Written by Roy Black
This past week my law school class worked on a cross-examination problem. In short, they ask the questions as if on cross with the mock witness and I play the witness. Like the real thing, wits are matched, and emotions run high in the head on clash. In order to make certain points, I will then change places with the student and show how I would do it. While preparing for class and engaging in the exercise, I pondered which methods to use in teaching the art of cross-examination. Here are some I came up with:
Rule # 1 – There are no rules. (But see the FREs at the end.) This is the attitude one needs to enter into cross examination. It is not a time to restrict yourself. Use your imagination to find reasons to use each tool at your disposal. A lawyer only possesses a small universe of facts to work with and needs to use every one of them. This is not a time to self regulate. Let your opponent object and make the judge rule. You have powerful support for your questions. The Confrontation Clause, the common law, and the judge’s fear of restricting your ability to defend. We still believe in the right to make a defense.
The main objection is usually “outside the scope.” This is an American spin on the English common law rule that cross was wide open without restriction. We want to be gentlemen. It started with Justice Story in an 1840 case (Philadelphia & Trenton R. Co. v. Stimpson, 39 US 448), and subsequently adopted in our rules (FRE 611(b)). It is time to abandon this policy. It is not workable. At the very least, advocate for a broad interpretation of the rule. With a little imagination you can find support for your line of questioning. Such areas as bias, interest, motive to lie, perception, memory, opening the door, all fall outside of the scope objection.
At least one state, Texas, adheres to the older rule — “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Tex. R. Civ. Evid. 611(b). The scope of cross-examination is wide open and not limited to the scope of direct examination and credibility. If only this were the federal rule as well.
Rule #2 – Just Do It. It cannot be learned from textbooks, videos, lectures or seminars. There are many great books such as Larry S. Pozner & Roger J. Dodd, Cross-Examination: Science and Techniques, and also fun videos to watch like almost anything by Terry MacCarthy. But one can learn to cross-examine from them equally as well as learning to play baseball by reading the rules of major league baseball. You first have to play the game before you learn the rules. Just a quirk of human nature. We can debate the reasons why, but it just is and we have to work with it.
So how do you learn cross? By trial and error. By practice. By dint of hard labor. This is the classic knowing-doing gap. One might know intellectually how to frame questions and approach a witness but can’t actually do it. And guess what? It is easier to do in the law school setting than practicing with real clients who might not appreciate it. My educational theory has been to have substantive courses with extended practice time attached. So a lecture on cross in the morning then the rest of the day actually doing it. And this is repeated with new mock witnesses under new facts time and time again. So it might be a cooperating witness with a plea bargain one day, then a forensic technician the next or a banker, architect etc. Until the student is versed in all the types of witnesses he might encounter in a courtroom. How else can one claim to be trained as a trial lawyer?
Rule #3 – Use concrete not abstract language. Don’t ask if the witness was in solitary confinement but go through every detail of the cell, the isolation, and the mental depression. The use of vivid concrete images drive memory. Our brains are wired to retain concrete images. It is hard to understand an abstract idea. Take Aesop’s tale of the Fox and the Grapes. The fox kept jumping to get the grapes but couldn’t get high enough and walking away he said I am sure they are sour. It was a concrete image and we today say sour grapes and immediately know it. We could have said don’t be a jerk when you fail and no one would remember that. We remember Aesop 2,500 years later.
Rule #4 – Tell the story. Tell it through leading questions. Perhaps it will be your client’s story, or a the story of missed opportunities (what could or should the witness have done?), or a story of misunderstanding (what did the witness misread, mis-observe, or fail to observe?) There are numerous stories you can tell – pick your story, and then tell it with leading questions.
Your story is different from your opponent’s, so tell it that way. Don’t repeat your opponent’s story told on direct. Your story should be distinct from the opposition, so create your own version of what happened through cross-examination. Jurors do not remember the Q and A; they remember stories.
Rule #5 – Do not give up prematurely. Most people give up just as they are about to reach their goal. They are tentative and afraid of sticking their neck out further. In fact most texts on cross take this conservative approach. Either don’t ask questions (usually ridiculous advice) or be very short and sit down (also a recipe for defeat.) My idea is far different. I cross examine until I reach my goal or see that my goal is unrealistic and I can never get there. Usually the latter never happens if one is well prepared. You have a realistic goal. There should be no reason to stop short of it. So cross examine until you get there.
Rule #6 – Have a plan of attack. One must determine what he expects to achieve in cross-examination. It must be consistent with the theory of the case. It must have clear points. You must think of conclusions you want jurors to draw and work backward to the questions that will establish those conclusions. Sounds simple, but it is not. And it is easy to get lost in the questioning and meander around without focus. A plan keeps you on track.
Rule #7 – Make Impeachment Dramatic – The jurors will be sitting on the edge of their seats. Remember Barry Scheck cross examining Fung at the OJ trial and impeaching him with television news videos which completely contradicted his testimony. It was dramatic and convincing and used to the best effect by Scheck. Impeachment can be devastating to the opponent’s credibility and case. It took Scheck many months of poring over tape to find these gems. It doesn’t come easy. And make sure the impeachment is on a significant issue and is literally black and white.
Rule #8 – Leading Questions – This is a difficult skill for students to pick up. It takes practice. It is unnatural to ask leading questions. To keep tight control over the other person. To push them where you want them to go. To tell a story through your questions asking only for a yes answer. To turn your friend into a bobble head doll. It would be rude to do this to a friend. This is why it takes a lot of practice to learn this skill.
While my Rule #1 says there are no rules figuratively, there are literally. A trial lawyer must know them. These rules are not disabling because they are packed full of exceptions and judicial discretion. Here are the rules that relate to cross-examination:
Rule 607: Who May Impeach
Rule 608: Evidence of Character and Conduct of Witness
Rule 609: Impeachment by Evidence of Conviction of Crime
Rule 611: Mode and Order of Interrogation and Presentation
Rule 612: Writing Used to Refresh Memory
Rule 613: Prior Statements of Witnesses