Rule 703 of the Federal Rules of Evidence was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witness on whose statements or opinions the expert purports to base his opinion.
Prosecutors cross-examine much less frequently than do defense counsel, for good reason. Often defendants do not testify (with some data sets putting the number below the 50% threshold for felony cases that go to trial), whether because they have little too say, there is ample impeachment evidence the jury will not hear if they remain silent, or their educational and developmental limitations make them poor candidates for taking the witness stand. And the proportion of defendants who do testify may vary region to region and crime to crime. All of these factors make cross of a criminal accused a less practiced art. Just as fundamental skills may become rusty with limited use, knowledge of controlling principles of law may also erode or become lost entirely when the cross of a defendant is a relative rarity. And there is enough developed law to warn prosecutors away from potential pitfalls, areas of cross-examination that can end in a mis-trial or reversal on appeal. “Are you calling the police witnesses liars?” In the heat of battle and the …
It’s Monday. 7a.m. I am 33 hours away from the final round of the Samuel Polsky Moot Court Competition. These days, my mornings start a little earlier than normal. I pace my apartment floor, still in my pajamas, practicing my presentation and carefully plotting every detail of a complex legal argument. My thoughts on the cases and the policies supporting my plea are interrupted only by pauses where I anticipate questions will fall and by the subtle hum of coffee brewing in the background.
The Hollywood lawyer – whether Gregory Peck, Kate Hepburn, Paul Newman or Denzel Washington – never speaks from notes. And Cousin Vinny, although he never had to give a closing, certainly had no paper in hand when he delivered his inimitable opening statement of “everything that guy said is [expletive deleted].” But it is the rare lawyer who has spoken without notes and then not thought “darn, I wish I’d remembered to say that.” Whatever Hollywood and television have done to shape audience perceptions, there is no reason to conclude that audience expectations are that an attorney will never use notes (except in student mock trial competitions), or that an attorney who does so somehow has diminished credibility or effectiveness. Given the edict that preparation is key to success in advocacy, or as words attributed to Abraham Lincoln explain, “Give me six hours to chop down a tree and I will spend the first four sharpening the axe,” reliance on memory, that incredibly faulty and distractible tool, is a less than desirable approach. Consider this …
For forty-plus years, learning the art of trial advocacy has included the obligatory viewing of a tape of Irving Younger’s “10 Commandments of Cross-Examination” lecture. And every lawyer who has ventured into the courtroom has seen – if not personally experienced – the dire consequences when a commandment is violated, in particular when the cross-examiner asks the one question too many or inquires about a subject where the answer is not already known. Younger himself acknowledged that the Commandments he posited were meant to be broken by masters of the craft, but urged that adherence to them ensured a safe, productive cross. And the latter point can’t be denied. Were every cross-examiner to follow Younger’s directives, there would be less error in courtroom proceedings. But are there more or different Commandments? Did Younger’s approach leave gaps? The answer to both questions is “yes.” Let’s first recall the 10 that Younger preached. They are: Be brief Use plain words Ask only leading questions Be prepared Listen Don’t get into a quarrel Avoid repetition Disallow witness explanations …
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