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Cross-Examination: Science and Technique 1 Comment

Cross-Examination: Science and Technique

By Larry S. Pozner & Roger J Dodd, 3rd Edition, LexisNexis
Reviewed by Garry Williams

I think I first saw Irving Younger’s The Ten Commandments of Cross-Examination on VHS when I was a summer clerk at the end of 1991. By then, it had been around for over 15 years and the copy I saw was grainy and not in the best condition. The video would jump and the sound quality was poor. Nevertheless, it was a superb and entertaining lecture which sought to define the principles that underlie successful cross-examinations.

Younger’s Ten Commandments were:

  1. Be brief,
  2. Short questions, plain words,
  3. Always ask leading questions,
  4. Don’t ask a question to which you do not know the answer,
  5. Listen to the witness’ answers,
  6. Don’t quarrel with the witness,
  7. Don’t allow the witness to repeat his or her direct testimony,
  8. Don’t permit the witness to explain his answers,
  9. Don’t ask the “one question too many”,
  10. Save the ultimate point of your cross for summation.

The lecture itself is still worth a watch and can be found on YouTube – just type in “Irving Younger” and it will be the first selection.

However, even back then, I thought that some of Younger’s Ten Commandments had severe limitations.

For instance, often it is simply not possible during a cross-examination to ask only questions to which you know the answer. Sometimes it is necessary to probe to get what might be there. Nor is it always possible or desirable to ask only leading questions.

And, the admonition not to ask the “one question too many” is all very well but is rather dependent on counsel recognising that the next question is apt to produce, at best, an unhelpful response or, at worst, a disastrous retort. The problem is that the importance of this particular commandment is often only recognised seconds after it has been breached.

But despite their limitations, Younger’s Ten Commandments made it clear to me that cross-examination was not a mystical art closed to all but those special few who could somehow just perform it – a myth that some members of the profession are not inclined to debunk – but a science and that the relevant techniques could be learned.

But there was a problem. While there were numerous books on cross-examination or which dealt with the topic, not many of them covered the subject in a particularly helpful way. Many of the older volumes on the subject read more like a collection of famous courtroom incidents or “war stories”. The oft-mentioned The Art of Cross-Examination by Francis L. Wellman (1908) and Notable Cross-Examinations by E W Fordham (1951) fall into this category. While interesting, these older volumes just don’t approach the subject as if it is a teachable or learnable skill-set.

Cross-examination as a science

That is why when Daisy found Pozner and Dodd’s Cross-Examination: Science and Techniques and suggested that I should have a look at it, I was intrigued.

Here was a book which its authors expressly indicated was intended to “pass along to the trial bar … the many techniques of cross-examination that have been used by skilful advocates for many generations”.

It was clear from the work’s table of contents that the authors had approached their subject on the basis that cross-examination is a science with firmly established rules, guidelines, identifiable techniques and definable methods, and that these can be described, practised and learned.

We bought a copy. I won’t lie, it wasn’t cheap. It comes in a hardback volume or you can buy the eBook version. The eBook is the better option as it has eight bonus chapters which are not in the hardcopy version. Either will set you back a cool US$309. However, it’s worth the investment. Why? Well, Pozner and Dodd’s work is the definitive guide to preparing and delivering predictably successful cross-examinations.

So, what’s in the book? Well, a lot more than can be described in a short book review like this. But the names of some of the chapters and a short description of them will give you an idea.

The chapter method of cross-examination (Chapter 2)

Pozner and Dodd advocate that a lawyer must think of the cross-examination of any witness as a series of small discussions (“chapters”) on individual topics of importance to the theory of the case and not as a flowing discussion with a single unifying purpose. They explain the benefits of approaching a cross-examination in this way and how to break topics (or more precisely, the facts sought) down into appropriate “chapters” for cross-examination.

Developing a theory of the case (Chapter 3)

This contains the now familiar guidance about the need to develop a theory of the case and how it must be consistent with the “facts and inferences beyond change”.

Cross-examination preparation systems (Chapters 6-9)

These chapters provide guidance on a number of different cross-examination systems. One involves the use of topic charts in which all relevant material is grouped together by topic in a systematic way. An alternative system proposed is that described as “sequence of events charts”. In this preparation system, the cross-examiner evaluates and breaks down each relevant event chronologically in substantial detail, but the cross-examination itself is performed in the most favourable sequence. The third system outlined is that called “witness statements charts”. This system is said to allow the cross-examiner to devise safe leading questions in advance and to identify impeachable inconsistencies with ease.

Destroying safe havens (Chapter 13)

A safe haven is, as its name suggests, an excuse that is likely to be used by a witness to avoid arriving at the factual destination the lawyer will seek to establish. This chapter offers techniques to block off such safe havens before they are used.

Controlling the runaway witness (Chapter 15)

A chapter on strategies for dealing with unresponsive witnesses. Importantly, not only do Pozner and Dodd provide such strategies, they emphasise that an unresponsive witness is not something to be feared, but rather a source of opportunity. Unresponsiveness speaks to the character of a witness and the techniques suggested can highlight this and thus undermine the credibility of such witnesses.

Dealing with “I don’t know” or “I can’t remember” (Chapter 16)

This chapter outlines techniques that take advantage of such evasive answers and which punish the witness, at least, in terms of their credibility. It also outlines techniques to take advantage of such answers even when it is true that the witness can’t remember or doesn’t know.

Impeachment by inconsistent statement or omission (Chapters 19-20)

These two chapters contain useful guidance on the steps that should (and which can) be taken when impeaching on these grounds. Some of the techniques outlined will leave particularly powerful impressions on the fact-finder (whether that be a judge or a jury).

Juxtaposition; Trilogies; and Loops, double loops, and spontaneous loops (Chapters 24-26)

These are the chapters which contain some of the most interesting material. They relate to questioning techniques that can and should be adopted in most cross-examinations.

Juxtaposition is a technique that contrasts different sets of behaviour in order to demonstrate parallels between them. Trilogies are a literary device designed to cause a fact-finder to better hear the facts referred to in the trilogy, and to instantly recognise that they are facts of real significance in relation to the contrasting theories of the case. Looping is a questioning technique that enables important facts to be highlighted by repetition in a legitimate way.

As I have said, there is much, much more in this text, and a studious reader will find it and use it to dramatically improve their abilities as a cross-examiner.

One word of warning though, this is an American text and, as a consequence, not all of the suggestions can or should be taken up in this jurisdiction. The rules of the game are different here and there are some quite important rules in play here which have no equivalents in the US.

So, with that caveat, I’ll sign off this review by giving you a commandment of my own: Get your hands on a copy of Cross-Examination: Science and Techniques and spend the time required to make your way through its 744 pages.

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