Category Archives: cross-examination
Impeccable Impeachment and the Use of Prior Convictions
“Trust is not simply a matter of truthfulness, or even constancy. It is also a matter of amity and goodwill. We trust those who have our best interests at heart, and mistrust those who seem deaf to our concerns.” Gary Hamel
What are the limitations on the use of prior convictions in challenging a witness’s credibility? When are you allowed to use them? What are you allowed to reveal? This blawg note will explore these issues. Let’s first start with the rule:
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (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.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Juvenile Convictions: Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).
Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied.
When Does the 10 Year Period Begin and End: There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998). “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.
Guilty Pleas: The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)). McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.
Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect: Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996). Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993). To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.
Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:
(1) the impeachment value of the prior crime;
(2) the point in time of the conviction and the witness’ subsequent history;
(3) the similarity between the past crime and the charged crimes;
(4) the importance of the defendant’s testimony; and
(5) the centrality of the credibility issue.
Castor, 937 F.2d at 299 n. 8; see Miller, at 171.
Impeaching Your Own Witness: Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).
Revelations Concerning the Facts Surrounding the Conviction: When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001). A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction. Id. However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible. Id.
Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.
What are the limitations on the use of prior convictions? When are you allowed to use them? What are you allowed to reveal? This note will explore these issues. Let’s first start with the rule:
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (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.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Below are some thoughts on some of the issues concerning the use and admissibility of prior convictions:
Juvenile Convictions: Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).
Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied.
When Does the 10 Year Period Begin and End: There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998). “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.
Guilty Pleas: The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)). McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.
Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect: Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996). Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993). To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.
Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:
(1) the impeachment value of the prior crime;
(2) the point in time of the conviction and the witness’ subsequent history;
(3) the similarity between the past crime and the charged crimes;
(4) the importance of the defendant’s testimony; and
(5) the centrality of the credibility issue.
Castor, 937 F.2d at 299 n. 8; see Miller, at 171.
Impeaching Your Own Witness: Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).
Revelations Concerning the Facts Surrounding the Conviction: When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001). A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction. Id. However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible. Id.
Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.
Outlining Your Questions… Is There a Better Way?
Exactly how do you want to format your questions? There are several schools of thought on this matter. I know successful attorneys that literally script out every question and every answer to the question. In this way, the attorney can visualize exactly what will take place in the courtroom. Such a format also allows someone else, such as a paralegal or another attorney, to go through the outline with the witness even if you were not available to prepare them. The downside of such an outline is that usually ends up being extremely long like a deposition transcript. Also, when you work through the testimony in that fashion you can become a little too pat and maybe even a little stale, reversed and staged.
I will typically prepare an outline starting with the witness’s qualifications and background and then work through the evidence I wish to get from the witness. Instead of questions, like the game show Jeopardy I write out only the answers. Instead of 80 page outlines, my outlines typically run 5 to 12 pages. The advantage of such a system is that you can check your outline quickly. You focus on the answer you need to get instead of the questions. I form the questions on the fly as I come to each new fact I must elicit from the witness. Your questions come across more naturally and do not seem staged or scripted since they are slightly different each time. This keeps your witness alert as well.
Initially, this will take a little extra effort. However, you will be rewarded by developing this skill of being able to formulate questions on the spot. If an objection is sustained to a question you ask, instead of staring blankly at your outline, you will rapidly formulate a new question which will hopefully obviate the objection raised.
On the top of each witness outline, I like to write the elements of my claim that the witness will help support and any evidentiary foundations that might be required of the witness and legal authority supporting the same. Another way of accomplishing the same end is to place the foundational prerequisites on a Post-it and affixed to the back of the exhibit.
You want to look organized and prepared for the jury. Your mastery of your own exhibits will go a long way in impressing the jury of your command of the case and your competency and professionalism. Need a system to keep all your witnesses and exhibits organized? Sometimes the best system is the simplest one.
I use a separate folder for each witness and each exhibit. I make sure all the folder tabs line up in a single row for the witnesses and label each witness folder with their last name, first name or, if it’s a record keeper, I use the name of the organization. By using a single row of tabs you can quickly thumb through the files without having to scan side to side. I then alphabetize the folders from A to Z.
In each witness folder, I keep a copy of the witness’s outline and a copy of any exhibits needed for the witness. This way if I need to run out and meet with a witness, I just pull their folder and run. Because of my preparation, I know I have everything in hand I need to deal with that witness.
Each exhibit is also kept in a separate tabbed folder or tabbed binder and is sequentially pre-numbered or pre-marked with a letter. The folders or tabs are then sequentially ordered just as was done with the witnesses.
I also prepare two lists, one for witnesses and one for exhibits. Witnesses are listed alphabetically with the number or letter for each exhibit to be shown to that witness listed in the adjacent column.
I create a second list with exhibits sequentially listed and all witnesses crossed reference for each exhibit. On this list I also have columns to note if an exhibit was tendered into evidence and whether it was admitted or excluded. This way you or your assistant can know exactly which exhibits need to be pulled, shown to and covered with each witness. You also can track if you need to make an offer of proof for exhibits excluded.
I outline each element of proof for my claim(s) and list the witness and exhibit which supports each separate element of the claim(s). This way you can easily respond to a motion for a directed verdict by outlining the proof which was entered through the testimony of specific witnesses and the exhibits on your shorthand list of proof.
I have successfully used this system for trials involving dozens of witnesses and hundreds of exhibits. It is simple and it works. It also keeps your table organized and uncluttered which conveys to the jury you know what you are doing.
Plotting Your Strategy: Does Your Trial Have a Theme?
A theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions.
There are number of potential themes. Watch movies and see how things are developed and see what are the best and emotive ones. I have a book that has nothing but quotes from various movies which I try to interject into my closings to highlight the theme and make them more interesting and compelling. For example, a closing argument may dealt with the themes “profits over safety” and “accepting responsibility“. Here is an introduction from one of my closing arguments:
This is an important case. It’s important for a lot of reasons – as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. Smith did not accept responsibility. Mr. Smith ignored facts. Mr. Smith ignored laws. Mr. Smith was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed, you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.
Below is a short list of some themes:
a. Safety – We do not allow profits to take priority over safety.
b. Keeping Promises – A man’s word is bond.
c. Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.
d. David & Goliath – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.
e. Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.
f. Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.
g. Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.
h. Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.
i. Struggling to Overcome Impossible Odds/Courage– Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.
Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your opening statement and closing argument.
Find those descriptive words and themes that best etch a picture in the jury’s mind about which your case is all about. Return to the themes raised in your opening statement and hammer them home in your examinations and closing. You may do this with topically leading questions such as, “I want to talk to you about the day where everything changed for Mary, do you understand?” Or it might take the form of, “I want you to tell the jury, about how this incident changed your life,” and then delve into the topic as if the witness were your client. Whatever powerful words you’ve created to draw the jury into your client’s story should be used to tie the evidence together for them with your questioning.
Hammer home your themes on cross-examination through the use of rhetorical questions and deductive logic.
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?
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.
Zen and the Art of Trial Advocacy
“The moon does not fight. It attacks no one. It does not worry. It does not try to crush others. It keeps to its course, but by its very nature, it gently influences. What other body could pull an entire ocean from shore to shore? The moon is faithful to its nature and its power is never diminished.”
~ Deng Ming-Dao
Staying focused and on course in a trial is important. There are so many things to distract, delay and confuse the jury. Objections, irrelevant evidence, innuendo directed towards your client or witnesses, judicial pontification and other assorted events distract and confuse jurors. It is important that you are not one of them. That is why having an even demeanor and a clear theme for your case is critical.
A case’s value or outcome often turns on the credibility and likeability of you and your client. If you can remain calm through the ups and downs of a trial, it will not go unnoticed. Jurors will look to you when a harmful piece of evidence is revealed to see how you react in order to gauge the event’s importance. You need to impart a Zen like demeanor. This calms your client and witnesses. It also sends a subtle message to the jury that everything is going to be alright.
Staying calm is an important strategy to share with your client and witnesses. Jurors often gauge how important or critical an line of questioning is by how your client or witness reacts when confronted by your adversary on cross-examination. The only thing one has absolute control over is their behavior and demeanor. By emphasizing this point with your client and witnesses, you can both empower and relax them. No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed. By doing so, the examination will typically be shorter. When an adverse attorney senses he has drawn blood, he will bore in with more of the same. A client or witness can tactically overcome this by simply remaining calm. Likewise, the client or witness must avoid sarcastic, insincere or solicitous remarks. This is their chance to make a good impression and answer what is asked. It is not their job is to exchange verbal jabs with the other attorney or “win the case”. There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.” Don’t let your client or witness get dirty by wrestling with the other attorney, because ultimately, they will lose.
A theme is the glue that binds your case. It draws the jury into your view of the evidence and keeps them there. A theme is important because it gives you and the jury a clear course to follow and a lens to view the evidence through. A theme can be as simple as a “man must be true to his word” or “sloppy police work leads to unreliable evidence and reason to doubt the state’s case.” Have you ever seen a movie that consisted of a lot of “good scenes” but was overall unwatchable? Why does this happen? Usually the movie has no clear unifying “plot” to hold all of the “good scenes” together in a coherent fashion. You as the “director” of your case need to have a clear “plot” or “theme”. Without a theme the jury gets lost and forgets or misinterprets the evidence. You want the jury to be looking for ways to fit the evidence into your view of the case, not your opponent’s. The theme should be presented during juror voir dire, opening statement, direct examination, cross-examination and closing argument. One of the best ways to do this is to prepare your opening statement well in advance of trial while discovery is still underway. This will help inform every aspect of your case and preparation. It will help you evaluate what is needed and what should be left on the cutting room floor.
Remember Young Weed-Hopper, “If you stay faithful to your case’s true nature, its power will never be diminished”.
Strategies for the Cross-Examination of Experts
In my last post, I discussed what a trial attorney can do to prepare for the cross-examination of an adverse expert. Below are some strategies that can be used in successfully cross-examining an adverse expert witness:
1. Favorable Evidence: One tactic that should not be ignored is using the opposing party’s expert to concede to facts favorable to your side of the case. These could include the fact that your client was injured by a motor vehicle collision, that there is no evidence that your client is a malingerer, that your own expert is well-qualified or well regarded in the community, etc. You can use the expert to corroborate the propositions which make up your expert’s opinion or reasons. This is why it is important to make sure you have the expert’s report and/or have taken his deposition. In this way you will know in advance whether the expert will agree with the proposition you want to prove. It is best to prove these favorable points before attacking the expert as he may be less willing to concede a point once you have attacked him as being biased.
2. Narrow the Expert’s Apparent Expertise: This is where having the expert’s curriculum vita (resume) in advance is important. If the accident reconstruction expert is self-taught or never went to college you may want to prove that he does not have a degree in mechanical engineering, in fact he has no degree at all, or the expert is not a certified professional engineer or a medical doctor and could not sit for a board examination even if he wanted. You can prove the expert has never taken engineering calculus or college physics, etc. If the expert is a psychologist, you can contrast his inability to prescribe medications with that of an actual medical doctor such as a psychiatrist who may do so.
3. Varying the Hypothetical: Inquire into the basis for or the underlying assumptions supporting an expert’s opinions and then ask the expert if the evidence showed “X” if this would change his opinion. Before asking such questions it is usually important to anchor the underlying principles and rules the expert is utilizing in analyzing the evidence and rendering his opinion. For example, I remember a neuropsychologist I cross-examined about his opinion that his patient had suffered permanent brain injury and brain atrophy as the result of a traumatic blow to the head. The Diagnostic and Statistical Manual used by the expert indicated that to make a differential diagnosis, one had to rule out other causes for these symptoms such as long-term abuse of alcohol. The expert agreed with these principles and the need for an accurate medical history to make an accurate opinion as to the cause or etiology of the patient’s symptoms. I asked him: “Would such information be important to know? Yes. Would the medical history affect the accuracy of his diagnosis and opinion? Yes. Later in his deposition, I looped back and confronted him with medical records establishing the patient’s long term abuse of alcoholism and his treatment for alcoholism. The expert agreed this evidence was important and ultimately withdrew his opinion after being presented with evidence of chronic alcoholism. Had he refused to concede this point, I would have argued to the jury that the expert did want to be confused by the facts as his mind was made up. The jury would have seen this expert as narrow-minded and dishonest.
4. Have the Witness Define Technical Terms: “Pull back the curtain” as Toto did in the Wizard of Oz and make the expert put his statements in simple plain English if a clearer understanding of the term is helpful to your side of the case. Experts love to speak in technical jargon that dresses up their testimony for very simple events. For example, if the doctor testifies that the witness had a “contusion” on his arm, then point out that this is just a fancy term for a “bruise”. This removes the mystery behind the expert’s testimony and allows the jury to make their own assessment instead of blindly relying on the expert.
5. Typos, Spelling and Math Errors: If the expert’s report has such mistakes, first show important it is for the expert to pay attention to detail and carefully review his opinions before submitting a report, then bring out these errors on cross. You can also have the opposing expert spell long complicated terms for the benefit of the court reporter. Sometimes experts will be unable to accurately spell such terms. If he stumbles you can continue to do this as the deposition precedes. If you suspect that the expert is using a computer program to do his calculations and is “math illiterate” provide him with a calculator and have him vary the input data and recalculate the speed of a vehicle or its stopping distance. Oftentimes experts are unable to do the calculations at all. You can later argue “sloppy in, sloppy out” or “garbage in, garbage out” or that the expert really is not very “expert”.
6. Use the Expert to Criticize His Own Client: Sometimes an opposing party will do something in a fashion that is not safe or wise. It could even be on a topic the expert was not hired to assess. Use the expert, to show that the procedures used by his client were unsafe, improper or ill-advised. This is especially useful if you know the expert will have to agree or look biased and/or stupid to contest such a proposition. Some experts will try to dodge the question by saying “I was not hired to make that sort of analysis”. Don’t let them side step your question and demand that answer “yes, no or I have no opinion”. If they say that they have “no opinion”, you can show that is something the other party (the expert’s client) could have asked the expert to analyze, but did not.
7. Lack of Firsthand Knowledge: Demonstrate the expert lacks firsthand knowledge. It may be a defense medical examination where the doctor saw your client only once or perhaps he is basing his opinion solely on his review of the medical records. In contrast, your client’s doctor has seen him over an extended period of time on numerous occasions. Ask the expert “It is always preferable to see a patient many times over an extended period in evaluating a person’s condition?” If you think it is unlikely he will agree with this, you can ask: “Was the plaintiff seen on this date by his own doctor and examined? Yes. Your examination of the patient was limited to single occasion. My client doctor saw him over 25 times? Yes. Over twenty-four months? Yes. You have to accept my client’s doctors observations as true because you were not there? You are limited to what is contained in the records? Yes.
8. Show the Expert’s Opinion is Based Upon Unreliable Evidence or Rests Upon the Truthfulness of a Questionable Source: If you can show that a witness relied upon by the expert is mistaken, inaccurate unreliable, or lying, then have the expert concede that this type of information is important to the accuracy of his opinion and that he is accepting this information as true, accurate and reliable. You can ask: “Unlike you, the jury will be able to evaluate the witness’s demeanor and credibility when they testify? Yes. Again you can use the “garbage in, garbage out” approach in closing to undermine the expert’s opinions if you can establish the supporting data is not reliable.
9. Lack of Thoroughness: Demonstrate that there are more tests the expert could have performed to get more accurate data to use in his analysis. This could be things such as the expert could have used a similar vehicle to figure stopping distances, that the expert failed to actually test the road’s surface to find the “actual” coefficient of friction instead of just taking some number out of a text-book or guessing.
10. Financial Bias: If the expert at issue has testified for the opposing party, attorney or insurance company before, point out how much money this relationship has generated for the expert or that the expert is a “whore” or a hired gun for the “defense” or “plaintiff”. You can use tax or business records to show this financial bias.
11. Inconsistent Positions: Find similar cases where the expert has testified on the opposite side of the issue. Use this inconsistency to show that the expert is not a scientist, but is rather an advocate for whichever side hires him. Use the expert’s own articles or writings to undermine contrary positions he has taken at trial.
12. Confront the Expert with Authoritative Materials: As mentioned in the earlier post, look for textbooks or journal articles you know the expert will have to agree are authoritative and reliable. You can read favorable points in during cross in support of your position under Rule of Evidence 803(18). This hearsay exception provides:
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets that contradict the expert’s testimony on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
I hope these thoughts are of use to you the next time you take on an adverse expert witness. I would appreciate hearing of any strategies you may have. Good luck!
Cross-Examination of Experts: Where to Start.
Where do you start with your preparation to cross-examine an expert? The following is a list of areas to review:
1. The Expert’s Curriculum Vita: You should thoroughly review the expert’s c.v. Expert’s will exaggerate and even make up credentials. In a criminal case I was defending the State’s expert, an environmental specialist, claimed he had a B.S. in engineering and was a P.E. which is typically short for being a certified professional engineer. He had signed all of his reports as a P.E. which at the deposition he claimed was short for “plant engineer” apparently suspecting he was at risk. Surprisingly, he claimed that he had never intended that anyone believe he was a certified professional engineer as I move through over twenty separate reports where he used this designation. He admitted that to make such a representation would be a bold-face lie. I then concluded his deposition by looping back to the first exhibit I had him identify and authenticate as being true and accurate, his c.v. There buried about half-way through the c.v. in his own words was the assertion that he was a “certified professional engineer”. He end up admitting to a number of other fabrications as well, including his educational background and other professional certifications. These were all done so he could raise his profile and make more money. All criminal charges against my clients were dismissed shortly after this deposition.
2. Prior Testimony: Expert’s who testify have often times covered similar ground in other cases. Depositions are an excellent source of inconsistent positions and damaging concessions. You can also find areas of bias explored in other depositions. I have subpoenaed expert’s records which they claimed that they no longer retain and ended up using the expert’s prior testimony to establish that they could in fact obtain such information. Trial lawyers often maintain data banks for frequently used experts. Westlaw and Trial Smith also have data banks you can search for a fee. Don’t ignore these sources.
3. Prior Writings of the Expert: Such articles contain principles upon which you can anchor your cross exam because they are the expert’s own words. These are admissible under Rules of Evidence 613 (prior inconsistent statements and 803(18) (learned treatises).
4. The Expert’s Report: A careful analysis can uncover implicit assumptions and the basis of the expert’s opinions. Often times the best way to challenge an expert is to show the foundation of his opinion is resting on sand, not bedrock. The truism of computer science is equally applicable to expert witnesses, “Garbage in, garbage out”. Just remember to anchor the items which are “garbage” as important early in your examination before looping back and pulling the rug out from the expert.
5. Learned Treatises: You should consult the central authorities of your expert’s field as well as journal articles in his field. You should in particular focus on those items you know he will have to admit are authoritative such as journals of organizations he is a member or leading educational textbooks in the expert’s field. Don’t forget the requirements of Rule of Evidence 803(18) which require that someone establish that the writing is authoritative and the text of the treatise you want to use must be read into evidence while the expert is on the stand.
6. The Internet: The Internet is the great equalizer. You can find journal articles, licensing databases, training videos, literature, the expert’s website, test protocol, websites listing experts for hirer and more. I have used training videos to demonstrate law enforcement experts have failed to follow testing protocol for determining whether blood was present and have found You Tube videos regarding protocol for surgical procedures for use in questioning doctors. Google your expert’s name; you can find all sorts of interesting background information and leads. You can check Google Scholar for journal articles and case law from across the land to see if your expert has testified or written any articles he may not have listed.
7. Private Investigators: They can help you verify credentials and degrees as well as identify other lawsuits where the expert has testified or been sued. You might even turn up an impeachable offense.
8. Consulting Experts: They can assist you in spotting errors and mistakes in an expert’s analysis. They are also an excellent source for finding learned treatises and journal articles.
9. Other Attorneys: This probably is not the expert’s first rodeo. Check with other trial lawyers in your area who may have come across the same expert. Call lawyers identified in your search of case law or the list of past cases found in the mandatory disclosures required in federal court cases. They can provide useful tips or identify tendencies of the expert.
10. Know Your Case: You will in all likelihood have a better working knowledge of your case than the expert. Cross-reference your evidence, exhibits, documents and deposition testimony and be ready to pounce on any mistakes the expert makes in understanding the case. I have beat adverse experts more often than not by knowing the facts better than the them. This allows you show the jury they are not a trustworthy guide.
11. iPhone Apps: Yes, there is an app for that too. I have used accident reconstruction apps to test and see what a change in the input data would mean to the expert’s ultimate conclusions. I have also used well known apps such as Wolfram Alpha and Power One FE Calculator for similar purposes.
Good luck hunting. Remember nothing beats preparation.
The Greatest Rule of Cross Examination – Always ask a leading question!
Alright you are getting ready to do your first cross-examination and you wonder what is the most important rule to being successful? It is simply this “Always ask leading questions that provide information supportive of you case.” You ask, “How can that be?” That’s too simple!
The rule is easy to announce, but it is not easy to abide by in Court. It takes practice and discipline. In 1982 right out of law school, I was fortunate enough to work as a law clerk for a federal judge in Hammond, Indiana in the infamous “Region” of northern Indiana and had the opportunity to watch one of the best cross-examinations I have ever seen. I was looking in on a criminal trial being defended by renowned and flamboyant Chicago defense attorney Frank W. Oliver (1920 to 2006). He came to court with a cape across his shoulders and amulet hanging from his neck. I gazed on as Attorney Oliver regally stood and asked a FBI Special Agent leading question after leading question for well over an hour. Frank logically linked in sequence one leading question after another to drive home his point. His cross-examination was mesmerizing and devastating in driving home his defense theme.
At a break, I approached Attorney Oliver and asked if I could pick his brain about cross-examination. He generously offered to speak with me at the end of the day over dinner. He told me that I needed to get a copy of Plato’s “The Republic” and read it. He promised that the secret of a successful cross exam Could be found in the pages of Plato’s book. Over the next couple of days, I intently read the “The Republic” from cover to cover. At the close of his trial, Frank promised we would discuss the book and what I had learned. Several days later at the close of his trial while the jury deliberated, Frank asked me what I had discovered? I told him that, “Cross-examination was simply argument disguised as a series of rhetorical questions.” He told that I had learned my lesson well and that was all there was to it. Mr. Oliver explained “I structure my questions in such a fashion that I don’t care what the answer is because I am providing the jury with my arguments and the theme of my defense through the series of rhetorical questions I ask of the witness.” Frank’s lesson has stay with me over the years. I have used what I learned to great effect in cross-examinations I have conducted since then.
So remember the golden rule of cross-examination… Always ask leading questions! If you still don’t see the point, follow Mr. Oliver’s advice to me and read Plato’s “The Republic” and you will see light as I did. Thanks Frank for your advice. It has served me well.
Above is a copy of Frank Oliver’s Stamp he placed on many of his beloved and treasured books that he collected.
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?
A. Yes.
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?
A. Yes.
Q. You have made literally hundred of reports over the course of your career?
A. Yes.
Q. You know that someone such as myself will likely question you about the events covered in your report?
A. Yes.
Q. You are a professional?
A. Yes.
Q. As a result you want to make sure your report is complete?
A. Yes.
Q. You want to make sure your report is accurate?
A. Yes.
Q. in this particular instance, if there were injuries to the defendant you would note those in your report?
A. Yes.
Q. When a situation like that arises, you would try to fully and accurately outline any force used by officers while you were there?
A. Yes.
Q. Prosecutors rely upon your report for purposes of making decisions on whether to charge someone with a crime?
A. Yes.
Q. Your report often forms the factual basis for criminal charges being filed?
A. Yes.
Q. Courts rely upon your investigation in deciding the fate of a person accused of wrongdoing?
A. Yes.
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?
A. Yes.
Q. If force was required which could have resulted in injury to a defendant, you would note that in your report?
A. Yes.
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?
A. No.
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.
Zingers: The power of the “one-liner” in communicating with jurors
There is nothing more powerful in terms of capturing someone’s attention and imbedding your message in their brain than a good one-liner or as I like to call them, a “zinger”. A “zinger” is described as “a surprising or unusually pointed or telling remark.” In today’s modern fast paced world, speechwriters and politicians often work on developing that one biting quip or sound bite which will disarm an opponent and grab an audience’s favor. Such comments, often seem unscripted even though they were planned out well in advance. Attorneys can use “zingers” as a rhetorical device during cross-examination or in closing argument to drive a point home. “Zingers” are especially effective in rebutting your opponent’s argument. Your source material is everywhere. I urge you to look to quote books, comedians and popular culture for such material.
A recent book, “The Notes”, posthumously published on behalf of President Ronald Reagan, is a collection of quotes and anecdotes that Reagan gathered over his long career as a speaker and politician. He made a concerted effort through out his life to look for and collect such quotes on index cards. He collected such material all of his life. President Reagan was the master of the one-liner. Who can forget Reagan’s “There you go again” quip he used to boomerang criticism of his position back at his opponent, President Jimmy Carter during their presidential debate in 1980. See http://www.youtube.com/watch?v=Wi9y5-Vo61w Books containing anthologies of jokes is another source of such material. The master of the “zinger” is “Mark Twain” a/k/a Samuel Clemens. In dealing with the topic of truthfulness and the use of statistics to bolster a weak argument, Twain observed:
There are three kinds of lies: lies, damned lies and statistics.
Another way of putting it according to Twain was “Figures don’t lie, but liars figure.” Such a statement can quickly and effectively eviscerate an opponent and swings the audience or jury in one’s favor. So cultivate your inner one-liners, you won’t be disappointed and you may just “zing” your opponent next time you are in court.
Mark Twain, photo by A. F. Bradley
New York, 1907
The Barrister's Toolbox 