Bear Growls: Cross Examination

Monday, August 15, AD 2016

 

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.

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26 Responses to Bear Growls: Cross Examination

  • Off topic. Money quote from the Joe Pesci character, which is the proper answer to everything that Hillary/Democrats say and all you read/see from the media: “Everything that guy just said is bu!!$h!+.” President Truman liked to use the phrase, “one-hundred percent bu!! Sh!+.”

  • Of course the scene above is followed by the classic “magic grits” cross examination:

  • Yes. I have always wanted to bring the “laws of physics” into one of my cross-examinations!

  • As i begin closing out my litigation practice, this post left me with a rush of memories, of sometimes righteous victories where morality, truth and evidence formed a rare confluence, and some not so righteous victories where justification was found in the rules of ethics. And then too there were defeats but about those i can only speculate having long departed my memory bank. Carry on gentlemen 🙂

  • “And then too there were defeats but about those i can only speculate having long departed my memory bank.”

    Comment of the week Cthemfly! Take ‘er away Sam!

  • I once heard the following exchange between counsel and an expert witness.
    “I believe you testified in the case of X?”
    “Yes.”
    What happened to the dog?”
    “What dog?”
    The dog Lord Wheatley said he wouldn’t hang on your evidence.”

  • Donald R McClarey wrote, “I will usually do the cross standing and close to the witness.”
    Most Scottish courtrooms would make this impossible. The witness box is on one side of the well of the court, facing the jury-box and counsel are grouped around a table in the well of the court between them
    This illustration shows a witness being sworn by the judge.
    http://tinyurl.com/zsdxo9f
    It shows the rather curious sounding-board behind the witness-box. It can still be seen in the old High Court in Edinburgh
    The best place to stand when examining a witness is at the corner of the table furthest from the witness-box, which makes him face the jury.

  • Yes, standing between the witness and the prosecutor is good, except the judge usually won’t allow it for long. I saw a federal prosecutor coaching a witness on the stand. Actually, I didn’t, but my assistant did. The Bear would dramatically pace around the well of the court sometimes facing the jury for a particularly important question, for both question and answer. On cross, you want that tennis match effect from the jurors. You-witness, you -witness. He would also break the really important questions into a series of very short questions, and take a small step toward the witness with each one, until he was right in front for the killing stroke. Very effective in building tension and unnerving the witness. Using physical evidence is also good. If People’s Exhibit A is a crowbar, pick it up and threaten the witness with it. Would probably even work for a human. Every lawyer has his own style. I was dramatic. If I could have brought my unicycle in and juggled evidence, I would have. But I was also more of a primrose path type: get them committed to their lies so subtly by the time they realized they were in trouble it was too late. But I have one question. What’s a bench trial?

  • P.S. funny you should mention “law mines.” That’s what my wife and I always called the practice. Now I am blessedly retired, reincarnated as a novelist, where my criminal defense practice provides much material.

  • “But I have one question. What’s a bench trial?”

    I see my bruin friend that you did not waste your time with civil cases.

  • It is not honest to make someone look like they are lying if they are not.

  • This is one of the funniest true things I have read recently about court room drama.

    http://www.nationalreview.com/corner/421774/you-know-you-live-conservative-state-when-david-french

    By the way, “the government” definitely has a negative connotation to me should I ever be on a jury.

  • It is not just for allegations made in a court of law not to be challenged by the advocate for the Defendant, and the State forced to meet its burden of guilt beyond a reasonable doubt. When I am in court on behalf of a client I am not there as a potted plant or a mere ornament and I rejoice at my role in protecting the rights of individuals to a meaningful trial.

    I might note that it is rare that I am certain as to who is lying and who is telling the truth.

  • “He demanded his client no longer be referred to as “the Defendant,” but instead be called “Mister,” “the Citizen Accused” or “that innocent man” — since all defendants are presumed innocent until a judge or jury finds them guilty. As for himself, clearly “lawyer” or “defense attorney” wouldn’t do him, well, justice. “Rather, counsel for the Citizen Accused should be referred to primarily as the ‘Defender of the Innocent.’ … Alternatively, counsel would also accept the designation ‘Guardian of the Realm,’ ” Justice wrote. And since prosecutors are often referred to formally as “General” in court, Justice, in an effort to be flexible, offered up a military title of his own. “Whenever addressed by name, the name ‘Captain Justice’ will be appropriate.” Gathering steam, he went on to say that even “the defense” wasn’t adequate and that “the Resistance” would be far more appropriate.”

    That tickled me too when I first read it. I have had some fun in closing arguments with the contention of the State that they represent THE PEOPLE!

  • “It is not just for allegations made in a court of law not to be challenged by the advocate for the Defendant, and the State forced to meet its burden of guilt beyond a reasonable doubt. When I am in court on behalf of a client I am not there as a potted plant or a mere ornament and I rejoice at my role in protecting the rights of individuals to a meaningful trial.

    I have witnessed many injustices accomplished in such manners & have zero respect for our current legal system and judges in particular–especially many of those those who are justices on “supreme” courts. At one point in the late 1990s, the Arkansas Supreme Court put their collective intelligence together to decide in an official manner that just because you are a proven liar does not mean you are dishonest. (No. I am not kidding.) It seems the only “Justice” to be had is that which can be paid for by the very rich & well connected. And even that is often thwarted by the judges and prosecutors in a huge number of cases. However, it would take a thousand page book to go through all of that at one time. Seriously. However, it is still true that the only rights that we truly have are those asserted by an attorney–in court.

  • “me too when I first read it. I have had some fun in closing arguments with the contention of the State that they represent THE PEOPLE!”

    They most definitely do NOT represent the people most of the time. In fact, one of my county’s prosecutors went to promising because of drug, prostitution, abuse of office, theft, etc., etc., etc.

    Now we have a current county prosecutor who has just given to our state police an investigation of an apparent written murder confession, involving the before mentioned prosecutor, of three young teenage men who stole some of his drugs. I wish I were kidding! There is never a dull moment in my neck of the woods.

  • Woods! I apologize. The prosecutor involved in all the crimes went to prison.

  • If you had read my article, you would have learned that you cannot make someone look like a liar unless they are a liar. If they are telling the truth, they are immunized. But cross-examination is not used only to expose lies. Maybe the witness had difficulty observing what he is testifying to. Maybe he has a connection to the victim that would call into question the reliability of his testimony. Maybe the state is reducing his own charges in return for his testimony. But anyway, I learned long ago not to argue with people who do not get the adversary system. I am confident I am fairly knowledgable about how criminal trials work.

  • The Bear wrote, “If People’s Exhibit A is a crowbar, pick it up and threaten the witness with it. Would probably even work for a human…”
    I recall a case in which the panel’s wife was used as a production (She could not testify against him).
    She was duly libelled as a production in the indictment: “the articles contained in an inventory hereunto annexed, being to be used in evidence against you, the said JB, at your trial, at which also MP or B, your wife, now or lately residing in or near ….. Street, Glasgow in the shire of Lanark, is to be shewn or exhibited in evidence for identification, will, for that purpose, be in due time lodged in the hands of the Clerk of the High Court of Justiciary, before which you are to be tried that you may have an opportunity of seeing the same…”
    An objection that she should have been labelled and lodged in the clerk’s hands was repelled.

  • Anyone who practices law, hell, anyone who casually observes it (OJ, anyone?) knows that truth is not the usual object of a criminal trial, much less of a cross examination. In many if not most cases, the defense object is to obfuscate, change the subject, or throw sand in the fact-finder’s eyes, to divert attention from the facts which damage his client’s chance of acquittal. If this can be accomplished by bullying a witness, making a truthful but nervous witness appear uncertain, or implying or stating that a witness is lying, then that tactic will be used, regardless of the truth. A defense lawyer’s ethical obligation is zealously to represent his client, not to seek justice. A prosecutor’s ethical duty is to seek justice, not simply to gain a conviction. These competing ethical duties result in very different trial tactics.

    And while occasionally a witness may be outright lying, and a good cross can expose that, very often a cross is used simply to attempt to tar a witness who’s damaged one’s case. It’s sad that an accomplished attorney can take truthful testimony and by clever use of verbiage and sowing confusion, throw doubt on that testimony. I understand that’s how “the system” works, and I plead guilty to doing it on occasion, but I don’t self-aggrandize myself or my “profession” by throwing a romantic veneer of “defender of the Truth” on top of the cheap use of intimidation tactics and verbal gymnastics that a “good” cross-examiner has as his stock in trade.

    I’ve seen many blustering, self-glorifying lawyers sit down smugly satisfied at humiliating some witness, only to have a jury or judge hammer their client, and I’m left wondering whether the lawyer was effectively representing the client or just burnishing his credentials as a “fighter” while not giving a damn that his tactics turn off the average Joe sitting in the box. More than once I’ve seen defendants hammered more for the obnoxious behavior of their lawyer than for the offense. I struggle at the sentencing of such defendants to recall that my duty is to Justice, not to penalize the defendant for having a slash and burn lawyer. In some cases where I’ve perceived the jury recommending harsher sentences than the case calls for because they’re disgusted with the defense lawyer, I’ve recommended the judge impose a lesser, appropriate sentence (in Virginia, the jury recommends the sentence following a separate sentencing phase of trial, and the judge can reduce but not increase that sentence).

    Again, anyone who claims that we have a system dedicated to finding the truth is selling you something. The very fact that the system is “adversarial” coupled with judge-made rules such as the “exclusionary rule” and other rules of evidence that keep relevant evidence from the fact finder guarantees that much truthful information will never see the light of day. You may think that is good or bad, but it’s simply the reality. A “good” defense attorney is in most cases, trying to reduce the flow of truthful information to the fact-finder. Again, you may think that system good or bad, but either way, it’s hardly the grist for romanticism about Truth, Justice, and the American Way.

  • All that said, the Cousin Vinny clip where Vinny crosses the eyewitnesses is great stuff, and I use those clips teaching trial advocacy to baby prosecutors, precisely because it demonstrates some great principles: breaking down points (the dirty window, the screen, the trees, the leaves…), using visual aids (the pics of the dirty window, the scree, the trees, the leaves…), etc. But what makes Vinny’s crosses particularly effective is that he assesses the witnesses and treats them accordingly. He’s only really sarcastic and hostile to the “grit” guy, and only because it’s obvious the grit guy is unwilling to admit the obvious. But to the old lady who needs new glasses and the neighbor looking through the dirty window, he’s actually polite and respectful.

  • Tom wrote, “… just burnishing his credentials as a “fighter” while not giving a damn that his tactics turn off the average Joe sitting in the box”
    Unfortunately, the person many advocates wish most to impress is their opponent’s instructing solicitor, in the hope of future business.

  • We of course do not separate the bar MPS into solicitors and barristers. It is interesting how often I have received referrals from some of my worthy adversaries in court, and I have often returned the favor. When it comes to attorney competence in the cockpit, his or her adversary, after a few rounds, is often an excellent judge.

  • Donald R McClarey wrote, “When it comes to attorney competence in the cockpit, his or her adversary, after a few rounds, is often an excellent judge.”
    Junior counsel, who is brought in at an early stage, to settle the pleadings and advise on evidence, is invariably consulted on the choice of a leader (QC). As often as not, I have recommended someone who has appeared against me.

  • I’ve referred many a worthy opponent, but rarely the blustering “I will fight for you” types who charge exorbitant and conscience-shocking fees (usually paid for by the grieving Aunt or Grandma who tried her best to raise the accused) and get paltry results. The most effective defense counsel in my experience are the ones who can evaluate a case and reason with me to find an equitable resolution. And if a case must be tried, these defenders accomplish much more by quiet competence and respect for counsel, the court, and the witnesses, than by the showmanship and egotistical preening utilized by the “I will fight for you” defense bar.

Sharia Law and the U.S. Constitution

Friday, June 25, AD 2010

[Update I:  I have streamlined the following post to be easily readable to the average layman, but informative enough for a lawyer or law professor to learn a bit more on the similarities and differences between Sharia and U.S. Law]

Is Sharia compatible with the U.S. Constitution?

The simple answer is of course “no”.

But lets take a look at some aspects of Sharia Law and where it may or may not conflict with the U.S. Constitution.  (For disclosure I am not a lawyer nor a legal expert in Sharia or U.S. Law.)

First, what is Sharia?

Wikipedia states Sharia refers to the sacred law of Islam.  All Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails.  Which will be difficult to discern what to apply when, but we’ll labor along for the sake of discussion.

In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War).

The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.

The following is a truncated version with a couple of modifications (eliminating repetitious ibids and links) of multiple Wikipedia entries [with my comments]:

Legal and Court Proceedings:

Wikipedia states that Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law.

1. Sharia courts do not generally employ lawyers; plaintiffs and defendants represent themselves.

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14 Responses to Sharia Law and the U.S. Constitution

  • “Is Sharia compatible with the U.S. Constitution?”

    “The simple answer is of course “no”.”

    I agree 100%.

    Thank you for taking the time to write this most informative article on the differences between Sharia law and the Constitution or/and Civil Law within the U.S.

    Freedom which is one of America’s core principles is not compatible with Sharia Law.

  • This is “one nation, under God, indivisible with liberty and justice for all.”

    The motto is “e pluribus unum” not “e pluribus pluribus.”

    There is no liberty or justice under sharia, nor is there either under the yoke of Muhammedanism: the summation of evil and all heresies.

    The filthy pagans cannot charge or pay interest; so they have a sort of subterfuge that makes the loan/interest like a lease or installmant sale plan at a profit (not interest) over tte monthly to the seller. I had to try to twist that mare’s nest to fit US accounting and taxes. It was frustrating dealing with the morons.

  • Religion is never to be instituted in government. Not just Islam.

  • Juri,

    The U.S. Constitution is loaded with Christian idioms and language.

    Are you exhibiting some form of Christophobia?

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  • The article ‘Sharia Law and the U.S. Constitution’ misses three (3) very important points for Catholics:

    1. Islam is misclassified as a religion for a reason – Islam is a governmental system of ‘conquest and control’ that is both ‘expansionist and intolerant’.

    2. There is nothing missing in the Laws of the United States of America that needs to be fixed by so-called Sharia Law.

    3. The U.S. Constitution is a divinely-inspired work that speaks of a Republic (i.e. no monarchy) with God-given (i.e. no church) inalienable rights of the individual.

    In point one, Catholics should know the difference between a religion and a cult: A true religion revolves around a spiritual ‘deity’ (i.e. a one and only God); whereas a cult revolves around a human being or multiple pagan gods. To understand this better, one needs only compare the life and teachings of Jesus to the life and teachings of the founders (i.e. human beings) of other cults or religions. The Crusades were a reaction to Islamic aggression and expansion into the Holy Land.

    To point two, Catholics will be the first to remind others that in America, it is religion that is protected from government and not the other way around. It is ‘freedom of religion’ and not ‘freedom from religion’ that we are privileged to enjoy here. In Saudi Arabia, no Christian churches are allowed. All over the world, intolerance towards Christians often results in mass murder and destruction of churches. Christianity is the only true religion of peace.

    As for point three, Catholics need to take a stand between ‘one world governance’ (i.e. economic, religious and military globalism) and ‘American Sovereignty’. (i.e. as guaranteed to them in the U.S. Constitution and the Bill of Rights.) Catholics also need to be aware of the difference between a collective and mandated ‘social justice’, administered by a socialist government and the spiritually-correct ‘morality and generosity’ exemplified by Our Lord and Savior Jesus Christ.

    Last but not least, Catholics really need to educate themselves about the reason why the Constitution requires Presidents and Vice-Presidents of the United States to be ‘Natural Born Citizens’. (i.e born in the U.S. to parents that are both citizens, etc.) The reason for this is to avoid ‘divided loyalty’. John F. Kennedy, the first and only Catholic President was quite eloquent and clear about his loyalty to the people of the U.S. vs. the Pope. The current president has demonstrated his loyalties are divided between International Globalist Banking and Expansionist Global Islam. Somehow, he seems to have left the American people out of the equation.

    We need to pray for America as we’ve never prayed for her before. And may God bless and protect our Holy Catholic Church.

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  • This is a great short summary, thanks! These are details that most people don’t know.

    Numbers 7 & 8 could be greatly expounded upon. What I’ve heard/read somewhere is that the reason why many women never report rape is that if they cannot prove they were raped and yet in the course of the trial they “admit” to having sex they may be stoned for adultery under Sharia law.

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