Wisconsin Lawyer: Practice Tips: Cross-examination Without Discovery: Part 3:

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    Practice Tips: Cross-examination Without Discovery: Part 3

    There are many situations in which attorneys must cross-examine a witness without the benefit of discovery. In this third article of a three-part series, read how to employ the techniques covered in the first two articles to actually conduct cross-examination absent discovery.

    Roger Dodd; Larry Pozner

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    Wisconsin Lawyer
    Vol. 77, No. 7, July 2004

    Cross-examination Without Discovery: Part 3

    There are many situations in which attorneys must cross-examine a witness without the benefit of discovery. In this third article of a three-part series, read how to employ the techniques covered in the first two articles to actually conduct cross-examination absent discovery.

    Sidebars:

    by Larry Pozner & Roger Dodd

    In Wisconsin we generally think of trials taking place after extensive discovery, including depositions. In practice, however, there are many circumstances in which attorneys will need to cross-examine witnesses without having had the opportunity to depose them first. In virtually all criminal trials, attorneys confront witnesses without the benefit of a deposition. This often is true in juvenile and civil commitment cases with strict timelines and in other cases, like small claims, that frequently are litigated on limited budgets for lesser amounts of damages. In these circumstances, a lawyer's ability to cross-examine well without the benefit of a prior deposition often is critical to success in the action.

    In this third article in a three-part series, excerpted from Chapter 31 of their book Cross-Examination: Science and Technique (Lexis Law Publishing), Larry Pozner and Roger Dodd lay out some techniques for conducting the cross-examination absent discovery. Parts 1 and 2 of the series appear, respectively, in the May and June 2004 issues of Wisconsin Lawyer.1

    Sequencing the Cross-examination

    Safety and Control. Of all the benefits and reasons for sequencing chapters of cross-examination, the most important guideline with the "no discovery" witness is to keep control of the witness on cross-examination.2 Of course, the absence of pre-trial discovery tends to lessen counsel's ability to control the witness. The beginning of the cross-examination is more important than usual in that a lawyer's cross-examination of "no discovery" witnesses will tend to be shorter, and the witness will be more able to evade. Consequently, with the "no discovery" witness it is crucial that counsel begin the cross-examination with a "control" chapter.3 If the cross-examiner has solid chapters on motive, interest, or bias, she should lean toward using them at the start of the cross-examination. There is a safe sequence for the "no discovery" witness. The sequence is based primarily on control of the witness and safety for the cross-examiner. Because this is the focus of the sequencing, the cross-examiner's confidence will build as the cross-examination goes on. The witness's confidence will recede for the same reasons that the cross-examiner's confidence will rise.

    Another way to look at this sequencing of the cross-examination is that the cross-examiner is going to start with safety. The cross-examiner prioritizes what will help the cross-examiner's theory of the case and what will hurt the opponent's theory of the case. All else is eliminated. What is left is what is safest. What is safest is where to begin. It may well be that by doing these safe and productive chapters the witness will offer up answers that help in other targeted areas: bias, assistance to the cross-examiner's theory, harm to the opponent's theory, marginalization, or credibility. So much the better. The hastily planned and safe cross-examination has yielded more safe material - only now it is the opponent witness who is forced to work without discovery.

    What Has Hurt the Opponent's Theory. If no motive or credibility chapters are available to the cross-examiner, or when these chapters are exhausted, she can turn to chapters that build on aspects of the direct examination that hurt the opponent's theory of the case. Counsel has used the available motive, interest, and bias material; developed the material that helps her theory or bolsters her witnesses; and exploited the testimony that hurts the opponent's theory. Now the cross-examiner can consider chapters that marginalize the witness. Finally, the cross-examiner can use general credibility attacks that show inconsistencies between this witness and every other witness, inconsistencies with common sense or with documents, or internal inconsistencies in the testimony.

    Logic-based Cross-examination

    The cross-examiner is never restricted to only those questions to which she knows the answers. The cross-examiner may ask with confidence and with safety all leading questions (facts) that logically flow from testimony the witness gives. As an example, the witness has testified on direct examination that he saw the defendant at the crime scene; then, the cross-examiner can logically infer that the witness saw the crime scene and its contents. The cross-examiner can logically infer that the witness then had the ability to see the details surrounding the crime scene. Undeniably, the witness can testify that he did not see other things, but the less the witness recalls of the scene, the less the jury will credit the original testimony. But what if the witness denies the leading questions that logically flow from the facts stated on direct examination? In that event, the cross-examiner will still have a good cross-examination chapter. Imagine a witness who says he saw only one fact but none of the related facts. Such testimony is inherently weak. Testimony that can be shown to be illogical loses its credibility.

    Just as admitted facts logically flow to other facts that should be admitted, certain emotions logically flow from facts. When the admitted facts logically would produce a particular emotional, physical, or behavioral reaction in most people, the witness can safely be asked a leading question that suggests he experienced that emotion, had that physical reaction, or engaged in that appropriate responsive behavior. Show the witness the facts that ordinarily would produce surprise and the witness should admit being surprised. Show the witness a factual setting in which the normal person would inform his or her supervisor, and the witness can safely be asked the leading question, "You told your supervisor?" Certainly, the witness can deny the leading question, but in so doing, loses credibility. The technique of cross-examining from the known fact to the logical but unsourced or undiscovered fact is useful, easy, and safe. It is one of the foundations of cross-examination of the "no discovery" witness.

    This logic-based cross-examination opens up broad factual areas in which to cross-examine logically and consistently with the cross-examiner's theory of the case based on fleeting direct testimony references.

    Example: The "no discovery" witness (police officer) has testified on direct examination that he arrived at the scene of a collision moments after the cars had collided. The collision resulted in a vehicular homicide prosecution. The witness has testified that the defendant was being taken out of his vehicle, and that he observed the defendant to be unsteady on his feet, to be nearly hysterical, and that other on-scene persons had to verbally insist that the defendant not walk away from the scene of the collision.

    Because the witness was at the scene and made the observations concerning the defendant, the witness can be cross-examined successfully and safely on areas that are consistent with the defense theory of the case. The following chapters suggest themselves. The witness should acknowledge that:

    1. it was dark;
    2. it was raining;
    3. there was no lighting at this particular intersection;
    4. the cars were terribly mangled;
    5. there was tremendous damage to the deceased's vehicle;
    6. he would be able to identify the tremendous damage to the deceased's vehicle;
    7. the defendant also was in that same collision and his car also was "totaled";
    8. the windshield of defendant's car was shattered;
    9. it appeared as if defendant had hit his head against the windshield;
    10. a head injury to the defendant was completely consistent with the amount of damage done to his vehicle;
    11. defendant's hysterical behavior was consistent with head injuries;
    12. defendant's loud boisterous conduct was consistent with head injuries;
    13. defendant's being "unsteady" on his feet was consistent with head injuries; and
    14. defendant's disorientation was consistent with head injuries.

    All of these facts are consistent with the defendant's theory of the case. It is true that the witness could refuse to acknowledge any or all conduct resulting from head injuries by saying: "I don't know." Is that really a downside risk to the cross-examiner? The fact finder could accept these responses as illogical or likely untruthful. On the other hand, the cross-examiner could become more aggressive. She could attack the illogical lack of information more aggressively.4 Which way the cross-examiner chooses to go is a courtroom judgment. However, because of the rule of logic, the material available to the cross-examiner greatly expands.

    Direct Examination Chapters Can Be Used for Cross-examination

    If the trial lawyer has prepared chapters for the direct examination of her witnesses, those same chapters can be pressed into service as cross-examination materials. When analyzing the direct testimony of this "no discovery" witness, the cross-examiner has at her disposal all of those chapters prepared for her direct examination of her own witnesses. Those chapters can be used to take on the witness with chapters consistent or at least congruent with the cross-examiner's theory of the case. The technique is to listen for testimony that bolsters or agrees with testimony she will advance. She can then use her chapters to show that, in several respects, the opponent's witness supports her theory of the case.


    Roger Dodd

    Dodd

    Larry Pozner

    Pozner

    Roger Dodd practices law in Valdosta, Ga., and is board certified in both civil and criminal law by the National Board of Trial Advocacy. His practice includes criminal defense, family law, plaintiff's personal injury, and wrongful death cases, and representation of both plaintiffs and defendants in medical malpractice claims. He is a fellow of the American Academy of Matrimonial Lawyers and is listed in the Best Lawyers in America.

    Larry Pozner is past president of the National Association of Criminal Defense Lawyers. His Denver, Colo., law practice includes criminal defense and complex civil litigation. He is listed in the Best Lawyers in America. As a frequent commentator on legal issues, Pozner has appeared on the "NBC Nightly News," the "NBC Today Show," CNN, "Meet the Press," Court TV, and the "Jim Lehrer News Hour."

    This article is excerpted from Chapter 31 of Cross-Examination: Science and Technique by Larry Pozner and Roger Dodd (Lexis Law Publishing). Due to space, the material has been heavily edited. This series will conclude in July with Part 3.


    What the cross-examiner has prepared for one witness (even her own on direct examination) gives aid to her cross-examination. Her first technique is to use what has been prepared for a different witness. Those chapters designed to be effective with the general species of witness, whether on direct or cross-examination, serve as a basis - a starting point with which to actively listen to the direct examination. The cross-examiner is gauging which of her chapters will work, and which can be quickly adapted.

    Building Cross-examination on Consistencies, Inconsistencies, and Contradictions

    Whether the witness is a discovery or a "no discovery" witness, immediately upon hearing the direct testimony, the cross-examiner customarily recognizes how the direct examination of the witness fits into the context of testimony of other witnesses already heard by the fact finder, or to be heard by the fact finder. The cross-examiner also will be able to recognize how the testimony fits with the documents and demonstrative evidence. The fact that this witness was unexpected does not deter the cross-examiner from using those same factors to her advantage with this "no discovery" witness.

    A witness also may offer direct examination testimony that is internally inconsistent with some other portion of his or her own testimony. This is always a worthy subject for cross-examination. Counsel must avoid the temptation to ask the witness to explain the reasons for the internal inconsistency. Instead, separately and independently establish each fact and allow the fact finder to hear the contradiction. Of the two points in contradiction, the better technique is to firmly establish the weaker or more changeable testimony first, then follow up with the stronger or less changeable but contradicting testimony. In this way, the witness is less able to alter or amend his testimony when confronted with the inconsistencies. In other words, firmly lock in the point the witness is most capable of changing, then reintroduce the testimony that was already completely established.

    Using the Witness to Bolster the Cross-examiner's Witnesses or Theory

    Showing the consistency of this witness with helpful testimony that the cross-examiner intends to elicit during direct or other cross-examinations has the natural consequence of aligning this witness with the cross-examiner's theory of the case. The technique is to find items of importance within the direct testimony or within the logical cross-examinations, and to tie them to the cross-examiner's case. Inasmuch as the jury or judge has had the benefit of the lawyer's opening statement, the leading question will communicate that this testimony is a helpful admission by the witness. As the cross-examiner spots these helpful areas, she can cross-examine at greater length because she is in a safe area.

    Showing contradictions with the testimony of the opponent's other witnesses has a favorable impact on the fact finder, while simultaneously discourages the opposing lawyer from calling more surprise witnesses.

    Remember, the witness has gone through no discovery process and as a result is far less able to appreciate the case's subtleties. The witness is likely to testify with as much certainty on facts that help the cross-examiner's theory as on facts that helped the opponent. The witness simply does not recognize the danger. The cross-examiner can often find in the direct examination some testimony that contradicts other witnesses called by the opponent. Counsel has only to put the two witnesses' versions in opposition. As the witness discusses the fact in detail, the witness simultaneously damages the other witness, often with no recognition that this is happening.

    The opposing lawyer knows this witness has been pulled out of the "no discovery" bag. If the cross-examiner can handle this witness effectively or even adequately, a warning has been delivered to the opponent for all other "no discovery" witnesses the opponent is considering calling.

    Impeachment

    When the lawyer has pre-trial discovery of inconsistent statements, she can plan her impeachment as part of a scripted cross-examination. That pre-trial planned impeachment cannot exist when the "no discovery" witness begins testifying. With no discovery, there is no pre-trial prior inconsistent statement. But even this limitation may evaporate once the witness begins testifying. The witness may say something on direct examination and later contradict himself, either within his direct examination or in the course of cross-examination. Realize then that even the technique of impeachment through use of prior inconsistent statements may become available during the cross-examination of a witness when no pre-trial discovery exists.

    Credibility Cross-examination

    General credibility attacks that the cross-examiner may use on any witness also may be applied to the "no discovery" witness. However, because this witness is "no discovery," the lawyer has the same problem: how to find the credibility attacks within the direct examination. To some extent, because the cross-examiner does not have a prepared script for this witness, the cross-examiner's creativity is not restricted, tied down, or scripted. With that said, counsel should concentrate on the basics of the general credibility attacks: bias, interest, and motive.

    Marginalizing the Witness

    The technique of marginalizing a witness certainly applies to the "no discovery" witness. As was discussed in Part 1 of this series of articles,5 most witnesses are niche witnesses. They can testify to a rather small number of facts. If this "no discovery" witness cannot be used to support the cross-examiner's theory of the case, or be used to hurt the opponent's theory of the case, and cannot be attacked safely, or the facts upon which the "no discovery" witness testifies cannot be attacked, then the cross-examiner may consider marginalizing the witness by asking a series of chapters designed to illustrate to the fact finder that this witness knows precious little about the case.

    Endnotes

    1Larry Pozner & Roger Dodd, Cross-examination Without Discovery: Part 1, 77 Wis. Law. 20 (May 2004); Pozner & Dodd, Cross- examination Without Discovery, Part 2: Using Direct Examination as 'Discovery', 77 Wis. Law. 12 (June 2004).

    2Larry Pozner & Roger Dodd, Cross- Examination: Science and Technique (Lexis Law Publishing), Ch. 11, "Sequences of Cross-Examination" (benefits of sequencing cross-examination).

    3Id. at Ch. 9, "The Chapter Method of Cross-Examination" (structure, makeup, content of chapters of cross-examination). "Chapters" are areas of cross-examination that are each a series of goal-focused, leading questions. A successful cross-examination is a series of goal-oriented questions whose logical form is chapters.

    4Id. at Ch. 21, "Dealing With the 'I Don't Know' or 'I Don't Remember Witness'."

    5Larry Pozner & Roger Dodd, Cross-examination Without Discovery: Part 1, 77 Wis. Law. 20 (May 2004).




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