When a lot of lawyers think of cross-examination, they think of a fight-to-the-death cage match between the lawyer and the witness. They think of scenes like these from prosecutor Juan Martinez’s cross-examination of Jodi Arias:
Those of you who don’t want to do cross-examination like this can breathe easy—there’s a better way. You’ve guessed it; Terry MacCarthy says it best:
To improve and to change your thoughts on cross-examination, I suggest you seek, in cross-examination, to:
Tell a Story
Use Short Statements
—MacCarthy on Cross-Examination, pg. 5
How does the Jodi Arias cross-examination meet this test? Looking at just the first section of at the snippet above, we watch this happen:
- Juan Martinez’s question (at 0:10) “The messages, what did they say?” allows Ms. Arias to tell her story—and she jumps at the chance;
- He loses control of Jodi Arias and quibbles with her about whether she was “offended” or “hurt” by her boyfriend’s text messages;
- He looks like a bully when she tells him (starting at 1:35) she can’t remember what she just said because “you’re making my brain scrambled”; and
- She gets under his skin when she says (starting at 2:30) “I think I’m more focused on your posture, on your tone, and your anger.”
It goes downhill from there. Takeaways: (1) he looks bad; (2) Jodi Arias gets to tell her story about being mistreated by her boyfriend and Juan Martinez; and (3) he feeds Jodi Arias long questions instead of short statements. I’ve been there. This kind of cross-examination looks more like an argument between 3-year-old children:
What is Juan Martinez trying to show the jury before he is sidetracked? That Jodi Arias hung out with a supposedly abusive man after he sent her text messages that she found offensive. Here’s another way the cross-examination could have gone:
Q. I’m going to ask you questions about some of Travis’s text messages. You understand?
Q. They were on his phone?
Q. He was asleep?
Q. You looked at them when he was asleep?
Q. You read the messages?
Q. They were sexually explicit?
Q. You told the jury on direct that they offended you?
Q. After reading these offensive messages, you went on vacation with Travis?
And so on. He proves his point, and if she answers anything other then “yes,” she looks bad. The jury doesn’t have to squirm in their seats. And there are many other ways to attack her memory. I’ll address how to deal with a witness’s faulty memory in a future note.
Featured image: “Boxers In A Posed Series, Dunlevy Gym, Sydney, Between 1925-1940 / Photograph” by Sam Hood is licensed CC.