{"id":1504,"date":"2016-10-04T07:00:03","date_gmt":"2016-10-04T11:00:03","guid":{"rendered":"https:\/\/www2.law.temple.edu\/voices\/?p=1504"},"modified":"2016-07-14T13:35:48","modified_gmt":"2016-07-14T17:35:48","slug":"yell-compel-soft-sell-blatant-must-cross-examination","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/voices\/yell-compel-soft-sell-blatant-must-cross-examination\/","title":{"rendered":"Yell, Compel, or Soft-Sell: How Blatant Must Cross-Examination Be?"},"content":{"rendered":"

Among Irving Younger\u2019s commandments were the well-known dictates of \u201cbe brief\u201d and \u201csave the ultimate point of your cross for summation.\u201d The latter was the model for an eyewitness cross-examination at a recent training on litigating mistaken identification cases, but when we polled the mock jury one of its members \u2013 discussing the cross \u2013 said \u201cI had no idea what the lawyer was doing or what his purpose was.\u201d It was only one juror, and others \u2018got it,\u2019 but the experience gave me pause.<\/p>\n

The question was, and remains \u2013 is it better to make your points and leave the rest for closing; or must we re-examine Younger\u2019s proscription and \u2018push\u2019 the point more explicitly? Let me first present the cross as delivered and then the analysis.<\/p>\n

The cross was designed to make three essential points: that the witness had barely any time to view the perpetrator (and was looking at the gun rather than the robber\u2019s face); that police \u2018bad practices\u2019 created the false memory; and that the accused did not fit the description. The gist (without reference to exhibits) went like this:<\/p>\n

    \n
  1. The person who did this was a complete stranger.<\/li>\n
  2. You had walked there before, right on campus where students often walk<\/li>\n
  3. Tell the jury your height, please.<\/li>\n
  4. When the police came they were respectful and considerate.<\/li>\n
  5. You did your best to help with details so they could try and catch the robber.<\/li>\n
  6. Your description was:\n
      \n
    1. 6\u2019 tall<\/li>\n
    2. Maybe had a mustache<\/li>\n
    3. His clothing had a Nike swoosh<\/li>\n
    4. Possibly Hispanic or tan Caucasian<\/li>\n
    5. 30-40 years old<\/li>\n<\/ol>\n<\/li>\n
    6. Incident \u2013 gentle step by step\n
        \n
      1. Walking back to sorority<\/li>\n
      2. Reach corner<\/li>\n
      3. Man pulled gun [act out]<\/li>\n
      4. Demanded money<\/li>\n
      5. You immediately told him you had none<\/li>\n
      6. He yelled \u201cGive me your phones.\u201d<\/li>\n
      7. You promptly complied<\/li>\n
      8. He yelled \u201cdon\u2019t follow me\u201d and ran off<\/li>\n<\/ol>\n<\/li>\n
      9. You are sure there was a gun\n
          \n
        1. [demonstrate gun held near waist]<\/li>\n
        2. You told police it was a black handgun<\/li>\n
        3. And that the man \u201ccocked it\u201d<\/li>\n<\/ol>\n<\/li>\n
        4. Let\u2019s discuss the police investigation\n
            \n
          1. 2 days later told \u201cpolice had some leads\u201d<\/li>\n
          2. They showed you a photo array \u2013 only faces<\/li>\n
          3. And you made no identification<\/li>\n
          4. One week later police called you back in<\/li>\n
          5. Police told you \u201cIt\u2019s up to you\u201d<\/li>\n
          6. They showed you a second array<\/li>\n
          7. You studied it for 25 seconds and then identified my client<\/li>\n
          8. He was the only person in both arrays<\/li>\n
          9. Subsequently shown a lineup and picked my client<\/li>\n
          10. And he was same person as in both arrays<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n