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Friday, March 11, 2011

Teaching Cross Indoctrination Instead of Cross Examination

Michael Carr is an Assistant United States Attorney in the Southern District of Illinois and an adjunct professor of law in the trial advocacy program at Southern Illinois University School of Law. Students love him, and the following article shows why.

I tell my students that "cross-examination" generally has nothing to do with asking questions of a witness at trial and that in a sense, the use of the term "cross-examination" in a trial skills class causes confusion. I believe that the word "examination" is a misnomer because it inaccurately implies that questioning is about to occur during "cross-examination."  So, I tell the students to think of this segment of a trial as their opportunity at "cross- indoctrination."  We are indoctrinating the jury, through the use of the other party's witness, about our theory of the case (which we developed through the case analysis).  And, the word "cross" does not mean that we need to be cross with the witness. We are just taking a "counter" position.

During the indoctrination we are making statements—not asking questions-- and getting the witness to agree with us.  The statements generally are irrefutable and even if the witness does take a counter position, we can show that the witness is wrong. To add drama and effect and repetition, we break those statements down into single-fact leading statements which telegraph, sometimes subtly and sometimes bluntly with the use of tags, the point we are trying to make.  Done correctly, the fact-finder should be able to surmise what our position is early on in the indoctrination and be left with the impression that the witness is either wrong if he or she disagrees with us  or  that we are setting the witness up to prove that he or she is wrong.

As an example of this method I use one of my wife's cross examination techniques:

        You are late

        You knew you were going to be late

        You said you would be on time

        You told me you would not be late

        You didn't call

        You have a phone

        It is a smart phone

        You don't even have to dial my number on a smart phone

        You just press the button on your smart phone

        On your smart phone, All you have to do is press a button and say call Nancy. . .

Having demonstrated my wife's technique, I conduct a drill at the beginning of class using a stapler as an example.  I suggested that in a will contest case a secretary, who produced her file which contained a stapled will, had taken the position that a piece of paper, not stapled to the copy  in her file, was supposed to be part of the document which was actually executed.  We then use the stapler, as an example of how to use single fact, leading statements, to indoctrinate the jury about our position that the paper was not part of the executed will.  Each student takes a turn at making three or four indoctrination statements before passing to the next student:

        Your office has a stapler

        You know how to use it

        It does not require special training to operate

        You just stack all of the papers together and push down on it.

        And it staples.

        It staples them together. . . . 

The questions all imply that the stapled copy was in fact the real document, that the office procedure was to staple the document together so that there wouldn't be any questions later about it and that the piece of paper which was not attached was not part of the will.

        I then have each person take a shot at the cross assignment for the week.  I stop the examination immediately when a question is asked, and I have the student make a statement in place of the question. Once it is apparent that the student understands and is making statements instead of asking questions, we moved on to the next student.

    Both my students and I enjoy these exercises.


  1. I shall start using Michael's 'cross-indoctrination' label immediately. I tell my student advocates to see the target witness as just a necessary transmission tower between the advocate and the decision maker. The argument is broken up into its incremental bits. Each bit is then sent to the tower which adds a tag, 'yes', 'no', 'don't know/recall/remember' and sends it on.

    The best bit is when the decision maker adopts (aka 'answers') the instant statement BEFORE the target witness says anything. That's just beautiful because the audience has now persuaded itself.

  2. I, too, intend to adopt the label immediately. It provides a clarity of expression I've struggled to find in my own teaching. I always tell my students to consider the witness as a tool in their hands to help transmit their story, case theory, and theme to the fact-finder--similar to Hugh's transmission tower metaphor. Some of them grasp the metaphor, and others do not.

    But the phrase "cross indoctrination" helps explain much more clearly what we are trying to accomplish on cross. And I'm not sure, but I imagine the term might help students avoid asking those awful open-ended questions that sabotage a cross, such as "what were you thinking?" or "why did you do it?" When we are indoctrinating, rather than examining, we provide, rather than elicit, facts.