Thoughts on Cross-Examination

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Thursday, March 5th, 2015
Thoughts on Cross-Examination

Believe it or not, a successful cross-examination begins when clients first hire us as their attorney. First, we should listen carefully to the client, get their full story, and start right then preparing them for their ultimate cross-examination (i.e., assuming they will take the stand). Second, when we first know who the opposition witnesses will be, we should investigate their story, ascertaining weak spots, falsehoods, and other points for their cross-examination. We should investigate their background, criminal record, demeanor, and other matters that might be relevant and shed some light on their cross-examination.

Through these many years of my career, I have been amazed that all too many attorneys, both prosecutors and defense counsel, frantically take copious notes of the direct testimony of a witness. Then, when the witness is passed for cross, they stumble willy-nilly through their notes asking all sorts of senseless, irrelevant questions, often raising their voice in thunderous volume hoping to catch the witness off guard, sometimes even repeating the direct testimony, to the confusion of the jury, gaining nothing positive for their side.

For Example

Several years ago I was retained in federal court to handle an appeal for a man convicted of running an illegal interstate gambling operation at Caeser’s Palace in Las Vegas. I was appalled by defense counsel’s cross-examination of the main witness for the prosecution:

Q: You told this jury that my client, not you, organized the gambling operation. Is that true? Look at this jury and remember you are under oath.
A: [turning to the jury] Yeah, that’s what he done all right.
Q: Very well. Okay. And you claim that my client received 75% of the take but you only got 25%. Is that what you expect this jury to believe?
A: Yeah, that’s right. That was our deal—75 to him, 25 to me.
Q: Well, if you were partners, I don’t understand why my client received 75% of the take but you only got 25%.
A: Because, in an earlier game at the Flamingo he got 25% and I got 75%, that’s why!

Another Killer Explanation

A young patrolman, the arresting officer in a DWI case, testified that in his opinion the defendant was literally drunk out of his gourd at the time of his arrest. Defense coun­sel asked:

Q: But you have been a patrolman for only 3 months, haven’t you, sir?
A: That’s right, only 3 months.
Q: Then how could you possibly know my client was drunk?
A: Because I was a bartender for 14 years before I became a cop!

Witness in a Ridiculous, Untenable Position

If you are fortunate enough to trap the witness into a ridiculous, untenable position he cannot explain, that is like icing on the cake.

In the Barry Gray1 case, defendant Gray raped his neighbor lady, thrust a kitchen knife through her throat, bashed her on the head with a champagne bottle, and left her for dead. I was fortunate in my cross of Doctor Domres, an Air Force shrink who testified that Gray was insane when he committed the offense but was completely sane now at the time of his trial—and that he would never, ever again commit any crime, let alone one of violence.

On cross-examination, I asked the doctor if prior to the offense would he in his wildest dreams have ever predicted that Gray would commit such a horrible, brutal crime. He answered, “No! Certainly not!”

“But he did, didn’t he, doctor? He did! So, how can you possibly expect this jury to believe he won’t do it again?”

He gulped and admitted that he could not.

Don’t Be Greedy

When you are fortunate enough to get a favorable answer, do not push for more because the witness might either change his answer or destroy the favorable aspect of his earlier answer.

For example, before becoming a judge, Justice Shirley Butts2 defended a man accused of robbing a cab driver in Fort Worth when I was in the DA’s office there. I was the prosecutor. Her cross-examination of the cab driver went like this:

Q: Mr. Cab Driver, it was dark in the park that night and the dome light in your cab was burned out, wasn’t it?
A: Well, yes.
Q: And you identified the man who robbed you through your rear-view mirror, isn’t that right?
A: Well, yes, ma’am.
Q: You only got a glimpse of the man who robbed you for a few moments and, as you say, through your rear-view mirror?
A: Yes ma’am, that’s right.
Q: Actually, Mr. Cab Driver, my client Mr. Jones here just looks like the man who robbed you. Right?
A: Well, that’s true. He does look like him. Yes, ma’am. He looks like him.
Q: That’s all. Thank you, sir. Pass the witness.

During her argument, she noticed a juror who closely resembled President Eisenhower. She addressed that particular juror, saying, “You, sir, look very much like President Eisenhower, but ‘looking like’ doesn’t make it so, does it?”

The jury quickly found her client “not guilty.”

A Few Tips and Suggestions

1. Take and keep control of the witness.
2. Do not allow him or her to trap you into answering their questions.
3. Do not repeat their testimony.
4. Keep eye contact at all times, and study their facial reactions.
5. Be positive and confident at all times.
6. Do not fumble around with your notes or other papers.
7. If the witness is a “smart alec,” sarcastic, would-be comedian, antagonistic, argumentative, or hostile . . . keep your cool.
8. Be courteous, do not get angry, and never argue with the wit­ness.
9. Save your comments for argument. Capture “center stage.”

Criminal Trial Strategy3

If you do not have a copy of Charlie Tessmer’s most valuable book, Criminal Trial Strategy, get it! You can buy it from the Texas Criminal Defense Lawyers Association on the website at www.tcdla.com for just $39, including shipping, or at most seminars.

Chapter 6 (pages 71–106), “Examination of a Witness, Cross-Examination,” is worth the price.

For Example

From page 81 about cross-examination: “The objects of cross-examination are three-fold: (1) to prove something in your behalf, (2) to weaken the force of what the witness has said against you, (3) to show from his demeanor or past life that he is unworthy of belief.”

Page 86: “Always examine the witness on who has talked to them before trial and for how long and where. The prosecutor on redirect will usually ask the witness if he did not tell the witness to tell the truth. If this occurs, ask the witness if he knows why the prosecutor found it necessary to warn him to tell the truth. If possible, show that the prosecutor got all witnesses together and talked to them about their respective testimony and about the case.”

This little book itself tells you all you need to know about cross-examination and much more. I bought it when it was first printed in 1968 and have used it repeatedly these many years hence.

J. W. (Jake) Ehrlich4

Jake Ehrlich’s classic The Lost Art of Cross-Examination should be in your library. It was first published by Putman and Sons in 1979 and again in 1987 by Dorset Press (ISBN 0-88029-151-6) with a Foreward by Percy Foreman.

The object of cross-examination is to test the truth of statements of a witness made on direct examination; to sift, modify, or explain what has been said; and to weaken, disprove or destroy the case of your adversary.

Good cross-examination is the result of thorough preparation and is most effective when based upon knowledge of the legal and factual issues involved in a trial.

Wichita Falls, 1949

I was privileged to visit with and hear Jake Ehrlich, the renowned San Francisco attorney, at a meeting of the Wichita Falls Bar Association in 1949. The famous Hollywood attorney Jerry Geisler5 (who represented Errol Flynn, Charlie Chaplin, Robert Mitchum, and numerous other Hollywood celebrities) also spoke to us. As a young fledgling lawyer eager for knowledge, I was literally mesmerized by their presence!

Quit While You’re Ahead: Don’t Ask for an Explanation

Jake Ehrlich, among other stories, related the following: A few years ago in a California courtroom, a personal injury suit was being tried. The plaintiff was contending he had been physically and financially injured as a result of an accident. Cross-examination from the defendant’s eager young attorney went like this:

Q: Did you, at the time of the accident, when you were asked if you were hurt, reply that you were not?
A: Yes, sir, I did.

Oops! Instead of stopping there, our young and eager hero was not satisfied.

Q: Well, sir, why have you been testifying all morning that you were hurt?
A: Well, Mr. Lawyer, you see it was like this. I was driving my finest horse and buggy along the road, when along comes your client sputtering along in one of those new-fangled automobiles and knocks us in the ditch. You never saw such a mess in all your life! I was lying flat on my back with my right leg broken. My buggy was in shambles, completely wrecked. Your client gets out of his car, looks at us, and sees my poor horse is suffering and has a broken leg. He rushes back to his automobile, gets a big old pistol, rushes back and shoots my horse in the head . . . Blam! Then he comes up to me and says, “How about you? Are you hurt?”

Cutting the House Edge6

Cross-Examination

When I was licensed on May 10, 1949, if I could have had the benefit of Mark Daniel’s paper “Cutting the House Edge—Cross-Examination,” delivered at Rusty Duncan, June 12, 2014, I need not have spent so many hours sitting in the Atticus Finch balcony watching “how to do it” from older, more experienced lawyers, would not have had to dig from scratch ideas on cross-examination.

Mark’s paper, with the Crawford update, literally covers the waterfront. He detailed the importance of investigating everything possible about the adverse witness—the witness for the prosecution, if you will. If you did not attend the 2014 Rusty Duncan and do not have a copy of this outstanding presentation, I urge you to get in touch with the home office and get one.

Conclusion

In the first part of this paper I mentioned the value, the importance, of investigating the adverse witness. I lamented further: Through these many years of my career I have been amazed that all too many attorneys, both prosecutors and defense counsel, almost frantically take copious notes of the direct testimony of a witness. Then, when the witness is passed for cross they stumble willy-nilly through their notes with all sorts of senseless, irrelevant questions, often raising their voice in thunderous volume hoping to catch the witness off guard, sometimes even repeating the direct testimony, to the confusion of the jury, gaining nothing positive for their side.

Likewise, Mark Daniel on page 1 says: Most cross-examinations are conducted without a great deal of prior preparation or thought. Far too often, cross-examination consists of a number of unplanned questions without purpose that often fill gaps in the prosecution, repeat direct testimony, and results in an argument with the witness.”

’Nuf said!

Notes

1. State of Texas vs. Barry Gray: 35 years in TDC (no appeal) 166th District Court (1970), Judge Jim Barlow presiding, Warren Burnet and Emmett Rahm, defense counsel, Ted Butler and Charles D. (Charlie) Butts, prosecutors.

2. Shirley W. Butts: Senior Justice, Texas 4th Court of Appeals, Honorary Member TCDLA, Member SABA Hall of Fame, received the Judge Sarah T. Hughes Award from the Women of State Bar, married to Charles D. (Charlie) Butts.

3. Criminal Trial Strategy, by Charles W. (Charlie) Tessmer, charter member of TCDLA and former President of TCDLA and NACDL, member of TCDLA Hall of Fame.

4. Jake Ehrlich (1900–1971), famous San Francisco criminal lawyer, author also of Never Plead Guilty, as well as admin of websites including www.jakeehrlich.com.

5. Jerry Geisler (1886–1962), early-Hollywood celebrity lawyer of renown, representing Errol Flynn, Charlie Chaplin, Robert Mitchum, and many other high-profile Hollywood celebrities.

6. Mark G. Daniel, Fort Worth firm of Evans, Daniel, Moore & Evans, President of Texas Criminal Defense Lawyers Association 2002–2003.