If news accounts are accurate, Paul Manafort’s lawyers twice asked non-leading questions, on cross-examination, of the Government’s most important witnesses – the defendant’s accountant and Rick Gates, the latter the sometimes partner of or aide to Manafort. And again, if the news accounts are accurate, the answers hurt.
What occurred? In each instance, the lawyer seemed to want to make the point that closing argument would address. Here are the occurrences, as reported in the New York Times:
- [After cross-examining the accountant who testified under a grant of immunity and acknowledged that she often dealt on tax issues with Gates], defence attorney Kevin Downing attempted to show that Gates was the point person in dealing with the accountants…When Kevin Downing asked why she did not call Mr. Manafort [about concerns that tax information might be false], she replied: “I think in most instances, it was clear that Mr. Manafort was aware of what was going on.” She also testified that she copied Mr. Manafort on numerous emails.
- [Following a lengthy cross of cooperating witness Gates that emphasized the many fraudulent acts that Gates committed and the many lies he told], Mr. Downing confronted Mr. Gates over the validity of his testimony: “After all the lies you’ve told and fraud you’ve committed, you expect this jury to believe you?” the lawyer asked. Mr. Gates responded, “Yes, I made a decision. I’m here to tell the truth.” He added that “Mr. Manafort had the same path,” suggesting that the defendant could have agreed to cooperate with prosecutors in hopes of a light sentence. “I’m here.” Mr. Gates said that he was taking responsibility and trying to change after his mistake in committing fraud.
To test my assessment of these questions, I sent them to Trial Advocacy colleagues nationally asking each to “kindly send me a ‘disagree or agree’ or ‘good or bad’ assessment of each along with any comment(s) you might wish to share.“ I’ll begin with their feedback and conclude with my own.
- ELIZABETH LIPPY (American University Washington College of Law) I suppose hindsight is always 20/20 given the outcome. Perhaps some could see the mistrial on 10 counts a “win,” but the 8 guilty verdicts far outweigh that, in my opinion. Which potentially further confirms the old adage to not ask open ended questions on cross. As I teach my students, never ask questions on cross you do not know the answer to. ..[A]s an attorney gains more experience and gets more comfortable in a courtroom, there are sometimes great opportunities for open-ended questions on cross. Like when you know that whatever the answer is, it will make the witness look bad. Given the two scenarios, I do not believe those were those situations.
- AIMEE GHOSH (American University Washington College of Law) Based on the reporting, it seems that the defense team opened with the defense that Gates was the responsible party, not Manafort. Given that this was the theory of the case, it seems even more imperative that defense counsel not ask Gates open ended questions on cross that enable Gates to provide more testimony that cuts against their theory.
- SUSAN POEHLS (Loyola Law School, Los Angeles) I…don’t think these non-leading questions that were asked were safe enough to qualify as what I call “win/ win” questions. I also don’t like giving the witness the opportunity for an answer that most of the time will help explain their theory of the case, instead of mine.
- JOANNE VAN DYKE (Syracuse University School of Law): They should’ve stuck with the basics in both situations…[One other contributor] used the example of asking a non-leading question when you “know that whatever the answer is, it will make the witness look bad.” My only concern is that we don’t actually “know” how the jury will take it. I find that we are not always the best judge of how absurd the answer sounds or how bad it makes the witness look. There could be plenty of jurors who think the answer makes sense, the witness is trying their best, and cross-examiner is being arrogant, self-righteous and condescending. So what I tell my students is that if you’re going to ask a non-leading question under those circumstances, you had better have a very, very, very high level of confidence in your mind reading abilities – otherwise, don’t do it.
CARY BRICKER (McGeorge School of Law): In both instances, the open questions gave the witnesses a chance to justify their positions whereas a leading “death by a 1000 cuts approach” would have kept a tight rein on Gates and Lapata.
With respect to the Gates cross, I rarely find that “you expect this jury to believe” questions get the job done and they risk alienating the jury. Plus, they give an intelligent witness the chance to proselytize or take the high road. Only if Gates was truly a puddle at this point, and the jury lusted for an open-ended challenging “you expect” line of cross, maybe only then should the lawyer risk it. But that wasn’t the situation here…
Focusing on the Laporta cross, no, no and no. Asking a “why” question on cross can cause a lot of harm and has little to no chance of resulting in useful testimony. Plus the lawyer gave up control and handed it to Laporta, giving her the chance to carefully explain exactly why she didn’t call Manafort. Again, a tight leading cross wouldn’t have given her this platform to justify her existence.
- CHARLIE ROSE (Stetson University School of Law): I am not sure what Mr. Gates believes or expects is relevant to the case. His belief and expectation has nothing to do with his credibility. This was a set up question and should have been objected to by the prosecution. It is argumentative and does not have an impeachment or substantive reason for being asked. It was classic “beat up the witness” for the purpose of shame or embarrassment. If the prosecution had objected I would have sustained the objection. Of course they probably didn’t because of the attitude of the trial judge, but that’s a different blog post!
This one should not have been asked as a why question. A series of close ended questions would have been more powerful and prevented her from placing her explanation out there.
It could have gone something like this:
- You cannot tell this jury you ever called Mr. Manafort about this concerns over the falsity of the tax information.
- You knew his number?
- Had the ability to call him?
- Had called him in the past?
- On many different issues?
- It was your responsibility to assist him with his taxes?
- You were his accountant?
- But you NEVER called him about this?
- Never spoke to him directly?
- Never looked him in the eye and told him of your concerns?
- You did meet with him?
- Knew where his office was located?
- Had the ability to get in touch with him?
- But you didn’t?
I am sure all of us can play that thread out to its logical conclusion and then connect it to another line of impeachment of the accountant, perhaps her own financial interests and fear of prosecution.
- SARA JACOBSON (Temple Beasley School of Law): Non-leading questions should be used very, very sparingly and only by the experienced.
As to the first scenario, I disagree. I get the theatrical value, but don’t think it adds anything really beyond letting Gates explain himself in the moment. Much more powerful to wait and use that idea as a rhetorical question in closing. The second instance I’m agnostic on. I don’t know that it added much, but it doesn’t appear to have hurt the defense, either.
Jules Epstein (Temple Beasley School of Law): And my take? In concordance with the other contributors, there was no good reason for either non-leading question. As to witness Gates, if such a question were to be put it should have occurred [if at all] before the torrent of leading questions that exposed lie upon lie and dishonest act upon dishonest act. Had the question “Mr. Gates, you are asking this jury to take your word, correct?” been asked first, it would have elicited a “yes” but with no explanation, and that “yes” would have withered and died an ugly death in the subsequent one-fact-per-leading-question onslaught.
As to whether the question was objectionable because it inquired into Gates’ expectation, there may nonetheless be a proper ground for asking it. Gates was and is hoping for a sentencing ‘break’ based on his cooperation, so what he expected [read “hoped for”] was that the jury would believe him and thus make his cooperation seem more valuable. But the existence of a bona fide evidentiary purpose in no way makes this a good strategy.
For the tax accountant, the acknowledgment that she dealt solely with Gates, brought out through factual questions along the lines of “you did this with Gates,” and “you did that with Gates” was all that was needed. Indeed, had this all been elicited on direct the cross could have consisted of the following question:
Q: If I understand your testimony, you have detailed a number of emails, phone calls, conversations and meetings with Mr. Gates, correct?
A: Yes
Q: Thank you.
Instead, the lawyer here – again, if the news accounts are accurate – tried a closing argument approach during witness examination, a dangerous route that gave the witness the opportunity to make a speech.
The proof is in the pudding (or, here, in the newspaper accounts). A non-leading question rarely belongs in a cross-examination, and the opening it gives the witness to run and explain is rarely if ever offset by the answer one hopes for. Irving Younger’s simple commandments – always ask leading questions and never ask what you don’t know the answer to – resonate here.