Cross Examination Under Control
One reason, among many, why I love our adversary system of justice is that it gives us one public place where we can rationally and politely debate very serious matters. What could be more serious than decisions that affect a person’s wealth, business, family, freedom and even their very life? Imagine a trial where the state is seeking custody of your child? Yet generally speaking we do so in a calm and respectful way. When we fail this rule we risk disaster.
Last week I wrote a post on the Barry Bonds trial. As an aside (I like asides) I quoted a sports reporter describing the cross examination of Kimberly Bell by Cristina Arguedas:
“Cristina Arguedas is the defense attorney who questioned Bell. She yelled and sneered and was sarcastic and threw papers on the table and threw her glasses on the table. She was like a bulldog tearing at Bell’s pant cuffs. She showed no subtlety, had only one gear — attack. The judge warned her to ‘ratchet down’ her tone.
“She bullied Bell, who already seemed vulnerable. As a strategy, this was not smart — one woman going after another in front of a jury with eight women and most of the men older men. The people on the jury must have felt for Bell, Bell under siege. They certainly paid more attention to her than the steroid scientist, stared intently at her as she spoke, wrote notes on their pads. People like the jurors have daughters. Arguedas, in her zeal, lost sight of that. She would have done so much better with a calm tone and some humor and humanity.”
Obviously not a good sign for the defense. I wasn’t there so I can’t confirm this happened, but this comes from a trained observer. The basic rule of cross-examination is that the lawyer must keep control, both of himself and the witness.
This rule is not easy to follow. When a major opposition witness walks into the courtroom your adrenaline starts pumping hard, you enter a manic phase, and become over-energized. Resist the urge to fight and — Relax. Close your eyes and wait for your pulse to slow. Take a deep breath and exhale. You will feel good, back in the moment, with the ability to think rationally. You are now in control. When too over the top you lose control. When you lose control and fly off the handle, you hand your enemy the weapon to destroy you. “Those whom the gods wish to destroy, first make mad.” Save the fireworks for the fourth of July, or better yet the final argument. It has no place in cross-examination.
Unfortunately, many lawyers see cross as a zero-sum game. The more the witness suffers, the better job I must be doing. Not true. Emotions by the lawyer are magnified in the courtroom. It is not like arguing with friends in a crowded noisy Irish bar. The jury is sitting quietly and respectfully in the jury box. Scorn, scowling, laughing, yelling, harsh and ugly over-the-top attacks are out of place and these heavy handed emotions are hard to watch in a quiet room. The jury is more uncomfortable than the witness and, worse, they sympathize with the witness. Lower the voice, slow down, be non-threatening, soft, matter of fact, with only occasional gestures. Quieter is louder. Don’t look out of control. Think razor blade rather than meat axe; death by a thousand cuts. Steady, conversational, business-like. And don’t lose the message.
I have seen many out of control lawyers throwing bombs at witnesses. Usually they blow up in the lawyer’s face. Being overly dramatic and hurried leads to sloppy, open-ended and careless questions inevitably allowing the witness to score points. The witness should never score any points. Cross is your territory. Only you should be scoring. It is not an even playing field. It is your playing field. You are asking the questions. You are in control. You always have the ball. As I defined cross exam in my book Black’s Law: “it is a series of statements by the lawyer occasionally interrupted by a yes from the witness.” If you are the only one talking, then the witness can never score a point. The witness is merely the ventriloquist’s dummy.
So how do you handle a jealous fury like Bonds’ ex-mistress? Kid gloves; kill with kindness; out-nice her; if she cries ask for a recess (she will always decline it, proof it is faked); offer water. Did I offend you, let me re-phrase that question. Careful, methodical, and make sure she answers. Keep asking the same question until you get an answer. Usually they give up evasion and answer the third time. The jury will catch it.
Q. Did you call the police?
A. He raped me.
Q. Did you call the police?
A. I am telling the truth.
Q. Did you call the police?
Two benefits: you get your answer and show she is evasive and doesn’t want to answer that question. And when she answers “I am telling the truth,” it always comes from prep by the prosecutor. So ask her, “Didn’t the prosecutor tell you to say that? Didn’t he say when you are asked tough questions, just use this line? You had many prep sessions with the prosecutor. He told you the questions that would be asked. You went over them many times,” etc., etc. Never get flustered by her answers. If you keep calm, you can overcome them all. But the best is not to allow her the space to say any of this.
Nota bene: In the courtroom everyone lies. Without exception. You just have to figure out what they lie about. They are hiding something dear to them; for example, all drug dealer witnesses lie about their money. All you have to do is start asking them where their cash is and they will lie. They always say they spent it all; if they admit they have any money left, the government will have to forfeit it. You can then embark on several hours of enjoyable cross adding up all the money they made and demanding to know where it all went.
FRE 611(c) allows leading questions on cross-examination. The rule is a gift. Amazingly lawyers give up this huge advantage. A leading question is one that suggests the answer. On cross it should be one that demands only one answer. And when done right, the question is the answer.
Another point: ask only one new fact per question. It takes time. It draws out the impeachment. It sets up the witness. It keeps you firmly in control.
Let me give you an example. I cross-examined Ann Mercer in the William Kennedy Smith trial. She was the accuser’s friend who went to the Kennedy mansion to look for her friend’s shoes. She met Will Smith and walked around the property with him looking for the shoes. Once she admitted this on direct, it was open season for me. Many law schools still use the video to teach students about cross-examination. The reason this cross was successful was because I methodically took the witness through her steps that night, using leading questions, just adding one new fact per question.
I tried to post what video I have of the Mercer cross in one piece, but alas, the technology wouldn’t allow it, so it is here in three parts, if anyone would like to view it.
At the end I asked one question too many but got away with it. I don’t like quoting myself as authority; it is a form of circular reasoning. The “because I said so” we all heard from our parents, but I have looked in vain for a better video example and just can’t find it. If you can, please let me know.
The speech. If you don’t ask leading questions and you give a smart witness an opening, he will use it to give a speech. Here is everyone’s favorite example:
Q: I’ll ask for the fourth time. You ordered —
A: You want answers?
Q: I think I’m entitled to them.
A: You want answers?
Q: I want the truth!
A: You can’t handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives . . . . You don’t want the truth. Because deep down, in places you don’t talk about at parties, you want me on that wall. You need me on that wall. We use words like honor, code, loyalty . . . we use these words as the backbone to a life spent defending something. You use ’em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I’d rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a damn what you think you’re entitled to!”
(Col. Nathan R. Jessep [character], from A Few Good Men )