Cross: The deadly “Why”
“Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not the impale his own cause upon it.”
– JOHN HENRY WIGMORE
It is hard to explain the principles of trial advocacy without concrete examples. Abstract pronouncements are worthless. They don’t stick in the mind like reality. That is one of the reasons why I teach using mock trials. The students create the concrete situations which I use to explain the principles of trial advocacy. Trials reported in the media can also become grist for our mill. The St. Paul’s School rape case has provided a classic.
The 15 year old girl accuser was impeached with a series of contradictions by defense lawyer Jay Carney. Her excuse was a faulty memory – “I was cloudy.” Rather than leave it there Carney asked, “Why were you cloudy?” The predictable response: “Because I was raped,” accompanied by a torrent of tears.
One word never to pass the lips of an astute cross-examiner is “why.” Once you ask “why” you are at the mercy of the witness. You have lost control of the narrative. The sky is falling.
Think of the dynamic at play here. She has been directly challenged with her previous statements and her truthfulness has been called into question. She is feeling the heat of a public, courtroom humiliation, and she wants to fight back. She wants to be vindicated. Her mental adrenaline has her mind spinning extremely fast, and well. Why give her the perfect opportunity to lash back?
In my book, Black’s Law, I defined cross examination as a series of statements by the lawyer occasionally interrupted with a yes or no by the witness. A question beginning with “Why” can’t be answered with a yes or no; it requires a narrative. So by definition “Why” can’t be used. “Why” leads down the path of destruction. It is never worth the risk. But even seasoned lawyers like Carney can fall into the trap. The examination is going great, they are on a riff and the next thing you know, they follow it right off a cliff. It is a form of legal hubris.
Not only is the emotional outburst by the witness devastating, but the lawyer loses the benefit of the antecedent admission. She said she was “cloudy.” What a gift. It is time to do a riff on cloudy not on “why.” Here is where looping comes in. Keep incorporating cloudy into your questions. Loop that golden word into every question. Keep it up as long as your imagination holds out. For example:
So your memory is cloudy?
Your memory of that evening is cloudy?
The words you used are cloudy in your mind today?
The words spoken to you by Owen are cloudy today?
You are cloudy about even having sex that night?
It has been 10 months since that night?
You are getting more cloudy as the days go by?
Or is your cloudliness selective?
You are only cloudy about things that are hard to answer?
When the questions become threatening you become cloudy?
Her answers to these questions are not important. It is the impact on the jury that is.
Instead of being a problem, cloudy becomes the defense mantra. Cloudy is the theme in the final argument, just like Cochran turned the shrunken glove into “If it doesn’t fit….” Every time you mention her testimony you add a tagline, “but she was cloudy about it.” It could even solve the statutory rape component of the case.
Owen LaBrie was found not guilty on three counts of felony rape but was found guilty of four sexual-assault misdemeanors, including three counts of statutory rape involving penetrating a minor with his penis, mouth, and finger. He has yet to be sentenced.
Update: On October 30, 2015, Owen Labrie was sentenced to one year in jail, five years probation, and ordered to register as a sex offender for the rest of his life. He remains on bond while appealing his convictions. Labrie made no personal plea to the judge but submitted a written statement. The judge was not impressed with it, commenting it expressed no consideration of the victim. She submitted a videotaped statement saying she had been demonized at the school and has been living in almost constant fear. The prosecution asked for a sentence of 3.5 to 7 years imprisonment.