examining witnesses || cross-examination

Cross-examinationAuthor(s): David BergSource: Litigation, Vol. 14, No. 1, EXAMINING WITNESSES (Fall 1987), pp. 25-30, 57Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759211 .

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Cross - examination

by David Berg Professor Wigmore wrote that cross-examination is the great? est engine ever invented for the discovery of truth. But truth is rarely what a trial lawyer is after.

Truth is for engineers, who reduce their problems to mathe? matical certainty: What is the pressure per square inch as the fuel passes through the pipe? How much stress can the pipe withstand? Truth is for doctors, who search for the cause of illness: Where is the pain? How badly does it hurt? Truth is for

probate lawyers, their issues decided by precise bequests: To whom have you left your estate? In what proportion to each?

The trial lawyer exists to win. But how do we win when the truth is against us? When an honest witness relates the events as they occurred, events that devastate our client, is it our job to rise dramatically, compliment the witness on an excellent

memory, and sit back down? Our role is to search for the weakness in the witness's

testimony and use it to win the case. Since the moral impera? tive of our profession is to represent the client zealously? then, in the "is" and "ought" of things?we ought to create the

impression that tjie witness's testimony, no matter how hon?

estly given, is either immaterial or unworthy of belief. For example, few trial lawyers would forgo the opportunity

to impeach a witness who had threatened to testify against their client unless the witness was paid. Who among us would be deterred by the fact that the witness had told the unvar? nished truth to the jury?

The ability to cross-examine effectively when all the facts are against us probably will not get us canonized, and?in my darker moments, I fear?may disqualify us from heaven

altogether. But what the hell, where else can you get someone to pay you serious dollars to be hostile?

The goal of cross-examination, then, is to damage the

credibility of the adverse witness, even if the witness is telling the absolute truth. There are a number of ways to do this, including the presentation of negative character witnesses, rebuttal witnesses, and impeaching documents. Of these

methods, none is as effective as the use of a witness's prior statement that contradicts the testimony on the stand.

This is the moment you wait for in a trial. It is never enough

The author practices in Houston, Texas, specializing in criminal law.

just to impeach the witness. Be relentless. Dramatize the lie. Make certain the witness's credibility is shredded before you let the witness off the hook. No better opportunity will present itself to win the case.

Consider what Richard "Racehorse" Haynes did in this recreation of testimony last year in a case based on the Racketeer Influenced and Corrupt Organizations Act.

Haynes's firm and mine represented two members of a Gulf Coast family accused of outfitting their midstream fueling barges with a small valve below deck that secretly drained a

portion of each fuel delivery back into the main cargo tank.

Haynes represented the man who ran the fueling operations and I represented his brother-in-law, who was in charge of their shipyard.

This is Texas. The amount of fuel allegedly drained back was about $70 million.

One of the witnesses, a former employee (we will call him R. J. Johnson), claimed that he had stolen fuel from our clients' midstream fueling customers, but admitted that he had

pocketed the money himself.

The Lawyer is a Teacher

Haynes believes that the lawyer is a teacher and the jury is the class. Questions should be asked carefully and slowly, each answer explained by the witness until the least among the

jurors understands it clearly. My corollary to the Haynes Rule, with which he would surely agree, is that the lawyer is the actor and the jury is the audience. Each opportunity to make a serious point has to be milked the way Richard Burton milked lines in Hamlet.

Q: Sir, you have previously given testimony in this case, have you not? A: Yes, sir, I gave a deposition. Q: And prior to the taking of the deposition you swore that

you would tell the truth? A: Yes, I believe so.

Q: Well, let me refresh your memory [approaching the

witness]. Here it is, at page one, The witness was duly sworn.' Do you remember swearing to tell the truth, the whole truth, and nothing but the truth, so help you God?

Litigation Fall 1987 Volume 14 Number 1



A: Yes, sir.

Q: That's the same oath you have taken here today, isn't it?

A: Yes.

Q: Do you recognize this transcript as a copy of the

deposition you gave on March 5, 1985? A: If you say that's it, then it is.

Q: Wait a minute and let's satisfy you. Look at this

signature: 'R. J. Johnson.' That is your signature, isn't it? A: Yes.

Q: And you signed your name to this document after you had reviewed the deposition for errors in your testimony? A: I don't remember.

Q: Will you agree with me that just above your name is the notation, T have read this deposition and there are no errors in my testimony.' A: I see it.

Q: And your name is below that entry. A: Don't mean I read the deposition. There is nothing to be gained by lingering on this point, so Haynes pauses, peers over the top of his glasses, and

pinches his lips as though he has smelled something noxious in the courtroom. Then he speaks softly and the

jury leans forward to hear what he says next:

Q: Follow me as I read, at page 19, line 25, where the

lawyer asks you: 'Mr. Johnson, did you ever steal money or anything of value from your employers?' And you answer, at page 20, 'Never, I'd never do that.' You did say that, didn't you? A: That's what it says. Q: And yet, here today, before this court [pause] and this

jury [pause], you have told us that you in fact stole money from these accused citizens [never 'defendants'], didn't

you? A: Yes, sir, I did.

Q: In fact, during Mr. Berg's [brilliant] cross-examina? tion, you admitted to having stolen upwards of 20,000 gallons of fuel at a time, didn't you? [Certain editorial comments are added for accuracy.] A: I ain't no thief. Everybody was doing it. Including your clients.

Q: Perhaps it was my question, and if so, I apologize. Let me ask it again. Did you tell Mr. Berg on cross-examina? tion only minutes ago that you had stolen for your own

personal account up to 20,000 gallons of diesel fuel in one fueling? A: Yes, I said that.

Q: One of these statements is not correct, then, Mr. Johnson? A: Is that a question? Q: Perhaps the way I worded it, the question confused

you, Mr. Johnson, and I apologize. Let me ask it this way. Which is the lie: The statement you swore to under oath on deposition?that you did not steal from your bosses, from your company?or the one you swore to today, in front of this jury, that you in fact committed thievery on the job, by stealing thousands of gallons of diesel fuel?

A: My testimony today is the truth.

Q: So that when you swore to tell the whole truth when you gave your deposition, you did not see fit to honor your oath to God? [In Texas, this is pronounced "Gawd." This is not the southern district of New York.]

A: I guess I lied back then.

Q: And didn't you volunteer to this jury that 'Everyone was doing it, that your employers were stealing too,' to

try to minimize your own theft from your own employer? Everything Haynes did had purpose. A careful examination of this exchange reveals rules that apply not only to the use of a

prior sworn deposition, but to all cross-examination. For example, the subject matter of cross-examination must

always be placed in context. Haynes first demonstrated that the witness had taken an oath before he gave the deposition, something we understand is standard procedure, but the jury

may not. Then he emphasized the solemnity of deposition testimony by demonstrating that the same oath was adminis? trated at the deposition as was given in front of the jury. Finally, he repeated the oath in its entirety, probably because the jurors had taken an oath imposing a similarly serious

obligation on them, and they presumably would not treat theirs as cavalierly as the witness had.

The same thinking?that the subject matter must be placed in context so the jury can follow your questions?applies if you cross-examine about quantum mechanics or a real estate contract. In the latter case, the proper protocol is to identify the contract by exhibit number and subject matter, such as, "Mr.

Witness, I hold in my hand plaintiff's exhibit number six, your contract to purchase a 1.23 acre tract of land from the defen? dant ..." And with each question, remind the jury where you are in the document and what part of the transaction you are

talking about.

Haynes read the page and line numbers of the testimony he intended to read to avoid giving the prosecutor an opportunity to lodge the legitimate and distracting objection that he could not follow because he did not know where Haynes was in the

deposition. Then Haynes read the offending testimony him? self. If you ever allow a witness to read it back, he can change




the pace of cross, and take all the drama, even the sting, out of the impeachment. When the witness was unresponsive to the question con?

cerning his own theft of fuel, Haynes politely apologized and asked the question again. This is an effective device to control the witness who will not give a straight answer. With each evasive response Haynes will repeat very politely, "I apol? ogize, sir, it must have been my question. Let me repeat it for

you." By the third or fourth time he says that and the third or fourth time the witness has been forced to be responsive, the

jury knows he is avoiding the questions and Haynes's "polite" comment becomes a searing indictment. The remark is espe? cially effective when the answer is obviously unresponsive and the structure of his question clearly was not the reason.

Q: How much money did you receive as a result of having stolen fuel from your employers and sold it for your own use and benefit? A: I only took it to help my family Q: I apologize. And I do not doubt that. Perhaps it was my question....

If you happen to have a pretty good judge, do not hesitate to ask the judge to instruct the witness to answer the questions and the jury to disregard the witness's prior answer. A prop? erly peeved judge can be more devastating to a witness's

credibility than the finest cross-examination. And do not let a witness get away with a volunteered

statement calculated to slam dunk your client, such as Johnson's comment that everyone was stealing, including the

employers. This is a common problem in cross, to which there are two reasonable avenues of response, neither of which is to

ignore the comment. You can take him on as Haynes did, asking a question designed to lay bare that which some of the

jurors instinctively may suspect: His gratuitous testimony is

designed to deflect from his own criminality. Or you can ask the judge to instruct the witness to answer the questions and the jury to disregard the witness's unresponsive answer. In both instances, plodding ahead with cross or asking the judge to instruct, there is an inherent risk that probably has to be taken, that you are calling attention to the testimony.

In this example, the previous statement taken from the

deposition was the lie. When the witness has lied in front of the

jury, the other side can say good-bye to its chances. In either case, force the witness to identify which of the statements is a lie or, at least, which one is "incorrect."

Haynes's cross-examination is a vivid example of the

recognized relationship between good lawyering and good drama. The consummate lawyer should be a consummate actor, able to use the dramatic pause, the disbelieving scowl, the hushed or angry voice, and the power that being in control of one's own emotions gives you.

Listen, Analyze, and Think about what the witness said in

response to your questions. The acronym is LAT. Wear it for

signposts upon thy forehead. Focus on the witness. If expan? sive answers give you more fodder for cross-examination, dissect what the witness tells you, even if you have to pause to assimilate what is said or wonder aloud about its meaning. Always stay involved in what you are asking, or you will sound flat and lose your audience.

Finally, cross-examination should never sound like direct. Cross-examine with a purpose?drive toward a particular point?but never wander aimlessly through the mire of the witness's most devastating testimony against your client.

("What did you say my client said after he shot your grand? mother?" "Really? My client said that? How droll! What

happened next?") The Johnson testimony offered at least five fertile areas of

cross, which Haynes ultimately explored, but not until he had

clearly made his first point: The witness lied under oath about a material matter in the case.

Great trial lawyers have a genius, a feel for the part of a witness's testimony that is the truth, and the part that is a lie, and what the witness can be coerced into saying that is

When the witness has lied in front of the jury, the other side can say good-bye to its chances.

beneficial to the client. The common denominator of effective cross-examination is not, however, genius. It is a combination of preparation and an instinct for the jugular that allows even the journeyman attorney to appear inspired.

It is imperative that trial lawyers know as much as possible before trial. In criminal litigation where formal discovery is limited, this will mean interviewing as many adverse wit? nesses as possible before trial. That sneak preview will give conscientious attorneys an opportunity to prepare significant areas of cross-examination in the relative calm of their of? fices. Sometimes, because of the interview, opposing counsel will no longer have the courage to put the witness on the stand because the lawyer may not know what you have been told. There is almost always an area the witness knows about that

opposing counsel did not want you to discover. It is also

possible that your interview may reveal sufficient weakness in the testimony so that a properly prepared motion in limine

may eviscerate the testimony or keep it out entirely. For example, in the previously mentioned prosecution

based on the Racketeer Influenced and Corrupt Organizations Act, a witness was prepared to testify that he had gotten orders from my client to open a valve and drain fuel back into the "main" cargo hold. Yet in his grand jury testimony, the witness had said only that he "received those orders" from my client, a statement worth examining closely. After interview?

ing him on the morning of his scheduled appearance, I filed a written motion in limine alleging that his testimony would be

speculative. The judge, out of the presence of the jury, allowed me to develop this contention:

Q: Mr. Smith [not his name], it is correct that you are here because you got a subpoena from the government? A: Mr. Berg [actual name], I wouldn't have come if they didn't send it.

Q: We talked this morning for the first time, did we not? A: Yes sir. In the prosecutor's office.

Q: And you told me that you had received orders to open the valve and steal fuel, did you not? A: Yes, I did.

Q: And you told me that those orders came from the main office.

A: That's right. From your client, Mr. Jones. [Not his real




name; before you say anything about the names, lawyers are not supposed to be creative. In fact, we have a rule

against creativity in my firm.] Q: You assumed that Mr. Jones gave those orders? A: Well, they came through the chain of command.

Q: I understand that. You are telling me you received

your orders from your immediate supervisor. Correct? A: Yes, from the manager of the dock.

Q: And earlier you told me, did you not, that you assumed the order started with Mr. Jones.

A: Well, I put an assumption to it.

Q: You also told me you had never received a direct order from Mr. Jones, didn't you? A: I never talked to him personal about this, no. But I know he must have been behind it. Who else would have been able to authorize me to steal the fuel? You're using my own words against me.

Q: They are your words, aren't they? The judge disallowed the testimony, but had I been forced to conduct the same cross-examination in front of the jury, they would have concluded, incorrectly, that my client was in? volved in the alleged theft. Based on other pretrial statements taken from government witnesses, I filed two more success? ful motions in limine regarding two other key witnesses

against my client. A fourth witness had a massive stroke prior to testifying, a fortuitous circumstance for which I can claim no particular credit. The case against my client was dismissed.

The object of the exercise during direct and cross is to listen, analyze, and think, and then cross-examine for maximum benefit to your cause. Listen to what the witness says. Practice

listening when you are not in trial, as superfluous as that may sound. Witnesses may not say exactly what they want to say or what you expect to hear. Analyze what you have heard. Has the witness hurt your client on a material issue? If not, do not ask any questions or you risk letting the witness say something that might do damage. If the testimony was helpful to you, be careful before examining for elaboration?the witness may be hostile to both sides. If the witness has killed you and you have no way to rebut through that witness, why go over the

testimony again? All you will do is bolster the testimony. Re? strict your cross to those areas in which you are certain you can do some damage.

Decorum can make a difference, too. Tell everyone at your table to write notes if they want to say something to you, and if anyone grabs your arm to tell you to ask a particular question, do not hesitate to pull out a .357 Magnum and kill him. Stride to the podium and exude confidence, even if there is a chance that the high school dropout on the stand is going to make you look like an idiot. Take command of the court

room. Once you begin, do not grope for questions, shuffle

through papers, or take breaks to confer with co-counsel. Let the jury know that you are prepared, that you do not need

anyone's advice, and that you care about the case. This is the most important rule, because if you don't care, the jurors won't care.

Witnesses presented by opposing counsel will not always be hostile, so do not cross-examine all witnesses as if they were pederasts. You can make your case with a few admis? sions gently coaxed from a supposedly adverse witness.

Size Up the Witness Your attitude toward the witness should be defined to some

degree by the way the witness appears on direct. Try to see who the jury sees. Is this witness actually hostile? Is he really angry at my client? Is he likely to defend his position? Has he become an advocate? If the answer to these questions is yes, be certain to keep the witness in check from the start. Almost

always avoid asking open-ended questions, but especially be careful not to do so with an explosive witness. Begin by telling the witness that you will be asking questions that should

require only a "yes" or "no" answer and that you will never ask a question that calls for a hearsay response. "I only want to know what you know, never what someone else has said." This will help, to the extent possible, to secure the loose cannon to the deck.

Ease into the examination. Jurors sympathize with wit? nesses until there is significant impeachment. Unless you have some bulletproof impeachment, avoid leaping into hard

questions immediately. Introduce yourself and explain to the

jury your relationship, or lack of one, to the witness: "Mr. Johnson, my name is David Berg. I represent Mr. Smith, and I believe, sir, that we've never met. Is that correct?" or "We

met last Tuesday, did we not, in your office?" and "While there, we discussed what you had told the insurance company lawyers that you would say on the stand." To avoid accusa? tions of impropriety, try something like, "Wouldn't you agree with me that our meeting was businesslike and proper?"

Gerry Spence seems to start his cross with a statement that

capsulizes the weakness of the direct. A lawyer friend tried this approach in a recent trial against an oil company. With the oil company's expert on the stand, the lawyer sought to illustrate that the opposition was hiding key material from the

jury. Q: Mr. Expert, you've been reading for two days now, in

response to questions from those fine lawyers over there, from the oil company's manual of operations. A: Yes. That's right. It's their company bible.

Q: Well, then, it's fair to say that for the last two days, you've been singing only the hymns their lawyers have selected, haven't you? And none that would harm the

company that hired you and those lawyers. A: That's not so.

Q: Then turn to page 24 and sing along with me for a while.

Always ask if the witness has given any prior oral or written statements recorded on paper, in tape recordings, or on video?

tape or if the witness made any reports or kept any notes, diary, or memoranda related to the events in question. If any such material exists, get it. It is great fodder for cross-examination. If you have been given a prior statement such as grand jury testimony, confirm the total number of appearances made.




And always develop in detail the number of meetings the witness has had with the opposing lawyer, especially if the witness has spent little or no time with you or refused to meet with you.

Never answer a question from the witness, unless it is a

request to clarify your question. And never allow the witness to get away with unresponsive answers. If you keep control, the witness will stop embellishing answers. When the witness

strays, cut off the testimony immediately, as in the Haynes example, or ask the judge to do it. The rule is, never ask a witness a question when you do not know the answer. But

every once in a while hubris grabs us by the briefcase so that we break the rule and elicit a devastating answer. When that

happens, act as if ye had faith. Remain implacable. Try some?

thing like this: "Exactly, Mr. Schmidlapp, and I'm glad you brought it up." To respond "Oh, yeah" or "Just say that again" is probably, well, bad form.

Do not get blown away from an important area of inquiry because an objection has been sustained or because the judge has ordered you to "move along." Press on, ask the question differently, do what you have to, but do not give up. If you must give up, make sure you protect the record. Ask whether the judge is restricting your cross-examination and ordering you not to proceed into that area. If so, make a proffer of the evidence that you would expect to adduce if you were allowed to continue your line of questioning. Judges, too, can be bullied out of their position, especially if they sense you know how to protect your record.

Perhaps the most important maxim of all is that you should not laminate your cross-examination. Do not get so wed to a line of questions that you cannot ask about matters you never

contemplated or cannot abandon cross altogether. There are other admonitions about cross-examination that

cannot be fully developed here, but are worth mentioning. Nail down every detail so that the witness cannot back out

of the trap when you finally ask the most significant question. Squeeze all the beneficial answers you can get from a witness before impeaching him. Once you have the answer you want, move away from it so that the witness cannot repair the

damage. Timing is everything. If you get an answer that really helps make your case, quit?even at the expense of potentially valuable cross-examination.

Witnesses and parties frequently are warned to answer only that which is asked, so frame your questions to cover all bases. It is not enough to ask "Have you sent a letter to Mr. Smith?" Neither a "yes" nor a "no" tells you what you need to know.

Try something like this: "Have you communicated in any manner with Mr. Smith?" "Did you send anything to him in the mail?" "Have you talked to him at all in the last two years?"

Analyze every aspect of cross-examination until you de?

velop your own approach and can instinctively respond to the most difficult situations. Think about cross, talk about it. Do not be embarrassed to watch the good lawyers do it, even if

only for the satisfaction of saying you could have done it

better, which, oddly enough, is always my response. Except for when I listen to lawyer Haynes.

Few lawyers take the time necessary to cross-examine witnesses thoroughly. Examining in detail generally produces unexpected avenues of examination and discovery that can

provide the edge in winning your case. Question doggedly, and the judge and opposing counsel will soon grow tired of it. You will be besieged with objections and orders to "move it

along, counsel." Co-counsel will write you notes saying the

judge is getting mad, and for God's sake, stop! Ninety percent of the time the only people you are likely to impress by relentless questioning is the jury. They will think you care a lot about the witness's testimony.

A few years ago, I tried a murder case in a small, neo-Nazi

community (the chamber of commerce there would more

likely describe it as a German settlement) just outside Hous? ton. On my way to the courthouse on the first day of trial, I drove into the Fina gas station and, as the attendant filled up my car, he said, "You're the lawyer, ain'cha? Well, I tell you what, ol' buddy. If I were you, I'd turn it around and head right back to Houston."

I did not turn tail?the fee was paid?and before the trial was over, I was able to make a strong case that a major state

witness, the victim's widower, was at least as likely to be the killer as my client, the victim's ex-husband. All I knew about the witness at the start of trial was that during a brief marriage,

Unless you have some

bulletproof impeachment, avoid leaping into hard questions immediately.

he had been designated the only beneficiary in his wife's will; that the wife's estate was considerable; and the witness

already was involved with another woman. When the witness came into court, he was shaking.

Q: You fairly shook with rage when you came into this court and saw Mr. Jones, my client? A: Yes.

Q: You glowered at him; that is a fair statement, isn't it? A: Yes.

Q: And you hate Mr. Jones, because you believe he killed

your wife? A: Yes.

Q: And because you were able to live together as man and wife for only a brief period of time? A: Yes. A year, a month, and two weeks.

Q: And I take it you are bereaved? A: Yes.

Q: And that you deeply loved your wife? A: Yes.

Q: Tell the jury who Billy Faye is. A: Billy Faye? Q: Billy Faye. A: My fiancee.

Q: And where does Billy Faye Baxter live? A: She lives on my farm, with me.

Q: Your farm? The farm you inherited from your de? ceased wife? A: That's right. My farm.

Q: Her daughter, and Mr. Jones's daughter, did not in? herit a single inch of land, did she? A: We discussed it, me and my wife. And I will take care of the child.

Q: Perhaps it was the way I asked the question. Mr.




Jones's daughter didn't inherit a square inch of land, did she? A: No sir.

Q: How much time elapsed after the death of your wife before Billy Faye moved in with you at your farm? A: I first laid eyes on Billy Faye? Q: Perhaps it was my question, and I apologize. How long was it, after the death of your wife, that Billy Faye Baxter moved in with you on that farm of yours? A: Six months.

Q: You were pretty wracked with grief, were you? When did you recover?How many days after your wife's death did it take for you to be interested in another woman? A: I'm still not over it.

Q: All right. Tell me where you met Ms. Billy Faye Baxter.

A: At the Continental Trailways Station on November 5.

Q: When did she move into your house with you? A: The first week in December, I believe.

Q: So, you would say roughly a month passed in this romance before the two of you decided to move in

together? A: That's right. If you want to know, it was 14 days. Q: And you claim to this jury that you never met Billy Faye Baxter before you ran into her at a bus station? A: I didn't run into her at a bus station. It was a planned meeting.

Q: Okay, tell the jury how it was planned. A: She is a mail-order bride. She met me through an advertisement I placed in Mother Earth News. We corre?

sponded for approximately a month to six weeks. We

phoned each other. I have some $150 in telephone bills.

Q: Well, you could certainly pay those, given what you inherited from your deceased wife?

A: [Inaudible response.] Q: Wait a minute. Did you say Mother Earth News? A: Yes.

Q: And your wife was killed June 23rd, only three or four months before the ad appeared? A: Yes.

Q: Let me ask you, are you quite certain that ad was in October? A: I will bring the magazine if you like.

Q: I would like that and you can bring it back tomorrow.

Incidently, how many responses for a wife did you get from the ad in Mother Earth News! A: Between 20 and 30. It was not for a wife.

Q: It was not for what? A: Not for a wife.

Q: For a pen pal? A: Whatever.

Q: You did call her a mail-order bride. A: Yes, sir.

Q: What did the ad say? A: 'Rural violin maker seeks slim Mother Earth Type'? to the best of my memory, now. I will produce the document.

Q: Seeks?Did you say slim? A: Yes.

Q: Pretty creative ad for a guy wracked with grief, isn't it? [Objection] Let me ask you this. Did you have some?

thing else in mind other than a pen pal?

A: I had hopes. My wife was dead. I hoped that something would develop a year or two down the road.

Q: Your overweight wife was dead, right? [Objection] And I guess things just developed with your girlfriend a lot faster than you hoped?

A: That's right. Q: Let me suggest that it is only for convenience that you now tell the jury that you placed that ad with the idea that

something would develop down the road, so that it would

appear to them that you had a proper mourning period. A: No, it is the truth.

He returned the next morning with the October issue of Mother Earth News.

Q: Now, according to this, in order to have your ad in this issue, the September-October issue, you had to have your ad in before July 11, isn't that correct? A: That is what it says. Q: Now, your wife died on June 23, 1983, did she not? A: She was killed.

Q: She was killed, yes. No one disputes that. It is who killed her we are after here. Now, sir, was the date of her death June 23? A: Yes.

Q: Did you pay for this ad? A: I did.

Q: And you paid by July 11, only 14 days after the death of your wife....

A: Yes.

Q: Isn't it a fair statement, isn't it safe to say, that you were thinking about having another woman there living with you at your farm very shortly after the death of your wife? A: No.

Q: Maybe before her death you longed for a4 slim Mother Earth type.' A: Sir, that is a lie.

Q: Yet, you placed this ad? A: Yes.

Q: Then let me ask again. Weren't you looking for another woman, a 'slim Mother Earth type' to move in with you? A: May I amplify? Court: You can answer the question. A: During that period I was crazy, insane with grief. I was under the care of a psychologist. I will not accept rational

responsibility for any of my actions during that time.

Q: So, you would tell this jury that you were just too crazy to be responsible for what you did?

A: Yes.

Q: I understand. And you are a man of great sensitivity? A: Yes.

Q: And that you are not the kind of man who would have the kind of anger it takes to kill. Please take your time and answer calmly, and I see you are shaking again. A: Yes, I have that kind of anger. I will tell you true.

Q: You could kill, is that what you're telling us? A: Yes, I could kill.

I might have gone on with this, but I knew by now he was a Vietnam vet and I assumed he would claim he would only kill the enemy, or some such thing. The point was made and I

moved on.

(Please turn to page 57)

30 Litigation Fall 1987 %J \J Volume 14 Number 1



but... as I said, I was dazed . . . and

... and and ..."

"Don't you know that you're lying!" shouted Mason, leaning still closer, his stout arms aloft, his disfigured face

glowering and scowling like some

avenging nemesis or fury of gargoyle design?"that you deliberately and with cold-hearted cunning allowed that poor, tortured girl to die there when you might have rescued her as easily as you could have swum fifty of those five hundred feet you did swim in order to save your? self?" For by now he was convinced that he knew just how Clyde had actually slain Roberta, something in his manner and mood convincing him, and he was determined to drag it out of him if he could. And although Belknap was in?

stantly on his feet with a protest that his client was being unfairly prejudiced in the eyes of the jury and that he was really entitled to?and now demanded?a mistrial?which complaint Justice Oberwaltzer eventually overruled? still Clyde had time to reply, but most

meekly and feebly: "No! No! I didn't. I wanted to save her if I could." Yet his whole manner as each and every juror noted, was that of one who was not

really telling the truth, who was really all of the mental and moral coward that

Belknap had insisted he was?but worse yet, really guilty of Roberta's death. For after all, asked each juror of himself as he listened, why couldn't he have saved her if he was strong enough to swim to shore afterwards?or at least have swum to and secured the boat and

helped her to take hold of it? 10

Direct

Examination

(Continued from page 10) about the courtroom. In Texas, where we are known for flamboyance, most state courts require lawyers to be seated when they examine a witness. In federal courts you frequently are trapped be? hind a podium. The more your move? ment is restricted, the more important are the few movements you make. Not

purposeless movement, however. Some

activity is required to awaken the jury, even with the most interesting subject matter.

Introducing exhibits and using exhib? its while questioning the witness are excellent times for this movement.

When the testimony becomes tedious, introduce an exhibit or refer to one al?

ready in evidence. Large exhibits can be

approached by the witness and, at times, by the examiner as well. When both of

you are at an exhibit, however, be care?

ful not to hold a private conversation.

Project your questions and have the witness project the answers to the jury.

Many examiners use direct examina? tion to take the sting out of cross. They bring up the weak points before the cross-examiner does. For example,

suppose you are examining your client's brother:

Q: Mr. Jones, you are the brother of Rick Jones who brought this suit, are

you not? (Do not worry about objections to leading questions. You can always rephrase the question, and the objection will make it appear that the other side is

trying to keep the evidence out.) A: Yes, I am.

Q: So, can we trust you to tell us the truth or are you fudging to help your brother?

A: No, I am telling the simple truth.

Q: How can we be sure of that? A: [Make sure the witness has a

good?not schmaltzy?explanation.] Here is an example with an expert: Q: Doctor, have you ever examined

Mr. Jones? A: No.

Q: Have you ever met him? A: No.

Q: Then, isn't it strange that you can

give us a believable opinion about his medical condition?

A: No, I don't think so.

Q: Why not? A: [The witness should be prepared to

give a persuasive reason.] Doing all that you need to do for a

perfectly prepared direct examination

may overwhelm you. "I don't have time to do all that," you may think, and that

may be the fact. If you do not have time to do it all, do as much as you can. It is not malpractice not to do it all. It would be malpractice to do none of it. But you must guide yourself and decide, based

upon the time you have and the nature of the case, just how much of this you can

do. The more you do, the better your direct examination will be. Ideally it will be complete, believable, and inter?

esting. 10

Cross

examination

(Continued from page 30) The widower admitted also that he

had "happened" on the scene of the mur? der at 3:00 p.m. on his way to work, that he lived only 15 minutes away from work, and that he was not due there until four (records from his current job showed that he had never gotten to work

more than five minutes early in the year he had worked there), and that when he arrived at the murder scene the police did not question him, nor did they ever execute a search warrant at his house or for his automobile.

So the man in mourning who, despite his brief marriage, was heir to a sizable estate under a will that excluded the deceased's natural daughter, happened on the scene of the murder uninvited at a time he would not ordinarily pass that location. Within days of his wife's demise, he was busily writing away for a "mail-order bride."

Now it was clear that the widower had the motive?the inheritance; the oppor? tunity?he lived a few blocks from the scene of the crime; and the means?he owned a weapon similar to that used to kill his wife. All of this in a case where there was virtually no evidence that could be offered on behalf of the de? fendant, who was placed at the scene

only a few moments before her death.

Only cross-examination could have saved the accused from a long prison term.

Professor Wigmore's assessment of cross-examination is not wrong, just a bit naive. In fact, a judge or jury will arrive at the truth, or, in my view, a close

approximation thereof, by observing witnesses subjected to cross-examina?

tion. But the variable in the search for a

proper verdict based on the facts as they really occurred is the talent of the re?

spective lawyers in the art of cross examination. And the lawyer who knows how to cross-examine, no matter

how egregious the facts inherited from the client, will amass a winning record. Whether that has much to do with

truth, as Aristotle sought it, is arguable. On the other hand, no one ever claimed Aristotle could cross-examine. 10




examining witnesses || cross-examination

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