Alternatives to getting a ‘yes’ on cross-examination

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BALTIMORE — The value of effective cross-examination has roots as early as biblical times. In later times, John Henry Wigmore claimed that cross-examination was the greatest legal invention for discovering the truth.

Indeed, throughout time, effective cross-examination has saved many a case heading for defeat. However, careful preparation, of course, is essential. This includes selecting only  topics most advantageous to the case; arranging those topics strategically; maintaining control of the witness; utilizing a style and delivery consistent with your goals; and knowing when to sit down.

In many instances, the art of cross-examination involves a lawyer arguing their case via leading questions to the witness seeking the answer “yes.” For example:

Q: You went to the bar that night?

A: Yes.

Q: You arrived at 8 p.m.?

A: Yes.

Q: When you entered the bar that night at 8 p.m., you saw Johnny being beaten on the head with a baseball bat?

A: Yes.

In essence, leading questions allow a lawyer to not only argue their case, but also have better control of the witness’s testimony.

On numerous occasions, however, the expected answer “yes” is not forthcoming. An alternative approach is to devise a line of questions as the witness proceeds to avoid the “yes” answer with an answer that is neither credible nor believable, such that your desired response of “yes” is what the judge or jury accepts by the ridiculous response of the witness.

The success of this alternative approach depends on tying the cross-examination to the closing argument to highlight the witness’ lack of credibility.

To drill down, consider the Queen Caroline case in England in 1820. This dramatic historic case involved King George IV’s suit against his wife, Queen Caroline, for divorce based on adultery. The case was heard by the House of Lords.

The background of the case presents a sad state of the marriage. Neither was known to regard the other. The king harbored an intense dislike for the queen, and the queen had no love for the king. Both engaged in relationships outside the marriage. Defending the queen was Henry Brougham, a highly regarded and celebrated barrister, who later became Lord Chancellor of England.

Throughout the trial, the most important witness for the king was purported eyewitness Theodore Majocchi, an Italian servant to the queen. During direct examination, he presented powerful evidence against the queen and even testified about the location of the various rooms where misconduct occurred.

On cross-examination, Brougham realized that to every question he posed, the answer was “Non mi recordo.” (“I do not remember.”) Thus, Brougham focused on asking a long series of questions that any eyewitness would answer “yes,” but not Majocchi. His response was always: “Non mi recordo. Non mi recordo.” Even when asked about the position of furniture in the rooms, Majocchi answered, “Non mi recordo. Non mi recordo.”

At closing argument, Brougham pointed out how ludicrous Majocchi’s cross-examination answers were and that surely he had not observed the act of adultery. Consider this excerpt from Brougham’s closing argument:

“Theodore Majocchi, of happy memory, will be long known in this country and everywhere else, after the manner in which the ancient sages have reached in our day, whose names are lost in the celebrity of the little saying by which each is now distinguished by mankind and in which they have been known to have embodied in the practical result of their own experience and wisdom. My Lords this person is a witness of great importance; he was first called and the last examined, continued by the case, and accompanied it throughout. … There is an end of innocent forgetfulness, if when I come to ask where the rest slept, he either tells me ‘I do not know’ or ‘I do not recollect,’ because he had known and must have recollected when he presumed to say to my learned friends these two rooms were alone near and connected, and others were distant and apart. When he said that, he affirmed his recollection of the proximity of those rooms and the remoteness of others. He swore that at first and afterward said ‘I know not,’ ‘I recollect not,’ and perjured himself as plainly as if he had told your Lordships one day that he saw a person and the next day that he never saw him in his life.

(Source: John Lord Campbell Lives of the Lord Chancellors and Keepers of the Great Seals of England, Ch. 3, 1869.)

The Queen Caroline case is an example that demonstrates there are alternatives to obtaining “yes” to leading questions on cross-examination, such as demonstrating that the answers provided by the witness are unbelievable. Tying it in during the closing argument to highlight lack of credibility is an important aspect of this approach.

Paul Mark Sandler, trial attorney and author, can be reached at [email protected].