Be patient, son.
How many times have I heard that phrase in my life? How many times have I said that to others? Many. Likely too many to recall and too many to count. Yes, patience is a virtue but I’m not a patient person. However, a killer cross examination requires patience and more — it requires active listening in real time and then doggedly pursuing every attempt a witness may take to evade the question. Some key points of this discussion:
- be patient;
- keep moving forward toward your goal;
- knock down down attempts to pass like a tennis player approaching the net;
- be relentless; and,
- eventually, you’ll cut off the witness, leaving him nowhere to go but to answer the question.
In a killer cross examination, if you follow the above rules, what happens during the cross examination is remarkable — while ultimately getting to the goal of the cross examination, the examiner will also expose the witness as an evasive and argumentative witness. This is a killer cross examination.
Take a look at this recent cross examination in which I cross examined a detective that took interrogated our client and made some exaggerated claims to our client during the interrogation, claims that were designed to convince our client to confess.
First, the detective told our client during an interrogation that he had researched the topic of x-rays and the procedures involved. This was a lie that I wanted to expose:
The detective equivocated so I forged ahead, patient but relentless:
Notice how he starts to backtrack and stammer. His claim that he had researched x-ray procedures and talked to professionals quickly becomes something informal and imprecise. Notice how the detective tries to answer the question about “naming” the professionals with something else, i.e., information about procedures and processes that he thinks will hurt my client.
I was patient. I continued moving forward asking him about his official investigation. He must’ve realized that he was in trouble and now he’s backtracking, flailing his arms and equivocating. Notice how I don’t bite — “its either a part of your investigation or not?”:
Not only was I proving that he had lied to our client but do to his answers, he was proving himself to be untruthful. Quite honestly, he’d have been better saying, “I lied to your client” rather than this smorgasbord of answers. The killer cross examination exposes this evasiveness — focusing on each effort at being evasive as we march towards our original goal.
In the interrogation of our client, he claimed that he had talked to “x ray people” but a moment ago, he said it was only a “person” so I pursued that difference:
Notice how unbelievable his answers are: people vs person, lack of memory of the month, lack of memory of the day and nothing notated in his reports. I intended to damage his credibility but this damage is self-inflicted. Of course, when a witness is willing inflict more damage on himself, I’m going to let them.
I start to tie his non-answers and contradictions together to make the point:
Notice how he continues to backtrack. He tries to deny it was research but is trapped with his own words. Caught, he dives into the answer head first — like a guy jumping on a grenade: “I was satisfied with it.” So I reminded him of the original topic, his lie about “research”:
I could’ve let it end there but his self-serving explanation that he’s trying to be forthright can’t stand. Its obvious that he’s not but I wanted to underscore the point. I keep turning up the heat, exposing the evasiveness and using his evasive answers against him:
As you can see, my patient and persistence was paying off. He has characterized his “research” as a nearly happenstance encounter with someone in the hallway. I take his answers and tie them to what he did and did not tell our client. Notice that where in the beginning, I had a point to make about “research” he has now given us more than just a lie about “research” but a series of contradictory, nonsensical, evasive answers.
In the end, notice how on one topic, whether he actually lied to our client about doing “research” in to x-ray positions, he refused to concede that he in fact lied or overstated that fact. It would have been a bit painful for him but the cross would’ve exposed that one point and only that one point but he would’ve gotten credit or scored some points for being “honest” and admitting his shortcoming. Rather than doing that, he tried to evade and argue — kind of like someone trying to thrust and parry while falling down in a losing match.
As you can see, I was determined, persistent and patient in getting to my objective on cross examination. Along the way, I capitalized on his evasiveness and combativeness. By following these techniques and samples, you too can conduct a killer cross examination of a critical witness — just be patient.