Looking Good and the Art of Cross-Examination
Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it. – John Henry Wigmore
There are a number strategies out there regarding cross-examination. One of the more advanced theories of cross-examination consists of the simple objective of “looking good.” This theory of cross-examination is touted by Terry MacCarthy in his book MacCarthy on Cross-Examination, American Bar Association, 2007. His book outlines a simple process which allows the cross-examiner to look good while exercising maximum control over the witness through the use of short declarative one fact statements which require the witness to answer “yes”, “no”, or “I don’t recall/know”. The essential strategy, begins by defining the area of questioning in the following way:
Q. I am going to ask you some questions about [the topic in question]. Understand?
Once the precise area of questioning has been defined, the questioning begins. Below is a short example of this form of questioning:
Q. I am going to ask you some questions about the car that drove past you that night. Understand?
Q. It was a Ford?
Q. Red color?
Q. Male driver?
Terry MacCarthy demonstrates how this simple format confines the witness and allows you to control the course of examination. In addition, the use of the short one fact questions allows you to be the storyteller and prevents the witness from taking control of the examination. Even if you are not scoring any particular key points, this format of questioning will allow you to look good as an advocate and speak directly to the jury. He suggest that you deliver the questions to the jury and look to the members of the jury panel instead of focusing your attention on the witness. This allows you to build report and credibility with the jury the process of questioning the witness. Throughout the course of his book, MacCarthy covers various nuances of the basic system. However, the anatomy of the examination always follows the format outlined above. in this book, MacCarthy emphasizes the need to frequently define each new area of questioning through the basic setup question: I am going to ask you some questions about [the topic in question]. Understand? If the witness fails to cooperate answer the question, they will look bad. The attorney on cross examination, can simply come back to the short leading question and ask for example:
Q. Mr. Smith, I am asking you questions about the car that drove past you that night. Understand?
Q. The car was red?
If the witness quarrels with the examiner, the witness looks bad while the questioner continues to look good because there is no excuse for failing to give a straight answer to such a short and direct question. Terry MacCarthy’s method of cross-examination is covered in a series of YouTube videos. The link to the videos is listed below:
The lectures by Mr. MacCarthy took place at Case Western University School of Law over the course of a week. As a federal public defender Mr. MacCarthy knows how important it is to look good since oftentimes as a criminal defense attorney you have little to work with in defending your client. If you are interested in purchasing the book, then click the title above and you will be redirected to Amazon where you can purchase the book for approximately $80. I trust you will find this method of cross examination both easy to employ and effective to use with all sorts of witnesses.
Posted on December 1, 2014, in cross-examination, Trial Advocacy, Uncategorized and tagged Art of Cross Examination, Cross-examination, MacCarthy on Cross-Examination. Bookmark the permalink. Leave a comment.