Cross Examining McQueary: Part 2

January 17, 2012 Cooperating Witness

Since my last post on McQueary, Joe Paterno gave a press interview to Sally Jenkins of  The Washington Post. According to the reporter, Paterno said that McQueary sat at Paterno’s kitchen table and told him about hearing noises coming from the shower late the evening before. “He was very upset and I asked why, and he was very reluctant to get into it. He told me what he saw, and I said, what? He said it, well, looked inappropriate, or fondling, I’m not quite sure exactly how he put it.” He went on to say that McQueary was unclear about the nature of what he saw.

Both Schultz and Curley have testified that McQueary failed to impress upon them the seriousness of what he saw. Their testimony at the grand jury seems quite consistent with what Paterno now says that McQueary told him.

So the strategy issue is how do the defense lawyers for Schultz and Curley use this evidence? At first impression, I would cross examine McQueary and then use Paterno as a rebuttal witness. At the very least you want to leave the impression that after nine years no one can accurately relate a conversation. If the jury believes that, then there is reasonable doubt. There is no need to do an all-out attack on McQueary’s credibility fearing a possible backlash from the jury. Needless to say, this will be a game-time decision and the lawyers better be ready for any eventuality. Trials and witnesses are unpredictable.

While doing a little research on this, I came across an article, “Fallacies in Memory for Conversations: Reflections on Clarence Thomas, Anita Hill, and the Like,” 7 Applied Cognitive Psychology 299 (1993). This article reported a research project on how well or how poorly we remember the exact wording of conversations. They specifically were studying sexually charged conversations, especially well known ones like Anita Hill claiming Clarence Thomas made inappropriate sexual comments to her. I am sure you remember the infamous Long Dong Silver.

They discovered that slippages in memory for conversations is to be expected and exact memory for actual words is quite poor. They found that while subjects could remember the gist of the conversation, they had poor verbatim memory. They questioned based on these findings whether Anita Hill accurately remembered the ten-year-old conversation with Thomas.

They referred to an earlier study done on conversation memory in “Neisser, John Dean’s Memory: A Case Study,” 9 Cognition 1 (1987). John Dean, who was Nixon’s White House Counsel, testified to the exact wording of Nixon’s statements to him at the Watergate hearings. The press dubbed him the “human tape recorder” because of his so-called extraordinary memory for the actual words. I recall how much fervor his testimony stirred up among the anti-war protest groups. Later when the White House tapes were uncovered and examined it turned out few of the conversations matched his testimony. What better evidence than that about the frailty of human memory for verbatim recall of conversations. Perhaps Schultz and Curley can develop expert testimony on this issue.

While all these scientific findings are not surprising, I bet the jury will be impressed with McQueary’s recall. The description of the shower scene is so sexually charged that it will make a big impression on the jury and outrage them. They will want to believe it. They will be thinking about their children being in that shower. The defense lawyers have to defuse these emotions or lose the case.