Prove it! Musings on advocacy, evidence, and the problems of proof at trial: Cross-Examination by the Numbers
We’re all familiar with them, those classic cross-examination tips that, if applied correctly, will win your case and make you famous. Irving Younger gave us “The 10 Commandments of Cross-Examination.” Who can forget how Roy Black destroyed the State’s witness in the Robert Kennedy Smith rape trial? Of course, there’s Tom Cruise from “A Few Good Men.” For the more senior members of the audience, we all remember how Perry Mason won every case on cross-examination. In fact, Perry not only vindicated his client, he got a confession from the real killer! What a guy!
Alas, as we donned our pinstriped suit, grabbed our fine leather briefcase, and briskly walked up the courthouse steps to enter the arena and battle for justice, we soon learned it wasn’t as easy as those other folks made it look. We soon learned that, unlike Perry Mason, cross-examination was where we were more likely to lose a case than win it. The tips and techniques were all there, but, for some reason, they just didn’t work as advertised. Unfortunately, we couldn’t get our money back for the books and CDs we purchased on cross-examination. Worse yet, the case was lost, and we weren’t going to get a do-over.
So what happened? Why didn’t all those great tips and examples work for us? I suggest that we started from the wrong end—we began by concentrating on the drama of cross-examination and the application of all those tips to control the witness and focus the jury. Instead, we should have started from the beginning, the substance of what we wanted to bring out and then we should have applied those techniques to accomplish that goal.
“Well,” you say, “that’s pretty obvious; I always start at the beginning!” Let me explain.
All the tips and techniques in the world won’t make for a good cross if there is no plan behind it. And if there’s no purpose to be achieved, the plan isn’t really a plan. So, how do we identify the purpose and then develop the plan?
Developing a cross-examination, whether of a lay witness, an expert, the arresting officer, or anyone else should consider these three questions: (1) What facts can I extract from this witness through one-fact leading questions that helps or furthers my theory of the case; (2) What facts can I extract from this witness through one-fact leading questions that hurts or conflicts with my opponent’s theory of the case; and (3) what impeachment material is available to attack the credibility of the witness on cross-examination. We’ll look at each of these in turn in the context of a motor vehicle accident case brought by Plaintiff against your client, Bubba. Plaintiff alleged Bubba ran a red light and T-boned her vehicle in the intersection.
The first question—facts that help my theory of the case—presupposes that you have a theory of the case. That’s a discussion for another day, but suffice it to say at this point that if you don’t have a theory of the case, you either need to develop one or hand the case off to someone else. Absent a theory of the case, none of this will work.
Assuming you have a theory, the first task is to crawl through the reports, depositions, exhibits, statements, and other information and identify those facts that are consistent with and support your theory of the case and that you can extract from the witness under consideration. In our hypothetical case, the defense theory is that the light was green when Bubba entered the intersection, and it was the Plaintiff who actually ran the red light.
The police accident report identified By Stander as a witness to the accident. Here’s an excerpt from By Stander’s deposition:
Q: What were you doing when the accident occurred?
A: I was waiting to cross Dawson St. at the intersection of Dawson and Hillsborough.
Q: What direction were you heading?
A: I was walking west along Hillsborough St. as I approached Dawson.
Q: What side of the street were you on?
A: I was on the side of the street where the Law School is located; I guess that would be the south side of Hillsborough.
Q: What time of day was it?
A: About 4:30 in the afternoon.
Q: Where had you been?
A: I was coming from getting my annual eye exam and was walking back to my store, which is located just a few blocks down Hillsborough from the Law School.
Q: Tell us what happened as you approached the corner of Hillsborough and Dawson.
A: Well, I walked up to the corner. The light was red for Hillsborough, so I had to stop. I was standing there with some other people, law students I think, when this red car going west on Hillsborough smashed into a green car going south on Dawson. It was awful.
Q: How fast was the red car going?
A: I don’t know; I didn’t see it before the crash.
Q: How fast was the green car going?
A: Oh, I guess about 35 or 40. Dawson is one-way at that point, and traffic flows pretty well.
Q: How much traffic was there that day on Dawson?
A: Well, come to think of it, not much. In fact, it was pretty light. The green car on Dawson was the only one in the block that I saw.
Q: As you approached the corner, did you look to the right for oncoming traffic?
A: Sure. I saw the green car crest the hill about a block north of Hillsborough and come down Dawson.
Q: Do you remember seeing any other cars on Dawson?
A: No. Like I said, traffic was light, and the green car is the only one I remember.
Q: Did you look at the Walk/Don’t Walk signal?
A: I’m sure I did because I didn’t cross the street.
Q: Do you actually remember looking at the pedestrian signal?
A: I’m sure I did because I always look for the walk signal before stepping off the curb. I don’t want to get run over!
Q: Are you telling me that you don’t actually remember looking at the signal, but that you assume you did because that is your habit?
A: Yeah, I guess so. I mean, I always wait for the Walk sign before crossing the street. I didn’t cross the street so I must not have had the Walk sign. If I didn’t have the Walk signal then the light must have been red for Hillsborough.
Q: But you do remember looking to your right and seeing the green car coming south on Dawson going about 35 to 40 miles per hour?
Q: Did it slow down before the intersection?
A: No, I don’t think so.
Q: You didn’t see the red car until the crash?
Q: You were still looking at the green car when the accident occurred?
Q: The red car was actually approaching Dawson from behind you?
A: Yes, that’s right. I heading west and so was he.
Q: So let me get this straight, as you approached Dawson you looked to the right and saw the green car coming down the hill?
Q: You assume the Don’t Walk sign was on in your direction because you didn’t step off the curb?
Q: You continued to watch the green car come down the hill while you remained on the sidewalk?
Q: The next thing you remember seeing was the red car T-Bone the green car in the intersection?
A: Yeah, that’s pretty much it.
Assuming that Plaintiff will call this witness in her case-in-chief, let’s consider what facts we can elicit from him that will further Bubba’s theory that the light was green in his direction. In other words, we’re asking: “If I called this witness in my case-in-chief is there some fact or facts that he knows that will help my theory? By Stander said the green car was going 35 to 40 mph but had no clue of the red car’s speed. He also said the green car just crested the hill about a block from the intersection of Dawson and Hillsborough. He also had nothing to say about the color of the light in Bubba’s direction. Those seem helpful to Bubba’s theory. So, how would those facts look if we included them in a potential cross-examination?
Q: Let’s talk about what you saw of the green car. It was heading south on Dawson?
Q: It was going 35 to 40 mph?
Q: When you first noticed the green car it had just crested the hill about a block north of the intersection of Dawson and Hillsborough?
Q: It was the only car you noticed?
Q: It was headed downhill?
Q: You watched it come down the hill about 30-45 mph and enter the intersection.
Q: There were other people waiting to cross the street with you?
Q: You weren’t the only one?
Q: During the time you first saw it crest the hill at 30-45 mph until it entered the intersection and collided with Bubba’s car, it didn’t slow down, did it?
Those facts all support Bubba’s theory of the case. A block from the scene of the wreck, the Plaintiff was travelling 30 to 45mph and did not slow down before entering the intersection where pedestrians were waiting to cross. This lends support to an argument that Plaintiff may have been going too fast for conditions as he approached an intersection at 30 to 45mph with pedestrians waiting to cross the street. Arguably, a reasonably prudent motorist would slow down a bit in anticipation of someone stepping off the curb or the light changing. Importantly, these facts also support the conclusion that By Stander was focused on the approaching green car and not on the color of the traffic light. While these facts will not “prove” Bubba’s theory, that’s not our task at this point. All we’re trying to do is identify facts that could support Bubba’s theory.
The next step in preparing to cross-examine By Stander is to identify those facts that are inconsistent with Plaintiff’s theory of the case. Based on this excerpt from By Stander’s deposition, we know that he didn’t actually see the color of the traffic light at the intersection. He said he watched the green car as it came down the hill toward the intersection. He didn’t see the red car until the accident happened. While he testified the “light was red” as he approached the intersection, he stood on the corner for some period of time watching the green car and never noticed the red car. From these facts, we can craft some question on cross that will cast doubt upon the Plaintiff’s theory that Bubba had the red light. We might ask the following questions:
Q: You couldn’t see what color the light was for southbound traffic on Dawson, could you?
Q: You were on the south side of Hillsborough headed west?
Q: The traffic light controlling cars southbound on Dawson was oriented north on Dawson, isn’t that true?
Q: The green car was coming downhill on Dawson?
Q: You were waiting to cross Dawson?
Q: You didn’t want to step out in front of traffic, did you?
Q: You kept your eyes on the green car coming downhill at 30 to 45mph?
Q: In fact, other than noticing the light while you approached the intersection, you never actually looked at the traffic light again, did you?
Q: You didn’t see the red car when it first entered the intersection?
Q: You didn’t see the color of the light controlling the westbound traffic on Hillsborough?
Q: You were watching the green car coming downhill at 30-45pmh, not the traffic light, isn’t that true?
These facts from this witness allow us to argue that By Stander really didn’t see what Plaintiff wants the jury to believe he saw. He didn’t actually see the light in either direction. He didn’t see when the Dawson light changed from green to yellow to red. He didn’t see when the Hillsborough light changed from red to green. He doesn’t know how fast Bubba was travelling when he entered the intersection. He does know, however, that he was focused on that green car coming downhill and wasn’t about to step off the curb in front of it! As under the first step in our cross-examination preparation, this doesn’t prove Plaintiff’s theory is wrong. All it does is identify facts we can extract from By Stander with leading questions that add to our argument that Plaintiff was at fault.
At this point, it is important to note that the information from which we draw the facts in the first two steps is not limited to the witness’ deposition, though for the sake of space and simplicity, that is the example I’m using. There may be a police report with summaries of the facts according to By Stander. By Stander may have spoken to others about the accident. The other witnesses may have seen things By Stander didn’t see. And what By Stander didn’t see may be as important, or more so, than those he did see. The question we’re asking is not what By Stander said in his deposition. The question is what facts we can elicit from this witness on cross-examination and have a ready source to impeach if the witness does not give us the answer we want. While in most instances that will be a deposition or statement of some sort, do not overlook other sources that may provide useful information. The critical question is whether we can impeach the witness if he does not give us the answer we want. If we cannot pull off a successful impeachment if the witness does not give us the “right” answer, we may not want to even ask the question.
The final step in our three-step process is to identify any impeachment material that may be appropriate for this witness. Obviously, the facts we identified in the first two steps are enshrined in the deposition, and if By Stander tries to disavow them, we can impeach with his deposition. Thus, in outlining the cross of By Stander, we would note by page and line number where the facts are found so that we can immediately go to the deposition to impeach without fumbling through the deposition to find the right page and line. But, step three of this process sends us to other areas of possible impeachment. For example, By Stander testified that he had just left his eye doctor after his annual check-up. Maybe the doctor dilated his eyes, and his vision was still a bit blurry when he reached the corner of Hillsborough and Dawson. Notice, too, that it was about 4:30 p.m. when the accident occurred, and By Stander was headed west.
Depending upon the time of year, he may have been looking into the sun, with dilated eyes, which further hindered his ability to accurately observe. The point is we must consider all modes of impeachment, seek to discover and evaluate whether there are any facts that may cast doubt on By Stander’s credibility, and craft appropriate cross-examination questions to bring out those facts. And be prepared to prove them by extrinsic evidence, if appropriate.
Once we have completed the three-step process, we can now begin to decide whether the facts we have identified are worth asking about and, if so, in what order we should ask them. Ordinarily, we would elicit favorable or noncontroversial facts first before moving on to those that may create some pushback from the witness. We may find in a given case that the “helpful” facts a witness may have are so good that we just forego any impeachment.
Alternatively, we may discover that a particular witness doesn’t help us at all and doesn’t have any facts inconsistent with our opponent’s theory, so the whole cross is centered on impeachment.
Deciding the precise order of questions, what to include, what to exclude, and whether to impeach and through what mode are tactical decisions. But if we haven’t thought about why we’re asking a question or why we shouldn’t ask a question our tactical decisions are not tactical at all. Cataloging facts as those that help our theory, those that hurt the opponent’s theory, and those that go to credibility helps us to make those difficult tactical decisions guided by purpose rather than compulsion.
Once we’ve completed our three-step process to select the facts we wish to elicit on cross of By Stander, we can then set about to prepare for the presentation of that cross. Now all the tips and techniques we’ve heard so much about and paid so much money for will come in handy.