{"id":1451,"date":"2016-07-20T07:00:09","date_gmt":"2016-07-20T11:00:09","guid":{"rendered":"https:\/\/www2.law.temple.edu\/voices\/?p=1451"},"modified":"2016-07-14T13:28:13","modified_gmt":"2016-07-14T17:28:13","slug":"learning-mistakes-imperfect-cross-examination","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/voices\/learning-mistakes-imperfect-cross-examination\/","title":{"rendered":"Learning From Mistakes: An Imperfect Cross-Examination"},"content":{"rendered":"

\u201cBy seeking and blundering we learn\u201d – Goethe<\/p>\n

\u201cI have not failed. I’ve just found 10,000 ways that won’t work\u201d – Thomas Edison.<\/p>\n

\u201cA spelling mistake in the DNA of a gene within the brain seems to impair the ability of a person to improve their performance based on knowledge of earlier errors.\u201d – News Story, The Telegraph<\/em>, 2007.<\/p>\n

The first two quotes above are inspirational and reflect insight; the third, sadly, seems to fit many lawyers who never recognize their errors and thus persist in their bad habits, especially in the courtroom. It is probably not genetic, but the recurrence argues for a model where we study error, diagnose and diagram it, and then take corrective steps. That is the rationale for this and forthcoming \u201clearning from mistakes\u201d columns.<\/p>\n

Although there are no hard data to back up this assertion, it is undeniable that poorly constructed cross-examinations occur on a daily basis in courtrooms across this nation. And they are conducted by lawyers with years of experience who, sadly, don\u2019t recognize mistakes and learn from them, and thus are doomed to repeat them. This column will look at one such example, the cross-examination of an eyewitness in a murder trial.<\/p>\n

The eyewitness and the perpetrator were strangers, the incident occurred at 5 p.m. in early February roughly 20 minutes before sunset, and most of the action took place down the street from where the witness sat in her car. She described the shooter as wearing \u201ca black jacket, a hoodie and a hat on\u201d and could not estimate his height. The shooter, after firing, walked down the street and past the vehicle where the witness was seated. Notwithstanding these limitation, the witness unhesitatingly identified the defendant.<\/p>\n

Trial counsel was armed with two, if seemingly contradictory points \u2013 the opportunity to observe the perpetrator\u2019s face was quite abbreviated, and omitted from the description was a salient feature, a tattoo that the defendant had on his face. I term these \u201cseemingly\u201d contradictory because, at first blush, the less time to view the face the less time to see a tattoo \u2013 but because a tattoo on a face<\/em> stands out, even a brief look should have captured it. Here is how counsel poorly handled these two points, starting with reducing the opportunity to observe:<\/p>\n

Q: You were half a block away and the individual was in front of you<\/em>?<\/p>\n

A: Yes.<\/p>\n

\u2026<\/p>\n

Q: Now you say when the individual ran part you, he sort of jogged past you?<\/p>\n

A: Yes. He didn\u2019t run fast.<\/p>\n

Q: And when the individual jogged past you<\/em> – –<\/p>\n

A: Jogged, briefly walked.<\/p>\n

\u2026<\/p>\n

Q: So it happened very rapidly, didn\u2019t it?<\/em><\/p>\n

A: Yes.<\/p>\n

\u2026<\/p>\n

Q: You told your daughter to put her head down but you kept your head up?<\/em><\/p>\n

A: Yes.<\/p>\n

Q: Even while the shooting was going on, you kept your head up?<\/em><\/p>\n

A: Yes.<\/p>\n

What\u2019s wrong here? Three times, counsel made the perpetrator visible to the eyewitness; told the witness\u2019 story and not his; repeated a favorable term [\u201cjogged\u201d] after already getting the desired answer, allowing the witness to qualify her answer; and asked a \u201cso\u201d question, one that all too often can backfire. [Although it did not here, the question So it happened very rapidly<\/em> invites an answer such as \u201cto me, it seemed like time stopped.\u201d]<\/p>\n

How could this have been done better? The techniques counsel missed were (1) proceeding frame by frame, (2) making points obliquely, and (3) skipping the \u201cso\u201d question by reserving that point for closing argument. Wouldn\u2019t the following have been better?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: The shooting was a half block away?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: Because your daughter was in the car with you the pushed her and held her down to protect her from any danger?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: After the shooting the man, as you told us earlier, walked quickly past your car?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: And then he was gone?<\/p>\n

With such questions there would have been control and<\/em> a gathering of the ingredients necessary for closing argument. Instead, there was argument with the witness and a repetition of bad testimony, repetition that could not be overcome with compelling proof to the contrary.<\/p>\n

Where counsel was glaringly deficient was in the examination about the description and the tattoo:<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: [You gave police a description] of a black male, light skinned, in his twenties\u2026wearing a three-quarter length black bomber jacket, black knit hat, black hoodie sweatshirt, blue jeans shooting a gun about 13 to 14 times<\/em>\u2026<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A: Yes.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u2026<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: Now, when you gave that description to the police, you didn\u2019t tell the police anything about a tattoo; did you?<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A: Well, he didn\u2019t ask me that\u2026I didn\u2019t give that description until I went down to [detective headquarters.]<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: it is nowhere in this description that you said anything about\u2026a tattoo on his face. Would you agree to that?<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A: To the first officer\u2026? No, he didn\u2019t ask me that.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: Did you tell anybody?<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A: I told people at [detective headquarters].<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: What was that person\u2019s name?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A: I don\u2019t recall\u2026<\/p>\n

Here, counsel ignored the fundamentals of impeaching by omission \u2013 setting up the context and importance of the interview and the expectation that all critical details would be given and then simply establishing what was<\/em> said. This called for a simpler, and almost friendly examination, one that could have proceeded along the following lines:<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: You spoke to the police afterwards?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: They were polite and considerate of you and your daughter?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: They asked for a description of the shooter?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: And you tried your best to help them?<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Q: Let\u2019s read it. [Read the description without<\/em> the number of times the gun fired, which seems to elongate opportunity to observe.]<\/p>\n

So, what do we learn from these mistakes? How about these lessons:<\/p>\n