Part 1: Boxing them in
By P. Micheal Schneider
As a young lawyer I made MANY mistakes…still do if I’m being honest. One of the biggest mistakes I made was in how I conducted my cross examinations. Like an excited puppy waiting at the door, I would mentally work myself into a tizzy as I listened to the direct examination of opposing witnesses. The anticipation of attack would build in my head. The words “I pass the witness” coming from opposing counsel’s mouth were like the starting bell at the dog track. Unfortunately, like the greyhounds, I would seldom catch the rabbit.
Over time, I have come to learn that great cross examinations have similar attributes. Subtlety, focus, and control come to mind most frequently. Most importantly, great cross examinations require a plan to “box in” the witness with patient questioning so that the witness has nowhere to run when the haymakers are thrown.
Here is a great example of patient “boxing in” questioning from the timeless book The Art of Cross Examination (4th Edition) by Francis Wellman:
The issue was the forgery of a will; the proponent was a man of high respectability and good social standing, who had an indirect interest to a large amount, if the will, as offered, was allowed to be probated. Samuel Warren, the author of “Ten Thousand a Year,” conducted the cross-examination.
Warren (placing his thumb over the seal and holding up the will). “I understand you to say you saw the testator sign this instrument?”
Witness. “I did.”
Warren. “And did you sign it at his request, as subscribing witness?’
Witness. “I did.”
Warren. “Was it sealed with red or black wax?”
Witness. “With red wax.”
Warren. “Did you see him seal it with red wax?”
Witness. “I did.”
Warren. “Where was the testator when he signed and sealed this will?”
Witness. “In his bed.”
Warren. “Pray, how long a piece of red wax did he use?”
Witness. “About three inches long.”
Warren. “And who gave the testator this piece of wax?”
Witness. “I did.”
Warren. “Where did you get it?”
Witness. “From the drawer of his desk.”
Warren. “How did he melt that piece of wax?”
Witness. “With a candle.”
Warren. “Where did the candle come from?”
Witness. “I got it out of a cupboard in the room.”
Warren. “How long should you say the candle was?”
Witness. “Perhaps four or five inches long.”
Warren. “Do you remember who lit the candle?”
Witness. “I did.”
Warren. “What did you light it with?”
Witness. “Why, with a match.”
Warren. “Where did you get the match?”
Witness. “On the mantel-shelf in the room.”
Here Mr. Warren paused, and fixing his eye upon the witness, he again held up the will, his thumb still resting upon the seal, and said in a solemn, measured tone:
Warren. “Now, sir, upon your solemn oath, you saw the testator sign this will he signed it in his bed at his request you signed it as a subscribing witness you saw him seal it. It was with red wax he sealed it a piece of wax about three inches long he lit the wax with a piece of candle which you procured from a cupboard you lit the candle with a match which you found on a mantel-shelf?”
Witness. “I did.”
Warren. “Once more, sir upon your solemn oath, you did?”
Witness. “I did.”
Warren. “My lord, you will observe this will is sealed with a wafer!”
The extreme patience illustrated in Wellman’s example was the key to “boxing in” the witness. Imagine the response the witness would have given had Mr. Warren barreled straight into his line of attack:
Mr. Warren: Sir, you said on direct that the will was signed and sealed with red wax.
Witness: Yes, sir.
Mr. Warren: Yet we see hear it actually is sealed with a wafer, correct?
Witness: You know, you are correct. The sealing was so unimportant I must have forgotten how it was done. I just remember us sitting around the table and he signed it and that was that.
The size of the wax stick, its location, where the matches were and who lit them all seem to be very trivial matters. So trivial, in fact, the witness saw no harm in fabricating the answers. He must have thought “Who would know?” But by building up the surrounding circumstances and committing the witness to a single precise version of events, Mr. Warren was able to “box in” his witness. How now could the witness claim that he merely forgot the type of seal when he just firmly committed with such great detail to the circumstances surrounding the sealing of the will?
Certainly such dramatic events such as the above illustration are few and far between in the daily practice of law. But the same technique can be used in depositions, family law temporary hearings, and evidentiary hearings in criminal cases.
Take, for example, a recent jury trial in which my client was accused of causing bodily injury to his wife. On the stand the complainant alleged that the entire matter started when my client punched her in the face unprovoked. Despite her contention that she had a bruise and redness under her eye for “days” after, the police report contained no mention of any marks to her face the night of the incident despite noting in great detail several abrasions on her arms. During the reporting officer’s direct testimony by the prosecution, he surprised me (and I think the prosecutor) by mentioning that he now remembers (some 15 months later) that there was, in fact, “red puffiness” under the complainant’s eye the night of the alleged incident that looked like she had been hit.
Here is how we were able to “box in” the officer and show that his sudden recollection was less than credible:
Defense: Officer, you said you have been with the force for seven years?
Defense: And before that you were in the academy?
Defense: And like any school the police academy has interesting parts and not interesting parts, correct?
Officer: That’s true.
Defense: And for all the time you spent shooting guns and practicing defense techniques you spent twice as much time in a class room learning things like radio codes, constitutional law, and report writing, isn’t that true?
Officer: That’s true.
Defense: And while the classroom stuff was not near as fun you recognize then and certainly recognize now that things like report writing are critically important, correct?
Defense: In fact, you testified that domestic disturbance calls are one of the most frequent calls you have to make, correct?
Defense: You said you have made over a hundred domestic disturbance calls?
Officer: At least.
Defense: And over time those calls and the facts of those calls and the people involved can start to run together, correct.
Defense: So when you get called to court on a case, some 15 months later, that written report may be the only trustworthy way for you to remember what happened on a particular night, wouldn’t you agree?
Officer: I don’t know about “only trustworthy” way, but yes it does help.
Defense: I’ve read your report in this case. Is that a copy in front of you?
Defense: And I will tell you officer it is a well written report.
Defense: Does it surprise you that some of the reports your fellow officers write can be quite confusing?
Defense: It appears to me that you must have paid close attention when they were covering report writing in the academy. You were clear to note things like demeanor, location, names, times…everything a solid report requires, isn’t that correct?
Officer: I tried.
Defense: They taught you in the academy how it was important to write all the critical facts in the report, correct?
Defense: That is for your benefit if you are ever called to testify, correct?
Defense: And for your benefit if you are ever questioned by your superiors for decisions you made?
Officer: I guess
Defense: And it is also important for the government prosecutors, so they know the strengths of the case and how to proceed?
Officer: You would have to ask them.
Defense: In fact, in probably about 95% of your case the report is the only communication between you and the prosecuting attorney?
Officer: What do you mean?
Defense: In most cases, the arrested citizen is dealt with in the court system without you ever talking to a prosecuting attorney?
Officer: I guess that’s right.
Defense: Back to this case officer, you followed all yoour training in writing this report?
Defense: You even had [the complainant] fill out a written statement correct?
Defense: And this was after you interviewed her?
Defense: And you interviewed her in the living room?
Defense: It was not dark in there was it?
Defense: Then you filled out the family violence packet forms and were careful to note on the diagrams everywhere [the complainant] had injuries correct?
Defense: And that included the abrasions and red marks on her arm and the scrape on her knee, correct?
Defense: And then, after my client was arrested by you, you completed a sworn probable cause affidavit for the local judge to review, isn’t that right?
Defense: And in that sworn affidavit you wrote again about the injuries you observed, the demeanor of those involved, and what everyone at the scene told you, correct?
Defense: And this was a separate document from your report?
Defense: But like your report it was done the night you arrested my client?
Defense: In fact, within an hour or so of leaving the scene?
Officer: Maybe two.
Defense: When it was fresh on your mind?
Defense: Before you were called to any other domestic disturbances?
Defense: And you wrote the complainant was crying?
Defense: And you wrote she said they struggled over a cell phone?
Defense: And you wrote she admitted pushing my client?
Defense: And you wrote my client was wearing a Romo jersey?
Defense: And you wrote he asked to get a jacket because it was cold?
Defense: And you wrote that you noticed a chair knocked over?
Defense: And you wrote that she said she thought my client had been having an affair?
Defense: And you wrote that you could smell a faint odor alcohol on my client’s breath and you saw, and I’m quoting, “a Bud Light tall boy” that was still “cold to the touch.” Correct?
Defense: And you wrote that there was a Samsung Nexus phone with the case removed on the table, correct?
Defense: You wrote that you observed abrasions and marks on her arm and the scrape on her knee, correct?
Defense: You wrote that [complainant] said my client hit her in the face.
Officer: Yes, sir.
Defense: And you also wrote that my client denied that and said [complainant] actually pushed and grabbed him when he was trying to leave.
Officer: That is what he said.
Defense: You wrote with great detail like you were trained correct?
Defense: Yet nowhere in this report did you ever write that you observed “red puffiness” under [the complainants] eye?
Officer: No, I did not.
Defense: And you didn’t note it on the diagram of the injuries?
Defense: And you didn’t put it in your sworn affidavit?
Defense: Three times you noted the injuries you observed and in none of those three did you mention “red puffiness” to the face or any other injury to the face did you?
Officer: I guess not.
Clearly I still have much to learn from Mr. Warren’s example. Nevertheless, by being patient with the questioning of an adverse witness, we were able to “box in” the officer such that it would be extremely difficult for him to retreat to the “honest mistake” position so many “professional” witnesses rely upon when confronted with inconsistency between the testimony and the facts. In my example, the jury was left wondering how such an important detail, if true, could have been missed by the officer. I mean, even the mean old defense attorney admitted it was not a sloppy report that appeared hastily written.
By contrast, if I were to have approached the new evidence of injury with bluster or indignation (or worse by accusing the officer of outright of fabrication) it would have been much more difficult to establish through the officer that his training and otherwise solid report writing were compelling evidence that the failure to contemporaneously note the injury wasn’t an “honest mistake’ in report writing but rather was likely a false memory (or outright fabrication) developed in the time since.
As a final note (which we will discuss later in this series) it is important when cross examining to know when to STOP. So often we see lawyers lose all they have gained by executing a great “box in” cross with a dreaded “how” or “why” question. For the love of the spirit of Daniel Webster please JUST STOP. You as the story teller can provide the answer as to WHY in closing arguments.
Crushing the Cross Examination
Part Two: Proceed with Caution!
To be continued…..
P. Micheal Schneider is the President and Managing Attorney at the Schneider Law Firm, PC in Fort Worth Texas. The firm practices exclusively Family Law and Criminal Defense. Micheal Schneider has been named a Texas Super Lawyer by his peers as published in the Texas Monthly Magazine and has been named a Top Attorney six times by his peers in Fort Worth, TX Magazine.