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Garden State CLE presents:

The Best, Worst & Most Embarrassing

Cross-examinations of All Time!

Lesson Plan

Introduction

Classic View of Cross-examination Irving Younger’s TEN Commandments of Cross-examination

The Advocates Handbook: The Essentials of Trying a Case By Irving Younger (Prentice Hall, 1988)

Be brief Use plain words Use only leading questions Be prepared Listen Do not quarrel Avoid repetition Do not allow the witness to explain Limit questioning Save for summation

An alternative, three-step method of Cross-examination

Step 1

Ask yourself three questions: Do I need to cross-examine this witness? What do I know about this witness? What do I hope to accomplish?

Step 2 - ACE

ACE - In every cross examiniation: Attention - Put down your pencil – watch and listen Control – Yourself & your witness - One new fact per each leading question, using details, voice tone & witness control techniques. Exploit - Create and exploit targets of opportunity as they arise. ___________________________________________

Step 3

Base your cross upon the level of knowledge:

Perfect information

Imperfect information

No information

Part I

The “NO Information” Witness - In General

1. Is a cross of this witness really necessary? 2. Low expectations; 3. You always have issues of: Credibility Bias Interest in the outcome Perception Motive Inconsistencies (logical gaps in testimony) 4. If you can make a point, do it and get out fast. 5. Trust your instincts. Use short questions to create & exploit unexpected targets of opportunity if and when they arise, especially from voice inflection, body language or logical inconsistencies with testimony.

Bad example of the “NO Information” Witness

1. Note positioning by Paul Newman during direct exam in an effort to underscore the importance of the witness’ answers to the jury. 2. Note that there is no request for adjournment to prepare for the witness. 3. Note how the cross-exam is going pretty well in the early part. Probably should have quit on a high note. 4. Note loss of focus and control due to a surprise answer and an adverse evidentiary ruling. 5. The trial is over the instant the word, “why” is used in a question.

The Verdict (1982) Paul Newman James Mason

Directed by Sidney Lumet

Good example of the “NO Information” Witness

1. Note stress of logical inconsistencies in witness’ testimony 2. Note use of bias, interest in the outcome, motive, and criminal conviction involving dishonesty (unworthy or belief).

Professor Charles Rose

Sample cross examination - prosecutor

Part II

The Imperfect Information Witness - In General

1. Leverage - Since your information about the witness is imperfect, you use what you do know to engender doubt or raise inferences about the issues you do not know. 2. Listen carefully to the witness’ answers. Watch body language and listen to tone of voice. It is vitally important to retain control of the witness, trust your instincts and exploit targets of opportunity as they arise during the testimony. 3. Pick a good spot to stop without asking the last logical question. Save the question and its answer for summation.

Good Example of the Imperfect Information Witness

Uses instincts to exploit opportunities (internal inconsistencies) in the witness’ direct testimony; Remains in total control and uses voice and body language to lull the witness and later underscore contempt for the witness; Exploits targets of opportunity as they arise; Knows when to end the cross; Note level of control over the witness and shifting attitude toward the witness.

Gideon’s Trumpet (1980) Henry Fonda Lane Smith

Directed by Robert L. Collins

Retrial following Gideon v. Wainwright, 372 US 335 (1963)

Good Example of the Imperfect Information Witness

1. Use of court room demonstration based upon deductions, instinct and paying attention to detail. 2. Note friendly attitude toward witness to comport with the jury’s feelings about her.

My Cousin Vinny (1992)

Joe Pesci Marisa Tomei

Directed by Jonathan Lynn

Practice cross examination exercise following a direct:

Do I need to cross-examine this witness? Why? What do I hope to accomplish? Why? Pay attention – how is the jury reacting to the witness? Note loss of control via poorly crafted, augmentative questions

Cross-exam of Omar in The Wire – 2003

Directed by Steven Shill

Bad Example of the Imperfect information Witness

Pay attention – note witness’ body language; Note loss of control via one poorly crafted question. (WHY?) Note bodily language signaling defeat.

Witness for the Prosecution (1957) Tyrone Power

Charles Laughton Directed by Billy Wilder

Bad Example of the Imperfect information Witness

Note witness body language (communicates utter defeat) Note loss of control via one poorly crafted question. (WHY?)

A Civil Action (1998)

John Travolta Robert Duvall

Directed by Steven Zaillian

Good Example of the Imperfect information Witness

F. Lee Bailey does not use notes or talking points; Note how Bailey attempts to exploit opportunities from each individual answer of the witness; He clearly does not know the answer to each question he poses and does not care; He breaks many of the standard rules for cross (asking “Why?”, “How come?” and “Please explain.”)

People v. O.J. Simpson

Part III

The Perfect information Witness – In General

1. Perfect information can be achieved on either a broad or narrow aspect of the witness’ testimony. It does not matter. The key value is that the information is perfect. 2. Make sure you prepare the witness adequately before lowering the boom. 3. Key examples of perfect information include: Prior sworn statements; Prior unsworn, signed statements; Admissions and confessions; Published writings; Video and audio recordings; Prior trial testimony; Criminal records; Deposition testimony; Letters; and Other irrefutable evidence. 4. Don’t ask the last logical question – save the question and answer for summation. 5. Provides the best opportunity to win an academy award from the jury. 6. Allows for methodical deconstruction of direct testimony before the jury.

Good Example of the Perfect Information Witness

Perfect information allows for total control; Witness is slowly (and purposefully) lulled into a sense of safety and self-confidence……before counsel lowers the boom; Note the feigned surprise by the lawyer. Perfect information provides the latitude for a lot of acting by counsel.

Presumed Innocent (1990) Harrison Ford

Raul Julia

Directed by Alan J. Pakula

Embarassing Example of the Perfect Information Witness

Historical Background

This cross occurred during the Nuremberg Major

War Crimes Trial in 1946

Cross-examination of Hermann Georing by Associate Justice Robert Jackson.

Questioner has perfect information on the witness, and yet: Has no idea how to use it properly; (no tactical vision) Has no control in the mode of questioning; Has no control over his emotions; Has zero control over the witness.

Nuremberg - 2000

Compare cross the following day by Sir David Maxwell-Fyfe, a professional prosecutor trained at the “Old Bailey”.

Good Example of the Perfect information Witness

Historical Background

William “Duff”Armstrong was charged with the August 29, 1857, murder of James Preston Metzker. Armstrong’s father, Jack Armstrong, had been a friend of Lincoln many years before. When Lincoln heard of the murder charge, he wrote to Jack's widow, Hannah, and volunteered his legal services pro bono. The 1858 trial was held in Cass County Illinois. Witness Charles Allen testified that he saw Duff Armstrong strike Metzker with a sling shot. Under cross-examination, Lincoln pushed for further detail and Charles Allen testified that he was at a distance of 150 feet, but could clearly see the act by the light of the full moon. Abraham Lincoln used judicial notice, then a very uncommon tactic, to show Allen lied on the stand when he claimed he had witnessed the crime in the moonlight. Lincoln produced an almanac to show that the moon on that date could not have produced enough light for the witness to see anything clearly. Based on this evidence, the jury acquitted Armstrong after only one ballot. Please note that Lincoln was not a new attorney at this point, but was a seasoned court room veteran, considered by most people to be among the super-stars of the Illinois bar with multiple jury trials and arguments before the Illinois Supreme Court under his belt. __________________________________________________________

Note that Perfect information allows for total control – this means you can take your time and build for the jury. Witness is slowly (and purposefully) lulled into a sense of safety and self-confidence Note the set-up before lowering the boom

Young Mr. Lincoln (1992)

Henry Fonda Ward Bond

Directed by John Ford

Good Example of the Perfect

information Witness

Conducting a demonstration with the witness; Note how prosecutor does not give the witness an opportunity to answer questions posed and ignores objections. You can do this in Hollywood…in a NJ court room – not so much. Note that the questions will parallel prosecutor’s closing argument Note “hanging” jury.

A Place in the Sun - 1951 Director - George Stevens

Good Example of the Perfect

information Witness Perfect information allows for total control The cross exam will parallel prosecutor’s closing argument

Dotson cross exam by prosecutor

Embarrassing Example of the Perfect Information Witness

Counsel’s unprofessional conduct distracts jury’s attention. Jury is watching to see if he will literally cross the line. Poor questioning technique and handling of exhibits adds nothing to the cross examination. All in all, a waste of perfect information Problems with yes or no answers Problems with poorly framed, compound questions

Michael Duff cross-examination

Good Example of the Perfect information Witness

Note how defense counsel has perfect information related to each topic of cross-examination and uses each piece methodically.

The Caine Mutiny (1954)

Humphrey Bogart Jose Ferrer

Directed by Edward Dmytryk