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Anatomy of a Civil Trial Cross- Examination


Scientific Impeachment Foundations and Techniques


The Honorable Ronald H. Jarashow


or the witness’s direct testimony. Like your ten fingers, you always had those in court.


I


rving Younger, in his ten rules of cross-examination, lectured that you know your cross-examination succeeded when you deal a death blow to the witness


In application, however, it was


hard to remember all those rules during the frenzy of trial. In retrospect, you knew the ones you violated. Quite often, it was the cardinal sin of asking one question too many. Abraham Lincoln has been reported to ask “one question In defending the Armstrong case, the key


too many.”


prosecution witness, Mr. Jones, testified that during a fight, he did not see the defendant bite off the deceased’s ear. Lincoln asked why Mr. Jones was certain that the defendant had done it. Te reply: “… I saw the defendant spit out an ear.” Tis seemed an uncharacteristic


blunder. But Lincoln was


prepared. He asked how, at 11:00 p.m., was the witness able to see at the distance of about 150 feet. Te witness’s smart reply, “By the light of the moon.” One question too many and non-leading, again? Lincoln then cross-examined using the 1857 almanac, of which he requested the court to take judicial notice. Te moon was in its first quarter before midnight and could not have shone enough light for the witness to see. Te testimony was impeached. Te defendant was acquitted.1 Lincoln’s cross-examination has been used to illustrate


the principles of never asking that extra question to which you do not know the answer and always using leading questions. But Lincoln was setting the witness up for impeachment. Te complete context of the questioning more appropriately demonstrates the principle that being prepared is the key to cross-examination. Lincoln must have known or reasonably expected the answer to the open-ended questions in order to be prepared with the almanac. Te exchange was drama before the jury. Lincoln turned what appeared to be a convincing adverse answer into a strong and persuasive impeachment of the witness – one primary goal of cross-examination.


1 R. Wannamaker, Te Voice of Lincoln 104 - 07 (1943). As the author explains, there have been commentators who suggest that Lincoln used an old version of the almanac, but that remains unsubstantiated.


Scientific studies and approaches may enhance your


ability to cross-examine. Studies exist about memory, jury persuasion, witness perception, methods of cross-examination, etc. Tis article will focus on some these that help destroy the credibility or testimony of a witness or build your own case in the same way that Lincoln deftly used the almanac. Preparing


examination.


cross-examination permits an orderly Preparation begins from the day a file is


for


opened. Consider these and other scientific approaches to cross-examining witnesses right from the outset. Discovery may be focused to develop information to use at trial.


Cross-Examining Eyewitnesses Independent witnesses to an incident are often


considered more credible than the parties. Judges and jurors are often skeptical about the parties’ motivations.


Tese


doubts reflect the general public’s suspicion about lawyers and the legal system. Te closing argument that highlights independent witness testimony because the witness “has no dog in the fight” may be convincing. Even the United States Supreme Court acknowledges that there is persuasive power in the story told by an eyewitness.2 Is eyewitness testimony reliable or more reliable than


the testimony of a party or expert? May the cross-examiner undermine the apparent reliability of the independent witness?


2 “We recognize the importance of eyewitness testimony; Stoltzfus provided the only disinterested, narrative account of what transpired on January 5, 1990.” Strickler v. Greene, 527 U.S. 263, 294 (1999).


Trial Reporter / Spring 2012 17


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