Saturday, August 13, 2016

More Ripping Yarns From the Files of the Bear, Esq.

The Art and Science of Cross Examination

Cross examination is the greatest legal engine ever invented for the discovery of the truth," said John Henry Wigmore.  And he was right.

You may know that the chief difference between direct examination and cross-examination is that the lawyer may lead on the latter.  In other words, questions may (should always) be phrased as statements.  It is the most adversarial part of a trial that is itself the capstone of the adversary system of law. Continental countries prefer to use the inquisitorial system, in which a tribunal of neutral judges examine the evidence and reach a verdict.

Well, la di da.  

The genius of the Anglo-American system is that it allows both sides to fight it out, thus ensuring nothing will be left out, nothing left unchallenged. Assuming equal resources and skill of attorneys, and (most importantly) a judge who will allow real trial lawyers to do their jobs, the adversary system is fair, often dramatic, and always sporting.

Within this dramatic, adversary system, cross-examination is the crown jewel. Truly, the only way one may defeat an effective cross is to simply tell the truth.  How many times has the Bear seen a witness, say a police officer, implode on the stand, because he suspected every question was some sort of trick, and would deny the sky was blue before agreeing with the Bear on cross?

The Bear found that the best way to deal with an evasive witness is to patiently ask the exact same question, word-for-word, with the same inflection.  Yes, it seems weird, but everyone assumes the lawyer knows what he's doing. The witness will not understand, will become disoriented, then frightened, and will look like a liar.  Too many lawyers get into arguments with the witness on cross, which is throwing away your superior position.  Just pray you have a judge who appreciates the trial lawyer's role in an adversary system and doesn't just become impatient and tell you to move on.

You have a right to an answer to a fair question.  And when the opposing counsel objects, "Asked and answered," say, "Your Honor, that objection belongs only to the opposing side during direct, and in any case the witness has for reasons best known to himself, refused to answer my question." (Commenting on the witness' credibility like that might get you some pushback from the judge, but the Bear might not be able to resist, depending on a lot of things.)

Two State Police Detectives: Epic Fails on Cross

One time, an evasive state police detective turned to the judge in obvious distress, and pleaded, "But I don't know how to get around that question!"  No kidding.  Luckily, the Bear had a good judge who bit the witness' head off.

In another trial - this one for murder / death penalty -  the Bear's question was, "why did you interrogate Mr. Pontious on videotape?"  The detective kept doggedly answering, "to get to the truth," probably a stock answer they teach detectives at seminars on "Avoiding Wily Defense Lawyer Traps."

However, the police had clearly decided the Bear's client was guilty long before that, and, in fact, they already had the answers to all the questions they asked him on tape.  They had already interrogated him off camera, and this was just the production of the supreme piece of evidence against him: a videotaped interrogation.

Everyone - especially the jury - knew darn good and well the purpose was to secure a videotaped confession to use as evidence against the suspect at trial. Jurors are not stupid. If the witness had simply told the truth, the Bear couldn't have touched him.  But the state police detective assumed that since the Bear was asking, there must be some trick behind the question.  He was desperate to portray himself to the jury as a disinterested philosopher, who would never get his hands dirty by producing evidence for trial. Which is, of course, ridiculous.

For thirty minutes, the Bear kept pleasantly asking the same question, in exactly the same way, like a tape recorder, and the detective kept giving different evasive answers.  Talk about looking like Captain Queeg! One question. Now, it is true this was a sneaky Bear trick. The Bear had decided the detective was not very bright, and would fall for the most obvious trick: asking for a truthful answer to an inconsequential question.

The Bear had a very good judge.  If time was being wasted, it was the witness who was wasting it, not the Bear.  Obviously, that is what the judge thought. The jury was less than impressed with the detective's performance and ultimately he was blamed for losing a murder case. But that was a bit unfair. The jury just got that one right. With kind assistance from the Bear.

Adversary Does Not Mean Mean

Many people who have been taught by television shows - which must get the lawyer and the witness in one, tight shot - imagine the lawyer is in the witness' face, yelling, until the witness breaks down and admits to the murder.  Jose Ferrer's cross-examination of Humphrey Bogart in the Cain Mutiny is more accurate. Trial defense counsel is not friendly, but zeros in on the witnesses weak points relentlessly. There, the man on the stand himself revealed himself to to be unfit, which was the real issue at trial.

The Bear has no compunction about revealing the character defects that impact credibility in today's great issues, through argument, satire or agitprop. Mark this well, visitors, friends and Woodland Creatures. Controversy is not just about the rightness or wrongness of this issue or that one. Let others argue about each apple. The Bear would lay his axe at the base of the tree, provided it were a rotten tree, bearing bad fruit, and expect nothing but praise from men of good will. Now that he mentions it, he has a vague recollection of the same imagery employed by someone.

Only one time did the Bear actually elicit an in-court confession while cross-examining a defendant. It involved a homosexual groping, and the details are not edifying. The Bear lined up all the hopes and effort this young man had placed in his budding Navy career, and, after a sympathetic pause, simply asked why on earth would he throw it all away? The kid had been worn down by that time, and said he just couldn't help himself.

That was one of the Bear's very first trials, and the feat was never repeated.


  1. Replies
    1. Thank you! Tell everyone you know and make them Judging Angels. You'll be doing them a huge favor! I can put you down for, what? 250 copies?

  2. Dear Ursus,

    I could be wrong, but based on your statement, it appears to me that you successfully prevented justice by preventing someone from being convicted of murder. Is that true? Or you not telling?

    While I know the purpose of the defense attorney, it seems to me unjust to the victim, society and even the murderer to intentionally prevent that justice that we are all entitled to.

    Interested to hear more on the topic of justice and our obligations to it.

  3. "While I know the purpose of the defense attorney"


    I was never interested in whether my clients were guilty or innocent, simply because it had no bearing on my ethical obligation of zealous advocacy. I never asked. Didn't care. Nearly all were guilty, as it turned out. Don't think I ever walked a guilty person, or had an innocent person convicted. (Maybe one. A dentist was skating on thin ice with Medicaid billing. Not sure he was guilty, and neither was the jury in federal court. The feds had charged him with a bajilion counts, of course, and the jury found him guilty of every other count. Nice. Compromise verdict because they weren't sure the Government had met its burden.)

    I do not see why you believe I "successfully prevented justice." Why do you assume that, instead of that I successfully prevented injustice by saving an innocent man accused of a murder he didn't commit? Or that I preserved the integrity of the system by demonstrating to a jury of 12 that the state had not met the legally required burden of proof: beyond a reasonable doubt? Or that the prosecutor was an incompetent boob that didn't know how to try a case? Or that the state's witnesses came across to the jury as not credible?

    Or all of the above?

    The Bear was good, but he always had to play the cards he was dealt. Okay, sometimes he skillfully got rid of a good card or two from the State's hand, or neutralized them. One thing he never once did is lie. If a fact had a reasonable explanation that was different than the State's, sure, the Bear would argue that.

    If a loved one of yours were accused of serious crime, would you want them to have the best defense lawyer they could? Or would you say, "Well, this is a pretty serious allegation, so I don't love you any more and think you should just plead guilty and let them stick you in a vein?" Or, "my brother-in-law is a divorce lawyer. He could probably handle a death penalty case for free."

    At the end of every trial, the jury makes the decision. That is entirely out of my hands, and out of the hands of the prosecutor.

    I don't think I'll say if Mr. Pontious was innocent or not, now. I did not try his case any differently from any other case. The interrogation was amateurish. They did not go very far beyond the "I did it" statement to get him to confirm details only the killer would know. In fact, as far as they got, it was clear he had no clue about crime scene details. They suggested he would receive some vague benefit from confessing (routine tactic)

    He had a credible alibi from a neighbor lady. His dog had gotten loose, and she helped him catch it, interrupting a TV show she was watching. At the same time the murder was committed.

    Another person involved accused him, and was given a lower sentence for his cooperation. His and his only DNA was found at the scene, on a stra in a Big Gulp. (Do you see the problem with this deal the State made?) It so happens that when I writted him to testify on a motion, he immediately committed suicide in prison. Draw your own conclusion about that.

    A murder trial is an incredibly complicated and fact-rich thing loaded with human factors. I do not believe humans are infallible. Except the Pope. It is impossible for someone outside of the case to form an accurate opinion about it. Of course, everyone does, and that's fine. Your opinion on some case you saw on CNN doesn't matter and you can discuss over coffee at the local diner with your friends, no harm. But even I am reluctant to opine on a case that is not mine. I just don't have enough info. Don't know the detectives, etc.


Moderation is On.

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