Meaningful cross-examination

On Behalf of | Sep 7, 2021 | Firm News |

What do you imagine successful criminal defense attorneys do at trial that makes them so effective?

  • Do they calmly dismantle every witness like Perry Mason?
  • Do they win the case at the last minute with a “gotcha!” moment like Ben Matlock?
  • Do they resort to sleazy and dishonest tactics to manipulate the circumstances like Saul Goodman?

Real life does not look anything like TV. Not every witness needs to be dismantled, “gotcha” moments rarely happen, and being sleazy never works. Reducing a witness to tears through a withering cross-examination may work effectively on some rare occasions, but in most cases the only thing you will accomplish is making yourself look like a big jerk in the eyes of the jury.

Cross-examination is the most important aspect of the trial process for defense lawyers. Without it, justice would not and could not be achieved. For either side. The credibility of witnesses could not be tested.  Bias, incompetence, and outright dishonesty would not be discovered. Without cross-examination the face of truth would be hidden in the veils of overconfidence, misunderstanding, and dishonesty.

“Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth … Cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure. — John Henry Wigmore

The “greatest engine ever invented for the discovery of the truth”? Think about that statement for a second.  That’s a pretty enormous declaration! So why is it that cross-examination has such value?

In our daily lives we inherently and unconsciously evaluate the credibility of everything everyone tells us.  It’s part of human nature. We need to know if an opinion or a “fact” can be trusted. Information has little value if we can’t assess its purity. Think of a person whose credibility you almost never question. Maybe it’s a mentor you go to for advice or a parent with unbridled wisdom. Perhaps a spiritual advisor who would never steer you wrong. What they say is pure gold. And because of your trust, 99.9% of what they say, you listen to, and you believe.

Why do you believe what they say? Why do you have nearly complete trust in this person? Probably because they’ve earned it over many, many years and with many, many opportunities. They are truthful and they are wise.

Now think of someone else. Think of a person whose credibility is completely shot in your eyes. And 99.9% of what they say is complete B.S. Every claim of truth they stake melts away layer by layer until there is nothing of substance left behind.

Why do you presume to discount everything this person says? How did they lose (or never gain) your trust? Opposite answer. This person is a liar or a fool or both.

The only commonality between these two people is the vast amount of experience we have shared with both of these people. In fact, we have so much experience that we can very comfortably and presumptuously judge their trustworthiness.

Countless others in our life fit somewhere between the two extremes. We may know for a fact that a particular well-meaning person just isn’t always correct in their assertions. Or we may not know someone quite so well as to not extend the oft demanded “benefit of the doubt”.

Now, what about strangers? How do we place a value and level of trust on the assertions and opinions of a complete stranger? We size them up. We judge them. We can’t help it. We look at their appearance, their age, their apparent intelligence, their friends, their language, their politics, and every other metric we can possibly imagine. In the blink of an eye, we gain enough information to form an initial opinion. How can we do this so quickly? Because we have experience. Vast amounts of experience. Experience we store away which pours forth to shape our intuitive judgment of others. We probe for additional information. What do they do? Where did they go to school? What is their reputation? Gossip finds a welcoming home and an attentive ear when it knocks on the door of those who judge others by reputation.

What does this have to do with the abundant value of cross-examination? Everything.

Juries are highly unlikely (if not strictly prohibited) to have even the slightest hint of the metric of experience we commonly use to size up the believability of another person. If your mentor was on trial for her life, do you really think you would get to serve on her jury? You would be the last person to be on that jury. It begs the question. Notwithstanding any oaths or promises to tell the truth, how do we know if we can believe a complete stranger when they testify?

Cross-examination most efficiently replicates the protracted experience we normally rely upon to judge the believability of someone who was once a complete stranger.

In other words, it gives us the best approximation of how trustworthy someone is in the shortest amount of time. And without it there would be no justice in our justice system. And that’s a pretty big deal.

And it falls upon the lawyers to know how to cross-examine oppositional witnesses. And sadly, it seems very few lawyers know how to do this.

Ineffective and meaningless cross-examination is commonplace. Many lawyers have fallen on their own swords and impaled their own cause because they simply did not know how to wield the weapon of cross-examination in a meaningful manner.

And cross-examination is only meaningful if it is purposeful, effective, and memorable.

Purposeful Cross-Examination

Cross-examination must have a purpose. It’s far more than just “messing” with every witness called to testify by your opponent. Questioning should only serve one of two purposes: either propelling your story forward or discrediting your opponent’s story. Each individual question must be designed to establish one of these particular purposes. If a witness does not serve at least one of these purposes, then they should not be cross-examined.

Most seem to think that cross-examination is nothing more than an exercise of discrediting and humiliating each of the opponent’s witnesses as much as possible. They fail to consider that a witness “aligned” with the other side may do more to propel our version of the events than any witness we could ever call.

Why is this?

Because witnesses aligned with our opponent are not trying to help us. And when they do help us, they will be believed.

Think about it.  If a defendant who is charged with a DUI testifies as follows:

DEFENSE ATTORNEY: Mr. Client, tell the jury how you were driving?

DEFENDANT: I was driving just fine.

Do you really think he is going to be believed 100%?  Not a chance.  Why? Because he is biased in his own favor.  And remember, the jury won’t know much else about this person other than the fact they were arrested for a DUI.

But if the police officer who arrested the Defendant for DUI testified under cross-examination:

DEFENSE ATTORNEY: You pulled my client over?

OFFICER SMITH: Yes.

DEFENSE ATTORNEY: You saw him driving?

OFFICER SMITH: Yes.

DEFENSE ATTORNEY: And he was driving just fine.

OFFICER SMITH: Yes.

No one is going to believe he is lying! The point is made far more effectively coming from an adverse witness then it is coming from a “biased” witness! Thus, the most effective defense is the one that is made completely through the cross-examination of the other side’s witnesses. That’s right, without having to call one single witness for your side. It may seem counter-intuitive, but it’s true.

Now that’s not to say that the only purpose for cross-examination is to propel our story forward. Certainly, a primary function of cross-examination is to discredit the other side’s story. This is usually done by discrediting the value of the testimony they gave on direct. One way is to suggest bias in their testimony:

DEFENSE ATTORNEY: You have a monthly arrest quota, correct?

OFFICER SMITH: Certainly not.

DEFENSE ATTORNEY: Let me say it a different way.  You get a financial incentive if you make a certain number of DUI arrests each month?

OFFICER SMITH: Yeah, I guess so.

DEFENSE ATTORNEY: And the Defendant’s arrest counted as one of those arrests?

OFFICER SMITH: Yes.

DEFENSE ATTORNEY: And you made your goal that month?

OFFICER SMITH: Yes.

DEFENSE ATTORNEY: And you got paid an incentive.

OFFICER SMITH: Yes.

DEFENSE ATTORNEY: You made more money.

OFFICER SMITH: Yes.

DEFENSE ATTORNEY: So when I called it a “quota”, you understand it to mean a goal, is that fair?

OFFICER SMITH: Yes.

DEFENSE ATTORNEY: And arresting my client earned you more money?

OFFICER SMITH: Yes.

A witness essentially admitting their own bias will always be believed. And that can only happen during cross-examination.

Inconsistent statements also show bias, unreliability, or the suggestion of dishonesty. For instance, if a witness testified that a traffic light was red at a particular time (hurting our case), but it is shown that the witness had previously written a report saying the light was green, then making this point is clearly appropriate for cross-examination.

But maximizing the impact of making this point is one of the greatest challenges facing the lawyer. And the importance cannot be understated. Being able to do this effectively is what sets the accomplished trial lawyer apart from the rest. And it’s not easy. Not by a long shot.

Effective Cross-Examination

Not by a long shot? That’s right.  We may have the biggest liar on the planet sitting right in front of us and tons of proof that they are lying through their teeth but maximizing the impact can still be really hard to accomplish.

Why? Because they are not there to help us!  They know we are trying to corner them, and they will squirm, squeal, and squash all our attempts to show them for what they are with every opportunity.

They will cover one lie with another. They will deflect the question into something entirely different, they will try to “explain” away their prior testimony. They will do everything they can do to ruin our cross. But we hold one weapon they don’t get to wield.

Control. Complete control.

Have you ever been in an argument with a loved one? Sure, you have. Have you ever gotten frustrated during the argument because the other person just won’t listen? Or they just don’t understand the point you’re trying to make? Yup. Or they distort the premise of your argument. Or maybe they just got up and left in the middle of your most important point!  Yes, it is supremely frustrating. But that’s the difference.  In a courtroom they must answer our questions. And in a court room they are not the one who needs convincing, it’s the jury!  And, they can’t leave. Period. Not until you say they can leave. If only we had this advantage at home.

But this gives us an enormous advantage in the courtroom. An advantage called control.They must answer our questions. If they don’t, they get in trouble and look bad. They can’t argue with us or ask us questions. And they can’t leave. (And I suppose it’s worth mentioning that they can’t throw things at us if they really get mad).

Maintaining this control is the key. How do we do this? We do this by being careful with our questions.   Our questions must be precise. Surgically precise. They must be short. As short as possible. They must elicit one fact at a time and no more than one fact. They must be leading questions that call for either a “yes” or a “no” answer. And chief among all these commandments is one thing. We never ask a question we don’t know the answer to. Never.

We also don’t let them explain an answer. It they give the “wrong” answer we are ready to pounce on them with proof (called impeachment) of their lie, making them look even worse. We also take away their “safe places” – the answers they will try to give to “explain away” and dispel the cross of its effectiveness. Doing this takes time and it can’t be rushed.

Remember the previous scenario I mentioned? The one where the witness testified that a light was green, but they had previously made a report that the light was red? Consider the effectiveness of the following two cross-examinations:

Example 1:

LAWYER: Officer Smith, if I heard you correctly on direct examination, you testified that the light was red, is that correct?

OFFICER SMITH: Yes, you heard me correctly, the light was definitely red.

LAWYER: But sir, isn’t it a fact that in your police report you said that the light was green?

OFFICER SMITH: May I take a look at that please? (pretending to review the report for a few seconds).  Yes counselor, you are correct.  I mistakenly said that the light was green in this report.  (as he professionally turns and looks directly at the jury) I apologize for the error, but it was absolutely red.

LAWYER: And you’re sure about that?

OFFICER SMITH: Absolutely. Positively. 100%.

Ouch.

So why was this so ineffective? Simple. The impact was completely obliterated by the savvy and experienced officer. Instead of propelling the client’s story forward (that the light was green), the officer was allowed to reestablish that the light was indeed red.

Instead of the officer looking like a liar, he was effectively able to humanize himself as nothing more than a normal person who makes simple mistakes like everyone else.  And maybe this this was an honest mistake. Or maybe it wasn’t.

Regardless, the jury undoubtedly believes the light was red. And the lawyer will not win this case. Not a chance.

Now consider another scenario. Everything is exactly the same as before. The officer is just as skilled at deflecting the question about his inconsistent report. And he undoubtedly knows the question is about to come.  But this time, we are going to take our time, be surgical, and do it right.

Example 2:

LAWYER: You are a police officer.

OFFICER SMITH: Yes (duh).

(note: “you are a police officer” is a question. It is known as a declarative question. Inexperienced prosecutors will oftentimes object that defense counsel is “not asking a question”. This is easily defused.)

PROSECUTOR: Objection! He’s not asking questions!

LAWYER: I will rephrase Your Honor. (pause) You are a police officer, (pause) right?

OFFICER SMITH: Yes.

The jury smiles. Sometimes the judge smiles too. This technique only needs to be used once or twice and the other side will shut up.

LAWYER: You are a trained police officer… right?

OFFICER SMITH: Yes.

LAWYER: All police officers are trained.

OFFICER SMITH: Yes.

LAWYER: The training is thorough.

OFFICER SMITH: Yes.

Short questions. One fact at a time. Yes or no. We are building a foundation that can’t be torn down. And there is nothing the witness can do about it.

LAWYER: You get thorough training through the police academy.

OFFICER SMITH: Yes.

LAWYER: You get continuing education.

OFFICER SMITH: Yes.

LAWYER: And on the job training of course.

OFFICER SMITH: Yes.

LAWYER: You were trained about many things.

OFFICER SMITH: Yes.

LAWYER: Trained to shoot a gun properly.

OFFICER SMITH: Yes.

LAWYER: Trained to drive a police car.

OFFICER SMITH: Yes.

LAWYER: Even trained on how to testify in court.

They hate this question. But it’s true and the jury needs to know it.

OFFICER SMITH: Yes.

LAWYER: And all this training is important for good police officers.

OFFICER SMITH: Yes. (can he really say no?)

LAWYER: And another important thing you are trained on is how to write police reports.

OFFICER SMITH: Yes.

LAWYER: And you were trained thoroughly at the police academy about report writing.

OFFICER SMITH: Yes.

LAWYER: Because police report writing is important.

OFFICER SMITH: Yes.

LAWYER: You’re taught to be accurate.

OFFICER SMITH: Yes.

LAWYER: You’re taught to be honest.

OFFICER SMITH: Yes.

LAWYER: You’re taught to be thorough.

OFFICER SMITH: Yes.

LAWYER: And you’re taught to write your report as soon as possible after the event occurs.

OFFICER SMITH: Yes.

LAWYER: Because, as we all know, recollection is best right after the event?

OFFICER SMITH: Sure.

LAWYER: And you know other people may rely on your official police reports.

OFFICER SMITH: Yes. (notice, I now called it an “official” police report)

LAWYER: People like your boss.

OFFICER SMITH: Yes.

LAWYER: And other officers.

OFFICER SMITH: Yes.

LAWYER: Prosecutors.

OFFICER SMITH: Yes.

LAWYER: Judges.

OFFICER SMITH: Yes.

LAWYER: And most importantly. Juries. Like these folks here today, right?

OFFICER SMITH: Yes.

And now he’s thinking “oh shit, here it comes, how can I explain?”  He can’t.

LAWYER: Because Officer Smith, God forbid anything should ever happen to you, your official police report is the “memory” of the police department.  Isn’t it?

OFFICER SMITH:  …yyyes…

LAWYER: Mr. Smith, I’d like to talk to you about the official police report you wrote in this case (as it’s pulled out). Do you understand?

OFFICER SMITH: Yes.

LAWYER: And in the official police report you wrote in this case… YOU SAID THE LIGHT WAS GREEN, didn’t you?

OFFICER SMITH: Yes.

LAWYER: Nothing further.

Boom.

This lawyer just won the case for his client. Do you see the powerful difference? The officer had no room to explain. Nor any opportunity to explain. And any future explanations will fall on deaf ears because this lawyer was able to make official police reports look as sacred as scripture. Either way he comes off as a liar.  Either he lied earlier about the light being green or he lied about not being a complete buffoon.  No longer is this inconsistency capable of being the product of a “simple mistake”. And there is only one possible explanation. The damn light was green!

And we just won.

Memorable Cross-Examination

The good news is that cross-examination that is purposeful is also more memorable. It may take longer, but it is more engaging. The jury loves the climatic finish of a penetrating and meaningful cross. It moves quickly and it is good theater.

Meandering, purposeless cross-examination is boring. You will lose credibility. The jury will resent you for wasting time. Beating up on a witness that doesn’t hurt your case makes you look like a bully. Trying to catch a “liar” and failing infuses the marginal witness with instant and unassailable credibility. And not every witness is a liar. Far from it. Most tell the truth. Many are mistaken, some are misled, but only a few are outright liars. It’s the lawyer’s job to know who’s who long before the trial starts.

But memorable cross-examination is more than just making memorable moments. It’s defining a specific purpose for each witness who testifies. This is why understanding the goals of effective storytelling is so important. Is this witness part of our story or part of the other side’s story (or both)?  Are they the Villain in our story? If so, then no mercy is shown. Are they a minor Deflector? Then we design our questions (and their answers) to engage and support that manifestation. Are they a true victim with no part in our story?  Then leave them alone. There is nothing more repulsive then watching a lawyer beat up a helpless 6 year-old child with a savage cross-examination. They are a victim. No matter what. Either they are the victim of the defendant as defined by the prosecution’s story, or they are a victim of manipulation at the hand of some other adult as defined by your story.

The jury will remember such a moment. It will definitely be memorable. They will remember a lawyer who victimized a child at trial. So good luck with that. A lawyer who becomes the villain will never win.Period.

If a cross-examination is conducted without a specific purpose, it will not be effective or meaningful and thus, not memorable. If a cross-examination is not memorable, then what’s the point?

A cross-examination is not the time to go on a “hunting expedition” either. It is rare that you will find a nugget of value if you don’t know what you’re looking for. In all likelihood, you will accomplish nothing more than propelling your opponent’s story forward and making it more memorable. Not a good idea.

If a cross brings no purpose to your story, no purpose to the other side’s story, or the witness is truly unassailable, then the best cross-examination is no cross examination. The jury will not punish you for appearing “weak”. I promise. And they might just forget what the witness said.

Cross examination is the most vital skill for a trial lawyer. Especially for a defense attorney. There is a science and an art to doing it with meaning. It must be purposeful, effective, and memorable. Or it shouldn’t be done at all.