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?
Q and that your signature on the bottom?
Q and the 1st sentence says: “I lied when I testified before the grand jury,” doesn’t it?
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.