Cross Examination: Why Pigs Get Fat & Hogs Get Slaughtered
Cross-examination is often considered by many to be an art. When it comes to strategy, sometimes all you need is a little common sense. We all have heard the old saying, “Pigs get fat and hogs get slaughtered”, but what’s that got to do with cross-examination? Greed can be a vice and a weakness even when it comes to cross-examination. You have just wrestled a concession from a difficult witness that you never thought you would receive and instead of being satisfied with what you have, you give into temptation and try to improve on your answer. Instead of getting better, the witness retracts the answer or drops a bomb on you. The lesson to learn is to be satisfied with what you have, especially when dealing with a difficult witness. One way to deal with such witnesses is to avoid chew off too much at one time or trying to hit a home run with one question. It is best to move ahead slowly. First anchor the witness early on with broad principles and then move ahead slowly with short direct fact based questions to make your point. Leaving yourself an escape route is important. You should structure your cross so you have somewhere worthwhile to go regardless of the answer. For example, lets say that you are questioning a police officer about matters left out of his report. You might first anchor him by asking the following:
Q. And do you feel that your report, Defendant’s Exhibit A, accurately states what you viewed there that evening?
Q. Did you leave anything out of significance?
A. Not that I can recall, no.
Q. As part of your training, you have been instructed to put anything of significance in your report?
A. That I can recall, yes.
Q. While your report might not include every last detail of the incident, you would not ommit any significant detail you would likely be called upon to testify about?
A. That’s correct.
Q. That is because you could be called upon to testify weeks or months later about an event?
Q. You have made literally hundred of reports over the course of your career?
Q. You know that someone such as myself will likely question you about the events covered in your report?
Q. You are a professional?
Q. As a result you want to make sure your report is complete?
Q. You want to make sure your report is accurate?
Q. in this particular instance, if there were injuries to the defendant you would note those in your report?
Q. When a situation like that arises, you would try to fully and accurately outline any force used by officers while you were there?
Q. Prosecutors rely upon your report for purposes of making decisions on whether to charge someone with a crime?
Q. Your report often forms the factual basis for criminal charges being filed?
Q. Courts rely upon your investigation in deciding the fate of a person accused of wrongdoing?
Q. If the officers there at the scene did anything inappropriate, would you note that in your report?
A. Yes, I would.
Q. If it rose to the level that you thought it potentially could be a criminal matter, would you refer that either to the prosecutor or internal affairs?
A. Criminal matter as far as what?
Q. Any conduct by the police officers?
Q. If force was required which could have resulted in injury to a defendant, you would note that in your report?
Q. Do you know, were there any photographs taken there of either the defendant or any of the officers?
A. I did not, no.
Q. Did you see anyone take any?
A. I didn’t see anyone else take any.
Q. And in terms of notes, did you make any particular notes or anything that we haven’t discussed?
At this point, the officer has generally conceded the importance and significance of his report being complete and accurate. If he refuses to make such concessions, you can hammer on how little he cares about being a professional and cares little for being accurate in matters involving the liberty of a citizen. Maybe you have evidence which establishes significant injuries to the Defendant such as a booking photo. You may well be better off, leaving the testimony alone… You could ask one question to many and signal to the officer where his weakness lies. Perhaps he would claim that the Defendant fell or come up with some other explanantion. Sometimes the best points made are those reserved for closing argument when all the witnesses have already testified and their story cannot be altered.
Remember that: “Greed is a bottomless pit which exhausts the person in an endless effort to satisfy the need without ever reaching satisfaction.” Erich Fromm. Don’t be that guy or you could end up getting slaughtered at trial next time you ask one question too many.