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Thursday, March 31, 2011

The Price of a Schadenfreude Approach to Cross-examination

The direct has gone well enough. The advocate smiles at their witness and sits down. The witness thinks, “So far so good. I hope the cross is short”, sips from the glass of water, idly picks a bit of lint off their clothes, and waits.

“Your witness” and the cross-examiner is out of their seat, rising quickly, eyes fixed on the target, questions at the ready.

And from the first question it is a frontal attack: “ I put it to you’, “Isn’t it the case that?”, “Do you really expect anyone?”, “Is this another lie?”, “So which one is true, or are they both false?”. The witness wilts. Ah the stuff of movie legends. Pity that for some advocates the crude artifices of theatre become their somewhat limited tools of trade.

The craft of fine cross-examination has been discussed in earlier articles on this blog (click on cross- examination in the subject index to the right of this article for quick access) and, I hope, will be further discussed by future contributions. But this short piece is about self-control, about keeping the lid on that innate ability and desire to use the courtroom and the other side’s witness as an excuse to take oneself and everyone else in the court room on a roman holiday, to take pleasure from the misfortune of others – Schadenfreude, as the Germans call it.

Cross-examination is the only sadistic public spectacle left in our legal system. We’ve done away with public dismemberings, severed heads on spikes, hangings and whippings. To see those now we must go to Pirates of the Caribbean, True Grit, and movies classified as bountiful in sex and violence.

And therein lies an unfortunate truth: the civilising aspects of modern society are about as thin as our new nano technology. Most of us love a bit of pain being experienced by the deserving, some of us love a lot of it – the more so when it is being justifiably inflicted. And where better to get that justification, as an inflictor or a voyeur, than as an agent of the justice system: a bit of police or prison brutality, a ‘hang em high’ journalist, as a cross-examiner (the modern secular world’s equivalent of the mediaeval inquisition), or as the seeing or reading audience of a trial.

As thin as our civilising decency may be, nevertheless at some point revulsion sets in: so far but no further. No doubt some readers can now recall that strange experience of being engrossed by a destructive cross-examination which then, in the manner of a changing tide, turned around so that the witness became an object of sympathy and the advocate the focus of revulsion.

Here are some thoughts about what happened to achieve that miracle of snatching sour defeat from sweet success. Your thoughts too by way of comments on this blog will be welcome.

Typically there are clear signs in the cross-examiner’s technique and style of a coming reversal of fortune. These include that the advocate’s voice speed is fast, that the pitch of the voice rises (as it does with a person who is becoming hysterical), that the gap between the witness’ last answer and the next question reduces to nothing (so that the answer and next question bang up against each other). The overall effect is that the examiner appears to become an out of control bully.

But what is it that fuels this spectacle? Asking poorly worded, aggressive questions (of the kind noted at the start of this article) may be a prelude to this outcome; however, such questions are not causative of it. Rather that outcome seems to follow the advocate locking eye contact with the target witness. Some claim that such eye contact builds tension.

Certain it is that something happens through that eye to eye focus, though I’d like a properly researched explanation rather than something drawn from myths and legends.

Breaking the eye contact is essential for the advocate to re-assert self control so as to bring the voice speed and pitch down, to leave proper gaps between answer and question, to make effective use of silence, and to end any incipient sympathy for the target witness.

A simple method to ensure the ability to break the eye contact is for the advocate to position their feet pointing away from the target witness. This ensures that when the advocate has eye contact with the target that the advocate has swivelled on their hip. When aware that their voice is changing the advocate can then rotate their upper body away from the target and line it up with their feet. We’ve experimented with this approach and it works: the advocate slows down, voice returns to normal, audience antagonism to the advocate goes away.

We teach ‘control’ as an essential aspect of the dynamic between an advocate and a witness. Perhaps we need to make clear that effective control starts with self control.

The witness is waiting, the picked bit of lint lies on the floor. When the advocate is ready, physically and mentally, then let a cross begin where rather than running full on at the witness the advocate is guided by the wisdom that tis best to kill with kindness.

Hugh Selby © March, 2011.

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