment. Vinny assessed the witness, determined the witness was honest but mistaken and adjusted his approach to the witness. Vinny painted a picture of how the witness’s vision was obscured. And Vinny used photographs to impeach. 

Cross-Examination: Impeachment Techniques

As was discussed in previous posts ("How to Construct a Great Cross-Examination" and "Impeachment Cross-Examination Checklist), when the CONTENT of your cross-examination is designed to IMPEACH the witness (rather than gathering concessions), the techniques you use to accomplish the impeachment are critical. These are the seven techniques for an effective impeachment cross-examination of a witness: 

1. Assess the witness and adjust your approach;

2. Lock the witness into the testimony before you impeach;

3. Close all the exits to prevent the witness from escaping;

4. Establish a motive for the witness to prevaricate;

5. Paint a picture for the jury;

6. Surprise the witness; and

7. Use visuals or tangible evidence if possible.

At the top of the list is the technique of assessing the witness and adjusting your approach to fit that witness. David Paul Jones, a British barrister is quoted in  Francis L. Wellman’s book The Art of Cross-Examination, as follows: “Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail or the fearful; rough to the ruffian; and a thunderbolt to the liar. But in all this, never be unmindful of your dignity.” 

Watch the following cross-examination in A Few Good Men with the seven techniques in mind. Following the movie clip is the list of seven techniques with notes from the cross in the movie. 

Here is a portion of the seven techniques list with notes about how they were applied in the cross shown in the video:

1. Assess the witness and adjust your approach – the cross-examiner shifts to being rough with the witness when the witness becomes a ruffian;

2. Lock the witness into the testimony before you impeach—the cross-examiner locks the witness in and is able to preface a question with “a moment ago you said” to telegraph that the witness is locked in;

3. Close all the exits to prevent the witness from escaping—the cross-examiner closed this exit with “any chance he ignored the order”;

4. Establish a motive for the witness to prevaricate—here the obvious motive was to conceal the fact that he ordered the code red; and

5. Paint a picture for the jury—brush stroke by brush  stroke of what happened; and

6. Surprise the witness—with the fact that he was prepared to call witnesses to contradict the witness under cross-examination. 

Future posts will cover the wrecking crew of impeachment cross-examinations and show how these techniques can be applied.

You can read about impeachment cross-examination in Cross-Examination Handbook.

Impeachment Cross-Examination Checklist

We are examining THE FOUR Cs of CROSS-EXAMINATION as follows: 

1st – CONTENT – how to select the content of your cross

2nd – CONSTRUCTIONS – how to construct the cross – form of the questions. Transitions. Sequencing.

3rd – CHARACTER – how to behave during cross so project fairness to the jury

4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

This post continues the discussion of the CONTENT of cross, and this one is dedicated to an impeachment cross-examination. Prior posts (How to Construct a Great Cross-Examination, Cross-Examining Experts: Making Their Expert Yours, and Catching the Truth on Cross-Examination) explain that the primary purpose should be to gather concessions from the witness that bolster your case theory or undermine your opponent’s.

When you brainstorm for the content of your cross, use this CHECKLIST to identify different ways to impeach the witness. For all witnesses—lay and expert witnesses, these are the areas of impeachment:

How to Construct a Great Cross-Examination

 

We are examining the THE FOUR Cs of CROSS-EXAMINATION as follows: 

1st – CONTENT – how to select the content of your cross

2nd – CONSTRUCTION – how to construct the cross – form of the questions. Transitions. Sequencing.

3rd – CHARACTER – how to behave during cross to project fairness to the jury

4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

Prior posts examined the purpose of cross-examination and the first C—CONTENT. The content is primarily going to be concessions from the witness that support your case theory or undermine the opposing party’s case theory. Now that of we have identified the content—the truths we’ll argue in closing and we’ll harvest during cross, the next C is: how do we CONSTRUCT cross so most effectively delivered to the jury?

The cross is constructed using the concessions you will gather during cross; those that if the witness does not give them will stamp the witness’s answer either a lie, mistaken or ridiculous. Who is testifying during cross? Who is supplying the information? It’s not the witness; it’s the cross-examiner. Cross-examination is your opportunity to testify.

                You decide – what information to elicit

You decide – how to phrase it

You decide – the order of the questions

Cross is your opportunity to persuade – to testify.

To identify the concessions to seek, just brainstorm: ask yourself what truths supporting your case theory or undercutting the other side’s you can elicit because they are truths you can prove, or they just make common sense. 

After you have identified the concessions, WRITE OUT your cross on argument- cross-examination sheets of paper.  At the top of the page, write your point for argument – the truth you are seeking and what you will argue at the end of the case. For example, at the top of the page, you could have the word “BIAS”. Draw a line down the middle of the page. On the left side of the page write single-fact statements supportive of your argument. For example, if the argument is that the witness is biased, the statement could be: “You’ve known the plaintiff for 10 years.” Limit yourself to no more than 10 words in the statement. Factual statements will compel you to ask leading questions, rather than open ended ones. Always be a leader; never a reporter. Reporters ask open-ended questions: who?? what when? Don't open the door for the witness with open-ended questions.

You may be thinking that these are statements, not questions, and that is right. It’s your turn to testify. You know what the answer should be-the truth and if the witness doesn’t give it to you, they damage their position. To make the statement a question, just raise the tone of your voice at the end of it.  If you draw an objection that it’s not a question, you can add, “isn’t that correct” to the statement.

There are BENEFITS to writing out cross with this format. First, it leads to ends-means thinking. Each of your questions has a purpose. Second, as Posner and Dodd write in Cross-Examination: Science and Techniques: “Not only does one fact per question tightly control the witness, but the jury is more persuaded and convinced by this type of presentation.” Third, single fact statements are emphatic and that helps with jury retention.

But, you ask, what about the right side of the page? What goes there? On the right side put notes that guide you to evidence that supports the statement on the left. For example, if on the left side of the page it states, “At your deposition, you said X,” on the right is the page and line number of the witness’s statement. If the witness does not concede to saying X at the deposition, you can quickly go to the deposition and use it to force a concession or barring that, impeach the witness. Also, on the right, you can take notes of those golden statements by the witness that you could use in closing. Don’t take many notes during cross because you want to keep eye contact with the witness and listen carefully to the witness’s responses.

In general, how should the pages be organized? How should you sequence the content. As a guide, start with non-contested facts works well. Ask questions that get “yes” answers and have a friendly demeanor.

Have TRANSITIONS between topics. This is an opportunity to show signposts to the jury, to help them follow you along.  For example, "Now let's discuss your report." 

No matter what, save something strong to use at THE END of cross – leave a solid last impression. To illustrate how to conclude a cross watch George Stevens’ classic A Place in the Sun which is based on the book American Tragedy which is based on a murder case of Chester Gillette.

Again, end with something strong. If you have trouble remembering how to finish, remember Place in the Sun ending with a bang.