cross examination preparation and techniques · the importance of cross‐examination, united...

Cross Examination Preparation and

Techniques

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John A. SnowPrince Yeates

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Cross Examination Preparation and

Techniques

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CROSS‐EXAMINATION

John A. SnowPrince, Yeates & Geldzahler

15 West South Temple, Suite 1700Salt Lake City, Utah 84101

Main No. (801) 524-1000Direct (801) 524-1073

E-mail [email protected] www.princeyeates.com

1

Purpose of Cross‐Examination

Cross‐Examiner’s Syllogism:

The purpose of trial is the discovery of truth.

Cross‐examination is the best engine for the discovery of truth.

Therefore, the purpose of a trial is cross‐examination.

Larry S. Pozner and Roger J. Dodd, Cross‐Examination: Science and Techniques (1993) (“Pozner & Dodd”)

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The importance of cross‐examination, United States Supreme Court in Davis v. Alaska, 415 U.S. 308 (U.S. 1974):

Cross‐examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross‐examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross‐examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

As with all evidence, the evidence from cross‐examination should serve some beneficial purpose further the theme of the case

The primary purposes or goals of cross‐examination include:

• Establish Support for Examiner’s Theme or Theory of the Case

• Establish Credibility of Examiner’s Witnesses

• Undermine Support of Opponent’s Theme or Theory of the Case

• Undermine Credibility of Opposing Witness – Impeachment

4

Reasons to Cross‐Examine

Reason 1: Obtain Supporting Testimony

Reason 2: Show the Witness Is Mistaken

Reason 3: Undermining Motive

Reason 4: Show Bias

Reason 5: Show Incompetent or Unqualified

Reason 6: Gamesmanship

Reason 7: Show the Witness Unlikable

Reason 8: Show Inconsistency

Reason 9: Maximize

Reason 10: Show Lack of Truthfulness

Reason To Cross

Proof of any favorable point through the opponent’s witnesses makes the point better and stronger than making the same point through the examiner’s own witnesses.

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HAVE A PLAN

When preparing for cross‐examination of an adverse witness, the attorney must define the purpose or purposes, or fact or facts, that can be proved or established through the witness.

Because cross‐examination allows the adverse witness to continue to tell his or her story, do not proceed with cross‐examination if nothing tangible or significant can be achieved

HAVE A PURPOSE

Even simple impeachment of a witness should be accomplished in a manner consistent with the theory or theme of the case.

If the proposed impeachment is unrelated to your theme or theory of the case, i.e. the impeachment does not substantively advance your case, and is being used to attack credibility only, exercise caution in proceeding with the impeachment.

6

BE CAREFUL

The best part of one’s direct examination is often cross by the opponent.

Evidentiary Rules Regarding Cross‐Examination

7

Fed. R. Evid. 607. Who May Impeach

Any party, including the party that called the witness, may attack the witness's credibility

Fed. R. Evid. 608. Evidence of Character and Conduct of Witness

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

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Fed. R. Evid. 608. Evidence of Character and Conduct of Witness

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross‐examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or (2) another witness whose character the witness being cross‐

examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self‐incrimination for testimony that relates only to the witness's character for truthfulness.

Fed. R. Evid. 609. Impeachment by Evidence of Conviction of Crime

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:(1) for a crime that, in the convicting jurisdiction, was

punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence

must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

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Rule 609 (Cont.)

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable

written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Fed. R. Evid. 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;(2) avoid wasting time; and(3) protect witnesses from harassment or

undue embarrassment.

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Fed. R. Evid. 611 Mode and Order of Examining Witnesses and Presenting Evid. (cont.)

(b) Scope of Cross‐Examination. Cross‐examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:(1) on cross‐examination; and (2) when a party calls a hostile witness, an adverse party, or

a witnessidentified with an adverse party.

Fed. R. Evid. 613. Witness’s Prior Statement

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.

(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

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Fed. R. Evid. 801. Definitions That Apply to This Article; Exclusions from Hearsay

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant‐Witness's Prior Statement. The declarant testifies and is subject to crossexamination about a prior statement, and the statement: (A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (C) identifies a person as someone the declarant perceived earlier.

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:…

(2) An Opposing Party's Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party's coconspirator during and in furtherance of the conspiracy.

Fed. R. Evid. 801. Definitions That Apply to This Article; Exclusions from Hearsay (Cont.)

12

Collateral Evidence Rule

Taylor v. National R. Passenger Corp., 920 F.2d 1372 (7th Cir. Ind. 1990) (“The rule … is that a witness may not be impeached by contradiction as to collateral or irrelevant matters elicited on cross‐examination…. A matter is collateral if the impeaching fact could not have been introduced into evidence for any purpose other than contradiction.”).

Mannhalt v. Reed, 847 F.2d 576, 581 (9th Cir. 1988) (‘[A] trial court may permit a cross‐examiner to inquire into collateral matters to test the witness' credibility, but the cross‐examiner may not introduce evidence to show the answers are false.”)

State v. Riley, 2010 Tenn. Crim. App. LEXIS 26, 51‐52 (Tenn. Crim. App. 2010) (“[T]here can be no extrinsic proof of collateral matters, and counsel must accept the witness' response, even if it is a denial that counsel could disprove.”).

Jezdik v. State, 121 Nev. 129, 137‐38 (Nev. 2005) (“The … rule is to prevent the cross‐examiner from injecting collateral matters … by setting the witness up and then allowing the very party that injected the matter into the trial to impeach the witness's credibility with extrinsic evidence relating to those collateral matters….”).

The Art of Cross‐Examination

1. Start and end on a high note.

2. Show bias, interest or motive early in cross‐examination.

3. Start with easiest or simplest impeachment first.

4. Be brief.

5. Short questions, plain words.

6. Never ask a question without knowing the answer‐except.....

7. Listen to the answer.

8. Do not argue with the witness.

9. Do not permit the witness to explain; do not ask “why.”

10. Do not have a witness repeat prior direct testimony

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The Art (Cont.)

11. Avoid one question too many.12. Save the explanation for closing – if you must.13. Lay the ground work early for the cross‐examination.14. Obtain favor testimony from the witness.15. Use a style that fits your personality and the case.16. Use leading questions – control.17. One fact per question.18. Infusion of emotion.19. Avoid use of a chronological order during cross‐examination.20. Avoid “risky” areas unless examiner has control of the witness.

10 Sins of Cross‐Examination

(1) simply re‐hashing the direct examination,

(2) not having a specific purpose in mind for each question,

(3) not stopping while the going is still good,

(4) failing to keep the questions simple,

(5) beating up a witness who has not given "permission" to do so,

(6) impeaching a witness over a silly inconsistency,

(7) flubbing the technique of impeachment,

(8) using the "Mexican jumping bean" 80 approach,

(9) lack of pace, and

(10) failing to have a graceful exit strategy when the cross‐examination inevitably goes south.

14

PREPARATION

STYLE

Be mild with the mild‐‐shrewd with the crafty‐‐confiding with the honest‐‐merciful to the young, the frail, or the fearful‐‐rough to the ruffian, and a thunderbolt to the liar. But in all this never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

1 David Paul Brown, The Forum; Or, Forty Years Full Practice At The Philadelphia Bar, lxxviii (1856).

15

Expert Cross‐Examination

You should generally begin and end your cross‐examination with your strongest points. Otherwise, use the following sequence:

‐ Practically every opposing expert will have opinions that support your case.

‐ This corroborating testimony will have a stronger impact than the same testimony from your side. Therefore, start your examination with the areas or themes that will allow you to turn the opposing expert into your witness. At the beginning, your opposing expert will be less hostile.

EXPERT CROSS‐EXAMINATION

‐ Next, dilute the opposing expert's opinions by seeking agreement regarding possible alternative explanations that favor your theories. A jury will often give credit to a mere possibility, even if this possibility may not be probable.

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EXPERT CROSS‐EXAMINATION

‐ After the corroborative portion of the cross‐examination, ask the more destructive and critical questions. However, do not be aggressive, as this might cause the jury to be sympathetic toward the expert.

‐ You should attack an expert only when you believe the jury will see the witness as being unfair, arrogant, or disrespectful of the truth. Even then, you must never cross the lines between tough and mean or confident and arrogant.

EXPERT CROSS ‐ IMPEACHMENT

Areas of potential cross‐examination and impeachment of any expert witness include:

‐ Affiliations of Witness ‐ Present And Past

‐ Relationship With Party or Counsel

‐ Credentials of the Witness

‐ Bias of the Witness In Favor of the Party or Position.

‐ Limit Scope of the Witness’ Area of Expertise and Knowledge.

‐ Prior Statements That Are Inconsistent With Trial Testimony. The prior inconsistent statements can be found not only in depositions, but in records or statements to others.

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‐ The Testimony Is Based on Unreliable or Deficient Testing or Examination, or Review of Records.

‐ Testimony Based on Subjective History/Information Given by party

‐ The Assumptions are Incorrect Based Upon the Objective Facts.

‐ obtain Favorable Testimony the Witness is Willing to Provide.

‐ Minimize the Area of Conflict.

‐ Obtain Favorable Information of Opposing Expert

‐ Obtain Critical Information About Opposition


‐ Challenge or Explain Omissions by Expert

‐ Challenge or Explain Substitute Information– Change Assumptions– Vary The Facts

‐ Challenge or Explain Dependence on Other Testimony

‐ Challenge or Explain Technique of Theory

‐ Identify Information the Witness Did Not Have or Consider

‐ Use Learned Treatises (Fed. R. Evid. 803 (18))

‐ Fees

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INCONSISTENT STATEMENT:

• Uncover the inconsistency (in documents or deposition)

• Physically prepare the cross‐examination on the inconsistency

• Establish the current version of the testimony to be impeached

• Tie the witness to the current version of the fact to be impeached

• Equate or translate (when the differences are not clear)

• Expose the inconsistent statement• Maximize the damage or effect

MAXIMIZE IMPEACHMENT

The impeachment can be made personal to the jury by stating in the question to the witness that testimony given the jury was not truthful or honest, or at least inconsistent.

The inconsistency can be broken down into subparts and the witness asked about each of the subparts. For example, if a witness testifies in a deposition that he had not seen a document, but at trial admits receipt and review of the document, then the witness can be asked a series of questions about what was not disclosed in the deposition.

19

Control of the Witness

“That did not answer my questions, did it?”“So your answer is “yes”” “My question was…”“If the correct answer is “yes” will you say yes?”

Offer the deal.

Explain the question can be answered “yes” or “no.”

Documents, if available, can also be used to control a witness. For example, if the desired testimony is contained in documents, then use them with the questions.

CONTROL

Do not ask for assistance from the court to instruct the witness to answer the question, unless the examiner is sure the request will be granted. However, it still has an element of weakness. Also, the judge may make a comment that can be devastating to the examiner, such as “she did answer the question.” However, the objection “non‐responsive‐move to strike” may be appropriate.

20

CONTROL

Do not start a line of questioning and abandon it without at least giving the appearance that success has been achieved. For example, even if an area of examination believed to be fertile turns out not to be, get the answer and say “Now I understand,” or obtain at least some fact or position that is consistent with the examiner’s theory of the case

CONTROL

Control of a witness does not include rudeness or contempt.

Juries do not necessarily respond well to that type of behavior. The examiner may be rude with a witness the jury actually likes or has some sympathy, and they may respond negatively to the harsh examination.

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Rule 3.1. Meritorious Claims and Contentions:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Meritorious Claims and Contentions

In re Oladiran, 2010 U.S. Dist. LEXIS 106385 (D. Ariz. 2010):

The motion concerns Judge Bolton's cancellation of a preliminary injunction hearing that was rendered moot by postponement of a trustee's sale, and her denial as moot of a motion for protective order concerning the depositions Mr. Oladiran had noticed for Atlanta. Mr. Oladiran was upset that the deponents failed to appear in Atlanta, but his frustration provided no justification for suggesting that Judge Bolton treated him unequally, favored the powerful, was a brainless coward, or was dishonorable. The motion, which sought no tangible relief, was nothing more than an intemperate assault on the integrity of the Court and a judicial officer. The motion

violated Ethical Rule 3.1.

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Rule 3.3. Candor Toward the Tribunal:

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Candor toward the Tribunal

See e.g. Hester v. Vision Airlines, Inc., 2013 U.S. Dist. LEXIS 33837 (D. Nev. 2013):

Even if Vision's representation of the April 30, 2011 termination date was true, Vision and its attorneys subsequently came to know of its falsity. By failing take reasonable remedial measures, such as correction of the statement or disclosure of the new information to this Court, Vision prevented this Court from adjudicating the whole case on the merits. Vision's self‐serving fraud by omission and failure to correct a material statement prevented the Class from fully presenting their case.

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Rule 3.3. Candor Toward the Tribunal:

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

Candor toward the Tribunal

In re Potts, 158 P.3d 418, 424 (Mont. 2007) (“Once Potts made representations to the court in the signed stipulation, the duty of candor to the tribunal as stated in Rule 3.3(a)(2), M.R.P.C., trumped any duty of confidentiality that he owed to his clients.”); DeAngelis v. Countrywide Home Loans, Inc., 437 B.R. 503, 545 (Bankr. W.D. Pa. 2010) (“It appears to the Court that counsel, with knowledge of the misleading Townsend testimony, had a duty to take some remedial action respecting it, even though that could potentially require divulging attorney‐client privileged material.”).

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Rule 3.4. Fairness to Opposing Party and Counsel:

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

Fairness to Opposing Party and Counsel

United States v. Hunter, 1995 U.S. Dist. LEXIS 158 (N.D. Ill. 1995) (“[D]efendants' attorneys removed the evidence from Hunter, Jr.'s house, thereby preventing police from recovering the boxes at a later date. At this point, Belz and Asher may have violated their ethical obligation not to "unlawfully obstruct another party's access to evidence," citing Rule 3.4(a).).

Faile v. Zarich, 2009 Conn. Super. Lexis 2406 (Conn. Super. Ct. 2009) (“Thus, while Subdivision (1), in part, concerns the preservation of and destruction of evidence, the Commentary makes it clear that Rule 3.4(1) also concerns obstructive tactics in discovery procedure, such as at a deposition, by which an attorney improperly seeks to hamper a party in its effort to obtain evidence.”).

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A lawyer shall not:

(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;


A lawyer shall not:

(c) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

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Fairness to Opposing Party and Counsel:

Baycol Steering Comm. v. Bayer Corp., 419 F.3d 794 (8th Cir. Minn. 2005) (“We hold the district court did not clearly err in finding Moll knowingly disobeyed his obligation under PTO 18 in violation of Rule 3.4(c). We believe the evidence on the record supports the district court's rejection of Moll's claim his prior relationship with Guariniello led him to believe he had Guariniello's permission to file the motion to intervene.”)

Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996) (“A leading legal ethics treatise discusses the ethical implications of communications with an adversary's expert witness. The treatise advises that: "Since existing rules of civil procedure carefully provide for limited and controlled discovery of an opposing party's expert witnesses, all other forms of contact are impliedly prohibited." Therefore, an attorney who engages in prohibited communications violates the attorney's ethical duty to obey the obligations of the tribunal.”)

Feld's Case, 815 A.2d 383 (N.H. 2002) (“These facts demonstrate that Feld's invocation of the privilege was not legitimate, but rather a bad faith effort to impede Bussiere's discovery. Such conduct violates not only Rule 3.4(d), but also Rule 3.4(c), which requires a lawyer to obey the rules of a tribunal, including Superior Court Rule 35(b)(1), which requires compliance with legitimate discovery requests.”)


A lawyer shall not:

(e) in trial, *allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, *assert personal knowledge of facts in issue except when testifying as a witness, *or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

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Rule 4.1. Truthfulness in Statements to Others.

In the course of representing a client a lawyer shall not knowingly:

(a) Make a false statement of material fact or law to a third person; or

(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 4.4 Respect for the Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

In re Oladiran, 2010 U.S. Dist. LEXIS 106385 (D. Ariz. 2010) (“The comment to Rule 4.4(a) explains that the rule seeks to protect litigants and third‐parties from unnecessary embarrassment and undue delays and burdens.”); In re White, 707 S.E.2d 411 (S.C. 2011) (Attorney violated Rule 4.4(a) by sending a letter on behalf of the church to the town manager and town attorney in which he questioned whether the town manager had a soul, saying that he has no brain and called the leadership of the town pagans and insane and pigheaded.”).

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Rule 4.4 Respect for the Rights of Third Persons

(b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

Webb v. CBS Broad., Inc., 2011 U.S. Dist. LEXIS 48881 (N.D. Ill. 2011) (“[A] lawyer who receives a document relating to the representation of the lawyer's client and knows that the document was inadvertently sent must promptly notify the sender. Ill. R. Prof. Cond. 4.4(b). The purpose of notice is to allow the sender to take protective steps.”)

EEOC v. Honda of Am. Mfg., Inc., 2008 U.S. Dist. LEXIS 15708 (S.D. Ohio 2008) (“While the applicable ethical guidelines do not prohibit ex parte contact with former employees, they do require the party initiating the contact to take every effort to avoid the unauthorized disclosure of attorney‐client communications. Thus, one court … concluded that ‘[i]n accordance with this rule, counsel must refrain from seeking, inducing or listening to the disclosure of any matter protected by the attorney‐client privilege.’”).

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