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1 Citation: 38 Am. J. Trial Advoc Provided by: Klutznick Law Library / McGrath North Mullin & Kratz Legal Research Cente Content downloaded/printed from HeinOnline ( Tue Feb 9 14:05: Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: &operation=go&searchtype=0 &lastsearch=simple&all=on&titleorstdno=

2 Risk Management in Cross-Examination Kenneth J. MelillP Abstract This Article helps minimize the uncertain tiesfound in cross-examin a tion byproviding techniques to manage those risks. Specifically, the author presents formulae for preparing and executing categories of crossexamination questions in order to avoid unnecessary risks. Introduction One scanning the literature on the subject of cross-examination might be tempted to conclude that cross-examination is the trial lawyer's equivalent of the circus performer placing her head inside the lion's mouth. Cross-examination has been described as an opportunity for disaster' and as your best opportunity to lose your case. 2 Cross-examination, we are told, is inherently risky 3 and the uncertainties of crossexamination can be fatal to the cross-examiner. 4 Cross-examiners are accordingly admonished to take chances only when the odds are decidedly favorable.' Gamble only if it is absolutely necessary. 6 Harmful testimony during cross-examination is more damaging than the same testimony elicited by the opposition during direct examination.' "A bad cross-examination is much worse than no cross- ' B.A. (1976), Yale University; J.D. (1979), New York University School of Law. Kenneth Melilli is a Professor of Law at Creighton University School of Law. The author gratefully acknowledges the assistance of Nathan Dallon, Allison Shokes, and Pat Andersen. ' Scott Turow, Crossing the Star, 14 LITIG. 40, 42 (1987). 2 STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 51 (1993). ' Id.; James W. McElhaney, Cross-Exam Surprises, 92 A.B.A. J. 22, 22 (2006). 4 BOB GIBBrNs & A. RUSSELL SMITH, AMERICAN LAW OF PRODUCTS LIABILITY 74:45 (3d ed. 2001). ' Roy L. Reardon, Cross-Examination- "To Sin or Not to Sin ", 25 LITIG. 30, 34 (1998). 6 GIBBINS & SMITH, supra note 4, 74:45. ' F. LEE BAILEY & KENNETH J. FISHMAN, EXCELLENCE IN CROSS-ExAMINATION 10.1 (2013).

3 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 examination at all." 8 It is "[b]etter not to cross at all than to cross and fail." 9 Absent some compelling reason to act otherwise, anyreservations about success should, it is recommended, be resolved by waiving crossexamination. o Is it any wonder that cross-examination causes trial lawyers to experience fear and anxiety?" 1 Forewarned that danger is hiding around every comer, only a fool takes a carefree stroll in that neighborhood. Nevertheless, particularly as novices, we cannot resist the invitation to press forward in cross-examination, often based upon the excessively optimistic projection that the question will probably produce a favorable result. Probabilities, however, are not certainties. The attorney who crossexamines based upon probabilities is still gambling. And it is only a matter of time before a gambler loses. In some enterprises, the prospect of losing might be acceptable if it is adequately offset by a greater number of winning ventures. However, the cross-examiner cannot settle for merely a high batting average. The trial lawyer's success at trial depends in part upon what the jury thinks of the lawyer. It would be foolish to imagine that, when counsel asks the jury for a favorable verdict, the jurors' decision will be based solely upon the evidence and not in any part upon the extent to which the jurors have come to regard the lawyer as someone whose representations can be trusted as honest and respected as worthwhile. Cross-examination in particular is, and is likely to be perceived by the jurors as, a contest between the lawyer and the witness. 12 Moreover, the jurors are likely, at least presumptively, to side with the witness. 13 Nevertheless, the lawyer cannot afford to lose that contest. 14 Yet, that 1 43 WILLIAM C. FLANAGAN & HARRY P. CARROLL, MASSACHUSETTS PRACTICE SERIES, TRIAL PRACTICE (2d ed. Supp. 2013). 9 PAUL MARK SANDLER, ANATOMY OF A TRIAL: A PRIMER FOR YOUNG LAWYERS 215 (2d ed. 2014). '0 FLANAGAN & CARROLL, supra note 8, " THOMAS A. MAUET, TRIAL TECHNIQUE 6.1, at 215 (4th ed. 1996). 12 LUBET, supra note 2, at MAUET, supra note 11, at LUBET, supra note 2, at 51.

4 20141 RISK MANAGEMENT IN CROSS-EXAMINATION is exactly what occurs with an ineffective cross-examination. The lawyer who fails in that enterprise has discredited herself in the eyes of the jurors. 15 The reason for this is the nature of the leading question, which is likely to be the form of many, if not all, of the questions asked on crossexamination. When the cross-examiner asks a leading question, it is the attorney, and not the witness, who is really testifying. The state of mind of the cross-examiner when articulating leading questions should be that it is she-the cross-examiner-who is representing to the jury that the fact contained in the leading question is true. The role of the witness is simply to agree with the lawyer. This notion-that the attorney is "testifying" to all assertions contained in leading questions6-is precisely why gambling on crossexamination (and the significant risk of failure that accompanies such risk-taking) is so inevitably catastrophic. A lawyer who asks a leading question on cross-examination is rebuffed by the witness and is impotent to defeat the witness's resistance has effectively impeached herself. When a witness is impeached on a particular point, it is quite likely that the witness suffers a loss of credibility in the eyes of the jurors, not just on the impeached testimony, but also on all or much of the witness's testimony. After all, if the witness is lying or mistaken about one portion of his sworn testimony, how can he be trusted as to anything else? So, too, a lawyer who effectively impeaches herself with a failed leading question risks losing her vital personal credibility with thejurors. She will appear to have been exposed as having attempted to bluff the jurors into believing something that is not necessarily correct. As a consequence, it is difficult to conceive that what the lawyer has told or will tell the jury-in her opening statement and her closing argumentwill not be received with increased skepticism. As a consequence, it simply will not do for the cross-examiner to calculate probabilities. Whenever possible, the cross-examination should consist exclusively of questions exposing the lawyer to no reasonable risk of failure. 5 William F. Powell, Cross-Examination Rules, 27 A.F. L. REV. 113, (1987). 6 McElhaney, supra note 3, at 23.

5 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 How one goes about accomplishing such relatively risk-free crossexaminations is the subject of this Article. I suggest the following formulae for preparing and executing categories of cross-examination questions that are both advantageous and virtually immune from any foreseeable risks of failure. I. Category One Questions The basic building blocks of a risk-free cross will be what I call "Category One Questions." A Category One Question (COQ) is a question that meets the following two criteria: (one) the fact stated in the question is a fact which is favorable to the proponent's case, and (two) the proponent can make the witness agree with the asserted fact or otherwise can assuredly persuade the jury that the fact asserted in the question is true. The best sources for COQs are any prior statements of the witness, including, most helpfully, prior deposition testimony, grand jury testimony, and affidavits. For example, suppose that the witness, at his deposition, testified as follows: "I followed Bill to the hotel because I was suspicious about whom he was meeting." Suppose also that everything contained in this sentence is, in the substantive context of the trial, favorable to the cross-examiner's case. The cross-examiner should construct COQs based upon this sentence in the transcript of the witness's deposition. In constructing COQs, the attorney should follow several rules. First, COQs should always be in the form of leading questions. They should be leading questions because the cross-examiner wishes to convey to the jurors that she is placing her personal credibility behind the assertion veiled as a question. This is accomplished by taking the assertion (e.g., "The car was red"), and adding a prefix (e.g., "Isn't it true that the car was red?"), adding a suffix (e.g., "The car was red, wasn't it?") or simply changing one's voice intonation (e.g., "The car was red?").

6 2014] RISK MANAGEMENT IN CROSS-EXAMINATION Second, with the exceptions of alterations necessary to make the question intelligible and grammatically correct, COQs based upon the witness's prior statement should track exactly the language used by the witness in his prior statement. This removes any risk that the witness might claim that there is some distinction between what he said before and what he is being asked to say now. The witness is virtually forced to agree with the cross-examiner's assertion. And if the witness nevertheless resists and is consequently impeached, that impeachment is optimized because the witness will be forced to admit that his own words are the words that he now denies are true. Third, as is generally true in all cross-examination, COQs should parse the prior statement so that each COQ contains only one new idea. 7 In this way, like getting a small child to eat something by cutting it into small pieces, it will be more difficult for the witness to resist each tiny extension of what has already been acknowledged by the witness. Moreover, if the witness does resist a particular COQ, there will be no difficulty identifying the particular point of resistance. Putting these three principles into action and utilizing the example of the witness who testified on direct examination, "I followed Bill to the "7 One exception to this "one idea" or "small bites" notion occurs when the crossexaminer is making reference to what the witness said on direct testimony. Generally, it is at best useless and usually counterproductive to simply have the witness repeat what he said on direct. Sometimes, however, the cross-examiner has some questions about a particular portion of the witness's direct testimony, and must refer to that testimony to set the stage for her own questions. When doing so, the cross-examiner should use only one question (or as few questions as possible) in referencing the relevant portion of the direct testimony. In that way, the repetition of what the witness said on direct will occupy the minimum portion of questions asked and time taken during the cross-examination. Suppose, for example, the witness testified on direct that he left his home at 10:30 a.m., went to the bank, went to the pharmacy, went to the grocery store, stopped for gas, and returned home around 1:45 p.m. Suppose further that the cross-examiner wishes to ask some COQs about this particular journey. Rather than asking multiple, "small-bite" questions to set the scene, the cross-examiner can simply ask: "You testified on direct that you left your home at 10:30 a.m., went to the bank, went to the pharmacy, went to the grocery store, stopped for gas, and returned home at about 1:45 p.m.?" This question might appear to be vulnerable to an objection that it is a compound question. However, under the circumstances, and as long as the question appears to be accurate and not misleading, the cross-examiner ought to succeed by responding that it only asks one question-that is, whether that is what the witness said on direct examination.

7 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 hotel because I was suspicious about whom he was meeting," the resulting COQs should emerge something like this: Q: You were suspicious? Q: You were suspicious about Bill? Q: About whom he was meeting? Q: So you followed Bill? Q: You followed Bill to the hotel? Properly identified and formulated, COQs have no foreseeable risk of failure. By virtue of the form of the question, the witness has two choices of answers that are responsive to the question. The witness can agree with the cross-examiner's assertion, which is a positive result for the cross-examiner. Alternatively, the witness can deny the assertion. In that event, the cross-examiner can impeach the witness with the witness's own prior statement, which is at least as good as, and is probably better than, it would have been had the witness simply acquiesced in the first place. If the witness does deny the assertion, this creates a contest of credibility between the lawyer and the witness. At that point, the crossexaminer, verbally and otherwise, must convey to the jury that she disbelieves the witness." The lawyer can confidently do so because the imminent impeachment will surely cause the jurors to side with the lawyer in this context. The difference between this successful cross-examination experience and one in which the attorney gambles that the witness will probably agree is that the latter attorney has no real recourse if the gamble fails. Her failure is not a matter of execution; it is a substantive failure in her choice of questions. 9 COQs are superior to the probability approach because the attorney who executes COQs chooses to fight only battles that she knows she will win." The reader might concede the virtue of COQs but might question the value of cross-examinations limited to COQs. Specifically, one might s Turow, supra note 1, at 42. '9 See Michael R. Doyen, On Breaking Commandments, 34 LITIG. 18, 19 (2008). 20 See id. at

8 2014] RISK MANAGEMENT IN CROSS-EXAMINATION observe that witnesses for the opposing side do not routinely include a great deal of information in their statements prior to trial that are helpful to the cross-examiner. However, there are several responses to this reservation. First, the pretrial statement might be more of a gold mine for later COQs than initially imagined. Along this line, do not underestimate the absolute necessity of preparing the cross-examination in advance of trial. 2 ' When a prior statement exists, that means the statement must be studied thoroughly. 22 Moreover, do not merely study the prior statement for ammunition to load your preconceived weapons; the statement must be examined with an open mind to discover possible unanticipated topics for cross-examination. 23 The truth is that no one can either predict or remember everything that a witness says during a deposition or other pretrial inquiry. 24 Second, the attorney, in studying the pretrial statement, should not have too narrow a view of what qualifies as a basis for a COQ. Obviously, anything the witness states that substantively supports the crossexaminer's position regarding an element of a claim, charge, or defense should be highlighted and used. However, other, additional possibilities should be considered. For example, a sometimes overlooked, or at least underutilized, type of COQ is the question that elicits what the witness cannot testify about. 25 A COQ based upon what the witness actually stated in his prior statement is a safe question because, should the witness resist the assertion in the 21 MAUET, supra note 11, 6.2, at JAMES T. O'REILLY & THERESA NELSON RUCK, OHIO PERSONAL INJURY PRACTICE 11.3 (2013); Reardon, supra note 5, at Cf. SANDLER, supra note 9, at As a corollary to this notion, unless one expects the deposition transcript to be introduced at trial in lieu of live testimony from the witness, there is no reason to stifle a rambling opposing witness during his deposition. In fact, in addition to obtaining the answers to her specifically prepared questions, the attorney taking the deposition of opposing witnesses has every incentive to invite the witness to add whatever he wishes to the more controlled questions and answers. The liberated deposition witness might supply valuable source material for COQs at trial. 25 Charles J. Faruki, Cross-Examination that Hurts the Witness, Not You, 33 LITIG. 38, 39 (2007).

9 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 COQ, the lawyer can impeach the witness by contradiction. 26 So, too, a COQ inquiring about what the witness did not state in his prior statement is also safe provided the detail is so significant that the witness would surely have included it in his pretrial statement if it were actually true. For example, suppose a witness for the prosecution, consistent with his grand jury testimony, testifies at trial that he witnessed a white male with blond hair running down the street from the bank that was robbed moments earlier. That same witness also picked the defendant from a lineup and identified him as the person he saw running. The crossexaminer, who represents a white male with blond hair, can safely direct many COQs at the witness based upon what the witness failed to state. The witness did not see the running man rob anyone, did not see him inside the bank, did not see him with a gun, and did not see him with any money. Moreover, the witness did not see the type or color of the man's shoes, pants, or top. Should the witness resist agreement with the crossexaminer, she can impeach him by the omission of these details from his grand jury testimony. That inference is only enhanced if there was a specific question during the grand jury testimony calling for inclusion of the type of details omitted by the witness. The bottom line is that there are frequent opportunities for COQs to be based specifically upon what the witness did not, and therefore cannot, say. Such questions are often useful in exposing the witness's testimony on direct as being of limited significance, if not substantially immaterial. Third, the fact that the resulting cross-examination might be very limited, with some damaging direct testimony left unaddressed on cross, is not a bad thing. 27 Short crosses are actually desirable. 28 A crossexamination is only as good as its worst question: better to conduct a cross-examination with six excellent questions and sit down than to ask those same six questions plus six additional, inferior questions. Moreover, the fact that there might be some unaddressed, damaging testimony from the direct is irrelevant. The object of each and every component of the trial is to win the trial. Thus, the object of each cross- 26 Id. 21 Id. at LUBET, supra note 2, at 5 1.

10 2014] RISK MANAGEMENT IN CROSS-EXAMINATION examination is to succeed in the overall objective of winning the trial. 29 It is not the object of the cross-examination to win the cross, as if the cross is an independent competition. Because it is the overall objective of winning the trial that matters, there is no requirement of symmetry in the trial's component parts. Of course, it is true that, if the advocate's case is substantially damaged by the direct testimony of an opponent's witness, the advocate must find a way to overcome that direct testimony. However, that need not be accomplished on the cross of that witness. It might, for example, be accomplished by the testimony of other witnesses or by the introduction of other evidence. In fact, it is generally unrealistic to expect to win the trial on crossexamination. 3 " Skillful cross-examiners appreciate the division of labor between cross-examination and closing argument. Among other distinctions, one important difference is that the lawyer speaks uninterrupted to the jury when closing, while cross-examination does involve some participation by another person-the witness-who does not share the cross-examiner's goals. Consequently, it is sound advice to ask only those questions on cross that are necessary to set up the closing. 31 Do not attempt to do on cross what should be done during closing. Before trial, then, the advocate should have some idea of the evidence likely to be presented on either side. 32 If the opponent is to offer some troubling testimony from her own witness, the advocate better have a plan for dealing with that testimony. If the direct testimony of an opposing witness can be safely refuted or disarmed by COQs on cross, then proceed accordingly. If an alternative option will work, so proceed. However, if the advocate has no plan for success, that is no reason to shoot bullets into the darkness by asking risky questions on cross-examination. First of all, such explorations are rarely successful. 33 Second, if the opponent has apparently irrefutable, outcome-determinative evidence, perhaps you ought not to be going to trial at all id. 30 Powell, supra note 15, at 114. "' Id. at ; Faruki, supra note 25, at Powell, supra note 15, at 115. " Id. at MAUET, supra note 11, 6.2, at

11 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 Thus far, I have assumed that there exists some prior statement of the witness to be cross-examined, that statement being the source of the cross-examiner's COQs. It is, of course, not always true that the crossexaminer will possess some prior statement of the witness. The absence of such a statement makes the task of creating COQs more difficult, 35 but not impossible. Even in the absence of a deposition transcript or the like, there are usually some source materials to create COQs. In fact, even when the cross-examiner has a prior statement of the witness as a potential source to construct COQs, she should not limit herself to the prior statement. For example, the cross-examiner can use the prior statement of another witness called by the other side. 36 Suppose that the opposition will call witnesses A and B. Also suppose that each will testify about event X. A, in his deposition, states fact Y concerning event X. Fact Y is a helpful fact for the cross-examiner. The cross-examiner can certainly pose one or more COQs to witness A concerning fact Y. However, the crossexaminer can also safely pose the same COQs to witness B concerning fact Y. This is because B will have to admit Y or contradict A. The latter result will raise questions about the credibility of B, and possibly of A as well, each of whom has testified in a manner largely helpful to the opposition. In either case, the cross-examiner has been successful. Common knowledge can be a source for COQs. 37 For example, a witness who was driving west at 9:00 a.m. can be asked COQs about the sun not being in his eyes. In the unlikely event that the witness refuses to agree with the cross-examiner, the jurors will surely side with the lawyer, an outcome that she should nurture by her expressions of incredulity at the witness's testimony. Unequivocal and uncontroverted scientific evidence can be a source for COQs. 38 For example, if there is evidence that the witness's finger- " The advantage of having a prior statement of a significant opposing witness prior to trial counsels in favor of creating those statements, for example, by noticing depositions or seeking interviews. 36 O'REILLY & RUCK, supra note 22, 11.3; SANDLER, supra note 9, at WILLIAM E. WEGNER ET AL., Canons of Cross-Examination, CAL. PRAC. GUIDE CIv. TRIALS AND EVIDENCE 10:184 (2013); Doyen, supra note 19, at WEGNER ET AL., supra note 37, 10:184.

12 20141 RISK MANAGEMENT IN CROSS-EXAMINATION prints were found on the gun, the cross-examiner can safely pose COQs to the witness about his having handled the gun. COQs can be prepared to attack the witness's credibility, 39 such as to demonstrate bias 40 or to attack the witness's character. 4 The source for these COQs might not be in the witness's own prior statement. However, the COQs will be perfectly safe as long as the evidence to refute any denial by the witness is practically incontrovertible, such as a record of a prior conviction. Even in the worst case scenario, in which the cross-examiner has no prior statement and no advance information about the witness or his testimony, the cross-examiner does have the opportunity to listen to the witness's testimony on direct. 42 The lawyer should listen carefully for possible source material for COQs. Sometimes the witness says something on direct that is helpful to the cross-examiner's case. 43 Even if the cross-examiner has a prior statement of the witness and has already prepared some COQs, she should listen carefully to what the witness says on direct. She should be alert forpossible additional COQs. She should also pay close attention to the language used by the witness in recounting events covered in his prior statement. The cross-examiner should consider whether the language used by the witness at trial is more advantageous than that contained in the prior statement and modify her prepared COQs accordingly. If the witness describes events at trial using language more favorable to the opposition than the language he used in his prior statement, the cross-examiner can form COQs based upon the language in the prior statement. 44 This will either force the witness to retreat from his " Powell, supra note 15, at SANDLER, supra note 9, at Id. at Faruki, supra note 25, at Id.; Powell, supra note 15, at When forming COQs in this type of situation, the cross-examiner should always be mindful that a leading question is the cross-examiner's testimony. Every leading question contains an assertion, and that assertion mustbe something the cross-examiner wants the jury to accept as true. In any situation in which the leading question will contain an assertion that the cross-examiner does not wish to endorse, the leading question should contain an appropriate disclaimer. To illustrate this point, suppose you

13 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 exaggerated version of the events at trial or suffer being impeached with his prior statement. II. Stretch Questions One of the admonitions in constructing COQs is to track the language exactly from any prior statement that is the source of the COQ. If the language is modified, then success in the event of impeachment is not assured. For example, suppose it is to the cross-examiner's advantage that the plaintiff, Mr. Smith, was as angry as possible. At his deposition, the witness testified that Smith was "a little angry." Suppose that, in a carelessly formulated COQ, the cross-examiner asks: "Isn't it true Mr. Smith was angry?" and the witness answers, "No." If the cross-examiner attempts to impeach the witness with his deposition testimony, she will ultimately be forced to ask the witness if he, at his deposition, described Smith as "a little angry." A savvy witness will answer, "Yes, but that's not what you asked me before. I would describe him as a little angry, but I wouldn't say he was really angry, if you know what I mean." At that point, the impeachment has fizzled and the lawyer has probably damaged her own credibility. By contrast, if the COQ had tracked the exact language---"isn't it true the plaintiff was a little angry?"-the crossexaminer would have either obtained a favorable answer or enjoyed a successful impeachment. represent Mr. Jones, the defendant in a civil case. A witness for the plaintiff testifies at trial that, when he spoke to the defendant, the defendant was "very angry." At his deposition the witness described the defendant as "a little upset." Your position is that the defendant was perfectly calm. In this circumstance, a careless construction of a COQ might go something like this: Q: You testified on direct that Mr. Jones was very angry? Q: Isn't it true that he was actually only a little upset? This second question is unacceptable because, in it, the cross-examiner has affirmed that the defendant was a little upset, and that should not be the lawyer's position. The necessary disclaimer would result in modifying the second question. Here are two ways that could be accomplished: Q: Isn't it true that, according to you, Mr. Jones was only a little upset? Q: Isn't it true that what you actually claim is that Mr. Jones was just a little upset?

14 2014] RISK MANAGEMENT IN CROSS-EXAMINATION Does that mean that the cross-examiner may never modify the language at the witness's prior statement to try to obtain a more favorable result? Actually, it does not. The cross-examiner may stretch (and hence the name: "stretch questions") the witness's language provided she follows these -rules: 1. The language of the stretch question (SQ) should be reasonably similar to the language of the prior statement of the witness. 2. A COQ, tracking the exact language of the prior statement, should be prepared to follow immediately after the SQ. 3. If the witness agrees with the assertion in the SQ, do not ask the COQ that would follow the SQ. 4. If the witness declines to agree with the assertion in the SQ, do not attempt at that point to impeach the witness with his prior statement. 5. If the witness declines to agree with the assertion in the SQ, proceed immediately to the parallel COQ. 6. When asking the COQ, do not appear to be retreating. Instead, behave as if you are forcing the witness to retreat from his refusal to agree to the SQ. 7. If the witness declines to agree with the assertion in the COQ, impeach the witness with his prior statement. Applying these rules to the Smith scenario, the relevant cross-examination segment would begin as follows: Q: Isn't it true that Mr. Smith was angry? The question is a reasonable stretch question because "angry" is reasonably close to "a little angry." The witness might acquiesce to the SQ, and, if he does not, the cross-examiner can move seamlessly to the COQ. By contrast, the lawyer should not overstretch the language. For example, if the question put to the witness was, "Mr. Smith was raging uncontrollably, wasn't he," there would be little chance that the witness would agree, and an even smaller chance that the lawyer could transition to the COQ without confessing a dramatic retreat. If the witness resists the stretch question, the sequence would proceed as follows:

15 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 Q: Isn't it true that Mr. Smith was angry? A: No, not really. Q: Mr. Smith was certainly a little angry, wasn't he? When the witness resisted the SQ, the cross-examiner did not attempt to impeach with the prior statement. That would have been ill-advised because the SQ did not exactly track the language of the prior statement. Instead, the lawyer moved immediately to the COQ, and did so in such a way as to suggest that the COQ impeached the witness's denial of the SQ. If, at that point, the witness acquiesces to the COQ, it will likely appear that the witness has been impeached. On the other hand, if the witness denies the COQ, the cross-examiner can now securely impeach the witness because the COQ tracks the exact language of the prior statement. III. Category Two Questions What I call Category Two Questions (CTQs) require some thought and creativity. Properly executed, they are, in a word, fun. They are fun for the cross-examiner. They are most definitely no fun at all for the witness. It is probably fair to say that they are fun for the cross-examiner in direct proportion to the extent that they cause such discomfort for the witness and the side that directed the witness. With a CTQ, the attorney does not care what the answer is. CTQs are safe and advantageous precisely because, no matter what answer is given, the answer will be advantageous to the cross-examiner's cause. 45 Because the cross-examiner does not know what answer the witness will give, does not care what answer the witness will give, and is not vouching for any particular answer, CTQs should never be asked as leading questions. CTQs should always be non-leading. Because CTQs are infrequent and isolated, and because the vast majority of questions posed during crossexamination are leading questions, the starkly different form of the CTQ adds to its intimidating effect upon the witness and to its dramatic impact upon the jurors. 4" SANDLER, supra note 9, at 221; Powell, supra note 15, at 116.

16 20141 RISK MANAGEMENT IN CROSS-EXAMINATION Sometimes a lawyer imagines that she has devised a brilliant openended question that will stun the witness into silence and devastate the opposition. Sometimes delivering such a question ends up like throwing a boomerang when the witness counterpunches with a crushing response. Gambling upon the stupor of the witness should be no part of a risk-free cross-examination. A true CTQ is one as to which the cross-examiner envisioned every conceivable answer and constructed a plan for success no matter which answer the witness chooses. 46 If the question posited is truly open-ended (e.g., any question that begins with the word "why"), then the task of considering every possible answer is unrealistic. To make the task manageable, a proper CTQ should be a yes-or-no question, albeit a nonleading question. That way, there are only two responsive answers, and planning for either is a manageable task. In my trial classes, as an example of a properly conceived and executed CTQ, I use the cross-examination of one of my students in a mock trial that was videotaped at a competition many years ago. It was a criminal case in which the defendant was charged with murder. The prosecution's case was based in large part upon the testimony of a prison official who claimed to have received a confession from the defendant over the telephone. The prison official testified both that the caller identified himself by name and that the witness recognized the voice of the caller based upon the defendant's previous incarceration. The prison official immediately reported the confession to the lead homicide investigator on the case, who spent the next three months in a substantially fruitless attempt to discover other evidence against the defendant. Only thereafter did the investigator seek and obtain an arrest warrant for the defendant. By the time the case came to trial, there existed some other evidence identifying the defendant as the killer, but this evidence was all collateral to the telephone confession and the reliability of the prison official's voice identification. During her cross-examination of the homicide investigator, after a sequence of crisp COQs, the student paused for emphasis, and then asked: "Investigator Raymond, after [the prison official] told you that it was [the defendant] who confessed to him over the telephone, were you 46 Faruki, supra note 25, at 40.

17 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 personally convinced that [the defendant] was the person who killed [the victim]?" The student prosecutor objected, but the trial judge permitted the question and the cross-examiner was able to compel the witness to choose between the two options. It was a well-conceived CTQ. It was a non-leading question, but the question effectively limited the witness to answering either "yes" or "no." The cross-examiner had a plan for success with either response. If the witness answered "no," there was nothing else to be done on cross on this point. She had everything she needed to argue to the jurors in closing that they had every reason to doubt the prison official's voice identification since the lead homicide investigator did not trust it. On the other hand, if the witness had answered "yes," her plan was to follow up the witness's answer with two COQs, specifically: Q: [The prison official] told you about the telephone confession on January 2? Q: You did not seek an arrest warrant for [the defendant] until April 5? She wisely, and correctly, understood that no further questions should be asked on cross on this subject. She was much better served discussing the significance of these facts, without the participation of the witness, in her closing argument. Obviously, the possibility of CTQs is contextual. There are many cross-examinations in which there are no opportunities for good CTQs. Yet, when a good CTQ is inserted into a cross-examination, its inclusion is likely very worthwhile. Sometimes, CTQs occur to the cross-examiner inspirationally. Nevertheless, for virtually every cross-examination, it is worthwhile to consider whether any good CTQs can be conceived and incorporated into the cross. IV. Structure At no point in this Article have I recommended that the cross-examiner focus on what she needs to accomplish on cross-examination or what she wants to accomplish on cross-examination. The problem with this top-

18 2014] RISK MANAGEMENT IN CROSS-EXAMINATION down approach is that it potentially influences the cross-examiner to ask risky questions because there appears to be no other way to accomplish the identified objective. I prefer to start with the question: What can I accomplish on crossexamination? This is a bottom-up approach. Instead of having an outline that dictates the questions that you ask, I recommend that you first figure out what questions you will ask, and then construct an outline of the cross-examination. With this in mind, structuring the cross-examination should be accomplished by taking the following steps. First, following the protocols explained in this Article, create each and every COQ, SQ and CTQ that you plan to include in a particular crossexamination. Second, group questions together in segments based upon the topics of each question. In other words, to the extent that there are several questions on the same topic, they should be grouped together in the same segment. Third, within each segment, order the questions in a way that will make sense to the jury and be effective. 7 Fourth, select the order of the segments. 48 One might want to start with the least provocative segments so that favorable testimony can be elicited more easily before confronting the witness. 49 Utilizing the principle of primacy and recency, one might want to place particularly strong segments as the first and last segments." During the crossexamination, when moving from the last question of one segment to the first question of the next segment, help the jurors follow the transition by neutrally identifying the next topic. 51 Conclusion Cross-examination does not have to be the trial lawyer's equivalent of swimming across the alligator-infested moat. Using the principles 47 Id. 48 SANDLER, supra note 9, at 216; Faruki, supra note 25, at WEGNER ET AL., supra note 37, 10: SANDLER, supra note 9, at 216; MAUET, supra note 11, at ' Faruki, supra note 25, at 40.

19 334 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 38:317 explained in this Article, it is possible to construct an effective cross without assuming any significant risk. Of course, trial lawyers come with varying levels of skill and experience. Some are more adept at assessing the risk-reward equation in moving away from safe ground. Some are more talented at dealing extemporaneouslywith the unpleasant possibilities of gambling on crossexamination. Each attorney can assess, in the context of each crossexamination, whether a particular risk is justified. Especially for inexperienced attorneys, the principles spelled out here are recommended. For any trial lawyer, these principles are offered as a baseline for avoiding unnecessary risks.