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, 2007His 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?

A.   Yes.

Q.   It was a Ford?

A.   Yes.

Q.   Red color?

A.   Yes.

Q.  Two-doors?

A.   Yes.

Q.  Male driver? 

A.   Yes.

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?

A.   Yes.

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:

Part 1:   https://www.youtube.com/watch?v=QcOkG9-TpEo&index=15&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 2:   https://www.youtube.com/watch?v=f1kTgKZuQjY&index=14&list=FLpWQuA5b8JFENHxyeOk2mZg     

Part 3:   https://www.youtube.com/watch?v=XzzvvtJEtDo&index=13&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 4:   https://www.youtube.com/watch?v=BcTTakWYlbs&index=12&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 5:   https://www.youtube.com/watch?v=V3geSkXvS7g&index=11&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 6:   https://www.youtube.com/watch?v=LTWr03VIS2E&index=10&list=FLpWQuA5b8JFENHxyeOk2mZg

Part 7:   https://www.youtube.com/watch?v=yuCF078wooo&index=9&list=FLpWQuA5b8JFENHxyeOk2mZg

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.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on December 1, 2014, in cross-examination, Trial Advocacy, Uncategorized and tagged , , . Bookmark the permalink. Leave a comment.

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