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Sunday, December 26, 2010

Co-opting their witnesses to your case: your argument is your cross-examination

Memorable cross-examination is a fusion of an advocate’s passions: a passion to live a life made richer by absorbing and applying the lives of others; a passion to understand the law; and, a passion to capture the minds of audiences by taking them -through the medium of the target witness- into the advocate’s narrative, exquisitely blending that law and the necessary facts of life.

Readily forgettable cross–examination is the all to common approach of an unsubtle verbal attack upon the witness. There is an assumption that the audiences, including judge, jurors, and media, will be impressed by the battering ram technique: the mere sight of a witness being distressed by the process is taken as success. The problem with this approach is that it ignores the necessity for the cross-examiner to have the audiences adopt the cross-examiner’s case narrative. The undermining of an opponent witness’s credibility may be a means to that end but as an end in itself it is inadequate.

A witness reduced to tears may be a sign of cross-examination failure or success. If the audiences are empathising with that witness then the cross has failed. The tears have diverted the audience from the narrative to the witness. If, however, the audience now believes in the cross-examiner’s story, and sees the tears as being the waters of contrition, then the advocate has won.

From an advocate’s point of view the role of the witness in cross is to be the amplifier of the advocate’s persuasive narrative. The advocate puts their argument, disguised as questions, to the target witness. That witness’s verbal and non -verbal responses should confirm the strength of that argument in the decision audiences’ minds. The sweetest point for the advocate is when it no longer matters what the target witness answers. If they agree with the question then that confirms the audience perspective. If they disagree or prevaricate then this confirms the audience opinion that the witness lacks credibility.

The Scenario

As a vehicle for explaining and applying an approach to cross-examination let us take a scenario in which one man, A, owed another man V a debt. When asked at a bar by V to pay, A refuses and V decides to persuade A otherwise. To that end V and an associate W, arm themselves with bats and go looking for A on V’s motor bike.

V and W see A riding on his motorbike. A sees them, stops and gets off his bike. V and W do likewise. They approach A and beat him. However, A has a large knife under his motorbike seat. He gets the knife. He stabs V twice in the chest causing serious injury. He also stabs W in the upper back.

A admits the stabbing but raises self-defence. The onus is on A, on the balance of probabilities, to show that he believed at the time that his stabbing of V and W was necessary to defend himself and that it was a reasonable response in the circumstances. It follows both that the defence cross-examination of V and W must explore ‘self-defence’ and that A will give evidence – thus allowing the prosecutor to cross-examine him.

How to Prepare and Perform

For the defence advocate the task in cross-examination is to persuade the audience that the ‘self-defence’ claim is credible. If successful then A may be able to show the court when he gives evidence that he believed at the time that his repeated use of the knife was necessary. Of course, his following cross-examination by the prosecutor may destroy that interpretation. Preparation is the key – for both sides.

A cross-examiner should, whenever possible (and that’s often), co-opt the witness to advance the cross-examiner’s narrative. The way to achieve this is for the cross-examiner to locate a neutral time and place – a back story- and then incrementally advance the story line showing, question by question, its plausibility.

A defence who is instructed by their client to ‘make them prove it’ and who deliberately avoids obtaining any detail from their client is often much assisted by a prosecutor’s failure to adequately develop their story on direct. That failure means there are gaps in the story – so that the audiences and the defence are free to insert new detail as it is ‘created’ during the cross-examination.

A defence is also assisted by the prosecutor’s failure to recognise and minimise the weaknesses in their witnesses. Such failure allows the defence to focus upon and magnify the import of these weaknesses during cross-examination.

Suppose that the prosecutor has lead the story as recounted above, but failed to spend time both on the full conversation when A refused to pay, and upon visualising the location where the incident occurred, other than to say that it occurred on the side of a road at night. Here is a sample of cross-examination of V by the defence that is built upon that foundation of prosecutorial neglect.

Topic heading: I’ll be exploring the chat at the bar, your riding around on the bike, and the fight.

Q. You, and W and A had met at the bar a couple of hours before the incident?
Q: A arrived there after you and W?
Q: So you and W were ahead of him with the drinks?
Q: And his arrival reminded you that he owed you money?
Q: Money that you’d asked him to repay before?
Q: So you went up to him?
Q: You asked him for the money?
Q: And he didn’t give it to you?
Q: So you decided that he needed persuading or your money was gone?
Q: Because ‘being nice’ hadn’t got you your money?
Q: Being ‘less nice’ might require a bit of a threat?
Q: And the bats, you thought, would do that?
Q: You and W picked up a couple of bats?
Q: So the two of you, with those bats, rode around on your bike?
Q: And, being lucky, you saw A?
Q: On his bike?
Q: Alone?
Q: Without a bat?
Q: And he saw you?
Q; Stopped?
Q: Got off his bike?
Q: You got off your bike?
Q: Both of you?
Q: Bike engine off?
Q: Each holding a bat?
Q: Two to one?
Q: Seemed perfect?
Q: He went back to his bike?
Q: Lifted the seat?
Q: Did you think he’s getting the money?
Q: You go up close?
Q: Both of you?
Q: Each with a bat?
Q: He pulled out a knife?
Q: Not so perfect anymore?
Q: He’s not getting money out?
Q: He needed more persuading?
Q: The two of you advanced?
Q: You didn’t go back to your bike?
Q: Two bats to one knife?
Q: Should have been easy?
Q: But he put up a fight?
Q: And your luck ran out ?

Let’s suppose that the defence advocate is careful to build a complete picture on the direct of A, a picture that reflects the above cross-examination. Now it’s the turn of the prosecutor to cross-examine A. The ‘back story’ makes use of the bikes and the money.

Topic heading: I’ll be asking you about your thoughts.

Q: Have you paid V the money yet?
Q: The night at the bar V’s demand for the money was clear?
Q: And your refusal was clear too?
Q: So you think the money was yours?
Q: You earned it?
Q: Anyway, as you told us, you saw both V and W on W’s bike later that evening?
Q: Each of them holding a bat?
Q: And they followed you?
Q: And you were alone on your bike?
Q: Make you think about your safety?
Q: Office Harley told us that both bikes were the same engine size. You agree with him?
Q: So, if you wanted to, you could have opened up the throttle?
Q: And ‘left them for dead’?
Q: But you didn’t open up the throttle?
Q: You closed it?
Q: Switched off the ignition?
Q: Got off the bike?
Q: Leaving the knife handy in the compartment under the seat?
Q: Drew them up close?
Q: Let them think they were going to get theirs?
Q: Got the knife out?
Q: This one – exhibit X?
Q: Thrust it into V?
Q: Pulled it out?
Q: Gave him and W quite a shock?
Q: Pulled them up?
Q: V couldn’t swing that bat anymore?
Q: You stabbed him again?
Q: W holds up V?
Q: The bats are on the ground?
Q: Both of them?
Q: You get W too?
Q: From the back?
Q: So you stabbed him in the back?
Q: When he was holding V?
Q: You reckon they earned it?
Q: Lucky they weren’t left for dead?

The preparation approach in both these crosses has been to ask, “How can the target witness’s story be ‘fitted’ to our story?” The questions then integrate the bits of their story that mesh with ours, as well as explaining/exposing/ridiculing the contrary aspects.

The delivery of the cross questions reflects the following useful guidelines to cross-examination:
• Be mindful of your audience/s;
• Be nice as long as possible;
• Be clear as to what you mean;
• Be incremental, building from a sure foundation;
• Be helpful to the audiences by using topics to share your structure;
• Be a user of closed questions so as to get the shortest of answers: ‘yes’, ‘no’, or ‘don’t know/recall/remember’;
• Be focussed so that the target and the audience are drawn ‘into and through’ your story;
• Be manipulative so that your story is highlighted where you want it to be; and,
• Be a persuader so that it is your story, as embedded in your questions, that stays in the audiences’ minds because they ‘knew’ the right answers even before the witness uttered the right or wrong answer.

Message or Messenger: must one prevail?

While many advocates aspire to be charismatic, and thus deserving of attention, most of us must make do with being nothing out of the ordinary. It follows that instructions to make you, the advocate, the centre of attention are counter-productive.

Rather more useful is, ‘how to make good use of those talents we’ve got’, especially when the target witness has been brain washed by popular culture to expect that cross-examination will be a ‘battle of wills’ and a ‘stare down’.

For those of us not endowed with film star looks and the physical attributes of sport heroes and heroines the following pointers may be useful:

1. Forget about looking directly at the target. Give yourself a whole lot more mental space by looking into blank space – such as a blank wall. Then engage with the target by listening to and absorbing their reactions to what you are saying. Glance at them to confirm your interpretation.

2. It’s quite common for a cross-examiner to be ‘fuelled’ by the target’s answers. A result of that ‘fuelling’ is for the time interval between the target’s answer and the next question to get shorter and shorter to the point where there seems to be no gap. This is bad for the cross-examiner. If you have this habit then position your feet so that you swivel on your hips to face the target: when you get too excited you can look down and away. You need the time between last answer and your next question to reflect on what the answer means so take a sip of water, look into the blank wall, think, and then open mouth.

3. Be slow.

4. Forget that so-called rule, “Don’t ask a question to which you don’t know the answer”. Cross-examination, the sort that has you humming, requires the ability to seize unexpected opportunities and to manage risk. So you’ll ask questions to which you don’t know the answer when it’s your assessment that the worst possible answer will leave you no worse off. It may, of course, leave you much better off. And when might this happen? Three examples follow.

The first is when your case has come apart. It’s a lost cause; however, go fishing on cross-examination and a miracle might occur. The miracle cannot occur if you do nothing.

The second is a scouting exercise to decide whether to stay on the known track or follow a diversion. The method is to ask a question or two (incremental and requiring ‘yes’, ‘no’ or ‘don't know) which allow a quick and safe retreat, or, if the answers are good to take the new path.

The third, final example is when your case has gone so well, or the witness being cross-examined has gone so badly, that asking the most open question, ‘Why?, will draw an answer that, no matter what it is, will confirm for the audience your assessment of this witness. As mentioned above, there is great satisfaction when you allow the audience to confirm by itself, listening to the hapless witness, the preferential attractiveness of your case narrative.

Hugh Selby ©
December 2010.

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