This page contains a Flash digital edition of a book.
Anatomy of a Civil Trial In the appropriate case, the cross-examination may lead


to a motion to strike the witness testimony if a memory expert undermines the reliability of the eyewitness or the expert gives a basis for the jury to reject the witness testimony. See Wiggins v. Boyette, 635 F.3d 116 (4th Cir. 2011). Even without an expert, if the cross-examiner demonstrates that the witness’s recall has been altered by post-event influences, there would be a compelling reason for the trier of fact to reject that testimony as not credible.


Science of Cross-examination Techniques Irving Younger’s lectures were entertaining, but they were


not a cross-examination system. Tere are countless other guides to cross-examination. Te best usable guide and system, in my opinion, is Cross-Examination: Science and Techniques, 2nd Ed., by Larry Pozner and Roger Dodd (Matthew Bender 2004). Te book’s companion lectures not only entertain, but they instruct on a comprehensive system to use in preparing a case and, particularly, conducting cross-examination. Teir premise is built on the principle that cross-examination wins trials. Te lectures and book explain a practical system of cross-


examination that may be remembered and applied during trial. Tere are only three rules to follow: ask only leading questions, one fact per question, and move from the general to the specific.14 Chapter 1 stresses that cross-examination is a science. Te book is a guide for preparing the whole case. Chapters address techniques for dealing with many situations that arise during cross-examination.


Expert Cross-Examination: Learned Treatises


Use of learned treatises to cross-examine experts is an exception to the hearsay rule under Rule 5-803 (b)(18).15


Te


magic wording used to require the expert to recognized the source as “authoritative” before using it to cross-examine.16 During a medical malpractice trial over which I presided, however, the changed wording of the Rule became important as plaintiff ’s counsel asked a defense expert whether each of the books he showed the witness was a reliable authority. Counsel asked the question and put the book down without further questions. Customary practice is to ask the expert questions about content in the acknowledged text. As the presiding judge, I tried to figure out why counsel did not ask the questions about statements in the book.


Te last sentence of 5-803 (b)(18) says “If admitted [as a


reliable authority], the statements may be read into evidence but may not be received as exhibits.” I expected that plaintiff ’s counsel would attempt to read portions of the books into evidence later


14 Cross-Examination: Science and Techniques, 2nd Ed., by Larry Pozner and Roger Dodd (Matthew Bender 2004) at sections 8.11, 8.24, and 8.47.


15 Md. Rules, Rule 5-803(b)(18) and Fed. Rules of Evidence 803(18) are identical. 16 See Pattern Examinations of Witnesses for the Maryland Lawyer, 4th Ed., by Paul Mark Sandler and James K. Archibald (MICPEL 2006) (Part II, A, 5).


in the cross-examination or in the plaintiff ’s rebuttal. Tis would have been a departure from standard procedure, but apparently within contemplation of the express wording of the Rule. Tere are few Maryland cases addressing learned treatises


much less this subtle question of whether part of the text must be used to cross-examine the expert or whether the text may be read to the trier of fact independent of the expert’s testimony (for example, during rebuttal). Other courts have determined that the former practice of reading the book excerpt to the expert still applies.17


One court apparently allowed reading a learned


treatise into evidence and admitted it (possibly under another hearsay exception).18 Tis is new territory. A text acknowledged by any expert or judicial notice as a “reliable authority” may be read into evidence. On the face of the Rule, there appears to be a wide latitude to read into evidence excerpts from the “treatise, periodical, or pamphlet”-- possibly independent of any witness.


Conclusion Tis article is not a typical guide to cross-examination


technique. Tere are many sources that give standard guidance on evidence rules or the mechanics of a cross-examination. For example, Pattern Examinations of Witnesses for the Maryland Lawyer, 4th Ed., by Paul Mark Sandler and James K. Archibald (MICPEL 2006), includes easily accessible templates for many types of direct and cross-examinations. Tere are countless websites, books and articles concerning the “Do’s and Don’t’s” of cross-examination. Tis article takes a different approach to expand the tools and techniques that may be used to enhance cross-examination and the ability to persuade the trier of fact or impeach witnesses during trial. 


Biography Te Honorable Ronald H. Jarashow, former Anne


Arundel County Circuit Court judge, returned to law practice in 2011. For 35 years, he conducted hundreds of trials and represented businesses. He has tried cases in State and Federal courts in Maryland, D.C., and other states as well as handled appeals at all levels. His trial experience includes commercial litigation, business and contract matters, employment disputes, personal injury, and professional malpractice. In addition to trial practice, he advises businesses and mediates / arbitrates cases. In 2009, Mr. Jarashow was selected as one of the best Baltimore / Annapolis business lawyers and as a leading medical malpractice lawyer in the Annapolis area. In 2011, the Md. Daily Record selected him for a Leader in the Law award. In 1975, he was law clerk to Chief Judge Gilbert, Court of Special Appeals. He practices law with Baldwin Kagan & Gormley, LLC, 410-974-


9200, www.bkglawfirm.com. 17 See, e.g., Washington v. United States, 884 A.2d 1080, 1096 (D.C. 2005) (D.C. has not adopted 803(18), but determined that the practice would still be followed by calling the excerpt to the attention of the expert); Niles v. Owensboro Med. Health Sys., 2011 U.S. Dist. LEXIS 82570 (W.D. Ky. July 27, 2011); Dowling v. Deakins, 2009 Minn. Dist. LEXIS 27 (Minn. Dist. Ct. 2009).


18 Pestey v. Cushman, 259 Conn. 345, 366 (Conn. 2002). Trial Reporter / Spring 2012 21


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