Are you cross-examining that witness for mistake, bias or corruption?

Posted Monday, October 21st, 2013 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to General Public, South Carolina Specific

Recently one of my prior mentees was regaling me with the story of his first custody trial.  One of his concerns was his overly confrontational cross-examination of the guardian ad litem, who is a local attorney we both like.  He was unhappy with the conclusions in her report, and was attempting to undermine that report through his cross-examination, but was uncomfortable with attacking her integrity.  How should he have handled it?, he asked.

This led to a discussion of the various ways one might cross-examine a witness and a further discussion of the various ways one might undermine a witness’ testimony on cross-examination.  There are only two reasons to cross-examine a witness: 1) to highlight testimony that witness gave on direct examination that is helpful to one’s case; and 2) to convince the court to discount that witness’ harmful direct examination testimony.  If one cannot accomplish at least one of those goals on cross-examination, it’s best not to conduct any cross-examination.

However, in convincing the court to discount that witness’ harmful direct examination testimony one needs to consider why that witness’ testimony might be incorrect.  Basically there are three reasons the witness’ testimony could be inaccurate: mistake; bias; corruption.  Each reason requires a different cross-examination approach.

Testimony borne of corruption–outright lying–is common in courtroom dramas but much less common in actual court.  However if one believes a witness is outright lying in order to achieve results in litigation that he or she would not otherwise be entitled to–and has evidence to back up that assertion–an aggressive cross-examination technique is merited.  Since there’s no polite way to call someone corrupt or a liar, there’s no need to be gentle with such witnesses (there’s also no need to be rude or uncivil).

Yet one needs to be careful with such a cross-examination strategy.  It can be highly effective if the factfinder agrees that the witness is lying in order to perpetuate an injustice.  But it will backfire–create sympathy for the witness and anger towards the attorney–if the factfinder disagrees.  Given a choice between presenting a witness as biased, mistaken or corrupt, I chose corrupt only when the corruption is obvious.

Many more witnesses are biased than corrupt.  The biased witness isn’t lying so much as shading his or her testimony to favor the other party.  Sometimes the basis for bias is obvious: the witness is kin or friend.  However bias can be more subtle.  For example, many medical providers have an explicit bias to believe their patients, including their patients’ subjective complaints.  Treating physicians will often testify that their patient suffers from some subjective ailment in part because the patient tells them so and they are biased to believe their patients.  Sometimes school teachers simply deal more than one parent than the other parent, and, if they like the parent they deal with, they will tend to favor that parent in a custody case.

Simply asking a biased witness to acknowledge the bias is often sufficient cross-examination.  If the witness is biased because of a kin or friend relationship, yet refuses to acknowledge that bias, that refusal is often sufficient to make the factfinder note the bias.  It’s normal to be biased for friends and family and someone unwilling to even acknowledge that bias must be very biased indeed.

…And even more witnesses are mistaken.  It is the human condition to be mistaken: we misperceive facts; we recall events through our flawed memory; we bend our own memories to make us look better and avoid acknowledging painful truths.  We then reach conclusions based on incomplete data or upon our own flawed factual recollections, often failing to understand that we have even made such conclusions.

On the surface the movie My Cousin Vinnie is a broad comedy about an inexperienced but street-savvy New York attorney trying his first case before a rural Alabama jury while testing the patience of the patrician Southern judge.  Yet this movie is beloved by trial attorneys and often used at legal education seminars on cross-examination techniques.  This is because Joe Pesci’s character, Vinnie Gambini, does a fabulous job demonstrating how one can do a devastating [in the sense that the witness’ direct examination testimony is completely discounted] cross-examination of witnesses who are merely mistaken.

Using common-place facts such as the cooking time for non-instant grits, the ability to see clearly through smudged windows and shrubbery, or the suspension systems on various 1960’s American muscle cars, Gambini patiently leads each witness through the factual assumptions that led them to their conclusions and then demonstrates that their factual assumptions are likely incorrect.  His cross-examinations end with each witness acknowledging he or she could be mistaken, which is all the testimony Gambini needs to create reasonable doubt.  If he’d treated these witnesses as liars, and cross-examined them as such, he never would have gotten such concessions.

One doesn’t need to treat a witness who is mistaken or biased as though that witness is a liar in order to obtain the desired testimony and achieved the desired results of cross-examination.  In fact, it’s counterproductive to treat such witnesses so harshly.  Before one cross-examines a witness one should determine the type of witness one is dealing with and structure one’s cross-examination accordingly.