Cross-Examination in Major Cases: Case Against 8--Lesson 1

 

Cross-Examination Lessons from Major Cases: Lesson 1--Catch the Truth

David Boies (preeminent trial lawyer in such cases as the Microsoft antitrust case and the Gary Shandling case)  and Theodore Olson (former Solicitor General and opposing counsel to Boies in Bush vs. Gore) served as co-counsel in the California Proposition 8 case. Olson commented on how Boies cross-examined and deposed the defense experts in that case as follows:

“People think it happens all the time because it happens on television. What we used to call a ‘Perry Mason moment’ when the witness breaks down and confesses. That does not happen. But it sort of does happen when David does it.”

What does David Boies have as his goal when he examines opposing witnesses to elicit concessions? Regarding his goal for examining witnesses, he made this observation regarding how he approached the experts in the Proposition 8 case: “Before you can get a witness to admit the truth you have to get the witness to understand what the truth is.”

In essence, when Boies deposes an adverse witness or cross-examines a witness, he seeks to have the witness admit the truth. 

This is neither a new nor novel concept. In Francis L. Wellman’s Art of Cross-Examination, which was published in 1903 and is still in print, a New York trial lawyer Emory Buckner wrote: “More cross-examinations are suicidal than homicidal.” He attributed this to a mistake in conception as to the purpose of cross. Buckner explained: “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The following is an example of Boies extracting the truth from a defense expert witness Katherine Kay Young in the case against Proposition 8:

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.

Boies has put it this way: “Cross-examination is probably the best we have to really get at the truth. We put somebody on the witness stand, call them to answer questions and it takes an extraordinary person to be able to successfully lie with out being tripped up.”

In Cross-Examination Handbook we explain not only why catching the truth is the primary objective of cross but also how to seize the truth from the witness no matter how clever or evasive the witness is.

CROSS-EXAMINATION: Poor Preparation Produces Picayune Points

Go Big: As we explain in Cross-Examination Handbook: Persuasion, Strategies, and Techniques, the primary purpose of cross-examination is to convince the jury to adopt your case theory and reject your opponents. This is the big picture. To do this, seek concessions that either build upon or protect your  own case theory or damage the other side’s. A secondary purpose is to impeach the witness’s credibility as unworthy of belief, thereby damaging your opponent’s case. Cross can be fashioned to produce one or both results. When a witness refuses to concede a fact that must be given because the evidence or common sense proves it to be the truth, the witness is impeached.  Of course, if you can gain such significant concessions from the witness that you have turned that witness to your own, remember the big picture—you can forgo impeachment. 

In Cross-Examination Handbook, we provide multiple illustrations of cross-examinations that revealed the big picture to the jury. U.S. Attorney Robert Stewart’s devastating cross of an alibi witness in a mega trial of 18 defendant’s known as the ‘Pizza Connection Case.” Bob Dekle’s cross of an expert in Ted Bundy’s last murder trial. U.S. Attorney Robert Stewart’s cross of Zacarias Moussaoui, who was prosecuted for his involvement in the 9/11 terrorist attack. Cross-Examination Handbook goes step by step through how to construct a concession-seeking cross that comports with the cross-examiner’s big objective—building the case or undermining the other side’s case.

Not Small: Nothing is worse than a small, nitpicky cross-examination. It not only bores the jury and makes no headway towards the examiner’s goals but also can turn the jurors against the cross-examiner. A cross should focus on major points and do it without exploring microscopic details. When is it common for cross-examinations to go small? Counsel often will cross a witness on minor inconsistencies between what the witness testified to and a prior statement. Just because the rules of evidence allow for impeachment with a prior inconsistent statement, doesn’t mean it should be pursued. Good judgment is called for. Is it a significant or insignificant matter? 

Poor preparation produces picayune points. When an attorney has not thoroughly planned the cross and wings it, that lack of planning often results in that attorney walking through the direct again, picking around the edges. The end result is a cross that repeats the direct and does not promote the cross-examiner’s big picture, is not to the point and is uninteresting.

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.

GREAT CROSS-EXAMINATIONS AND TECHNIQUES

Houston - Hurricane Harvey Regional Training

Last week I spoke on “Great Cross-Examinations and Techniques” at the 2018 Hurricane Harvey Regional Training conducted by the Texas District and County Attorneys Association. My half-day presentations were at Victoria College in Victoria, Texas on June 6; South Texas College of Law in Houston on June 7; and the Jefferson County Courthouse in Beaumont on June 8.

The Hurricane Harvey Regional Training program was developed because hurricane Harvey devastated much of the Texas coast from Corpus Christi to Beaumont, and had a severe economic impact, which prevented prosecutors and their investigators from attending past continuing legal education courses. The Texas District and County Attorneys Association developed the Regional Training program to meet the need for this needed and overdue training. It was a joy to make these presentations for such a worthy cause.

Great cross-examinations in history and on film can teach great trial techniques. They provide lessons in what works in a courtroom and what doesn’t.  With the aid of famous movie clips of cross-examinations and actual crosses in legendary trials, the presentation explores the best in cross-examination skills and strategies. 

This “Great Cross-Examinations & Techniques” covers:

• How to identify and select the content for a winning cross
• Techniques for controlling evasive and other difficult witnesses
• Methods for constructing a persuasive, storytelling cross
• How to successfully cross-examine expert witnesses
• Construction cross-examinations
• Demolition cross-examinations
• Character and conduct of the effective cross-examiner
• Crosses in historical trials – O. J. Simpson, Scopes, McMartin Preschool, Zacarias Maussaoui trials among others
• Memorable, instructional movie cross-examinations from Anatomy of a Murder to the Case against 8 documentary.

HOW TO START YOUR CROSS-EXAMINATION

In his book Examining Witnesses, Michael Tigar recommends how to commence cross-examination. He borrowed the technique from Terry McCarthy and it bears repeating here again. You don’t have to be cross to cross-examine. Tigar states:

To begin (cross-examination) strong you must choose an area in which the witness will agree with you. Preferably, the witness will also want to agree with you. What do I mean “want to”? If you are going to cross-examine a police officer on a defect in his report, you will begin by establishing how careful a report writer the witness is. The witness wants to tell you this.

Face the witness. Smile at the witness. The smile need not be friendly, but it must be polite. Remember, you want this witness to agree with you. You will see British barristers take a superior attitude toward the witness, lofty and disdainful. You will see American lawyers – real or on television – sneering and snarling. Don’t do any of that. With whom will the jury identify in a contest between a witness who is just sitting there and a snarling, sneering, supercilious lawyer? Oh, maybe later, when the jury is brought along to your point of view, you can change mien. But, for now, a polite smile.

The next idea is borrowed from terry MacCarthy. Actually, all good trial lawyers have done what he suggests, but Terry has refined the technique into a “method.” The idea is this: Don’t ask questions. Make statements with which the witness must agree or suffer impeachment. Most good cross examiners use leading questions.

Q. You were in charge of the city’s oil properties, right?

Q. It was your job to review the prices the city was paid, isn’t that right?

You can even eliminate the words “right” or “isn’t that right.”

Stand up. If the rules where you practice require you to examine from a seated position, start your cross with a document or exhibit that requires you to approach the witness so you have a reason to stand. After the obligatory smile, look the witness in the eyes, and make a positive statement, all the while smiling and nodding.

Q. You were in charge of the city’s oil properties?

You reviewed the prices the city was paid for its crude oil?

If the witness agrees with you, but does not answer audibly, give a reminder.

Q. That’s “yes”?

This method is particularly effective when you are leading the witness through a series of assertions, each on part of a picture.

Q. You were in the bar?

Q. You were with John?

Q. Somebody came in?

Q. He had a gun?

Q. This person had on a jacket?

The last in the series illustrates MacCarthy’s shining example of brevity, a one-word question. Brevity is, however, not a result but a means. This style of questions encourages the witness to agree with you by a series of “yes” answers. It leads from point to point, giving the jurors a picture of the action.

Best of all, the method lets you jettison most of the ten commandments as unnecessary. You will almost automatically be brief, short, plain, and nonrepetitive. Because your statements are questions only because you verbally punctuate them as such, you are not likely to ask “one question too many,” “permit the witness to explain,” or “ask the witness to repeat” the direct examination.

If the witness does not agree with you, have your impeachment material ready . . .

Now this is advice worth repeating and repeating.