Yell, Compel, or Soft-Sell: How Blatant Must Cross-Examination Be?

Among Irving Younger’s commandments were the well-known dictates of “be brief” and “save the ultimate point of your cross for summation.” The latter was the model for an eyewitness cross-examination at a recent training on litigating mistaken identification cases, but when we polled the mock jury one of its members – discussing the cross – said “I had no idea what the lawyer was doing or what his purpose was.” It was only one juror, and others ‘got it,’ but the experience gave me pause.

The question was, and remains – is it better to make your points and leave the rest for closing; or must we re-examine Younger’s proscription and ‘push’ the point more explicitly? Let me first present the cross as delivered and then the analysis.

The cross was designed to make three essential points: that the witness had barely any time to view the perpetrator (and was looking at the gun rather than the robber’s face); that police ‘bad practices’ created the false memory; and that the accused did not fit the description. The gist (without reference to exhibits) went like this:

  1. The person who did this was a complete stranger.
  2. You had walked there before, right on campus where students often walk
  3. Tell the jury your height, please.
  4. When the police came they were respectful and considerate.
  5. You did your best to help with details so they could try and catch the robber.
  6. Your description was:
    1. 6’ tall
    2. Maybe had a mustache
    3. His clothing had a Nike swoosh
    4. Possibly Hispanic or tan Caucasian
    5. 30-40 years old
  7. Incident – gentle step by step
    1. Walking back to sorority
    2. Reach corner
    3. Man pulled gun [act out]
    4. Demanded money
    5. You immediately told him you had none
    6. He yelled “Give me your phones.”
    7. You promptly complied
    8. He yelled “don’t follow me” and ran off
  8. You are sure there was a gun
    1. [demonstrate gun held near waist]
    2. You told police it was a black handgun
    3. And that the man “cocked it”
  9. Let’s discuss the police investigation
    1. 2 days later told “police had some leads”
    2. They showed you a photo array – only faces
    3. And you made no identification
    4. One week later police called you back in
    5. Police told you “It’s up to you”
    6. They showed you a second array
    7. You studied it for 25 seconds and then identified my client
    8. He was the only person in both arrays
    9. Subsequently shown a lineup and picked my client
    10. And he was same person as in both arrays
  • Let’s return to your description
    1. 6’
    2. Maybe 30-40
    3. [Confront witness with arrest information – client is 5’8, 24 years old]
  • No further questions

To the extent that the success of cross is measured by the number of “yes” responses, this examination exceeded expectations. But is it enough? Let me start with some commentators.

In a thoughtful law review article, Steven Lubet and Sara Whitaker ruminated on this while accounting for decision science:

The real issue is whether lawyers should trust juries to figure things out on their own. Here, decision science provides no clear answer. The fact that people distrust advocates would seem to support the claim that jurors need to discover truths on their own…Yet, other areas of decision science suggest that the knockout punch might be exactly what [is] ordered. Negativity bias dictates that a well-emphasized negative fact is fast-tracked to the decision-making parts of our brain. This could be taken as an endorsement of the so-called knockout punch—a damning fact or testimony that can override everything else.

Whitaker and Lubet, Clarence Darrow, Neuroscientist: What Trial Lawyers Can Learn from Decision Science, 36 Am. J. Trial Advoc. 61, 62 (2012).

Plaintiff’s lawyer Paul Luvera, author of Plaintiff Trial Lawyer Tips, adamantly supports pushing the conclusion on cross:

I believe you use cross examination as your final argument. We make our major points for our case in cross examination. We use cross examination to tell our client’s story. You have an objective and you have a plan to get there. You “follow the yellow brick road” of your client’s story from jury selection to argument. That means your questions support your story. When you have “scored a significant point” for your case that fact should be made in a way the jury understands and not saved for argument. When you ring the bell make sure the jury knows it, then and now…The idea that you can suddenly and with great drama reveal it for the first time in final argument is only in the movies…Cross examination is when you confront the witness head on and you don’t save anything for argument. Cross examination is when the jury is listening carefully so take advantage of that fact.

“Sorry Irving Younger But You Were Wrong,” Plaintiff Trial Lawyer Tips (February 13, 2010)

For a final assessment there is the advice of Pozner and Dodd. Their contention is simple:

Normally, a conclusion sought by the cross-examiner is capable of great dispute. By cross-examining in the chapter method, the cross-examiner can present an accurate picture of facts that compel the fact-finder to agree with the cross-examiner’s desired conclusion without ever asking the witness to agree with that desired conclusion.

Pozner and Dodd, CROSS-EXAMINATION: SCIENCE AND TECHNIQUES, 2nd Edition 9-31 (LexisNexis).

So, what to make of the dilemma expressed by Lubet and Whitaker, “Younger’s professed faith in jurors’ acuity and in the uncertainty of decision scientists[?]” This comment treats cross-examination in isolation, omitting the potential framing power of voir dire and the opening statement. And in the eyewitness case any attempt at pushing conclusions such as “so, you really couldn’t see the robber’s face” or “in other words, the event was really brief” will invite an argumentative – and credible to the jury – response of “I sure did see his face and I’ll never forget it” or “actually, it was longer, now that you focus me in on it. It must have been longer – it felt like forever.”

Before I state my conclusion, let me share comments from three Temple colleagues, all of whom support at least a slightly more aggressive approach:

I don’t think this has to be completely an either/or choice. A headline- either a soft headline that provides the jury with topical context sufficient to process the information (let’s talk about how well you could see), or an occasional aggressive headline that invites the “no” (you couldn’t have gotten a good look at him)- can be effective. Yes, the witness also has context and be more immediately clued in to be defensive, and yes, if the aggressive headline is overused it is exposed as a convention and thus less effective. Either provides greater context to the jury to your point but avoiding asking for the ultimate conclusion at the end of the cross.

I might take a different tack: do both, e., cross and close along these lines
So now you’re sure?
But you could not pick him out in the photo spread on (date)?
You picked him in second spread because his was the only picture repeated?
Then you wanted to see him in person?
You did get to see him in person?
You saw the same guy whose picture you saw twice?
No other guys from the pictures were in the lineup?

Just a suggestion and to make point that there are many ways to do this.

I do not trust the jurors to reach the right inference by themselves, particularly in a lengthy trial when they will have little recollection of what most witnesses have said. It is important to me that when you complete the cross, the jurors immediately form an opinion that the witness is unworthy of belief, dispelling the opposite assessment they just reached on direct before it becomes settled in their minds.

That said, I agree… no shouting, but just a tone which clearly suggests incredulity or skepticism on the part of the examiner. Without saying it explicitly, the cross examiner should convey what Cousin Vinny said ” I’m done with this guy” or even better, “we’re done with this guy.”

And where do I come out? Primarily with Younger, in part because of the over-belief in eyewitness accuracy that many jurors have and the resulting need to prevent the witness saying something like “but in that moment that image crystalized in my head,” an answer at odds with science but appealing to many on the jury. But maybe a headline such as “let’s talk about the event” and a wrap-up of “and that was the event in its entirety” are needed frames. Make this more cogent with voir dire and a powerful opening statement story. Then let the jury find its way to your goal. “Soft sell” with a guiding framework.

Photo credit: Shrieking Tree via VisualHunt / CC BY-NC-SA