Cross-Examination: Science and Techniques
Larry S. Pozner and Roger J. Dodd
This is quite simply the greatest book on cross-examination that I have ever come across and worth every penny of the hundreds of pounds that it will cost you to buy. It is not easily available. The latest (third) edition is currently unavailable on Amazon, although rather strangely several second editions are, priced at about £600.00 new, or between £330.00 and £745.00 second hand. I was distraught when, just a few days after my copy finally arrived (stamped ex libris Filosa & Filosa attorneys at law 501 Main Street, Truth or Consequences, New Mexico) I left it in a taxi. Fortunately, thanks to the honesty and good sense of a London black cab driver, instead of flogging it on the dark web, or sending it back to Truth or Consequences, like a forensic pathologist he traced me through dental records, in this case a dentist’s receipt, in the same bag. Thank goodness for rotten British teeth.
It is written for an American audience, so some of the terminology is a little obscure. They have “direct” examination, we have “evidence in chief,” they “impeach” a witness, we “contradict” them, and so on. There are references to procedures that we no longer have in England and Wales, such as cross-examination at committal hearings. Voire dires, motions in limine and other pre-trial manoeuvres that we either don’t have, or that mean something different, crop up regularly. Our courts don’t have “podiums” to and from which counsel can walk while asking questions, more’s the pity perhaps.
Equally we have different rules of evidence: I read nothing in the book, for example, about the essential rule of English cross-examination that cross-examiners must “put” their case to the opposing witness. Nor – and this is unfortunate given the staple diet of criminal advocates these days – is there a great deal of advice on how to question “vulnerable” witnesses such as children, or people with particular mental health problems. Those who have attended courses on the cross-examination of vulnerable witnesses – and that now means most of the English and Welsh criminal bar – will be acutely aware of the tension that can exist between fearless defence and unfair questioning. It would be fascinating to read the authors’ advice on cross-examination of vulnerable witnesses, or even on the special techniques that apply to cross-examining witnesses via a video-link or behind a screen.
This matters a little, but ultimately not very much. So much is covered in such astonishing and helpful detail that it is churlish to complain that some things are not. The basic techniques described by Pozner and Dodd are all applicable in any jurisdiction which allows cross-examination, and especially so if juries are involved.
Pozner and Dodd insist that cross-examination is a technique which can be taught, not a God-given talent which you either do or do not possess. That should be immensely reassuring to the vast majority of aspiring advocates who often don’t have a clue where to begin. They should begin, if they possibly can, with this book.
The key to the P & D method (and I am afraid to other methods too) is meticulous preparation. The ideal is for the cross-examiner to plan the cross-examination of every witness with a series of topics and “chapters.” Instead of aiming to “break” the opposing witness, the P & D method aims to extract every ounce of favourable testimony from them, using a series of simple leading questions, to which the ideal answer is generally a simple “yes.” The over-riding object is to “teach” the jury – or judge – through your cross-examination that your theory of the case is the most probable, or is at least reasonably plausible.
Advocacy students in this country and Australia are often taught by the different “Hampel” method, part of which encourages the preparation of a closing speech before the trial starts, the idea being that this concentrates the mind on selecting the most fruitful areas for cross-examination. Evidence is elicited, which is then hammered home in the closing speech. Pozner and Dodd reject, or at least advise extreme caution with this approach:
“The problem is that as the other side develops its theory of the case, the advocate’s closing argument must be modified, restructured, and in some cases abandoned because of “facts” that are indisputable.”
The result is that precious time has been lost preparing a line of argument that cannot be pursued in the light of the evidence that actually emerges. Instead, the advocate’s theory of the case must be developed through cross-examination. They quote the nineteenth century Lord Chancellor, Lord Brougham:
“The issue of a cause rarely depends on a speech (opening statements and closing arguments) and is but seldom even affected by it, but there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination.”
(I think that is less true, incidentally, than his Lordship’s crisper observation that A lawyer is a gentleman that rescues your estate from your enemies and then keeps it for himself.)
Leaving your best points for a closing speech is a dangerous policy: they need to be made forcefully through cross-examination, and the most forceful way to make them is to bring out the “indisputable facts” that support your client’s case.
With this in mind Pozner and Dodd have developed what they describe as “the only three rules in cross-examination.” They are:
1. Leading Questions Only
2. One New Fact Per Questions
3. Break Cross-Examination Into a Series of Logical Progressions to Each Specific Goal
Unfortunately for those without access to the book, these three rules won’t take you very far without the accompanying explanations and sub-headings.
The early part of the book sets out the way that a cross-examination should be planned: topic by topic, and chapter by chapter. A “chapter” in this context refers to a particular, often very small fact that needs to be established in the cross examination. Each chapter must be completed before moving on to the next, and the order in which the chapters themselves are taken, and the order in which questions within the chapter are asked is often crucial. The beauty of the system is that if it is followed it greatly reduces the danger of conducting the sort of feeble, rambling cross-examination that achieves nothing and is, I am afraid is all too common.
This does not mean that a cross-examination should necessarily be short. The authors stress that sometimes, in order to ensure that a jury has the point, it is necessary to ask a detailed series of questions. The individual questions should be short, but there can be dangers in rushing too quickly to the final question in the series.
A vital skill for any cross-examiner is the ability to cross-reference documents and pieces of evidence that touch on each issue and each witness. One of the most useful parts of the book explains how to make comprehensive and accurate cross-examination notes, that are clear enough to use in court. Every advocate will have had the experience of sitting down and suddenly thinking of a question that they should have asked; or perhaps of asking a question and then suddenly finding you can’t put your hands on the vital passage in a document that contradicts the witness’s answer. You know it’s there, but in the heat of the cross-examination you can’t find it. Nothing looks worse to a client or the jury than to see an advocate flail around in a sea of paper. With Pozner and Dodd’s method you ought to be able to avoid suffering that excruciating feeling.
Some advocates do seem to have a marvellous facility for improvising questions, and in the real world sometimes improvisation is necessary. A whole chapter is devoted to “cross-examination without discovery,” where a witness is called blind or unexpectedly. But except in such unforeseeable situations, this book advises you to work out your plan, and then to stick to it, even when – especially when – the answers seem to invite some off-piste exploration. Beware, the authors warn, of the witness who “baits” the advocate with a change of subject. However tempting it may be to take the bait, once you abandon your plan, the cross-examination has been disrupted. Either you have to abandon the chapter you were dealing with before you took the bait, or you have to come back to it later. Either way, the overall force of your cross-examination will suffer. The good advocate controls the witness, not vice versa.
Although the core of the book is the explanation of how to structure a cross-examination (how dull that sounds, but how critical it is), the authors have some excellent advice on how to deal with the various types of witnesses that all advocates will come across from time to time.
You have a “runaway witness”? Chapter 19 gives you a whole armoury of techniques to regain control. To take just one of these, (said to be particularly effective with a runaway expert witness”: P & D call it “Ask, Repeat, Reverse”:
Q: Mr Allen, you signed Plaintiff’s Exhibit 10, your financial statement, as of August 1, 2000?
A: You have shown me so many documents, I am not sure. I know that I signed some financial statements and others I did not sign. I was trying to borrow money to keep my family afloat for so long, I just wasn’t sure what I was signing many times. They really don’t mean anything.
Q: Mr Allen, you signed Plaintiff’s Exhibit 10, your financial statement, as of August 1, 2000?
A: She knew why I wrote that. Who signed it is beside the point.
Q: Mr Allen, you did not sign Plaintiff’s exhibit 10?
A: “(Mumble, mumble, mumble) I didn’t say that. I signed it”
Alternatively, simply being extra polite can sometimes extract an answer where before there was only obfuscation.
A hand held up, “like a traffic officer’s stop signal” can silently, but effectively, stop a runaway witness in their tracks. And there are plenty of other options, as well as warnings as to how not to do it (don’t ask the judge for help, don’t say “just answer my questions yes or no.”).
Perhaps you have a “don’t know” or “don’t remember” witness? Or worst of all a crying witness? Pozner and Dodd have a way to handle them all.
Well, does their method work?
I am quite sure that it does.
Is it always practicable? It requires an enormous effort in preparation, and with the daily grind of most criminal barristers, it would be hard to use it in very trial; there simply would not be enough time. On the other hand, for that big case, looming in the distance, the case for which you simply have to make sufficient preparation time available, I can’t think of a better way to prepare.
Have I used it?
I have, and if I had not left the book in that taxi I might have used it more. I tried out Pozner and Dodd in a simple Magistrates’ Court trial. The results were mixed. The method undoubtedly works. It instils confidence and makes your questioning sharper and, I think, more effective overall.
On the other hand, the chairwoman of the bench descended from her judgement seat and called me aside as the parties were leaving court:
“Mr Scott, can I have a word please.”
Oh great, I thought, she’s going to compliment me on my forensic rigour. I will tell her that Pozner and Dodd are the ones to thank.
“Mr Scott, in this court we expect our advocates to dress smartly.”
Earlier in the day there had been one or two hang-dog solicitors in scruffy suits and egg-stained ties. Legal Aid does not pay for optional extras like dry-cleaning. Clearly her expectations had not been fulfilled.
“Quite right,” I agreed. “Very disappointing. Some people just won’t make an effort.”
No compliment was immediately forthcoming.
“Sad,” I said, (reading Pozner & Dodd leads to a bit of a transatlantic swagger).
“We expect our advocates to be smart. And Mr Scott, you are not smart. Your collar is frayed. We are very disappointed.”
And with a swirl of her lilac pashmina she was gone.
Notwithstanding the ruinously expensive 3-piece Gieves and Hawkes suit, the highly polished black shoes and the luxurious Jermyn Street hand-printed silk tie, like a Company Sergeant Major finding a speck of dust on a squaddie’s Sam Brown her gimlet eye had found a fault.
I look forward to Pozner and Dodd on court-room attire.