Feb. 17, 2010 – In his cross-examination, criminal defense lawyer Abraham Lincoln led the prosecution’s witness to admit that he had not actually seen the defendant bite the nose off the victim.
Rather than leave the jury with this startling admission, Lincoln asked the witness how he could believe his client so crudely removed a nose. “I saw him spit it out,” the witness replied, demonstrating the perils of cross-examination studied during a Feb. 5 State Bar continuing legal education seminar.
The program, “Revisiting Younger’s 10 Commandments,” spotlighted the landmark instructions for cross-examination developed by legendary law scholar Irving Younger. Lincoln’s follow-up question would appear to have violated Younger’s fourth commandment (“Don’t ask a question to which you do not know the answer”), his sixth commandment (“Don’t permit the witness to explain his answers”), and his ninth commandment (“Don’t ask the ‘one question too many’).
But allowing the prosecutor to draw out the same deflating information on redirect examination could have left Lincoln looking even more diminished before the jury, some experts have observed. Accordingly, Younger himself has observed that effective cross-examination is difficult and very few lawyers come by the skill naturally.
The 10 Commandments
Younger’s commandments assist with cross-examinations to attack a witness’ credibility or to highlight problems with testimony while drawing out information not disclosed during direct examination. The commandments are:
1st - Be brief. Jurors can only absorb so much information through listening An ideal cross-examination should support no more than three points to argue in summation against the witness’ reliability.
2nd - Short questions, using plain words. Lawyers freed from Latin terms like “voir dire” and stiff language such as “plaintiff’s vehicle” have a better chance of connecting with a jury.
3rd - Always ask leading questions. A leading question is one that suggests the desired answer.
4th - Do not ask a question to which you do not know the answer. Younger warns that if a lawyer does not know the answer and there is any possible answer that could hurt the lawyer’s case, that is the answer the lawyer will get.
5th - Do not allow the witness to repeat his direct testimony. Cross-examination is not an opportunity for a witness to emphasize and strengthen his or her points.
6th - Do not permit the witness to explain his answers. A cross-examination fails to drive home important points when a witness is allowed to wander from the direct question asked.
7th - Listen to the witness' answers. During cross-examination, the witness’s answers are ideally restricted to “yes” and “no” responses. However, a lawyer should listen for any surprises. Similarly, a lawyer should pay attention to the witness’s direct examination testimony.
8th - Do not quarrel with the witness. If you get into arguments with a witness, the jury will likely side with the witness.
9th - Do not ask the "one question too many." Younger explains that this commandment is virtually a corollary of other commandments such as the prohibition against asking questions before knowing the answer. However, the damaging impact of an unwise additional question is potentially severe enough to merit a special mention.
10th - Save the ultimate point of your cross for summation. A juror who understands the points made on cross-examination but does not grasp how they fit the lawyer’s case is likely to pay attention through the rest of the trial to satisfy this curiosity.
Writing questions in advance
As straightforward as they may seem, Younger remarked that a lawyer can easily run afoul of the commandments, violating several in a single question.
Offering tips on how to better follow the commandments, law professor Stephen Easton advised lawyers to write cross-examination questions in advance. Once written out, a lawyer can spot unnecessary words violating the first commandment or remove the legal jargon forbidden by the second commandment.
Moreover, a lawyer with tightly written and thought-out questions retains greater control over the witness’ testimony. Easton illustrated the point with a single question to a witness of a car accident: “Was your view obstructed by a tree?” Rather than this one question that invites a variety of answers, Easton advised pulling out each factual premise of the question so as to lead to a conclusion the witness might otherwise try to avoid:
Q: You were 50 feet from the accident, correct?
Q: There was a tree in this area, right?
Q: And the tree was between you and the accident scene?
Q: It was 20 feet from you?
Q: It was an elm?
Q: The date of the accident was Sept. 21?
Q: The elm still had leaves on it?
Q: And you had to look through the leaves to see the accident?
Easton pointed out that a lawyer risks losing the efficient pattern of “yes” and “no” responses by using adjectives or adverbs that permit the witness to quibble with the question. For example, he said that if asked whether a car had been moving “pretty fast,” the witness could start to condition answers upon the meaning of that term. Consequently, Easton advised lawyers to remove those relative terms from the written questions.
“The fundamental principle behind Professor Younger’s third commandment is that during cross all of the information should come from the attorney, not the witness stand,” Easton explained. “The witness’s ‘yes’ answer should merely confirm the information provided by the attorney.” Accordingly, a good cross-examination question is, “Mr. Jones shot the sheriff, right?” – not “Who shot the sheriff?”
Keeping control of witnesses’ answers
“Despite the supposedly universal trial rule that the witness is only allowed to answer the question she is asked, many judges are hesitant to enforce this rule,” Easton said. “In addition, experts, law enforcement officers and other savvy witnesses know how to take advantage of judicial non-enforcement of the rule against answers that do not respond to questions.”
Because keeping control over the witness’ testimony is a critical precondition for obeying Younger’s commandments, Easton emphasized the need to ensure the questions lend themselves to a “yes” or “no” response. When a lawyer insists on a one-word answer from the witness, Easton warned that the lawyer will lose credibility with the jury if the question does not naturally have a simple response. But the jury will penalize the witness for trying to avoid a straight answer if the question is plain, he said.
Easton said witnesses will assert they are trying to answer the question and the lawyer needs to be able to spot the types of dodges. “Consider the following exchange from my teenage days, when my curfew was 11 p.m.,” Easton said.
Q: Did you get home at 11 last night?
A: Dad, you have to realize that the movie did not get started on time, and we had to put some gas in the car, and…
Q: I am not asking you about the movie or the car. Let me repeat my question: Did you get home at 11 last night?
A: But Dad, if you give me the chance, I can explain…
Q: I did not ask you to explain. Did you get home at 11 last night?
“As the finder of fact in our household, [Dad] simply ignored all of the unresponsive information I tried to provide,” Easton said. “Because the jurors will not necessarily do so, you have to stop the witness from providing that information before it is in the juror’s minds.”
By Alex De Grand, Legal Writer, State Bar of Wisconsin