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The Power of Cross-Examination

Thomas J. Shroyer

Thomas J. Shroyer
Thomas J. Shroyer
This article was originally a broadcast of the Minnesota Law program on News Radio 830 WCCO with Thomas J. Shroyer and WCCO Host Steve Thompson. 

Steve: This is Steve Thompson and I’m pleased to welcome our host, President at Moss & Barnett, Tom Shroyer.
And Tom, we’ve got a great show planned today. You and I are going to visit about trials – more specifically, cross-examination and how it works and how important it is to the process.

Tom: That’s exactly right, Steve. It is the engine of truth, it’s called, in our system of justice, and it plays a pivotal role. It is so important, in fact, that it has become enshrined as a constitutional right for any American facing a criminal prosecution to be able to confront the witnesses who are presenting evidence against the defendant, and so it really is quite an important part of the process and the part that probably gets the most attention from members of the public because it can be so fascinating, so interesting, so dramatic, and receives a fair amount of play, of course, in movies and TV.

Steve: Now, Tom, you’re a civil trial specialist, certified by the Minnesota Bar Association. What does that mean?

Tom: Yes, thanks for asking, Steve. That’s a credential that is held by about a thousand lawyers in Minnesota. The State Bar Association has recognized specialists in a few topics–civil trial presentation is one of them – and it involves mastering the art of trial advocacy and the knowledge of court procedures and evidentiary rules, as well as having a significant amount of trial and pretrial experience, and also favorable reviews and comments from judges and opposing counsel, plus a day-long exam. I mention all of this because if members of the audience are interested in hiring a civil trial specialist, they can get the names from the Minnesota State Bar Association, where they keep that roster. So that is the credential that is material here for our presentation today, Steve, about cross-examination and trial procedures. I must tell you that I’m feeling a little vulnerable here because, of course, you’re going to be cross-examining me.

Steve: What I wanted to ask up front – you brought up civil trial. Civil trial versus criminal trial. Are there differences in the procedures and how things work because people have seen numerous criminal trials portrayed on television and in the movies.

Tom:There are considerable differences, both in procedure and in the law and, in particular, the tremendous complex and very, very highly developed set of constitutional rules that protect the rights of defendants, which either one knows or one doesn't know – and the only way to know it is to do it, and I’m not a criminal defense attorney or a prosecutor, so I can’t cross to that side of the bar.

Steve: One thing about television and the movies, and it seems as though for years and years and years, courtroom scenes, trials, calling witnesses, cross-examination are big dramatic moments. Did they get it right? Did they do a good portraying that sort of thing in television and the movies?

Tom: As a matter of fact, I think that, by and large, they do get it right to this extent. It is the center point, the focal point for most trials. It is the area where things do become the most dramatic just by definition. So in that respect, yes, it is a huge part of the undertaking of any trial and it is the place where typically we would get a dramatic turnaround in testimony, such as a confession that’s unexpected or some other admission that is very harmful to a party’s case. I would say, of course, they stretch the point considerably, but the fact of the matter is, there is no place quite like a courtroom to effectuate a drama akin to what we see in the movies or on TV in the sense of you have the imposing room itself, the courtroom, you have the people in the jury box, the judge in silk robes, and the lawyers following these ancient and still used customs to examine and present evidence. So it’s very intimidating, very powerful.

Steve: You asked me before the program, and I've got to bring this up because this is great you asked, have you been a witness in a trial? Have you ever been in the courtroom? And I said,no, Tom, I’m trying to keep it that way!

Tom: Exactly right, Steve, and I think that goes to an important point though. As I understand it then, you’ve never testified as a witness.

Steve: Yes, that’s correct. I have not.

Tom: And you've never been in court to see a cross-examination either.

Steve: I have not.

Tom: So, gathering from your questions, you nonetheless have quite a few opinions about cross-examination.

Steve: And we are going to get to those in the program today, but right up front, before we take our first break in the program, what is cross-examination and why do the courts allow it? You talked right at the top that this is an important part of the process.

Tom: Yes, it is the engine of truth in our system of adversarial justice, which is a function of being a common law country, following in the footsteps, as we do, of England, where trials really were an outgrowth of trial by combat, which in the Middle Ages, involved the use of knights to joust in a field of combat and the physical winner of that gladiating contest would be deemed the winner of the point in question. Well, that was replaced at some point by lawyers appearing as champions or knights in shining armor, if you will, and arguing the case back and forth in front of an independent party, usually the king or a cleric, to decide the case. So in that process, the courts began to adopt the ancient practice of cross-examination. Some scholars trace it to the book of Genesis in the Old Testament, where God cross-examined Adam and Eve. Others point to the heavy tradition of cross-examination in the Jewish tradition, the rabbinical tradition. It was also recognized in Rome in the Gestinian code and, of course, Socrates used cross-examination to defend himself against charges that he was undermining the youth of Greece. So it has a long background and it is regarded as an important way to get the lie out – to undermine testimony, if it’s not totally truthful or is not credible for any number of reasons, so that a jury, who actually has no power in this process to ask questions or to gather evidence, can receive the full picture about evidence that is important for them to make their decision about innocence or guilt or right or wrong.

Steve: We have much more on this topic coming up on the program. Tom Shroyer, President at Moss &Barnett, talking about cross-examination today on the program. You can always participate if you have a question about this process. Feel free to call 651-989-9226 or toll-free 1-866-989-9226. You can text the studio as well at 81807. Powered by Wellington Window and Door Company. It’s Minnesota Law, Saturdays at noon here on News Radio 830 WCCO.

Steve: Welcome back, Minnesota Law, on a Saturday, each and every Saturday, at noon. Tom Shroyer is in today and we’re talking about trials and cross-examination and why it’s so important. Tom, when we look at cross-examination, I think the biggest thing is: what is an attorney trying to accomplish when they cross-examine a witness?

Tom: Steve, the fundamental purpose is to get out the truth in the matter at hand, but there are other goals that a lawyer has in mind, including pointing out facts that are supportive of the cross-examining lawyer’s part of the case. Sometimes, the purpose of cross-examination is to establish facts that support a legal theory that might be used on appeal. But by and large, it’s to present in a very dramatic or at least a very memorable way to a jury facts that both help the lawyer’s case and hurt the other side’s case. The lawyer might, for example, reaffirm helpful testimony from the direct examination or even bring in new facts, as we were talking, that are useful to the lawyer’s case. Also, to contradict facts and opinions expressed by the witness, including by undermining the witness’s credibility. That’s a huge goal, of course, by showing that the witness either is incompetent to have an opinion, perhaps has no basis in fact for having a memory, wasn’t at the event that is being testified about, or has a poor memory, or is suffering from some bias, such as a desire to win money in a case or a desire to avoid paying money, on the other side of the ledger. So, in short, the purpose of cross-examination is to produce helpful facts and to present facts that are harmful to the other side and undermine the witness’s credibility. Now different parts of cross-examination come into play in this process, including the use of the technique of impeachment and the introduction of documentary evidence, as well, for presenting the case to a jury.

Steve: I’m sure there are rules that govern what you can and can’t do when you’re cross-examining a witness. Now back to movies and television, because I think that’s most of our exposure to cross-examination, whether it’s factual or not. I’m sure there are do’s and don’ts, and they’re probably very specific.

Tom: Well, I don’t know how specific they are, but I would say that they do come under the rubric, generally, it is not permissible to oppress or humiliate or to badger a witness. However, there is a fine line between when a lawyer is asking a question in an assertive, effective way, one that is intended to break down the reluctance of a hostile witness to perhaps testify to the whole truth, or even the truth at all, and crossing that line into invading personal space that’s inappropriate or taking advantage of the courtroom situation to demean somebody as they are appearing on the witness stand. And so the court does have discretion to step in and cut off a lawyer who is getting out of bounds. And one clear line exists in our law, and that is: unless it is an issue in the case, such as a question of religious discrimination in the employment situation, it is not permissible to ask a witness about their religious beliefs for any purpose, but specifically for the purpose of demonstrating that they are or are not a person who ought to be taken at their word.

Steve: Is it one of those things where “tricks,” if you will, trying to cross people up, if you will, cross-examination. “Well, you said this earlier” or “you said this in your deposition.” I’m sure that’s all part of it, is trying to find inconsistencies in the story there, whatever that story might be.

Tom: Well, for sure, and that comes under the general heading of impeachment, and the impeachment of a witness consists in presenting information from outside of their testimony that contradicts their position or their testimony in the case. That is actually not considered a “trick” but rather is considered an important element of cross-examination. Impeachment works, as you can imagine or as you’ve seen, by generally following the same line in each situation, of asking the witness to reaffirm on the stand their testimony from direct about a particular subject, and then confronting that witness with an out-of-court statement that was to the contrary, such as testimony given under oath at a deposition or perhaps they made a written statement to the police or to an insurance adjuster about a matter, or even from a business record that they kept in the ordinary course or, possibly, an email. And so, to confront them with that and to show that they are, at best, mistaken and, at worst, making up the testimony.

We have an example of that, by the way, from the recent Petters case that was noted in the Minneapolis Star Tribune this week in a column, and that was that, during his appearance on the stand, Tom Petters went to great lengths, of course, to portray himself in the best light possible, and the prosecution went after him for, among other things, his lifestyle and, at one point, and asked him if he wasn’t, in fact, a Bentley kind of a guy, that is, a driver of a very rich sports car known as a Bentley, and Tom Petters denied that he was a Bentley kind of guy, whereupon the prosecutor took advantage of that to put up in front of the jury on a blow-up a sales receipt showing that Tom Petters had bought a Bentley and, therefore, showing that he was, perhaps, disingenuous. Who knows how the jury perceived that? But if I can go back just a moment to your fundamental question; it was: isn’t cross-examination all about trickery? And the answer I would say is that, while certain techniques come into play that are effective for getting people to – if you will – lower their barrier, or to express helpful testimony, the bottom line is if all it is is trickery, the odds are the jury will see through that and actually punish the lawyer and the lawyer’s client for resorting to cheap parlor tricks to try to persuade them in something as important as the outcome of a lawsuit.

Steve: Getting back to the point about taking a look at a witness – I would assume, in a civil proceeding, the credentials of the witness, such education, experience, expertise, are all fair game.

Tom: Absolutely right. In fact, parties go to great lengths to find out the bona fides, the curriculum vitae, as it were, of the opposing party’s experts and even of the party’s in the case. So in that regard, Facebook is becoming a huge trove of treasure for the cross-examining bar to mine and plumb for impeaching evidence.

Steve: We have much more coming up. Tom Shroyer talking about cross-examination. It is Minnesota Law, presented by Moss & Barnett, available online at moss-barnett.com, here on News Radio 830 WCCO.

Steve: It is Minnesota Law, presented by Moss & Barnett, each and every Saturday at noon. I’m Steve Thompson and, of course, Tom Shroyer, the President of Moss & Barnett, joining us in the studio today. Tom is the host and the guest today on the program as we talk about cross-examination. If you have a question for Tom about trials and cross-examination, feel free to call us at 651-989-9226 or 1-866-989-9226. You can text the studio as well as 81807, powered by Wellington Window and Door.

Let’s talk about some of the techniques, more specifically, that can be used in cross-examination. We talked about what can and can’t be done, what the court allows, what the judge will allow. What about subtle things like body language, facial expression? Are those all fair game for an attorney in the process?

Tom: Absolutely, they are, Steve. In fact, courtroom presence is a skill that is acquired – like a fine wine aging – with experience and actual performance in the courtroom. A good, seasoned courtroom attorney doing cross-examination will bring to bear any number of elements in an effort to gain traction with the witness, leverage over them, and also to persuade the jury that this is important and meaningful and cause them to start to see the case your way.  For example, dress, clothing – very, very important. Lawyers want to wear dress that presents them in a way that’s credible. Not super flashing – unless that’s your style – but certainly, credibility. Speaking – lawyers are encouraged, especially during cross-examination, to be strong and powerful communicators. Words matter greatly and should be selected with great care, but also, presented articulately and in a way that conveys the sense of direction that the lawyer wants to go in, whether that’s one of being friendly and eliciting a cooperative witness on cross-examination to go your way, or to bore into an uncooperative witness so that they’ll loosen up and give you the information that is so important and necessary to develop.

There are many ways, as well, to use cadence. Raymond Burr comes to mind, for example, playing Perry Mason. I still play his tape in my mind when I’m cross-examining a difficult witness, to keep at it with a particular cadence and rhythm of questioning that leads to the intelligible question and answer that will lead to the confession. Other folks, of course, have different styles. Everyone is unique. Perhaps whispering or using a very soft voice will set the stage for what builds in then to something much more dramatic and powerful by the end of the examination.

Steve: When you ask a question, the witness is compelled to give an answer. And if you’re not satisfied with the answer, or if the witness is beating around the bush, so to speak, can you demand an answer? We’ve seen that in television and on film. Or is that something the judge would say, “You’re not answering the attorney’s question. Please answer.”

Tom: Sometimes a judge will interject and say, “Mr. Witness or Ms. Witness, will you please answer that question?” or “We’re waiting for an answer.” Sometimes they’ll do that at the request of the lawyer who is asking the question or perhaps the lawyer will keep at them with the same question over and over because it does, at the end of the day, present a situation where the jury is seeing someone who is evasive about an important question and that can’t do anything other than hurt their credibility and their side of the case. So, yes, persistence and repetition are certainly necessary elements. They are not forbidden on cross-examination, although with the budget stress and the other pressures on the judges’ calendars these days, they are certainly no longer willing to give the cross-examining lawyer all day long to ask the questions over and over again. They will step in and cut it off at some point.

Steve: Tom, you mentioned quite a while ago on the program when you were preparing for a trial in a case that there was a time limit. Is there a time limit in cross-examination? Well, you have 30 minutes or I have 15 minutes or I have 10 minutes and that’s all I’ve got. The clock is running and that’s it. When the time is up, the judge says, “Sorry, we’ve got to move along.”

Tom: Normally, in the situation we’re talking about, normally, it’s a case where a judge sometimes with the agreement of the parties will set an overall limit on the number of hours that can be used for testimony, so it’s up to the lawyer to decide how to budget that between witnesses. But, of course, at the end of the day, if you’re up against your time limit and you only have 20 minutes left and you’re cross-examining, well, then, 20 minutes is what you get.

Steve: Is that a new development, Tom, the limits on trials? Because I remember you talking about that, well, they’re budgeting about this much time for this particular trial. Is that new or has that always been the case?

Tom: No, that’s a relatively recent development. I’d say that it has come into trials in civil cases, anyway in the last ten years and it is a growing trend though because, for example, in Hennepin County, I think the judges at last report only get about 12 to 15 weeks out of the entire year to present civil cases. The rest is all criminal or family or motion practice, with just lawyers. So there isn’t a lot of time that they have available to process the tremendous volume of cases that confront them.

Steve: I’m sure you remember your first trial and your first cross-examination of a witness. I’m sure every lawyer can remember that.

Tom: You know, I absolutely do, and I remember going home with such a crushing headache. It was unbelievable. I had no idea what to expect. It was unreal. The concentration that it takes to think about what’s happened in direct examination, what the facts outside of the courtroom are, what does the jury think about this, how is the witness behaving? All of that comes to bear in the cross-examining lawyer’s mind, for example, and you have to pull that all together and move forward in a way that is effective for your client. So, frankly, I found that to be like jumping into a cold Minnesota lake in the spring time. It really opened my eyes as to what I needed to do in order to become an effective cross-examiner.

Steve: What about law school? Is this part of the process in law school where there’s role playing, so to speak? Where there’s practice cross-examining? Where there’s mock trials set up so you can learn the art of cross-examining?

Tom: It is the case that law schools have clinical programs and practical classes, as well, for teaching these skills and techniques. The problem is like so many things that there’s no substitute for actual experience. There is just no way to replicate the tension, the drama, the setting of the courtroom, the feeling of actually working with live bullets, as it were, or without a net underneath the high wire. So that really, it does take a combination of both academic training and education, but also, just plain hard knocks experience to learn how to do it over, frankly, a fair number of years.

Steve: Is that part of the process of preparing for a trial? That you work with your colleagues coming up with possible scenarios to try out a plan of attack, if you will?

Tom: Yes, we draw out plans of attack and set up strategies and themes going into a trial and, of course, for every witness, we have to pull together all of the pertinent evidence ahead of time that we might be presenting in cross examination, and I would say, as a rule of thumb, I spend two or three times more time preparing to cross-examine than I do actually in trial. And as we were talking offline during the break, so often something pops up during the direct examination or even during cross-examination that presents a whole new situation that you have to react
immediately to and make it up on the spot.

Steve: And I suppose reading the witness, reading the jury, and getting a feel for the judge is all a part of the process to make sure that the cross-examination does more good than harm. You don’t want to harm your case.

Tom: I liken it to a quarterback in the pocket dropping back for a pass. You know the pocket surrounding you, you’ve got your eye on the receivers going downfield, but you always have to have that feel for the pocket, i.e., what is the jury thinking about this witness? Is the witness really selling? Do you have to attack them on a point that you thought might be important, but maybe you didn’t feel like they sold it to the jury? So all of those factors are taken into account and maybe even leading the attorney to decide to not ask any questions at all because of the futility of the direct examination.

Steve: Tom, in your experience, is this just one of those skills you can’t teach? Like speed, so to speak, in sports? You hear that you can’t teach someone how to be fast. Is that true when it comes to a lawyer and trials and cross examining? It’s something that you either have or you don’t?

Tom: I think there are some folks who are more gifted than others in terms of being able to really creatively adapt language and put together questions in ways that are really highly skillful and challenging for a witness to answer. On the other hand, I subscribe to the view that, by and large, for trial skills, that really, anyone who can get through law school and has the desire and the fortitude to get up in front of people and speak really with enough experience, with enough preparation and with enough attention to their craft can really develop into a highly effective courtroom performer and, indeed, a devastating cross-examiner.

Steve: Tom Shroyer in the studio today, the host of the program. It is Minnesota Law presented by Moss & Barnett, available online at moss-barnett.com. We’re going to come back. We have a text; we have a call, as well. We’ll get to those in a moment. A few more questions, as well, about trials and the art of cross-examination. It’s all coming up on News Radio 830 WCCO.

Steve: Final segment of Minnesota Law, presented by Moss & Barnett. You can find out more about the show and past shows online at moss-barnett.com. Tom Shroyer joining us, President at Moss & Barnett. We’ve been talking about cross-examination. We’ve had this text for a little bit: Why is the jury not allowed to ask questions of the witness?

Tom: A very good question, Steve. The answer is that jurors would be revealing their opinions about the case if they were allowed to ask questions, potentially, or they might ask questions that are objectionable, in which case there is a risk being run that if the jury’s question is rejected on that grounds, that a juror gets offended. So it’s deemed best just for the jury to sit back and take in what’s presented to them. On occasion, a jury will be allowed by a judge to write out a question,as a jury, and present it to the judge for clearance through the lawyers though, to be asked to the witness, but that’s a very rare occasion.

Steve: And a potential future show: jury selection.

Tom: Oh, my gosh, that has become such a science now and it is so important. It’s really quite a fascinating topic.

Steve: To the phones, Mike in Apple Valley has been waiting. Mike, you’re on the air. Hello.

Mike: Thanks, guys, for taking my call. Say, Tom, I got a question about what your insight is on the O. J. Simpson trial. Where did it go wrong and how do you think, I met Christopher Darden here at St. Thomas. He came to speak at my school, and they said they had their man. Where do you think that trial went wrong?

Tom: Very good question. In fact, I had in mind coming into the studio today a couple of examples for cross-examination from the O. J. trial. Of course, a lot of observers say that where the trial went wrong in the first instance was by not transferring the venue out of downtown L.A. out to Brentwood, which was the suburb where the murder actually happened and which the district attorney’s office could have had automatically done, but they chose to not do that. But more fundamentally, and with respect to cross-examination, a couple of things.  First of all, the prosecutor, in this case, it was the assistant prosecutor, Christopher Darden, in effect asked a question during cross-examination that he didn’t know the answer to. During the trial, you’ll recall, he asked O. J. Simpson to try on the glove the famous glove of renown that O. J. had acquired and to see if it was really O. J.’s glove, they asked him to put it on, but in doing so, Mr. Darden failed the litmus test for a cross-examining lawyer. That is, he asked a question he didn’t know the answer to. He didn’t know if it would fit or not and, by the time O. J. had been asked to testify, he had put on weight. He also asked to put on a plastic liner or a latex glove to protect himself from being infected with HIV while he tried the glove on and, of course, it didn’t fit. And that was a central point of the closing argument that led to the acquittal. The other thing that was really quite interesting about the O. J. trial, from my perspective anyway, was the impeachment of the investigating police officer, Mark Fuhrman. That impeachment was on a point that was collateral to or outside of the case namely, whether he had ever, ever in his career, uttered a racial slur. He denied that he had done so, at which point the trial judge allowed the defense team to pull in eyewitnesses who testified that, yes, on prior occasions outside of the O. J. case entirely, he had uttered the slur. So that was really quite, I thought, a remarkable development. I’m not sure a lot of judges would have allowed that impeachment. But at least, those are two situations involving examination and the presentation of evidence where that trial really seriously went south.

Steve: All right, Tom, we’re almost out of time on the program today. Great topic, and once again, the hour went very quickly and we appreciate the people that called the program and sent texts today. There’s still a lot to talk about. We may have to revisit this at some point in the future.

Tom: Indeed. I didn’t even get the chance to reveal any of my tools of trade or trade secrets here which, of course, I’m not sure I would have done anyway, but we’ll offer that up as a teaser for the next time.

Steve: All right, Tom. Fascinating show today. Thanks much.

Tom: My pleasure. Thank you.

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