For forty-plus years, learning the art of trial advocacy has included the obligatory viewing of a tape of Irving Younger’s “10 Commandments of Cross-Examination” lecture. And every lawyer who has ventured into the courtroom has seen – if not personally experienced – the dire consequences when a commandment is violated, in particular when the cross-examiner asks the one question too many or inquires about a subject where the answer is not already known.
Younger himself acknowledged that the Commandments he posited were meant to be broken by masters of the craft, but urged that adherence to them ensured a safe, productive cross. And the latter point can’t be denied. Were every cross-examiner to follow Younger’s directives, there would be less error in courtroom proceedings.
But are there more or different Commandments? Did Younger’s approach leave gaps? The answer to both questions is “yes.”
Let’s first recall the 10 that Younger preached. They are:
- Be brief
- Use plain words
- Ask only leading questions
- Be prepared
- Don’t get into a quarrel
- Avoid repetition
- Disallow witness explanations
- Limit questioning
- Save the main point for the summation
And what is missing?
Let’s start with storyboards. There is substantial research confirming that juries decide cases by fitting the disparate pieces of evidence into pre-existing story frameworks, and that the story then operates as a filter and affects how other pieces of evidence are perceived and evaluated. Younger, so focused on brevity and having the fewest possible points to make, fails to factor this in or link the design of cross to the story found in the opening statement.
Sticking with cognitive psychology, Younger makes no mention of the use of imagery – photos, documents, maps, exhibits – in making cross more effective. Whether the image is iconic or new to the case, “the power of the visual image [may be] so persuasive that once jurors get a picture in their minds, they may not be able to get rid of it.” NOTE: Roll Tape–Admissibility of Videotape Evidence in the Courtroom, 26 U. Mem. L. Rev. 1445, 1466 (Summer, 1996).
Because Younger so emphasized brevity, he ignores entirely the further cognitive psychology concern for primacy and recency. Pozner and Dodd show their importance in the structuring of each question, the design for each “chapter” of cross-examination, and in ordering those “chapters” in the overall cross. Pozner and Dodd, CROSS-EXAMINATION: SCIENCE AND TECHNIQUES Chapter 12 (2nd Edition).
What else does Younger omit? Concerns about special classes of witnesses, such as children, for whom wording and tone may need to be adjusted; and about expert witnesses, where the subject may preclude brevity and require a detailed deconstructing of the witness’ claims, wresting grudging concessions about the cross-examiner’s expert, or a ‘death by a thousand cuts’ approach.
Some call Younger’s rules into question. It has been suggested that Younger fails to account for redirect examination’s power to undo what cross has achieved, and that there is no good reason to save your final point – the ‘so’ question – for closing. The argument urges that lawyers “make the points you can when you confront the witness head on and…don’t save anything for argument. Cross examination is when the jury is listening carefully so take advantage of that fact.” http://www.royblack.com/blog/irving-youngers-ungodly-ten-commandments/#sthash.9FvU18jc.dpuf (last visited 8/4/15).
One need not go that far. Indeed, Pozner and Dodd remind us that “[i]t is far safer to let the jury reach its own conclusion…rather than demanding that conclusion from a hostile witness.” CROSS-EXAMINATION: SCIENCE AND TECHNIQUES §8.37. The art here is to make the conclusion ineluctable by establishing every predicate point. But the simple lesson is that, as with Moses’ Ten Commandments (which omit niceties such as tolerance and charity), Younger’s commandments offer a foundation but are significantly incomplete.