“By seeking and blundering we learn” – Goethe
“I have not failed. I’ve just found 10,000 ways that won’t work” – Thomas Edison.
“A spelling mistake in the DNA of a gene within the brain seems to impair the ability of a person to improve their performance based on knowledge of earlier errors.” – News Story, The Telegraph, 2007.
The first two quotes above are inspirational and reflect insight; the third, sadly, seems to fit many lawyers who never recognize their errors and thus persist in their bad habits, especially in the courtroom. It is probably not genetic, but the recurrence argues for a model where we study error, diagnose and diagram it, and then take corrective steps. That is the rationale for this and forthcoming “learning from mistakes” columns.
Although there are no hard data to back up this assertion, it is undeniable that poorly constructed cross-examinations occur on a daily basis in courtrooms across this nation. And they are conducted by lawyers with years of experience who, sadly, don’t recognize mistakes and learn from them, and thus are doomed to repeat them. This column will look at one such example, the cross-examination of an eyewitness in a murder trial.
The eyewitness and the perpetrator were strangers, the incident occurred at 5 p.m. in early February roughly 20 minutes before sunset, and most of the action took place down the street from where the witness sat in her car. She described the shooter as wearing “a black jacket, a hoodie and a hat on” and could not estimate his height. The shooter, after firing, walked down the street and past the vehicle where the witness was seated. Notwithstanding these limitation, the witness unhesitatingly identified the defendant.
Trial counsel was armed with two, if seemingly contradictory points – the opportunity to observe the perpetrator’s face was quite abbreviated, and omitted from the description was a salient feature, a tattoo that the defendant had on his face. I term these “seemingly” contradictory because, at first blush, the less time to view the face the less time to see a tattoo – but because a tattoo on a face stands out, even a brief look should have captured it. Here is how counsel poorly handled these two points, starting with reducing the opportunity to observe:
Q: You were half a block away and the individual was in front of you?
A: Yes.
…
Q: Now you say when the individual ran part you, he sort of jogged past you?
A: Yes. He didn’t run fast.
Q: And when the individual jogged past you – –
A: Jogged, briefly walked.
…
Q: So it happened very rapidly, didn’t it?
A: Yes.
…
Q: You told your daughter to put her head down but you kept your head up?
A: Yes.
Q: Even while the shooting was going on, you kept your head up?
A: Yes.
What’s wrong here? Three times, counsel made the perpetrator visible to the eyewitness; told the witness’ story and not his; repeated a favorable term [“jogged”] after already getting the desired answer, allowing the witness to qualify her answer; and asked a “so” question, one that all too often can backfire. [Although it did not here, the question So it happened very rapidly invites an answer such as “to me, it seemed like time stopped.”]
How could this have been done better? The techniques counsel missed were (1) proceeding frame by frame, (2) making points obliquely, and (3) skipping the “so” question by reserving that point for closing argument. Wouldn’t the following have been better?
Q: The shooting was a half block away?
Q: Because your daughter was in the car with you the pushed her and held her down to protect her from any danger?
Q: After the shooting the man, as you told us earlier, walked quickly past your car?
Q: And then he was gone?
With such questions there would have been control and a gathering of the ingredients necessary for closing argument. Instead, there was argument with the witness and a repetition of bad testimony, repetition that could not be overcome with compelling proof to the contrary.
Where counsel was glaringly deficient was in the examination about the description and the tattoo:
Q: [You gave police a description] of a black male, light skinned, in his twenties…wearing a three-quarter length black bomber jacket, black knit hat, black hoodie sweatshirt, blue jeans shooting a gun about 13 to 14 times…
A: Yes.
…
Q: Now, when you gave that description to the police, you didn’t tell the police anything about a tattoo; did you?
A: Well, he didn’t ask me that…I didn’t give that description until I went down to [detective headquarters.]
Q: it is nowhere in this description that you said anything about…a tattoo on his face. Would you agree to that?
A: To the first officer…? No, he didn’t ask me that.
Q: Did you tell anybody?
A: I told people at [detective headquarters].
Q: What was that person’s name?
A: I don’t recall…
Here, counsel ignored the fundamentals of impeaching by omission – setting up the context and importance of the interview and the expectation that all critical details would be given and then simply establishing what was said. This called for a simpler, and almost friendly examination, one that could have proceeded along the following lines:
Q: You spoke to the police afterwards?
Q: They were polite and considerate of you and your daughter?
Q: They asked for a description of the shooter?
Q: And you tried your best to help them?
Q: Let’s read it. [Read the description without the number of times the gun fired, which seems to elongate opportunity to observe.]
So, what do we learn from these mistakes? How about these lessons:
- Less is more.
- Drop adverbs like “rapidly” – they just invite clarification and dispute.
- Leave the “so” point for closing.
- Make the witness endorse the statement that she did give, rather than attack the one she didn’t.
One would hope these are fundamental rules and practices, but the failure to follow them in a serious case shows they need repeating. And they were needed in this case, a point the accused would quickly acknowledge as he sits in jail with a life sentence.