“If you confront anyone who has lied with the truth, he will usually admit it - often out of sheer surprise. It is only necessary to guess right to produce your effect.”
― Agatha Christie, Murder on the
To my mind, cross-examination is the crowning glory of our trial system. It is the climacteric of the proceeding. If the truth will out at all, it is through probing, pressing cross.
The manner and style of the cross-examination are key. If, eloquence is not misplaced in the courtroom, neither is drama. The lawyer must be a bit of a thespian, play-acting as though he is learning new facts for the first time that, in reality, he knew all along. Tempo and rhythm are essential ingredients in the mix. A soft, and slow approach establishes a rapport with the witness so better to sink the harpoon. Regardless of whether slow or staccato, the questioning must command the jury’s interest. Their thoughts provoked, the jury is intrigued and wants to learn along with the advocate who feigns ignorance until he plunges his forensic sword into the breast of the falsity to expose the heart of the truth
The cardinal rule, known to every trial lawyer, is never to ask a question of a witness, particularly a hostile witness, unless you either already know the answer, or you don’t care what the answer is. Know when to stop. If you get a favorable answer, quit while you’re ahead; don’t give him a chance to wiggle off the hook. As master of the legal universe Louis Nizer once said, “In cross examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.”
The rule about knowing the answer is often more honored in the breach than in the observance. Not every trial lawyer is mindful of this rule, and some get away with it. Maurice Edelbaum, who unsuccessfully defended Carmine DeSapio on conspiracy charges, was a devotee of the craps tables of Las Vegas. Edelbaum would often take a chance when he questioned a witness. Sometimes he won, and sometimes he crapped out. When he won, he would wave his clenched right fist as though he had rolled a big winner, something like a sixth grade teacher shaking the chalk in his hand after writing on the blackboard. When he lost, he would look at the jury in triumph as if to say, “Just as I thought.”
Often, the rule is violated by a “why” question. A “why” question is most often objectionable because it argues with the witness. But it is even more undesirable because it turns the witness on full throttle, loses control, and allows the witness to to say whatever is on her mind or whatever comes into her head. As illustrated by this old chestnut:
Q What was the first thing your husband said to you that morning?
A He said, ‘Where am I, Cathy?’
Q And why did that upset you?
A My name is Susan!
Lawyers, even brilliant lawyers, often seem to forget this rule. Arthur Liman, a former prosecutor, was counsel for the Senate committee investigating the Iran-Contra affair. The witness was the villain of the piece, Colonel Oliver North, and millions closely followed the duel on national television.
Q Colonel North, was the day Iran/Contra unraveled the worst day of your life? [What, conceivably was the wily Colonel North going to say?]
A No, Mr. Liman, the worst day was in Viet Nam when I was in a foxhole with my best friend, and the Viet Cong threw a grenade into the foxhole, and my friend threw himself on top of it and saved my life. My best friend died. That was the worst day of my life.
North turned the entire hearing around with that devastating answer. The senators’ mail began to run heavily against Liman, and even more heavily in favor of North. He captured the sympathies of the Nation. Liman was as smart a lawyer as I ever saw in a courtroom, but he had failed to control a hostile witness by asking a question he didn’t know the answer to.
Another example of a derailed cross-examination occurred during the 1980 Southern District of New York trial of Italian financier Michele Sidona on a host of bank fraud charges in the scandal involving Franklin National Bank in New York, the largest bank failure in US history.
Sindona’s lawyer was former Southern District judge Marvin Frankel, who had resigned from the bench only two years before the trial.
The star witness for the prosecution, led by John J. Kenney, a terrific trial lawyer, was a Sindona associate, Carlo Bordoni, who had testified for four days to Sindona’s complicity in numerous instances of fraud. Frankel, seeking to establish bias against Sindona on the part of the witness, brought out on cross that Bordoni had publicly stated he “could have killed” Sindona. He should have stopped there. But, when Bordoni asked if he might elaborate the basis for his hatred, Frankel amazingly assented and lost control of the witness. The door was wide open.
“Michele Sindona tried to rape my wife,” explained Bordoni. “It was a human reaction.”
There was stunned silence in the court room. The forelady on the jury burst into tears. Frankel’s cross-examination of Bordoni had blown up in his face. The jury convicted Sindona of 65 counts of conspiracy, fraud, false bank statements and perjury, and Judge Thomas Griesa sentenced him to 25 years in jail.
Reed Brodsky was a fine Southern District prosecutor who recently convicted Rajat Gupta of an insider trading conspiracy. Gupta, a former director of Goldman Sachs, was accused of tipping off his pal, Raj Rajaratnam, to confidential boardroom information so Raj could make profit on Goldman stock before the news hit the broad tape. On the defense case, Gupta called his daughter, a smart Harvard Law School lawyer, to testify that her father had a falling out with Raj over a lost $10 million investment in a Raj fund and would have no reason to tip him off. She testified that after this episode, her father was “depressed, withdrawn and not himself.” Juries understand that daughters want to help their fathers, so it would have been a good time for Brodsky to say “Your Honor, no cross.”
Instead, moving close to the witness and melodramatically speaking in hushed tones, Brodsky went for the jugular:
Q Do you love your father?” [Not a bad question, the answer is obvious.]
A Yes. [Good time to stop, Reed, please, please sit down]
Q Would you do anything for your father? [Terrible question. Much better to ask, if you must, “You do not want to see him convicted by this jury, do you?]
A I would do anything for my father, but I would not lie, though, on the stand. [A disaster]
Disaster was not irretrievable, however. Brodsky went on to win the case.
Abe Levy, the great defense lawyer was fond of not cross-examining where he saw he could not score points. This leaves the jury with the impression that there could not be too much to the witness’ direct testimony if the opposing lawyer is not even asking questions. This is of course a judgment call. Abe once rose with his charming smile and said, “Thank you for coming, Mr. So-and-so. Other than to wish you a Merry Christmas and a Happy New Year, I have no questions.” As Lloyd Paul
In the perjury trial
of Alger Hiss, Hiss’ brother, Donald, flatly denied Whittaker Chambers’ allegation that he, Donald, had been a member of a communist apparatus. Prosecutor Tom Murphy had nothing to contradict Donald with. So he asked eleven meaningless questions, shrugged his large shoulders and sat down, as though to say, “I think you’re lying, but I can’t prove it.” Discretion is often the better part of valor.
If there is any substitute for relentless cross-examination in bringing out the truth, I never heard of it. What a marvelous art form cross-examination is! You probe and press and pry and try to make points you can use in summation, all the while wary of the booby traps and mine fields in your path. If there’s a better way to do it, no one has invented it.
(Excerpted from my forthcoming book, The Mother Court-Tales of Cases That Mattered in America’s Greatest Trial Court).
