{"id":2235,"date":"2018-09-04T17:50:49","date_gmt":"2018-09-04T21:50:49","guid":{"rendered":"https:\/\/www2.law.temple.edu\/aer\/?p=2235"},"modified":"2021-12-16T14:57:50","modified_gmt":"2021-12-16T14:57:50","slug":"the-danger-of-the-non-leading-cross-examination","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2018\/09\/04\/the-danger-of-the-non-leading-cross-examination\/","title":{"rendered":"The Danger of the Non-Leading Cross-Examination"},"content":{"rendered":"<p>If news accounts are accurate, Paul Manafort\u2019s lawyers twice asked non-leading questions, on cross-examination, of the Government\u2019s most important witnesses \u2013 the defendant\u2019s accountant and Rick Gates, the latter the sometimes partner of or aide to Manafort.\u00a0 And again, if the news accounts are accurate, the answers hurt.<\/p>\n<p style=\"text-align: center\"><img loading=\"lazy\" decoding=\"async\" class=\"alignnone size-medium wp-image-2236\" src=\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2018\/09\/manafort-trial-300x169.jpg\" alt=\"\" width=\"300\" height=\"169\" srcset=\"https:\/\/law.temple.edu\/aer\/wp-content\/uploads\/sites\/5\/2018\/09\/manafort-trial-300x169.jpg 300w, https:\/\/law.temple.edu\/aer\/wp-content\/uploads\/sites\/5\/2018\/09\/manafort-trial-768x432.jpg 768w, https:\/\/law.temple.edu\/aer\/wp-content\/uploads\/sites\/5\/2018\/09\/manafort-trial.jpg 800w\" sizes=\"auto, (max-width: 300px) 100vw, 300px\" \/><\/p>\n<p>What occurred?\u00a0 In each instance, the lawyer seemed to want to make the point that closing argument would address.\u00a0 Here are the occurrences, as reported in the New York Times:<\/p>\n<ul>\n<li>[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\u2026When Kevin Downing asked why she did not call Mr. Manafort [about concerns that tax information might be false], she replied: \u201cI think in most instances, it was clear that Mr. Manafort was aware of what was going on.\u201d She also testified that she copied Mr. Manafort on numerous emails.<\/li>\n<li>[Following a lengthy cross of cooperating witness Gates that emphasized the many fraudulent acts that Gates committed and the many lies he told],\u00a0 Mr. Downing confronted Mr. Gates over the validity of his testimony: \u201cAfter all the lies you\u2019ve told and fraud you\u2019ve committed, you expect this jury to believe you?\u201d the lawyer asked.\u00a0 Mr. Gates responded, \u201cYes, I made a decision. I\u2019m here to tell the truth.\u201d He added that \u201cMr. Manafort had the same path,\u201d suggesting that the defendant could have agreed to cooperate with prosecutors in hopes of a light sentence. \u201cI\u2019m here.\u201d\u00a0 Mr. Gates said that he was taking responsibility and trying to change after his mistake in committing fraud.<\/li>\n<\/ul>\n<p>To test my assessment of these questions, I sent them to Trial Advocacy colleagues nationally asking each to \u201ckindly send me a \u2018disagree or agree\u2019\u00a0 or \u2018good or bad\u2019 assessment of each along with any comment(s) you might wish to share.\u201c\u00a0\u00a0 I\u2019ll begin with their feedback and conclude with my own.<\/p>\n<ul>\n<li><strong>ELIZABETH LIPPY (American University Washington College of Law) <\/strong>I suppose hindsight is always 20\/20 given the outcome.\u00a0 Perhaps some could see the mistrial on 10 counts a \u201cwin,\u201d but the 8 guilty verdicts far outweigh that, in my opinion.\u00a0 Which potentially further confirms the old adage to not ask open ended questions on cross.\u00a0 As I teach my students, never ask questions on cross you do not know the answer to.\u00a0..[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.\u00a0 Like when you know that whatever the answer is, it will make the witness look bad.\u00a0 Given the two scenarios, I do not believe those were those situations.<\/li>\n<li><strong>AIMEE GHOSH (American University Washington College of Law) <\/strong>Based on the reporting, it seems that the defense team opened with the defense that Gates was the responsible party, not Manafort.\u00a0 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.<\/li>\n<li><strong>SUSAN POEHLS (Loyola Law School, Los Angeles) <\/strong>I\u2026don\u2019t think these non-leading questions that were asked were safe enough to qualify as what I call \u201cwin\/ win\u201d questions.\u00a0 I also don\u2019t 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.<\/li>\n<li><strong>JOANNE VAN DYKE (Syracuse University School of Law): <\/strong>They should\u2019ve stuck with the basics in both situations\u2026[One other contributor] used the example of asking a non-leading question\u00a0when you \u201cknow that whatever the answer is, it will make the witness look bad.\u201d\u00a0 My only concern is that we don\u2019t actually \u201cknow\u201d how the jury will take it.\u00a0I find that we are not always the best judge of how\u00a0absurd 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\u2019re 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 &#8211; otherwise, don\u2019t do it.<br \/>\n<strong>CARY BRICKER (McGeorge School of Law): <\/strong>\u00a0In both instances, the open questions gave the witnesses a chance to justify their positions whereas a leading \u201cdeath by a 1000 cuts approach\u201d would have kept a tight rein on Gates and Lapata.<\/li>\n<\/ul>\n<p style=\"padding-left: 30px\">With respect to the Gates cross, I rarely find that \u201cyou expect this jury to believe\u201d questions get the job done and they risk alienating the jury. \u00a0Plus, they give an intelligent witness the chance to proselytize or take the high road.\u00a0 Only if Gates was truly a puddle at this point, and the jury lusted for an open-ended challenging \u201cyou expect\u201d line of cross, maybe only then should the lawyer risk it. But that wasn\u2019t the situation here\u2026<\/p>\n<p style=\"padding-left: 30px\">Focusing on the Laporta cross, no, no and no.\u00a0\u00a0 Asking a \u201cwhy\u201d question on cross can cause a lot of harm and has little to no chance of resulting in useful testimony.\u00a0 Plus the lawyer gave up control and handed it to Laporta, giving her the chance to carefully explain exactly why she didn\u2019t call Manafort.\u00a0 Again, a tight leading cross wouldn\u2019t have given her this platform to justify her existence.<\/p>\n<ul>\n<li><strong>CHARLIE ROSE (Stetson University School of Law): <\/strong>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 \u201cbeat up the witness\u201d for the purpose of shame or embarrassment. If the prosecution had objected I would have sustained the objection. Of course they probably didn\u2019t because of the attitude of the trial judge, but that\u2019s a different blog post!<\/li>\n<\/ul>\n<p style=\"padding-left: 30px\">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.<\/p>\n<p style=\"padding-left: 30px\">It could have gone something like this:<\/p>\n<ul>\n<li>You cannot tell this jury you ever called Mr. Manafort about this concerns over the falsity of the tax information.<\/li>\n<li>You knew his number?<\/li>\n<li>Had the ability to call him?<\/li>\n<li>Had called him in the past?<\/li>\n<li>On many different issues?<\/li>\n<li>It was your responsibility to assist him with his taxes?<\/li>\n<li>You were his accountant?<\/li>\n<li>But you NEVER called him about this?<\/li>\n<li>Never spoke to him directly?<\/li>\n<li>Never looked him in the eye and told him of your concerns?<\/li>\n<li>You did meet with him?<\/li>\n<li>Knew where his office was located?<\/li>\n<li>Had the ability to get in touch with him?<\/li>\n<li>But you didn\u2019t?<\/li>\n<\/ul>\n<p style=\"padding-left: 30px\">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.<\/p>\n<p>&nbsp;<\/p>\n<ul>\n<li><strong>SARA JACOBSON (Temple Beasley School of Law):\u00a0 <\/strong>Non-leading questions should be used very, very sparingly and only by the experienced.<\/li>\n<\/ul>\n<p style=\"padding-left: 30px\">As to the first scenario, I disagree.\u00a0 I get the theatrical value, but don&#8217;t think it adds anything really beyond letting Gates explain himself in the moment.\u00a0 Much more powerful to wait and use that idea as a rhetorical question in closing.\u00a0 The second instance I&#8217;m agnostic on.\u00a0 I don&#8217;t know that it added much, but it doesn&#8217;t appear to have hurt the defense, either.<\/p>\n<p><strong>Jules Epstein (Temple Beasley School of Law): <\/strong>And my take?\u00a0 In concordance with the other contributors, there was no good reason for either non-leading question.\u00a0 As to witness Gates, if such a question were to be put it should have occurred [if at all] <em>before<\/em> the torrent of leading questions that exposed lie upon lie and dishonest act upon dishonest act.\u00a0 Had the question \u201cMr. Gates, you are asking this jury to take your word, correct?\u201d been asked first, it would have elicited a \u201cyes\u201d but with no explanation, and that \u201cyes\u201d would have withered and died an ugly death in the subsequent one-fact-per-leading-question onslaught.<\/p>\n<p>As to whether the question was objectionable because it inquired into Gates\u2019 expectation, there may nonetheless be a proper ground for asking it.\u00a0 Gates was and is hoping for a sentencing \u2018break\u2019 based on his cooperation, so what he expected [read \u201choped for\u201d] was that the jury would believe him and thus make his cooperation seem more valuable.\u00a0 But the existence of a bona fide evidentiary purpose in no way makes this a good strategy.<\/p>\n<p>For the tax accountant, the acknowledgment that she dealt solely with Gates, brought out through factual questions along the lines of \u201cyou did this with Gates,\u201d and \u201cyou did that with Gates\u201d was all that was needed.\u00a0 Indeed, had this all been elicited on direct the cross could have consisted of the following question:<\/p>\n<p style=\"padding-left: 30px\">Q: If I understand your testimony, you have detailed a number of emails, phone calls, conversations and meetings with Mr. Gates, correct?<\/p>\n<p style=\"padding-left: 30px\">A: Yes<\/p>\n<p style=\"padding-left: 30px\">Q: Thank you.<\/p>\n<p>Instead, the lawyer here \u2013 again, if the news accounts are accurate \u2013 tried a closing argument approach during witness examination, a dangerous route that gave the witness the opportunity to make a speech.<\/p>\n<p>The proof is in the pudding (or, here, in the newspaper accounts).\u00a0 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.\u00a0 Irving Younger\u2019s simple commandments \u2013 always ask leading questions and never ask what you don\u2019t know the answer to \u2013 resonate here.<\/p>\n<p><strong>\u00a0<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"<p>If news accounts are accurate, Paul Manafort\u2019s lawyers twice asked non-leading questions, on cross-examination, of the Government\u2019s most important witnesses \u2013 the defendant\u2019s accountant and Rick Gates, the latter the sometimes partner of or aide to Manafort.\u00a0 And again, if the news accounts are accurate, the answers hurt. What occurred?\u00a0 In each instance, the lawyer<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,11],"tags":[],"coauthors":[238],"class_list":["post-2235","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-trial-advocacy"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.2 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>The Danger of the Non-Leading Cross-Examination - Advocacy and Evidence Resources<\/title>\n<meta name=\"description\" content=\"If accounts of Paul Manafort&#039;s trial are accurate, they offer vivid examples of the dangers of a non-leading cross - the ability to explain things away.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/law.temple.edu\/aer\/2018\/09\/04\/the-danger-of-the-non-leading-cross-examination\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Danger of the Non-Leading Cross-Examination - 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