Cross-Examination--How to Impeach with a Faulty Report—The Case Against 8

 

As was discussed in the prior article, there are three cross-examination techniques you can employ to show the witness’s report is Faulty:

1.  Reduction to the Absurd Technique

2. Common Sense Technique

3. Contradictory Conduct Technique

The commonsensical approach to impeachment is to force the witness to acknowledge that your position only makes common sense. In the Case Against 8—a lawsuit brought to overturn a California law that marriage must be between a man and a woman, attorney for the plaintiff David Boies cross-examined the other sides expert and forced her to admit what only made common sense as follows: 

Boies – Q: Do you believe that children are advantaged by increasing the durability of the relationship of the couple raising them?

Young – A: Yes

Q: And you believe allowing gay couples to marry will increase the durability of the gay couples relationships?

A: Okay, I’d say yes.

Q: And increasing the durability of these relationships is beneficial to the children they’re raising, correct?

A: On that one factor, yes.

What is a reductio ad absurdum cross-examination?

 

Clarence Darrow and William Jenning Bryant

What is a reductio ad absurdum cross-examination? It is the process of refuting a claim on the grounds that it is absurd. If the proposition is accepted then there will be a patently untenable result. 

In the past few posts, we have been focusing upon the first impeachment wrecking crew—Unreliability of the Witness’s Observation  (Impeaching a Biased Witness and Cross-Examining a Child). Now, we move on to the second impeachment wrecking crew—The Faulty Report. The concept here is that the report given by the witness is improbable because it is absurd. 

Cross-examination to show the witness’s account is improbable is supported by Evidence Rule 401. Test for Relevant evidence, which states, “Evidence is relevant if:

(a) it has any tendency to make the existence of any fact more or less probable than it would be without the evidence; and


(b) the fact is of consequence in determining the action. 

All relevant evidence is admissible, except . . .” 

There are three techniques you can employ to show the report is improbable:

1. Reduction to the Absurd Technique

2. Common Sense Technique

3. Contradictory Conduct Technique

The 1925 Scopes trial provides an excellent illustration of the Reduction to the Absurd Technique. Here is a brief summary of the facts of the case and the lawyers involved.

•   The trial took place in Dayton, Tennessee

•   John Scopes was accused of teaching evolution in violation of state statute

•  William Jennings Bryan – former candidate for President and head of the fundamentalist   movement becomes co-counsel for the prosecution

•   Clarence Darrow signs on as co-counsel for defense

• The trial drew such a crowd that they thought the courtroom floor would collapse and they moved the players outside as pictured below.

A book “Inherit the Wind” was written about the trial and it was later made into a movie by the same name. The cross-examination in the movie is based on the trial transcript.

Watch as Darrow cross-examines Bryan.

The jury deliberated 9 minutes and found Scopes guilty. The court levied an hundred dollar fine on Scopes.  Bryan died five days later.

Wrecking Crew Cross-Examination: Impeaching Biased Witnesses

 

The victims of the Triangle Shirtwaist Factory fire in coffins 

outside the building from which they jumped

This is a list of the impeachment wrecking crew that can be used in cross-examination:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

This like the two prior posts is dedicated to the Unreliability of the Observation Wrecking Crew. Specifically, here the focus is on impeachment by showing that the witness is biased or has an interest. Cross-examination of a witness for showing bias, prejudice, or interest is a party’s right, with constitutional protection in criminal cases. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). However, trial courts “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986). 

Here is a summary of the facts of the case:

•   March 25, 1911 – The fire at the Triangle Shirtwasist factory was the largest disaster in New York prior to 911

•   146 garment workers either died in the fire or jumped from windows

•   Fire started on 8th floor by match or cigarette or engines of sewing machines 

•   Owners Max Blanck and Isaac Harris went to the roof and escaped

•   Owners were charged with manslaughter based on the claim that they knew the exit doors were locked

•   At trial, Kate Alterman testified on direct that the doors were locked so the women working on the floor could not escape

•   Counsel for the owners Max Steuer cross-examined Alterman and his cross became famous.

Max Steuer

On cross-examination Steuer had Alterman tell and retell her story. The following shows how her testimony on cross was almost the same as that given on direct examination.

Max Steuer argued that Kate Alterman was biased and coached by the District Attorney and memorized her story – repeating phrases such as: “curtain of fire” and a man running like a “wild cat.” The defendants were acquitted. 

Civil suit was brought in 1913, and plaintiffs won compensation in the amount of $75 per deceased victim 

Wrecking Crew Impeachment–Cross-Examination of a Child

 

This is a list of the impeachment wrecking crew:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

This post is dedicated to the Unreliability of the Observation Wrecking Crew. Specifically, how the mental and sensory deficiencies of a witness may be used to impeach the witness’s testimony. Here, the demonstration involves a child witness.

In 1984 Virginia McMartin, founder of McMartin Preschool and grandson Ray Buckey were charged with 321 counts of child abuse.  Children said they played the “naked movie star” game, went through tunnels and other weird activities. The children were interviewed by an abuse therapy clinic using highly suggestive techniques.

There were 20 months of preliminary hearings. In 1986 a new District Attorney dropped charges against all but Ray and Peggy Buckey. In 1990, after a three-year trial Peggy Buckey was acquitted and Ray Buckey was acquitted of 52 of 65 counts.  Retrial resulted in hung jury and Ray Buckey was eventually acquitted. It took seven years, cost $15 million, and resulted in no convictions. The case was made into a movie—Indictment.

Watch the defense lawyer’s cross-examination of a child witness that centers on the unreliability of the testimony because the child had been influenced by a therapy clinic that made suggestions to the child, and as you watch think about the techniques that should be utilized during an impeachment cross. Those techniques are: 

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.

Note how the cross-examiner assessed the witness and determine that the child witness was mistaken—adjusted accordingly so as to discredit the testimony and not the child, and used a gentle demeanor and tone. 

Wrecking Crew Cross-Examination: Lincoln’s Most Famous Case

 

It’s all about the cross-examination wrecking crew. A prior post (Cross-Examination Wrecking Crew: Lack of Personal Knowledge) provided the My Cousin Vinny  demonstration of an impeachment by showing the witness lacked personal knowledge. Now this is another example of  that type of impeachment, and it took place in Abraham Lincoln’s most famous case. Bob Dekle, co-author of the best book on cross-examination—Cross-Examination  Handbook: Persuasion, Strategies and Techniques, wrote Abraham Lincoln’s Most Famous Case: The Almanac Trial. William Armstrong was charged with murder for having shot James Metzker on August 29, 1857. Lincoln represented Armstrong, and he cross-examined a witness named Charles Allen who testified on direct to having seen Armstrong shoot Metzker.

Director John Ford made a movie about this trial. 

 

Click here to Watch Lincoln in this movie clip cross-examine Allen in an effort to show Allen lacked personal knowledge of the shooting and thus his testimony was unreliable. Also, as you watch, think about the seven techniques that can be used in a cross-examination designed to impeach 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.

In particular, watch to see how Lincoln decides the witness is lying and adjusts the cross to fit the witness, locks the witness into his testimony, cuts off exits through which the witness might try to escape impeachment, surprises the witness with the Almanac, and uses a visual—the Almanac.

Ford took some liberties with what happened. However, the judge who presided over the trial later wrote this about the climax of the case: 

“The interest was now so intense that men leaned forward to catch the smallest syllable. Then the lawyer drew out a blue covered Almanac from his side pocket—opened it slowly—offered it into evidence—showed it ot the jury and the court—read from the page with careful deliberation that the moon on that night was unseen and only a rose at one in the morning.

“Following this climax Mr. Lincoln moved the arrest of the perjured witness as the real murderer, saying: ‘Nothing but a motive to clear himself would have induced him to swear away so falsely the life of one who never did him harm!’ With such determined emphasis did Lincoln present his showing that the court ordered Allen arrested in under the strain of excitement he broke down and confessed to being the one who fired the fatal shot himself, but denied it was intentional.”