Our bruin friend at Saint Corbinian’s Bear has worked in the law mines. Here are his remarks on cross examination:
Cross examination is the greatest legal engine ever invented for the discovery of the truth,” said John Henry Wigmore. And he was right.
You may know that the chief difference between direct examination and cross-examination is that the lawyer may lead on the latter. In other words, questions may (should always) be phrased as statements. It is the most adversarial part of a trial that is itself the capstone of the adversary system of law. Continental countries prefer to use the inquisitorial system, in which a tribunal of neutral judges examine the evidence and reach a verdict.
Well, la di da.
The genius of the Anglo-American system is that it allows both sides to fight it out, thus ensuring nothing will be left out, nothing left unchallenged. Assuming equal resources and skill of attorneys, and (most importantly) a judge who will allow real trial lawyers to do their jobs, the adversary system is fair, often dramatic, and always sporting.
Within this dramatic, adversary system, cross-examination is the crown jewel. Truly, the only way one may defeat an effective cross is to simply tell the truth. How many times has the Bear seen a witness, say a police officer, implode on the stand, because he suspected every question was some sort of trick, and would deny the sky was blue before agreeing with the Bear on cross?
The Bear found that the best way to deal with an evasive witness is to patiently ask the exact same question, word-for-word, with the same inflection. Yes, it seems weird, but everyone assumes the lawyer knows what he’s doing. The witness will not understand, will become disoriented, then frightened, and will look like a liar. Too many lawyers get into arguments with the witness on cross, which is throwing away your superior position. Just pray you have a judge who appreciates the trial lawyer’s role in an adversary system and doesn’t just become impatient and tell you to move on.
You have a right to an answer to a fair question. And when the opposing counsel objects, “Asked and answered,” say, “Your Honor, that objection belongs only to the opposing side during direct, and in any case the witness has for reasons best known to himself, refused to answer my question.” (Commenting on the witness’ credibility like that might get you some pushback from the judge, but the Bear might not be able to resist, depending on a lot of things.)
Two State Police Detectives: Epic Fails on Cross
One time, an evasive state police detective turned to the judge in obvious distress, and pleaded, “But I don’t know how to get around that question!” No kidding. Luckily, the Bear had a good judge who bit the witness’ head off.
In another trial – this one for murder / death penalty – the Bear’s question was, “why did you interrogate Mr. Pontious on videotape?” The detective kept doggedly answering, “to get to the truth,” probably a stock answer they teach detectives at seminars on “Avoiding Wily Defense Lawyer Traps.”
However, the police had clearly decided the Bear’s client was guilty long before that, and, in fact, they already had the answers to all the questions they asked him on tape. They had already interrogated him off camera, and this was just the production of the supreme piece of evidence against him: a videotaped interrogation.
Everyone – especially the jury – knew darn good and well the purpose was to secure a videotaped confession to use as evidence against the suspect at trial. Jurors are not stupid. If the witness had simply told the truth, the Bear couldn’t have touched him. But the state police detective assumed that since the Bear was asking, there must be some trick behind the question. He was desperate to portray himself to the jury as a disinterested philosopher, who would never get his hands dirty by producing evidence for trial. Which is, of course, ridiculous.
For thirty minutes, the Bear kept pleasantly asking the same question, in exactly the same way, like a tape recorder, and the detective kept giving different evasive answers. Talk about looking like Captain Queeg! One question. Now, it is true this was a sneaky Bear trick. The Bear had decided the detective was not very bright, and would fall for the most obvious trick: asking for a truthful answer to an inconsequential question.
The Bear had a very good judge. If time was being wasted, it was the witness who was wasting it, not the Bear. Obviously, that is what the judge thought. The jury was less than impressed with the detective’s performance and ultimately he was blamed for losing a murder case. But that was a bit unfair. The jury just got that one right. With kind assistance from the Bear.
Adversary Does Not Mean Mean
Many people who have been taught by television shows – which must get the lawyer and the witness in one, tight shot – imagine the lawyer is in the witness’ face, yelling, until the witness breaks down and admits to the murder. Jose Ferrer’s cross-examination of Humphrey Bogart in the Cain Mutiny is more accurate. Trial defense counsel is not friendly, but zeros in on the witnesses weak points relentlessly. There, the man on the stand himself revealed himself to to be unfit, which was the real issue at trial.
The Bear has no compunction about revealing the character defects that impact credibility in today’s great issues, through argument, satire or agitprop. Mark this well, visitors, friends and Woodland Creatures. Controversy is not just about the rightness or wrongness of this issue or that one. Let others argue about each apple. The Bear would lay his axe at the base of the tree, provided it were a rotten tree, bearing bad fruit, and expect nothing but praise from men of good will. Now that he mentions it, he has a vague recollection of the same imagery employed by someone.
Only one time did the Bear actually elicit an in-court confession while cross-examining a defendant. It involved a homosexual groping, and the details are not edifying. The Bear lined up all the hopes and effort this young man had placed in his budding Navy career, and, after a sympathetic pause, simply asked why on earth would he throw it all away? The kid had been worn down by that time, and said he just couldn’t help himself.
That was one of the Bear’s very first trials, and the feat was never repeated. Continue Reading