CROSS-EXAMINATION IS THE ONE best pry to disgorge the whole truth. We see old TV shows of the great cross-examinations by Perry Mason that end with the witness jumping up from the stand and screaming, “Yes, I did it! I did it!” and television’s scintillating modern equivalents that are entertaining but unreal. Both the bar and the public see cross-examination as the ennobling accomplishment of the great trial lawyer. Whole libraries have been written about it. A deep hunger persists in the breast of every young lawyer to become the great cross-examiner and thereby the great trial lawyer.
The witness’s words are murky and misleading, not quite a complete lie, but plunked into the courtroom like a rotten fish, the underside of which must be exposed. Along comes the great cross-examiner. No truth shall escape him. No furtive fact shall remain uncovered. But in an entire career I have yet to experience a Perry Mason moment—the witness on the stand disintegrating into a blubbering confession—which does not comment as much on my failures as a cross-examiner as it exposes one of the myths of cross-examination.
Indeed, cross-examination is the instrument by which the truth often can be gleaned. The lack of its use in telling the whole story is evident, as public opinion convicts nearly every accused person based on the bare, unchallenged allegations of the prosecution, which are consistently laid out in the media in their most venal forms. Before the trial (except in the preliminary hearing, which is usually perfunctory), the defense rarely has the opportunity to cross-examine the alleged witnesses who will supposedly support the prosecutor’s press releases. By the time of trial, most of the jurors have been so long exposed to the prosecution’s case that they’ve become surrogate prosecutors themselves, hungrily awaiting the moment they can hang the guilty devil. Cross-examination is the one, best remaining weapon that has not yet been wholly purged from the jury trial.
Cross-examination outside the courtroom. The principles of cross-examination that I propose for the trial lawyer are applicable to many situations outside the courtroom, and the nonlawyer should absorb these sections with an open mind. Although we often cannot perform a cross-examination outside the courtroom setting, nevertheless as we approach hostile persons we can learn much from the art of cross-examination.
The myth of the ethereal art—cross-examination. In the furtherance of their status, the so-called experts usually imply that cross-examination is a nearly unattainable art that only the chosen few can master, an art that can rarely be accomplished by mere human beings, unless, of course, we take their courses and spend a great deal of time (and money) in reading their books and listening to their tapes. Absent the guidance of the experts, we are told that a skillful cross-examination is something that the ordinary lawyer cannot do, ample proof of which is abundantly provided in nearly every trial we might witness.
Rarely do I see a lawyer who knows how to cross-examine, although most have engaged in that supposed art from the moment they were haplessly excreted from their law schools, utterly ignorant of its basic, simple principles. The reason lawyers rarely learn how is because they’ve been told they can’t. But I’m about to reveal a well-kept secret: Anyone can be taught how to successfully cross-examine in about five minutes.
What is cross-examination? Cross-examination is simply storytelling in yet another form. Cross-examination is the method by which we tell our story to the jury through the adverse witness and, in the process, test the validity of the witness’s story against our own. The proper, standard cross-examination questions contain two parts: first a statement that forwards our story through that witness; for example—“No one, to your knowledge, Officer Jones, has been able to connect that gun to Mr. McIntosh, …” followed by the second part of every question, “isn’t that true?” Note again: the question itself is simply, “Isn’t that true?” The statement either is or is not true.
Basic cross-examination is nothing more than a true-or-false test administered to the witness, in the course of which our story, as it concerns that witness, is told, question by question, to the witness. It makes little difference whether the witness answers yes or no. Question by question, our story is being told. It’s for the jury to determine whether the witness is telling the truth when he denies the statements contained in our questions. If we took each statement out of our cross-examination and joined them, we would have presented our story for that witness.
So, if cross-examination is simply a method by which we tell our story and thereafter test it against the witnesses, must we not first have a story to tell? Every day I see lawyers march up to the podium ready to perform the noble art by challenging every word the poor witness has uttered, and, with an unrequited lust for drama, the lawyer attacks the witness with some marvelous irrelevancy like, “So, you say, Mr. Applebee, that he was wearing a blue tie when we all know he was wearing a red tie?” But the part of our story that needs to be told though this witness, or the story we believe this witness should tell instead of the one he’s dumped on the jury, has been forgotten, or worse, was never considered by the cross-examiner in the first place.
Discovering the story we wish to tell through the witness. For many, one of the most difficult tasks of preparing for a successful cross is simply discovering the story we want to tell through the cross-examination. Yet it can be the easiest of all. For example, the witness, a deputy sheriff we shall call Brown, tells the jury that the defendant, Jimmy McIntosh, a sixteen-year-old, confessed the murder to him, and offers a document that purports to be Jimmy’s signed confession. The deputy claims that he read Jimmy his rights before the confession was given and the document signed.
Jimmy is not able to tell us much. He has a severe learning disability. We learn from his mother that he has not been to school since the second grade. He cannot read or write. He has stayed at home with this mother because he cannot fend for himself, and on the night in question was on the way to the grocery store to buy a loaf of bread and some beans and some other grocery items. The list his mother gave him was in his pocket when he was arrested.
The shooting, the killing of an officer, took place in front of a bar near the grocery store. We learn from Jimmy that as soon as the cops saw him they asked him to come to them. Jimmy could hardly be described as eloquently articulate. “I was scared, an’ I run. I never shot nobody. I don’t have no gun. They told me ta sign an’ I could go home, else I was gonna go to the gas chamber.” That’s all we could get from a boy impoverished of the ordinary intelligence we take for granted.
We learn from his mother that Jimmy has lived at home with thirteen other siblings, most of whom have been in trouble with the law from time to time, and that the family is known to the cops as “That McIntosh Mob,” a family that, to the local police, represents trouble from the parents down to the youngest child. They are seen as vermin that should be eradicated for the safety and well-being of the community. Jimmy’s mother tells us that a deputy sheriff told her once that “We (the cops) need to get rid of the McIntoshes like we need to get rid of rats.”
The basic cross-examination. Once we’ve discovered the story that we want to tell through this witness, Deputy Brown, we can simply state it, sentence by sentence, with the question attached, “Isn’t that true?” The cross-examination will now sound something like this:
“Deputy Brown, you know of the McIntosh family from past experience, isn’t that true?”
“Yes. I know the family.”
“You know that Jimmy McIntosh has thirteen brothers and sisters?”
“Something like that.”
“And often you in the sheriff’s office refer to this family as ‘That McIntosh Mob,’ isn’t that true?”
“I’ve heard that said.” (He is being generous.)
“You have heard some of the sheriff’s officers make a joke that the McIntosh family should be made smaller as soon as possible, isn’t that also true?”
“No, I’ve never heard that.”
“You’ve heard officers in the department say that the McIntosh family is a source of continuous trouble with the law?”
“I know there’s been trouble with them.”
“You’ve heard your fellow officers say that the family gets bigger faster than you can put them in the penitentiary, isn’t that true?”
Objected to as hearsay and irrelevant. Sustained by the judge.
“The attitude of the department is that the McIntosh family are vermin who should be eliminated from the community, one by one, at the first opportunity, isn’t that true?”
Objected to on the grounds that there is no foundation for this statement. Sustained.
“Even you have said, ‘If there is a McIntosh on the street there is trouble on the street’?” (The “Isn’t that true” part of the question is implied.)
“I have never said that.” (Do we care if he doesn’t admit it?)
“You know that Jimmy has not been to school since he was in the second grade?”
“That’s what I’ve heard in this case.”
“And you know that he has a severe learning disability?”
“I don’t know that personally.”
“You know he cannot read or write, isn’t that true?”
“So I am told.”
“But he can write his name?”
“Yes.”
“You also know that he stays close to home with his mother, isn’t that true?”
“I don’t know about that. I don’t know where he stays.”
“You have had this beat for how many years?”
“Four years.”
“You have never arrested this boy for anything before, isn’t that true?”
“Yes.”
“You have never even seen him on the street before this incident, isn’t that also true?”
“I don’t know. I may have seen him.”
“And you discovered from your investigation that Jimmy only goes out when his mother sends him out for something, isn’t that true?”
“How would I know that?” (We don’t answer questions.)
“On the day in question you know that when he was arrested he had a list for the grocery store that his mother had given him, that’s true, isn’t it?”
“That list is Defense Exhibit A?”
“Yes.” (Exhibit A is shown to the officer and offered and received into evidence and shown to the jury.)
“Now officer, the scene of this shooting was about three doors down from Milly’s Market?”
“Yes. Three or four.”
“In front of a bar known as Peep’s Bar.”
“Yes.”
“No one that you know ever saw Jimmy in the bar or in front of it, isn’t that true?”
“I don’t know.” (He’s not answering the question and we’re not fighting with him about it. We know where we want to go.)
“When you arrived at the scene of the shooting you saw Jimmy standing there, isn’t that true?”
“Yes, Officer Jones and I saw him and I asked him to come to me and he turned around and ran.”
“And you chased him?”
“Yes we did.”
“When you caught him he was terrified, isn’t that true?”
“I wouldn’t say.”
“You caught him and threw him up against the wall and said to him, ‘All right, kid, you shot that cop. Where’s the gun?’”
“Something like that.”
“He had no gun?”
“No. But then he probably tossed it while we were chasing him. We chased him a couple of blocks and he was in and out of alleys along the way.”
“You searched for the gun, didn’t you?”
“Yes.”
“And you found none, isn’t that true.”
“Yes.”
“No witness saw this supposed shooting by this boy, isn’t that true?”
“We didn’t find any.”
“So you took him in and began to question him?”
It’s our turn to question the cops who questioned the childlike boy. We will proceed in open court with a judge watching to make sure the questioning is fair—hardly the decency provided this disadvantaged child. This point can be brought out nicely like this:
“I am going to continue to question you, Deputy Brown, but my questions are being asked in the presence of his honor and your lawyers to make sure that my questions are fair. Did you even call in Jimmy’s mother before you began to question him?”
“No.”
“Was she even aware that you were questioning him?”
“I don’t know.”
“My questioning of you is being recorded by the court reporter. Did you make any effort to record your questioning of Jimmy?”
“No. He just blurted it out.”
“You are surrounded by lawyers over there who are here to protect your rights, and there is Judge Lewis up there to make sure that the questions I ask are proper. Did you attempt in any way to provide this sort of protection for Jimmy before you began your questioning?”
“Hardly.”
“You told Jimmy that he could go to the gas chamber if he didn’t tell you what you wanted to know, isn’t that true?”
“No, we never said any such thing.”
“And if Jimmy says you did, you would still deny it?” The defense objects and the objection is sustained.
“And you told Jimmy that if he didn’t sign the paper you put in front of him that he could never go home again to be with his mother, isn’t that true?”
“No, that is not true.” (We and the jury know he wouldn’t admit it, even though he knows it is true.)
“The boy can’t read, that’s true, isn’t it?”
“I don’t know.”
“Did you read the confession to him?”
“No.”
“Did he read it?”
“He had a chance to read it. I suppose he read it.”
“You never made any attempt to determine if the boy would read or not?”
“He signed it.”
“You told him that if he signed it he could go home to his mother, isn’t that true?”
“No, it is not true.”
“And if he signed it you wouldn’t put him in the gas chamber, that’s true, too, isn’t it?”
We have told our story a sentence at a time, adding only the words, “Isn’t that true?” It makes little difference what the witness answers, as long as our story is honest and based on the facts as we know them in the case, or on facts that can reasonably be deduced from the evidence already before the court. It is for the jury to determine which story is true: the story Deputy Brown gave on direct examination, or the alternative story that the cross-examiner presents and tests against the witness’s story. As we see, the cross-examination has become a vehicle by which we tell our story through the opposing witnesses that have been presented against us.
Two major types of cross-examination. Although there are other variations of cross-examination techniques, we should be concerned here with two major techniques that serve two distinct purposes.
The controlled cross. This method is intended to keep the witness under a tight rein, to require the witness to answer the cross-examiner’s questions, one question at a time, concerning one fact and one fact alone, so that the witness is led down the path to the conclusion the cross-examiner wishes to achieve.
Let us suppose a case in which two officers, Smith and Jones, enter a house on a call from a wife whose husband is threatening to kill her. The husband ends up dead. We believe that one of the officers, Officer Smith, overreacted and shot the unarmed husband and then placed what is known in law enforcement as a “throwaway gun” under the deceased where he fell. The suit is by the widow against the city and the police for damages resulting from the wrongful death of her husband.
Absent a careful, controlled examination, the bottom line of Smith’s testimony might sound like this: “We went to the house where we got this call. The wife said the husband was threatening to kill her and was drunk. We went into the house and the husband came out of the bedroom. He had a gun, and Smith shot him in self-defense.”
In a controlled cross each question is tightly framed concerning one fact and requiring a yes or no answer to that one fact. Here we may be referring to some of the facts contained in the police incident report.
“Officer Jones, you were at 35 Park Place on June 23, 2003, isn’t that true?”
“Yes.”
“About twelve midnight?”
“Yes.”
“You and Officer Henry Smith had been called there, isn’t that true?”
“Yes.”
“You entered the house, isn’t that true?”
“Yes.”
“When you entered the house, Officer Smith was in front of you?”
“Yes.”
“And as he entered you heard some shots?”
“Yes.”
“You entered through the front room?”
“Yes.”
“When you entered the front room you saw the deceased?”
“Yes.”
“He was lying on the floor?”
“Yes.”
“He was facedown?”
“Yes.”
“He was bleeding?”
“Yes.”
“He appeared dead?”
“Yes.”
“You were, of course, somewhat excited?”
“Yes.”
“It’s true you didn’t examine the deceased at the moment you entered the house?”
“Yes.”
“Officer Smith told you to check the kitchen?”
“Yes.”
“To see if anyone else was in the house?”
“And Officer Smith said he was going to check the bedroom?”
“Yes.”
“You became satisfied that no one was in the kitchen?”
“Yes.”
“You then returned to the living room where the deceased lay?”
“Yes.”
“Officer Smith was out of your sight while you were in the kitchen?”
“Yes.”
“When you came back from the kitchen you looked at the deceased?”
“Yes.”
“You discovered the gun at that time, as shown in Exhibit 23?” (This is a photograph showing the gun mostly hidden under the deceased body on the right side where he presumably fell.)
“No. I saw the gun there when I came through the front door.”
We can’t prove anything more with the cross of this witness concerning our contention that the officers shot the unarmed man and placed the throw-away gun as shown in the photograph. We can now only suggest our theory of the case by adding a couple more questions:
“You know that Officer Smith carried an extra pistol with him, isn’t that true?”
“No, I didn’t know that.”
“You’ve heard him say so, haven’t you?”
“No.” Other witnesses have already made reference to Smith’s bragging about carrying a throwaway gun—“just in case some bastard who needs to get shot gets shot,” as he daintily put it.
Here the controlled cross prevents the witness from running all over the place with his answers. Every question has been carefully constructed to allow only a yes or a no answer, and even as to the last two questions in which his answers are no, the jury considers whether he is covering for Smith and that his answers, truthfully, should have been yes.
The compassionate cross. But there’s another way to cross Jones that is more likely to lead to the truth and that will better serve our case. In this cross we’ll tell our story about what happened through the leading question, without attempting to argue with the witness and without being much concerned about his answers. The officers are partners. They have been sued along with the city. Their jobs are on the line. If there was a throwaway gun placed under the deceased to cover themselves neither of them will ever admit it, oath or no oath, and the best cross-examination ever conceived will never get the witness to bow his head and whisper with all due contrition, “Yes, he put that gun under the guy.”
Our client, the widow, wanted protection. She did not want to become a widow. She was entitled to police protection from a drunken spouse. She was not entitled to a dead husband with a throwaway gun stuck under him. The widow knows for certain that her husband had no gun. He despised firearms and was a gun-control advocate.
As we have seen, the legitimate purpose of cross-examination is to test one’s bona fide theory of the case against the testimony given by the witness. The story of the witness and that of the cross-examiner will be laid against each other. Which story do we believe? The witness has told his story on direct examination. He is implacable, even hostile to the idea that the gun was planted. His story is pat. He has been well prepared. His story matches the police incident report. There’s little to grab hold of, and, if we can do nothing more than offer up questions that permit the witness to retell his story, we shouldn’t cross-examine at all. We see it all the time—lawyers, not knowing what to ask or how to open a small tear in the cloth of the witness’s story, get up and re-ask the same questions, or argue with the witness about the facts on which he can’t be shaken—which only reemphasizes the witness’s story and convinces the jury that what may only be a well-prepared fabrication is, instead, true.
Our strategy will be to cross-examine the witness with what I call the “compassionate cross,” simply a cross-examination that takes into account that this witness is a decent, ordinary human being facing a moral dilemma. We want to understand him and, before the cross is ended, to speak for him in ways that he cannot speak for himself. The key is to understand what this police officer faces, and to present him to the jury as a man facing a dilemma from which he cannot extricate himself.
Discovering the facts for the compassionate cross. Without the aid of a professional psychodramatist we can simply imagine ourselves as Officer Jones. We ask ourselves, what is it like to be this cop who has seen an unarmed man shot to death, who has been called to the scene of a domestic dispute to keep the peace and who, instead, has become a witness to a homicide? What emotional misery must the witness suffer, realizing that they, the officers, have not only failed in their mission, but have killed a man who did not deserve to die. After months of sober contemplation awaiting the case to come to trial, after the nights of nightmares about the trial and the worry about his job, his reputation, perhaps even his freedom, can we really blame him for the stand he takes, even though his testimony may be a lie?
The officers did not intend that anyone be killed. And these officers were buddies. They have backed each other up in many a dicey situation and relied on each other’s loyalty. But this situation in the courtroom is the most dangerous of all of their encounters—one in which they have no control over the consequences—and they have no choice but to stick to their fabrication. No one can prove it false. No one was there except them and, of course, the widow. Sure, she is going to say her husband was unarmed, and a bunch of their friends will probably come to court and claim that the dead man hated firearms and never had any, and sure, the gun was not registered to the deceased and the cops can’t otherwise tie the gun to him; but, after all, the widow is the one trying to get a lot of money for her husband’s death and she’s calling on her friends to stick it to the police and the city.
We have become the witness. If we play the part of Jones and, later, Smith, we can readily understand the dilemma Jones faces. We can get to the story easily by discussing the case over coffee with a trusted friend, say, Rob. Our conversation might go like this: “Rob, if I were Jones I would probably think, ‘I have to stick with Smith on this thing, but I sure hate it that we have to falsify a report. If they ever find out I’ll be one done-for sonofabitch.’”
“Yeah,” Rob says, “but you gotta stick with your partner. And there’s that kind of unwritten code among the police about the ends justifying the means—that sometimes you face a dilemma—you hate to lie, but lying is best in this case.”
“Yeah,” we say, “and if you can’t rely on your partner to back you up no matter what, well it would be too dangerous out there.” Then we might ask Rob, “Just before trial, what do you think Smith and Jones said to each other?”
“Well,” Rob might offer, “Smith says, ‘Jonesy, we gotta stick together on this. Here’s what I’m gonna say happened.’ And then they go over their stories.” Out of these several scenes we’ll discover much of the truth of the story that would otherwise remain unfocused and unrecognized in the recesses of a mind wallowing in the mass of distractions and details that can drown us in every case.
But we might do a psychodrama—say, one recreating the scene itself. A professional psychodramatist would be most helpful in leading this drama, but someone familiar with the psychodramatic process that we’ve visited here can fill that role. We’ll become the psychodramatist for the purpose of this demonstration. We’ll have the lawyer who will do the cross of Officer Jones play the part of Jones, and from time to time the role of Smith as well, so that the lawyer can get some sense of who these men are and what they’re facing. We’ll have someone stand in for Smith as we need his input.
Now as the director of this drama we’ll have Jones (the lawyer who will be doing the cross in court) do a soliloquy. We say to Jones, “You’ve just been at a scene where a man has been shot by your partner. What are you thinking?”
Jones says, “I’m thinking, my God, the poor sonofabitch is dead. I can see the hole through his chest and the blood is rushing out. He’s not breathing. Our asses are in a jam for sure. I’m scared.”
“What are you seeing and hearing?”
“The wife is screaming, You killed him, you killed him.’ [We know this from what the wife has told us.] She’s beating on Smith. He’s still got his gun in his hand. Smith tells me to take her out in the kitchen and see if anyone else is there while he checks out the bedroom. I tell the wife to stay in the kitchen. When I come back I see the gun sticking out from under the guy.”
“Do you have a conversation with Smith?”
“Yes.”
“Let’s hear that conversation.”
Jones (our lawyer) and Smith (someone playing his part) face each other. “Jesus, Smitty! What the hell?” Jones says.
Smith says, “I thought the sonofabitch had a gun.”
Now we ask the lawyer playing Jones to reverse roles with the person who has been playing Smith, so that our lawyer is now playing Smith and the other person is playing Jones. They also physically switch places with each other. We ask Smith, “What are you thinking, Officer Smith?”
“I’m thinking, I fucked up. I thought the bastard had a gun. I been shot at before [a fact from Smith’s earlier deposition] and I’m not going to get shot at again. I’m thinking, I gotta get this thing fixed up or my ass is grass.”
We ask the players to switch roles and places again, our lawyer once more playing Jones.
Jones says, “You stuck that gun under him, didn’t you, Smitty?”
They switch roles and places again. Smith says, “Yeah, I had to. You gotta back me up on this, Jonesy.”
Again and again we have them switch roles and places—our lawyer playing both Smith and Jones, a procedure that will aid him in better understanding the case.
We ask the lawyer in the role of Jones, “What are you thinking?”
“I’m thinking ‘I gotta back Smitty up, false report or not. If he goes down, I probably go down with him. And besides, he’s my partner. Man’s gotta do what a man’s gotta do.’”
We’ve discovered the cross-examination we can make. We have the ethical duty as cross-examiners not to ask questions that suggest an answer we know to be untrue. But we have the right to ask bona fide questions, the answers to which can be fairly inferred from the facts. We are approaching this cross as if we’re still rummaging around in the hide of Jones. The approach will not be confronting. It will not be ugly or hostile. It will not be accusatory. It will be one couched in understanding, and it will be one that tells the jury our interpretation of the facts so that the jury can make a fair decision as to which story is the truth.
How the compassionate cross-examination might sound: “Officer Jones, this must have been a very unhappy experience for you.”
“Yes, sir.”
“You certainly are not a man who goes around shooting unarmed citizens.”
“Right.”
“And the death of Mr. Hansen must have saddened you a good deal?”
“It did.”
“You are a long-standing member of this police force, a man with a good record?”
“Yes.”
“And you didn’t pull the trigger on Mr. Hansen in this case.”
“Your partner Officer Smith did.”
“Yes.”
“And he has been your partner for several years?”
“Yes.”
“I suppose you have been in some tough spots together?”
“Couple of times, yes.”
“And you care about Officer Smith? He’s not only your partner, he’s your friend?”
“Yes.”
“You are a loyal friend?”
“Yes.”
“You wouldn’t betray a friend, would you?”
“No sir.”
“And that is part of the unwritten code of the police—to back up your partner when he’s in trouble, isn’t that true?”
“Well, yes.” (He can deny it if he wants, but the jury and everyone else knows about this unwritten code.)
“Officers face dangerous situations frequently, even situations where their lives are at risk?”
“Yes, we do.”
“One of the dangers is to come into a strange place facing a stranger who may or may not be in his right mind and who may or may not be armed. That’s true, isn’t it?”
“Yes.”
“And officers are trained not to panic, to be cool and careful and observant in those dangerous situations, isn’t that true?”
“Yes.”
“But I suppose that officers are like other human beings. Despite their training, they can panic and make mistakes?”
“I suppose so.”
“Officer Smith came into the Hansen home ahead of you—he was the first in?”
“Yes.”
“He had his gun drawn, of course.”
“And so did you?”
“Yes.”
“You thought it might be a dangerous situation?”
“Yes. The caller said her husband was going to kill her.”
“So the adrenaline was up a little, so to speak?”
“If you want to put it that way.”
“Well, at least, it must have been a situation that caused you to be quite alert, let us say.” (The phrase “It must have been” is one that tells the witness we are trying to understand the situation he found himself in.)
“Yes.”
“And you have been trained to be prepared to defend yourself in face of an armed subject?”
“Yes.”
“So when you heard your partner fire his gun, you must have been shocked and surprised?”
“Well, yes. I heard him holler, ‘Come out of there,’ and then I heard the shot.”
“You didn’t see Mr. Hansen when he came out of the bedroom?”
“No.”
“You of course didn’t see him when he was shot?”
“No.”
“But later on you say you saw a gun under Mr.
“Yes, I did.”
“You must have been in a very tough situation, Officer Jones. I mean, if Officer Smith placed the gun under Mr. Hansen, what would you tell the jury?”
Opposing counsel objects on the grounds that the question assumes a fact that is not in evidence. The judge sustains the objection.
“You know, of course, that if Officer Smith shot Mr. Hansen, who was unarmed, that would cause both of you considerable problems.”
“Well, maybe.”
“Have you ever talked with Officer Smith about a throwaway gun?”
“No.”
“You have heard him talk about throwaway guns before, isn’t that true?” (Based on the testimony of two other witnesses who heard such talk from Jones before.)
“No, I haven’t.”
“And you knew, did you not, that he carried a throwaway gun?”
“No.”
“Would you tell the jury what a throwaway gun is?”
“It’s a gun that cannot be traced to the officer who tosses the gun down on a subject who has been accidentally shot by the officer.”
“And the idea is for the officer to make it look like the shooting was in self-defense, isn’t that true?”
“Yes.”
“You of course didn’t search Officer Smith for a throwaway gun before you entered the Hansen residence?”
“Of course not.”
“You knew that Officer Smith had been shot at once before.”
“Yes. He told me about it.”
“To be shot at is a very frightening experience, isn’t it?”
“Yes it is.”
“Have you ever been shot at?”
“No.”
“And if the subject has a gun out you’d better shoot first and ask questions later?”
“Could be.”
“You have told us that you are a loyal friend to Officer Smith.”
“Yes.”
“If he made a mistake and shot Mr. Hansen, you would never be heard to say that he planted a throwaway gun on Mr. Hansen, isn’t that true?”
The opposing counsel objects. The court sustains the objection.
“Officers have to stick by each other?”
“If it is honest, yes.”
“A situation like this must be very hard for you. Would you turn Officer Smith in if he made a mistake, shot Mr. Hansen, and then planted a gun on the dead man?”
“Yes, I would.” (Does the jury believe this?)
“You had a talk with Officer Smith before you took the stand?”
“Yes.”
“When did this talk take place?”
“Last week.”
“Where?”
“Jason’s Steak House.”
“He buy you dinner?”
“Well, yes. It was his turn.”
“So at that time he, of course, told you what he was going to say?”
“No.”
“You never talked about his testimony or yours?”
“No.” (Does the jury believe this?)
“It would be important to you that his testimony and yours matched?”
“I never thought about it.”
“You want everything to come out all right for Officer Smith and the city in this case, isn’t that true?”
“Of course.”
“You would feel badly if the jury decided that Officer Smith planted that gun on Mr. Hansen, isn’t that true?”
“I don’t think it would be right.”
“After all, he’s your friend and your partner.”
“Yes.”
“And you would do what is necessary to help him in this jam?”
“Not if it requires me to lie under oath.”
“If you were going to lie under oath about it, you certainly wouldn’t tell us, would you?”
Objection by opposing counsel as argumentative. Sustained by the court.
“You heard Mrs. Hansen screaming that her husband never had a gun—that you, the officers, put it there, isn’t that true?”
“She was hollering about something.”
“You took her to the kitchen right after the shooting?”
“Yes.”
“It was when you came back from the kitchen with Mrs. Hansen that you first saw the gun under Mr. Hansen?”
“Well, no, I saw it when I first came through the door.”
“You are not able to tell us exactly what Officer Smith did while you were in the kitchen, isn’t that true?”
“Yes.”
“And you never saw Mr. Hansen until after the shot was fired by Officer Jones, isn’t that true?”
“Yes.”
“So you can’t tell us from what you saw with your own eyes whether Officer Jones put that gun under the victim or not, isn’t that true?”
“I know he didn’t.”
“You or Officer Smith, or anyone in the department, have not been able to connect that gun to Mr. Hansen, isn’t that true?”
“Yes.”
“Throwaway guns are guns that cannot be connected to anyone, isn’t that true?”
“Presumably.”
“That is the kind of gun that officers sometimes use in this kind of case?”
“Not to my knowledge.”
“Thank you, Officer. I know you’re on a spot here. I’m sorry we had to call you.
No one could force Officer Jones to admit anything about the throwaway gun that was likely planted on Mr. Hansen. Nor can any cross-examiner, no matter how brilliant, how hostile, how facile and quick, make any witness say what the witness is unwilling to say—even if it is the truth—cross-examinations by Perry Mason notwithstanding. The witness has his own agenda—in this case, Jones’s loyalty to his partner and his desire to remain in good favor with the rest of his fellow officers and the department. That agenda outweighs the officer’s concern about telling a lie under oath.
The need to lie outweighs the truth in many circumstances that we encounter daily in our lives—from the little white ones to, occasionally, the powerful lie that can change our lives. Juries know this. That is why we have juries—to test the story of the witness and his demeanor against the jurors’ own everyday experience in life.
We know, for example, that a parent will lie to save the life of a child, a spouse will lie to protect a marriage, a president will lie to save his legacy. And where money, or freedom, or deeply held principles are at stake, even the most upright witness may lie, since that which he protects with his lie—freedom, marriage, money, a sacred principle—may be more important to the witness than remaining true to his oath to tell “the truth, the whole truth and nothing but the truth, so help me God.” Only the deluded or naive believe that somehow the taking of an oath prevents witnesses, even honest witnesses, from lying where they must.
Even in our case above, where Smith likely planted a gun, what would we think of Officer Jones if he said, “Yeah, I knew Smitty carried a throwaway gun. He’s carried it since the day that guy shot at him. He is touchy, that Smitty. I saw that the man was unarmed. I saw that Smitty made a terrible mistake. He was panicked. And he had me take the wife out in the kitchen so he could plant the gun under him. Yeah, we talked about it, and we agreed to keep our stories straight.” In certain respects, it might be argued that Jones was more honorable by having lied—by remaining loyal to his partner and to the department—rather than turning his back on his partner and throwing him to the dogs because he took an oath and had to tell the truth. But the cross-examination displays the moral dilemma that Officer Jones faced, and leaves the jury to understand his dilemma and to come to a conclusion as to what the facts likely were in the case. And the facts that have been developed from the several methods above are all properly inferable from the known facts of the case.
The loquacious witness and the misguided judge. Every day we come face-to-face with those effusive witnesses in the courtroom who simply find it beyond their ability, no matter how they try, to answer a simple yes-or-no question with a yes or no. There is something in the human composition that abhors giving a yes or no answer. Often, to a simple yes-or-no question, the witness volleys forth with great globs of verbiage, and when we object the judge, sleepy-eyed, intones in fossilized words of his own, “The witness may explain.”
Explain what? This is cross-examination! I frequently hear such a response from the court as if it were part of the sacred judicial liturgy—“The witness may explain.” When this happens it’s time for a bench conference, or, if one is not allowed, it’s time for a recess—somehow we must talk to this judge. Our statement to his honor might be as follows:
“Your Honor, I have asked a simple yes-or-no question. What I have stated to the witness is either right or it is wrong. His answer is either ‘yes, that is true,’ or ‘no, that is not true.’ Counsel asked his questions of this witness and, during direct examination, the witness was permitted to explain his answers in detail. He’ll have that opportunity again on redirect examination. If he is permitted to explain his answers still again during my cross, it becomes clear that it would be malpractice for me to give the witness the opportunity to tell his story three times without a fair cross-examination ever being allowed. I have not asked a single question that needs explaining. And if I have, the proper venue for such explanation will be the redirect after I have finished my cross-examination.”
The judge will likely say he is the judge and for me to continue in my examination or sit down as I chose. But the judge is now alerted to my theory of cross-examination, which is correct, and his rulings in the future will perhaps be somewhat more sympathetic to the true function of cross-examination, which is, once more, to test the story of our case against the testimony the witness has given.
What do we do when the judge lets the witness ramble? We have already been to the bench and we’ve made our objection in the record. But the judge continues to let the witness ramble on and on in a manic state of verbal ecstasy. I have often used the nursery rhyme of Jack and Jill to illustrate how this word-laden witness can be dealt with. The cross-examination sounds like this:
“Jack and Jill went up the hill, isn’t that true?” (Note again: The statement is “Jack and Jill went up the hill.” The question is, “Isn’t that true?”)
The witness does not answer yes or no. He answers with a storm of blather: blah, blah, blah, blah.
When the witness has finished we politely say, “I’m sorry, I must not have asked my question so that it can be understood. Let me ask it again, “Jack and Jill went up the hill, isn’t that true?”
Again the witness answers with his endless chatter. We listen patiently.
Now we might turn to the reporter and ask the reporter to read our last question to the witness. The reporter obliges, turns back pages and pages until he finally gets to our question and we hear him flatly intone the words, “‘Jack and Jill went up the hill, isn’t that true?’”
“Could you answer that question, please, Mr. Witness?” we implore.
Again the witness answers with more interminable prattle.
Finally, one might walk to the blackboard or a flip chart and write, “Jack and Jill went up the hill, isn’t that true?” and, having written the words on the board, we might ask the witness to read the words aloud with us, “Jack and Jill went up the hill, isn’t that true?”
To which he again gives us the abysmal, never ending blah-blahs.
By this time it is amply clear that the witness does not intend to answer the question. We have been polite. We will go to the next question with this comment:
“Perhaps you would be willing to answer this question, sir: ‘Jack and Jill went to fetch a pail of water.’” Again we get the same endless drivel. This kind of questioning with this kind of witness is wearing on everyone within earshot. But we are not to blame, as the jury can readily see. The witness simply will not answer a fair question.
I recall a case against a large corporation in which I was cross-examining the CEO of the corporation. He refused to answer any of my questions, always inserting at length his own endless colloquy. When the judge called a recess I went out into the hall to walk around a little. There I met the witness. “Well, Spence,” he said, as he puffed on his cigarette, “I never answered one of your damned questions.”
“Right,” I said. “You sure didn’t.”
Back in the courtroom this process went on for nine days. Each recess it was the same, the CEO boasting that he had still not answered a single question for me, and I admitting that he had not. When the jury returned a multimillion-dollar verdict against his corporation he couldn’t understand why. He hadn’t answered a damn question, not one. How could the jury do that to his company?
The angry cross. It is rarely productive for a lawyer to attack the witness with an angry cross-examination. Unless the witness is truly a miserable monster, I’m not interested in trying to convert the witness into one, nor to show up the witness as some species of idiot, because in the process the magic mirror always works. Too often I will also be revealed as a cruel ruffian, and in the process of trying to display somebody as an idiot, I will be seen as one.
We have a case, yes. We think the other side is wrong, fraudulent, criminal, rotten, scheming, an amalgam of every known evil attributed to the human species. We feel anger. We do not wish to treat the enemy with kindness. We want to destroy him, to expose his filthy underside, and we attack him with all avidity. The witness smiles—the bigot, the beast, the brute! The witness lies in a quiet voice—the sire of all scoundrels! But the jury does not share our feelings, not yet. The jurors have agreed to be impartial. They take pride in the fact that they are trying to avoid prejudice. They’re attempting to be open to both sides, to hear the evidence fairly and to come to a just decision. Our harshness, our vitriolic, noisy attack of a witness who appears to be telling the truth, who seems to be decent enough, will surely turn the jurors against us in the same way that we are repelled by anyone who attacks the innocent, whose bullying and whose bellicosity is uninvited. Simply said once more, we do not like angry people.
I have often told the following story, and I tell it here because I know of none that better illustrates this point. When I was a younger lawyer I was trying a case for a man named Bill Mattilanin, who had worked as a hand on a drilling rig. You can imagine the derrick of the rig that he worked under. It was new and shiny and painted up a pretty yellow, and at its top were those cables and spindles. One of them gave way and fell on Bill’s head. From that moment on he never knew who he was or where he was. The company men who designed the machine took the stand to cover their negligent design. We know what they look like—those expensive silk suits, the black silk stockings, and shoes with those little do-dads that flap when they walk. Their faces are pasty and flabby, and when they walk, their cheeks jiggle. There are these little blood vessels on their cheeks that look like miniature red rivers. I call them martini rivers. And these company men are so pure, so antiseptic, that as they walk past you, you get a whiff of something like Lysol.
They took the stand and I wanted to kill them. So I began to kill them with my angry cross-examination. I killed them and killed them and cut them and sliced at them. I chopped them into little pieces like a chef dicing the stuff that goes into the salad. Then I threw the pieces on the floor and I stomped on them. I felt like I had won. How could I not win, having so thoroughly destroyed these witnesses?
After my day’s work in court I would go to the hotel with my partner, Bob Rose, and I’d say, “I sure fixed him,” the company’s witness I had just finished butchering. And Bob with his sad eyes would say, “You sure did, Gerry. You really fixed him good.” But something was lacking in his enthusiasm. Still, I knew I had destroyed the witness. Company witness after company witness. At the conclusion of the case the jury was out about fifteen minutes and returned a verdict against our client, Bill. How could they do that to this innocent man? How could they do that to me, this lawyer who had slaughtered my opponent’s witnesses?
As I was leaving the courtroom one of the women on the jury came up to me. She had tears in her eyes. She looked up at me and she said, “Mr. Spence, why did you make us hate you so?”
I see Bill Mattilanin lying on a grate someplace to keep warm. If he’s alive, which I doubt, he lived without justice, without care, with no one to love him, and no one to show him how to get to the dinner table or to bed or to tell him who he was. He lived that way because I did not know what was going on in the courtroom. I was too taken up with my own anger, when the jury had yet to discover the good reasons for my being angry. I tell this story over and over again in memory of and respect for Bill.
Revisiting the issue of anger: When we begin to cross-examine a witness we despise, who we want to show up as a fraud or a fake, we must remember that the jury doesn’t know him. The jury isn’t angry at him. At this point the jury can only get angry at us. To be sure, there’s a proper time in the courtroom for anger. There’s a proper time in the courtroom for every human emotion. But each emotion must be appropriate for the dynamic in the courtroom—where is the jury with their emotions? I am not suggesting that we cook up false emotions. Our feelings must be real. On the other hand, we can’t explode in the middle of a trial, shaking our finger at opposing counsel, crying, “You filthy representative of those damnable insurance companies. You are lying and you know you are lying,” all of which may well be true, but an appropriate time for such an outburst is not at hand.
I have discussed previously that anger is a valuable emotion, one I embrace, one that reflects my caring. I would not be without my anger. Properly contained, it drives me toward a just decision for my client. I feel it. I’m glad for it. It is precious and belongs to me. However, rarely will I give the gift of my anger to an adversary.
Again, if I were to lay all of the emotional weapons out on the tabletop, like displaying the tools in my toolbox, and given a choice of but one, I would choose love. Love is the most powerful emotion in or out of the courtroom, and the next most powerful is Love’s cousin, Understanding.
Not until we have been able to prove, one patient question at a time, that the witness is who we know him to be—this devil all done up in angel’s dress—do we dare attack. Only when it is clear, very clear that the witness deserves to be confronted with anger do we dare angrily attack. And even then, a strong but fair confrontation is the most effective; although, as we have seen, if the jury wants the witness disemboweled it is our duty to do so, quickly, efficiently, and gracefully. We must remember that the decisions of the jurors, like our own, will be coming from the gut. A drama is in process. There are still the good guys and the bad. Rarely will jurors find for the bad guy—the person the jurors do not like—even though the cold hard words in the record may support his equally cold legal position.
What is the whole truth and nothing but the truth? Every witness is sworn to tell the whole truth and nothing but the truth. But few do. If they did there would be no cause for cross-examination. But the human mind does not grasp whole truths. It grasps only those truths that serve it.
When we have a difference with another we often see him as testy, inconsiderate, arrogant, mean-spirited, or simply just a damn jerk. But that, of course, is not the whole truth. We will have forgotten that we may have disappointed him, showed our disrespect for him, or whatever we did without evil intent, which brought on his unpleasant conduct. I sometimes talk about this phenomenon with a witness on cross. The examination of the expert might sound like this:
“Most science has many facets, many considerations that are not all bundled up into a single answer, isn’t that true?”
“I suppose so.”
“For example, in this case, we are concerned about what caused Baby Jane’s injuries that were first detected at the time of her birth.”
“Yes.”
“You have given us your theory of what happened. And our doctors have given theirs.”
“Yes.”
“The whole truth is that, although a doctor may be mistaken in his final opinion, all of the opinions given here were based on some facets of truth, yours and theirs, isn’t that true?”
“In your opinion, no one is lying here.”
“That’s true.”
“These opinions that we have heard are all based on some fact in the case.”
“I suppose so, only partially, in my opinion.”
“So you believe that our witnesses have not told the whole truth. Just part of it?”
“I would say they were misguided in their conclusions.”
“Which brings me to my question, Doctor. Dr. Cutter, you took an oath here to tell the truth, the whole truth, and nothing but the truth. What does that mean to you?”
“Just that.”
“Does that mean that you can leave out those facts that don’t support your opinion?”
“Of course not. I took into account all of the pertinent facts in this case.”
“Yes, and who determined for you what facts were pertinent and what were not?”
“I did.”
“Would you permit any other authorities on this subject to tell you what facts were pertinent?”
“If I thought they were authorities?”
“You leave room for the possibility that there are other authorities in this field that might disagree with you?”
“None that I would respect.”
“Are you acquainted with [here we refer to a well-known authority in this field, who is deemed the father of whatever the field is]?”
“No, I am not acquainted with him.”
“Before you gave your opinion, did you search the authoritative literature to determine if any authority on this subject agreed with you?”
“No I didn’t.”
“So, do you claim to be the only person in the world upon whom we may rely?”
(Probably an objection.)
“Surely, Doctor, you wanted to be up-to-date on this matter.”
“I am up-to-date.”
“When was the last time you searched the authorities on this subject?”
“I don’t remember.”
“Would it have been in the last month?”
“I don’t remember.”
“Well, could it have been in the last year?”
(Maybe another objection. We don’t care. The point of our argument is developing.)
“Could you possibly share with us the name of a single authority in the world who agrees with your opinion in this case?”
(He may or he may not remember one. If he does, then:) “What book or periodical did you read this in?” (He won’t remember.)
“Do you happen to have the article or book in your office?”
“I don’t know.”
“Would it be possible for you to bring it to court in the morning?” (He’ll probably make an excuse.)
“Do you leave room for the possibility that Dr. [whoever the authority is that he has named] disagrees with you on any part of your opinion?”
“Possibly.”
“What part would that be?” (He doesn’t know.)
“But when you read this article or book, whenever you read it, you must have noted that he had taken positions somewhat different than yours that you express here.”
“I don’t remember.”
“Did you forget to tell the jury about that?” (Whatever his answer, it doesn’t matter.)
“So, did you comply with your oath, Doctor, to tell the truth, the whole truth, and nothing but the truth?”
“Yes I did.”
“The whole truth includes the parts of Dr. [whoever]’s article that you can’t seem to remember, isn’t that true?”
And this cross-examination can go on following this basic line until it is exhausted. Continuing, one might ask:
“Do you think there is another authority in the world, other than yourself, who has opined on this subject?”
“Yes, of course.”
“Who would that be?” (He names someone.)
“Did you talk to Dr. [whoever he named] about this case?”
“No.”
“Did you try to confirm your opinion with any other expert in this field?”
“No. I didn’t need to.”
“You think patients should usually get a second opinion when they are facing serious medical decisions?”
“Not necessarily.” (The jury knows better.)
“So you didn’t think a second opinion was necessary in Baby Jane’s case?”
“No.”
“You didn’t even bother to read the current literature to see if your opinion was supported by any other medical expert, isn’t that true?”
“Yes.”
“Thank you, Doctor. No further questions.”
The wisdom of juries. Our species’ most prominent characteristic is our peculiar kind of intelligence. Since we all have it to one degree or another, and since members of our own species are our greatest threat, we must have a means by which to judge others who may do us harm by deceit or device. We have that ability. As we have seen, we are given the psychic tentacles to test the sounds, the expressions, the out-of-order sort of hints, the intonations, the expressions, the body language—all of the ingredients that help us conclude whether the witness is genuine, indeed, the good guy or the bad. Some call these feelers “intuition.” We all have them with varying degrees of sensitivity. When they become too active we say the person is paranoid. When they are underdeveloped we say he is naive. The biological advantage they provide, like the speed of the antelope or the shell of the turtle, is to aid the individual to survive. We are one of the few species on the face of the earth who must protect itself first against our own members.
I have said that jurors rarely find for the bad guy, even though the cold legal record may support his case. Nor can an apparent sweetheart, a lovely, smiley nice guy win if, in the end, he is not real. Twelve people on the jury with an average age of forty years have the combined wisdom and experience of a sage who has lived a life of nearly five hundred years. Taking the jurors as a whole body, and a unanimous verdict as the law most often requires, we can appreciate the good judgment of our founders in requiring jurors to determine the facts—the truth. No judge alive, even the best of them, has such wisdom, and those who claim otherwise provide us only with a wealth of pretension. Judges are merely members of the species—persons in whom we have vested great power. But I warn against confusing such power with wisdom. We have longed for their infallibility and, at last, have mostly been rewarded with our disappointment.
Discovering what is going on—with us. I have previously noted that when we are engaged in a courtroom battle it is difficult for us to accurately understand what’s going on. When I find myself in a vigorous cross-examination, I want to know: Am I being too harsh with the witness? Am I making my points or am I coming off as angry and argumentative? Am I believable? What is going on?
I first try to be aware of what is taking place in the inner sanctum—with me. I need to be aware of my own feelings, including my anger. But just as much, I need to know what is happening to the jury and the judge—those who do not know what I know about the witness I am cross-examining. The same question keeps coming back as I wrestle with the witness: What is going on? Is my cross-examination winning the battle but losing the war? I ask my associates, my wife, my secretary, and other trusted persons who will tell me the truth. I pass them a small slip of paper that says What’s going on? and I wait until I have an opportunity to speak to them at a recess or on a quick break to find out the answer. The feedback from those observing on the sidelines is usually better than my own—like the trainer who watches his fighter in the ring, who, between rounds, tells his fighter how he’s doing and what he must do in the next round.
Impeaching the witness. Impeaching a witness is different, of course, than impeaching, say, the president of the United States. The latter is a trial of the accused. The impeachment of a witness, in short, describes the process in cross-examination in which the witness is discredited. It’s an attack on the credibility or integrity of the witness. Since it is an attack, it needs to be done with care and as kindly and matter-of-factly as possible, without sarcasm, anger, hatred, or the bad-tempered aloofness of the strutting cross-examiner we see in the movies, and, sadly, sometimes in court. Impeachment is available in a variety of situations that permit the cross-examiner to displace the halo with which our opponent has surrounded the head of his witness.
The expert. Let’s say, in a medical malpractice case in which the insurance company’s expert doctor is on the stand, the questions in our cross-examination may cover the following appropriate impeachment issues:
—the witness’s interest in the outcome of the case.
—that the witness is a paid witness in the control of the opposing side.
—that the witness may not be fully acquainted with the medical history.
—that he has no interest or responsibility in the patient’s treatment.
—that his “independent medical examination” is not independent at all.
—that he is an expert in testifying, rather than an expert in treating the patient.
We have asked our questions in a patient, courteous way, which by the very tone of our questions underlines the fact that we are not attempting to embarrass the witness, but simply trying to get to the truth. And all of the questions we ask are honest questions that the jury should consider in evaluating the witness’s testimony.
“Dr. Mercy [the opposing expert], you, of course, get paid for your work here?”
“Yes.”
“We all get paid, hopefully.”
“Yes.”
“Your fee here for testifying is one thousand dollars an hour, as you told us in your deposition?”
“Yes.”
“You couldn’t charge that much unless your testimony was worth it to the defendant, Dr. Payne, isn’t that true?”
Objection from the defense and sustained as argumentative.
“But we all have to make a living, and this is, in part, how you make yours, isn’t that true?”
“I see by your deposition that you spend a good deal of your time in court—that is, over half of your gross income is derived from examining injured people on behalf of lawyers who hire you for that purpose?”
“Something like that, I suppose.”
“Do you like to testify?”
“Not especially.”
“But you choose to do these examinations and to testify?”
“I see it as my duty.”
“You have the right to turn this work down, don’t you?”
“Yes, and sometimes I do.”
“Of course. If you can’t find something to say on behalf of the people who hire you, you wouldn’t take the case, isn’t that true?”
“Yes.”
“You don’t, however, hold yourself out to be the last word on the medical questions in this case or any other case, isn’t that also true?” He doesn’t answer.
“You know that other doctors and experts can have opposing opinions, quite opposite from yours, and that they may be right?”
“I don’t think so in this case.”
“Your opinion is based on your honest belief, and I suppose that you make room for the possibility that Dr. Primely, who has testified for us, has an honest, contrary belief?”
“I suppose so, but I believe he is wrong.”
“So, what we have here are experts who believe opposite from each other, each holding an honest opinion.” He nods.
“We lawyers are the same. Mr. Pinchum, for the defense, and I don’t agree on this case at all. That is sort of the way you doctors are too?”
“If you see it that way.”
“So you make room for the possibility that experts can hold honest opinions that are opposite from each other?”
“Yes.”
“Yes. And so, in fact, you have an interest in the outcome of this case, isn’t that true?”
“You will receive no more compensation above your one thousand dollars an hour for your testimony here if you win, that’s true, isn’t it?”
“Yes.”
“So, even if your side wins the case, your fee will remain the same?”
“Yes.”
“This is also true if your side loses the case. Your fee remains the same?”
“Yes.”
“But we know that if the jury finds against your side and refuses to follow your opinion and follows instead the opinion of our doctor, Dr. Primely, that you may not be hired again, or at least as frequently as you have been in the past?”
“I think that is an unfair question.”
“I don’t mean to ask unfair questions. But being fair, we know that the people who hire you are not likely to hire a doctor with a losing record in court, isn’t that true?”
“I have no idea.”
“Let’s talk about another issue: If you wake up in the morning after testifying here and discover that you are wrong, what would you do?”
“I would tell you so.”
“May we count on that?”
“Yes.”
“And if we don’t see you in the courtroom tomorrow or the next day, we can assume that your opinion is as we have heard it?”
“Yes.”
“Instead of thinking about this case overnight, won’t you be preparing to testify in the next case?” No answer.
“And your fee is the same in every case—a thousand dollars an hour?”
“Yes.”
“Win or lose?”
“Yes.”
“I want to take you back to the time when you decided to go to medical school. Can you remember that far back?”
“I suppose so. Yes.”
“Why did you decide to go to medical school?” (This is an open-ended question that is safe to ask. He will never be heard to say, “I went to medical school to make a lot of money”)
“I decided to go to medical school because I was interested in medicine.”
“Of course. Your idea wasn’t to go to medical school so you could get out and make a lot of money testifying, isn’t that true?”
“Yes. I didn’t know much about the real world then.”
“You were somewhat idealistic, I suppose?”
“Yes. I suppose.”
“You wanted to heal, to help the injured and the sick?” He nods.
“You did not specialize or try to become an expert in testifying against the injured and the sick, isn’t that true?”
“I took no courses in forensics.”
“You intended to be a regular practitioner like our Dr. Primely—someone who has patients of his own, who tries to help them and make them better or well, isn’t that true?”
“Yes.”
“It must be somewhat discouraging to you that you spend so much time writing reports and testifying in the courtroom, rather than treating patients.”
“I don’t know. I try to do my work.”
“You have three children, I see by your deposition?”
“Yes.”
“Your oldest daughter is in college?”
“Yes.”
“We all know it costs a lot to put our kids through college these days.”
“Yes it does.”
When opposing counsel objects I promise the judge to tie it in with the next question. But the court sustains the objection. I ask the follow-up question because it seems relevant as an impeaching question.
“Does the fact that you are facing additional personal costs in your family with kids going to college lead you to choose testifying for money, rather than treat patients for money?”
Objected to and the judge sustains the objection.
“To put it another way, if you didn’t need the money, would you choose to spend your time testifying instead of treating patients?”
Objected to and sustained.
“But hour by hour you can’t make as much treating patients as you can testifying, that’s true too?”
“I don’t know about that. Never thought of it.”
“Well, you have only so many hours in a day, Doctor, and you and you alone decide how you will invest them, that’s true too, isn’t it?”
“I suppose. I also have a regular practice.”
“Yes. Now Doctor, when you leave this courtroom, your responsibility and Dr. Primely’s will be somewhat different, isn’t that true?”
“I suppose so.”
“Would you tell the jury how your respective responsibilities as to our client, Henry Hurt, will differ after you both leave the courtroom?” (Another open-ended question that we would rather see the witness struggle with.)
“Well, I don’t know.”
“Will you have any responsibility for the future care of Henry Hurt after you leave here?”
“No.”
“You never had any to begin with, that’s true, isn’t it?”
“Yes.”
“But after this case is over Dr. Primely will have the well-being of Henry as his responsibility for some time to come?”
“I suppose.”
“So, in effect, all you do is make an examination that took, I believe you said about twenty minutes, testify as to what you saw, and collect your fee—that’s fair, isn’t it?”
“You can put it any way you want.”
“I see by your report here that you call your report, Exhibit 22, an ‘Independent Medical Examination’?”
“Yes.”
“Why do you call it an independent examination?” (Let him struggle with this one. And note that all the time we are speaking to him in a kindly voice.) “Well, that is what we call these reports.”
“But his honor, here, Judge Bloom, didn’t order this, did he?”
“No.”
“He had nothing to do in choosing you?”
“No.”
“You were chosen by the defense, here, by the lawyer, Mr. Pinchum, isn’t that true?”
“Yes.”
“And neither the judge, nor the State of Wyoming is going to pay your fee?”
“No.”
“It will be paid by those who hired you, right?”
“Yes.”
“You were chosen, hired, and will be paid by the other side in this case, that’s all true, isn’t it?”
“Yes.”
“And we didn’t choose you?”
“No.”
“Nor did we even agree that you could examine Henry, or report on him, or testify against him.”
“Yes.”
“So your report isn’t an independent medical examination at all. It’s an examination on behalf of the defense in this case, that’s true, too, isn’t it?”
“As you want to put it.”
“Doctor, we have mentioned your daughter in passing. And we have talked at length about your qualifications. If your daughter had the same injuries as Henry has suffered in this case, would you choose a person with your qualifications and experience in treating such injuries over those of Dr. Primely?”
“I can’t answer that. It is too hypothetical.”
“Well, your expertise is in testifying, not treating this injury, isn’t that true?”
“I hope I have expertise in the medical field in which I testify.”
“Yes, of course. [No sarcasm in my comment.] Now, being utterly fair with the jury, who do you think has a better understanding of the facts in this case, a doctor who has treated the patient day after day, month after month, or one who has just seen the patient for twenty minutes and has read the record of his care and treatment?”
We don’t care how he answers this question. The jury will know that the treating doctor has the best insight into the patient.
A word to the wise in cross-examining experts. We may learn a great deal about the expert’s field by simply reading the medical textbooks on the subject. I have often said that the lawyer can know as much or more as the experts about the limited field in which they testify if the lawyer will take the time to read. The learned treatises and medical texts are easy to find in any medical library (our own doctor probably has them), and when we come into court to testify we can be as informed as the expert. I often encounter the expert who has not kept himself completely current in his field. The scientific fields are moving targets.
Cross-examining the expert from learned treatises, as the law permits, can be effective. But it is also dangerous. Most well-schooled experts will refuse to admit that a given text is a learned treatise. They will call the book an opinion or one written by an author who is not generally accepted as an authority in the field. Still, the law permits one to cross-examine the expert from a learned treatise, and the opportunity to do so should not be overlooked, especially in depositions where we can discover in advance what the witness is going to say concerning opposing opinions from the texts. A lawyer who comes into court without knowing the full extent of the science surrounding his case is a well-coiffed charlatan.
There is no wealth greater than the wealth of mind filled to brimming with the facts and science of one’s case. But I see the expert as a caged lion. We can get in that cage and wrestle with him if we want. But he will devour us. We can argue all day and deep into the night, and despite our superior current academic knowledge he will win the argument, because the argument seems to be, as it is, an argument between a lawyer and a scientific expert. The jury has to decide who is to be believed—the lawyer who is an expert in the law, or the witness who is an expert in his science. The winner is preordained. We argue and it sounds like argument. We protest and holler and it sounds like that—and the winner, still, is the expert. There is a built-in futility in demeaning the knowledge of the expert by attempting to show our own superior freshly acquired knowledge.
I believe we should get involved in scientific arguments only when we have the clear, undisputed advantage: Has the expert given contrary testimony at some previous time? Has he written papers that are contrary to his present position? Has his mentor or one of his professors contradicted his testimony in prior works? Has a world authority made a clear statement to the contrary? We can attack him when he or other undisputed authorities have taken a different position than he now espouses. Under these circumstances we are not arguing as the expert. We are arguing, though. I say, keep out of the lion’s cage. We can prod the lion with our sticks from outside the cage, as in the cross-examination above. We have impeached from the outside. We have prodded and even tormented in a kindly way, but we have not gotten into the cage with the expert, and we remain safe and our client’s case remains unharmed.
Cross-examining the jailhouse snitch. The jailhouse snitch is often the prosecution’s key witness. Too frequently the cops put a willing snitch in the prison cell with the client. At the time of the trial the snitch is called upon to tell the jury what confessions the defendant has supposedly made to the snitch. The deal, of course, is that the prosecutor has agreed to help the snitch, to get his sentence reduced, or to provide some other sort of assistance to the witness. In the final argument the prosecutor will excuse what the state has done with something that sounds like this: “We can’t go out and find our witnesses in the Women’s Junior League, or from the choir of the Baptist Church. We have to take our witnesses where we find them. They are not always pretty and they are not always as antiseptic as we might want them. But they have taken an oath and they have testified here and Mr. Spence has been given the opportunity to cross-examine them so that there is little doubt that these witnesses had the opportunity to obtain the evidence they have given, and they have given it to you as best they can,” which is to say that the poor snitch should be believed, even though we all know he is a lying son-of-a-carnivorous parrot, the likes of whom align the walls of hell.
But for a full minute get into the skin of a snitch. You are the snitch. You are this miserable human being trapped in the hands of the law. You face twenty years or more in the pen on a pending charge. The pen is not just a word. It is hell on earth. It is another society, one of vicious, angry men who will hurt you. The guards and the warden have been so long in the company of the inmates that they have become less human than the murderer you will bunk with. You are a number, not a person, an animal in a cage who must be fed with the other animals, an animal that is seen as dangerous and worthless.
Inside the pen you, of course, have lost your freedom. And you have gained entrance into a satanic society in which mostly men with broken souls are its members. No women, no mothers, no little children, not even a dog or a canary. Nothing lives. The bullies who reigned supreme in the outside world, the rich, the corporate masters, the police—well, the bullies who dominate within this new society are just as powerful and as heartless. Some will want sexual favors for small favors—like protection from physical harm. A penitentiary is the most vicious oligarchy on the face of the earth.
As the snitch awaiting trial, you have not seen your wife in a long while. You have had no person to gently touch you, to care about you, to ask how your day was. You have not seen your children. They will grow up without you, ashamed of you, not mentioning your name, trying to forget who you are. You will be in this hellhole for the next twenty years, never seeing the first blooms of spring or hearing a single song of a bird. You will eat, sleep, and live in putrid concrete. And now the prosecutor is here and says he is willing to make a deal—some deal that will get you free in a year or two. All you have to do is to remember what happened, what you heard, what was said by the defendant who has become your bunk mate. Will you make up a story against him? Will you lie about him? He is probably guilty anyway. In this world, this jungle, one has to survive. You are in a trap. Someone has offered to release you from it. Will you turn it down?
Now the snitch, let’s call him Arnold McGinnis, has taken the stand in the case against us. He has testified in detail about the crime our client allegedly confessed to him while they were in the same cell as cell mates. Our cross could be the usual angry cross of the defense attorney who attacks:
“You made a deal with the prosecutor, didn’t you?”
“No.”
“He said he would help you, didn’t he?”
“No.”
“You’re in the pen for fraud, I see here” (looking at the rap sheet).
“You claim you are honest?”
“Yeah.”
“Can an honest man commit a fraud?”
“It was a phony, put-up deal.”
“Can an honest man commit a fraud?”
“I didn’t do it.”
“You know how to lie, don’t you?”
“I’m not lying.”
“You’ve lied before, haven’t you?”
“No.”
“Tell the jury what a lie is.”
“They know what a lie is.”
“No, I want you to tell them.”
“It’s when you are not telling the truth.”
“You’re a professional liar, aren’t you? That’s why you’re in the pen today, isn’t that true?”
“I’m not lying.”
“You can answer my question: You are a professional liar. That’s why you are in the pen today, isn’t that true?”
“I’m not a professional liar.”
“When did you meet with the prosecutor?”
“I don’t know.”
“You don’t even know that?”
“No.”
“You were in his office?”
“No. He come to see me.”
“A couple of cops were with him, right?”
“Just one.”
“And he told you what he wanted you to testify to, didn’t he?”
“I told him.”
“You say you didn’t make any deal. But you expected to get something in return for your cooperation, didn’t you?”
“No.”
“You are lying now, aren’t you?”
“No.”
“Is there some way we can tell when you are lying and when you are not? I mean, do you hold your mouth in a certain way when you are telling the truth or what?”
This brand of questioning can go on endlessly in this hostile manner. The penitentiaries are filled with inmates whose lawyers have cross-examined in this strident, hostile fashion, their teeth bared, the sound of their words laced with enmity, their body language revealing a cross-examiner but a hair’s breadth from launching a physical attack.
We must remember: Jurors are humans, the same as we. They have their own pent-up feelings against liars and cheats. But don’t forget, when we become the bully, beating up on the witness who is trapped on the witness stand, the dynamic can gradually change so that, although the witness may not be believed, the lawyer himself may have fallen from grace.
No matter how lowly we are, how deprived, how hated, how worthless we feel, how twisted our psyches, how lost we are, we long for a higher state of being. A compassionate cross of the snitch, one which will be more effective, might sound like this:
“Mr. McGinnis, you must find yourself in a very difficult position.”
He looks blankly back.
“I mean, you are facing twenty years in the penitentiary yourself.” He shrugs his shoulders.
“I don’t mean to embarrass you, but you’ve been in the penitentiary before, haven’t you?”
“Yes.”
“It is not a very pleasant place to be, is it?”
“It could be worse.”
“What’s it like to be in the penitentiary?” (Here we use the open-ended question. His answer cannot hurt us, but his refusal to be completely candid will reflect on the witness as someone holding back.)
“What do you mean?”
“Well, as you say, Mr. McGinnis, you are facing twenty years in the pen. Could you help the jury understand what a day in the pen is like?”
“You’ve spent many days in the pen, haven’t you?“
“Yeah.”
“What is a day like?” (An interested sound in our voice.)
“Like any other day.”
Here we can lead him from the moment he arises from his steel bunk, a bed without covers, it’s cold and the place is noisy with the sound of steel on steel as the doors open and close. The men are noisy and vulgar, the place is never dark, not even at night—the lights on, so that one cannot tell if it is day or night, the lineup, the breakfast of cold, pasty cooked cereal, the long hours of nothing, of loneliness, the hours dragging, the brief time in the exercise yard, and on and on.
“A day in the pen is a day in hell, isn’t it?”
“You get used to it.”
“And you are looking at seventy-three hundred of those days unless you can do something to shorten the time, isn’t that true?”
“They gimme twenty years.”
“You’re married?”
“Yeah.”
“Arnold, how long has it been since you’ve seen your wife?”
“She comes once in a while.”
“How long has it been since you just held her hand?”
“I don’t know.”
“Been over a year, hasn’t it?”
“I suppose. Never kept track of it.”
“You love your wife?”
“Sure.”
“She love you?”
“Yeah. I guess.”
“She was good to you?”
“Yeah.”
“There’s no one in the pen who cares about you, isn’t that true?”
“I got friends.”
“Tender, loving people like your wife?” He doesn’t answer.
“And you have children, I understand?”
“Yeah.”
“You’re proud of them.”
“Yeah, sure.”
“How long has it been since you’ve seen your children?”
“I don’t know.”
“Do they come to see you?”
“No.”
“You miss them?”
“Yeah.”
“And you know they are growing up without a father.”
“Yeah.”
“It must be a very frightening and lonely life you live in the pen.” He says nothing. Looks down at his hands.
The examination goes on covering the facts we have learned by simply reversing roles with the witness. At last the hell of living in the pen becomes very real to anyone who listens, and the jurors are listening. Perhaps the final questions might be:
“I guess, Arnold, that you would do or say about anything to get out of this hell?”
“No.”
“Would it make you feel any better if we told you that we understand how you can lie against an innocent man?”
Objected to and the objection is sustained.
“Arnold, it’s all right. My client, Joe Low, understands.”
The open-ended question in cross-examination. The home of the leading question is, of course, cross-examination. We all know the old saw: Never ask a question on cross-examination to which you don’t know the answer. Insulate yourself from disaster by always leading. But if we pause to reflect we will soon recognize many a place where the open-ended question is called for.
I want an expert witness to explain the meaning of technical terms. “Doctor, when you speak of the heart’s right atrium, what do you mean?” On cross-examination I will require him to show us that those intimidating, technical words are just big words that usually mean simple things that ordinary people can understand. When the expert talks of atherosclerosis we ask him to tell us what that means in ordinary language. It means, simply, that a deposit called plaque builds up on the inner wall of the coronary arteries, which supply the blood to the heart, and gradually narrow the arteries which, in turn, restricts the flow of blood, which, in turn, can lead to a heart attack.
I will ask the witness to describe a location, a person, to set the scene, to give us a history. Often the direct question provides a fertile field for a cross-examination that will follow. And often direct questions will give us better details from a witness who is supposedly impartial. For instance, we want to know the details of an accident in which our client’s child was killed. If we have the officer on the stand who was the first to arrive at the scene we might say:
“Tell us, Officer King, exactly what things were in the car when you arrived at the scene of the accident?”
“There was an empty beer bottle. Two of them, to be exact.”
“Did you see the Bible?”
“No.”
“You didn’t seethe Bible?”
“I saw it later.”
“Did you see the little girl’s car seat?”
“Yes.”
“What was on it?”
“What do you mean?”
“Did you examine it?”
“Yes.”
“What did you see on it?”
“Blood.”
“Whose blood was it?”
“Hers, I suppose.”
“Who sat in the car seat at the time of the accident?”
“The little girl.”
“What was her name?”
“Betty Lou Jergonson.”
“How old was she?”
“Three.”
“Did you see her at the scene of the accident?”
“Yes.”
“Describe her as you saw her.”
“She was bleeding around the head.”
“What was she saying?”
“She was unconscious.”
“What did you notice about the injuries to her head?”
“She had a deep cut over her right eye.”
“What else?”
“Her right eye was protruding.”
“What do you mean?”
“It was hanging partially out of the socket.”
“Did you notice anything else concerning her head injuries?”
“Yes. Her mouth was smashed in and her front teeth were gone.”
“What did you do with the seat she was sitting in?”
“I took it to the station.”
“Where is it now?”
“I don’t know.”
“Who did you give it to?”
“I don’t recall. I think Mr. Fortune.”
“Do you mean the attorney representing the driver of the other car?”
“Yes.”
We can immediately see that these open-ended questions may force the witness to tell more than the witness wants to. If we are dealing with a witness who claims to be impartial, the open-ended question may often provide a better story for us than if he were crossed. Every witness that the adversary may call is not necessarily hostile merely because he has been called by the other side.
Cross-examinations that keep our witness off the stand. I remember in the defense of Randy Weaver of Ruby Ridge the prosecutor called a witness to testify who had not been previously identified as a government witness. Moreover, he had failed to give us the twenty-four-hour notice, as was the court’s rule in the case. I, of course, objected.
“We were not given notice that this witness would be called, Your Honor,” I pleaded at the bench. “I ask the court to order the witness to stand down.”
The prosecutor offered a lame excuse.
The judge gave me that sly old fox look, one that said, “Come on, Mr. Spence, you don’t need my help.” What he did say on the record was, “Mr. Spence, the government has called forty-two witnesses to date. They have all testified for you. I will permit this witness under the circumstances.”
What the judge was saying was that my cross-examination was making my defense. He’d seen that I was able to cross-examine and that his granting this one exception to the prosecutor would not create sufficient error in the record for a reversal in the event the defendant was convicted—a matter of little solace to me. I did, in fact, examine the witness to our benefit, and when the state had concluded its case after scores of witnesses had testified and had been cross-examined by me, it seemed to me that we should rest without putting on any evidence. After twenty-three days of deliberation, a time that left us hanging over a bubbling caldron of torture for what seemed like an eternity, the jury acquitted Randy Weaver.
As I have said many times, most often we can tell the accused’s story better than he. He is seen by everyone in the courtroom as the villain who will lie to save himself. The only defendant in a criminal case who can testify with ease and effectively is a sociopath who is probably guilty of the crime charged. Innocent defendants are most often helpless to defend themselves—their fear, their anger at being charged with a crime they did not commit, their inability to match wits with a seasoned prosecutor makes it almost impossible for the defendant to take the stand and convince the jury of his innocence. As a consequence, I rarely call the defendant to testify unless the defendant insists and I am unable to convince him otherwise, or unless the prosecution has gotten evidence before the jury that is fatal to our case, and the only witness who can dispute it is the defendant himself. As a consequence, I attempt to get my entire case on display in my cross-examination of the state’s witnesses.
Credibility again becomes an issue here—a strategically imperative one. In the criminal case where the burden of proof is on the state we have shown that the prosecutor has not been completely candid with us. He has told the jury about his case in the opening statement. But at the earliest opportunity we have shown in our cross that he has not told the full story. He has only told his side of a many-sided story. His witnesses have not been up front and completely honest. They have not been the most reliable kinds of good citizens. The cops have not acted competently. There are huge holes in the state’s case. Moreover we, the cross-examiners, seem fair and decent. We have shown the jury that there is much doubt in the state’s case. In fact, we have earned the jury’s respect. The jury seems to trust us.
But now we who were once the trusted cross-examiner put our case on. Suddenly, through the cross-examination by the prosecutor, the jurors see that our case, too, has holes in it. They see that our witnesses are just like the state’s—sometimes not fully candid. Then we, who were once trusted by the jury, call the accused to the stand. After the prosecution gets through cross-examining him and displaying all his contradictions, the implausible facts he has testified to, and considering his poor deportment on the stand, his anger, and his evasive answers, it now seems probable that the accused is lying (even though he may have been telling the truth). The jury concludes that we have been presenting false colors. The jury feels betrayed and they find for the state.
No matter how open and honest we are, and we must be, the effect of permitting the prosecutor to cross-examine our witnesses is dangerous. And the risk of letting our client take the stand is an overt invitation to disaster. I recognize the exceptions. I have put my clients on the stand when I had no other choice. We can and must be the most reliable persons in the courtroom. But in the eyes of the jurors we lawyers will take the blame for each witness we put on the stand who cannot survive a daunting cross-examination. When we put an honest witness on and the prosecutor cuts him up we are the ones who take the blame. The witness did not hold up as we claimed he would. The witness does not turn out to be as pretty and lovely of soul as we told the jury he would be. Our credibility plummets. Often at that moment our case is lost.
In the end it is most often better to do without critical witnesses than to put them on and have them fail to live up to their billing. When we disappoint the jurors, when they suddenly see us as attorneys who have failed to keep the faith, often nothing will suffice to restore their confidence, their faith. So it is, also, with jurors who have trusted us when we put on our case and it fails in one way or another. Since many witnesses can be shaken on cross, and since our client, the accused, has a nearly insurmountable task in convincing the jury of his innocence when a well-prepared prosecutor confronts him skillfully, I have long ago concluded that calling any witnesses in the defense of one’s case is not a good global strategy, especially if one has become skilled in the art of cross-examination so that it may become unnecessary to call any witnesses at all.
Cross-examining the fragile, the timid, the diminutive, and the grieving. One fact we must always remember: If the jurors can identify with the witness, we must be extremely considerate to that witness, because there is a part of the witness in the jurors, and when we attack the witness we are attacking the juror. I am thinking of a grieving mother whose son was killed and our client is charged with the crime. I am thinking of a widow whose husband was the driver of the car who injured our client and we are seeking damages from his estate. Often the veteran lawyer will ask no questions at all, rather than have the jury rise up and throw their protective arms around the witness.
But people are all the same. As with us, the grieving mother has her own defense mechanisms to protect her. While the cross-examiner cannot lunge headlong into a confronting cross-examination, still he ought not be intimidated by taking on this sympathetic witness. Instead, we should approach the witness with caring, but with solid, relevant questions. Moreover, in fairness, the other side has put this witness on the stand. We didn’t. And it would be unfair for us to be deprived of our right of cross-examination, simply because our opposition has decided to put on this sympathetic witness. A sort of putative necessity exists, demanding that we rise to this difficult occasion.
“Mrs. Allison, I understand the pain you are experiencing here today. This must be very hard for you.”
“Yes, sir.”
“You understand that we have not caused you this pain by calling you as a witness?”
“Yes.”
“You were asked to come here by the prosecutor—not by us.”
“Yes.”
“I have to ask you some questions about this case. Do I have your permission to ask you these questions?” “I guess so.”
“Thank you, Mrs. Allison.”
At this point we have begun to cut through the shield of sympathy that our opponent enjoys with this witness. Our questioning will start with open-ended questions.
“I want to take you back in time to the night in question. I am so sorry I have to do this, but could you tell us where your husband was?”
“He was at work. He worked the shift from twelve midnight until eight in the morning.”
“Were you left alone in the house?”
“No, my son was asleep in his room.”
“Could you tell us something about your home? Could you take us there and show us how the house looked at two o’clock on that morning?”
“Well it was just a two-bedroom house. There’s the front door, the living room, and then the kitchen. Two bedrooms adjoin the living room and the bath between them.”
“What was the lighting like at two in the morning?”
“The lights were off, but there was light coming in the living room window from the street light outside.” The witness is beginning to change a bit. Her voice is no longer wavering near tears. She is sounding quite different than when she was answering the questions for the prosecutor. She sounds almost defensive, perhaps a bit hostile.
“You were in bed in the back bedroom and your son was closest to the living room?”
“Yes, I was.” She is now responding, as many witnesses do, as if we are trying to trap her. We have never changed our tone of complete courtesy—focused and factual. The change in her demeanor is actually startling. It’s not that she isn’t the grieving mother that she purports to be. She is. But she, like most witnesses, has begun to react defensively to the cross-examination. And the jury is seeing that the once untouchable witness is presenting herself as one who, indeed, can and should be cross-examined.
“You never saw the person enter the front door, did you?”
“How could I? I was in the back bedroom.”
“Of course, not, Mrs. Allison. You are quite right.” She stares at the cross-examiner as if she has just won a major point.
“And the first thing you heard was somebody hollering, ‘Matt, you son of a bitch, come out here’?”
“No, the first thing I heard was the sound of a key in the door.”
“You heard that from the back bedroom?”
“Well, absolutely. I heard it.”
“You had been asleep?”
“That’s what I testified to.”
“And you were awakened all the way back in the back bedroom by the sound of a key in the front door?”
“Yes, I was.” Why is she so hostile? Our questions have been simple, reasonable questions. She is losing the shroud of sympathy that once protected her.
“Did you hear the car drive up?”
“No, like I said, I did not.”
“You know that the car had what the kids call ‘pipes’?”
“I knew no such thing.”
“You heard a key, but not the car, do I understand you correctly?”
“Yes you do.”
“Thank you, Mrs. Allison. So then you heard the man yelling your son’s name?”
“I heard the front door shut.”
“And you say you got up?”
“Yes, I did, and I saw him standing in the living room with a gun.”
“What kind of a gun was it?”
“Like that one up there.” She points to the revolver that has been identified and is in evidence.
“The man was looking at you when you came out of the bedroom?”
“Yes, he was, and I saw him plainly.”
“The lights were off, Mrs. Allison.”
“Yes they were. But I saw this from the street lights shining through the front window.”
“You were facing the front window?”
“I certainly was.”
“And he was facing you?”
“Yes he was.”
“His back was to the front window?”
“Yes.”
“So the light in this darkened room that was coming through the front window was on his back, not his face. That’s true, isn’t it?”
“Mrs. Allison, please help us, will you?” We wait for her to settle down a bit. “The light from the street lamp was on his back, not his face?”
“It lighted up the whole living room.”
“You, of course, notice that Ted, my client, is a black man.”
“Yes he is.”
“He has a darker complexion than many black men?”
“I wouldn’t know.” The jury can see.
“And you were able to identify both Ted and the gun?”
“Yes.”
“Your son Matt then came out into the living room?”
“Yes.”
“And the lights were still off?”
“Yes. The light switch is over by the front door.”
“And your son was standing by you and he said, ‘Who is it, Mom?’”
“That’s what he said.”
“He could see the man standing in front of the two of you as well as you?”
“I suppose so.”
“Yet he asked, ‘Who is it, Mom?’ He must not have recognized the person standing there.”
She is silent.
“But your son knew Ted. They were longtime friends.” She is silent.
“Then the person, whoever it was, shot him.” And we ask no further questions.
What we have seen here is common. The sympathetic witness, whether a grieving mother, a small, vulnerable person, a timid, even fragile child—all are still human beings who, if treated fairly but in a focused way will often shed the very demeanor that protects them the most. Even the witness who remains within the protective cover of empathy can and should be kindly cross-examined if there are important facts or admissions to be gained.
Passing the witness for cross-examination. Despite what I have said, there are those witnesses who ought not be cross-examined. Witnesses who merely establish foundation facts, witnesses who testify to matters not in dispute, who can offer nothing to otherwise support our case—these witnesses should be passed with a courteous, “No, questions, Mrs. Perkinson. Thank you for coming.”
I see lawyers who believe it is their utter duty to cross-examine every witness who has ever walked into a courtroom. The examiner has reduced himself to a nitpicker—someone who soon wears out his welcome with the jury, who bores the jury with his love of all the junk in the junk pile of facts that surround every case. At his best he is seen as one who provides little more than endless piles of trivia. When it comes time for him to cross on a critical fact, the jury is likely as not to miss the point, because he’s made so few along the way. When the lawyer gets up to cross-examine he should have a significant story in mind that he wants to tell with this witness. He should be prepared to make an important point. Otherwise he should remain seated and provide the jury with blessed silence.
I look for the witness I can pass with a kindly, “No questions.” It adds to my own credibility, and it clearly tells the jury that if I choose to cross I have something important to provide them. They should be on the edge of their seats to find out what it is.
Before we begin the cross-examination we must ask: Who is this witness? At this point how does the jury see him? Is he seen with respect, with caring, with sympathy, or is the witness one who the jury doesn’t relate to, like an emotionless cop or a long-winded expert who uses big words. Before we begin the cross we should become the juror. As a juror, how do we see this witness at this point? Do we like him? Do we trust him? Do we want to know more about him and what he is testifying to? Has the witness hurt us, or did he hurt our opponent? How we see the witness as a juror will tell us how we should approach the witness.
Again, the common denominator is courtesy. But whether we choose a controlled cross-examination where the witness is dangerous and hostile, or whether we use a compassionate cross, or even a cross with open-ended questions, depends on our initial assessment of the witness through the eyes of the jurors.
Then, before we begin the cross-examination, we must have in mind the story we wish to tell through this witness. We have prepared the story for each witness and we’ll not muddle around asking a bunch of meaningless questions in order to hear our own melodious voices, nor will we repeat the questions we heard on direct examination, except where it is necessary as foundation for a well-prepared cross. And, at last, we ask ourselves, do we want to cross-examine this witness at all?
For the lay persons—the principles of cross-examination outside the courtroom. We can’t cross-examine the boss. That’s too obvious. We can’t be heard to say, “So, Mr. Hemlock, you’ve failed to include in next year’s budget the raise you promised me last year at this same time, isn’t that true?” In the morning the pink slip with your name on it is nearly guaranteed. But the methods of courtroom cross-examination we have discussed have multiple applications out of the courtroom as well. We can certainly get together with friends and do a small psychodrama by which we can learn how the boss feels about any given subject, and how, therefore, we should approach him.
We can discover the facts of our case in the same way that we discover the facts preparatory to a cross-examination during a trial. We can take the position of the boss, the CEO, the administrator, the school board, or municipal board member. We can understand what their problems are, their agenda, what they are afraid of, and how we might discuss the case with them from their viewpoint, which, in the end, we must fully understand to become successful.
The problem outside the courtroom is a bit more difficult for another reason—the power person to whom we are making our presentation is often not only the decision maker, he is also the adverse witness. He is not only the opposing party, he is often the jury as well. Simply understanding this fact is the first step toward a successful encounter.
Let’s take as an example something that has always concerned me as a photographer—the limited warranty we read on the back of every roll of film we buy. It says, in effect, if the film is defective, well, that is too damn bad. All we, the film manufacturer, will give you is the cost of the roll of film. Wonderful!
Let’s look at a case—one in which a photographer has been given an important assignment. He’s going on an expedition to the Antarctic to photograph the elusive but recently rediscovered albino whale—the white whale of Moby Dick. This mammoth creature has been merely a myth growing out of Melville’s classic, but what he has recently discovered is that the whale exists! There have been two sightings, and if our photographer can photograph the whale it will be the first and only photograph known to mankind—and absolute proof that the whale exists. He has gathered up his equipment, bought the best film on the market, and has joined the expedition as its sole photographer.
Then one day … yes, there the whale is! Yes, it is sounding! Yes, it is even showing off, like the whale in the insurance company ads—its whole body is out of the water in a perfect dive, and our photographer, his telephoto lens in place and his camera fully loaded with the so-called best film in the world, snaps the photograph. He’s got it! The only photograph of a white whale in all history.
But you know the story. The whale is not even discernable in the photograph, and when the negative is examined it is only too clear that the film was, indeed, defective. The justice our photographer is going to enjoy under the terms of the warranty is another roll of film—his total compensation for the loss of one of the most valuable photographs man has ever taken.
So what? The company had itself fully protected by its warranty, so that a controlled cross-examination of the photographer by the company lawyer, in or out of court, might sound like this:
“You have used our film for many years, isn’t that true?”
“Well, yes.”
“And you know that we can’t guarantee our film, because things happen. It happens to everyone.”
“Well, it sure happened to me.”
“And when you bought our film you knew what the warranty was—it is written plainly on the back of the box. Let me read it to you:
WARRANTY
The Manufacturer’s sole liability, and the exclusive remedy, for any acknowledged defect(s) shall be replacement of the film. The Manufacturer shall not be liable under any circumstances for any indirect, incidental, or consequential damages.
“So we are very sorry, but you knew this was the extent of our liability when you purchased our film, isn’t that true?”
The film-manufacturing company employs a sales representative who does a lot of business with the company that hired our photographer. The purchasing agent for the company who sent our Moby Dick photographer to the Antarctic has some clout with the film manufacturer because of the volume of its film purchases. The purchasing agent asks the film manufacturer’s rep to meet with the photographer for lunch, to see what can be done. In preparation for that lunch we can anticipate the psychodrama that might take place between the film manufacturer’s rep, let’s call him Robert, and one of his colleagues who will take the part of the photographer, whom we will call Ivan.
Robert the rep knows that the “warranty” fully protects his company. But does it? What happens if the photographer goes to the media with a story about his trip to the Antarctic, explaining that he took the most valuable picture in the history of wildlife and it was lost because of a batch defect in the film? His problem becomes the problem of the manufacturer, warranty or no warranty. The photographer lost a historical, priceless photograph. But the film company’s reputation may be challenged outside of court. The warranty protects the manufacturer from a court action, but it does not protect the company from hundreds of thousands, maybe millions of dollars in lost revenue if the photographer goes public and the public decides they should buy a different film.
To discover how this can all play out, Robert, the rep, immediately reverses roles with Ivan, the stand-in for the photographer. “I’m sorry about what happened to your whale picture,” the stand-in playing Robert says.
“It wasn’t just a whale picture. It was the single most awesome photo of a white whale that could be imagined. The photo was worth millions, and you want to give me a new roll of film. Big deal!”
Again Robert reverses roles and becomes the film company’s rep. Thinking as a compassionate cross-examiner might, he says, “You must be devastated, Ivan. This must be the worst thing that could happen to you. You were brought from the heights of success to the depths of despair, and it is all on account of a defective roll of film. What could we do for you?”
Ivan says, “I don’t know.”
“What about a nationwide promotion of your photography? We could put you in every photo magazine across the country, turn you into the star photographer that you deserve to be.” The conversation goes on from there, and the best resolution that the circumstances can provide is achieved.
The ultimate power of cross-examination. If truth exists, and if it can be discovered, it will best be exposed in a well conceived cross-examination. Facts are more than mere words. They are imbedded with the demeanor of the speaker—his conviction, his forthrightness, his interest in the outcome of the case, his honor, his humanness, and his credibility. Although I have written about it here at length, cross-examination is just another form of storytelling, and, of course, listening with our third ear. If there be an art to it, it is the art of preparing, of listening, and, finally, of being a human being ourselves.