I was listening to a new album by cousin Peter Neff that he created in collaboration with his co-composer Mauricio Yazigi titled Spanish Guitars. The sound and rhythm is mesmerizing. It reminded me that a good cross-examination or closing argument has its own rhythm and melody. The pace and delivery both lulls and controls the defenses of the witness As the examination draws him closer to the truth.
Want to understand this power? Read out loud classic dialogues such as Plato’s the Republic. The Republic is a Socratic dialogue, written by Plato around 380 BC, concerning the definition of justice, the order and character of the just city-state and the just man. You will notice how the pace and melody of the words propels the examination and the rhetorical power of the questions posed.
Remember that cross examination is simply a means of speaking the truth to the jury through a series of well planned rhetorical questions that logically lead to your ultimate point. These examinations have a rhythm which you can use to your advantage to emphasize the themes of your case. See F. Lee Bailey’s cross examination of Detective Mark Furhman which helped undermine the State of California’s case by suggesting Furman was a dishonest racist who planted blood as evidence against O.J. Simpson.
Likewise a good closing has a rhythm and melody which melds with each point you must make to the jury. Check out the clip of “True Believer”, San Francisco attorney Tony Serra, as he gives a spellbinding closing argument for his client, Rick Tabish charged with murder.
Find your pace and use it to your advantage. The modulation of the pace, volume and pitch of your voice is no different than a musical instrument. It conveys the mood and emphasis of you point. Make sure there is both a rhyme and a reason supporting your next presentation.
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.
Nothing is more thrilling than conducting a good cross-examination of an adverse witness. The attorney through a series of leading questions wrangles concessions and makes his own case through a line of short and concise rhetorical questions that lead to an undeniable conclusion in favor of one’s client. However, there are times when no cross-examination is the best course of action. Perhaps, the witness has done no harm to your case. Or, maybe the witness is quite dangerous and your opponent has missed opportunities to bring forth damaging facts. In fact, your opponent maybe lying in wait for you to unwittingly opened the door to evidence which could undo your whole case. Many a skilled trial attorney will intentionally set traps for their opponents by baiting them into a line of questioning for which their witness has a ready response. You may ask, why wouldn’t they simply bring it out on direct examination? Well, jurors have a tendency to pay greater attention on cross-examination than direct examination because of the inherent drama of seeing an attorney match wits with a hostile witness. The impact of evidence brought out on cross-examination far exceeds the power the same evidence has when elicited on direct examination. While it takes courage to forgo cross-examination altogether, this conservative strategy will often best serve a case. As Francis Wellman observes in his classic legal treatise “The Art of Cross Examination“:
“Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers and alas! not only young ones who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case. “
There may also be occasions where the bias or inherent weakness of the witness’s testimony is so obvious that further examination can only offer an opportunity for the witness to escape his blunders or rehabilitate himself. Under such circumstances, it is far better for counsel to dramatically rise from his table stare down upon the witness as if to begin his dissection of his testimony and after a pregnant pause state “I see no need to ask any questions of this witness your Honor” and then sit down. The jury will assume counsel has mercifully spared the witness further torture and has saved the jury’s precious time for more productive matters.
As noted by Francis Wellman”[i]t cannot be too often repeated, therefore, that saying nothing will frequently accomplish more than hours of questioning. It is experience alone that can teach us which method to adopt.”