CROSS EXAMINATION IDEAS

Have you thought about what the possible objectives are in cross examination? Often times we have not thought out the possible avenues we could take in cross examining a witness. Here for example are some of the objectives one might have in cross examination:

  • To establish the witness is not telling the truth on one or more material points.
  • To show that the witness is biased and has a motive for coloring the testimony.
  • To show that the testimony is improbable.
  • To obtain admissions about particular facts.
  • To question the accuracy of testimony by problems of observing, hearing or seeing.
  • To question the qualifications of the witness to express opinions or make observations.
  • To impeach the witness by showing conflicting statements or actions.
  • To question the witnesses credibility for truthfulness.
  • To impact the impression of the witness.
  • To discredit the witness because of bias, prejudice, lack of qualifications or other deficiencies.
  • To obtain helpful or damaging admissions.

Lewis Nizer was a famous lawyer years ago who wrote best selling books about his trials. He used to refer to what he called  “the rule of probability.” He would a attempt to determine what was the most probably and the most  likely version a jury would accept as being true and then work around this trial and in his examination of witnesses. This fits the principle of Occam’s Razor: The simplest explanation is the most likely and is a good way to think about your cross examination.

Elizabeth Loftus is a professor of psychology who taught at the University of Washington in Seattle before moving on to other academic institutions. She did considerable research about the testimony and believability of witnesses. One of her findings was that the more detail the witness has about the event they are describing the more credible they seem. She has written:

“why is detail testimony powerful? Jurors and further a witness who provides details has a good memory of the accident or crime. They also seem to think that the witness must have paid close attention to critical aspect of the events. Also, some jurors may simply believe that people who remember details must be telling the truth because it would be unlikely that they would make up seemingly insignificant details.”

Consequently cross examination about the ability to provide details is important. Her research also established that jurors rely upon the degree of confidence of the witness in expressing the testimony. She found that jurors were far more likely to believe eyewitnesses who were confident than those who were not. The impression the witness makes on cross examination is important. Your ability to undermine that confidence is also important. In a case I tried last year the defendant’s lawyer asked the doctor how certain she was about a key fact she testified to. She answered: “Ninety Nine percent.” I found it interesting that some listeners and apparently some jurors put significance on the fact she didn’t say: “One hundred percent.” The impression of confidence counts.

There was a scandal under President Nixon, known as the Watergate scandal. John Connolly had been secretary of the treasury under President. Nixon and was charged with having taken a $10,000 bride to influence the president to raise federal price supports for milk. The principal witness against him was a Jacob Jacobson, a disbarred Texas lawyer. Connolly was represented by the famous Washington DC lawyer Edward Bennett Williams. His cross examination destroyed Jacobson and Connolly was acquitted.

Attorney Michael Tiger set 2nd chair to Williams and did a reenactment of the cross examination at a seminar. It went like this:

Q. Mr. Jacobson you’re a liar aren’t you sir?

A. No I’m not.

Q take a look at this document. It says “statement of Jacob Jacobson” on the top. That you is that?

A yes

Q and that your signature on the bottom?

A yes.

Q and the 1st sentence says: “I lied when I testified before the grand jury,” doesn’t it?

A yes.

Q so you’re a liar, aren’t you?

Very effective technique. Before John Edwards became a politician he was very successful trial lawyer. In his book Four Trials he describes a cross examination of an expert where the expert was evasive and gave long complicated answers. John had a very straight forward question prepared on a poster and asked him for the answer. He wrote on another paper in front of the jury the witnesses long evasive answer. When he was done, John said: “Would it surprise you to learn that several months ago you were asked that same question in a deposition and your answer was….” and John pulled out a large poster with the answer: “Yes, sir.”

When John put up the next simple question he had printed on a poster the witness again gave an evasive lengthy answer again. Once more, John produced a large poster with his answer at the deposition which was “Yes. sir.” The technique was very effective and attention getting for the jury.

Cross examination is a powerful tool and we should learn to use it right. We tend to argue with witnesses and often over insignificant points, at least in the juries mind. We have a habit of boring the jury with details and focusing on issues that aren’t major issues. The jury assumes the witness isn’t perfect and that everyone tends to exaggerate or fudge with the facts, so if it isn’t a major point or if it doesn’t seriously impact the impression the witness is making forget it. Jurors watch TV trials. They think examinations are two or three minutes long with huge dramatic points. They are not prepared for lengthy examinations unless it is interesting and entertaining. Prepare your cross examination. Try it on non lawyers and be prepared to reduce it to an examination which is meaningful to the jury.

WHY DON’T WE GET RID OF “DUMBASSED JURORS”?

I received this Email from someone whose address was: bob bdifalco@yahoo.com about my post regarding jury selection. He said:

“Lawyers ought to spend their time getting rid of all juries, and hyping up judges so are adequate without dumbassd jurors.”

JUDGE< When the constitution of this country was being debated jury trial was seen as an essential and far reaching civil right. The men who signed the Declaration of Independence and wrote the Constitution provided for three separate provisions in the U.S. Constitution to guarantee the right of jury trial. Article III, Sec 2 provides for trial of jury in the state where the crime was committed. The Sixth Amendment guarantees the right to a speedy and public jury trial. The Seventh Amendment of the Bill of Rights guarantees jury trials in civil cases. The right to jury trial in civil cases was specifically and deliberately added to our Bill of Rights as an essential right of all Americans.
There is a reason for the founding father’s concern about the right of jury trial. From the time of the Norman Conquest the issue of the right the ordinary citizen to trial by one’s peers rather than a judge was a huge issue. The founding fathers knew the history of England. They knew one of the key concessions to the people was the Magna Charta of 1215 conceding the right to a jury trial of one’s peers. They knew the history of the English Star Chamber secret trials by judges and its abolition as a grant of right in 1641.

Alexander Hamilton said: The civil jury is a valuable safeguard to liberty.” Thomas Jefferson in a letter to Thomas Paine wrote:
“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

That’s why Jury trials were seen as such an essential protected right that it was put in the United States Constitution in the Fifth, Sixth, and Seventh Amendments of the US Constitution. When we are dealing with historical rights and constitutional rights of this magnitude which have been included in the Bill of Rights, one should be slow to arbitrarily decide to just eliminate them because of complaints about jury verdicts.

THE CHALLENGE OF JURY SELECTION

The subject of jury selection is particularly relevant now because of discussions in Washington state about eliminating preemptory excuses of jurors and because many lawyers generally find it to be a difficult art to master. The discussions in this state about elimination stem from our State Supreme Court who ask whether preemptory excuses should be simply eliminated. The argument for doing so is based primarily upon whether there is discrimination against minorities in the process of jury selection through this excuse process even though there are procedures to prevent this from happening. In my view it would be an injustice to eliminate this right on that basis because I feel the cost greatly outweighs weight of the assumed problem. If the system of challenge for cause was actually fair and effective it would not be as serious to do so, but the fact is that challenges for cause are for the most part unfair and not effective. Judges are reluctant to grant challenges because of concerns over the size of the remaining jury pool resulting in a possible delay of trial and a mistaken assumption that a verbal promise by a juror to set aside obvious bias can be relied upon. The truth is that most judges generally are not fully informed regarding the abundant research about human nature, decision-making and bias. Instead, they rely upon the idea that people can control attitudes and bias by will power. The research clearly establishes that this is wishful thinking. Human beings are not able to consciously control attitudes and motivations which are largely subconscious in nature.

In an excellent article by Susan MacPherson in February 2014 with the title “why do we ask jurors to promise that They will do the Impossible?” this subject was discussed. She points out that the traditional question put to jurors who have been honest enough to disclose a potential bias is this: “Would you be able to set aside that experience (attitude or belief) and decide this case only on the evidence you hear in the court room?” or another variation is: “Are you willing to follow the law as I give it in spite of your attitude?” These are the traditional “rehabilitation” questions judges are quick to ask in order to avoid granting a challenge for cause. The great majority of jurors are quick to agree that they have that ability to set aside bias, follow the law and can be fair in spite of the stated experience, relationship, bias, belief or experience even though it is an utter impossibility no matter how well intentioned they might be. Yet, judges generally are quick to accept the assurances in spite of the fact that such promises have been proven by research to be impossible even if the juror were willing to try.

As the author points out:

“Decades of social science research debunked the assumption underlying the “set aside” question. More recent neuroscience research dramatically illustrates how, outside the stimuli trigger, immediate reactions in the brain and other further proof that a request to “set aside” a relevant experience, attitude or belief is asking jurors to do the impossible. Jurors simply cannot flip a switch and shut off the influence of their own life experience or well-established attitude and beliefs.”

As important, the author points out that the traditional approach to attempt to rehabilitate the juror is also contrary to accepted knowledge about human behavior. She observes that we should stop adding to the burden of a juror by asking them to take on an impossible task with concepts like “set aside” and “rehabilitation”.

As to the challenge of jury selection, Dr.Amy Singer is a trial consultant in Florida I know and have used as a consultant. She wrote an article “Are you De-selecting the Wrong Jurors?” which I agree with totally. She notes that for years attorneys have focused upon juror demographics and used closed ended questions to figure out who they did not want on their jury. She correctly observes, however, that demographics are the least reliable basis of making such decisions. She notes that there are numerous studies which show that demographics have no correlation with jury behavior. As a result every jury voir dire should go beyond demographics and explore such things as value beliefs.

She notes that you should ask value belief questions and questions about the problem areas of the case in order to know who you might want to be excused from the jury. She also argues that it is important to identify how jurors relate to the problems and issues of your case. That involves life experiences and personality traits. Leaders who have had similar life experiences are likely to apply them and share their experiences with others in the jury room as “experts.” Dr. Singer points out that there are people on the jury who have hidden agendas concerning the outcome of the case as having a personal impact on themselves or with strong feelings about the nature of the case. There are ways in which to explore the existence of such jurors but one should the aware of these stealth jurors. She also points out that with limited time for juror questioning every question should count and should encourage participation by as many people as possible. Open ended questions along with giving jurors a chance to elaborate on their answers indicates that you feel their opinion matters to you. She encourages keeping the conversation going even when you hear an answer you don’t like.

These are some obvious observations about a complex exercise, but a good refresher on fundamentals to keep in mind. We are all in need of learning when it comes to jury selection procedures.