In his famous [infamous] TEN COMMANDMENTS OF CROSS-EXAMINATION lecture, the late Irving Younger suggested that the cross-examiner need be “tactful” in cross-examination. He gives the following example:
For example, if a witness for the other side was the defendant’s mother testifying in support of his insanity defense…what are you going to say to the jury about the defendant’s mother – that SHE’S A LIAR…no, you just have to say “she’s his mother, what do you expect a mother to do for her son…” and when they go into the jury room what the first thing they will say about mother – “she’s a g-dd—n liar.”
Younger was talking about taking what you gain on cross-examination and deploying it during closing in a way that is “tactful” and lets the jurors draw the desired conclusion. But his sentiment and approach ring true for cross-examination itself. Indeed, in his example, the cross could have been as “tactful” as the closing. The single question to be asked, as politely as the closing would be “Ma’am, you’re his mother, correct?”
That approach epitomizes the principle that a cross-examination need not be “cross,” i.e., performed with rage or even scorn. I credit that lesson to Fred Goodman, a Public Defender and trial lawyer extraordinaire here in Philadelphia. Let me offer three examples beyond “you’re his mother” to affirm the point.
Before doing that, one historic/theoretical point needs to be made. Cross-examination has not been ubiquitous; it arguably emerged as England developed an adversarial system. Historians trace it to the late 1600s and early 1700s. See Epstein, CROSS-EXAMINATION: THE GREAT (?) ENGINE: ARTICLE: CROSS-EXAMINATION: SEEMINGLY UBIQUITOUS, PURPORTEDLY OMNIPOTENT, AND “AT RISK”, 14 Widener L. Rev. 427, 429 (2009). And the view was that it was the tool needed to expose the “mendacious” witness, the person deliberately lying. What we show here is that a non-cross set of leading questions is more apt in certain settings and may also be used to expose falsehood.
The first circumstance involves the honest/sincere but arguably mistaken witness. Here, the prototypical situation is that in eyewitness identification cases.
As a general rule, eyewitnesses are not liars. An attack cross will only engender sympathy, especially if they are victims or good Samaritan witnesses. Consider, instead, the cross that gently leads them through the crime but in such a way that two points are elucidated: the opportunity to observe was limited and the police deprived the witness of a fair identification procedure.
Q: I’m sorry for what happened to you. Will you kindly help me understand a bit more how this occurred?
Q: This was the same route you normally take home after work?
Q: And until the attack it was just that – a normal walk home?
Q: The man rushed out of the alley?
Q: He put his arm around your neck?
Q: And that’s when he demanded money?
Q: You were able to get your wallet out of your pocket?
Q: He grabbed it?
Q: And then he ran off?
Q: Let me talk with you about the police, please. You’ve seen lineups on tv or in movies, correct?
Q: They didn’t show you a lineup?
Q: Or a group of photos?
Q: The brought you one person?
Q: In handcuffs?
Q: And they asked you “this is the guy, isn’t he?”
Q: Thank you.
Every ingredient for a mistaken identification closing argument has been established; and they sympathetic tone and the witness’ perception that you are listening to their plight ensures cooperation.
The second circumstance is more of a “killing them kindly” cross of a truly adverse witness. Let me take you to a trial from nearly two decades ago, one where the defendant was accused of masterminding an armored car hijacking/robbery. Police caught the two perpetrators on the scene; yet at the trial the officers claimed for the first time that ‘down the street we saw a third man watching, basically the height and build of this defendant.” This added ‘fact’ was in no police paperwork.
Both police officers testified. With the first, the cross was angry, clearly implying the officer was testi-lying. The second officer was an older black male, with whom such an attack would backfire. The cross went somewhat as follows, with each question marked with an asterisk [*] being answered “no:”
Q: You are an experienced officer, correct?
Q: Well trained?
Q: And specifically, trained in the importance of including significant details in your police reports, correct?
Q: * I know officers carry those booklets that look like pads, they call them incident reports. I guess you mentioned this third person when you wrote up that incident report.
Q: That’s ok, I’m sure it was rushed when you filled that out. But I know you went to the police station and spoke with the detective. That’s when you can give more details, and the detective types it out, right?
Q: * So I guess you mentioned it in that report.
Q: * That’s ok. You then testified at a preliminary hearing for the two guys you caught. I have that transcript here. You must have mentioned it then, correct?
Q: * That’s OK. Because after that you went to a grand jury that was deciding to charge my client, this man sitting right here. You must have told them about this, correct?
Q: Oh, thank you.
This was all that was needed to permit a closing argument that posed the rhetorical question “did you ever imagine you would hear so many police lies in a federal courthouse?”
The third non-cross set of leading questions arises with expert witnesses. It presents when the expert was not given all the materials available or needed in order to draw a solid conclusion. It also presents when the competing experts agree on much of the facts at issue. The latter is the process of making the opposing expert your witness.
Q: Dr., to help the jury let’s see where there is agreement, OK?
Q: You and Dr. Finney both agree that the hip did not heal fully after the replacement surgery?
Q: That this type of hip replacement has a 15% chance of going wrong?
Q: That haste in surgery can increase that percentage?
Q: That poor post-op instructions can also lead to the hip not having the chance to heal fully?
Q: And that Dr. Finney is herself a well-regarded expert on hip surgery, right?
Q: Dr., one other issue, please. An expert’s opinion is only as good as the information provided, right?
Q: In other words, if an expert gets an incomplete picture of what happened, the opinion might be less accurate?
Q: In fact, it could be wrong?
Q: Can we agree that there is some information that you were not given by the lawyer who retained you?
Q: You received a written MRI report, but not the MRI images?
Q: A summary of the surgery, but not the full medical report?
Q: And you never were given a chance to interview the team that performed the surgery?
Q: Or the nurse who gave my client the post-op instructions?
Q: Thank you.
The point? As a young public defender decades ago, I would watch people at preliminary hearings rush to the side of the lawyers who were the loudest, asking for their business cards. I saw then, and know now, that loud did not imply skilled. And the corollary lesson is also clear – cross need not be cross.