written by guest blogger, NITA’s Public Program Development & Resource Director Mark Caldwell, JD
We are approaching the twenty-sixth anniversary of the passing of Irving Younger, one of the truly great teachers of trial skills. Younger was at times a practicing lawyer, a sitting trial judge, and a law professor. His lectures were famously entertaining and memorable. Perhaps Younger’s most famous presentation was the Ten Commandments of Cross-Examination. Lawyers just starting their trial practice are well advised to adhere to these rules.
Younger’s Fourth Commandment is: Never ask a question that you do not know the answer to (unless you don’t care what the answer is). Sound advice, especially in our age of discovery practice, where virtually every fact has been revealed through interrogatories, depositions, requests for production, admissions, and stipulations. It is the reason why surprise was removed from the list of Relevance objections in Rule of Evidence 403, as one of the grounds. By the time you reach trial, you should, in theory, know the answer to the questions you ask during cross.
But hold on: not every case has the luxury of discovery. Besides, criminal cases in most jurisdictions, hearings, matters where a party or witness is a foreign national, and trial-like circumstances such as arbitrations may not permit or have time for discovery. How can you cross-examine a witness when you do not know the answer? Is this truly a game of Blind Man’s Bluff?
“How can you cross when you don’t have information?” is a question often asked by participants of program instructors. To quote cartoon character Elmer Fudd: “Wery, wery carefully.” The answer sounds flip, but it is the start of the answer to blind cross-examination. Litigation is not a risk-free passtime. It is better to have a plan then to pray it will never happen. Following are some ideas that will make blind cross-examination less intimidating.
The first piece of the solution comes from Younger’s First Commandment: Be brief, short, and succinct. Cross-examination should be a “commando raid.” In and out. It is not the invasion of Normandy. You should avoid making more than three points on cross-examination. Two points are better than three, and one point is better than two. Even with limited information, you can score a few points that help your case.
Professor Peter Hoffman, who teaches at Elon University School of Law, talks about beginning your cross-examination with points of agreement, facts that both sides may agree upon that you may use to bolster your case story. Such softball questions also begin to control the witness and train her to answer your questions.
Professor JC Lore, who directs the advocacy program at Rutgers University School of Law, Camden, reinforces the point by reminding us that juries expect cross-examination. If you are not sure of questions that might do damage to the witness, you can still meet juror expectations by doing a short cross-examination on neutral or beneficial information that you learned during direct. While this violates Younger’s Seventh Commandment about not repeating information, it confirms that positive information that supports your story of the case straight from the mouth of your opponent’s witness. Such a neutral cross also suggests to the jury that you are not conceding the information from this witness, or worse, endorsing the other side’s story.
In a March 1994 article in the American Bar Association Journal, Professor James McElhaney discusses how you overcome problems associated with a lack of information. Like Saul, who had scales fall from his eyes and he could see again (Acts 9:18), we can also uncover information during trial. One such way of gathering information during trial is taking advantage of a witness whose memory has been refreshed under FRE 612. The rule provides that:
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Do not take the cursory look at these materials. Instead, ask the court for time to review the document and gather information.
Even if the witness does not need to refresh memory during direct examination you may still inquire if the witness used anything to refresh her memory before testifying. If the answer is yes, you may ask the court if you may review the things used in preparation for testimony—“if the court in its discretion determines it is necessary in the interests of justice.” Just remember, you have to ask the question.
Another way McElhaney suggests for gathering information during trial is to ask to voir dire the witness before she testifies. It is something that is done quite often and, if the judge permits you to voir dire, you can gather information on a witness’s qualifications or the admissibility of testimony. This may be information you can use once the jury returns. When asking to voir dire, use judgment and care. Follow these suggestions:
1) Do not ask to voir dire with every witness.
2) Be surgical through limiting your questions to qualifications and admissibility.
Just because you haven’t been able to interview or depose the witness you are about to cross doesn’t mean you don’t have information to assist you with your examination. What are some of these sources? Consider using:
1) Investigative reports. Police and investigator reports are a vast source of information that may even include statements from the witness. If the witness spoke with someone else before trial and that statement is inconsistent with what was said in direct examination you may use that disagreeing statement to impeach the witness. Since impeachment is a form of cross-examination, this is a perfect fit.
2) An investigator. You may not have access to the witness, but you can employ someone to visit the scene, take photographs, making diagrams, and interview others. In some ways, this takes the situation out of true blind cross. No matter how you look at the use of investigators, they confirm facts and get you potential dirt.
3) Quoting documents. You may have a document from someone who will not testify, but the document quotes the witness. While you are not able to use one person’s statement to impeach another, you may use it to refresh recollection. The document does not have to be that of the witness. It does not even have to be admissible to be used to help the witness recall. While you may not be able to get the witness to change her story based on the refreshing document, you may still get an admission that the statement is the witness’s. The key here is the setup question: “Do you recall telling [the author] that . . . ?” Even if the witness responds with a “no,” you are able to follow up by saying, “Maybe it would help you remember if you looked at the report.” Ordinarily, we do want to test a witness’s recollection on cross-examination. Here, it is exactly what you need.
4) Another person’s statement. You might have a contradictory statement from someone who may not testify. You are not able to use this statement to impeach the witness. The famous question using another’s statement is, “If I told you there was another person who told us the opposite, would that person be lying?” Unfortunately, this questions is objectionable as speculation and argumentative. The most mileage you can get from a contrary statement from someone who will not testify is to get an admission there is another witness who could testify about what she saw.
5) Other documents. Look for documents that may be in your possession that will illustrate contradictions, bias, or mistakes. Exhibits provide ample opportunity for scoring these type of points.
Under no circumstance is this the time to ask open-ended questions. Open questions give the witness the opportunity to repeat his direct examination one more time. Follow the rules of good cross-examination: always ask narrow, leading questions to carefully chip away at the testimony.
Blind cross-examination is about taking calculated risks. Successful risk-taking requires having an exit plan to abort the cross in the event it begins to go in the wrong direction. When you do blind cross-examination, remember the writings on ancient maps: Hic sunt dracones (Here be dragons). The phrase warns of dangerous or unexplored territories. Such is the realm of blind cross-examination.
Franklin Roosevelt once told us, “We have nothing to fear except fear itself.” This is true for blind cross-examination. Embrace the fear, use what you know, and follow Younger’s First Commandment on less being more. But avoid those dragons!