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The Deadly Art of Cross-Examination

Whenever someone thinks of the courtroom, one of the things that they think about is Cross Examination. It is certainly the most exciting part of a trial, it is where the lawyer is face-to-face with a witness. In some movies and TV shows, the lawyer is tough, the witness is sweating, on the ropes, and the lawyer is about to make the knockout punch. In others, the lawyer is getting pushed around by a cunning witness, losing control. We see this in My Cousin Vinny, where, on cross examination, the “experienced” public defender asks the witness what color is the Defendant’s eyes. The witness expertly answered, and the lawyer withdrew. In another scene of the same movie, we see Joe Pesci eviscerate a witness, destroying his credibility.

This is not far from real life. Every lawyer has a method by which they cross examine. The fate of a case, in part, rests in the ability to effectively cross examine. The popular trend in today’s courtroom is the simple statement-question. The rule is simple, one statement, sounding like a question, addresses one point in order to elicit the answer “Yes.” Here is a simple example of how this works, as illustrated in Gerry Spence’s book Win Your Case:

Q: When you entered the front room, you saw the deceased?

A: Yes

Q: He was lying on the floor?

A: Yes

Q: He was facedown?

A: Yes

Q: He was bleeding?

A: Yes

Q: He appeared Dead?

A: Yes

This form of cross-examination is effective for tearing down the witness. It doesn’t so much matter what the witness says, it matters what the lawyer says. The witness’ job is simply to say “Yes.” When I do this, the jury hears a one-sided story that I am telling, that the witness is affirming. This is great for painting a very quick narrative in the simplest way. If this type of questioning goes on, and the lawyer does not divert from this routine, it could lead to a total discrediting of the witness. The lawyer does the talking, and has full control. Anything that the witness says “No” to will be impeached instantly.

Another method is one I enjoy even more; it is a cross examination that tells a story through leading questions. It gives the witness somewhat more control, but it leads to more effective testimony if done properly. Here is part of the famous Cross-Examination by F. Lee Bailey of Detective Mark Furman in the OJ Simpson trial:

Q: Can a footprint be seen with the naked eye?

A: Yes

Q: All footprints can be seen with the naked eye?

A: Well, if they are a “foot print,” they are visible.

Q: Don’t you know that many footprints can’t be seen until they are dusted with powder?

A: No, I didn’t

Q: Did you know that some footprints can’t be seen unless shown by an oblique light?

A: I suppose that’s possible

Q: Have you ever heard that, in all of your training in the 300 homicide scenes that you been at?

This type of questioning is meant to have the witness tell the story, but in a way that is conducted by a skilled lawyer. The lawyer is a shepherd, and the witness is the sheep, being guided on the right path. At the end of the cross-examination, we are left thinking, how can someone with all that training and experience not know that some footprints can’t be seen until they are dusted with power. Watching 3 episodes of Law and Order or CSI can lead to that knowledge. In other words, you don’t need to be an expert to know that dusting an area with powder can reveal footprints. The point is to discredit future testimony of the witness, and it all came out of the witness’ own mouth.

This, if done right, can lead to some truly effective cross-examination. However, the reason it is not popular is that it can go wrong very quickly in the hands of someone not competent, or unprepared. for example, in the Owen Labrie rape trial, the victim of the rape said that her memory was cloudy. The lawyer followed up with, “Why are you cloudy?” The victim responded by, “Because I was raped.” Any kind of ability to discredit the witness was thrown out the window.

At this point, it is too late to fire your lawyer, the damage is done. It is because of mistakes like these that clients lose their livelihood, that clients get locked up, that cases, which could be won, are lost. Make sure you know that your lawyer is competent enough to mount a proper battle, a winning battle.

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