ON QUALIFICATION: LINDBERG CASE ILLUSTRATION

Cross-Examining the Witness Who Qualifies the Answer

We lawyers love to ask yes-no questions on cross-examination. Trial advocacy schools teach us to ask such questions, but witnesses often refuse to give us yes-or-no answers. The witness’s refusal to give us the answer we crave may stem from many reasons. Let us examine three of them: (1) The witness may be trying to evade our question; (2) either by design or default, our question may be unfair or misleading; or (3) the witness may enjoy the sound of his own voice so much that he is incapable of giving us a short answer. When the witness fails to deliver, we almost instinctively seek either to punish the witness for disappointing us or to coerce the desired yes-or-no answer. We see ample evidence of this tendency in the transcript of the Lindbergh Kidnapping Trial.

The state called eight expert witnesses, each of whom identified Bruno Richard Hauptmann as the author of the ransom notes sent to Lindbergh. On cross-examination, the defense sought to elicit helpful testimony from the experts by asking questions which they desired to be answered either yes or no. Anyone who has had much experience in cross-examining experts knows that yes-or-no answers are very difficult to elicit from experts. Usually it is because we lack sufficient knowledge of the subject to frame an adequate yes-no question; sometimes it is because the witness is intoxicated by the sound of his own voice; and occasionally it is because the witness is trying to evade the question. When cross-examining the handwriting experts in the Lindbergh case, the defense often asked yes-no questions and seldom got yes-or-no answers. When the witnesses attempted to qualify their yes-or-no answers, the defense responded by trying to coerce the desired answers. They often tried to accomplish this by cutting off the witness’s qualification and proceeding to the next question. One, but by no means the only, example of this comes from the testimony of the expert Clark Sellers.

In his direct examination, Sellers had analogized recognizing handwriting by its distinctive characteristics to recognizing a person by his facial features. The defense attorney sought to demonstrate that it was a poor analogy by making a mundane point: Facial recognition requires no expertise, but handwriting examination requires training and experience. The questioning went like this:
Q: In other words, Mr. Sellers, the personal identification of Mr. Sellers as the handwriting expert who appeared in Trenton would simply be a matter of common observation, wouldn’t it?

A: Yes. I think most—
Q: And the identification of a man’s handwriting—
Mr. Wilentz [the prosecutor]: Just a minute.
Q: —would be a matter of skill and practice, wouldn’t it?
Mr. Pope [defense attorney]: I am conducting this examination and I know when the witness has answered my question.
The Court: The witness has not finished his answer. I think he is entitled to finish it.
Mr. Pope: I think he said yes, and that is all I want.
A: Yes. I know sometimes a person would like to show the shade of meaning.
Q: You would like to argue with me, but I would not like to argue and I want you to answer my questions, that is all.
A: No, I don’t want to argue, Mr. Pope.
Q: The Attorney General will give you every opportunity to explain if you need to.
Q: Now, I repeat my question: The one is a matter of common observation and recollection of a face, isn’t it?
A: Yes, a—
Q: And the other—
Mr. Wilentz: Just a minute, please.
Q: The other is the—
Mr. Wilentz: Just a minute, please.
The Court: He wants to qualify that.
Mr. Wilentz: Yes.
The Court: Now, I suppose he is entitled to do that.
Mr. Wilentz: Will you finish your answer, sir?
The Witness: Yes.
A: (continuing) If they have no more experience, probably, in identifying people by their face than they have by their handwritings, why, they could do them to about the same extent; but most people of general experience have more experience in identifying people by their facial features than they do by their handwriting. (State of New Jersey versus Bruno Richard Hauptman, Trial Transcript, page 1410 line 19, to page 1411 line 40).

When a witness seeks to qualify a yes-or-no answer, the absolute worst way to try to control him is by cutting him off with another question. First, it is rude. Second, you show fear of his potential answer. Third, you can come across as heavy-handed. Fourth, you can erode your credibility with the jury, especially when—as here—the judge sides with the witness.

Before taking any remedial action, you must quickly analyze the problem. Is the witness qualifying because your question is poorly worded? Is it because the witness is naturally talkative? Is it because the witness is being evasive? Your remedial action will be different depending on how you analyze the witness’s motive for qualifying.
Had the defense attorney done this quick analysis, he should have diagnosed the problem as volubility on the part of the witness aggravated by the fact that his lengthy question invited a lengthy answer. He was not dealing with an evasive witness, and he did not need to take aggressive measures to control the witness. The first thing to do would have been to shorten the question. Short questions demand short answers. Let the witness give his lengthy answer and then follow up with more a more tightly worded question. A possible follow up might be:

Q: So you need no special training to identify a face?
Q: But you do need special training to identify handwriting?

A lengthy answer to a short question reflects poorly on the witness, not the examiner. Had Sellers entered into a lengthy answer to either of these questions, he may well have eroded his credibility.

But even before taking remedial action, you must be sure that you actually have a problem. In this situation, the defense attorney had already gotten the desired answer out of the witness, but the witness had supplied it in a torrent of words. The first question in the quoted series was a summary question to underline the fact that the witness had verbosely agreed with the point the attorney was trying to make. The witness was verbosely agreeing with the attorney’s summary question when the attorney cut him off. This touched off a skirmish in which the judge joined the side of the witness and the witness was allowed to give his verbose answer. And when the lengthy answer came, it was an affirmation of the point the attorney was trying to make. The only thing the attorney accomplished was to erode his own credibility. He would have been better off to let the witness talk.

ART OF LISTENING - PART 3

Art of Cross-Examination Requires Mastering the Art of Listening

A young man stood trial for grave robbery on the uncorroborated testimony of his former girlfriend. She testified she had met him approximately two weeks before Christmas, and had helped him commit the crime about a week after they met. The defendant’s Mom was listed as a last minute defense witness. The prosecutor got to speak to her just before she testified, but managed to learn little about her testimony in the few minutes he had.

Mom testified that on Christmas morning she was busily decorating her tree, when Junior came in and introduced her to his new girlfriend, Violet. “How nice,” she said, “I am decorating our tree with violets, and my son brings home a girlfriend named Violet.” It was a touching scene. If it was true, Junior was not guilty. Violet would not have met Junior until after the commission of the grave robbery.

As the prosecutor listened to Mom’s testimony, two things struck him. First, Christmas day is a little late to be decorating a tree. Second, the trial was being held two weeks before Christmas. Perhaps those two facts could be used to discredit Mom. It would require violating the time-honored rule of cross-examination to never ask a question when you don’t know the answer; but the payoff seemed worth the risk.

Q. You decorated your tree with violets last year?
A. Yes.
Q. I bet you didn’t decorate your tree with violets this year?
A. I sure didn’t.
Q. What did you decorate your tree with?
A. I decorated it with roses and garlands.

Another time-honored rule of cross-examination is “When you strike oil, stop boring.” The prosecutor, believing he had struck oil, discontinued the line of questioning. He would take full advantage of this implausibility in final argument. Christmas is a time steeped in family tradition. Families celebrate this Christmas much as they did the last and much as they will the next. Not only was it unlikely that Mom would decorate a tree on Christmas morning the previous year, we know she had it decorated at least two weeks prior to Christmas the following year. The heartwarming incident with the violets may well have happened, but it happened at least two weeks prior to Christmas. Mom was lying about when it happened to give Junior an alibi. The alibi fell to pieces because the prosecutor intently listened to Mom’s testimony.

Visit Cross-Examination Handbook website here for more Tips on Cross-Examination

ART OF LISTENING – PART 2

The Art of Cross-Examination Requires Mastering the Art of Listening

The case began when a young lady whom we shall call Valerie used her CB radio to arrange a sexual rendezvous with a long distance truck driver. The trucker bragged to the defendant about his rendezvous with Valerie, and the defendant decided he, too, should have sex with her. The defendant, however, did not think it was necessary to obtain her consent, and got himself charged with burglary and sexual battery.

At the ensuing trial, he took the stand to testify that Valerie had invited him over to her home to have sex. He said he waited until nightfall, crawled through Valerie's bedroom window, and engaged in consensual sex with her. Approximately one hour and 45 minutes into his testimony, he testified that, at the conclusion of the rendezvous, he went home and knocked on the door to have his mother let him in. The prosecutor immediately seized upon a discrepancy. The defendant crawled through Valerie’s window but knocked on his own door? Having heard and identified the weakness in the defendant’s testimony, the prosecutor then had to make sure the jury heard it too. He took these two incidents, placed them side by side, and let the jury draw their own conclusions.

The cross-examination went something like this:

Q. When you got home, what did you do?
A. Knocked on the door?
Q. When you got to Valerie’s what did you do?
A. Crawled through her window.
Q. You knocked on your own door?
A. Yes.
Q. But you crawled through Valerie’s window?
A. Yes.
Q. You knocked on the door of the house where you lived?
A. Yes.
Q. But you crawled through the window of the house where you’d been invited?
A. Yes.

The jury concluded that the defendant was guilty of both Burglary and Sexual Battery.

ART OF LISTENING

The Art of Cross-Examination Requires Active Listening

Sherlock Holmes once complained to his colleague, Dr. Watson, that “You see, but you do not observe.” All too often we hear, but we do not listen. Sometimes our preconceptions about what the witness should say prevent us from hearing what the witness actually says. Sometimes we hear on the surface, but fail to appreciate the depth of the statements. Sometimes the witness himself doesn’t fully realize the implications of what he is saying.

In a long-ago murder trial, the defendant’s accomplice, who had already been sentenced to the maximum possible sentence, appeared as a witness to try to exonerate his friend. The accomplice testified most persuasively that he acted alone, the defendant had nothing to do with it, and if the defendant had tried to stop him, he would have killed the defendant, too. The prosecutor made little headway with the accomplice on cross-examination.

Immediately after the accomplice finished his testimony, the court took a recess. During the recess, the prosecutor learned that the defendant had been making hand signals to the accomplice while the accomplice was testifying. The prosecutor’s next witness was a member of the audience, who testified to seeing the hand signals. At least now the prosecution could argue that the defendant was coaching the accomplice as he testified. The defense called the defendant to the stand for the limited purpose of showing that the defendant did nothing to influence the accomplice’s testimony. This was a safe enough ploy because the judge solemnly warned the prosecutor that cross-examination would be limited to the scope of direct.

The defendant testified that both he and the accomplice knew American Sign Language, and that he had signed to the accomplice that the accomplice was a liar. The defendant thought he was saying that he had not influenced the accomplice’s testimony. The prosecutor heard the defendant say something else. Cross-examination consisted of three questions:

Q. What was he testifying about when you called him a liar?
A. About our roles in the killing.
Q. Your roles in the what?
A. In the killing.
Q. So, in other words, you were calling him a liar when he said he acted alone?
A. Yes.

Only three people were present for the killing, and it was not a case of assisted suicide. The defendant was the only person in the world who could have helped the accomplice commit the murder. The defendant didn’t realize what he was saying, but the prosecutor heard it loud and clear. Cross-examination consisted of simply making sure everyone else in the courtroom heard it, too.