3 Types of Cross-Examination Questions

 

John Travolta - Civil Action

There are three types of questions that may be asked on cross-examination. The first one—the INTERROGATORY question shouldn’t ever be asked unless you have had decades of experience as a trial lawyer and know exactly what you are doing. Particularly, never ask a Why question. Witness this scene from A Civil Action.

The second type of question that may be asked on cross, is the CLOSE-ENDED type and this is exactly what you want to use on cross because it is your turn to testify, not the witness’s. Here’s an example borrowed from My Cousin Vinny: 

• When the two defendants went into store, you were cooking

• Grits for breakfast 

• How cook your grits 

• Regular

• Not instant grits

• Took you twenty minutes to cook grits

The third and final type of cross-examination question is the ACCUSATORY QUESTION. This is used when you have caught the witness in a trap and want to drive home the point. Also, it’s an example of asking a Why question when you know you know the truthful answer or can prove the truth if the witness lies. Watch how it worked in A Few Good Men:

 

Cross-Examining the Unbelievable Witness

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

Prior posts here have been devoted to great cross-examination demolitions—a veritable wrecking crew of impeachments. This is a list of the impeachment wrecking crew, and we have covered them in prior posts:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

Here we turn to how through cross-examination to show that the witness is not to be believed. Evidence rules come into play.

First, Evidence Rule 609 governs impeachment with a prior conviction. Rule 609 states: 

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Above is an actual chart showing the government’s witnesses’ prior convictions. Pistol whipping a priest is pretty serious.

Second, cross-examination can impeach a witness by showing the witness’s prior untruthfulness. Here Evidence Rule 608 comes into play. Rule 608 provides:

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Third, if a character witness is called to testify, cross-examination to show the witness’s untruthfulness may be permitted under the evidence rules. Evidence Rule 608 (above) indicates when that impeachment may be pursued. Rule 404(a) also provides the grounds for such impeachment, as follows: 

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; . . .

How to Impeach with a Prior Inconsistent Statement

 

In prior posts, we have spelled out how to demolish a witness by showing that the witness’s Report is Faulty (the report is Improbable because it is absurd, lacks common sense or can be contradicted. Here we concentrate on impeaching a witness with a prior inconsistent statement. 

Evidence rule Rule 613—Prior Statements of a Witnesses governs the methodology for cross-examining a witness regarding a prior inconsistent statement and the use of extrinsic evidence to contradict the witness, as follows:

 

(a) Examining Witness Concerning Prior Statement. 

In the examination of a witness concerning a prior statement made by the witness, whether written or not, the court may require that the statement be shown or its contents disclosed to the witness at that time, and on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. 

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). 

There are NINE STEPS TO EFFECTIVE IMPEACHMENT WITH A PRIOR INCONSISTENT STATEMENT

•    1. Avoid nitpicking – nothing worse than a nitpicking cross  

•   2. Recognize the inconsistency – listen carefully to the witness

•   3. Retrieve the prior statement – be prepared

•   4. Repeat the testimony – pound home the current testimony

•   5. Reinforce the truthful statement – show the prior statement was more likely to be truthful (e.g., made closer in time to the event and under circumstance making it likely the witness was truthful

•   6. Reference the prior statement

•   7. Resonate with the jury – pause, then slowly read the statement 

•   8. Read and/or display the statement

•   9. Refute the witness’ denial – use extrinsic evidence.

See Chapter 7 in Cross-Examination Handbook for a more extensive discussion of how to impeach with a prior inconsistent statement.

Now, watch this clip from the great Agatha Christie story Witness for the Prosecution to see how to impeach with a prior inconsistent statement – particularly how to Resonate with the Jury.

Hope you enjoyed that.

Cross-Examination: How to Impeach by Contradiction

 

              OJ Simpson and his legal team

We are now examining the second impeachment wrecking crew—The Faulty Report. There are three techniques you can employ to show the witness’s report is improbable:

1. Reduction to the Absurd Technique

2. Common Sense Technique

3. Contradictory Conduct Technique

In the prior posts the first two techniques were discussed and illustrated. Here we cover the Contradictory Conduct Technique that can be applied to show that the witness’s testimony is improbable. 

The OJ Simpson trial provides a good example of how to employ this contradiction technique. A portion of F. Lee Bailey’s cross-examination of the lead detective Mark Furhman went as follows:

Bailey: Q:  Do you use the word “nigger” in describing people?

Ms. Clark:  Same objection.

The Court:  Presently?

Bailey:  Yes.

The Court:  Overruled.

Furhman: A:  No, Sir.

Bailey:  Q:  Have you used that word in the past ten years?

A:  Not that I recall.  No.

Q:  You mean if you called someone a nigger you have forgotten it?

A:  I’m not sure I can answer the question the way you phrased it, Sir.

Q: You have difficulty understanding the question?

A:  Yes.

Q:  I will rephrase it.  I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a nigger.  Is it possible that you have forgotten that act on your part?

A:  No, it is not possible. 

Q:  Are you therefore saying that you have not used that word in the past ten years, detective Fuhrman?

A:  Yes, that is what I’m saying.

Q:  And you say under oath that you have not addressed any black person as a nigger or spoken about black people as niggers in the past ten years, detective Furhman?

A:  That’s what I’m saying, Sir.

Mark Furhman

The defense called witnesses to say he used the word, and the defense produced an audio tape in which he said the word. Furhman was later convicted of perjury and sentenced to three years probation – now lives in Idaho.

A limitation on how you may contradict a witness is that you may not pit one witness against another—it’s called “pitting”.  Here is a further discussion of pitting.

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.”

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. 

Cross-Examining Experts: Make Their Expert Yours

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. 

Catching the Truth on 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 – 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

In the first post explained that the primary purpose of cross is to gain concessions that bolster your case theory or undercut your opposing party’s case theory. Impeachment is only a secondary purpose.   In the second post explored how the CONTENT of cross should be made up of concessions to the truth. You can design such a cross by asking: What must this witness concede or stamp the answer a lie, mistaken or ridiculous. 

Now let’s travel back in time to a courtroom in New York. We’re in the District of Manhattan. The trial lasted from October 24, 1985 to March 2, 1987. It involved $ 1.65 billion heroin smuggling and money laundering, and the trafficking stretched from Sicily to Brooklyn to Brazil to small pizzarias in the Midwest. It was a MEGA TRIAL with 18 defendants. 

Here is the courtroom layout showing where the players were positioned (the defendant Greco and his lawyer Larry Bronson can be seen in the last row at the bottom:

 The following from Shana Alexander’s book – THE PIZZA CONNECTION – it’s January 1987 in the Manhattan courtroom:

Larry Bronson's defensive Sal Greco is focused on his client’s need to prove that he was not in a Bagneria farmhouse in early March 1980 watching the heroin quality control test. Bronson will show he was quietly busy at home in New Jersey. He calls Greco's good friend and tax accountant, Justin Pisano, a man who keeps detailed date books. 

Under patient examination by Bronson, the witness goes through a precise accounting of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts, and to visit nearby pizzerias with his client in order to compare their businesses with that of Greco's pizzeria in Neptune city. 

Stewart’s cross examine of Pisano becomes this prosecutor's finest hour. He concentrates on the March date book entries.

On March 2, yes, I drove to see Greco, Pizano says and we had a leisurely dinner.

“You told us yesterday you were in no rush, right?”

“Yes”

“And that's the truth, the whole truth and nothing but the truth.”

“Yes.”

“Then what is this appointment for 7:00 PM with Traviatta?

 “Just a tax appointment early March as income tax time and I made many Sunday night appointments to serve my tax clients.

“What is Travis first name where does he live?

 “I don't remember. I don't even think I do their taxes anymore.” 

 Stewart remembers. He says pizano was 35 miles away from Greco's pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera.

Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.

“Are you an opera fan?”

“Nope. Only been to opera one opera in my life, when I was in high school.”

Stewart shows the witness, and the jury, the Sunday evening newspaper opera listings for March 2, 1980, at the New York State theater at Lincoln Center: La Traviata

Bronson objects. “Misleading the witness, Your Honor. His witness tax client is named Traviatta with - with two tts. 

And the advertisement for the opera is spelled TRAVIATTA, right?” Stuart asks.

“No it's Traviata”, says Pisano gamely.

“La Traviata”

“Right, I don't see the comparison to Traviatta.” 

“Except for the time. That's a coincidence, isn't it?”

Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, March 16, at one in the afternoon.

“Are you referring to Carmen? Carmen Sangri, who I no longer do?” 

“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listings for that Sunday afternoon. Pisano looks, and agrees this is truly an amazing coincidence.

Spectators have begun to giggle. But Stewart is not finished. He directs the witness’s attention to his diary entry for the following Sunday at 7:00 PM. “Is this a tax client of yours?”

The giggling turns to guffaws. The notebook says “Barber of Seville.” 

Over the laughter Pisano suddenly remembers that he had a girlfriend back then who was crazy about opera, and whose birthday was sometime in March, so “she picked three operas she wanted to see - but we never made any of them.”

 “You just made that up, didn't you,” says Stewart, barely audible over the waves of laughter. Leval (the Judge) has turned Crimson. Stewart remains, as usual, absolutely poker faced, and as the good-natured Bronson, shaking with laughter, has lowered his head to his desk and tears are running down his cheeks.

Stewart caught the truth. Because Sal Greco wouldn’t concede he went to the opera, he stamped his answer ridiculous. The point is that either way the witness answers, the cross-examiner succeeds.

Cross-Examination Content: Think My Cousin Vinny

 

This and a following series of posts focus on the methodology for a winning cross-examination: THE FOUR Cs of CROSS-EXAMINATION and this one will rely on My Cousin Vinny to illustrate the lesson.

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

In the last post explained that the primary purpose of cross is to gain concessions that bolster your case theory or undercut your opposing party’s case theory. Impeachment is only a secondary purpose. The goal is to capture the truth from the witness. If you visited the last post, you watched David Boies extract the truth from the opposing party’s key witness. 

If you take away nothing else from this article, remember to this question when you are thinking about CONTENT of your cross: What must the witness admit or stamp the answer – a lie, mistaken or ridiculous. The witness must give you the truth or suffer the consequence because it’s the truth. You can prove it by direct or circumstantial evidence or it just makes plain common sense. That’s what Boies did; he forced the witness to realize what the truth was and then the witness had to give it up. As the witness acknowledged, it was like a train wreck.

Now we can watch My Cousin Vinny orchestrate a train wreck using the methodology.

Vinny asked himself: What must this witness admit or stamp the answer either a lie, mistaken or ridiculous? And, you saw how the witness had to concede the truth.

Have a Perry Mason Moment with Your Cross-Examination

 

This and the following series of articles here will focus on the methodology that is key to an effective cross-examination. The methodology has four components: 

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

So, where do we begin preparing the content of cross-examination? We start with an understanding of the two purposes of cross and the reasons behind them.

We begin by asking: What is the purpose of cross-examination?

To answer the question, watch a clip from the documentary - The Case Against 8 – it chronicles the effort to overturn California’s proposition 8 which as you may recall was a ballot proposition banning same sex marriage in California. Theodore Olson, who was solicitor general, recruited David Boies who had been on the other side of Bush v. Gore, to be his co-counsel in the lawsuit.

Watch Olson and Boies discuss the purpose of cross-examination and how it can be the concept that shapes what you pursue during cross:

David Boies’ PURPOSE in cross was to CAPTURE THE TRUTH. The truth that built his case against 8.

As he put it: Before you can get a witness to admit the truth you have to get the witness to understand what the truth is.

Having the primary purpose of cross being to build your case theory is nothing new. The second-best book on cross-examination was written by a New York assistant district attorney who practiced in the 1880s and 1890s and was famous for his superb cross-examinations. The book is the Art of Cross-Examination. In the Art of Cross-examination, another trial lawyer Emory Buckner wrote: “More cross-examinations are suicidal than homicidal.” He attributes this to a mistake in conception as to the purpose of cross. He wrote: “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The primary purpose of cross is to gain concessions that construct or bolster our case theory. Think of cross as an opportunity to persuade the jury of your case theory. Impeachment is a secondary purpose.

Three other reasons exist for using cross to bolster your case theory. First, studies have shown that one admission on cross is equal to ten pieces of evidence on direct. Second, it’s easier to gain admissions than to impeach – isn’t it? Third, if you get concessions, you can be satisfied with those and not impeach the witness.