Sunday, March 20, 2011

Why Ask Why? The Fundamentals of Cross-Examination

Last week I had the privilege of escorting Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized.  Mr. Bugliosi, 76 years old, is best known as the prosecutor that put Charles Manson away.  He is also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, 'Till Death Us Do Part, and Outrage.  He will tell you, however, that his biggest claim to fame is his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy.  Other than this mock trial, Gerry Spence boasts a perfect trial record.

One of the things about which Mr. Bugliosi spoke was cross-examination.  He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action.  Lawyers are warned that they should never allow a witness to explain themselves on cross.  Well, Mr. Bugliosi does not exactly agree with that maxim.  Here's what he had to say on the subject:

Even if I do not ask "why," the lawyer who called the witness, if alert, will do so on redirect.  The witness has then often had a court recess or perhaps overnight to think up the very best answer to the "why" question.  I would much rather force the witness to answer on cross, not giving him extra time to fabricate.
Although both lawyers can avoid asking the "why" question and, as in some other situations, "save for final argument" the implications of the witness' testimony, by that late point in the trial the witness' reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.
The "why" question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn't first blocked off possible and anticipated escape hatches.  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell.  When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well.  So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable.  But a witness can't go somewhere when he has nowhere to go.
If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action.  The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the "why" question.  If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.
Mr. Bugliosi made sure to caveat that we should never ask the "why" question unless all possible escape hatches have been blocked off.  He was truly an outstanding speaker on this and many more topics.